MOORE, District Judge.
The contention between the parties to this proceeding, as appears from the petition and return to the writ of alternative mandamus, grows out of their different interpretations of the language of part of the 12th subsection of section 4 of the act of Congress entitled “An act to amend and codify the laws relating to municipal corporations in the district of Alaska,” which act was approved April 28, 1904 (chapter 1778, 33 Stat. 531).
Section 4 of said act contains an enumeration of the powers of the common councils of municipal corporations created under the laws of Congress for Alaska. The ninth subsection of said section specially defines the powers of a council relative to the public schools within the municipality, and gives the common council the power “to assess, levy and collect a general tax for school and municipal purposes, not to exceed two per centum of the assessed valuation upon all real and personal property.”
The twelfth subsection declares that the common council of a municipal corporation shall be vested with the power—
“To establish one or more school districts, to provide the same with suitable school houses, and to provide the necessary funds for the maintenance of schools, but such school districts and schools when established shall be under the supervision and control of a school board of three members, consisting of a director, a treasurer and a [356]*356clerk to be elected annually, by tbe vote of all tbe adults wbo are citizens of tbe United States or wbo bave declared tbeir intention to become sucb and wbo are residents of tbe school district. * * *
“All money available for school purposes except for tbe construction and equipment of school bouses and tbe acquisition of sites for same shall be transferred to tbe treasurer of said school board, shall be expended under tbe direction of said board, and tbe treasurer of said board shall be tbe custodian of said money, and be shall before entering on tbe duties of bis office give bis bond with sufficient sureties to the school district in sucb sum as the common council may direct and subject to its approval but not less than twice the amount that may come into bis bands as treasurer, conditioned that be will honestly and faithfully disburse and account for all money that may-come into bis bands as sucb treasurer.
“Tbe said board shall bave tbe power to hire and employ tbe necessary teachers, to provide for heating and lighting the school bouse and in general to do and perform everything necessary for tbe due maintenance of a proper school.”
Section 6 of said act contains the following provision in respect to the duties of the town treasurer:
“The treasurer appointed by tbe council shall be tbe custodian of all tbe moneys of tbe town: provided, that said treasurer shall pay over to tbe treasurer of tbe school district all moneys available for tbe maintenance of schools.”
In the parts of the act just quoted are enumerated all the powers and duties of the common council of an incorporated town in Alaska in reference to public schools and their maintenance.
These powers and duties are: (1) To assess, levy, and collect a general tax for school and municipal purposes upon all real and personal property within the corporate limits, and the-amount of which shall not be in excess of two per centum of the assessed valuation of said property, and to receive all license moneys for school ard municipal use from the clerk of the district court. (2) To establish one or more school districts, to provide the same with suitable schoolhouses, and to-provide the necessary funds for the maintenance of the schools. [357]*357(3) To transfer all money available for school purposes, not employed in the construction and equipment of schoolhouses and in the purchase of sites for schoolhouses, to the treasurer of the school board. (4) To determine and fix the amount of the school treasurer’s bond, and also to approve his bond; the amount of the bond to be graded by the amount to be transferred, under direction of the common council, to the school board’s treasurer.
The powers vested in the school board by said act are: (1) To supervise, direct, and control said schools when established by the common council; (2) to appoint a treasurer of the school board; (3) to expend the funds available for the maintenance Of said schools; (4) to hire and employ the necessary teachers; (5) to provide for heating and lighting the schoolhouses; and (6) in general, to do and perform everything necessary for the due maintenance of the proper schools.
This analysis of the express powers of the two bodies (the common council and the school board of an incorporated town) unfolds the proposition that while it is the duty of the common council to provide “the necessary funds for the maintenance of the schools,” and “to pay over to the treasurer of the school board all money available for school purposes,” yet the act contains no words granting to either the council or the school board the authority to decide, either what shall be the amount of the necessary funds for maintaining the schools, or the amount of all the money available for school purposes, or, as in section' 6, the amount of “all moneys available for the maintenance of schools.”
By section 4 of the act of'Congress approved March 2, 1903, c. 978, 32 Stat. 946, entitled “An act amending the Civil Code of Alaska, providing for the organization of- private corporations, and for other purposes,” Congress amended section 203 of chapter 21 of title 3 of an act entitled “An act making further provision for a civil government for Alaska [358]*358and for other purposes,” approved June 6, 1900, c. 786, 31 Stat. 521.
This amendatory act of 1903 directs:
“That all license moneys provided £or by act of Congress approved March 3, 1899, entitled, ‘An act to define and punish crimes in the District of Alaska and to provide a Code of Criminal Procedure for said district’ and any amendments made thereto, required to be paid by any resident, person, or corporation for business carried on within the limits of any incorporated town shall be paid over by said clerk [of the district court] to the treasurer of such corporation to be used for municipal and school purposes in such proportions as the court may order, but not more than fifty per centum nor less than twenty-five per centum thereof shall be used for school purposes.”
This enactment, bestowing upon the District Court for the division in which an incorporated town is situated the power and authority to apportion the amount of such license moneys which shall be used for school purposes, remained the law for Alaska until the enactment of the later act of April 38, 1904, and, if not repealed by the later act, is still the law upon the subject.
Does, then, the later act of 1904 operate as a repeal of that portion of the amendatory act of 1903 just quoted? As before stated, the act of 1904 contains no language which may be read as conferring in express terms upon either the common council of an incorporated town or upon a school board for a district within the limits of an incorporated town the discretionary power to determine how much of the funds specially devoted by law to school and municipal purposes shall he used for school purposes.
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MOORE, District Judge.
The contention between the parties to this proceeding, as appears from the petition and return to the writ of alternative mandamus, grows out of their different interpretations of the language of part of the 12th subsection of section 4 of the act of Congress entitled “An act to amend and codify the laws relating to municipal corporations in the district of Alaska,” which act was approved April 28, 1904 (chapter 1778, 33 Stat. 531).
Section 4 of said act contains an enumeration of the powers of the common councils of municipal corporations created under the laws of Congress for Alaska. The ninth subsection of said section specially defines the powers of a council relative to the public schools within the municipality, and gives the common council the power “to assess, levy and collect a general tax for school and municipal purposes, not to exceed two per centum of the assessed valuation upon all real and personal property.”
The twelfth subsection declares that the common council of a municipal corporation shall be vested with the power—
“To establish one or more school districts, to provide the same with suitable school houses, and to provide the necessary funds for the maintenance of schools, but such school districts and schools when established shall be under the supervision and control of a school board of three members, consisting of a director, a treasurer and a [356]*356clerk to be elected annually, by tbe vote of all tbe adults wbo are citizens of tbe United States or wbo bave declared tbeir intention to become sucb and wbo are residents of tbe school district. * * *
“All money available for school purposes except for tbe construction and equipment of school bouses and tbe acquisition of sites for same shall be transferred to tbe treasurer of said school board, shall be expended under tbe direction of said board, and tbe treasurer of said board shall be tbe custodian of said money, and be shall before entering on tbe duties of bis office give bis bond with sufficient sureties to the school district in sucb sum as the common council may direct and subject to its approval but not less than twice the amount that may come into bis bands as treasurer, conditioned that be will honestly and faithfully disburse and account for all money that may-come into bis bands as sucb treasurer.
“Tbe said board shall bave tbe power to hire and employ tbe necessary teachers, to provide for heating and lighting the school bouse and in general to do and perform everything necessary for tbe due maintenance of a proper school.”
Section 6 of said act contains the following provision in respect to the duties of the town treasurer:
“The treasurer appointed by tbe council shall be tbe custodian of all tbe moneys of tbe town: provided, that said treasurer shall pay over to tbe treasurer of tbe school district all moneys available for tbe maintenance of schools.”
In the parts of the act just quoted are enumerated all the powers and duties of the common council of an incorporated town in Alaska in reference to public schools and their maintenance.
These powers and duties are: (1) To assess, levy, and collect a general tax for school and municipal purposes upon all real and personal property within the corporate limits, and the-amount of which shall not be in excess of two per centum of the assessed valuation of said property, and to receive all license moneys for school ard municipal use from the clerk of the district court. (2) To establish one or more school districts, to provide the same with suitable schoolhouses, and to-provide the necessary funds for the maintenance of the schools. [357]*357(3) To transfer all money available for school purposes, not employed in the construction and equipment of schoolhouses and in the purchase of sites for schoolhouses, to the treasurer of the school board. (4) To determine and fix the amount of the school treasurer’s bond, and also to approve his bond; the amount of the bond to be graded by the amount to be transferred, under direction of the common council, to the school board’s treasurer.
The powers vested in the school board by said act are: (1) To supervise, direct, and control said schools when established by the common council; (2) to appoint a treasurer of the school board; (3) to expend the funds available for the maintenance Of said schools; (4) to hire and employ the necessary teachers; (5) to provide for heating and lighting the schoolhouses; and (6) in general, to do and perform everything necessary for the due maintenance of the proper schools.
This analysis of the express powers of the two bodies (the common council and the school board of an incorporated town) unfolds the proposition that while it is the duty of the common council to provide “the necessary funds for the maintenance of the schools,” and “to pay over to the treasurer of the school board all money available for school purposes,” yet the act contains no words granting to either the council or the school board the authority to decide, either what shall be the amount of the necessary funds for maintaining the schools, or the amount of all the money available for school purposes, or, as in section' 6, the amount of “all moneys available for the maintenance of schools.”
By section 4 of the act of'Congress approved March 2, 1903, c. 978, 32 Stat. 946, entitled “An act amending the Civil Code of Alaska, providing for the organization of- private corporations, and for other purposes,” Congress amended section 203 of chapter 21 of title 3 of an act entitled “An act making further provision for a civil government for Alaska [358]*358and for other purposes,” approved June 6, 1900, c. 786, 31 Stat. 521.
This amendatory act of 1903 directs:
“That all license moneys provided £or by act of Congress approved March 3, 1899, entitled, ‘An act to define and punish crimes in the District of Alaska and to provide a Code of Criminal Procedure for said district’ and any amendments made thereto, required to be paid by any resident, person, or corporation for business carried on within the limits of any incorporated town shall be paid over by said clerk [of the district court] to the treasurer of such corporation to be used for municipal and school purposes in such proportions as the court may order, but not more than fifty per centum nor less than twenty-five per centum thereof shall be used for school purposes.”
This enactment, bestowing upon the District Court for the division in which an incorporated town is situated the power and authority to apportion the amount of such license moneys which shall be used for school purposes, remained the law for Alaska until the enactment of the later act of April 38, 1904, and, if not repealed by the later act, is still the law upon the subject.
Does, then, the later act of 1904 operate as a repeal of that portion of the amendatory act of 1903 just quoted? As before stated, the act of 1904 contains no language which may be read as conferring in express terms upon either the common council of an incorporated town or upon a school board for a district within the limits of an incorporated town the discretionary power to determine how much of the funds specially devoted by law to school and municipal purposes shall he used for school purposes. I have earnestly tried to discover a grant of this power by necessary implication from the language of the act taken as a whole, and find no clear warrant for the belief that Congress meant to give this power to either of the contending bodies. The arguments used to support the theory that the authority is reposed in one body are about as strong as the consideration brought in support of the opposite theory —that it is a function of the other. Unless this authority ap[359]*359pears in the law to belong to the plaintiff beyond all question, it could not, in any event, have the relief it asks in this action.
The act of 1904 disclosing no warrant for the exercise of the authority in question by either of the parties to this action, the inquiry arises, has the authority been lodged elsewhere by any prior enactment upon the same subject? By the act of 1903 it was made the duty of the judge of the District Court of the territory including the municipality to exercise this function of deciding what amount of the license fund could be used by the school board for the support of schools. The repealing clause of the act of April 28,1904 (section 8, c. 1778, 33 Stat. 534), is as'follows:
“All acts and parts of acts inconsistent with this act are to the extent of such inconsistency hereby repealed, and the provisions of this act shall apply to and govern all municipal corporations heretofore created in the District of Alaska.”
The act. of 1904 has been shown to give no indication of an intent that either party to this action shall have the power we are now considering, and moreover it is silent upon the question. In this state of things we are fully warranted in the decision that Congress meant to leave the power where it was lodged by the act of -1903, to wit, in the District Court whose jurisdiction includes the municipal territory. The provisions of the act of 1903, as the facts of this case present themselves, must operate in full life, in the absence of any declaration upon the subject in the act of 1904. There is nothing in the act of 1904 with which the provision of the former act could by any possibility by inconsistent. The court thus reaches the conclusion that the plaintiff has not shown a good cause of action, and the mandamus must be refused, and the action dismissed.