By the Court,
Savage, Ch. J.The 79th section of the common school act, 1 Revised Statutes, 482, directs that the valuations of taxable property shall be ascertained as far as possible from the last assessment roll of the town. The irregularity complained of is that the trustees made out their next list by reference to the assessment roll of 1829, which had nqt yet been corrected, instead of the assessment roll of 1828, as the basis of their assessment.
The plaintiffs in error contend, 1st. That the trustees had jurisdiction of the subject and the person, and acted judicially, although their power was special, and limited; 2d. That the assessment roll of 1829 was sufficiently completed for their purpose ; and 3d. That the collector was justified in executing the warrant, the trustees having jurisdiction. The defendant in error insists, 1st. That the trustees should have taken the assessment roll of 1828 as their guide, the roll of 1829 not being completed when they took their abstract; and 2d. That the trustees and collector being creatures of the statute, must pursue strictly its directions, or they are not justified.
It seems to me unnecessary to enquire whether trustees of school districts, in some of their duties, do not act judicially. The proposition cannot be maintained that in copying assessments from the assessment roll of the town, they were performing a judicial act. Judicial officers are not responsible for any error of judgment, but if they perform ministerial acts, although connected with their judicial duties, they are held responsible for improper and illegal conduct; Percival v. Jones, 2 Johns. Cas. 49, contains an illustration of this principle. And in Wallsworth v. M’Cullough, 10 Johns. R. 93, a justice was held to be a trespasser who issued a warrant in a case of bastardy, without the application of an overseer of the poor, though the overseer subsequently ratified the act; the justice acting ministerially. It is certainly a well settled principle, that persons acting under a special and limited authority, must be careful to keep within their authority, and are responsible for any act *92not within the rule prescribed to them. This rule is often }jarsj] jn its operation, but still necessary to be preserved ; and has, therefore, been enforced against trustees of school districts, as well as others. Hence, in the case of Robinson v. Dodge, 18 Johns. R. 351, the trustees were held trespassers, because they issued their warrant to collect a tax, when the only error was that the district meeting had not specified the amount of ' the tax to be raised, that being required by the statute ; this court holding that the district could not delegate that power to the trustees which they had attempted to do by a resolution. The case of Ryder v. Cudderbach, 12 Johns. R. 412, was more like the present. Indeed, so far as the trustees are concerned, I am unable to distinguish it from this case. The only alleged irregularity in that case was that the tax ought to have been laid according to the tax list or assessment roll of 1812, and not that of 1813. The statute then in force required the trustees to make their tax list “ agreeable to the levy on which the town tax was levied the preceding year.” The town assessment was to be completed by the 1st of August; the trustees made their tax list and warrant subsequent to the 1st of August, 1813, and this court held they were correct in doing so. The language of the revised statutes is more favorable for the trustees; it is this: “ The valuation of taxable property shall be ascertained, as far as possible, from the last assessment roll of the town.” 1 R. S. 482, § 79. Had the assessment roll been completed, by haying been passed upon in review, as it was in this case five days after the abstracts were taken, the trustees would have been correct; but so long as the assessment roll for 1829 had not passed through all the forms necessary to give it validity, it could not be considered the last assessment roll. The assessment roll of 1828 was the last assessment roll on the 10th of June, 1829, when the abstract was taken ; though when the warrant was issued, the assessment roll of 1829 was the last, but the rate bill attached to the warrant was not a true transcript of the asséssment roll. According to the principle recognized in the last case, the trustees were trespassers, not having strictly pursued their authority. I am therefore of opinion that so far as the trustees are concerned, the decision of the common pleas was correct.
*93But whether the collector was also liable, as a trespasser, is ■another question, depending upon another and different principle. When a ministerial officer executes process issued by a tribunal having jurisdiction of the subject matter, he is not a trespasser, though that tribunal err in the exercise of their duties. In the case of Henderson v. Brown, 1 Caines, 92, the theatre had been assessed as a dwelling house, which was wrong ; but the assessor had power to assess it, though not as a dwelling house, and the warrant was held a justification to the officer. It would have been otherwise if the assessor had not had power to assess the theatre at all; then there would have been a total want of jurisdiction, and the proceedings would have been void. In Suydam & Wycoff v. Keys, 13 Johns. R. 444, the collector was held responsible, because the trustees had no jurisdiction over the plaintiffs, they not being taxable inhabitants. But the true doctrine on this subject is to be found in Beach v. Furman, 9 Johns. R. 230, Bouton v. Neilson, 3 id. 474, and particularly in Savacool v. Boughton, 5 Wendell, 170. I am therefore of opinion that as to the collector the warrant was a complete protection, the trustees having jurisdiction; and having pleaded separately, he should have had judgment in his favor. The judgment of the common pleas against Gilbert Alexander, the collector, should therefore be reversed; and the judgment against the other defendants be affirmed.
The revised statutes say, “ If a judgment be reversed in part and affirmed in part, costs'shall be awarded to either party in the discretion of the court.” 2 R. S. 618, § 31. This suit, on its face, seems to be a vexatious proceeding. The error of the trustees was evidently unintentional: the excess of tax on the defendant in error was less than one dollar, and he had a remedy by appeal to the commissioners. He did not choose, and was not bound to take that remedy; but if a party will take so much unnecessary pains to make costs for public officers, who perform an important public trust gratuitously, he does not stand in a favorable light, where the court have a, discretion. I think he ought not to have costs of affirm - anee, and should pay costs upon the reversal.
Judgment reversed in part, and affirmed in part.