The first question presented in this cause is, whether the irregularity in making out the tax list and warrant by the trustees, in February, 1839, rendered the proceedings void and the defendants trespassers. In making out such tax list and warrant it was their duty to- apportion the tax oh all the taxable inhabitants within the district, according to the valuations of the taxable property which was owned or possessed by them at the time of making out the list within the district, and to ascertain the valuations of such property, as far as possible, from the last assessment roll of the town of Paris. No person was entitled to any reduction in the valuation of such ' *218property so ascertained, unless he gave notice of .such claim to such reduction, to the trustees of the district, before the tax list was made out: and- when such reduction was duly claimed, and in every case where the valuation of taxable property could not be ascertained from the last assessment roll 'of the town, it was the duty of the trustees to ascertain the true value oí such property from the best evidence in their power, giving notice to the persons- interested, and preceding in the same manner as town assessors are required by lav/ to proceed in the valuation of taxable property. Persons who had within four years been set off to this district from any other, against their consent, and who had within that time paid in such other district, under a lawful assessment, a district tax lor building a school house, are exempted from the payment of any tax for building a school house in the district where they shall reside. These are substantially the provisions contained in the statute, (1 R. S. 482, §§ 76, 79, 80, 81,) prescribing the duties of trustees of school districts in making out a tax list for the collection of a tax to build a school house. It is manifest from the evidence in the case, that the trustees did not discharge their duty in these respects, in the manner required by the several provisions of the statute. But it by no means follows that they were trespassers.. The case of Alexander and others v. Hoyt, (7 Wend. 89,) involved the consideration, in some degree, of this question. The plain tiffs in ■ error, who were the trustees and collector of a school district, were sued by Hoyt, the defendant in error, in trespass for taking property of his on a warrant for the collection of a tax voted to build a school house, on the assumption that the warrant was void. This was based on the fact that the trustees had made out their tax list from the assessment roll of the year in which-the tax -was voted and list made, which was then unfinished, and which was subsequently altered by the assessors at their meeting to review and complete it, instead of the last roll. They made an abstract from the incomplete roll, from which, they made their tax list; and it appeared that on the revision by the town assessors, the valuations of some of the inhabitants of the district were reduced. The- learned Chief Jus*219tice, in delivering the opinion of the court in that case, says: “ It seems to me unnecessary to enquire whether the trustees of school districts, in some of their duties, do not act judicially. The proposition cannot be maintained, that in copying an assessment from the assessment roll óf the town, they were performing a judicial act. Judicial officers are not responsible for any error of judgment, but if theyperform ministerial acts, although connected with their judicial duties, they are held responsible for improper and illegal conduct.” The trustees were held to be trespassers in that case. A similar question arose in Easton and others v. Calendar, (11 Wend. 90,) which was an action oftrespass against the trustees of a school district under whose warrant the property of the plaintiff had been taken and' sold. The defendants justified under a vote of the district to raise a tax of $168,75, to repair the district school house. The trustees made out a tax- list for the collection of $177,65, which included the tax voted with five per cent, for collector’s fees; of which the sum of $11,59 was put down on the list annexed to the warrant for Calendar to pay. The trustees omitted to assess three individuals who lived and owned taxable property in the district.' It was held that the trustees erred, 1, in making the apportionment, of the tax voted, by including the collector’s fees ; and 2, in omitting to insert all the taxable inhabitants; but that they were not liable as trespassers. The late Chief Justice, in delivering the opinion of the court, said: “ The apportionment of the tax voted among the taxable inhabitants is, in my opinion, to a certain extent, in the nature of a judicial act. The trustees are to determine who are and who are not taxable within the provisions of the statute; they are then to apportion to each his share, according to the value of his real and personal estate, and in some cases they are obliged to fix such value. Sections 76,77,78, (p. 482,) shew that, the duty of ascertaining the taxable inhabitants is involved in considerable difficulty, and that an error in this respect may arise as well from misjudgment of the law on the part of these officers, as a mistake in fact. They are bound to act and to exercise their'best judgment in the apportionment of the tax: and if they confine themselves within the limits of the statute, though *220they may err in point of law or in judgment, they should not be either civilly or criminally answerable, if their motives are pure. This is the rule applicable to public officers, bound to exercise their deliberative judgments in the discharge of their official duties, and is applicable to all inferior magistrates, and others called to the performance of functions in their nature and character judicial, while acting within- their jurisdiction and the scope of their powers.” If then the rule was correctly laid down in that case, and I think it was, it decides this question in favor of the defendants.
Assuming that the evidence shewed that the district clerk, after being regularly required by the trustees to notify a district meeting, instead of a proper performance of that duty, misrepresented to some of the inhabitants the object of the meeting, by which they were induced to remain at home, and neglected to give any notice to others, the question arises, in the next place, whether the proceedings of the meeting were void, and the trustees who had no knowledge of such misconduct rendered liable in trespass for their subsequent acts in making the assessment and attempting to levy the tax. The statute (1 R. S. 478, § 63) provides that “ the proceedings of no district meeting, annual or special, shall be held illegal for want. of a due notice to all persons qualified to vote thereat, unless it shall appear that the omission to give such notice was wilful and fraudulent.” The court below charged the jury that the fraud committed by the clerk in giving notice of the district meeting at which the tax was voted would not make the trustees trespassers, unless they were parties to the fraud. The charge in my opinion was correct. If the law were otherwise there would be no safety in the performance of such duties by the trustees, however honestly, faithfully and intelligently they might personally act. Besides, there is no hardship in the case under such rule, for the parties' injured by the fraud have a cheap and expeditious remedy provided, by appeal to the superintendent of common schools. {Laws of 1830, p 385, § 7.)
The court below charged the jury that Solomon Smith was a lawful trustee of the district. It is argued that the charge in *221this respect was erroneous, the plaintiff insisting that nó vacancy had occurred in the office when Smith was chosen. At the annual meeting on the 1st day of October, 1839, Barnum was.chosen a trustee, and at the.meeting held on the 9th day of the same month Smith was chosen a trustee in his place, the record stating that Barnum had refused to serve. No objection is made to his election, except that it is said to have been made too soon. I do not find any provision in the statute which prescribes the time in which a vacancy shall be filled, except 1 R. S. 480, § 71, which is, that in case any such office, including that of a trustee, shall be vacated by the death, refusal to serve, removal out of the district, «fee. and such vacancy shall not be supplied by a district meeting within one month thereafter, the commissioners of common schools of the town may appoint, ,&c. The district is competent to fill the vacancy during the month, and I see no reason to doubt but that Smith was regularly chosen, in the place of Barnum. He was therefore a lawful trustee.
The charge of the court below affirmed that the vote of the 2d day of October, 1838, to raise a tax of $400, was not, under the circumstances, any obstacle to the 'vote of a like tax on the 5th of February, 1839. It is supposed by counsel that the first mentioned' vote should have been rescinded or reconsidered before the district was authorised again to vote a tax for erecting a school house. But this was unnecessary. The earlier resolution had become inoperative on account of the neglect of the trustees to assess the tax and to make out a tax list thereof within one month after the district had passed that vote. (1 R. S. 483, § 82.)
The remaining question, which relates to the effect of the renewal of the warrant by the defendants, under their hands and seals, on the 25th October, 1839, was disposed of unfavorably to the plaintiff, upon full consideration, when these parties were before the court upon a former occasion, (see Smith v. Randall, 3d Hill, 495,) and no reason- is discovered for questioning the accuracy of that determination.
■ Upon the whole case we think there is no ground for disturb-mg the judgment;
Judgment affirmed.