Ellis v. Eighth School District

Dewey, J.

It seems to be conceded that this tax was illegally assessed upon the plaintiff, the meeting of the school district not having been notified properly. The only question raised therefore is of the liability of the school district to a member of the district for the money that he has paid upon an illegal tax, under the circumstances stated in the bill of exceptions. The money was paid to the town collector and treasurer. But such person acts in this matter as the agent of the school district. The receipt of the money as collector, where the two offices of collector and treasurer are united in the same person,' is to be taken to be a receipt of the money by the town treasurer. This money is properly the money of the school district, and the treasurer of the town holds it as the agent of the school district. Rev. Sts. c. 23, § 39. Perry v. Dover, 12 Pick. 206. Joyner v. School District in Egremont, 3 Cush. 573. The action was therefore properly brought against the school district, they having the money subject to their order and control in the hands of an agent.

An1 objection was taken at the argument of this case, that it did not appear upon the evidence that the clerk of the district certified truly to the assessors the vote of the district for raising the tax. Waiving any question as to this point being now open to the defendants, we think it does not affect the plaintiff’s right to recover. Although it might subject the assessors to an individual liability, if no such certificate was filed with them, yet it does not render the tax less illegal, nor justify the school district in retaining the money collected on the assessment.

Judgment for the plaintiff.