The plaintiff’s only remedy is by suit against the school-district. Gen. Sts. c. 39, § 17. The assessors are not liable, Gen. Sts. c. 11, § 51. Nor the town. Perry v. Dover, 12 Pick. 206. Joyner v. School-District in Egremont, 3 Cush. 567. The fact that the amount of the tax was paid over to the district before it was received by the town treasurer from the collector, or by the collector from the plaintiff, can make no difference. In order to sustain the action it is not necessary that the identical money paid by the plaintiff should have come into the hands of the defendants. The defendants have the avails of a tax levied upon the plaintiff and paid by him. The collector and the treasurer of the town were mere agents for its receipt and transmission to the defendants. The liability of the school-district arises from the illegality of the assessment, and the collection of the tax from the plaintiff. Ellis v. School-District in Seekonk, 11 Gray, 487. If actual receipt by the officers of the school-district, from the treasurer of the town, were necessary before the action could be brought, the defendants cannot deny such receipt merely because it was advanced to the district in anticipation of its actual collection from the plaintiff.
It appears to the court that the tax was an illegal one upon two grounds.
First, the amount to be raised, as certified by the clerk to the assessors, was thirty-one hundred and twenty-five dollars. The records of the district, which are made part of the case, show that, of this sum, sixteen hundred and seventy-five dollars *425represented the appraised value of the school buildings already in the district, having been the property of the old school-district No. 13; and fourteen hundred and fifty dollars was the sum estimated to be an equivalent contribution from the old school-district No. 19, according to the per centage of town taxes. It is manifest from the whole proceedings that the latter sum was in reality all that was to be raised for the uses of the district; the former sum being intended to repay the old district No. 13, or its inhabitants, for the school buildings then existing. Practically then, so far as the tax was imposed for any proper present or future uses of the school-district, it was levied exclusively upon that part of the new district which had been added to it from the old nineteenth district. This was declared to be the intent and purpose of the vote to raise money, by the record of the meeting held in June. But, as it was obvious that a tax could not be levied upon the old nineteenth district as a separate district, after it had been united with the thirteenth by vote of the town, and that such a tax upon a part only of the new district would be utterly void, a new meeting was called in July, by which the action of the June meeting was rescinded, and it was voted to adopt the original plan. This plan was to raise the nominal sum of thirty-one hundred and twenty-five dollars, with the view to neutralize so much of the burden as would fall upon the old district No. 13, by applying sixteen hundred and seventy-five dollars of the amount raised, in repayment to them of that sum for the school buildings which had previously belonged to that district. But the illegality of the object is not obviated by the form of the proceedings by which it is sought to be attained. By the Gen. Sts. c. 39, § 3, towns are empowered, upon abolishing the school-districts therein, to make such compensation for the property "of the several districts thus taken by the town, as will secure an equalization or proportionate contribution from all parts of the town for the property which thereby becomes the common property of the whole town. But no such authority is anywhere given to school-districts. It would be unsafe to permit such a power to be exercised. The power to create and to abolish school-districts, to determine their limits, *426to enlarge or reduce their extent, to unite two or more districts into one, is vested exclusively in the town. The town may exercise its power for either of these purposes without the consent of the districts to be affected thereby. School-District in Stoneham v Richardson, 23 Pick. 62. Blackstone v. Taft, 4 Gray, 250. Gen. Sts. c. 39, § 1. St. 1861, c. 132. The district cannot impose conditions upon such changes, nor can it impose upon those who are thus added to the district the burden of paying their proportion of the cost or value of the property previously belonging to the district. Such property belongs to the district in its corporate capacity, and the town, not the district, must determine from time to time what persons and estates shall compose that corporation. The property is held by the district, not for its own corporate use, nor the use of its inhabitants, as property, but as a means for performance of an important function of public service. The responsibility of this public service is upon the town. School-districts are organized for convenience of its local administration. But the district property, created for public' purposes, by means of the power of taxation, is none the less devoted to the public service, and held as a trust therefor, in subordination to the general power of the town. Upon the creation of the new district, the two former districts ceased to exist as districts, except so far as might be necessary to secure the rights of those having claims against or contracts with them. The property of each became immediately vested in the new district, subject to such outstanding rights. School-District in Stoneham v. Richardson, 23 Pick. 62-69. School-District in Danvers v. Tapley, 1 Allen, 49. It could not therefore be treated as property in which the inhabitants of the old district No. 13 had such an interest as would entitle them to sell it to the new district and convert the-proceeds to their private use and benefit. The attempt to raise money, for the accomplishment of that purpose, must be regarded as illegal and unauthorized in any aspect of the case. Perhaps upon this ground the plaintiff would be entitled to recover back only such a proportion of the tax paid by him as would correspond to the amount of the sum raised for the unauthorized purpose.
*427But the second objection goes to the whole amount of the tax assessed upon this plaintiff. He was a non-resident. The lands of non-residents form no part of the school-districts within which they happen to lie. They are not taxable in any district merely by reason of being embraced within its territorial limits. So far as they are a source of revenue for school purposes, they are treated as a fund for the common benefit of the town, to be applied wherever it shall best suit the public interests in the adjustment of the districts. Taft v. Wood, 14 Pick. 362. They áre protected against undue taxation in the same manner as lands of residents, and cannot be changed “ from one district to another having a different school-house,” oftener than once in ten years. This protection is secured by the provision of the Gen. Sts. c. 39, § 25, which requires the assessors of the town to determine in what district such land shall be taxed, and their determination to be certified in writing and recorded by the clerk. When this has been done, the lands are to be taxed “ in such district accordingly until the town is districted anew.”
In 1858 the plaintiff’s lands were assigned to district No. 19. They have never been assigned to district No. 13. To include them in the taxation for school-houses in that district is to subject them to burdens for which there is no determination of the assessors certified and recorded as required by the statute. By uniting school-district No. 19 with district No. 13, the town was “districted anew” so far as to make a new certificate of the determination of the assessors necessary before the plaintiff’s lands could be taxed in the new district. Whether that change exhausted the right of the town for that decade; Gustin v. School-District in Danvers, 10 Gray, 85 ; or whether the St. of 1861, c. 132, gives the right to unite districts without restriction as to time, are questions which it is not necessary now to determine. The tax being illegally assessed upon the plaintiff’s lands, he is entitled to recover the same according to the agreed statement.