The opinion of the court was delivered by
Royoe, Oh. <1.It appears from the pleadings and proofs that the ■school house in district No. 1 in Rutland was burned in 1866 or 1867, that -various attempts were made by the district and through the intervention of the selectmen of the town to procure a site upon which to erect a new house, but no such site had been secured prior to April, 1871. On April 15, 1871, at a meeting of said district, it was voted to build a new school house and to locate the same on the Blanchard lot, where it was subsequently built.' It was voted to take or purchase the land, and to raise a tax of 75 cents on the dollar to pay the expense of the building, and a building committee of three, of which the •orator Dyer was one, was elected, and instructed to build a good house.
The principal controversy at that meeting was upon the question of the location of the school house, and the meeting was attended by nearly all the voters in the district. The voters in the south part were anxious that it should be located further south than the Blanchard lot, and some of them in conversation, both before and after, expressed a determination that if the house should be located as far north as the Blanchard lot, they should endeavor to have the district divided; but it was not generally known by the voters of the district that any such attempt would be made, and there was no fraudulent or improper means employed to influence votes at that meeting; nor does it appear that any attempt was made to procure a reconsideration or recision of the vote.
The building committee appointed at said meeting soon after and before the division of said district and the formation of district No. 2 as hereinafter stated, purchased for the district the Blanchard lot, gave in. payment therefor an order on the treasurer of the district for $500, and made contracts for most of the *102labor and materials necessary to build said house; and it has been completed at an expense of about $2,300, exclusive of the $500 paid for the land. There has been received on the tax voted April 15, 1871, and on a ten per cent tax voted at the annual meeting in 1871, $1717.90, and the current expenses of the district for the year 1871, including the payment of $20 on a debt which accrued in 1866, and exclusive of any liability on account of the new school house, were $288.61.
On June 5, 1871, a town meeting of the town of Rutland washéld at which, under an article in th^¡ warning to “ sée if the-town will vote to divide district No. 1,” it was voted that said district be divided, and a committee was appointed to divide the assets of said district fairly and justly between the districts to-be formed out of said district, and to fix and define the boundaries of said new districts. Said committee established a dividing line through said district, and made report of their doings-at a special meeting of the town, which was accepted and adopted, constituting the territory in district No. 1 lying 'south of the line established by said committee a school district to be-designated as district No. 2. It does not appear that said committee attempted to divide the assets of district No. 1, as it was-contemplated they should do by the vote appointing them, and in fact said district did not have any assets at that time, nor liadi it at the time of hearing, except the school house and the land upon which it is located. With reference to these it has been held that when a school district is divided, the school house will belong to that one of the new districts within whose boundaries-it is situated. School Dist. No. 1 v. Richardson, 23 Pick. 62. At the time -of the meeting there was no statute providing for a division of assets in case of the division of a school district, but such a statute was passed the following year. Lav’s of 1872, No. 13. Nothing in the language of that statute indicates it was intended to be retroactive in its operation, and it provides-for a special means for carrying out its provisions.
The vote dividing district No. 1, and constituting district No. 2 was procured by persons who were then inhabitants of the: *103south part of district. No. 1. A rate bill of the tax of 75 cents on the dollar voted at the meeting of April 15, 1871, was made out and placed in the hands of the collector of taxes for district No. 1 for collection.
This bill was made returnable to the March term, 1872, of the Rutland County Court of Chancery, and was brought in behalf of five inhabitants and tax-payers residing in district No. 2, and such other tax-payers in said district as might choose to come in and participate in the proceedings thereon, and contribute to the expense thereof; but it does not appear that any other tax-payers did ever become parties in the suit. The prayer of the bill was that the collector of district No. 1 might be enjoined from the collection of said tax, and that an accounting might be ordered between said districts, and that an equitable division might be made of the assets and property of district No. 1 between the two districts. ’ One reason alleged in the bill for granting the injunction was that it would avoid a multiplicity of suits. An injunction was granted, but upon an answer 'being filed, it was dissolved, and the collector then proceeded to collect the tax of the tax-payers residing in district No. 2, the taxpayers paying the same under protest.
At the April term, 1886, leave was granted the orators to make district No. 2 a co-orator, and to make amendments to the charging part of the bill, and to the prayer. The amendment allowed to the prayer was: “ Or that district No. 1 be decreed to pay district N o. 2, or such of the inhabitants thereof as paid said taxes against'them, their just and equitable share of the cost or value of the school house, and all other property constructed with or paid for in whole or part from the avails of said taxes assessed and collected as assessed, and their just share of all other property belonging to district No. 1; or else to pay district No. 2, or such of the inhabitants thereof as paid said taxes, their just and equitable share of the proceeds of all said taxes collected.”
The bill as amended was fully answered, and it was'claimed by the answer that the amendments were improperly allowed; *104and the defendants prayed'that they might have the objection to them considered the same ais if it had been made by demurrer or plea. The answer was traversed and a large amount of testimony taken.
The original bill could not be maintained for the relief of the tax-payers for whose benefit it was brought, for it is not denied that the taxes paid by them were legal taxes, and were appropriated for the purpose for which they were legally voted. The rule that a court of equity will interfere to prevent a multiplicity of suits is not applicable, as there would appear to be no danger of a multiplicity of suits between the parties to the bill, but only a possibility or probability that other persons, not parties, might bring other suits for the enforcement of rights asserted by them upon substantially the sanie basis of fact. The Court of Chancery could acquire no jurisdiction, then, upon the ground of preventing a multiplicity of suits.
District No. 2, as we have seen, was made a co-orator by the amendment allowed. Much has been said in argument upon the power of the court to. allow the amendment, and whether, if the court did not have such power, the objection was waived by the answer made, or the want of a proper plea. The question of proper parties should have been made and determined before the incurring of expense in the trial of disputed questions of fact; and so, without determining the questions made pertaining to the amendment, we deem it best to treat district No. 2 as an orator in the suit. And so treating it, what are its equitable rights against district No. 1 %
The tax was a legal one, and when voted and assessed it became the duty of the tax-payers then resident in district No. 1 to pay the taxes assessed against them. Ovitt v. Chase, 37 Vt. 196; Woodward v. French, 31 Vt. 337. The claim now made in substance is, that the taxes paid by those then residing in district No. 1, who had become residents of district No. 2, at the time the taxes were paid, shall be paid back to them, or to district No. 2, by district No. 1. The inhabitants of district No. 2 procured the division of district No. 1 and thus prevented them*105selves from deriving the benefit they would have been entitled to from the expenditure of the taxes if they had remained in district No. 1. It is asking a court of equity to decree the refunding of taxes which were legal in their character, and which have been legally expended. District Ro. 2 has no stronger equitable claim against district No. 1 than an individual tax-payer would have who had contributed to the erection of a school house by the payment of taxes while a resident of the district where the house was situate, to have such tax refunded for the reason that he had voluntarily removed from that district and become a resident of another.
We have been unable to discover any equitable enforceable ■claim that the orators have against district Wo. 1, and the decree of the Court of Chancery, dismissing the bill with costs, is affirmed, and cause remanded.