Alvord v. Barrett

"Where the electors of a school district, at a special meeting, voted a tax, which the law required to be assessed and collected by the officers of the district, and the levy of the tax was certified by the district clerk to the clerk of the town, who under an erroneous opinion as to his duty, and without any improper motive, assessed the tax against the taxable property of such district, and carried it out on the general tax roll of the town, to be collected by the town treasure)’. Held, that a tax payer of such district, against whose land a tax was so assessed, and which had been returned as delinquent, could not maintain an action for such act against the town clerk, on his official bond, given to secure the faithful performance of his duty.

APPEAL from the Circuit Court for Dodge County. Alvord brought an action against Barrett and bis sureties for a breach of his official undertaking, in not faithfully performing his duties as town clerk of the town of Westford; before a justice of the peace. The substance of the complaint is stated in the opinion of the court. The defendant put in a general denial, and upon the trial the undertaking upon which the action was brought, was given in evidence, and the plaintiff then proved in substance, that the town treasurer of said town, had made his return to the county treasurer for taxes for the town of Westford, and gave in evidence the assessment and tax roll of the town, as returned by the treasurer, showing that there were taxes returned against premises which the plaintiff had theretofore and still occupied and possessed to the amount of $18.59. The defendant Barrett was .then sworn on the part of the plaintiff, and he testified that he made out the roll presented in evidence, and that it contained a school tax against said premises of $12.94. The return of the school district clerk of district No. 6, of the said town, to the defendant, as town clerk, was offered in evidence, by which it was certified that the amount of taxes voted to be raised in said district at a special meeting held on the 22d day of October; 1859, was $103.80, which the defendants was thereby directed to assess upon the taxable property therein, which statement was verified by the oath of the district clerk. The defendant Barrett further testified that this return of the clerk of said school district, was the only authority he had for levying and assessing the tax. The plaintiff rested his case, ai d the defendant moved that the plaintiff be non-suited; on the ground that he had shown no cause of action. The justice overruled the motion, and after-wards gave judgment in favor of the plaintiff and against the defendants for 12.94 damages, and $13.64 costs of suit. The defendants appealed to the circuit court, and the circuit court, after argument, reversed the judgment of the justice of the peace, with costs, for error in refusing to grant a non-suit, and the plaintiff appealed, 1. The certificate of the district clerk to the town clerk was not in compliance with § 34, p 286, R. S., nor can the town clerk, under this section, assess and levy a tax, except it be voted to be raised at the last preceding annual meeting, or at the first meeting after the organization of the district. 2d. Taxes voted at a special meeting are to be collected by the district treasurer. R. S., 299, sec. 2. 3. The statute gives the plaintiff a right of action against the town clerk and his sureties, R. S., 185, secs. 68, 70, and the complaint was suffi. cíent, R. S., 678, sec. 46, sub. 3, 10. 3. The plaintiff is entitled to damages, by reason of the unfaithful performance of the clerk’s duty. Sedgw. on Damages, 45, 536, 552; United States vs. Morgan, 11 How., 154.