#### Matheson vs. The Town of Mazomanie.

*Sworn lists of taxable ¡personal property*— Town *officers cannot increase mVuatwn of non-ewum&'ated” articles*— Liability *of town for illegal taxes*collectedÍ.

1. Neither the board of supervisors of a town, the town clerk, the assessor, nor all of them, can lawfully increase the valuation of the “ non-enumerated articles” specified in sec. 8, ch. 386, Laws of 1860, after the tax-payer has made out and verified his statement as required by the act.

2. The town is liable to the tax-payer for so much of the taxes and charges upon such additional valuation paid under protest as came into the hands of its treasurer for the use of the town.

3. But for such parts of said illegal taxes &c. as were received by said treasurer for the use of the county and state, the town is not liable in an action as for money had and received.

APPEAL from tbe Circuit Court for *Dane*County.

Tbe plaintiff, a resident of tbe town of Mazomanie, listed Ms personal property liable to taxation there in 1864, as follows: “Horses oyer two years &c., 1 — $150.00 ; gold and silver watebes, 1 — $50.00 ; aggregate of all other articles of personal property, $800.00. Total, $1,000.” TMs statement be verified by tbe oath prescribed by law. Tbe assessor, in Ms tax roll, opposite tbe entry of $1,000 against tbe plaintiff’s name, added tbe words “ by tbe owner.” Afterwards tbe chairman of tbe town board of supervisors, tbe deputy town clerk and tbe assessor altered said roll, by adding $5,000 to tbe sum of $800 so listed by tbe plaintiff as tbe value of bis “non-enumerated” articles of personal property, writing over said sum tbe word “ equalized,” and returned tbe roll so altered to tbe clerk of tbe board of supervisors of Dane county; who, in maHng out tbe assessment roll for said town, charged tbe plaintiff as taxable on tbe sum of $6,000 ; and tbe town clerk’s warrant to tbe town treasurer directed Mm to collect taxes upon that sum. Tbe plaintiff having voluntarily paid tbe amount properly due from him upon tbe $1,000 listed by Mm, tbe town treasurer seized certain of bis goods and chattels, and advertised them for sale, to raise tbe amount of taxes and charges claimed to be still due; and tbe plaintiff paid that amount under protest; and brings *192this action to recover it. The town demurred to a complaint stating these facts; and this appeal is taken by the iHaintiff from an order sustaining the demurrer.

*J. H.*Carpenter, with whom were *Spooner & Lamb*of counsel, for appellant,

argued that the town board has no power, under sec. 22, chap. 386, Laws of 1860, or otherwise, to increase the valuation of “ non-enumerated ” articles which have been listed under oath by the tax-payer himself. 2. An action lies against a town which has received money paid to it involuntarily and under protest, for taxes wrongfully assessed. 24 Pa. St., 421; *Adams v.*Litchfield, 10 Conn., *127;*4 Met, 181; 17 Mass., 461; 12 Pick., 7; 12 N. Y., 52 ; 4 E. D. Smith, 404 ; 2 Duer, 521; 3 Cush. (Mass.), 567. In *Lorillard v. Town of*Monroe, 12 Barb., 161, and 11 N. Y., 395, it was held that the assessors of the town were not its agents so as to make it liable for their mistakes or malfeasance; and that the town had not received the money illegally collected, because the town as such *had no treasury.*This action is not founded on the theory that the board of supervisors are the agents of the town, but on the ground that the town has received the plaintiff’s money, which it ought not to retain. Counsel cited the statutes of this state relating to the powers of towns, and the powers and duties of the town treasurer, to show that the reasoning in the case last mentioned does not apply here. The town clerk’s warrant in this case was for $8,332, of which $6,551 was for town or other local taxes. Of the $167.14 illegally exacted from the plaintiff, $131.42 remained in the hands of the town treasurer, after paying the state and county taxes; and the town is clearly liable for this, together with the sum extorted as fees for collecting it. As to the residue, we place the liability of the town upon the ground that it was charged with a certain sum as its share of state and county taxes, and although its treasurer paid the $35.72 to the state and county, it went to discharge a debt of the town. It is true that as the charge against the town was made upon the basis of the tax list as erroneously altered, the *193charge was a trifle more than it ought to have been, but that mistake, if worth correction, can be corrected as between the town and county, and the plaintiff should not be driven to a multiplicity of suits on that account. If the board of supervisors are town officers, then the town should make the matter right with the plaintiff; if they were the agents of the county, then the town shold look to the county to correct the error. Besides, the money was paid under protest, and it is the fault of the town if it has allowed its treasurer to pay it over to anybody. It is to be presumed the treasurer retains it, as it was his duty to do. Counsel also cited *Bullwinlde v.*Quttenberg, 17 Wis., 583.

*Hophins & Foote,*for the respondent,

argued that there is ho substantial difference between the duty of the town treasurer under our statute, and that of the collector under the New York statute ; both being directed by statute as to the disposition of the money collected. R. S. of N. Y., vol. 1, 337, 340 (marg.); R. S., 1858, 175, and secs. 91, 92, ch. 18, p. 217. The treasurer is the agent provided by statute for collecting the money and paying it over to the parties entitled to it by statute. It does not in any sense go into the town treasury, so as to make the town liable as for money had and received. 2. The alleged wrongful acts of certain officers do not make the town liable. They are not its agents. *Lorillard v. The Town of Monroe*(12 Barb., 161, andl Kern., 392,) is conclusive on this point. See also 1 Kern., 563. 3. Counsel contended that the plaintiff having omitted to state on his list of property whether he had any “money and credits,” or any “merchants’ or manufacturers’ stock,” &c., the assessor had a right to add to the list under sec. 35, ch. 167, laws of 1859. And if the act of the assessor was not a wrongful one for which he would be liable, then the town has not received money through the wrongful act of its officers, which it ought to refund. *Weaver v. Devendorf*3 Denio, 117 ; *Van Bmsselaer v.*Wiibech, 7 Barb., 133; *Rochester White Lead Co. v. City of Rochester,*3 Corns., 463; *Vail v. Otis,*22 Barb., 22.

*194Dixon, C. J.

Iii this case we bold:

1. That neither tbe board of supervisors of tbe town, tbe town clerk, nor tbe assessor, bad power to increase tbe valuation of tbe non-ennmerated articles specified in section 8 of tbe act (Laws of 1860, cbap. 386), after tbe plaintiff bad made out and verified bis statement as required by tbe act.

2. That tbe addition of tbe sum of $5000 to tbe valuation of tbe non-enumerated articles, by tbe chairman of tbe board of supervisors, tbe deputy town clerk and tbe assessor, as stated in tbe conqplaint, was unlawful, and void as agamst tbe plaintiff.

3. That tbe *Town of Mazomanie*is liable in this action to refund to tbe plaintiff so much of tbe taxes and additional charges upon said sum of $5000 as came into tbe bands of tbe town treasurer for tbe use of tbe town. This includes all tbe moneys thus illegally collected by tbe treasurer from tbe plaintiff, except tbe amounts collected for county and state taxes and tbe fees thereon. These last sums cannot be said to have come into tbe bands of tbe town treasurer for tbe use of tbe town, but were received by him for tbe use of tbe county and state. Eor them, therefore, tbe town is not bable in an action as for money bad and received.

*By the, Court.*— Order reversed, and cause remanded for fur tber proceedings according to law.