#### Lowell Perry *versus*The Inhabitants of Dover.

Where a freeholder to whom a warrant was directed for calling a school district meeting made a return thereon, that *11*he had warned all the legal voters” in the district ({to meet at the time and place and for the purposes within mentioned/ the return was held to be insufficient, because it did not specify the mode in which the notice had been given to every voter, nor state that it had been given any length of time before the hour appointed for the meeting.

A town can execute its power to form school districts only by a geographical division of its territory, and the districts must be so constituted as to include all the inhabitants of the town: — so that where a town, after defining an east and a west district, by geographical lines, proceeded to direct that certain individuals, by name, should have liberty to send their children to schools in adjoining towns, “ all other inhabitants of the town to belong to the centre school district in said town,” the districting was held to be invalid on both these grounds.

*It*seems, that in general a town is not liable to an action by an inhabitant of a school district for money collected on an illegal assessment upon the district, but the money, when paid over to the town treasurer, is received by him as the agent of the district.

Assumpsit for money had and received, to recover back the amount of a tax paid by the plaintiff, which was assessed on a grant by the inhabitants of the centre school district in Dover, for the purpose of building a school-house.

Upon a case stated, it appeared, that the records of the district of Dover contain no votes dividing it into school districts, pursuant to *St.*1789, c. 19, § 2, previous to April 1807.

From 1792 to 1807, there are several entries in the rec ords, showing the appropriation of the money raised by Dover for the support of schools. In those entries, a centre, a west ern and an eastern division are mentioned, and a portion of the money is appropriated to three different sets of individuals, who had liberty to send their children respectively to Med-field, to Natick and to Dedham. Those wdio were allowed to send to Medfield were included in the western school district. Those who sent to Natick and Dedham were not included in either the western or the eastern school district, as bounded, by the vote of 1807, but in the part of Dover left for the cen*211tre school district. The plaintiff’s ancestor, Samuel Perry, on whose estate the plaintiff now lives, was one of those whc sent to Natick.

At a meeting of the inhabitants of Dover on the 6th of April 1807, a committee made a report, which was accepted, defining by geographical lines the western and eastern school districts. The report then *proceeds:—“*Israel Loring, Samuel Perry and Jacob Marshall to have liberty to send their children to the first school in Natick. Eleazer Allen and Jesse Newell to have liberty to send their children to the north school in Medfield. All other inhabitants of said district (of Dover) to belong to the centre school in said district.”

At the same meeting it was voted, that the school money should be divided in certain proportions between the three districts, and that a proportionate sum should be allowed to those inhabitants who paid their proportion of money to schools out of Dover.

The return on the warrant for the March meeting of the inhabitants of Dover in 1819, was as follows:—“ Dover, March 1st, 1819. Pursuant to the within warrant, I have notified and warned the inhabitants of said Dover, and other inhabitants as therein expressed, to meet at the time and place and for the purposes therein mentioned. Jonathan Battelle junior.”

One article in this warrant was, “ to see if the district (oí Dover) will define or renew the limits of their school districts or act any thing thereon that shall facilitate the rebuilding of their school-houses if thought expedient, or to enable any one of said school districts to act on the subject.” Upon which it was voted, that Israel Loring and other persons named, and the estate of Samuel Perry or his heirs, be included in the centre district for building their school-house, and that Simon Cheney and other persons named be exempted from the centre district.

Loring and others, first named m the foregoing vote, were those who had sent their children to Natick, and Cheney and others, last named, were those who had sent to Dedham.

The supposed reason for exempting the last mentioned class of individuals was, that they had in 1806 contributed the sum *212of $78.09 towards building the school-house in Dedham. But the school district in Dedham was a common school district ; that is, unincorporated ; though these exempts had always sent their children there.

On the 2d of May, 1827, the selectmen of Dover issued their warrant to Nathan M. Fisher, an inhabitant of the centre school district, directing him to warn the inhabitants to meet at a place specified, on the 10th of the same May, among other things, “ to see if the district will vote to build a schoolhouse,” and “ to see if the district will grant money to defray the expense of building a school-house.” Fisher made return as follows. — “Commonwealth, &c. Pursuant to the within warrant, I have warned all the legal voters of the centre school district, &c. to meet at the time and place and for the purposes within named. Nathan M. Fisher, Clerk. Dover, May 10, 1827.”

A meeting was held accordingly on the 10th of May, and afterwards, by adjournment, on the 16th, when, among other things, it was “ voted to build a new school-house; ” and also, “ voted to grant the sum of five hundred dollars to defray the expense of building said house, to be assessed according to law.”

In July following, the clerk of the supposed centre school district certified to the assessors of Dover that the sum of $ 500 had been granted as above mentioned, and requested them to assess the same on the polls and estates liable to be taxed for the support of schools and for defraying school district expenses in that district.

The assessors thereupon proceeded to assess the sum of $ 515-18 on the several individuals belonging to the supposed centre school district and on the property of non-residents assigned to that district, including in the assessment Loring and others, and excluding Cheney and others, according to the vote of 1819 ; and the sum of $ 14-21, assessed upon the plaintiff, was paid by him, in order to liberate his property, which had been distrained. This sum went into the treasury of Dover, and to recover it back, this action was brought.

Judgment was to be rendered for the plaintiff or for the de fendants, according to the opinion of the Court.

*213The cause was argued in writing.

*Metcalf*and *Mann,*for the plaintiff,

contended that the district of Dover had never been legally divided into school districts. *St.*1789, c. 19, § *2*; *Withington*v. Eveleth, 7 Pick. 106.

If by virtue of the proceedings of Dover, the plaintiff was liable to be taxed at all, still the tax was illegal, because it was unequally assessed upon those who were liable to pay. *St.*1799, c. 66, § *2*; *Inglee*v. Bosworth, 5 Pick. 501; *Dillingham*v. Snow, 5 Mass. R. 550, 556, 560; *Colman*v. *Anderson,*10 Mass. R. 118.

The returns upon the warrants were insufficient. *Lancaster*v. *Pope,*1 Mass. R. 86; *Davis*v. *Maynard,*9 Mass. R. *242; Sutton*v. *Uxbridge,*2 Pick. 436.

*Richardson*for the defendants. The cases cited respecting the returns of the warrants, are not analogous. They are all cases of precepts issuing from judicial courts, to be executed under their authority and subject to their revision and control. Whereas the warning of town or district meetings is for the purpose of giving every one an opportunity to act on the several matters contained in the warrants, and to protect their own rights, and may be presumed to be regular and legal if the meeting is held in pursuance of the warrant, and the matters therein contained are acted upon without any objection to the legality of the warning; and considering the almost universal practice of the country in this particular, without this necessary presumption most of the proceedings in town and school district meetings would be vitiated, and great inconveniences would arise. *Saxton*v. *Nimms,*14 Mass. R. 320; *Thayer*v. *Stearns,*1 Pick. 109.

The objection that the districting was not by geographical .ines, cannot prevail. The committee first set off the western and eastern school districts by geographical lines, and it is manifestly their intention that the rest of Dover, which is equally well defined, being the territory comprehended between those districts, should constitute the third or centre district. It is said that Samuel Perry and others were excluded from the centre district and were not included in any of the districts. But it cannot be supposed that the committee in*214tended to disfranchise them ; and the language of the provisions authorizing them to send their children to schools out of Dover, and to pay to those schools their proportion of the money annually granted by Dover for the support of schools, was merely permissive. They had still a legal right to send their children to the centre district school. Had the words in the report, “ all the other inhabitants to belong to the centre district,” preceded the names of those persons to whom this liberty was given, ho question could fairly have been raised as to the districting being by geographical lines ; and the Court will not permit the inartificial collocation of the two sentences, made by unlearned men, to have the effect to destroy the districting and defeat the manifest intention both of the inhabitants of Dover and of their committee. The vote of 1819, to include the estate of Samuel Perry or his heirs in the centre district for the purpose of building a school-house, did not annex him to that district, but was merely declaratory of his liability as a member of that district to pay his proportion of all grants made by that district for their own particular purposes, and so was not a districting in a limited and partial manner or for a special purpose only, as suggested by the plaintiff’s counsel.

Lastly, the plaintiff contends, that supposing the districting to be valid, the assessment is illegal and void, because Cheney and others belonging to the centre district were not assessed ; and he attempts to distinguish this case from several which he cites. He assumes however that the omission was not founded on mistake or error of judgment, but was a plain, deliberate and premeditated violation of right. The omission may have been irregular, but it evidently proceeded upon equitable considerations and upon a mistake in law, and according to the cases referred to, it did not render the tax void, so as to discharge the plaintiff from his liability to pay his proportion of it.

Morton J.

drew up the opinion of the Court. The plaintiff’s claim is founded upon the illegality of the assessment made upon him.

The first objection to the assessment is, that the school meeting at which the money was granted was not legally warned. The return of the freeholder to whom the warrant *215was directed, bears date on the day appointed for the meeting ; and states that he had “ warned all the legal voters ” in the district “ to meet at the time and place and for the purposes within mentioned.” When the selectmen direct a warrant for calling a school district meeting, to a proper person, he is made a returning officer for that occasion, and all his acts done in pursuance of such special authority, are to be treated like those of other returning officers. The returns on warrants for town, district, or other corporate meetings may sometimes be treated with greater lenity than returns upon writs and other judicial precepts ; but the principles applicable to both are essentially the same. *Lancaster*v. Pope, 1 Mass. R. 86; *Davis*v. Maynard, 9 Mass. R. 243.

All returning officers are ministerial and are bound to set forth in their returns all the acts by them done, that the proper tribunal may judge of their sufficiency. They are not competent to judge of the legality of a notice or service, and a return that a precept had been *legally*served, or that the duty enjoined by a warrant had been *duly*performed, would most clearly be insufficient. But in this case the return does not even state that the voters had been *duly*or *legally*warned.

The law (St. 1799, c. 66, §4, and St. 1826, c. 143, § 14,) requires that warrants for school district meetings shall be served by giving personal notice to, or leaving a written notification at the usual place of abode of every legal voter in the district. The term warned, according to its common use and acceptation, implies that notice had been given, but whether by posting up copies of the warrant, in some public places, as is usual in other cases, or in one of the modes prescribed by the statute, is left entirely uncertain. Either of the three modes would satisfy the usual import of this term.

The statute further requires that the notice 'shall be given *seven*days before the time appointed for the meeting. All that can fairly be inferred from the language used is, that notice had been given before the return was made. The person making the return says, *“ I have*warned,” but whether *one*or *seven*days before the meeting, he does not state. The return would not be *false*if the notice had been given but a single *216day before the meeting, or if it had been given by posting notifications, instead of personal notice.

The case of *Thayer*v. *Stearns et al.,*1 Pick. 109, is clearly distinguishable from this. There the money had been legally granted, and fairly assessed. The only question was whether the assessors had been legally chosen. Under all the circumstances of that case, the Court held that the assessors were not liable to an action of trespass. If the defective warning had related to the meeting at which the money xvas granted, it would have stood on different grounds and might have received a different decision. If in the case at bar the money had been legally voted and the defective return applied to the warrant for the meeting when the assessors were chosen, it would have presented a different question. It is also to be recollected, that the return now under consideration is much more defective than the one in the case cited.

The return of the officer is the only competent evidence of the service of the warrant. And as it does not appear from this evidence, that the inhabitants of the district xvere notified in the manner or for the length of time required by laxv, the meeting was not legally holden ; and the proceedings were invalid. As the defect appears of record, the assessors might have known it and refused to assess the tax.1

But this error is one which may be remedied, if the facts will admit of it, by an amendment of 'the return. *Welles*v. *Bat*telle, 11 Mass. R. 477. We will therefore proceed to examine the other objections to the validity of the assessment.

In 1807 the inhabitants of Dover undertook, in pursuance of the statute 1789, c. 19, § 2, to “ determine and define the limits ” of their school districts. They appointed a committee who made a report which was accepted by and became the act of the district. This report geographically designated the east and west districts, and provided that each should include all the inhabitants upon its respective territory. Then comes the following language : “ H. T., B. T. and S. C. to have liberty to send their children to school in the westerly part of *217Dedham. I. L., S. P. and J. M. to have liberty to send their children to the first school in Natick. E. A. and J. N. to have liberty to send their children to the north school in Medfield. All other inhabitants of said district (of Dover) to belong to the centre school in said district.”

What is the true meaning of this language ? *Ml other inhabitants, 8fc.*Other than whom ? Who are excluded from the centre school ? Clearly the individuals first named ; and doubtless all the inhabitants included in the east and west districts.

Towns can execute the power given them to “ determine and define the limits of school districts,” only by geographical divisions of their territories. *Withington*v. *Eveleth, 7*Pick. 106. If the words “ *all other inhabitants”*had immediately succeeded the formation of the other two districts, as suggested by the defendants’ counsel, we think the districting might have been sustained. Although the expression naturally refers to individuals ; yet taken in connexion with the other parts of the report, it might properly be understood to extend to the remaining territory, as well as to the inhabitants residing upon it; and thus to form a third geographical district.

But we are bound to take the report as it was adopted. And we can no more change the arrangement of the words and sentences, than we can change the words and sentences themselves. And according to the obvious as well as the grammatical construction, it is quite as clear that the *individuals named*were to be excluded from “ the centre school,” as that the inhabitants of the other two districts were to be excluded. Under this construction it can hardly be said that a territorial district was formed. None was defined by metes and bounds. It was not provided that all the remaining territory should form the centre district. But certain individuals were to compose the district, and if it included their estates, the territory would change with every change of their estates. The principles of the case of *Withington*v. *Eveleth*apply to this part of the case at bar.

But even if we could construe this act of the inhabitants of Dover so as to establish a territorial district, yet the individuals named would necessarily be excluded, as we have *218before seen ; and for this cause the districting would be invalid.

Towns, in executing the power to form school districts, are bound so to do it, as to include every inhabitant in some of the districts. They cannot lawfully omit any and thus deprive them of the benefits of our invaluable system of free schools.

In whatever light, therefore, we view this subject, we are brought to the same conclusion. If the district was not legally established, the assessors could derive no authority from it to make the assessment. If it was legally established, yet the plaintiff was not included in it, and therefore could not rightfully be assessed.

But it is contended, that if the plaintiff and his associates were not included in the original district, yet that they were annexed to it by the vote of 1819. The power of towns to dividé or alter old districts or to form new ones is unquestionable. *Richards*v. *Daggett et al.,*4 Mass. R. 534. But this, if done at all, must be done absolutely. The same persons cannot belong to one district for one purpose and to another for a different one. The vote was, that certain persons, among whom was the plaintiff, “ be included in the centre district fo*■ *building their school-house,*” and that certain others “ be exempted from said district.” The district of Dover had no power to form districts or to annex citizens to districts already formed for special purposes. Towns may define the limits of school districts ; but the law determines the rights and duties of the inhabitants of them when they are established. This vote therefore, whether considered in reference to the annexation of the plaintiff and others to the centre district or to the exemption of S. C. and others, was unauthorized and ineffective. But if it could not operate to annex the plaintiff to the centre district, *a fortiori,*it could not give validity to a districting which before was inoperative and void.1

According to the agreement of the parties, the defendants must be defaulted and judgment be given for the plaintiff for *219the amount of the tax which was collected of him and for costs.

The general question, whether a town is liable to an action for money collected on an illegal assessment upon a school district, is not raised in this case, nor was it alluded to in the arguments of counsel on either side. Their object seemed to be to try the validity of the assessment, unembarrassed with any formal or technical objections. And it might as well be tried in this action as any other. It may however be proper to remark, that it is not easy to see how in ordinary circumstances such an action could be sustained. By *St.*1826, c. 143, § 11, the collector is required to pay over the money when collected, to the town treasurer ; but the latter receives it as the agent of the district and holds it subject to “ the disposal of the committee of the district.” The town have no control over it, and the treasurer would not be justified in paying it away by their order. It would therefore seem that it could not be considered in the possession of the town, and that they should not be in any way responsible for it. *Little*v. *Merrill et al.,*10 Pick. 543.

It is however expressly agreed by the parties in this case, that the money collected of the plaintiff “ came into the treasury of the district of Dover.” It was not legally there. The district had no right to retain it. And it having been taken from the plaintiff without his consent and without legal authority, he is entitled to recover it back.1

1

 But see *Houghton*v. *Davenport,*23 Pick. 237; *Briggs*v *Murdock,*13 Pick. 305

1

 See Rev. Stat. *c.*23, § 24, 49 *et*seq.; *Allen*v. *School District*No. 2, *in*Westport, 15 Pick. 35; *School District*No. 1, *in Stoneham*v. Richardson, 23 Pick. 67

1

 See Rev. Stat. c. 23, § 38 *et*seq.; *Williams*v. *School District No.*1, *in Lunenburg,*21 Pick. 75. The remedy of an instructer of a district schorl for his wages is by an action against the town, and not against the district. *Clark*v *Great*Barrington, 11 Pick. 260.