
    Rufus Saxton versus Seth Nimms and Others
    The return of the freeholder, upon a warrant from the selectmen for warning a meeting of the inhabitants of a school district, that he had warned them according to law, was held to be conclusive, in an action by one of the inhabitants against the assessors, for assessing a tax on him which had been voted at sue h meeting.
    
      This was an action of trespass for taking and carrying away an ox, the property of the plaintiff.
    The defendants * pleaded, in justification, that they were assessors of the town of Deerfield, in the county of Franklin; that there was a certain school district in that town, the inhabitants and members of which, at a meeting duly warned, voted to raise a certain sum to build a school-house within the said district; that this vote was duly certified to the assessors, who were accordingly requested to assess the amount on all the inhabitants of the district ; that the defendants, as such assessors, did so assess it; that the plaintiff was one of the said inhabitants, and was duly assessed his proportion, and refused to pay; whereupon the said ox was dis-trained and sold by the collector, by virtue of the warrant of the assessors. The plaintiff, in his replication, traversed that the said meeting of the said inhabitants of the school district was duly warned, and the said money lawfully voted, as set forth in the plea. To this there was a rejoinder, tendering an issue on the traverse ; which issue was joined.
    On the trial of this issue, before Jackson, J., at the last May term in Greenfield, several different questions arose; but the point on which the verdict was given was the warning of the inhabitants of the said school district, for the meeting at which the money was voted. As to this, it appeared that the warrant of the selectmen for calling said meeting was issued, as prescribed by the statute, to one of the persons who had signed the petition or application for the meeting. This person, by a return endorsed on the warrant, and dated the 3d of December, 1812, had certified that he had warned all the said inhabitants as the law directs. 
    
    The meeting was to be held on the 10th of said December; and the warning, if given on or before the said 3d day, would have been seasonable and legal.
    The plaintiff offered to prove that many of the said inhabitants, if warned at all, were not warned until the 4th day of that month; which, according to the provisions of the statute, was too late for the said meeting on the 10th.
    * The defendants objected to the admission of such evidence, contending that the said return of the person who executed the warrant was conclusive for all the purposes of this trial. This objection was overruled.
    The plaintiff then produced and examined several witnesses, including the said person who executed the warrant, who testified to facts, tending to prove that the said person who executed the said warrant had misapprehended the provisions of the law, and thought the seven days’ notice, required by the said statute, included both the day of the warning and the day of the meeting; and that he accordingly notified about one third of the inhabitants of the district on the 4th of December. But there was no attempt, on either side, to prove who were the individuals thus warned too late. He did not attempt to conceal this fact when making out his return on the warrant, which he did when the people were assembled, but before the meeting was opened. He conversed on the subject with several of the inhabitants, and after consulting with them, made out his return in the form above mentioned. The meeting was very fully attended, and it did not appear that any of those who were not seasonably warned were absent.
    The three defendants were members of the district, and were all present at the meeting, and one of them had signed the application to the selectmen for the meeting. The plaintiff was present at the meeting, and was dissatisfied with the proceedings of the majority; and he openly declared that he would not pay any part of the money so voted to be raised, unless compelled by law. But it did not appear that he, at that time, objected on account of the warning being too late.
    The judge instructed the jury that, if the warning was not completed until the 4th of December, and if several of the inhabitants were warned on that day, as testified by some of the witnesses, the warning was insufficient, and the meeting was illegal; and that, if they were satisfied of that fact, they should find a verdict * for the plaintiff. The judge observed, further, to the jury, that, if the defendants could show that all the persons who were warned too late did, nevertheless, attend the meeting and vote or act therein, this might alter the case. But as the defendants did not undertake to prove this fact, it was not necessary to decide what would be the effect of it; and that it was not necessary for the plaintiff to prove that any individuals were prevented by that circumstance from attending the meeting.
    A verdict was returned for the plaintiff; and the defendants moved for a new trial, on account of the admission of the said evidence to contradict the return endorsed on the warrant, and also on account of the said directions of the judge to the jury.
    
      Bliss and Mills, for the defendants,
    contended that the return of the person to whom the selectmen addressed their warrant was conclusive, so far as it had any relation to the present action. If the return is false, and the plaintiff is injuriously affected by it, he has his remedy by action against the person guilty.  He is no
    
      party to the suit, and it would be a violation of principle to pass upon his conduct, without giving him an opportunity of being heard in his defence. 
    
    The defendants were peremptorily obliged, by the certificate of the clerk of the district that the money had been voted to assess the same. They had no means of knowing any supposed irregularities, either in the warrant for calling the meeting, in the execution of that warrant, or in the proceedings of the meeting held pursuant to it.
    The same principles are applicable here as to meetings of towns. Those meetings are to be warned by the constable or other person appointed by the selectmen. But was it ever known that the doings of a town were held void, and a tax assessed pursuant to a vote of the town to raise money for an authorized object adjudged illegal, on the ground that some one or more of the inhabitants had not been warned, when the return was in itself sufficient?
    If evidence of any kind was legally admissible, to * contradict the return, it is humbly believed that the testimony of the person making the return, falsifying his own certificate, was improperly admitted, to charge the defendants for an act done by them on the faith of that very return.
    
      Strong, for the plaintiff.
    The defendants can justify only under the vote of the inhabitants of the district. If that vote was not authorized by law, their assumed authority was void, and they are liable in trespass.  If the meeting was not duly warned, the proceedings at it were void, and no justification or excuse can be set up by the defendants under those proceedings. ' If one of the persons entitled by law to act in such meeting was omitted to be duly warned, the act and doings of those assembled were without authority ; for if the omission to warn one person would not avoid the proceedings, neither would the omission of a greater num ber. 
    
    The certificate of the freeholder, to whom the selectmen directed their warrant, is not of the nature of the return of process by a public officer. He is not sworn, nor does the statute require a return to be made by him. The rule, that the return of the sheriff is not to be contradicted, is founded on reasons of public policy, which do not apply to this case. There is nothing in the brief authority thus conferred on the individual freeholder which requires that his certificate, under the circumstances shown to exist in this case, should be held conclusive.
    
      Towns stand on quite different grounds from these small quasi corporations. They are of larger extent, have more various and important duties and responsibilities. Their constables are chosen by the whole body, are known officers of the law, and are sworn to the faithful discharge of their duty. The proceedings of towns are of a public nature, and an interference with them for slight causes might be very mischievous. The quiet of the government might be disturbed, and its financial operations greatly impeded, by a construction of law, which, in other cases, common justice *and the security of the citizen might warrant and require.
    
      
       See Stat. 1799, c. 66.
    
    
      
       4 Mass. Rep. 478, Clayton vs. Cheser.
    
    
      
       9 Mass. Rep. 231, Fowler vs. Bebee & Al. — Com. Big., Retorn, G.
    
    
      
       11 Mass. Rep. 220, Agry vs. Young & Al. —13 Mass. Rep. 272, Stetsxon vs Kempton Al.
      
    
    
      
       Strange, 1051
    
   Parker, C. J.

The statute which authorizes the raising and assessing taxes in school districts, having required that the meetings for such purposes shall be warned at least seven days before they are held, and that any vote to raise money, for the purpose of erecting or repairing a school-house, passed by a majority of the inhabitants present at a district meeting warned and held as aforesaid, shall be obligatory on the inhabitants, to be assessed, levied, and collected, as prescribed in the act, it would seem to follow, as the manifest intent of the legislature, that any vote to raise money, at a meeting otherwise warned and held, should not be obligatory.

If, then, it appeared, by legal evidence, in the case before us, that the meeting at which the money was raised, for his proportion of which the plaintiff was assessed, and his property distrained, was warned less than seven days before the meeting was held, the vote and all the subsequent proceedings would be void, and the defendants would be trespassers, for having authorized an unlawful seizure of the plaintiff’s property. By the return of the person to whom the warrant for calling the meeting was directed, it appears that full seven days’ warning was given ; but by the evidence at the trial it was satisfactorily proved to the jury that some of the inhabitants of the district had less than seven days’ notice.

The case, then, turns altogether upon the competency of the evidence given to impeach the return upon the warrant. And in this case against the assessors, acting compulsorily under the law, which requires them to assess such taxes as shall be voted, we think such evidence ought not to have been admitted. They have a right to presume that the meeting at which the money was raised was lawfully warned; for by the records it appeared to be so. They could not otherwise call the fact in question, than by examining witnesses #as to the truth of the return, which they were under no obligation to do.

It would tend to confusion in town affairs, if assessors, instead of determining their official duty by repairing to the records, should first be obliged to ascertain, beyond all possible doubt, whether any one inhabitant had been omitted in the warning, or had not been warned quite seven days before the meeting. Indeed, they could never exercise their authority with safety, until they had made a personal application to every inhabitant, and obtained his confession that he was warned in season; and thus the affairs of the district would be brought to a stand. For it would be in the power of any individual, by refusing to admit that he was warned, to excite such doubts as would prevent the execution of their duty.

There are difficulties also on the other side ; as the person to whom the warrant is committed may, by neglecting or designedly omitting his duty, produce a partial vote, and then by his return screen the assessors from an action. But we apprehend such iniquity will rarely happen; and when it does, there is no doubt an indictment will lie against the person committing such an offence, for a false return; for he will be viewed quasi an officer, and bound to act faithfully in his assumed duty.

What remedy there may be for the inhabitants, who may be held to pay an illegal tax, is'a question of more difficulty. There is no doubt an action would lie against the person making the false return; and whatever damages could be proved would be recovered ; and although it might be difficult to measure them, yet, in case of a wanton omission of duty, there would be at least an indemnity.

New trial granted. 
      
      
        {a) [Thayer vs. Stearns, 1 Pick. 109. — 1 Stark. Ev. 2d Land. ed. 204. — 2 Stark. 213, Niles vs. Hancock, 3 Met. 568. — Ed.]
     