
    CLARK against TUNNICLIFF.
    
      Court of Appeals;
    
    
      January Term, 1868.
    School Laws.—Costs against Officers.—Certificate OF GOOD FAITH.
    An erroneous decision of the trustees of a school district in the assesment of a tax, is a proper subject of appeal to the superintendent.
    Hence, if any person, whether a resident or not, aggrieved by a levy on his property under such assessment, sues the officers, instead of taking such appeal, he may be refused costs, if the judge certify that the defendants acted in good faith, &c.
    Of the intent and effect of the sections of the Code of Procedure giving costs to the successful party.
    
      A general certificate of good faith, &c., granted under the statute, will exonerate the defendants from costs of an unsuccessful motion for a new trial, previously made and denied with costs.
    Appeal from an order.
    This action was "brought "by George Clark against George TunniclifF and Henry H. Rathburn, to recover damages for taking and converting a horse of the plaintiff.
    The defendants attempted to justify "by showing that they were trustees of a school district; that a tax was voted "by said district; that as trustees they assessed such tax against the taxable inhabitants of the district, and persons holding land therein, and made out the proper tax-list, upon which assessment and tax-list the plaintiff was assessed for a farm owned and worked by him, as being within the district; and that they annexed to the tax-list a warrant, directed to the collector, who, by virtue thereof, after the plaintiff refused to pay the tax, levied on, and sold the horse in question, to satisfy the tax against the plaintiff.
    On the trial it was held that the tax was unauthorized; and the plaintiff had a verdict for $291.04 damages. Exceptions were taken upon the trial, which were ordered to be heard, in the first instance, at the general term, and a new trial was denied with costs.
    After the verdict the defendants’ attorney applied to the judge who tried the cause, for a certificate under 2 Rev. Stat., 5 ed., 128, §198, that it appeared upon the trial that the defendants had acted in good faith, &c., which was subsequently, and" after the decision at general term, granted by the judge.
    On the adjustment of the plaintiff’s costs, they were taxed, including the costs of motion for a new trial, at $401.34; but the certificate of the defendants’ good faith being presented to the clerk, he refused to insert the costs in the entry of judgment. The plaintiff moved, at special term, for an order directing the clerk to insert them, and the motion was denied.
    
      The plaintiff appealed to the court at general term, and the order was affirmed; and now he appealed to this court.
    
      S. J. Burdett, for the plaintiff, appellant.
    
      DeWitt C. Bates, for the defendants, respondents,
    cited Laws of 1841, ch. 180, § 33 ; 2 Rev. Stat., 5th 128, § 198 ; Id., 124, § 178; Exp. Bennett, 3 Den., 175 ; People ex rel. Lumley v. Lewis, 28 How. Pr. R., 470.
   Miller, J.

The recovery of the plaintiff in this action was had by reason of the illegal proceedings of the defendants as trustees of a school district, in assessing a tax upon the plaintiff, and in collecting said tax by a sale of his property. Ordinarily, a recovery in such an action would entitle a plaintiff to costs ; and if the defendants are now exonerated from the payment of costs, it is because they .are exempted by section 146, of ch. 480 of the Laws of 1847,—which provides that when officers of school districts are prosecuted for any act performed by virtue of, or under color of their offices, which might have been the subject of an appeal to the superintendent, no costs shall be allowed to the plaintiff, where the court shall certify that it appeared upon the trial of the cause that the defendant acted in good faith.

I think the judge who tried this cause at the circuit was warranted in granting a certificate, within the provisions of the section of the act referred to, and that the defendants were thereby relieved from the payment of costs. By section 82 of the act in question, the trustees are required to call meetings, to make out a tax-list of every district-tax voted, and to annex a warrant to any such tax-list, directed to the collector, for the collection of the sum assessed. Another section (85) requires the trustees, in making out the tax-list, to apportion the tax among the taxable inhabitants of the district, and upon the real estate of non-residents liable to taxation. A subsequent section (132) authorizes an appeal by any person conceiving himself aggreived in consequence of any decision made in certain cases, which are particularly specified, or concerning any other matter” arising under the act in question, to the superintendent, who is authorized and required to examine and decide the same, and whose decision is final and conclusive.

The provision of the section last cited, is "broad and comprehensive in its terms, and evidently includes any and all acts which may possibly arise in regard to the official proceedings of these officers. It certainly embraces the acts of the defendants in this case, in the assessment and collection of the tax against the plaintiff.

The legislature, no doubt, intended to prevent needless prosecutions, and unnecessary suits against officers of their character, who had acted in good faith in the discharge of them official duties, and, I think, provided an ample remedy for redress in the case before us, without resort to a court of law. The acts of the defendants, for which they were held liable, were for assessing the tax, and instituting and carrying out the proceedings required by law for its enforcement and collection. This clearly was a decision concerning a matter within the letter, spirit, and meaning of the act in question, which it was especially intended, to provide for, and the legality of which was litigated upon the trial. The injury to the plaintiff arose in consequence of the decision of the trustees; that the plaintiff was liable to be assessed, and the warrant of assessment issued by them. The levy made upon, and the sale of plaintiff’ s-property was the result of the unlawful assessment made by the defendants. Here was the original grievance for which a complete and perfect remedy was provided by an appeal, and which rendered the commencement of a suit a useless proceeding ; nor does it alter the case because the plaintiff was not a resident of the district. The statute does not exclude non-residents whose real estate is liable to tax, but expressly comprehends every person aggrieved.

It was enough that the plaintiff was aggrieved by the decision of the defendants to levy the. tax, to bring him within the provision of the act, and that the whole question involved in the suit brought could have been appealed, heard and decided by the superintendent, instead of being contested and adjudicated in an action in a court of justice. So long as the defendants were acting as trustees of the school district, and were called upon to respond for acts done by virtue of, or under color of their office, and acted in good faith, they presented a case which entitled them to the certificate of the judge who tried the case, and which exonerated them from the payment of costs (Exp. Bennett, 3 Den., 175).

It is insisted by plaintiff’s counsel that section 304 of the Code allows costs of course to the plaintiff, in a case like the one under consideration; that section 468 of the Code repeals all statutory provisions inconsistent with the Code, and that by means thereof section 146 of the act of 1847 is abrogated and repealed.

I think this view of the subject is not maintainable, and that the position assumed in the opinion of the general term, that the scope of sections 304, 305, and 306 of the Code is to distinguish between the cases in which costs are allowed of course, and those in which they are discretionary, and not to make their allowance peremptory in every case specified in section 304, and that the reason given for upholding it, is a satisfactory and full answer to the ground taken by the plaintiff’s counsel. As was well said by the learned judge who wrote the opinion: “ The intent is manifest, that in the first class of cases costs are not left to the discretion of the court, while in the latter class they are so left.”

This intent is more apparent from the enactment in section 303, which abolishes the fee bill previously existing, and enacts that “there maybe allowed” to the successfql party “certain sums, by way of indemnity, for his expenses in the action,” and afterwards distinguishes the cases in which the costs are allowed of course, and those in which they are discretionary.

It may be also observed, that although costs are allowed to the plaintiff, under section 304, in cases of the same nature as the present one, and unless the judge interposes and grants a certificate, yet the fact of granting the certificate is not in conflict with this enactment. The party recovers costs of course, unless their allowance is stayed by the certificate, as provided; and this, I think, is only a mere modification of section 146 of the act of 1847, not inconsistent with the Code, and not repealed by section 468 of the Code.

The certificate of the judge applies, I think, to.' all the costs in the case, and the plaintiff is not entitled to his costs on this motion for a new trial. The exceptions taken upon the trial were first heard at general term, by the order of the court, and the motion for a new trial was only a continuation of the action, and not the institution of a new proceeding by the defendants. The defendants were merely pressing their defense originally interposed, on the hearing at general term, and the certificate of the judge who tried the case was not given until after a decision had been made upon the exceptions. The denial of the motion for a new trial, “.with, costs,” was the usual form of an order in such cases, and not an adjudication that the plaintiff was entitled to costs, and which would preclude the defendants from obtaining the certificate. The plaintiff in such a case would be entitled to costs, as a matter of course, upon the decision, the same as he would upon a verdict at the circuit, and therefore the form of the order was not inappropriate, but the granting of the certificate prevented the allowance of the costs, by the clerk, upon taxation.

As the views expressed are against the plaintiff upon the question raised, and. necessarily lead to an affirmance of the order of the general term, it is not necessary to discuss whether the order of the general term was of such a character as to authorize an appeal to this court.

Order appealed from affirmed.  