
    Stephen Withington vs. The Inhabitants of Harvard.
    A town voted to let an inhabitant, who sent his children to school in another town, “ draw his proportion of school money; ” and reconsidered this vote before the money was paid : It was held, that such inhabitant could not maintain assumpsit against the town for the amount of the taxes assessed upon and paid by him for the support of schools.
    A tax-payer in a' town cannot maintain assumpsit against the town, for his proportion of the expenses of the burial of persons not paupers, paid by the town out of the money raised by town taxes.
    This was an acticn of assumpsit, to recover the taxes assessed upon and paid by the plaintiff for the support of schools in the town of Harvard, in 1843,1844,1845 ; and also to recover his proportion of the sums paid by said town, from 1841 to 1847, inclusive, for the expenses of the burial of persons not paupers. The case was submitted to the court of common pleas, and upon appeal to this court, upon the following facts: —
    The town of Harvard, ever since the year 1842, has been duly divided into eight school districts. At the annual town meetings in 1843,1844, and 1845, the town voted to raise certain sums of money for the support of schools, and apportioned the same among the several districts. And these sums were duly assessed, collected, and paid into the treasury of the town. The plaintiff was an inhabitant of school district No. 5, and had three children, embraced in the census of the district, whom he sent during those years to the school in Bolton, as being more conveniently situated. The warrant calling the annual town meeting in March, 1845, contained the following article: “ To see if the town will let Stephen Withington have his proportion of school money, so long as he may send his scholars to Bolton to school.” On this article, the town, at this meeting, voted “ that Mr. S. Withington draw his proportion of school money; ” and, at an adjournment of the meeting on the first Monday of April, voted to reconsider this vote.
    From the'years 1841 to 1847, inclusive, the town of Harvard expended certain sums to defray the expenses of the burial of all persons, whether inhabitants or not, residing, and dying and being buried, at Harvard, although not town nor state paupers, nor transient persons, nor needing nor asking aid from the town as paupers. These sums were all raised by town taxes duly assessed and collected and paid into the town treasury; and the plaintiff paid the proportion of such taxes assessed to him in each year.
    The plaintiff, before bringing this action, demanded of the selectmen and of the town treasurer of Harvard, the severaC sums sued for, and of the prudential committee of school district No. 5, the school money sued for; and they severally refused to pay him such sums or any of them.
    
      
      E. Fuller, for the plaintiff.
    
      C. Allen, for the defendants.
   Shaw, C. J.

It appears to us that this action cannot be maintained, on either ground. The town having raised money, pursuant to law, for the support of schools within the town, had no authority to vote that a portion of it should be refunded to an individual, to be expended in another town or for any other purpose. It would disturb the harmony and simplicity of the public school system, and is not warranted by law. Perry v. Dover, 12 Pick. 206. The vote of the town, of March, 1845, authorizing the plaintiff “to draw his proportion of school money,” constituted no contract; it was at most, an authority to the treasurer, to pay him that sum, and being revoked, by the reconsideration, before it was acted on, it ceased to have any effect, as if it had never been passed.

But the other ground on which the plaintiff places his right to recover, is still less tenable. It appears that for some years the town of Harvard paid certain expenses of funerals and burials, which, it is maintained by the plaintiff, towns have no authority to incur and pay. The plaintiff brings his action against the town to recover his share of the money so paid; being, we suppose, such proportion as his town tax bears to the whole of the taxes of the town.

We are not prepared to say, that under some of the health laws, towns are not authorized to provide for such expenses. The powers given to a board of health, (and where not otherwise provided for, the selectmen of any town are made a board of health,) are large and general, to make regulations for the interment of the dead, and respecting burying grounds. Rev. Sts. c. 21, §§ 1, 7.

But assuming that it was wholly unauthorized, it would afford the plaintiff no cause of action. To assert the contrary would be to maintain that whenever the town, by its officers and agents or otherwise, shall allow and pay a bill which they are not authorized to pay, every tax-paying inhabitant, resident or non-resident, may have an action against the town to recover his hundredth, or thousandth, or ten thousandth part of it. Without relying upon the intolerable inconvenience of such a proceeding, there is no principle on which it can rest. The money was not his money; it belonged to the corporation. The claim is founded on no contract or promise, express or implied. It is substantially a claim for damages done to the plaintiff by the town or its officers, in diminishing a fund, in which he, as a tax-paying inhabitant, was indirectly interested. If he is aggrieved, it is a damage, which he suffers in common with all the inhabitants, and he must seek his redress in some other way, than by an action of assumpsit against the town. Judgment for the defendants.  