
    William A. Chrigstrom, Trustee, Resp’t, v. George McGregor, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 6, 1893.)
    
    1. Schools—Action to collect tax.
    An action by trustees of a school district to collect a tax cannot be maintained where the defendant resides in the district, and has sufficient goods and chattels therein to satisfy the tax.
    2. Same—Return bt collector.
    Where the collector has a valid levy upon property from which he could collect the tax the fact that the sale is forbidden by the owner of the property against whom the tax was assessed is no excuse for a return of the warrant uncollected.
    
      Appeal from judgment of the Clinton county court, affirming the judgment of a justice of the peace in favor of plaintiff.
    
      Corbin & Rowe (R. Corbin, of counsel), for app’lt; H. S. Haff, for resp’t
   Putnam, J

This is an appeal from a judgment of the county court of Clinton county, affirming a judgment of a justice’s court in favor of plaintiff. The action was brought to recover a school district tax assessed against the defendant, and which he neglected and refused to pay. It is not denied that defendant was a resident of the school district, and that he had sufficient personal property in his possession therein out of which the tax could have been collected. The collector levied on sufficient property and advertised the same for sale. The defendant forbidding the sale, and there being no bidders, the collector returned the warrant uncollected.

Section 86, chapter 555, Laws of 1864, as amended, provides as follows : “ Section 86. If the sum or sums of money, payable by any person named in such tax list, shall not be paid by him, or collected by such warrant within the time therein limited, it shall and may be lawful for the trustees to renew such warrant in respect to such delinquent person ; or in case such person shall not reside within their district at the time of making out a tax list, or shall not reside therein at the expiration of such warrant, or in case the property assessed be real estate belonging in an incorporated company, and no goods or chattels can be found whereon to levy the tax, the trustees may sue for and recover the same in their name of office.”

In a note contained in the code of public instruction prepared under the supervision of State Superintendent Draper in 1887 it is said: “The latter clause of the above section giving the trustees the right to sue, is confined to those persons who do not reside within the district at the time of making out the list, or who shall have ceased to reside therein at the expiration of the warrant, or to corporations having real property upon the tax list.” Code of Public Instruction, 366, note.

It will not be claimed that the above quoted section of the statute authorizes this action.

A school district is a quasi corporation, with some powers conferred by statute not generally possessed by such corporations. 2nd Bent’s Com., 278.

Such a corporation can exercise no powers beyond those conferred by the statute or which by necessary inference arise therefrom. 21 Amer. & Eng. Ency. of Law, 800.

Here the defendant lived in the district and concededly had sufficient goods and chattels therein to satisfy the tax. There is no statutory provision to sustain an action to collect a tax under said circumstances. On the contrary, § 86, chapter 555, Laws of 1864, as amended above quoted impliedly prohibits such an action. It authorizes an action to collect a tax against a non-resident of the district or in case the property assessed be real estate of a corporation and no goods or chattels can be found whereon to levy the tax, and thus impliedly forbids an action. This seems to be the proper coustruction of the statute. Expressio unius exclusio alterius. Wait v. Wait, 4 Com., 100-101; Matter of Washburn, 4 Johns. Ch., 113-114.

We do not'think that § 1926 of the civil code confers upon plaintiff a right to maintain this action. The effect of that section was not to create new causes of action but to confer upon the trustee a right to maintain in his own name, an action upon existing causes of action, in favor of the body represented by him, or of his predecessor or on contracts made by him. It was not intended to give the trustees power to maintain an action where no cause of action existed at the time of the enactment of said section. We think that no such a cause of action as set out in the complaint herein, then existed, because the statute did not authorize, but-on the contrary impliedly prohibited the maintainance of such an action.

The case of Torry v. Willard, 28 St. Rep., 641, is not a parallel one. That action was commenced by the trustees of a Union free school. The board of education of a Union free school is a corporation proper and not a quasi corporation like the trustees of the ordinary school district. The distinction between the two corporations is pointed out in Bassett v. Fish, 75 N. Y., 303-311. The statutory provision as to the two kinds of corporations are-not the same. And, hence, the case cited is not an authority here. A Union free school, being a corporation proper, can maintain an action upon any liability, express or implied, under the general power conferred on corporations. The plaintiff, however, represents a quasi corporation and can only maintain an action which is expressly authorized by statute. No cause of action exists in his favor unless expressly authorized.

Again, in the case cited it appears from the statement in the opinion that the collector was justified in returning the process without being able to collect the amount for the defendant. In this case it appeared that defendant had ample property from which the collector could have collected the tax, and hence, he' was not justified in returning the warrant uncollected. He had an actual levy on the property. We do not regard the fact that defendant forbid the sale as an excuse for" the collector’s neglecting to perform his duty.

In Torry v. Willard, supra, it was held that although there was no authority for the action, a common law action could be maintained on the ground that there being an obligation to pay the tax the law implied a promise to pay it In this case we could hardly hold that a common law action could be maintained in the face of the statute which, as we have seen, impliedly prohibits such an action.

Without considering the other questions raised by" the parties we think the judgment of the courts below should, be reversed, with costs in this court and in the county court.

Mayham, P. J., and Herrick, J., concur.  