Baker v. Allen , 38 Mass. 382 ( 1838 )

Morton J.

delivered the opinion of the Court. The plaintiff has mistaken his remedy. If he has been wrongfully taxed and been compelled to pay, he may recover the money back from the town ; Sumner v. First Parish in Dorchester, 4 Pick. 361 ; but cannot maintain an action, in any form, against the assessors for it. By St. 1823, c. 138, § 5, assessors are exempted from all responsibility, for the assessments of taxes which they are properly required to assess, except “ for their own integrity and fidelity.” The construction of this section, ai.d the limits to which it extends, have been settled in a series of cases. Gage v. Currier et al. 4 Pick. 399 ; Ingraham v. Doggett et al. 5 Pick. 451 ; Inglee v. Bosworth et al. 5 Pick. 498 ; Withington v. Eveleth, 7 Pick. 106 ; Little v. Merrill et al. 10 Pick. 543. This statute, as construed by the Court in the above cases, did not include taxes on school districts, nor protect assessors from their mistakes in assessing individuals who by their residence or otherwise were not liable to be assessed, because they were not, within the meaning of the statute, “ required ” to assess such persons. But the Revised Statutes, c. 7, § 44, in the revision of the fifth section of St. 1823, c. 138, have varied the phraseology, and adopted more comprehensive language, so as to include school districts, with other corporations, and so as to protect assessors from liability for accidental errors in taxing those who are not liable to be taxed. It makes them “ responsible only for the want of integrity and fidelity, on their own part.” While acting within their appropriate sphere, they have the same protection and immunities which judicial officers have. '

Judgment on nonsuit