Rideout v. Inhabitants of School District No. 5 , 83 Mass. 232 ( 1861 )

Dewey, J.

Without expressing any opinion as to the othéi grounds relied upon by the plaintiff, as showing the tax paid by him to have been illegally assessed, the court are of opinion that the plaintiff may maintain his right to recover back the same, by reason of the want of authority in the district to raise money by the vote stated in the bill of exceptions, such meeting not having been legally warned.

The mode of warning the inhabitants of school districts to meet for any purposes connected with the discharge of the duties appertaining to it is specially directed by Rev. Sts. c. 23, § 47, unless the district shall prescribe another mode of warning their meetings. Such other mode is to be adopted in the manner stated in § 48, providing that “ every school district may at any regular meeting, having an article in the warrant for that purpose, prescribe the mode of warning all future meetings.” But no such mode has ever been prescribed at a regular meeting, having an article in the warrant for that purpose.

The article in the warrant in the present instance was thus : “ To see if the district will prescribe the mode of calling all future meetings of the district.” The power of prescribing the mode of calling the meetings of the district was a distinct power from that of warning such meetings, which is also given by a subsequent provision. That such distinction exists was held by this court in Stone v. School District No. 4 in Hamilton, 8 Cush. 592.

As the warrant had no article on the subject of prescribing the mode of warning district meetings, any vote to that effect was invalid. Little v. Merrill, 10 Pick. 543. Whether the terms of the vote, that “the clerk shall call all future meetings by posting a warrant on the school-house,” indicate a purpose to prescribe any duty beyond that of calling a meeting, it is unnecessary .to consider, for the reasons already stated. The meeting not having been warned in the mode required by Rev. Sts. c. 23, §§ 47, 48, the vote raising money was unauthorized, and the assessment upon the plaintiff illegal.

Upon the facts stated in the case, if any protest was required to be made upon paying the tax, it is fully shown to have been made. Exceptions overruled.