Alvord v. Barrett

16 Wis. 175 | Wis. | 1862

By the Court,

Cole, J.

We fully concur with the circuit court in the opinion that the justice should have nonsuited the appellant. The action was against Barrett and sureties for a breach of his official undertaking in not faithfully performing his duty as town clerk. The complaint alleges, in substance, that by connivance of Barrett at an unlawful statement made by one George Huggett, as district clerk of school district Ho. 6, of Westford, he, as town clerk, unlawfully assessed a. district school tax of about thirteen dollars against the lands of the appellant, which tax was returned as delinquent, whereby the appellant had been injured to the amount of one hundred dollars. Now we shall not stop to inquire whether this would constitute a breach of the official undertaking, if it were sustained by testimony, because the evidence in the case utterly and entirely fails to establish the cause of action even as alleged in the complaint. There is not a particle of proof tending to show that the clerk connived with any one in making a false or unlawful statement in respect to any tax voted at any school meeting, or that he has been actuated by any malicious or improper motives in the discharge of his duties. It appears that Huggett, as school district clerk, delivered to Barrett a statement, that the amount of taxes voted to be raised in school district No. 6, of Westford, at a special school meeting held on the 22d day of October, 1859, was one hundred and three and 80-100 dollars, which the town clerk was requested to assess against the property of the district. This tax Barrett carried out in the roll against the property of the district.

Now it is not claimed that there was no such school meeting, or that the tax was not voted, or that the district had not full power to vote the tax at that time. But it is claimed that as the tax was voted at a special meeting, it should have been collected by the clerk and treasurer of the district. Grant that this was so, yet if the town clerk was ignorant of the provision of the law requiring a tax voted at a special meeting to be collected through the district officers, but went on and carried out the tax in the roll, as it was his duty to do when the same was raised at the annual meeting, we think this would not amount to a breach of his official undertaking.

If the town clerk had been guilty of any neglect of duty or misconduct, whereby the appellant had sustained damages, the case would be different. But at most, he erred in supposing this tax was to be collected through the town, instead of the district officers, a mistake very natural when we consider the obscurity of the school law upon this subject. We therefore think a non-suit should have been granted.

The judgment of the circuit court is affirmed.