Trespass is the proper form of action to be brought against the trustees of a school district, by one, against whom they have illegally assessed and ordered to be collected, a school tax. Upon the trial of such an action, the decision of the school commissioner and a justice of the supreme court, upon appeal, under ch. 68, sects. 1 and 2, that a tax has been illegally assessed, is conclusive, both in law and fact, upon the parties to the appeal, as to that question; and this construction of the statute does not bring it into conflict with sect. 15, art. 1, of the constitution, which declares, that "the right of trial by jury shall remain inviolate."
AMES, C.J.
The first exception taken in this case, which supposes that the court below erred, in holding the action of trespass to be appropriate to it, cannot be maintained. The law, for the sake of the remedy, regards those who under color of office do, or order to be done, that which their authority does not warrant, as mere wrongdoers; and if the act be forcible, such as the arrest of a person, or the taking and carrying away of his property, as co-trespassers; in which relation all that take part in the forcible act, either as advisers or actors, are principals. Upon the supposition, therefore, that the defendants illegally assessed the school tax, which under their warrant was levied upon the property of the plaintiff, trespass, and not case, is the proper form of action for his redress. Agry v. Young, 11 Mass. 220; Freeman v. Kennedy, 15 Pick. 44.
The remaining exception, that the court below erred in holding the decision of the commissioner and judge to be conclusive that the assessment was void, is equally untenable. The decision of the commissioner is conclusive from the very nature and purpose of his jurisdiction. It was designed, that as visitor under the public school system, he should summarily, cheaply and finally settle disputes arising in the great academic body created by the state, as the visitors of similar institutions, both in England and in this country, are accustomed to do. At the request of the defendants his judgment, embodying a statement of the facts, was laid before a justice of the supreme court for his decision; and the statute especially declares, that his decision shall be final. For all the purposes of such an enactment, it would be idle to make the decision of the justice conclusive, unless the statement of facts, deduced by the commissioner from the evidence before him, were also conclusive.
Nor is this construction of the statute, as contended, liable to the objection that it creates a conflict between the statute and sect. 5, art. 1, of the constitution, which declares, that "the right of trial by jury shall remain inviolate." The summary jurisdiction of visitors of academic bodies, nay, summary modes of passing upon the acts of officials engaged in the assessment and collection of taxes, were, at the adoption of the constitution, as well known in this state and in all other countries of the common law, as the equity, admiralty, and probate jurisdictions; and are as little liable as those, to the objection that they infringe the right of trial by jury. All these special jurisdictions have for ages, each in its appropriate sphere and in its distinctive method, administered justice side by side with the common-law courts; and in so doing, have never been supposed to encroach upon the rights of trial appropriate to common law cases, as these rights have been understood and interpreted. The result is, that the court below correctly held the defendants to be bound by the proceedings before the commissioner and judge, to which they and the plaintiff were parties; and that if after those proceedings they chose to go on and collect a tax thus decided to be unlawful, they were liable as trespassers, with the right only to have the jury assess the plaintiff's damages. Both the exceptions brought before us by the defendants must therefore be overruled, and the court of common pleas ordered to render judgment for the plaintiff upon the verdict.