¶1delivered the opinion of the court. This is an action of trespass, for taking four barrels of flour from the mill of the plaintiffs, in the town of Munroe, in Orange county.
¶2The defence is a justification, by virtue of a warrant under the hands and seals of the trustees of the school district, (which included the mills of the plaintiffs,) for collecting a tax which had been voted by the freeholders and inhabitants of the district, for the purpose of building a school-house, according to the provisions of the 8th section of the act for the establishment of common schools. (1 N. R. L. 261.)
¶3By that section of the act, the freeholders and taxable inhabitants of the school district are authorized to vote a tax, for that purpose, “ on the resident inhabitants of such districtand to choose three trustees, who are required “ to make a rate-bill or tax-list which'shall raise the sum voted on all the taxable inhabitants of said district, agreeably to the levy on which the town-tax was levied the preceding year, -and annex to said tax-list, or *446rate-bill, a warrant” to the collector of the district to collect the tax acc0rdingly.
¶4In this case, the amount of the tax was regulary voted by the freeholders and inhabitants of the district; and the trustees made • out a warrant to the defendant as collector, with a rate-bill or tax-list annexed, in which the plaintiffs are set do\Vn as .inhabitants of the said district, (according to the form prescribed in the act,) with a tax of 48 dollars assessed to them.
¶5The case admits that the plaintiffs were not resident in that district, but actually resided in the city of New-York.
¶6There- is no doubt that, according to the true construction of the common school act, no persons are liable to be taxed for any of the purposes mentioned in the 8th section of that act, except actual inhabitants of the school district. The words “ resident inhabitants,’’ and “ taxable inhabitantsof the district, are used synonymously in that section.
¶7The tax was, therefore, illegally imposed on the plaintiffs, by the trustees of that school district. The only question, of any difficulty, is, whether the collector who executed that warrant can legally claim protection under it ? I incline to the opinion that the collector (as well as. the trustees) is a trespasser.
¶8The authority of -the trustees was special and limited; and in assuming a right to tax the plaintiffs they exceeded the powers vested in them by law. " The rule is wisely settled, that in such cases the subordinate officer is bound to see that he acts within the scope of the legal powers of those who command him.
¶9Experience has shown that the safety of private rights will not admit of a relaxation of this rule; and the uniform current of English authorities have supported it with jealous caution. The principle is sometimes harsh in its application; but in order to be efficacious and certain, it is necessary that it should be uniform. Lawless power is never so dangerous as when exerted by public officers, according to the forms of law. The remedy for such abuses ought to be direct and ample. It is, therefore, insufficient to allow an action against the trustees only; they may be insolvent, or beyond the reach of process, while the officer who is the immediate trespasser, is fully able to respond.
¶10The case of Henderson, &c. v. Brown, (1 Caines 91.) is clearly distinguishable from the present case. That was an action of trespass against a collector for levying a distress for a tax on the theatre in New-York; which had been assessed as a dwelling-*447house, when it ought to have been assessed as land with the theatre upon it. There was no want of jurisdiction, nor excess of jurisdiction, in that case. It was.an erroneous, and not a void assessment; and, therefore, the collector was justified.
¶11In the case of the Marshalsea, (10 Co. Rep. 76.) Sir Edward Coke, in exemplifying the distinction in this respect, between a proceeding coram, non judice, and a proceeding inverso ordine, or erroneous, says, “ if the court of common pleas, in a plea of debt, doth award a capias against a duke, earl, &c. which, by the law, doth not lie against them, and the same appeareth in the writ itself, yet, if the sheriff arrest them by force of the capias, although that the writ be against law, notwithstanding, inasmuch as the court hath jurisdiction of the cause, the sheriff is excused.” In that case a capias was an irregular process. The proceeding should have been by summons and distringas : yet, as the court had jurisdiction in actions of debt, against peers of the realm, the sheriff was justified under the capias, although peers were not amenable in that mode.
¶12In this case, the property of the plaintiffs was not taxable in any degree, nor under any modification. The power of assessing the tax is expressly limited to the property of “ resident inhabitants of the school districtand it is admitted that the plaintiffs are not persons of that description. The cases of Harrison v. Bulcock, &c. (1 H. Black, 68.,) and Mayor v. Knowles, (4 Taunt. 634.,) are analogous. We are, accordingly, of opinion that the plaintiffs are entitled to judgment.
¶13Judgment for the plaintiffs.