3. HOW, AND UPON WHOM TO BE ASSESSED, AND FOR WHAT PRO

PERTY.

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Trustees are required by § 19 of the act of May 26, 1841, (No. 107,) to apportion taxes, on all taxable inhabitants of the district, or corporations holding property therein." This provision includes, of course, all actual residents of the district; and is extended by § 77 (No. 116,) to "every person owning or holding any real property within any school district, who shall improve and occupy the same by his agent or servant, whether he resides in the district or not." They are also to apportion taxes "upon all real estate lying within the boundaries of such district, the owners of which shall be ncn-residents, and which shall be liable to taxation for town or county purposes, and shall be situated within three miles of the site of the school-house in such district." This includes uncultivated and unimproved lands owned by non-residents, and situated in the district; and is an extension of the power given by 88 [78 of the old act,] which limited the lands of non-residents, subject to taxation, to those which were actually cleared and cultivated. The trustees may, in their discretion, omit to assess any tract or parcel of unoccupied non-resident land in their district, where the proportion of the tax payable therefor, would not amount to fifty cents. This provision is inserted to save the trouble of the subsequent proceedings rendered necessary in such cases, where so small a sum only can be finally collected.

The apportionment is also to be made according to the valuations of the taxable property which shall be owned or possessed by them, [the inhabitants of the district, &c. as aforesaid,) at the time of making out such list; within such district, or partly within such district and partly in an adjoining district.

Taking these provisions together, the following general principles may be deduced:

1. All the actual inhabitants of a district are to be taxed for the whole property, real and personal, owned or held by them within the district. Executors and administra tors having in their possession or under their control the property of their testator or intestate, within the district

are taxable therefor, in their representative capacity, as executors, &c.

2. They are also taxable for any real property owned by them, lying partly within such district and partly in an adjoining district—that is, for such property as at the time of making out the tax list is owned by them and intersected by the boundaries of the district. In this respect the old law is not substantially altered. Nor is it in any sense material when the title of the owner to the whole or any part of the land so intersected accrued, whether before or after the organization of the district, so that it belonged to him at the time of making out the tax list, and is then intersected by the boundaries of such district. In such case, no matter what may be the respective proportions of the land owned in each district, the owner is taxable for the whole farm or property belonging to him, and so connected, in the district where he resides, only; and being so liable there, he cannot, of course, be taxed for the same property in any other district.

The principles of law applicable to the taxation for school district purposes, of real estate intersected by the boundary line between two districts, are these: Each inhabitant of a school district is taxable, under § 19, of the act of 1841, (No. 107, laws, &c. relating to common schools,) in the district where he actually resides "according to the valuations of the taxable property which shall be owned or possessed by him, at the time of making out such list, within such district, or partly within such district and partly in an adjoining district." This principle has been repeatedly recognized and asserted; and the only difficulty consists in its practical application to a class of cases supposed to come within the purview of a series of decisions made by Superintendents FLAGG and Dix, confining its operation to the period of the organization of the district. At page 24 of the volume of "Common School Decisions," Mr. FLAGG says, "The principle is, that where a line between two districts runs through a man's farm, he shall be taxed for the whole of his farm, in the district where his house stands, or where he resides." And he observes that on this point the law is clear, and that such has been the construction given it. "The same principle," he adds, "governs in the town

assessments;" the provision of law in this respect being that "where the line between two towns divides any occupied lot or farm, the same shall be taxed in the town where the occupant lives, provided he or she lives on the lot." At page 69, however, of the same volume, he lays down the rule in the following terms: "Where a person purchased a lot in an adjoining district, along side of his farm, it was decided that he was taxable for the lot purchased, in the district where it was situated. If his farm had been intersected by the district line when the commissioners formed it, then he would have been assessed for his whole farm in the district where his house was situated; but the lot purchased is a distinct lot, and the lines of districts cannot be changed by individual purchases." The same doctrine is asserted in a subsequent decision made by Gen. Dix, at page 128 of the volume referred to. These two decisions have been repeatedly over-ruled by subsequent Superintendents, upon the ground that they establish a criterion by which to determine the liability of property to taxation, in the class of cases under consideration, not recognized by the statute, viz. intersection by the boundary line of the district, at the time of the formation of the district, instead of at the time of making out the tax list. The language of the statute, in this respect, seems to be clear and explicit: "In making out a tax list, the trustees of school districts shall apportion the same on all the taxable inhabitants of the district, or corporations holding property therein, according to the valuations of the taxable property which shall be owned or possessed by them, at the time of making out such list, within such district, or partly within such district and partly in an adjoining district.

The owner and occupant of a farm, therefore, situated partly in two adjoining districts, is taxable in the district where he actually resides, for the whole farm, provided he occupies or improves the whole, as one farm, either by himself, his agents, or servants. So if the owner of a farm situated wholly in one district, purchases a piece of land adjoining his farm, in another, and occupies the whole as one farm, it is taxable only in the district where such owner resides.

If, however, there is a tenant on that portion of the

farm situated in a different district from that of the owner's residence, such tenant is taxable in the district where he resides, for so much of the property as he rents or leases.

This rule of taxation in no respect interferes, as has frequently been supposed, and as seems to be inferred from the tenor of the above named decisions of Messrs. Flagg and Dix, with the boundaries of the respective districts. They remain unaltered and unaffected; so that if that portion of a farm situated in a district other than that of the owner's residence, should again be sold to an inhabitant of the district in which it is situated, it would again become taxable in that district. The rule is one simply of taxation: and no more interferes with the territorial organization of districts, than does the corresponding principle applicable to town assessments, with the boundary lines of towns or counties. It is based upon the injustice and inexpediency of requiring an inhabitant of one district to contribute to the expense of supporting the schools in another, merely because a part of his farm extends beyond the boundary line of his district, and operating, as it does, equally in every district, furnishes a guide to trustees in the assessment of taxes, which relieves them from much embarrassment and labor, otherwise unavoidable, in determining as to the relative value of detached portions of the same farm situated on either side of the boundary line of their districts.

3. All non-resident owners of real estate in the district, who improve and occupy the same by their agents or servants, are by § 77, (No. 116,) taxable therein for the property so owned, improved and occupied, in the same manner as though they actually resided therein. This provision is also to be construed in connexion with those above referred to, and is applicable in its full extent only to cases where the property so occupied is wholly situated in the district. Where it is situated partly in the district where the owner actually resides, it is taxable only in that district. And where it is situated partly in two or more districts, in neither of which the owner resides, each district must tax such owner only for the part actually within its boundaries. It is also to be borne in mind that this class of cases is distinct from that in which the land is

occupied by a tenant-and also from that in which it is so occupied by a person working it under a contract for a share of the produce of such land. In each of these cases the actual possessor is to be taxed in the same manner as though he were the owner. See § 27, No. 115,) and § 83, (No. 121.)

4. All real estate situate in a district, within three miles of the school-house therein, and owned by non-residents, not included in either of the above class of cases, is also liable to taxation, and forms the subject of the directions contained in § 20 to 26 inclusive, in the act of 1841, (Nos. 108 to 114, both inclusive.)

5. Land in the district belonging to corporations, whether cultivated or not, is taxable for school district purposes. The provision in the act of 1841, in this respect, produces a material alteration of the law as it formerly stood, and renders turnpike and railroad corporations taxable for so much of the land owned by them as is situated within the respective school districts through which their roads pass. Such corporations and all others, are to be regarded as residents of the districts where their principal place of carrying on business is situated, and non-residents elsewhere. The mode of proceeding where they are non-residents is specifically pointed out by § 20 of the act of 1841, (No. 108,) and the subsequent sections.

By a decree of the chancellor of this state, 4th vol. Paige's Chan. Rep. 384, it has been decided that railroad "companies, whose stock, or the principal part thereof, is vested in the lands necessary for their roads, and in their railways and other fixtures connected therewith, are taxaable on that portion of their capital as real estate in the several towns or wards in which such real estate is situated." They are, of course, taxable in school districts for common school purposes, on so much of such real estate as is included within the boundaries of those districts.

In the decree referred to, it was also decided, that such real estate " is to be taxed upon its actual value at the time of the assessment, whether that value is more or less than the original cost thereof."

In ascertaining the value of so much real estate as is included within the boundaries of a school district, the trustees must, from the necessity of the case, be guided