Opinion of the Court by
Judge Nunn
Affirming.
Prior to April 16, 1905, the appellant resided near to and owned property adjoining the city of Falmouth (a city of the fifth class). On the date mentioned the circuit court of that county made an order, in an action brought for that purpose, extending the limits of the city that included the property of the appellants, within the limits of the city. Immediately after the 15th of September of that year the property of the city including the appellants, was assessed or listed [262] for taxation by tbe city assessor. Tbe city council appointed a Board of Equalization, who met on tbe first Monday in December, and revised and corrected tbe list, and made it tbe assessment roll for taxes for that year; which tax list was placed in the hands of the city marshal for collection as provided in section 3629, Ky. Stat., 1903.
The appellants instituted this action ■ against the city and the Marshal, and sought to enjoin the collection of the taxes upon the ground that the assessment of the property for that year, 1905, was void. First for the reason that their property was assessed by the city clerk; in other words, the person who assessed the property was the city clerk, and the law prohibits one person from holding two municipal offices at one and the. same time, and that his act in assessing the property, for that reason, was void. Second, that the assessor was not sworn before making the assessment. Third, that the city council had no right or authority to make the tax levy in December, 1905, for that year; that the only effect of such levy was for the collection of taxes for the succeeding year; that the levy for the collection of 1905 should have been made after the assessment of 1904, which could not have-imposed a burden upon their property, for the reason that it did not become a part of the city until the month of April thereafter.
It appears that the council did not make the levy after the assessment of 1904, and no levy was made until December 11, 1905. An ordinance making the levy was passed as follows, to-wit:
“The city council of the city of Falmouth, Ky., do ordain as follows:
“1. That there be levied a tax of fifty cents on each one hundred dolars worth of taxable property in the city-of Falmouth, Ky., for the year 1905, for the pur[263] pose of paying the expense and indebtedness of said city.
“2. That a tax be levied of ten cents on each one hundred dolars worth of taxable property in the city of Falmouth, Ky., for the year 1905, to create a sinking fund for the purpose of paying water works improvement bonds and interest on same as they fall due.
“3. That said taxes be paid to Ezra Loomis, Marshal, on or before December 26, 1905; after said date a penalty of six per cent will be added and collected on all unpaid taxes.
“This ordinance to be in force and effect from and after its passage and publication.”
The determination of this question must be controlled by the statutes governing fifth-class, cities. Section 3654, Ky. St. 1903, as far as material, we quote: “All real and personal estate within the city * * * on the 15th day of September in the year in which the assessment shall be made * * * shall be assessed at its fair cash value,” etc. Section 3645, Ky. St. 1903, defining the duties and powers of the Board of Equalization, and the list to be made by the board, reads as follows: “The corrected list for taxes shall be - the assessment roll for said tax for said year.” It shall be certified by the clerk, who shall act as clerk of the board of equalization, as being the assessment roll for said tax, and shall be the assessment roll upon which said tax is to be levied in said year. ’ ’ The language of this statute appears to authorize the council to levy the tax for the year in which the assessment is made.
The counsel for appellant refers to the method used by the counties and state in the levying of taxes; that is, in levying in one year for the collection of taxes in the succeeding year; but' this is governed by other [264] provisions of the, statutes. In our opinion the section last referred to, and the preceding section (3644);, expressly authorizes the council to, piake the levy for the collection of taxes ijor the year 1905, upon, the assessment ma.de that year. It is provided, hy the la,st section citedj that: “The city council shall have power, and it shall he its duly, to provide hy ordinance á system for the assessment,’ levy' and collection of all city taxes, which system shall conform as nearly as the circumstances of tip case may permit, to the provision of the laws of this State in reference to the assessment, levy and collection of State and county taxes, except as. to times for such assessment, levy and collection, and except as to the officers by whom such duty shall he performed.” It will be observed that this section requires cities of the fifth class in reference to the assessment, levy, and collection of State and county taxes, to be governed by State laws, except as to the time for such assessments, and the time for the levy and the time for the collection. Therefore, the council was not required to make the levy in 1904, for the taxes for the year 1905. As stated, the time for making the levy was left to the discretion of the city council. The appellant contends that the city council of Falmouth had failed to provide by ordinance a system for the assessment, levy, and collection of city taxes; and for that reason it was without authority to make the levy. It is true that by this statute it wa,s the duty of the city council to' so provide; and if it had undertaken to perform any act in the assessment, levy, and collection of taxes not authorized hy the statute with rcferen.ee to fifth class cities, then its acts would have bpen erroneous.
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Opinion of the Court by
Judge Nunn
Affirming.
Prior to April 16, 1905, the appellant resided near to and owned property adjoining the city of Falmouth (a city of the fifth class). On the date mentioned the circuit court of that county made an order, in an action brought for that purpose, extending the limits of the city that included the property of the appellants, within the limits of the city. Immediately after the 15th of September of that year the property of the city including the appellants, was assessed or listed [262] for taxation by tbe city assessor. Tbe city council appointed a Board of Equalization, who met on tbe first Monday in December, and revised and corrected tbe list, and made it tbe assessment roll for taxes for that year; which tax list was placed in the hands of the city marshal for collection as provided in section 3629, Ky. Stat., 1903.
The appellants instituted this action ■ against the city and the Marshal, and sought to enjoin the collection of the taxes upon the ground that the assessment of the property for that year, 1905, was void. First for the reason that their property was assessed by the city clerk; in other words, the person who assessed the property was the city clerk, and the law prohibits one person from holding two municipal offices at one and the. same time, and that his act in assessing the property, for that reason, was void. Second, that the assessor was not sworn before making the assessment. Third, that the city council had no right or authority to make the tax levy in December, 1905, for that year; that the only effect of such levy was for the collection of taxes for the succeeding year; that the levy for the collection of 1905 should have been made after the assessment of 1904, which could not have-imposed a burden upon their property, for the reason that it did not become a part of the city until the month of April thereafter.
It appears that the council did not make the levy after the assessment of 1904, and no levy was made until December 11, 1905. An ordinance making the levy was passed as follows, to-wit:
“The city council of the city of Falmouth, Ky., do ordain as follows:
“1. That there be levied a tax of fifty cents on each one hundred dolars worth of taxable property in the city-of Falmouth, Ky., for the year 1905, for the pur[263] pose of paying the expense and indebtedness of said city.
“2. That a tax be levied of ten cents on each one hundred dolars worth of taxable property in the city of Falmouth, Ky., for the year 1905, to create a sinking fund for the purpose of paying water works improvement bonds and interest on same as they fall due.
“3. That said taxes be paid to Ezra Loomis, Marshal, on or before December 26, 1905; after said date a penalty of six per cent will be added and collected on all unpaid taxes.
“This ordinance to be in force and effect from and after its passage and publication.”
The determination of this question must be controlled by the statutes governing fifth-class, cities. Section 3654, Ky. St. 1903, as far as material, we quote: “All real and personal estate within the city * * * on the 15th day of September in the year in which the assessment shall be made * * * shall be assessed at its fair cash value,” etc. Section 3645, Ky. St. 1903, defining the duties and powers of the Board of Equalization, and the list to be made by the board, reads as follows: “The corrected list for taxes shall be - the assessment roll for said tax for said year.” It shall be certified by the clerk, who shall act as clerk of the board of equalization, as being the assessment roll for said tax, and shall be the assessment roll upon which said tax is to be levied in said year. ’ ’ The language of this statute appears to authorize the council to levy the tax for the year in which the assessment is made.
The counsel for appellant refers to the method used by the counties and state in the levying of taxes; that is, in levying in one year for the collection of taxes in the succeeding year; but' this is governed by other [264] provisions of the, statutes. In our opinion the section last referred to, and the preceding section (3644);, expressly authorizes the council to, piake the levy for the collection of taxes ijor the year 1905, upon, the assessment ma.de that year. It is provided, hy the la,st section citedj that: “The city council shall have power, and it shall he its duly, to provide hy ordinance á system for the assessment,’ levy' and collection of all city taxes, which system shall conform as nearly as the circumstances of tip case may permit, to the provision of the laws of this State in reference to the assessment, levy and collection of State and county taxes, except as. to times for such assessment, levy and collection, and except as to the officers by whom such duty shall he performed.” It will be observed that this section requires cities of the fifth class in reference to the assessment, levy, and collection of State and county taxes, to be governed by State laws, except as to the time for such assessments, and the time for the levy and the time for the collection. Therefore, the council was not required to make the levy in 1904, for the taxes for the year 1905. As stated, the time for making the levy was left to the discretion of the city council. The appellant contends that the city council of Falmouth had failed to provide by ordinance a system for the assessment, levy, and collection of city taxes; and for that reason it was without authority to make the levy. It is true that by this statute it wa,s the duty of the city council to' so provide; and if it had undertaken to perform any act in the assessment, levy, and collection of taxes not authorized hy the statute with rcferen.ee to fifth class cities, then its acts would have bpen erroneous.
The, statute says that ip providing a system for the purpose mentioned, it shall not be inconsistent witfi [265] the provisions of that chapter; clearly meaning that the provisions of the statute with reference to the assessment, levy, and collection of taxes could not be changed in any particular by the system provided by ordinance by the city council. As we construe the statute, all the acts of the city and its officials with reference to the assessment, levy, and collection of the taxes conform to the provisions prescribed in the chapter referred to. The assessor who assessed the property of the city the year 1905, was appointed by the council in the year 1904; it was not necessary for the city council to reappoint him in 1905. Section 3619, Ky. St. 1903, provides that the assessor shall be appointed for a term of two years by the city council; but the appellant contends that he was the clerk at the time of his appointment. It is provided by section 3746 that no person shall at the same time fill two municipal offices, either in the same or different municipalities. By section 3744 it is provided that the acceptance by one in office of another office or employment incompatible with the one he holds shall operate to vacate the first. Conceding that the position of clerk and assessor are incompatible, the acceptance of the position of assessor only had the effect to vacate or deprive him of the first office, the clerkship. Conceding that the assessor omitted to take the statutory oath before he made the assessment, it did not have the effect to make the assessment. void, especially when the Board of Equalization, who were sworn, revised, corrected, and approved the assessment. If the assessor was not sworn, his acts in making the assessment had all the force and effect of a de facto officer, and were binding upon the city and the tax-payers thereof.
For these reasons, the judgment of the lower court is affirmed.