#### J. R. WILLIAMS et al., Taxpayers, v. COUNTY COMMISSIONERS OF FRANKLIN.

(Filed 12 October, 1921.)

1. Taxation— Counties— Equalization — Statutes—County Commissioners —Officers—Functus Officio.

Our statute, Laws 1921, cb. 38, provides for tbe revaluation of property for purposes of taxation by tbe commissioners of a county, tbat tbeir action be certified to and approved by tbe State Tax Commission, etc., and specifies, in tbe various sections, tbe dates “not later than wbicb” these things shall be done: JSelct, tbe dates so fixed are mandatory and not directory, and tbe county commissioners are functus officio thereafter.

3. Same — Elective Procedure.

After tbe board of county commissioners have met within tbe time prescribed by statute, and have elected, upon investigation, to make a horizontal cut in equalizing tbe value of property, and.have certified tbe same to tbe State Tax Commission, wbicb bas been approved, etc., cb. 38, Laws 1921, secs. 28 (a) and (b), they may‘not in lieu of these sections proceed under see. 28 (c), to increase tbe tax value of some of tbe towns and townships, tbe remedy being elective at tbeir former meeting, and it being required by tbis section tbat tbe work shall be completed “not later than” 1 July, and reported “not later than 15 July” to tbe State Tax Commission, tbeir attempt to do so in August was functus officio, and tbeir act will be restrained.

Appeal by defendants from an order of Bond, J., 22 August, 1921, continuing restraining order to tbe bearing, from FbaNICLIN.

Tbis is an action by J. E. Williams and others, taxpayers of Franklin County, to restrain tbe county commissioners of Franklin from revaluation and raising tbe levy of taxes after tbe date prescribed by law. Tbe *136restraining order was granted by Devin, J., 2 August, 1921. Tbe motion to dissolve tbe restraining order was beard by Bond, J., in Ealeigb on 22 August, 1921. Tbe motion was refused and tbe restraining order was continued to tbe final bearing. Appeal by defendants.

W. M. Pearson for plaintiffs.

W. H. Yarborough and Ben T. Holden for defendants.

Clabk, O. J.

Tbe defendant board of commissioners of Franklin County, in accordance witb tbe provisions of Laws 1921, eb. 38, met on Tuesday after tbe first Monday in April, 1921, and after inquiry and investigation as to tbe value of tbe real estate in said county, recommended tbe value be reduced by a horizontal reduction of 40 per cent, applicable to tbe whole county. Their recommendation was certified to tbe State Tax Commission under section 28 (a) and approved by tbe State Tax Commissioner 15 June, 1921; was tbe same day certified to tbe defendant board of county commissioners. Thereafter on tbe second Monday in July, 1921, tbe defendant county commissioners met as a board of equalization for tbe purpose of bearing complaints and equalizing values in tbe various localities. There being a number of complaints tbe commissioners, in order to ascertain more fully tbe values in the different localities, passed a resolution to inspect such parcels of real estate in company witb tbe various taxlisters or other freeholders residing in their respective townships, and after making such investigations tbe commissioners on 26 July issued 904 notices to taxpayers in two townships in which they bad made an increase of approximately a million and a half dollars in valuation to another township in which they bad made an increase of $10,000, and to taxpayers in tbe three towns of Youngsville, Eranklinton and Louisburg, in which there bad also been increases in taxation, to show cause against tbe increase on 2 August; but no notices were sent out to any taxpayers in any other townships. There are ten townships in Franklin County. Why this discrimination does not appear.

Tbe ground upon which Devin, J., granted tbe restraining order and Bond, J., refused to dissolve tbe same and continued tbe restraining order to tbe final bearing, and upon which this Court is asked to affirm rests chiefly, if not entirely, upon tbe proposition that tbe county commissioners acted without authority in attempting to revalue tbe property in tbe parts of tbe county above designated at a time when they were fundus officio.

Laws 1921, cb. 38, sec. 28 (a), authorizes tbe board of county commissioners on Tuesday after tbe first Monday in April, 1921, acting as a board of review, to make a horizontal reduction throughout tbe county *137if, in their judgment, they find that the assessed value is in excess of the actual value. At such meeting the board of commissioners made a horizontal cut of 40 per cent as above stated, which was certified to the State Tax Commission “not later than 20 April, 1921,” and the State Tax Commission approved said horizontal reduction, and certified their approval to the county commissioners “not later than 15 June,” as the statute provided. This section further provides that this horizontal reduction “shall be the values at which the property shall he assessed for taxation, unless and until the same have been changed and revised by the State Tax Commission, and certified to the board of county commissioners of such county, which shall be done not later than 1 July, 1921.” This was certified as above stated on 15 June.

Section 28 (b) of said chapter 38 further provides that the county commissioners shall have authority to hear specific complaints of overvaluation or under-valuation of any particular tracts of land if the complaint is made and the reassessment and reappraisement by the board was made during the month of May. This was not done during May as to any of the property affected by the revaluation as to which this injunction is served.

Said section 28 (b) further provides that the county commissioners may appoint the county auditor or any resident freeholder of the county to investigate and report upon all such specific complaints and provides, “The county board of commissioners shall thereupon approve or revise such recommendations, and shall not later than 15 July, 1921, make report to the State Tax Commission of the increases and reductions in the valuation of specific properties made under authority of this section.

Said chapter 38, sec. 28 (e) provides that if the board of commissioners at their regular meeting on first Monday in April, 1921, “shall be of the opinion that the valuation of real estate in such counties is so unequal as between the owners of real property in such county as to require more general revision of assessments than is practicable to be made under provision of subsection (a) and (b) of this section”- — that is, by horizontal reduction as was made, and by specific complaint which should have been filed in May — -“or the value of real property, as heretofore appraised in such county as a whole is in excess of the present actual value of such property, it may by resolution so find and order that such revision be made. In the event that such order is mstde, it shall be in lieu of the remedies provided in subsection (a) and (b) of this section, and the board of county commissioners shall appoint a board of review composed of three resident freeholders . . . who have general knowledge of the value of real estate in such county, and such board of review may appoint such number of assistants as in their judgment is necessary to complete such revision, not later than 1 July, *1381921.” Then follows the manner in which they should execute their duties, which as above provided should be completed “not later than 1 July, 1921.” This section further provides: “A complete abstract of such revised assessment by townships, giving average value per acre, and value of town lots and the value as a whole shall be made to the board of county commissioners of such county, and to the State Tax Commission, "not later than 15 July, 1921,” and shall be subject to the authority of the State Tax Commission, as the State Board of Equalization, so as to preserve a proper equalized value of real property in the several counties.”

Section. 28 (d) provides that “the report of the board of county commissioners made pursuant to section 28 (b) and the abstracts as reported by the board of review, under section 28 (c) shall be the basis for the assessment of taxes, unless and until the same are changed by the tax commission on or before 1 September, 1921, and the said State Tax Commission shall, on or before 1 September, 1921, certify down to the board of county commissioners of the several counties its findings and conclusions upon said report and abstracts.”

It will be seen by perusal of the above provisions of the statute that section 28 (a) authorized the county commissioners on the first Tuesday after the first Monday in April to make a horizontal reduction of the valuation throughout the county and report the same to the State Tax Commission not later than 20 April, 1921, and that said commission shall act upon said report, and that said values shall be the values assessed for taxation unless changed by the State Tax Commission, who shall certify down their action not later than 1 July, 1921. The action of the county commissioners in making a 40 per cent reduction was approved and certified to defendants 15 June.

Then section 28 (b) provides that during May specific complaints may be made as to the valuation of any particular tract of real estate, after the general equalization order provided for in the preceding section shall have been made, and the board during the month of May may act upon such complaints and shall report any modifications thereby made in the general order, and shall report such modifications "not later than 15 July” to the tax commission. .

That not having been done, the attempt of the board on 2 August, 1921,* to make increases of over one and a half million dollars in the valuation for taxation of the property of 904 taxpayers in three townships and three towns was without 'authority of law, and the restraining order was properly granted by Devin, J., and the refusal to dissolve the same by Bond, J., must be affirmed.

The defendants, however, contend that they acted under section 28 (c), which authorized the county commissioners when they “shall be of *139opinion tbat tbe valuation of real estate in sucb county is so unequal as between tbe owners of real estate in sucb county as to require a more general revision of assessments than is practicable to be made under tbe provisions of subsections (a) and (b) of tbis section” — tbat is, by a general horizontal reduction and by specific complaints — tbey “may by resolution so find and order tbat sucb revision be made. In tbe event sucb order is made, it shall be in lieu of tbe remedies provided in subsections (a) and (b) of tbis section.” It is therefore an alternative remedy which tbe commissioners might have elected to adopt at their meeting on Tuesday after tbe first Monday in April. But having adopted tbe other system of “horizontal reduction and specific complaints” they could not in July proceed to act under subsection (c). Even if tbey could do so, it would be necessary for them to set aside their horizontal reduction of 40 per cent as to tbe entire county, though it bad been approved by tbe State Tax Commission, and then proceed under subsection (c) in lieu thereof.

There is tbis further insuperable objection tbat if subsection (c) bad been chosen as tbe alternative to tbe “horizontal reduction and specific complaints,” tbe Legislature provided tbat proceedings thereunder should be completed “not later than 1 July, 1921,” and tbat tbe county commissioners should make their report of sucb revision under subsection (c) to tbe Tax Commission “not later than 15 July, 1921,” and tbat body should certify down their action on or before 1 September, 1921.

On Tuesday after tbe first Monday in April tbe board of commissioners bad their election to proceed by a general horizontal reduction and specific complaints, which tbey did, and which has been approved by tbe State Tax Commission.

Or, tbey might have chosen then to have proceeded under subsection (c), under which tbe work .could be completed “not later than 1 July,” and reported “not later than 15 July” to tbe Tax Commission, which was practicable.

Tbey chose tbe first method. When becoming dissatisfied with tbat, tbey attempted in August to proceed under subsection (c), tbey bad no authority to set aside tbe horizontal reduction which bad received tbe approval of tbe State Tax Commission, for tbey were functus officio, and it was too late, because tbe statute was specific tbat tbe revision should be complete “not later than 1 July,” and reported to tbe State Tax ■Commission “not later than 15 July.”

There are some circumstances under which a requirement tbat a certain act shall be done on a date named may be treated as directory, but tbat is not possible when tbe statute conferring a power provides tbat it shall be performed “uot later than” tbe time specified.

Tbe order appealed from is

Affirmed.