#### B. J. KENNEDY, in Behalf of Himself and All Other Taxpayers of the Town of Wilkesboro, Who Care to Make Themselves Parties, Plaintiff, v. TOWN OF WILKESBORO and J. R. HENDERSON, Town Clerk and Tax Collector for the Town of WILKESBORO, Defendants.

(Filed 12 October, 1938.)

Municipal Corporations §§ lib, 42 — Levy made and reaffirmed by de jure officers held valid notwithstanding intervening acts of de facto officers.

The duly elected officers of defendant municipality adopted a budget and fixed the tax rate of the town. Thereafter, in a contest over the election, de facto officers went into office, and fixed a lower tax rate. Payment of taxes were made by owners of property under the lower rate. Later the de jure officers were reinstated, and they reaffirmed the original tax levy made by them. Held: The tax levy as made by the de jure officers and later reaffirmed by them is controlling, and taxpayers who had made payment under the lower rate are liable for taxes computed on that rate subject to a credit for the amount paid under the lower rate.

*272Appeal by plaintiffs from Pless, J., at June Term, 1938, of Wilices.

Affirmed.

This was an action to determine tbe lawful tax rate for tbe town of Wilkesboro for tbe year 1935, and to restrain tbe enforcement of tbe collection of taxes alleged to have been improperly levied for that year.

It was agreed that tbe judge presiding below should find tbe facts in tbe case “from tbe pleadings filed therein, and draw bis conclusions of law from tbe facts so found.” There appears to be no controversy as to tbe facts alleged in tbe pleadings.

Thereupon bis Honor found tbe following facts:

“C. E. Lenderman, Joe E. Barber, E. E. Eeins, and L. B. Dula were legally elected as tbe Board of Commissioners of tbe town of Wilkesboro at tbe municipal election for said town, held in May, 1935, and that W. E. Harris was elected mayor in tbe same election; that there was a contest over said election in which certain litigation was bad, and pending tbe final determination of tbe litigation, another group of officers were installed as tbe officials of said town for a period of several months; but it was finally determined that tbe officials as above named were tbe duly elected officials of tbe town. Pending tbe time of tbe 'election and tbe installation of tbe de facto board of officials tbe legally elected officials properly adopted a budget and fixed as tax levy on tbe property in said town at $1.50 per hundred dollars valuation, all said adoption and levy being regular and legal in every respect; but tbe proceedings were not recorded upon the books of tbe town at that time. Following this, tbe de facto board took office, and finding no record of said budget and levy, adopted a budget and fixed a levy of $1.25 per hundred, and while said levy was in effect some of tbe citizens and property owners of tbe said town paid taxes upon that basis and received receipts therefor. By tbe final decree in tbe litigation tbe officers named were reinstalled in office; and they adopted proper resolution declaring that a regular budget and tax levy upon tbe rate of $1.50 bad theretofore been made by them, all as shown in paragraph 12 of tbe complaint herein, and again fixed tbe tax rate at $1.50 per hundred dollars.

. “It is conceded as a matter of law by all parties hereto that tbe officials named above were tbe duly and legally elected officials of said town and that tbe temporary board was acting in a de facto capacity during its tenure.

“Upon tbe foregoing findings of fact tbe court concludes as a matter of law that tbe legal tax rate for tbe town of Wilkesboro for tbe fiscal year 1935 is $1.50 per hundred; that payments made to tbe temporary board at tbe rate of $1.25 were legally and properly made, and that tbe persons making said payments are entitled to full credit for tbe amount *273so paid, but that they are still indebted to the said town for the difference between the two rates, to wit, 25c per $100.00 valuation.

“It is therefore considered, ordered and decreed that the petition herein be denied, and the restraining order dismissed, and it is further decreed that the legal and valid tax rate of said''town for the year 1935 is $1.50 per hundred, and that payments made by taxpayers upon any other basis should be credited accordingly and the difference thereupon collected by the authorities of said town, and the tax collector of said town is hereby authorized and directed to proceed in accordance with this decree.”

Plaintiffs appealed.

W. H. McElwee for plaintiffs, appellants.

A. H. Casey for defendants, appellees.

DeviN, J.

The facts found by the court below are sufficient to support the judgment.

Questions involved in the litigation over the municipal offices in the town of Wilkesboro in 1935 were considered by this Court in Harris v. Miller, 208 N. C., 746, 182 S. E., 663; Wilkesboro v. Harris, 208 N. C., 749, 182 S. E., 665; and Wilkesboro v. Jordan, 212 N. C., 197, 193 S. E., 155. The action of the de facto board of commissioners in levying a tax rate of $1.25 per hundred dollars valuation, could not be upheld as the valid act of the taxing authorities of the town for the reason that, as found by the court, the legal or de jure board had previously, when in the unobstructed possession of the offices and in regular and proper form, adopted a budget and fixed the tax rate at $1.50, and had again later reaffirmed said rate. Baker v. Hobgood, 126 N. C., 149, 35 S. E., 253; Smith v. Carolina Beach, 206 N. C., 834, 175 S. E., 313.

Judgment affirmed.