In the original opinion this court held that the affidavit of illegality in effect denied that any ordinance or resolution had been passed by the authorities of Mount Airy fixing the tax rate for 1936 and levying a tax for that year, and that the defendant's testimony that each and every ground of the affidavit was true, was equivalent to testimony that no such resolution or ordinance had been passed. There is a contention that the records of the municipality for the year 1936 had been burned or destroyed. Counsel contend, that the allegations in the affidavit as amended are to the effect that there are in existence no records of the municipality showing that any such ordinance had passed or tax levy made; that the allegations in the affidavit are not to be construed as averring that no ordinance levying the tax or fixing the tax rate had been passed; and that the defendant's testimony that the allegations in the affidavit of illegality are true is not *Page 833 equivalent to testimony that no such ordinance had been passed or tax levy made. Attention is called to the language of the allegations in the affidavit and the amendment thereto. In ground 2 of the affidavit it is alleged as follows: "From aught it appears from the records of the mayor and council of Mt. Airy no resolution or ordinance was passed during the year 1936, before or since, fixing the tax rate for the year 1936 at any amount. There being no official assessment of a tax rate for the year 1936, any sums collected, or attempted to be collected, was ultra vires and void." In ground 3 of the affidavit it is alleged "that there was no resolution or ordinance of the mayor and council of Mt. Airy designating the purpose for which any tax levied was to be expended, as required by law." In the amendment to the affidavit of illegality it is alleged as follows: "Now comes the defendant in fi. fa., and amends the illegality heretofore filed, by enlarging the grounds therein, by saying that he is not indebted to Mayor and Council of Mt. Airy in any amount for taxes during the year 1936, since no taxes were levied for that year according to the records of the said municipality." The proper construction to be placed on these allegations is that they allege that the records of the municipality do not show the existence of any ordinance levying a tax for the year 1936 or fixing the tax rate, for Mount Airy. These allegations are not subject to the construction that it does not appear from the records of the municipality, in the sense that there are no records in existence or accessible, that no ordinance was passed levying a tax or fixing the tax rate.
The only method by which a municipality can officially speak and levy a tax is by resolution and ordinance of the governing authorities, which must necessarily be in writing and constitute a record of the municipality. The record of the municipality may include the written ordinance or resolution on file in the office of the clerk, or it may mean minutes or books, required by law to be kept, containing the proceedings of the municipal authorities. Where the records fail to show any action by the municipality levying a tax or fixing the tax rate, it is conclusively inferable that no such official action has been taken. Since there was no demurrer to the affidavit of illegality, the allegations therein may be construed most favorably to the affiant. With the addition of this opinion, we adhere to the judgment heretofore rendered. *Page 834