On Petition for. Rehearing.
In this case the plaintiff in error, the county of Sussex, has filed a petition to rehear in which it is suggested that :in reaching its conclusions announced in the opinion in this •case, the court overlooked, or disregarded the statute of 1916 (Laws 1916, c. 491) relating to omitted taxes, levies, etc. This statute is not mentioned eo nomine in the opinion, but it was neither overlooked nor disregarded.
[14] Under familiar law, a commissioner cannot lay a levy of any sort. His duties are to make the assessments consequent upon a properly ordered levy, whether the levy *691was made by the General Assembly, the board of supervisors of a county, or the council of a city. This principle is recognized by the petition when it says: “County and district levies are fixed and ordered by the board of supervisors, in obedience to legislative enactments. No tax, State or local, for current or antecedent years can be assessed, or levied, without legislative authority.”
[15] So much of the act as is relied upon by the petition to rehear is as follows:
“Sec; 508. Omitted taxes, levies, etc., how assessed. — If the commissioner of the revenue, examiner of records, or other assessing officer, commission or board designated by law to assess persons, property (real, personal .and mixed), taxes, levies, et cetera, ascertain that any person or any real or personal property, or income, or salary, or license tax has not been assessed for taxation for any year by this State, county, district, city or town, or that the same has been assessed at less than the law required, for any year, or that the taxes, levies, et cetera, thereon, for any cause, have not been realized, it shall be the duty of the commissioner of the revenue, examiner of records, or other assessing officer, to list the same, and assess persons, property (real, personal and mixed), and levies at the rate prescribed for that year, adding thereto interest at the rate of six per centum per annum.
“Provided however—
“(1) That all assessmehts of intangible personal property, money and incomes for State taxes prior to the year nineteen hundred and three shall be conclusively presumed to be full, true and correct.
“ (2) No municipal, county or district tax shall be levied or collected on any assessment of intangible personal property, money or incomes for taxes alleged to have been omitted from the assessments for the years prior to nineteen hundred and twelve.”
*692The heading of the section is, “Omitted taxes, levies, etc., how assessed.” The act relates to assessing officers only, and is intended to increase their powers of assessment, so as to include antecedent years. Plainly, however, this statute does not confer upon the boards of supervisors the power to make levies for the years that have passed. This power might be afforded by the General Assembly, but it should be clearly given, not derived by doubtful implication.
[16] The petition to rehear insists that this statute does afford to the supervisors the power to make a nunc pro tunc levy, as will appear from the following citations from the petition:
“We respectfully submit that section 508, as amended by the act of March 22, 1916 (Acts 1916, p. 826), both authorizes and requires a levy, if necessary, to enforce payment of omitted county and district levies for antecedent years back to and including the years 1912. * * *”
“That it also authorizes the board (i. e., the board of supervisors) to make a further levy for those years (1912, 1918, 1914) if a further levy were necessary. * * *”
“That the body of the act (Acts 1916) without reference to the second clause of the proviso authorizes such acts by the board of supervisors as may be necessary to give effect to the obvious purpose of the statute.”
We did not and do not find anything in the statute to justify these contentions. It is true that the word “levies” is used at several places in the body of the act, but it is in relation to and in connection with the powers and duties of assessing officers. These words so used, and used somewhat loosely and inaccurately, are not sufficient to support the construction that the General Assembly intended thereby to empower the boards of supervisors — the legislative bodies of the counties — to impose taxes upon property that had not been included in the levies of antecedent years. *693Hence, whatever may have been the intent of the orders of the board of Sussex county, of date December 20, 1917, and January 7, 1918, they are not “new orders laying levies upon bank stock for the years 1912-13-14.”
[17] Petitioner seeks to find supoprt for his contention, swpra, in proviso No. 2 of the act. The language used in this proviso is singularly inapt, if it was intended by such language to give the power to order a levy to any official, or tribunal. It is true that the word “levy” is used, but it plainly refers not to the legislative act of imposing a tax, but to the act of an officer collecting the tax tickets that are issued pursuant to an assessment. An officer holding such tickets levies same upon the property of delinquent taxpayers. The language of the proviso is, that “No municipal, county, or district tax shall be levied or collected on any assessment of intangible personal property,” etc., “for taxes alleged to have been omitted from the assessments prior to 1912.” Taxes are not “levied on assessments;” assessments are consequent upon levies, using the word “levies” to refer to the legislative act of imposing a tax. Obviously, this proviso means that if intangible personal property, alleged to have been omitted from the assessments for the years prior to the year 1912, is assessed, and tax tickets are made out pursuant to such assessments, such tickets shall not be levied and collected.
[18] The power of commisioners of the revenue to assess for omitted taxes in antecedent years is conceded in the opinion, in this case, but it was not considered that the act of 1916 empowered these officials to assess property not charged with a tax by some proper tribunal; and it is not now so considered.
[19] Petitioner to rehear renews its original contention that the word “may” in section 1040-a of the Code of 1904, is mandatory, and should be read “must.” For the purpose *694of this case, this contention was conceded in the opinion, but the mere mandate of the Constitution that taxes shall be laid on certain property by the General Assembly, or a board of supervisors, does not by itself impose the tax, though failure to do so may be a breach of duty by the officials charged therewith. Some positive action to that end must - be .taken by the legislative body, in this instance the board of supervisors. Hence, we entered upon the enquiry whether as a matter of fact bank stock was locally taxed for the years in question. The court concluded, for reasons given in the opinion, and which need not now be repeated, that this stock was not taxed for county purposes during these years. Hence, in our view of the statute of 1916, this stock could not be either taxed or assessed thereafter by the local officials of Sussex county under authority either of that or any other act.
The questions raised by the petition to rehear have been given careful consideration, but the conclusions heretofore reached in this case are believed to be sound, and to rest on reason and authority.
The petition is denied.
Rehearing denied.