Page:North Dakota Reports (vol. 3).pdf/95

 ordinance, i. e., § 3 of ch. 6, supra. Standing alone, the amendment is meaningless, and wholly incapable of enforcement. It is obvious that the amendment would not have been adopted as.an independent law. Under such circumstances, the amendment must be held to be null and void. Cooley, Const. Lim. (6th Ed.) pp. 211, 212. As has been seen, the power to levy the city taxes for general purposes is, by the charter as well as by an ordinance of the city, conferred in express terms upon the “mayor and council.”

The trial court found as a fact, upon sufficient evidence, that the mayor and council did not in 1884, levy any city taxes. The undisputed testimony discloses that the council met at the proper time, and that all members were present. The council by resolution in proper form then levied the taxes for 1884, as far as the council could make such levy by its separate action. But this evidence is fatally insufficient to establish the fact of a tax levy by the “mayor and council.” The testimony offered, i. e., the record of the proceedings of the council, refers only to the action of the council, and in no way relates to the action of the mayor. So far as the evidence discloses, the mayor never participated in the levy in any manner, and never assented to or became aware of the action of the council in the premises. Nor are we at liberty to indulge the presumption that a vital step in the tax levy was in fact taken when there was no evidence offered to show that such step was taken, and where the evidence put in to show the levy falls short of doing so. We cannot assume without proof that other and further proceedings were had. The burden to show a valid levy by the “mayor and council” was with the defendant, and he failed to show such levy. It is elementary in tax law that essential steps in laying a tax must appear by some record. Such steps cannot be shown by parol. In this case no parol evidence of the fact was offered. Powers v. Larabee, 2 N. D. 141; 49 N. W. Rep. 724. The proof offered wholly fails to show a valid levy of the city tax in question, and we therefore rule that the alleged city tax for which the lots were sold was void. A levy by the