The opinion
On Rehearing.
O’NIELL, J.
On reconsideration of the plaintiffs’ complaint, that the list of property taxpayers, by which the commissioners were governed in conducting this election, was made and furnished by an unauthorized person, we have concluded that, although no actual fraud has been shown in this case, our approval of the illegal or irregular proceedings by which this tax was imposed might establish an unwise and harmful precedent.
[5] Section 6 of Act No. 256 of 1910, under authority of which this election was held, provides:
“That it shall be the duty of the registrar of voters to furnish the commissioners appointed to hold such elections with the lists of taxpayers entitled to vote in person or by proxy at such elections, together with the valuation of each taxpayer’s property as shown by the assessment roll last made and filed prior to each' election; provided that, when any taxpayer’s name and valuation of property shall be omitted from such list or erroneously entered thereon the commissioners of election shall have authority to receive affidavits of such taxpayer’s right to vote and of the proper assessed valuation of his property, which affidavit shall be attached to such taxpayer’s ballot.”
The evidence discloses that a list of names, without any valuation of property, was furnished by a deputy clerk of court to the local superintendent of the public schools, who copied it, and, with the assistance of the assessor, put the assessed valuation of the property of each taxpayer on the copy of the list, and gave it to the commissioners of election. After this unauthorized list or copy of the list, containing only 28 names, furnished by the deputy clerk of court, was delivered to the commissioners, 10 names were added with a pencil by an unauthorized person. And it does not appear that the commissioners required any voter whose name was thus added to the list to furnish an affidavit of his right to vote.
This illegality in the proceedings warrants the annulment of the tax.
For the reasons assigned, our former decree is set aside, and the judgment appealed from is affirmed, at the cost of the appellant.
PROYOSTY, J., dissents, adhering to the original opinion.