Opinion of the court by
Judge Settle
Reversing.
This is the second appeal in this case. The action was brought to recover in behalf of the city of Frankfort taxes alleged to be owing it by appellants on certain real estate for the years 1897 to 1905, inclusive, the payment of which the latter are resisting. On the first appeal this court, among other things, decided that the creation, assessment, and levy of the tax by the city of Frankfort must be presumed to be legal and correct, and that the burden of proving its illegality, if any, is upon the appellees. Board of Councilmen v. Morgan, 33 Ky. Law Rep. 297, 110 S. W. 286.
*180Various objections are made by appellees to tbe right of the city to collect the tax sued for, the principal one being that the levy for each year, exclusive of so much thereof as is to be applied to school purposes, is in excess of the limit fixed by section 157, state Constitution. In other words, that the rate of taxation adopted by the city in the levy of the taxes for which judgment is sought is greater than can be levied by a city of less than 10,000 population, and that the population of Frankfort is less than 10,000. Section 157 of the Constitution is as follows: “The tax rate of cities, towns, counties, taxing districts, and other municipalities, for other than school purposes, shall not at any time exceed the following rates upon the value of taxable property therein, viz.: For all towns or cities having a population of 15,000 or more, one dollar and fifty cents on the hundred dollars; for all towns or cities having less than 15,000, and not less than 10,000, one dollar on the hundred dollars; for all towns or cities having less than 10,000, seventy-five cents on the one hundred dollars, and for counties and taxing districts fifty cents on the $100.00; unless it should be necessary to enable such city, town, county or taxing district to pay the interest on, and provide a sinking fund for the indebtedness contracted before the adoption of the Constitution. # * *” Frankfort, by act of the Legislature, has been declared a city of the third class; and, while it may be true that its population is less than 10,000, and its tax rate for the years it is attempting to collect taxes of appellants was, exclusive of the tax for school purposes, in excess of 75 cents on the $100, it nevertheless had the right to exceed that rate, if the tax imposed was necessary to enable it to pay the interest on, and to provide a sinking fund for, an indebtedness contracted *181by tbe municipality before tbe adoption of tbe present Constitution, for section 157 of that instrument expressly confers such right. It is not alleged in appellant’s answer or either amendment thereto, nor does it appear from the evidence, that the tax, the collection of which is resisted, for any of the years claimed was not levied in part, or at least to the extent of the excess over 75 cents and the school tax, for the purpose of paying the interest on and providing a sinking fund to liquidate an indebtedness contracted by the appellee city before the adoption of the Constitution. In the absence of such an allegation and proof we will not indulge the presumption that the Constitution has been violated.
This conclusion makes it unnecessary for us to consider the grounds relied on by appellants to defeat the tax.
It appears, however, that the judgment of the circuit court improperly includes in the recovery the tax for the years 1897, 1898, 1899, 1900, and 1901. As the tax for each of these years was admittedly barred by the statute of limitations, it was error to include them in the judgment.
For this error alone the judgment is reversed, and cause remanded, that the court may enter a judgment to conform to this opinion.