#### CITY OF CHARLOTTE v. W. R. BROWN.

(Filed 29 April, 1914.)

1. Municipal Corporation — Cities and Towns — Taxation—Street Improvements — Excessive Levy — Statutes—Equity—Injunction.

Where a municipality levies a special tax for street Improvements upon the land of an abutting owner in excess of that allowed by a statute applicable, the excess is a nullity and may be enjoined; and where the limitation prescribed is a certain per cent of the taxable value of the property, that valuation must control, whether the property lies upon one or several streets.

2. Municipal Corporations — Cities and Towns — Street Improvements —Excessive Levy — Statutes—Court’s Jurisdiction.

It is not required of the abutting owner of lands upon a street of a city to comply with the prescribed procedure of objecting, etc., to an excessive special levy upon his property for street improvements, when the excess is void under the statute, for such assessment is jurisdictional and can be taken advantage of by the owner, in respect to such excess, at any time it is sought to be enforced in the courts.

Appeal by plaintiff from Harding, J., at Spring. Term, 1914, of MECKLENBURG.

*436Controversy without action. From a judgment for the defendant, the plaintiff appealed.

Brenizer, Blade & Taylor for plaintiff.

Maxwell & Keerans for defendant.

Broww, J.

This is a controversy without action to determine the validity of a local assessment.

The .city of Charlotte, by virtue of its charter of 1911, section 7 (9-12), made a special assessment against the lot of the defendant, amounting to $697, located on the corner of East Boulevard and Cleveland Avenue, in the city of Charlotte, fronting 50 feet on East Boulevard, and running back 150 feet along Cleveland Avenue. The lot was included in two improvement districts. The frontage on East Boulevard was assessed at $268, and the depth fronting on Cleveland Avenue was assessed for $429, making the total sum assessed against said lot $697.

Section 7 of the amended charter provides as follows: "Provided further, that no assessment against any piece of property improved as in this act provided shall in any case' exceed the amount of special benefit to, or enhancement in value of, 20 per cent of the assessed taxable value thereof.”

The assessed taxable value of said lot was then, and is now, $1,600. Thus it appears that the plaintiff assessed the defendant’s lot at more than 43 per cent of its taxable value, or $697 instead of $320, which is 20 per cent of such value.

•We do not understand the plaintiff to claim any legal right to exceed the limit provided in the charter in making assessments of this character, but it is contended that the charter provides the procedure whereby the property owner’s rights are preserved, and that it was the duty of the defendant to avail himself of such method, and to appeal from the assessment, and that, failing to do so, he is now precluded from asserting his rights.

We admit that the learned counsel for the plaintiff has some authority for his position, but we agree with the judge below, *437and. we aró of opinion tbat tbe 20 per cent clause in tbe charter is a limitation upon tbe power of tbe plaintiff, and tbat tbe attempted levy in excess thereof is a nullity.

Ordinarily, tbe defendant should have made in due season any objections be bad to tbe methods of procedure in assessing bis property, but tbat rule applies where tbe assessing board acts within tbe jurisdiction and not in violation of it.

Tbe doctrine is tersely and correctly stated in 28 Cyc., page 1668: “Levies in excess of a right or amount permitted bylaw are illegal and void, although if tbe taxes are separable, tbe excess only is invalid”; and at page 958 tbe same authority says: “Tbe provisions of such charters or statutes must be complied with, or it will result tbat ap order to make tbe improvement or an assessment to pay for tbe same is void.” To tbe same effect is 27 A. and E. Enc., 612.

Judge Dillon in bis great work on Municipal Corporations, sec. 1377, declares: “It is a principle universally declared and admitted, tbat municipal corporations can levy no taxes, general, or special, upon tbe inhabitants or their property, unless tbe power be plainly and unmistakably conferred.” Our own Court has often enforced this well known principle.

In Winston v. Taylor, 99 N. C., 213, tbe Court says: “It is also clear tbat tbe authorities of tbe town can impose no taxes except as authorized by its charter.”

“Tbe commissioners of an incorporated town have no right to impose any taxes but such as are expressly authorized by act of incorporation.” Asheville v. Means, 29 N. C., 406.

To tbe same effect are Pullen v. Commissioners, 68 N. C., 451; S. v. Bean, 91 N. C., 554; Board v. County, 107 N. C., 110; S. v. Webbes, 109 N. C., 962; Barbee Asphalt Co. v. Watts, 26 So., 70; Cooley Taxation, p. 419; Bennett v. City oEmmetsburg, 115 N. W., 583.

Tbe fact tbat tbe lot is a corner lot, and in two improvement districts, is immaterial. It is tbe taxable value of the entire lot tbat is to be considered in fixing tbe limit beyond which tbe assessment may not go. Tbe excess of 20 per cent *438of the assessment being void, under tbe charter of tbe plaintiff, tbe defendant may enjoin tbe collection of tbe excess.

A void assessment is jurisdictional, and can be taken advantage of at any time when tbe assessment is sought to be enforced. Tbe clause in section 8 as to appeals refers to matters of wbicb tbe board bad jurisdiction, sucb as passing upon tbe petition, laying out improvement districts, benefits accruing up to 20 per cent assessed.valuation, etc., but not upon tbe 20 per cent limitation assessment. Tbe charter fixed this, and tbe board bad no jurisdiction to enlarge it.

In Spence v. Milwaukee, 113 N. W., 38, it is beld tbat “One failing to avail himself of tbe right given by Milwaukee City charter-to appear before tbe board of public works to correct defects in an assessment for benefits and damages, and of tbe right given by section 11 to appeal to tbe Circuit Court from a confirmation of tbe assessment, may sue in equity to set aside tbe assessment, notwithstanding section 12, providing tbat tbe right of appeal to the' Circuit Court shall be tbe only remedy for tbe recovery of any damages, etc., and no action at law'shall be maintained therefor.”

“Where an assessment for benefits'and damages is void, tbe remedy of a property owner is in equity, by injunction to set aside tbe assessment and to restrain tbe sale of tbe property.”

“An assessment which includes items and amounts wbicb could-not be legally assessed for, or is for an amount grossly in excess of -what could be legally assessed, is void. Lot owners did not waive jurisdictional defects in proceedings for assessing special assessments by failure to appear and object to tbe assessment, or failure to appeal from tbe order of tbe council adopting tbe assessment resolution. Equity will grant relief by injunction against an assessment, void for want of jurisdiction.” Bennett v. City of Emmebsburg, 115 N. W., 583-4-5-6-90 (Ia.).

“Delay in proceeding against a void special assessment does, not, of itself, amount to laches, and tbe party would not be estopped to assert tbe invalidity of sucb an assessment, even if be were one of tbe petitioners for tbe improvement.” Batty v. City of Hastings, 88 N. W., 139-40-1 (Neb.).

*439To tbe same effect is Paving Co. v. Verso, 107 Pac., 590; Ryan v. Altshal, 31 Pac., 340; In re Church, 66 N. Y., 395; Birdseye v. Village of Clyde, 55 N. E., 169 Ohio.

Tbe judgment of tbe Superior Court is

Affirmed.