#### JOHN R. HAWES et al. v. COMMISSIONERS OF PENDER COUNTY.

(Filed 27 March, 1918.)

Stock Law — Taxes—Assessments—Real Property — Statutes—Injunction.

Revisal, sec. 1675, authorizes, upon certain conditions, “a tax upon the property holders within the district,” when withdrawing “from a stock-law district”; and section 1685 authorizes an “assessment” upon all real property, etc., for the purpose “of building stock-law fences” within counties “which may adopt the stock laws”; but an assessment by a county upon the real estate to build a fence for the purpose of keeping the stock in antistock-law territory from trespassing is unauthorized by law; and a restraining order should be continued and, under the facts of this case, made perpetual at the final hearing.

Appeal by defendants from Devin, J., at chambers in Wilmington on 12 December, 1917, continuing a restraining order to the final hearing.

G. D. Weelcs and G. E. McGullen for plaintiffs.

J. II. Burnett and John D. Bellamy <& Son for defendants.

Olabk, C. J.

This is an action by sundry citizens and taxpayers of Pender County and owners of real estate therein, alleging that the Board of Commissioners of Pender had levied an assessment upon all real estate within the boundaries of the county, excepting a part of Rocky Point Township, for the purpose of raising funds to construct a fence around the outer boundaries of said district, and would order the sheriff to collect the said assessment out of the real estate of said county.

The Court finds as a fact that the defendants have been restrained in another action pending in the Superior Court of Pender from levying a tax upon all the property, real and personal, located in the said district under authority of Revisal, 1675, as amended by chapter 99, Public-*269Local Laws 1917. Tbe validity of sucb “tax” is not before us in tbis proceeding.

Tbe court properly beld as a conclusion of law tbat “tbe Board of County Commissioners of Pender bave no lawful authority to levy sucb assessment upon tbe real estate of said district.”

There are only two statutes under which tbe commissioners of Pender could claim authority to levy tbis assessment, i. e., Revisal, 1675 and 1685. Revisal, 1675, provides tbat upon tbe conditions therein prescribed under which territory may be allowed to “withdraw from a stock-law district,” tbe expense incurred in changing tbe fence in sucb territory shall be provided for by “a tax upon tbe property holders within said district.” Tbat section certainly does not authorize tbe levy of an assessment which must be laid solely upon tbe real estate of tbe district benefited. ■ Tbe order herein enjoined does not levy a “tax” upon all “property holders.”

Revisal, 1685, does authorize tbe county commissioners to levy an assessment, but only for tbe purpose therein stated “of building stock-law fences,”' for which purpose “the board of commissioners of tbe county may levy and collect a special assessment upon all real property taxable by tbe State and county, within tbe county, township, or district which may adopt the stock lew).” Tbis is an assessment, but it is not for sucb purpose, and is, therefore, unauthorized. Tbis has been expressly beld. Harper v. CoMrs., 133 N. C., 114.

Tbe restraining order was properly continued to tbe final bearing, at which time, upon tbe admissions in tbe defendants’ answer, tbe injunction should be made perpetual.

Upon tbe merits of tbe stock-law and antistock-law controversy in tbe county of Pender, tbe Court has no authority nor desire to pass. Tbe sole question presented to us is whether there is any authority conferred by law upon tbe commissi oners of said county to pass tbe resolution levying an assessment upon real estate to build tbis fence for the purpose set out in tbe resolution of keeping tbe stock in an antistock-law territory from trespassing upon people in tbe adjoining counties of Duplin, Sampson, Bladen, Columbus, Brunswick and New Hanover and Rocky Point Township in Pender, in which tbe stock law prevails, and it is very clear tbat sucb authority is not conferred by any statute, and tbe judgment.of bis Honor is

Affirmed.