#### W. B. NIXON v. CITY OF ASHEVILLE.

(Filed 2 July, 1930.)

(See Reynolds v. Asheville, ante, 212, and Penland v. Bryson City, ante, 140.)

Appeal by plaintiff from MacBae, Special Judge, at April Term, 1930, of BuNOOMbe.

Controversy without action submitted on an agreed statement of facts.

Judgment for defendant, from which the plaintiff appeals.

*218 R. M. ■Wells for plaintiff.

George Pennell, Charles N. Malone and Charles E. Jones for defendants.

Stacy, O. J.

This is a companion case, with a contrary decision in the court below, to Reynolds .v. Asheville, ante, 212, and is controlled by what was said in that case, the fact situations in the two cases being sufficiently similar to present no question of legal difference. Primarily, both cases involve the same principles of law.

There is this additional question: Plaintiff seeks to challenge the validity of the City Extension Act as not having been passed by the Legislature in the manner provided by Article II, section 14, of the State Constitution. That such is not necessary was decided in Lutterloh v. Fayetteville, 149 N. C., 65, 62 S. E., 758, and Penland v. Bryson City, ante, 140. But relieving the plaintiff of the tax would seem to take from him the right to insist on a determination of the constitutionality of the act.

Error.

ClaeksoN, J., dissents.