81 S.E. 611 | N.C. | 1914
Controversy without action. From a judgment for the defendant, (436) the plaintiff appealed. 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 (
Section 7 of the amended charter provides as follows: "Providedfurther, 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." *390
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 percent 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, and we are of (437) opinion that the 20 per cent clause in the charter is a limitation upon the power of the plaintiff, and that the attempted levy in excess thereof is a nullity.
Ordinarily, the defendant should have made in due season any objections he had to the methods of procedure in assessing his property, but that rule applies where the assessing board acts within the jurisdiction and not in violation of it.
The doctrine is tersely and correctly stated in 28 Cyc., page 1668: "Levies in excess of a right or amount permitted by law are illegal and void, although if the taxes are separable, the excess only is invalid"; and at page 958 the same authority says: "The provisions of such charters or statutes must be complied with, or it will result that an order to make the improvement or an assessment to pay for the same is void." To the same effect is 27 A. and E. Enc., 612.
Judge Dillon in his great work on Municipal Corporations, sec. 1377, declares: "It is a principle universally declared and admitted, that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred." Our own Court has often enforced this well known principle.
In Winston v. Taylor,
"The 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,
To the same effect are Pullen v. Commissioners,
The fact that the lot is a corner lot, and in two improvement districts, is immaterial. It is the taxable value of the entire lot that is to be considered in fixing the limit beyond which the assessment may not go. The excess of 20 per cent of the assessment being void, under the charter of the plaintiff, the defendant may enjoin the collection (438) of the excess.
A void assessment is jurisdictional, and can be taken advantage of at any time when the assessment is sought to be enforced. The clause in section 8 as to appeals refers to matters of which the board had jurisdiction, such as passing upon the petition, laying out improvement districts, benefits accruing up to 20 per cent assessed valuation, etc., but not upon the 20 per cent limitation assessment. The charter fixed this, and the board had no jurisdiction to enlarge it.
In Spence v. Milwaukee, 113 N.W. 38, it is held that "One failing to avail himself of the right given by Milwaukee City charter to appear before the board of public works to correct defects in an assessment for benefits and damages, and of the right given by section 11 to appeal to the Circuit Court from a confirmation of the assessment, may sue in equity to set aside the assessment, notwithstanding section 12, providing that the right of appeal to the Circuit Court shall be the only remedy for the recovery of any damages, etc., and no action at law shall be maintained therefor."
"Where an assessment for benefits and damages is void, the remedy of a property owner is in equity, by injunction to set aside the assessment and to restrain the sale of the property."
"An assessment which includes items and amounts which 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 the assessment, or failure to appeal from the order of the council adopting the assessment resolution. Equity will grant relief by injunction against an assessment, void for want of jurisdiction." Bennettv. City of Emmetsburg, 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 the party would not be estopped to assert the invalidity of such an assessment, even if he were one of the petitioners for the improvement." Batty v. City of Hastings, 88 N.W., 139-40-1 (Neb.). *392
(439) To the same effect is Paving Co. v. Verso,
The judgment of the Superior Court is
Affirmed.
Cited: Charlotte v. Alexander,
