This is а controversy without action to determine the validity of a local assessment.
The .city of Charlotte, by virtue оf 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 cеnt of its taxable value, or $697 instead of $320, which is 20 per cent of such value.
•We do not understand the plaintiff to clаim 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, аnd 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 somе authority for his position, but we agree with the judge below, *437 and. we aró of opinion tbat tbe 20 per cent clausе in tbe charter is a limitation upon tbe power of tbe plaintiff, and tbat tbe attempted levy in excess therеof is a nullity.
Ordinarily, tbe defendant should have made in due season any objections be bad to tbe methods of prоcedure in assessing bis property, but tbat rule applies where tbe assessing board acts within tbe jurisdiction and not in viоlation of it.
Tbe doctrine is tersely and correctly stated in 28 Cyc., page 1668: “Levies in excess of a right or amоunt permitted bylaw are illegal and void, although if tbe taxes are separable, tbe excess only is invalid”; and аt 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 universаlly declared and admitted, tbat municipal corporations can levy no taxes, general, or speсial, 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,
“Tbe commissioners of an incorporatеd town have no right to impose any taxes but such as are expressly authorized by act of incorporation.”
Asheville v. Means,
To tbe same effect are
Pullen v. Commissioners,
Tbe fact tbat tbe lot is a corner lot, and in two improvement districts, is immaterial. It is tbe taxable value of the еntire lot tbat is to be considered in fixing tbe limit beyond which tbe assessment may not go. Tbe excess of 20 per cent *438 оf the assessment being void, under tbe charter of tbe plaintiff, tbe defendant may enjoin tbe collection of tbе 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 сent 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,
“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 аssessed, is void. Lot owners did not waive jurisdictional defects in proceedings for assessing special assessmеnts by failure to appear and object to tbe assessment, or failure to appeal from tbe ordеr of tbe council adopting tbe assessment resolution. Equity will grant relief by injunction against an assessment, void for want оf jurisdiction.”
Bennett v. City of Emmebsburg,
“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,
*439
To tbe same effect is
Paving Co. v. Verso,
Tbe judgment of tbe Superior Court is
Affirmed.