Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-11-14

involved in this case by the board of
drain commissioners, which are OBJ
jected to by the appellants and are re-
ferred to in the opinion, contributed to
the construction of the drain and were
legitimate charges under section 1856,
Revised Codes, which authorizes said
board to include in the cost of drains
such expenes az contribute to their es-
adjustment, construction and main
tenance.
It is held that the assessments au-
thorized to be imposed upon land by
section 1852, Revised Codes, are for
benefits which are special to the land
assessed and are what are commonly
termed conjectural or speculative BEN
efits.
A court of equity will not extend its
extraordinary remedy of injunction to
prevent the collection of assessments
for benefits imposed to pay the cost of
constructing drains when the parties
seeking such relief have been actively
Or implicitly consenting parties to it's
construction and to. the proceedings
which led to the assessments whether
such assessments are legally valid or
not; and in such actions parties who
have petitioned for and induced the
construction of drains cannot be heard
to question either the constitutionality
of the law under which the drain was
constructed or the legality of the pro-
ceedings taken hereunder for the pur-
pose of defeating the assessments.
1t is held on the facts detailed in the
opinion that the plaintiffs are estopped
from asserting the invalidity of the as
sessments imposed upon their lands by
the board of drain commissioners of
Cass county to defray the cost of the
constructing Argusville Drain No. 10.
Chapter 25, laws of 1901, entitled
An act to provide for the allowance
and taxation of costs for additional at
torneys fees against the defendants in
actions Ito enjoin drainage proceedings
or the levy and collection of taxes and
assessments therefor" is invalid under.
section 81 of the state constitution for
the reason that the real subject of the
act, which is the allowance and taxa
Etion of additional ATTORNEYS fees
against the plaintiffs in such actions is
not expressed in the title"
The opinion in the case was written
by Justice Young. ., ..
The judgment of the district court
is affirmed also in the case of Andrew
TurnQuist VS.. the Cass County Drain
Commissioners, ct al. This is one of
nineteen cases instituted to vacate and
enjoin certain assessments made by
the drain commissioners for the cost of
Rush River Drain No. u and HARDWOOD
Drain No. ?. In this case also the le-
gality and validity of the steps taken
under the drainage law are upheld.
The syllabus in the Turnquist de-
cision is as follows:
Courts will not inquire into and de-
termine the constitutionality of statu-
tory provisions at the instance of per
sons who are not interested or affected
by such provisions. (Following State
VS.. Donovan, 10 N. D.. 2O3, Sc N. w.
7O9.
The authority of members of a board
of drain commissioners is Joint and
under the provisions of section $40,
Revised Codes, a majority of the mem
bers of such board constitute a ouor-
UNI legally competent to act 1t is ac-
cordingly held in an action to enioin
the collection of certain assessments
Laid by the board of drain commission
ers of Cass county to defray the cost
of constructing two certain drains that
the fact that a part of the proceedings
relating ITO such drains were taken by
only two members of the board does
not affect their validity
1t is also held. in this action. in
which it is u%ndisputed that the board
acquired jurisdiction to construct the
drains by the filing of proper petitions
therefor and that due notice of the
hearing of the review of assessments
was given, there being no allegation of
fraud, that the determination of the
board upon the assessment of benefits
is conclusive
1t is further held on the facts stated
in the opinion that the plaintiff is
estopped from alleging the invalidity
of the proceedings of the drainage
board in a court of equity for the pur-
pose of enjoining the collection of the
assessments.
Chapter 25, laws OF 1895, which pro-
vides for the allowance and taxation Of
an additional attorneys fee against
plaintiffs in actions to enjoin drainage
assessments is unconstitutional and
void, for the reason that the subject of
the act is not expressed in its title