Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-04-29
Supreme Court

First National Bank of Westhope, a
corporation, Plaintiff and Respondent.
VS.. J. NJ. Mesner and P. S. Hilleboe.
Defendants and Appellants.
!. A loan made by a national bank
Upon real estate security, although pro-
hibitcd by Section jl37, u. S. Statutes,
1873, is voidablc and not void, and the
sovereign alone can be heard to object.
Its ultra wires nature cannot be pleaded
as a defense by the debtor. s.E .
=. Where an agent to collect, III vlo-
lation OF his duty, releases notes and
securities for less than their face value,
he can be held liable in an action for
damages brought by his principal,
even though sach principal has not first
sought to collect the sum so RENTED
from the original debtor or to set
aside the release and to rc-assert his
lien in a court OF equity, upon the Sc
crritics. The principal is not required
to undo or tO seek to undo that which
his agent has voluntarily done.
3. In a suit by a principal against
an agent for damages arising ont OF an
unauthorized act. the complaint is not
required to negative a ratification by
such principal. The ratification, it any,
would be a matter Of defense.
1. Under the Code OF Civil Procedure
complaints are literally. and not strict
ly, construed, and the old rule that
.pleadings are to be interpreted strictly
against the pleader no longer obtain
tSyllabus by the Court.) ,j.,. S
Appeal from the District Court OF
Bottineau county. Burr. J.
Action to recover damages caused
by the alleged unauthorized act OF
plaintiffs agents, deieHqaHtsI i'll this
action. From an order overriding des.a
PENDANTS demNuy{M t8eAPea 2e499'RH1pla'6ssss
defendants appeal.
N " HtdtGGa & Xaf5HHa1sSSS1 .SSGii n%0t. N.
D., at'om1cS$id}or hAgis"bnts sapf APP
Bangs. Cooley Reclamation, Grandk
\. d., and SCoulc & Cooper,
Wcsthopc, n. D.. attorneys for plaintiff.
and respondent. i
Opinion OF the court by Bruce. J.,
Goss, J., did not participate, being dis
qualified. !
S. Kcrlin. Plaintiff and Appellant,
Us. City OF Devils. Peter J. McClory.
as Mayor OF the City of Devils Lake,
and S. c. Jones. as City Auditor OF
the City of Devils Lake, Defendants
and Respondents.
A special city election was held to
determine the question Of whether such
city would increase its debt limit and
bonds to establish a city light
plant. The election was held at II
voting place, instead Of hay
a place for voting in each ward
as all election precinct as required by
city special elections for years
had been usually held. A large vote
polled for a special election. Ample
opportunity vas afforded all electors to
vote. No fraud is alleged in the call
ing of. or in the conduct OF the cleo
lion. Held: -.
t. AS @by statute an election should
have been held in each ward the cleo
ion was irregular but not void.
>. Section l2l Of our Constitution,
rs amended, in defining the qualitica-
ions of an %clcctor, does not prescribe
l rule for voting. nor compel a quail
fed .elector to necessarily vote at a
place within the boundaries OF the
ward in which he resides, though every
ward is by statute a voting precinct.
3. Where the election is held as
,allcd for, at the places designated by
he lawful municipal authority. and is
regularly conducted and a fair and reg
ar canvass made of all votes cast. with
10 fraud charged, i'll the absence of a
expressly %invalidatirg the cleo
linn, it will be upheld.
1. General statutory registration re-
luircmcnts do not apply to a special
city election held for this purpose; the
details of registration are to be pro-
lided by municipal ordinance.
). Want Of registration at this spec
ial election did not invalidatc such cleo
ton in the absence of fraud or of a
Of illegal voting sufficient to
change the reSults ~ is jnnuIH9rl ou7
6. An! allegation that certain ihalned
illegally lfoted atssucl i,tiection,
without changing that changed the
election result, and whore insufficient tJt6l
fraud in t1ey conduct of the
election, does not c%natgcnfacts' sufficient
to invalidate the elect!en.ma f'iH .ntn,
Z. The official notice of the election
by publication was legally given. .
g.. A special election for such pur-
poses may be authorized either by res
or by ordinance. ygG 7,t
9. The ballot III stating the amount
Of the proposed bond issue; is. too i'll
definite where the amount is stated as
mot to exceed $33,O0O."
10. A dual question Of CD increase
in debt limit, and (2) bonding after
increase of debt limit, both for a stated
purpose, may be submitted upon the
ballot at one election if the form Of
the ballot permits such propositions to
be voted up on separately.
II. The fact that both Of the ques-
tons to be voted upon were, under the
form of the ballot, submitted jointly
instead of separately, did not prejudice
mislead the voter as to the question
of increasing the debt limit.
i. II. Although such election as abor-
tive insofar as it authorized the issu-
ance Of bonds, it wa valid insofar as
it authorized an increase of the debt
limit for such purposes.
Syllabus by the Court.
Appeal from the District Court Of
Ramsey County, Winchester. special j.
from an order vacating an injunctional
order.
Modified.