The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-05-11
Decisions of the Supreme Court

method, however, should be adopted
as a means of arriving at the benefits
and not as the sole criterion there
Of.
,. Section 2S01, r. c., 1905, requires
special assessments to be levied in
proportion to the benefits conferred.
The finding that a certain area will
require a certain number Of outlets
or can make a certain number of con-
nectiOnS with q sewer is not a finding
Of the extent TO which each lot or area
in a given district will be benefited by
the improvement.
3. Section 2801, r. c., 1905, requires
as a prerequisite to the levying Of an
assessment that the commissioners
shall personally inspect the property
to be assessed AND shall not only de-
termine the amount in which each lot
or parcel of land which is sought to be
assessed will be especially benefited
but shall make a complete list of such
benefits. Unless these things are first
done the commission has no power
or authority to levy an assessment nor
has the city council the power to con-
firm the same. On the hearing before
the board Of commissioners and the
city council, provided for by section
2S02 and 2S03, r. c., 1905, such boards
ia VIC lllS PO"Cl " ISNIC" IL l
errors in judgment and in computation
merely. They have no power to act
and their findings are not conclusive
IN cases where the commissioners have
not viewed the property and have not
made any specific findings of the bene-
fits n have adopted a method OF
procedure which is u"nwarranted by
the statutes.
4. An objection that an assessment
b9 hnnn T1.6n in q roannn~ which ic
not warranted by the statutes is not
waived by the failure to urge it before
the commissioners or the city council,
out may be relied upon and urged in a
subsequent suit in equity to restrain
the collection of the tax.
5. Generally speaking, a city coun-
Gil is the sole judge Of the necessity Of
sewers and of the efficiency, durability
and adaptab!lity Of those already in
existence. Its judgment, however, is
not conclusive in a case where a sewer
is in reasonably good repair and is
adequate to carry off the sewage and
drainage, both present and prospec-
tive, in the district in which it was Or
iginally constructed, and the construc-
ton of a new sewer is only necessary
because Of the needs of outlying dis
trictS.
6. The omission of property within
an assessment district from the as
SSSSiIINllI SdLlilOI NC III SCu dSdlllSL III
validity of the proceedings by ono
whose assessment is not increased by
reason Of such omission.
Z. Where, after the passage OF an
ordinance authorizing the construction
OF a sewer, an amendment is introduce
ed reducing the area Of the sewer dis :
trict, but by accident or mistake the
ordinance as passed increases instead
of reduces the area, but plats and
maps are fled with the city auditor
properly describing the cours Of said
sewer and said district, and the con-
tract for the construction of the sewer
is let in conformity herewith, and aft
Ell the construction Of the sewer and
before the levying Of the special as
sessment to pay therefor the ordinance
is amended so as to conform to the
proposed ami original amendment, a
property owner whose property has at
all times been included within the
areas covered, and who has made no
objection based upon the defect Of de-
scription either before the commits
sioners or the city council is not en-
titled to a decree in equity setting
aside and declaring invalid such as
Sessment.
s. Where the statute or charter re-
quires ordinances to be passed by a
yea and nay vote, an ordinance is not
invalid which is adopted with amends
ments by a yea and nay vote, even
though such amendments may have
been adopted by a viva voce vote
merely.
9. An cbtcctor will not be heard to
complain in an equity proceeding to
set aside a special assessment that the
ordinance upon which it was based
was placed Upon its second reading
and final passage by one and the same
vote. Such a proceeding Is, at the
most, irregular.
(Syllabus by the court.)
Appeal from the district court OF
Grand Forks county, Templeton, j.
Suit to restrain the collection of a
special assessment. Judgment for de-
Reversed. Opinion of the court by
Bruce, J.
Scott Rex. Grand Forks. N. D.. at
torney for plaintiff and appellant; j
B. Wineman, Grand Forks, N. D., and
o. B. Burtness, Grand Forks. N. D.. at
torney for defendants and respondents
Fred w. Vollmer, plaintiff and res
pendent, VS.. Robert Stregse, fenda
and appellant.
i. In an action to recover damage!
for criminal conversation plaintiff ant
his wife each testified to the fact o.
their marriage and such testimony II
Iuncontradicted.
Held, that such testimony was com
petent and sufficient to establish thu
marriage contract as alleged in thu
complaint.
2. Appellant challenges the correct
ness of certain instructions to thu
jury, but when such instructions ar
considered in the light Of the charge a.
a whole, and especially in the light o
the fact that the sole issue submitted t.
the jury was that of the extent o
. plaintiffs damages, they were non-pre
judicial to the defendant.
3. Defendant admitted upon the wit