The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-01-23

ment upon his land for the construc-
ton Of a sewer, he assumes the burden
of ~conclusively establishing that no
possible benefit from such sewer does
or can result to his land proportionate
to the cost thereof, and the fact is
not to be determined with reference
merely to the particular use to which
such ownersis devoting his property.
4. In arriving at the question Of
benefits in the case Of special assess
ments for sewers which are necessary
to the public health and to the pub
lie welfare, the actual relative values
Of the pieces of property affected is
not controlling. The main question is
whether the DIRECTORS land has been
benefited to the amount of the i'm
provement. .-
g.. Where due notice of and an OPP
portunity for the presentation Of OBJ
Jections and complaints are given by
the special assessment commissioners
and by the city council, and hearings
are had on which the petitioner or
objector urges, or has the opportunity
to urge, that such proposed assess
ment is in excess Of any and all bene-
fits derived and is unjust and unfair
as compared with other assessments,
and there Is no proof of fraud, the
decision of the council and of the
commission upon such matters must
be taken as final and c~onclusive; fol-
lowing State VS.. Fisk, Is N. D., 219,
107 N. w, 191.
s. The improper exemption Of prop
erty within an assessment district
from assessment does not render the
entire assessment void, but is an ir-
regularity merely which owners of
other property in the district, claim
ing to be injured. must urge before
the proper municipal authorities in
accordance with the provisions Of the
statute Or charter authorizing the fl
ing of objections, and if not so urged
cannot be relied upon after the i'm
provement has been completed to pro-
cure an annulment of the assessment
by a suit in equity.
Z. The city council, generally
speaking, are the sole judges of the
necessity Of new sewers and of the
efficiency, durability and a~daptability
OF those already in existence,
9. The mere fact that a city coun-
ell or board of special assessment
commissioners may have taken but
little time to consider objections upon
the actual hearing thereof, is not con-
elusive evidence of a lack Of a hear
, ing or OF due process Of law.
8. Where, after the passage Of an
ordinance authorizing the construc-
ton of a sewer, an amendment Is in
troduced reducing the area. of the
sewer district, but by accident or mis-
take the ordinances as passed increases
Instead Of reduces the area, but plats
and maps are filed with the city audi
tor properly describing the course of
said eve and said district, and the
contract for the construction of the
sewer is let in conformity Herewith.
and after the construction of the sew
er and before the levying of the spe-
clal assessment to pay therefor, the
ordinance Is amended SO as to con-
form to the proposed and original
amendment, a property owner whose
property has at all times been includ-
ed within the areas covered, and who
has made no objection based upon the
defect Of description either before the
| commissioners or the city council, will
not be permitted to raise such an OBJ
lection for the first time on the trial
Of a bill In equity to set aside and
declare invalid said assessment,
To-, Even though a city council may
haye created a sewer district it is
not obligatory upon it to assess prop
erty within such district. found not tic
be benefited by the Improvement.
IL. Where the statute or charter
requires ordinances to be passed by
yea and nay vote, an ordinance is no,
invalid which Is adopted with amend.
ments by a yea and nay vote, ever
though such amendments may have
been adopted by a viva voce vote
merely.
IL. An objector will not be heard
70 complain for the first time in ar
equity proceeding to set aside a spe.
cial assessment that the ordinance
upon which 1T was based was placed
upon it's second reading and flna
passage by one and the same vote
Such a proceeding is, at the most, ir.
regular n should be timely objected
to.
(Syllabus by the court).
Appeal from the district court o
Grand Forks county. Templeton, j..
Suit to restrain the collection of {
special assessment. Judgment for de.
PENDANT.
Affirmed, Opinion Of the court b,
Bruce, J..
Scott Rex, Grand Forks, N. D., at
torney for plaintiff and appellant.
]. y. Wineman, Grand Forks, N. ID.
and @, b. Burtness, Grand Forks, N
p attorneys for defendants and re-
spondents.