April, 1899.]

Opinion of the Court-HANEY, J.

It was the evident object of this legislation to clothe the civil township, as a public corporation, with power to supply its inhabitants with water for irrigation, domestic, and manufacturing purposes, and, under certain circumstances, for the purpose of filling lake beds, streams, and artificial reservoirs, by means of artesian wells. The construction of such wells necessarily involves expense, which is to be provided for by taxation and the issuing of bonds. The township is authorized to construct wells at the expense of its taxpayers, and to dispose of the water derived therefrom (1) by conducting it from each well to a tank, at a point in the public highway nearest thereto, wherein sufficient water shall be kept to supply the general public for watering stock and other domestic uses; (2) by furnishing it for irrigation and domestic use, defined to be household use, the supply of domestic animals, and watering trees, grass, flowers and shrubbery about the house of the consumer; and (3) under certain conditions, by furnishing it for manufacturing purposes. In brief, each township is authorized to construct and maintain a system of waterworks for the use and benefit of residents and property owners within its limits, and for the use and benefit of all persons who may have occasion to travel its highways. In view of the want of moisture frequently observed in the so-called "Artesian Basin" of this state, the object sought by the legislation would seem to be highly commendable.

The only important question presented is whether a civil township corporation can, under the constitution, be clothed with power to construct and maintain a system of waterworks adapted to the needs and conditions prevailing within its boundaries. We are not called upon to decide whether or not the

[11 S. D

Opinion of the Court-HANEY, J.

law contains any particular provision which conflicts with the constitution, or which is not embraced within the title of the original act; but is the law, as amended, in its entirety, void for the reason that the legislature is forbidden by the constitution from conferring upon civil-township, corporations the power to establish waterworks at the expense of their taxpayers? It would startle the profession and general public to suggest that an incorporated city in this state cannot be authoriz ed to construct waterworks by means of an artesion well. Assuming (what is extremely doubtful) that Article 10 of the constitution was intended to apply to civil townships, the only limitation upon legislative power therein, affecting the proposition under discussion, is that "no tax or assessment shall be levied or collected, or debt contracted by municipal corporations, except in pursuance of law for public purposes specified by law." It will not be contended that an incorporated city may not expend its revenues in securing a water supply by sinking one or more artesian wells. It would be difficult to imagine any method of expending its revenues for a more strictly public purpose. What possible distinction can be drawn between a city and township in this respect? The powers which may be conferred upon a public corporation are not dependent upon the number or occupations of its inhabitants. It is quite as necessary and proper that people living in a civil township should have a sufficient supply of wholesome water for domestic uses as that people residing in an incorporated town or city should have such supply. We are aware of no constitutional provision which precludes the legislature from authorizing either of these classes of corporations to expend their revenues in supplying their inhabitants with

April, 1899.]

Opinion of the Court-HANEY, J.

water for all the uses named in the law under consideration, with the possible exception of manufacturing purposes; and upon that feaure of the law we express no opinion at this time. The maintaining of a public water tank, as provided for in the act, is in itself a sufficient benefit to all the taxpayers of a civil township to warrant the construction of an artesian well at the public expense. Under the law, those who derive a special benefit (as is the case with citizens of an incorporated city) from using the water in their houses and upon their lands are required to pay a presumably reasonable compensation for the privilege; the revenues derived from this source being applied in payment of the cost of the wells, and other expenses connected therewith. We think the law, so far as it authorizes civil townships to issue bonds and levy taxes for the purpose of constructing artesian wells, is clearly constitutional, and was so as the constitution was when this action was commenced. The title of the 1891 act is as follows: "An act authorizing civil townships to sink artesian wells for public purposes and to issue bonds therefor." This is clearly sufficient to sustain the substantial features of the act, and the title of the amendatory act is unobjectionable. State v. Morgan, 2 S. D. 32, 48 N. W. 314. The judgment of the circuit court is affirmed.

HOLT V. METROPOLITAN TRUST CO. OF CITY OF NEW YORK et al.

Comp. Laws, SS 3281, 3288; provide that an acknowledgment of an instrument executed by a corporation must not be taken unless the officer taking it knows, or has satisfactory evidence on the oath or affirmation of a credible witness, that the person making such acknowledgment is the president or secretary of such corporation, and that an officer taking the acknowledgement of an instrument must indorse thereon or attach thereto a certificate stating that the person signing the same was known to him (or so proved) to be the president (or secretary) of the corporation that executed the instrument. Held, that a certificate is insufficient which recites the acknowledgement of two persons, "to me personally known to be the identical persons whose names are subscribed to the foregoing instrument as president and secretary" of a corporation party.

(Opinion filed April 4, 1899.)

Appeal from circuit court, Minnehaha county. Hon. J. W. JONES, Judge.

Action by Nellie Holt against the Metropolitan Trust Company of the City of New York, trustee, and others, to attack the validity of foreclosure proceedings. From an order overruling demurrer of defendant trust company, it appeals. Af firmed.

The facts are stated in the opinion.

Milchrist & Robinson and Aikens, Bailey & Voorhees, for appellant.

The certificate of acknowledgment of the notary to the assignment of mortgage from the Fidelity Loan and Trust Company to the defendant and appellant was sufficient. Wilson v. Russell, 4 Dak. 376; Wilbur v. Nelson, 86 Ia. 453; Bennett v. Knowles, 68 N. W. 111; Morse v. Beals, 68 Ia. 463; Blockstein

April, 1899.]

Opinion of the Court-HANEY, J.

v. Iowa Homestead Co., 39 Ia. 624; Underhill v. Santa Barbara, 28 Pac. 1044; Brunswicke v. Brockett, 37 Minn. 58; Carpenter v. Dexter, 8 Wall. 513; Brooks v. Chaplin, 3 Vt. 281; Chandler v. Spear, 22 Vt. 388; Sanford v. Bulkley, 30 Conn. 344; Kelly v. Calhoun, 95 U. S. 710; Russ v. Wingate, 30 Miss. 440; Morse v. Clayton, 13 Smed. & M. 373; Elwood v. Flannigan 104 U. S. 562; Hunt v. Johnson, 19 N. Y. 279; Bradford v. Dawson, 2 Ala. 203; Juloway v. Gault, 20 Ark. 190; Vance v. Schuyler, 6 Ill. 160; Calumet &c. v. Russell, 68 Ill. 426; Schley v. Pullman Car Co., 120 U. S. 575; Burbank v. Ellis, 7 Neb. 156. The assignment of mortgage was not defective from the fact that it was executed "Joseph Sampson, president; John C. French, secretary" instead of "Fidelity Loan and Trust Company, by Joseph Sampson, &c." Underhill v. Santa Barbara, &c., 93 Cal. 300, 28 Pac. 1049.

J. W. Boyce, for respondent.

The certificate of acknowledgment to the assignment of mortgage was fatally defective and did not entitle the same to be placed of record. Comp. Laws, §§ 3269, 3288; Cannon v. Deming, 3 S. D. 421; Smith v. Gordon, 28 Wis. 685; Hibs v. La Flesh, 59 Wis. 465; Smith v. Hunt, 13 Ohio 260; Hayden v. Westcott, 11 Conn. 129.

HANEY, J. This appeal involves the validity of a real estate mortgage foreclosure by advertisement. It seems to be conceded by counsel that the validity of the foreclosure proceeding depends upon the sufficiency of the certificate of acknowledgment of a certain assignment of the mortgage which was recorded in the proper county. Such assignment and certificate are as follows: