the pleadings, but the question of the validity | struction, bonding, levying of final assessof which having been abandoned on appeal, the ment, or collection thereof, was begun. A contract is held valid, and the trial court's findtemporary restraining order was issued, but, ings in said respect confirmed. after hearing on affidavits, was dissolved. The work of construction was thereupon completed. Then trial on the merits was had of the issues involved and the action dismissed, and this appeal is from such dismissal.

[Ed. Note. For other cases, see Drains, Cent. Dig. §§ 84-87; Dec. Dig. § 82.*] 7. DRAINS (§ 92*)-ASSESSMENTS-NOTICE STATUTORY PROVISION.

Failure to post notice of time and place of review of special percentage assessments of benefits in one township of the three within the drainage area is held to be a noncompliance with section 1828, R. C. 1905, as amended by the Session Laws of 1907, rendering the proceedings as to review had in said township in

valid.

We are met with a motion by respondents to strike out the brief for want of assignments of error, and to dismiss the appeal and affirm the judgment for this and the additional claim that the case has, pending trial, [Ed. Note.-For other cases. see Drains, become moot, inasmuch as the original action Cent. Dig. §§ 84-87; Dec. Dig. § 82.*] was begun to restrain proceedings, and the 8. FINDINGS AFFIRMED JUDGMENT MODIFIED record shows that the matters sought to be AND AFFIRMED-NO COSTS. The findings of the lower court are affirm-restrained have, in the main, been fully pered as to the ditch being legally established and formed, so that the full relief prayed for canconstructed under a valid contract, and that not be granted. certain highways omitted from the attempted assessment of benefits by percentages were, under the evidence and the pleadings, properly omitted. But said judgment is modified to the extent that judgment will be entered, holding void the review had on the special assessment by percentages as to specific tracts in Rush River township within the drainage area of the ditch. No costs to be taxed or allowed to either party.

(Additional Syllabus by Editorial Staff.) 9. DRAINS (§ 30*)-ESTABLISHMENT-PRELIMINARY PROCEEDINGS-NOTICE.

The contention that the notice of preliminary hearing on the establishment of a drain did not contain a sufficient copy of the petition, because the names of the signers were omitted, will not be sustained.

[Ed. Note. For other cases, see Drains, Cent. Dig. §§ 25-28; Dec. Dig. § 30.*]

Appeal from District Court, Cass County; Pollock, Judge.

Action by S. M. Edwards and others against Cass County and others. From a judgment for defendants, plaintiffs appeal. Modified and affirmed.

McEnroe & Wood, of Fargo, for appellants. Ball, Watson, Young & Lawrence, of Fargo, for respondents.

GOSS, J. This action was brought by property owners to restrain the construction of a drain in Cass county, and to restrain further action by the drain board and board of county commissioners, county auditor, county treasurer, and contractors in the matter. The necessary petition for drain had been presented to the drainage board and by it acted upon, establishing the drain, after preliminary steps in the matter of survey, inspection, and location had been taken. The hearing to be had on the petition, provided by chapter 93, Session Laws 1907, was had. Right of way had been obtained. A special assessment of benefits, computed by percentages, had been determined upon and reviewed after hearing thereon. Contracts for construction had been let when this suit to restrain all further proceedings towards con

It is conceded, however, that no final assessment in specific amounts has ever been extended against the lands involved and within the drainage area, and to this extent, at least, an issue remains for determination. Accordingly, we will decide this controversy on the merits.

[1] Section 1821, R. C. 1905, as amended by chapter 93, Session Laws 1907, provides that on a petition for drain being presented to the drainage board that board shall cause a surveyor to prepare profiles, plans, and specifications and an estimate of the cost of the proposed project, accompanied by a map of the lands to be drained, all of which, embodied in a report, must be made in duplicate, one of such reports to be filed with the drainage board, and the other in the office of the county auditor, both for the inspection of the public. Prior to the amendment of 1907, but one set was required, and that was filed with the county auditor. The amending statute does not specify the exact time of the filing of the duplicate with the county auditor; but by necessary inference from the original statute (section 1821) it is to be filed with such official before the hearing afforded interested parties under the amended act concerning the feasibility of the project, and as to whether the benefits to be derived from the drain would exceed the cost thereof. The duplicate of the surveyor's report of his proceedings, required in ordinary procedure to be filed with the county auditor before the hearing on the question of the establishment of the drain, was not filed until some little time after such hearing had been had and the drain by order established. The duplicate required to be filed with the drainage board was filed with it before said hearing, and before the order was made, establishing the drain. And on this omission plaintiffs predicate error.

The law is settled in this state that upon the filing of a sufficient petition for drain with the drainage board jurisdiction is vested in that board to proceed with the drain petitioned for. Erickson v. Cass County, 11 N.

the posting; and certainly if posting of notices can afford notice the statute was here substantially complied with. We do not hold the giving of this notice to have been, under the 1907 statute, a jurisdictional prerequisite. Erickson v. Cass County, 11 N. D. 494–506, 92 N. W. 841; Alstad v. Sim, 15 N. D. 629, 109 N. W. 66; 2 Page & Jones on Taxation by Assessment, § 759, and cases cited.

D. 494, 92 N. W. 841; Turnquist v. Cass | distant in the post office at Argusville. We County, 11 N. D. 514, 92 N. W. 852; State ex do not construe the statute to require that rel. v. Fisk, Judge, 15 N. D. 219, 107 N. W. all the notices must be posted on the line of 191; Alstad v. Sim, 15 N. D. 629, 109 N. W. the proposed drain, but instead that the 66; Sim v. Rosholt, 16 N. D. 77, 112 N. W. board should consider, as provided by statute, 50, 11 L. R. A. (N. S.) 372-particularly the element of publicity to be derived from first and last two cases cited. See, also, Hackney v. Elliott, 137 N. W. 433, too recently decided to be yet officially reported. Prior to chapter 93, Session Laws 1907, providing for a hearing before the drainage board on notice to the parties whose lands are affected, the board acted without affording a public hearing. The object of the surveyor's report is to furnish information to those interested, and to perpetuate the rec[3] Appellants complain, also, that a cerord. For this purpose, it is to be filed with tain deed to right of way was not filed in the the auditor. The board derives its knowl-office of the county auditor in advance of the edge from personal inspection and from the apportionment of specific benefits by perduplicates filed with it, as well as from any centages. It appears that a contract for deed matters brought out on such preliminary for this portion of the right of way had been hearing. But the board is the court to pass executed; but the death of the landowner upon the necessity and feasibility of the pro- prevented the transfer of the right of way by posed drain. And we do not deem the fail- deed until appointment of an executor. The ure of an employé of the board, the surveyor, section 1841, R. C. 1905, classed as a mere conveyance was thereafter made. This is by to file his duplicate report, with profiles, irregularity or informality, which was cured plans, and specifications of the proposed drain and plat of the drainage area with the 629, 109 N. W. 66; Erickson v. Cass County, by the conveyance. Alstad v. Sim, 15 N. D. county auditor such an irregularity as should 11 N. D. 494, 92 N. W. 841. defeat the action of the board establishing [7] Appellants also assign error on failure the drain, especially in the absence of a show-to post the notice in Rush River township of ing of actual prejudice resulting therefrom the time and place of hearing on review of to the appellants. The duplicates were on apportionment of benefits in percentages as file with the drainage board and, under the to specific tracts. A portion of Rush River law, open to inspection; and it does not ap- township, all of which was more than six pear that appellants were denied the privi- miles from the drain, was determined as lege of inspection. Besides, by providing within the drainage area, and an apportionthat upon the board filing the surveyor's re- ment of benefits was made to property thereport it may proceed to hearing on the ques- in. No notice was posted in said township, tion of the establishment of the drain, the although more than the required number of statute by necessary inference, from the omis- notices were distributed among the other sion to require it not to proceed until the townships. Proper notice by publication was auditor should have on file a duplicate re- given in strict conformity with the statute port, authorizes the board to act on the sur- in such respect. Section 1828, as amended by veyor's report filed by and before it. the Session Laws of 1907, provides that after the completing of the percentage assessment the board shall give at least 10 days' notice of the time and place where it will meet parties for the purpose of letting contracts for construction. "Such notice shall be published in some newspaper of general circulation in the county and printed notices, not less than five in all, and at least one in each township or municipality interested in such drain shall be posted in such township and municipalities at such points as will be likely in the opinion of the board to secure the greatest publicity for such notice. Such notice shall also state that at the time and place of letting of contracts the assessment of benefits shall be subject to review unless such assessment has already been reviewed." Does the omission to post a notice in Rush River township invalidate the review of such special assessment? Respondents assert that, in order for the statute requiring the posting

[9] Equally technical is the assignment that the notice of the preliminary hearing on the establishment of the drain did not contain a sufficient copy of the petition, because the names of the signers thereof were omitted, although the notices contained a literal copy of the petition for drain, except the names or signatures of the petitioners were omitted.

[2] Appellants also urge that the statute as to posting of said notices was not complied with. It requires that "the board shall fix a date for hearing objections to the petition and shall give notice of such hearing by causing five notices to be posted along the line of the proposed drain at such points as will be likely, in the opinion of the board, to secure the greatest publicity." The requisite number of notices were posted, but were not all of them posted exactly "along the line of the proposed drain"; one being posted a mile

of notices in every township to be applicable, As to such hearing on review of special the township, as a legal entity, must be in- assessments, it is the all-important hearing terested in such drain, reasoning that the and day in court, so far as the taxpayersinhabitants with lands affected and within the landowners whose assessments thereby the drainage district are notified constructive- virtually became fixed for all time-are conly by the publication of the notice, while the cerned. This is the hearing which, with notownship, as such, is so notified by posting of tice thereof, constitutes due process of law notices in it, at least one of which must be in the levying of the assessment which may posted within each township within the result in deprivation of property. The Legisdrainage area. Such construction is hardly lature prescribes the notice taxpayers shall consistent with the reason for the posting as have to here comply with constitutional prostated in the statute to be "at such points as visions. Its declaration as to what shall conwill be likely in the opinion of the board to stitute legal and sufficient notice at this point secure the greatest publicity for such notice." and for such purposes is mandatory. 2 Page No need of publicity exists if the township & Jones on Assessment, §§ 729, 730, 732-735, only is to be bound by such posted notice. If 745-748, 756-759, the last section of which, notice to the township was all that was so in relation to this hearing, reads: "Service intended by posting, service on a township of- by posting notices in public and conspicuous ficer no doubt would have been required in- places, where the owners of property affected stead. And though the statute, strictly con- by the improvement would see them in the strued, might bear the interpretation con- ordinary course of events in going to and tended for, it reading: "And printed notices from their property, is a sufficient complinot less than five in all and at least one in ance with the constitutional rights of the each township or municipality interested in property owners; and after such service is such drain shall be posted in such township" made in compliance with the statutory proSuch service can, -we conclude it was not meant to be so in- visions it is sufficient. terpreted. It is identical in language in these however, be made only in substantial comrespects with Code, § 1828, which one of pliance with the provisions of the statute,. counsel urging this strict construction, in or it will be insufficient"-citing authority. Erickson v. Cass County, 11 N. D. 494, at Hamilton on Special Assessments, § 141 et page 506, 92 N. W. 841, at page 847, speaking

for the court, has aptly interpreted by the following: "Neither can the objection to the form of the notice of assessment and the sufficiency of the posting and publication of such notices be sustained. The record shows that the notice was published in a newspaper of general circulation 10 days prior to the hearing, and five printed copies of such notice were posted in the township traversed by the drain at such points as were likely, in the opinion of the board of drain commissioners, to secure the greatest publicity for such notices. This was a full compliance with the statute." While this question of construction was not there urged, yet the court there gave the correct interpretation of this statute as to notice to the parties affected.

seq.

Our conclusion is that the statute is man

datory; and for want of posting in Rush River township of the notice of review of assessment of benefits by percentages, as to specific tracts within said township and within the drainage area of the ditch in question, the proceeding had on review is

invalid.

[6] At the time this action was commenced, all proceedings subsequent to the review of the assessment were enjoined; but on dissolution of the injunction the work proceeded, and the drain was constructed, as the record discloses, under contract or contracts entered into after notice as required by section 1828, as amended by the Session Laws of 1907, notice of the entry of which contracts was given by the notice Respondents also urge that appellants are herein declared insufficient. Pending trial, estopped from urging want of notice, because said contract has become executed. If the they participated in the proceedings before legality of this contract has not become a the board on said hearing in review of the moot question, we will say, to put the matassessment of benefits by percentages as to ter beyond doubt as to where the board may specific tracts. Appellants' contention should commence in proceeding anew herein, that undoubtedly be sustained if it applied to all the invalidity of said contract is not deterof these plaintiffs; but the evidence does not mined by this decision. But rather that establish that Joseph Kelley, Carl Gangness, counsel by placing in issue, as they have in T. H. Cruden, P. J. Helland, William Blake, paragraph 12 of their complaint, the validity and Mrs. Hattie Gardner of these appellants of said contract, and on the particular participated or appeared before said board on grounds therein stated, and having on the the review of said assessment; nor probably trial failed in proof and here abandoned are other residents of Rush River township, said question adjudged against them in the aside from those defendants bound by ap-iower court by not assigning error thereon or pearance, foreclosed from asserting the in- mentioning the same in their brief, we affirm validity of the assessment as to lands within the findings of the trial court in this respect the drainage area and within Rush River and hold the contract under which construc

[4, 5] As to the assignments attacking the [8] We have passed upon all questions validity of the purported assessment by per- raised. And under section 1841, requiring the centages as confirmed after review, where- court to "on final hearing make such an orin appellants urge that the omission of cer- der in the premises as shall be just and tain highways from assessment invalidated equitable," we have determined the status of the same, our holding of the assessment in-proceedings, so that the drainage board may valid on other grounds obviates the necessity commence with the assessment of benefits of passing upon this question. We may by percentages as tentatively apportioned to state, however, that we see nothing in the specific tracts, and proceed anew with a reevidence to have invalidated the assessment view thereon, to be followed by such further on this ground. The trial court found that proceedings as are authorized by law in the any omissions of tracts from the assessment premises. And the judgment of the trial was done by the board "in good faith and court is in all things affirmed, except that upon substantial grounds, and that the as- portion thereof holding valid the review had sessment of benefits was made in good faith on the assessment of benefits by percentages and without fraudulent intent or purpose, as apportioned to specific tracts within the and was made after personal examination drainage area, which review is adjudged void of the lands in the drainage area and a con- as had upon insufficient notice; all proceedsideration of the levels theretofore made." ings concerning the drain in question to that Our conclusions are the same. Appellants point being confirmed, including the letting disclaim any fraudulent acts on the part of of the contract for the construction of the the board, and any such omissions are not drain. As so modified and affirmed, the case pleaded as purposely done to defraud. The is remanded, with directions that judgment benefits to be derived from the drain were be entered in accordance herewith. matters within the judgment of the drainage board; they being "the tribunal created by law and clothed with authority to make the same and pass upon the question of benefits. There is no allegation of fraud, and the determination of the board must therefore be accepted as conclusive." Turnquist v. Cass County Drain Commissioners, 11 N. D. 514-|porations, vol. 4, § 1440, and note citing De 518, 92 N. W. 852, 854; Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841; State ex rel. v. Fisk, 15 N. D. 219, 107 N. W. 191.

As the judgment herein ordered is not a recovery of all demands urged by either party, and as defendants are public officials, who were not willfully negligent, judgment against whom for costs could probably not be assessed as a part of the cost of construction of this drain (Dillon on Municipal Cor

Witt v. Rutherford, 57 N. J. Law, 619, 31 Atl. 228), we direct that no costs be taxed, and no judgment for costs be entered.

1. TAXATION (§ 542*)-VALIDITY-PROTEST-meeting "$800 for all town levy was agreed SUFFICIENCY.

Under the statutes of this state, the elec-auditor, they have a right to recover, even tors of a township, at the annual town meet- though the payments were voluntary. It ing, vote the amount of taxes to be raised would seem that any such rule, unless safefor the ensuing year, fixing the amount to guarded by statutes, would be very dangerous be raised for each of several purposes men- and clearly against public policy. There tioned in such statutes. After such vote the may be extreme cases justifying such a holdtown board makes the levies thus authorizing, as was the case in Woolley v. Staley, 39 ed, and their clerk certifies the levies (speci- Ohio St. 354, where a party paid a large sum fying the purposes thereof and amount levied under representation by the county auditor for each purpose) to the county auditor, ex- that it was collectible, when in fact no such cepting that he certifies the levy for road sum had been or could be levied. We are purposes to the several road overseers. The not called upon to pass on the question of taxes thus certified to the auditor go upon whether this money could have been recoverregular tax list, and are collected by the ed if the facts invalidating the tax did not

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes