5972), and therefore the court below, in deciding the motion to vacate the judgment, had and could lawfully exercise the discretion conferred upon district courts by section 5298 of the Revised Codes. That section provides that said court may, "in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect." This language clearly confers the requisite authority upon the district court, in furtherance of justice, to relieve a party from a judgment in any case where the same was taken against him through "his mistake, inadvertence, surprise of excusable neglect." Therefore the question left for determination is one of fact, viz., whether the trial court erred in ruling that the judgment in this case was so taken. In deciding this question it should be premised that, where an application to vacate a judgment or order is not based upon irregularities of procedure, but is placed exclusively upon the ground of mistake, surprise, inadvertence, or excusable neglect of the moving party, such application, under the authorities, is an appeal to the favor, and is not in the nature of an application based upon a strict legal right. In such cases the application invokes the sound judicial discretion of the court to which it is addressed, and in all such cases, it is well settled that there can be no reversal of the ruling of the court below by a reviewing court, except where the court of review finds that the trial court abused the discretion vested in it by the law. The mere fact that the appellate court does not entirely agree with the court of original jurisdiction in its rulings does not suffice to show a cause of abuse of discretion within the meaning of the authorities. This court had occasion to state and apply this wellestablished rule of practice in the case of Manufacturing Co. v. Holz, 10 N. D. 16, 84 N. W. Rep. 581. That was a case where judgment was entered by default against a defendant who subsequently made application to vacate the judgment, and in doing so the defendant. submitted affidavits to show that his default was excusable under the facts shown. In that case this court said: "We acquiesce in this proposition of counsel to the extent of holding that the appellants' case does not rest upon any strict legal right, but, on the contrary, does rest upon an appeal to the favor, and is therefore addressed to the judicial discretion of the court below." The statute authorizing the trial court to grant relief as against judgments and orders entered by inadvertence, mistake, or excusable neglect is highly remedial, and has received at the hands of the courts a very liberal construction. See Buell v. Emerich, 85 Cal. 116, 24 Pac. Rep. 644. As to the distinction between cases which appeal to the favor of the trial court and those where the application is based upon a strict legal right. See Nichells v. Nichells, 5 N. D. 125, 64 N. W. Rep. 73, 33 L. R. A. 515. 57 Am. St. Rep. 540. See, also, Garr, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. Rep. 867.

The final question presented is, therefore, whether the vacating

order is one involving an abuse of discretion on the part of the trial court. Unless it is such, this court, under an established rule of practice in this and other courts, cannot disturb the ruling of the court below upon which court the statute, by its terms, devolves a discretion in this class of cases. It is our opinion that the order does. not embody an abuse of discretion, and we are led to this conclusion by considerations which inhere in the very nature of the subjectmatter involved in the litigation. It appears that the city council deemed it to be necessary to acquire the land in question for a public use, viz., for an improvement to Seventh avenue north. But the acquisition of the land involved either its purchase by a contract of purchase and sale or a condemnation of the land under the power of eminent domain. The testimony shows that on December 2, 1901, the city attorney advised the city council to the effect that the title could only be acquired by a condemnation proceeding. The grounds of his advice are not stated, but, if it was intended thereby to advise the city council, in substance, that certain obstacles of a legal and financial nature then existed which would prevent the city from buying the land and paying for the same at that time, then we have no hesitancy in saying, upon the existing facts as shown by the testimony, that such advice was sound, and that none other would have been proper under the circumstances. The contemplated improvement of Seventh avenue north was to be costly, and to include a large outlay of money. The first item of such expense would be the amount necessary to be paid for the land itself, which land, it appears, is worth $5,000. If this expense was to be paid out of the city treasury, and from funds derived from the general revenues of the city, the statute required that an appropriation for such improvement should have been embraced as an item in the annual appropriation bill, which bill the statute requires to be enacted by the council in the form of an ordinance. See Rev. Codes 1899, §§ 2262, 2263. Section 2262 declares that such appropriation bill "shall specify the purposes for which such appropriations are made and the amount appropriated for each purpose"; and section 2263, referring to imimprovements particularly, declares: "and no expenditure for an improvement to be paid for out of the general fund of the corporation shall exceed in any one year the amount provided for such improvement in the annual appropriation bill." The exceptions mentioned in this section have no application to this case. No claim is made that the annual appropriation bill for the fiscal year in question embraced an item which in terms covered the purchase money of the land in question, nor was the contemplated improvement mentioned. in terms or at all in the annual appropriation bill. It does appear that said bill embraced an appropriation of $6,500 for "streets and bridges," and the appellant's counsel contend that this item, or so much thereof as was unexpended, was available, and could have been been used in paying for the land in question. But in this construction of the statute we cannot concur. We think the words "streets and bridges," found in the appropriation bill, have reference

only to the usual and ordinary items of expense which are incident to a proper maintenance and preservation of the streets and bridges. within the city. It is clear that the phrase"streets and bridges" does not import or suggest any costly improvement of an unusual and extraordinary character, such as that in question, and which involved buying and paying for an entire addition to the city of Fargo, embracing 14 city lots, worth $5,000. The purpose of the statute is to inform the taxpayers in advance, and before the appropriation bill is finally passed, fully and specifically what items of expense are contemplated, and for which a tax is to be levied. Among the items which may be embraced in the annual bill the statute singles out "improvements." This was clearly done to make appropriations, at least for large and costly improvements, separate items, to stand upon their independent merits. See, upon this point, Engstad v. Dinnie, 8 N. D. 1, 76 N. W. Rep. 292. In that case the court said: "The statute differentiates improvements from ordinary expenses, and places them in a class by themselves." It appears, therefore, that on December 10, 1901, and on March 3, 1902, there was no fund in the city treasury out of which the land could have been lawfully paid for.

But it is also our opinion, upon this record, that the city council did not at any time in question contemplate paying for this land out of the general revenues of the city. The very terms of both of the resolutions adopted by the council point to a contrary conclusion The resolutions are above set out, and the important language in each is as follows: That of December 10, 1901, declares: "That it is necessary to the well-being of said city and the citizens thereof and particularly to those people who live along and adjacent to Seventh avenue north, that the said Seventh avenue be opened its full width as a street." The language of the resolution of March 3, 1902, is: "Be it resolved by the mayor and common council of the city of Fargo that it is necessary and essential to the well-being and growth of said city, and particularly to the persons residing along Seventh avenue north and adjacent thereto, that said Seventh avenue which is now only forty feet in width, be opened and widened forty feet more." These resolutions were both before the referees in this action. That first adopted was set out in the complaint, and admitted. in the answers, and that of March 3d was offered by the city attorney, and received in evidence without objection. We discover no essential differences in the terms of these resolutions; but it appears that the former was never published, and that the latter was published for four weeks in the official newspaper of the city, but such publication did not begin until the next day after the entry of judgment in this action. As has been suggested, the terms of these resolutions lead to the conclusions that the city council at no time contemplated paying for the land in question out of the general fund of the city. On the contrary, it is quite evident from their language that the resolutions were framed with express reference to the re

quirements of section 2279 of the Revised Codes, which section governs in all cases where the expense of a contemplated street improvement is to be met by a special assessment to be made upon adjoining property. In a case where a special assessment is to be levied, this section provides that: "The city council shall, by resolution, declare such work or improvement necessary to be done, and such resolution shall be published for four consecutive weeks at least once a week in the official newspaper of the city." We find no other provision of the statute, and none has been cited, which requires the city council to pass any similar resolution in a case where the expense of a contemplated street improvement is to be paid out of the general fund in the city treasury. Any such resolution, therefore, would be superfluous, and of no binding force, where the expense of a proposed improvement is to be met out of our funds raised by general taxation. Nevertheless, the city attorney did not delay the institution of this action until the resolution of December Ioth could be published, nor until taxpayers owning adjoining property to be specially assessed were offered an opportunity to file with the city auditor a written protest against the improvement proposed, as such taxpayers would have had a right to do, under the provisions of section 2279, if the resolution had been published as required by that section. It is further true that the complaint in this action does not contemplate any assessment as against the owners of the adjoining land, who are the parties which the resolution declares are particularly concerned in the proposed improvement; nor did the court, by its judgment, assess the damages or apportion the cost of the improvement as between those particularly interested in the street improvement in manner and form as provided by section 2454, Rev. Codes 1899.

Finally, the fact stands out clearly that this action was prematurely brought, in this: that it was instituted by the city attorney before the taxpayers especially interested in the improvement had an opportunity to file a protest against the improvement so proposed and declared to be necessary by the council. It is equally plain that the trial court omitted, in entering its judgment, to assess the damages as between the taxpayers particularly interested, viz., those who, under the theory of the resolutions of the council, would be required to pay the damages arising from the condemnation of the land for street purposes. That the action was prematurely commenced, and the judgment entered by inadvertence and mistake, is, therefore, obvious. The council did not authorize the institution of any action in which it would be legally possible to enter a judgment in a lump sum to be paid out of the city's funds. On the contrary, the tenor and purport of its resolutions point only to a judgment requiring a special assessment as against parties particularly interested in the improvement to be made. It was, therefore, either a mistake or inadvertence or both to ask for and to obtain the judgment actually entered. Nor could this judgment, in our opinion, ever be collected by any legal

process whatever. It is not the policy or the province of courts to compel the payment of judgments which are entered by mistake and inadvertence, and which, if paid, would involve the disbursement of public funds in direct violation of positive provisions of the statute. The order setting aside the judgment was, therefore, a proper order. and manifestly was not an abuse of discretion.

But the motion costs,-$10,-imposed upon the defendants as terms, is clearly an error. The city was at fault, and by its motion to vacate the judgment upon the grounds of its mistake or inadvertence the city appealed to the favor of the trial court. It might have been just to impose terms as against the city as a condition of granting the favor asked of the trial court. The judgment having been regularly entered in due course, and in accordance with the practice of the district court in such cases, and entered by a court having jurisdiction, the application to vacate the same was clearly an appeal to the favor.

The order appealed from is sustained, except as to the item of motion costs. All the judges concurring.

(92 N. W. Rep. 836.)

ERICKSON et al. vs. CASS COUNTY et al.

Drainage Act-Due Process of Law.

Chapter 51, Laws 1895, as amended by chapter 79, Laws 1899. now embodied in chapter 21 of the Political Code, Rev. Codes, 1899, and embracing sections 1444 to 1474, inclusive, known as the "Drainage Law," provides a hearing for landowners upon notice before assessments for benefits become final, and it is not, therefore, vulnerable to the objection that it deprives such owners of their property without due prcess of law.

Title of Act.

The amendatory act, chapter 79, Laws 1899, entitled "An act to amend section * * * 1466 of the Revised Codes, relating to the establishment, construction and maintenance of drains," does not violate section 61 of the state constitution, which provides that “no bill shall embrace more than one subject, which shall be expressed in its title.

Amendment of Statute.

It is not necessary that the provisions embodied in an amendment to a section of a statute shall relate directly to the particular provisions contained in the section amended. It is sufficient if the subject-matter of the amendment is germane to the subject of the act of which the amended section is a part, and is within the title of the original act.

Issuance of Bonds.

Landowners who are assessed for benefits under this act are not deprived of their property without due process of law by the issu