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urn ft I- m: :m 'i •Ml I :*m\ P.W M$ Supreme Court I- W I I I In the Supreme Court, State of North Dakota, October Term, 1911. Li. S. Hackney, Plaintiff and (Appellant, vs. W. J. Elliott, Defendant and Respond ent ACt« *&§•?¥• i$±k This 1B an action to cancel tax cer tificates on sale for special drainage assessments arising from the tri-ings country drain in 'Ransom, Sargent and (Richland counties, on non-payment of which assessments plaintiff's- lands were sold. HELD: •1. That the petition for drainage presented to the Richland county drainage board was sufficient to con fer jurisdiction upon said board to (a) Our drainage statutes were ad opted from the Michigan drainage statutes in force In 1893. (b) A petition tor drainage of ag ricultural lands need not contain an averment of the necessity for the pro posed drain, nor that it will drain ag ricultural lands, nor that the signers thereto are freeholders whose lands will be affected by the proposed drain, nor other than a general description with beginning and end of the course of the proposed drain. Upon the board finding the existence of seces elty for the drain, and that the peti tion was signed by a sufficient num ber of qualified petitioners, and with eachfindingbased upbs a survey had of the course of the drain and estab lishment of its commencement, ter minus, route, width and depth there of, and after the preparation and fil ing of profiles, plans, specifications, estimates of cost and map or plat of the land's to be drained, and a finding that the benefits to be derived will exceed the total cost of construction thereof the drainage board is then authorised by law to construct said drain, such finding curing detects in the petition because of its failure to designate the purpose thereof and that the same will result to the bene fit of the health, convenience or wel fare, or show that the signers thereof are legally qualified as such. (c) In determining the sufficiency of die petition to confer Jurisdiction to act thereunder the drainage board may take judicial notice of and con aider with said petition the fact that the course of the drain as petitioned for will traverse agricultural lands, «n also of the character of another drain of which the petition recites the one petitioned for would be but a continuation of, and of all such other matters rf location, place, distance, extent, area, topography and general condition, of lands within its county asa court would be authorised to take judicial notice of under Code Sees. 7MS and 7tlf. Where the order establishing a drain makes reference to the sor Teyor** minutes of a survey, profiles, plant and specifications filed with the county auditor, these may he consid ered with and as supplementing the description contained in the order es -•t tabHsbing sack drain. In opening the season with our first Market Day Sale we are giving unusual bargains. LAWNS AND DIMITIES One lot plain and fancy lawns and dimities that sold at 18c to 22e per yard, Market Day Sale, 12 l-2c. 15 E A E 10 A 50 pieces light and dark percales, good 15c qual ity. Market Day Sale, 10c. 18c A A E A O 1 2 600 yards light and dark galatea cloth, nothing better for school wear, 18c quality, Market Day Sale, 12 l-2c. 15c E S S GINGHAMS 10 75 pieces dress ginghams, all this season's goods, regular 15c values, Market Day Sale 10c. 15c CAMBRI 10 500 yards Cambric, yard wide, 15c quality, 10 yards limit to customers, Market Day Sale, per yard, 10c. WHITE GOODS One table of white goods, plain and brocaded ef fects, crepes, and piques, good values at 25c to 35c, Market Day Sale, per yard 18c. REMNANT DRESS GOODS One lot dress good remnants, 2 to 8 yard lengths, regular prices were from 35c to 75c per yard, Market Day Sale, 25c. RIBBON S One table plain and fancy Ribbons, sold regular ly at 25c to 35c, Market Day Sale, 15c. Make this Store your Stopping Place. (e) Where a petition has been act ed upon and a drain established there under, the fact that It contains an unnecessary word obscuring its mean ing, when with such word omitted the meaning would be plain, the petition will not be held void as unintellig ible (f) The action of the county drain age board in incorporating in the or der establishing the main drain an order establishing -. spur or branch drain will not under,the record here in be held to Invalidate all proceed had and relieve plaintiff's lands in another county from their assess ment to defray construction of thebity tri-county drain. Such are but irreg ularities and do not go to the board's jurisdiction. 2. The apportionment of benefits by percentage held valid. (a) The placing of the words "per cent" at the head of a column of deci mal fractions, apportioning such de cimal fractional part of the total bene fits as is received by the specific tract opposite such decimal fraction to it,total does not indicate that the tax to be calculated thereon shall be computed by taking such decimal fractional part of one per cent, of the entire cost of construction, but instead, such deci mal fractional part of the entire cost. The words "per cent." as so used mean the decimal fractional part of share by decimal part or percentage of the whole. Such schedule of appor tionment of benefits by decimal frac tional part or percentage thereof will be calculated under the usual inter pretatios instead of by a strained con* struction (b) In the absence of a showing, I?*1* of a want of uniformity in such appor tionment of specific benefits the pre sumption will be in favor of its vali dity and that the tax computed there from was not excessive 3. The apportionment of specifictermines benefits, when made not being based upon or having any relation to either the estimated .or actual cost of the project, the fact that the acual cost may far' exceed the estimated cost thereof can in no wise affect the vail dity of the apportionment of benefits by percentages. (a) Nor can any excess of actual overestimated cost of construction be considered as in effect the'taking of property without due process of law or as rendering the drainage act unconstitutional because thereof. (b) The fact that the notice of hearing of apportionment of benefits by percentages as to specific tracts and that the notice of confirmation thereof contained an erroneous esti mate of the total cost of construction, does no alone render the portion of the assessment in excess of the esti mated cost but within the actual cost of construction as levied against such tracts and computed by such percent ages of the total actual cost, invalid as the taking of property, without due process of law. (c) After petitions for the estab lishment of the portion of the tri county drain within each county had been severally granted, and the por tion of the drain in each county sev erally established by each county f^Sfcltf:l^'Mi- -:i'i^:, READY TQ WEAR SECTION One lot Tailored and Lingerie Waists. We over bought on this lot, our loss is your gain. .Prices are $1.25 to $2.00, Market Day Sale, 75c. LADIES'SUITS 18 Ladies Suits carried over from former seasons not the latest styles, were priced $20.00 to $30.00 Choice Market Day, $4.98. SILK AND NET WAISTS 25 Assorted Silk and Net Waists, formerly sold $4.50 to $7.50, not the latest styles, to close out Market Day Sale 98c. DRESSING SACQUES About 75 Lawn, Crape, and Silk Dressing Sacques sold from $1.25 to $2.50, to close this out we make price for Market Day Sale, 89c. $1.75 PETTICOATS $1.25 3 dozen Mercerized Petticoats, black and colors, summer weight, bought to sell for $1.75 Market Day Sale, $1.25. LADIES'HOSE One lot Ladies Fancy Hose, sold from 50c to $1.00 per pair, to close out, Market Day, pair, 26c. MEN'S SOCKS 1 case Men's Half Hose, black and tan, called silk hose, will outwear any silk hose, regular 35c values Market Day Sale, 25c pair or 5 for $1.00. .board, it was the duty of the three county drainage boards to meet in joint session, under Sec. 183*6, to de termine the proportion of the whole .benefits to be derived from the drain the lands within each county will re ceive therefrom in so acting the tri county board does not deal with indi vidual tracts as such, but instead, with a county apportionment of bene fits considering collectively each coun ty's lands benefited and determining the proportion each county's lands bears to all the lands benefited as in percentages of benefits received so in damages for right of way and pro taken under eminent domain for public use. Such joint board has no duties other than such cousty ap portionments and calculation of total cost of drain. (d) In such apportionment each county board acts severally as an»in tegral part of the joint or trl-count* body. (e) After such apportionment be tween the counties by percentages of benefits from the drain, the fact that thereafter the three boards met in joint session and jointly and sev erely as boards sighed and put forth a list of special assessments as tonot .each and all the tracts within the three counties so benefited by the drain, but computed on a proper bas is of percentage of benefits in thefray same manner as would have resulted had each board separately determined said assessment in specific amounts, will not invalidate the tax so appor tioned in specific amounts to each tract where the lands are classified by counties with a direction accord' 0 countT «»«tors to spread the assessments against such lands described as are situated within their .several counties. Such a list amounts but to the issuance of three Bevera.1' lists in which each county board de the tax in specific amounts upon lands within its county. The fact that they unauthorlsedly so act ed In joint session does not invalidate such assessments. 5, Sec. 18S7 in terms requires the board of drain commissioners of each county, prior to the letting of con tracts for the constructions of theany drain, to make a return to the county auditor, and requires that "such re turn shall contain" certain papers, minutes and proceedings. The board .of drain commissioners of Ransom county made such return. This sta tute requires the recording of said return by the auditor. This return was never recorded. Held that the making of such record is not inher ently apart of or condition precedent to the assessment, but instead, mere ly a legislative requirement, and as such for the purpose of procuring a record to be made of prior proceed ings that such recording is not re quired that constructive notice be giv en thereby of previous proceedings, notice of which had prior thereto been required to be given otherwise. Such failure to record is a mere irregulari ty not Invalidating the assessment, the statute being directory and not mandatory. «. The pendency of an action at the time of the tax sale, brought by -ATUROAY MA¥ WEBB BROTHERS this plaintiff against Ransom cout to determine the validity of these spe cial drainage assessments, but notbeen enjoining the sale thereof, is not of Itself' constructive notice to a pur chaser at such tax sale of any rights of the plaintiff, so as to prevent such purchaser from asserting in a subse quent action brought by the former plaintiff any rights of estoppel or otherwise that might nave been avail able by the county in its defense in the original action. 7. Jurisdiction having been con ferred upon the drain boards to estab lish and construct this drain, and an apportionment of benefits and assess ment based thereon having been made by the proper authorities, re sulting in the tax having been spread and becoming a li'n by operation of law, all without plaintiff's objection and with his actual knowledge that his lands'with others were being bene fited by the construction of the drain at great expense, of the making of which he had actual notice, said pro ceedings covering a period of nearly five years, during which period before and since the completion of the pro ject he has remained acquiescent, he having granted right of way though a petitioner for drainage, plain tiff will not be heard in equity to as sert the invalidity of special assess ments levied upon his property to de such property's proportionate share of the cost of the drain. (a) Such rule of estoppel is en forcible and applicable in this action between private parties. The distinc tion applied in early tax cases in this state, to the effect that there was a difference in principle between an ac tion against a county for cancellation of a tax and the determination of such an issue in an action to quiet title between private parties, and since in later cases disapproved, re fused recognition and. application this action to quiet title. (b) Defendant ag a purchaser at a tax sale is held to he subrogated to all the rights possessed' under said tax by Ransom county at the time of such sale. 8. There is no sufficient proof of fraud on the part of the drainage board. 9. The special assessments so levied for said purposes upon plain tiff's land In 190* were and are valid as such for the amount so levied* to gether with interest thereon at seven per cent from date of delinquency, March 1, 1909. 10 That the notice of delinquent tax sale was invalid and vitiated the sale as to plaintiff's lands in Rose mead civil township. Thefirstof the three published notices of sale listed the lands as situated within the town ship of Rosemead, but the*.township was particularly described by range as range 55, Instead of the correct des cription of range 68. After one pub lication the sale notice was corrected. Held to have been an insufficient no tice of tax sale, and void for uncer tainty of description of land to beof sold, and as two publications was in sufficient notice the sale had thereon was void. U. Under statutes pr'or to "Chap. 398, Session (Laws 1911 and as exist- CHILDRENS* SPRING COATS •C AT HALtf FMCMB Children's Spring Coats made from Serges, Cov erts and fancy mixtures, sizes 6 to 12 years, All Go For Market Day at 1-2 Price. 15c CHILDREN'S HOSE 10c 25 dozen Children's Black Hose, regular 15c quality,: Market Day Sale, pair, 10c. LADIES' TRIMMED HATS We will put on sale for Market Day, one lot of trimmed hats, all this season's newest styles, sold regularly at $4.50, $5.00 to $6.00, Market Day Sale, $3.50. SKIRTS One Rack Ladies' Skirts, cojors black, brown, and mixtures, priced from $6.50, $10.00, to'sell quick we make Market Day Sale Price, $3.25 each. GOOD SHOES PRICED LOW One lot Women's Shoes, kid, cloth top, and dull leather, $3.50 to $4.00 values Market Day Sale, $1.98. One table Women's Shoes, not this season's style, good stock and serviceable. Prices were $3.00 to *$3.50 Market Day Sale, $1.00. BED SHEETS 10 dozen sheets, 81x90 inches, made from good quality bleached sheeting, 85c quality, Market Day Sale, 65c each. navy, $7.50^ ing at all times In issue, no statutory interest or statutory penalty having specifically provided to be col lected upon delinquent drainage assess ments arising from the construction 'of drains to agricultural lands none 'can be collected. And the provisions of law applicable to the collection of .'penalty and Interest on real estate taxes, and that such assessments "shall be collected and enforced in the same manner as other taxes," is in sufficient to authorise the collection of such statutory interest and penalty on drainage assessments. Such delin quent drainage assessments bear In terest at seven per cent, per annum from and after delinquency. 12 Hollowing state ex. rel. v. Fur stenau, 20 N. D. 540, 129 N. W. 81, plaintiff's payment of his general tax es before sale, without a tender of the special assessments for drainage purposes, was a payment of the gen eral land tax and such sale for plain tiff's general taxes and the certifi cates issued thereon are void and are ordered cancelled. General land taxes may be paid without making payment of special drainage assessments. 19. Equitable relief as to the tax sale' for drainage assessments is awarded as to certificates issued and interest, penalty and costs of sale, but relief is conditions however upon pay ment being made by plaintiff within sixty days from the filing of the re mltitur herein in the district court of the amount of all special assessments involved with interest at seven per cent, per annum from March 1, 1909, to date of payment. In case of pay ment within said period no costs will be taxed, this being a test case. In default of payment within said period plaintiff's action will be dismissed and judgment entered against plaintiff for all of respondent's taxable costs and disbursements. (Syllabus by the Court.) (From the judgmest of the District court of Ransom county, Allen, J., plaintiff appeals. Modified* on condition and affirmed. Opinion- by Goss, J., Spalding, C. J. concurring specially. Purcell ft 'Dlvet, and P. L. Keating, of Wehpeton, N. D., attorneys for plaintiff and respondent. Ashley Ooffman of St. Paul, Minn., Counsel for plaintiff., Curtis ft Curtis, and Rourke ft Kvello, of (Lisbon, .N. D., attorneys for defendant and respondent. Flynn ft Trarnor, of Devils Lake, N. D., and C. F. Clark of Cedar Rapids, Iowa, attorneys for Intervenor B. R. Moore. In the Supreme Court, State of North Dakota, October Term, 1911. John Rlebold, plaintiff and appellant vs. W. J. Hartzell, defendant and res pondent. A judgment entered by default in plaintiff's favor in 190*. but void for want of Jurisdiction, was three years later on motion vacated after service moving papers on the attorney-who subscribed the original summons and complaint and thereafter brought on for trial, other attorneys appearing at the request of such former attorney of record but without employment by '-^'X*- vill find many items on ^j |J You will find many items on sale at Tbehind prices not mentioned in this advertisement. FURNITURE IIEPARTENNT & COMBINATION DESK 6 BOOK CASES One Golden Oak Combination Case, with 5 adjust able shelves, large mirror, enclosed cabinet with leaded glass door, desk fittings and large writing table. Sold regular $45.00 Market Day Sale, $22.50. One $32.00 Desk Cabinet similar to above Market Day Sale, $16.00. One $24.00 Desk Cabinet, Market Day Sale, $12.00. Above cabinets with other Market Day Specials on display in our furniture windows. GO CARTS One $16.00 Rattan Body Go-Cart. Market Day Sale, $8.00. One $10.50 Rattan Body Go-Cart. Market Day Sale, $5.25. One $10.00 Rattan Body Go-Cart. Market Day Sale, $5.00. One $12.00 Rattan Body Go-Cart. Market Day Sale, $6.00. CARPETS AND RUGS 10 rolls all Wool Ingrain Carpet, good patterns and colors, sold regular 75c per yard. Market Day Sale, 37 l-2c. One lot Rugs made from good quality Brussels, Moquet and Velvet Carpet, good sizes and patterns. Market Day Sale, 1-2 Price. MENS'UNDERWEAR We are closing out our Men's Underwear and what we have left goes at Market Day Sale, 1-2 Price. Make this Store your Stopping Place. plaintiff who had no knowledge of any proceedings taken after entry of 'the void judgment* presumed by him .to be valid. Plaintiff was a non-resi dent. Without -notice to him, after a purported trial on the merits In 1909 of which he was ignorant, judgment was rendered in defendant's favor quieting title against plaintiff. All attorneys under the circumstances shown in the record acted in good faith. The former attorney of record was incapacitated by sickenss from attending personally to the matter, employing other attorneys so to dolaw who were ignorant of plaintiff's where abouts plaintiff's attorney having died pending the litigation. Promptly upon notice of the rendition of therecord second judgment plaintiff applied for its vacation with leave to proceed to trial on the merits, and upon denial thereof appeals. HELD: 1. That the judgment first entered was void for want 'of jurisdiction or the defendant 2. That under Sec. 9884 the action was in law deemed discontinued after sixty days had elapsed from the filing of the affidavit for publication with out personal' service of the summons on the first publication thereof hav ing been made. 3. Conceding without deciding that, the authority by employmept of the attorney to institute the action was sucient from which his authority would be presumed to continue, and as such assuming that he remained an attorney of record authorised un der Sec. 793? to accept service of the application served upon him in 1909 to vacate said judgment, and conced ing the application of that statute to this case deemed discontinued long prior thereto under Sec. 6884, never theless said attorney of record'would have no authority to employ other at torneys to act for him in his behalf, as was done in representing the plain tiff on the trial of said action and consequently the appearances made by such unauthorised substituted at torneys, and stipulations made by: them, are void and not binding under this record upon plaintiff. The ap-' plication is therefore to be treated as one to vacate a judgment rendered default 4. The record conclusively estab-t lishes want of knowledge in the plain-' tiff and of any proceedings had after HE many years of hat making experience Mora Hats is a safe guideforyon to judge their quality, style and value. The pre-eminence off Mora Hats is acknowl edged byallmen whoarecareful intheirhatselec tionsandexercisegoodtasteinthenicetiesofdress. Mora, stiff or soft hats, are made in all popular shades and shapes. S TrU* Mmkn •TiE WPfFB* L00m las Marawets Ca the entry of the void judgment until after notice of entry, of the voidable judgment from which plaintiff applies to be relieved. 5. Soon after the entry in 1906 of the* void judgment plaintiff paid said attorney of record in full for fees and costs, discharging him and terminat ing his employment. This destroys any contrary presumption O the con tinuance of such employment of the attorney of record and relieves plain tiff from the later unauthorized•• acts of said attorney of record being in imputed to plaintiff. 6. The second Judgment While ap parently regular as rendered after no tice of trial served on the attorney of and counsel appearing, on proof of want of authority in them to repre sent' plaintiff, and his want of knowl edge thereof, in the absence of any ratification of their acts and under plaintiff's repudiation thereof, Is void able and should on plaintiff's applica tion seasonable made be vacated. 7. Under the showing made on thjs application plaintiff being without fault before or since the entry of said jtfdgment against him. he should, un der Sec. $884, be relieved from said judgment and be permitted a trial on the merits: (Syllabus by the court.) (From an order denying application to vacate a judgment taken against plaintiff in the district court of Dickey county, Allen, J., plaintiff appeals. Reversed and remanded for trial. Opinion 'by Goss, E. E. Cassels of Ellendale, and Oarmody ft Perkins of Hlllsboro, N. D., attorneys for appellant on this ap peal. Rourke ft Kvello of Lisbon, and Chas. B. .Wolfe of Wahpeton, N. D., 'attorneystorrespondent' THE TRUTH ABOUT BLUING. Talk No. 5. Avoid liquid bluing. In every city there is an accumulation of junk bot tles which are gathered up and filled with a weak solution called bluing. Don't buy water for bluing. Buy RED CROSS BALL BLUE a 5-cent package equals 20 cents' worth of liquid blue. Makes clothes whiter taan snow. ALL GOOD GROCERS. TINWARE CHEAP Just step into Lucas' Basement and see MihrsssW, Wis. J' J.'.liw'-.' •t^iiftafeiM'LL'.'Auju.i''»:j.i«i*iJ*:ji4. ''•:~".Q'i''"f?'*.- iJA .,t&& .'