Page:North Dakota Reports (vol. 1).pdf/337

 as provided by law, specifying the purposes of the tax and the person to whom and the amount for which the sale was made, and stating that if not redeemed the purchaser would be entitled to a deed on and after a certain time, upon the surrender of the certificate. That Eshelman paid the city of Grand Forks and said city received for said certificates the sum of $1,810.85, and that by virtue of an ordinance duly passed the city appropriated said sum to its own use, and paid the same out for municipal purposes. That said special tax, and the sale thereunder, and the certificates issued to Eshelman, and all of said ordinances, except the last, were void for the following reasons: The mayor and council did not, before filling and grading said avenue, or at any time, or in any manner, declare such work or improvement necessary to be done, nor did they cause to be published a resolution that said work was necessary to be done for four successive weeks in an official newspaper in said city, nor in any other manner. That, in a proper action in the district court for Grand Forks county, brought by the property owners against the city of Grand Forks and Jacob S. Eshelman, and on December 3, 1886, it was by the said court duly adjudged and decreed that said special tax and said tax certificates were void, and said Eshelman was ordered to deliver up said tax certificates for cancellation, and the city was perpetually enjoined from issuing any deeds upon said certificates. Then follows the allegations that the claim was duly presented and disallowed, and subsequently assigned to plaintiff, with prayer for judgment for $1,810.85 and interest since March 12, 1884. To this complaint defendant filed a demurrer, on the ground that the facts stated did not constitute a cause of action. The demurrer was sustained, and judgment entered dismissing the complaint, and plaintiff appeals.

It is alleged in the complaint that the tax certificates issued by the city to appellant’s assignor were absolutely void for certain specified reasons. The supreme court of Dakota territory held those reasons sufficient. See McLauren v. City of Grand Forks, 43 N. W. Rep. 710. The charter of the city of Grand Forks authorized the city to fill and grade its streets, and assess the expense thereof upon abutting property, and to sell such