Page:North Dakota Reports (vol. 3).pdf/108

 recovered by defendant. We have held that title 1, ch. 6, of the city ordinances, and the attempted amendment of § 3 thereof, never became valid, and hence cannot be resorted to in computing interest on city taxes, if such are found to exist. If no valid ordinance is shown at the hearing fixing the rate of interest, then defendant shall recover 7 per cent. on amounts paid in discharge of valid city taxes assessed since the tax sale, and paid by the defendant to the city treasurer. Under § 5193, Comp. Laws, we have discretion in modifying the judgment of the court below with respect to the costs and disbursements incurred in this court, and in the present case we have decided to allow costs and disbursements to neither party and the court below will not give judgment for costs or disbursements incurred in this court. The court below will take further proceedings in harmony with the views expressed in this opinion.

Corliss, C. J., concurs.

Bartholomew, J., (dissenting.) I am unable to assent to that portion of the foregoing opinion which limits the construction given to § 1643, Comp. Laws, in Farrington v. Investment Co., 1 N. D. 102, 45 N. W. Rep. 191, and Bode v. Same, 1 N. D. 121, 42 N. W. Rep. 658, and 45 N. W. Rep. 197, to the particular facts of those cases. I am also of opinion that, under the pleadings and admissions in the case, and for the purpose of a money judgment for taxes under said section, the legality of the subsequent taxes stands admitted. In all other respects I concur in the opinion written by Justice Wallin.

(53 N. W. Rep. 434.)