Page:North Dakota Reports (vol. 48).pdf/471

 "I am going to get my car and get out of the country, and they can all go to hell."

It also appeared that Isaac Ogland had no property of any account, excepting the automobile and some carpenter tools. Defendants were sworn and denied the testimony of the plaintiff and his wife. Now, in such cases, the statute provides thus:

"If on such hearing it appears to the satisfaction of the court or judge that the attachment was irregularly issued or that the affidavit upon which it was issued is untrue, the attachment must be discharged. Code, § 7561.

We may assume for a certainty that the judge would have discharged the attachment if it had appeared to his satisfaction that the affidavit upon which it was issued is untrue. It did not so appear to his satisfaction, nor does it appear to the satisfaction of this court. Furthermore, the fact that defendant has gone to the trouble and expense of a motion to dissolve the attachment and of an appeal to this court may well be considered as some evidence that his purpose was to get the automobi!ie clear, take his carpenter tools and leave the country. When the motion was denied Isaac Ogland gave a counter bond, as provided by statute, for the release of the attachment. That is what he should have done in the first instance.

STEWART WILSON, Respondent, v. THE CITY OF FARGO, a municipal corporation, et al, Appellants.

Courts—statute may not be held unconstitutional unless four Supreme Court judges so decide.

1. This action involves the constitutionality of chap. 122, Laws, 1921.

It is held:

Inasmuch as two of the judges of the Supreme Court are of the opinion that the act does not violate any provision of the state constitution, it cannot be said that the act is unconstitutional as violative of the state constitution in view of $ 89 of the constitution as amended (Article XXV, p. 503, Laws 1919), which provides that in no case shall