Page:North Dakota Reports (vol. 48).pdf/61

 In case the improvement shall consist in paving or repaving any street, alley or public place, the city council (or commission) may require such plans, specifications and estimates to be made of such different kinds of pavement as they may deem advisable.” (Sec. 3703. C. L. 1913). It is further provided that after such plans, specifications and estimates shall have been filed in the office of the city auditor and approved by the city council (or commission) such council or commission “shall by resolution, declare such work or improvement necessary to be done; such resolution shall refer intelligently to the plans, specifications and estimates therefor, and shall be published, twice once in each week for two consecutive weeks in the official newspaper of the City.” Provision is further made for the filing of protest by the owners of a majority of the property liable to be specially assessed and for the hearing of such protest. (Sec. 3704, C. L. 1913). Subsequent sections provide for advertising for bids, the letting of the contract, the procedure relating the assessment of special assessments to pay for the work etc.

Obviously, the situation disclosed by the complaint is not one war 1anting judicial interference. It appears that the city commission is engaged in consideration of a matter which the statute invests it with power to consider. The matter is still pending before the commission. There car in no event be a judicial review of the acts of the commission until the commission has acted. For it is well settled that under ordinary conditions a court of equity cannot properly interfere with or in advance restrain the discretion of a municipal body while, in the exercise of powers conferred by the charter of the genera] laws, it is considering a matter of this nature. 14 R.C.L. 437; 19 R.C.L. 905-906; New Orleans Waterworks Co., v. New Orleans, 164 U. S. 471, 41 L. ed. 518; Lewis vs. Denver City Waterworks Co., 34 Pac. 993; Spelling on Injunction (2nd ed.) Sec. 687.

It is contended by the appellant that the demurrer was not properly before the court; that the same had not been noticed for argument and that hearing thereon was not afforded. It is attempted to sustain this contention by an affidavit. The order sustaining the demurrer specifically recites : “The defendants having interposed to plaintiff’s complaint in the above entitled action a demurrer, and the questions of law therein placed in issue by said demurrer having come on regularly to be heard at Chambers in the County Court House in the City of Devils Lake, Ramsey County, North Dakota, on the 14th day of January 1921 at 10 o’clock in the forenoon of said day, the plaintiff appearing in person and by his at-