Page:North Dakota Reports (vol. 48).pdf/643

 43 N. W. 710; Watkins v. Griffith, 59 Ark. 344, 27 S. W. 234; White v. Stevens, Mich., 34 N. W. 255; Pound v. Chippewa Co., Wis. 43 N. W. 63; Merritt v. Village of Portchester, 71 N. Y. 309; Hewes v. Reis, 4o Cal. 255; Desty on Taxation, 1241; Dill on Municipal Corporations, 759; Western Town Lot Co. v. City of Salem, S. D. 172 N. W. 503.

Newton, Dullam & Young, and Lawrence, Murphy & Nilles, for respondents.

“A statute specifying a time within which a public officer is to per- form an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of them must be considered as a limitation of the power of the officer.” Lewis Sutherland Statutory Construction, Vol. 2, §§ 611 and 213, second ed.

“Statutory prescriptions in regard to the time, form and mode of proceeding by public functionaries are generally directory as they are not of the essence of the thing to be done but are given simply to secure system, uniformity and dispatch in the conduct of the public business.” Emmons County v. Lands of First National Bank, 9 N. D. 589, 84 N W. 379; Johnson v. Day, 2 N. D. 295, 50 N. W. 703; Cooley Constitutional Limitations 77.

It is well settled that the determination of the council upon the question of necessity is final and conclusive in the absence of fraud. State v. Fisk, 15 N. D. 219-226; 107 N. W. 191.

The court in the same opinion holds that the board acts judicially in assessing benefits and necessarily it would act thus in other special assessment proceedings. Erickson v. Cass County, 11 N. D. 494, 507; 92 N. W. 841; Alstad v. Sim, 15 N. D. 529, 109 N. W. 66; Ellison v. Lamoure, 30 N. D. 43, 151 N. W. 988; Bergen Township v. Nelson County, 33 N. D. 247, 156 N. W. 559.

“Council are the sole judges of the necessity of sewers and their judgment is conclusive. If in every instance of special taxation the question of benefits could be thrown into the jury box, this situation would be intollerable.” Diamond v. Mankato, 61 L. R. A. 488; Speer v. Athens, 9 L. R. A. 402-405.

There being no question gf fraud the action of the city council can not be reviewed. State v. Fisk, supra; Page & Jones, Special Assessments, § 1430; Flickinger v. Fay, 119 Calif. 5go.