CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF NORTH DAKOTA J. E. ENGSTAD, et al. vs. JOHN DINNIE, et al. Opinion filed June 4th, 1898. Municipal Corporations-Tax Levy-Appropriations. Held, construing sections 2190, 2262, Rev. Codes, that a valid tax levy cannot be accomplished by a mere resolution adopted by a city council, which purports to levy certain amounts for the general fund, interest fund, and sinking fund for the fiscal year. It is essential to the validity of a tax levy under section 2190 that the council should adopt, either prior to or at the time of the levy, an ordinance embracing the annual appropriation bill for the current year, specifying the several purposes for which the appropriations are made, and the amount appropriated for each. The levy must be "based upon the annual appropriation bill for the year." Annual Appropriation Bill-Validity. The city council of the City of Grand Forks, at its regular meeting held on September 9, 1897, passed a certain resolution whereby certain sums as taxes were attempted to be levied for the general fund, the interest fund, and the sinking fund for the current fiscal year. No annual appropriation bill for that year had been enacted at that time. Subsequently, and on December 18th of the same year, said city council adopted an ordinance entitled "Annual Appropriation Bill," and whereby various sums were attempted to be appropriated out of the general fund for that year. Held, under section 2262, that said purported appropriation bill was null and void. Said bill was not sanctioned by a majority of the voters, nor by a twothirds vote of the council, and the same was in no wise connected with the attempted tax levy for the fiscal year. Under the charter, the enactment was too late. Extraordinary Expenditures Enjoined. Held, under said sections of the Rev. Codes, that a costly improvement, including a brick building and the necessary machinery for an electric light plant, to be owned and operated by the city corporation, cannot be paid for out of the general fund of the city, in the absence of any annual appropriation bill authorizing an expenditure for such purpose, and specifying the amount to be expended therefor. Where N. D. R.-I 1 there has been no appropriation and no tax levy for any such purpose, the city council cannot lawfully divert the general fund of the city in the treasury to defray the expense of building and equipping such a plant, and under such conditions all contracts to build and equip such an improvement which are attempted to be made by the city council are ultra vires and void, and the completion of such contracts may be enjoined by a court of equity in an action in behalf of the public, brought by a taxpayer for that purpose. Laches-Estoppel. Held, under the facts of this case, that the public represented by taxpayers was not estopped by its laches from bringing this action. Appeal from District Court, Grand Forks County; Fisk, J. Action by J. E. Engstad, Burke Corbet, J. H. Bosard, M. Reilly, James Lankin and O. E. Nash, residents and taxpayers of the City of Grand Forks, North Dakota, against John Dinnie, mayor; Frank A. Brown, auditor, and M. L. Gorden, treasurer of the City of Grand Forks, to enjoin the carrying out of a contract for the construction and equipment of an electric light plant, and to enjoin the issuance and payment of the warrants of said city to the contractors for said improvement. From a judgment dismissing the action, plaintiffs appeal. Reversed. Cochrane & Feetham, for appellants. It is averred in the complaint and admitted by the answer that the city was indebted beyond the statutory limit when this contract was made, and the contractors were bound to know this fact. City v. Gamewell, 45 N. E. Rep. 591; Treadway v. Schnauber, I Dak. 227; Farmers' etc. Bank v. School District, 6 Dak. 255; State v. Getchell, 3 N. D. 243; McCoy v. Brant, 53 Cal. 247; Doon Township v. Cummins, 12 Sup. Ct. Rep. 223; County v. Dickson, 6 Sup. Ct. Rep. 901. The allegation of defendants that the contract was partially performed was impertinent. Part performance can not be urged in defense to an ultra vires contract either by way of ratification or estoppel. Norton v. County, 6 Sup. Ct. Rep. 1131; Marsh v. Fulton County, 10 Wall. 676; County v. Dickinson, 6 Sup. Ct. Rep. 897; Kelly v. Town, 8 Sup. Ct. Rep. 1101; State v. Getchell, 3 N. D. 243; Capital Bank v. School District, 1 N. D. 479. The effect of the constitutional inhibition (Sec. 183 Const., § 2148 Rev. Codes) is to require the city to carry on its operations while so indebted upon a cash system, that is payment must be provided for by levy made as distinguished from levy to be laid. Spilman v. City, 14 S. E. Rep. 283, 2 Beach Pub. Corp. § 622 n. The making of the contracts created a liability within the meaning of the inhibition. Sackett v. City, 88 Ind. 476; City v. Edwards, 84 Ill. 626; Tennant v. Crocker, 48 N. W. Rep. 579; Spilman v. City, 14 S. E. Rep. 279; City v. Gamewell, 45 N. E. Rep. 590. The debt limit having been reached the city could contract no liability not provided for in the annual tax levy without a vote. §§ 2492, 2262 Rev. Codes; 2 Beach Pub. Corp. 810; French v. City, 42 Ia. 617; Hebard v. Ashland, 12 N. W. Rep. 437; Book v. Earl, 87 Mo. 246, 254; Francis v. Howard Co., 50 Fed. Rep. 44; Prince v: City, 21 N. E. Rep. 768; Gould v. City, 4 S. W. Rep. 650; German Am. Sav. Bank v. City, 49 Pac. Rep. 542; Shannon v. City, 69 N., W. Rep. 598; City v. Gamewell, 45 N. E. Rep. 590. No provision for this expenditure was made in the annual appropriation bill, and no tax levy made as required by statute. §§ 2263, 2262, 2190, 2264, Rev. Codes; Shattuck v. Smith, 6 N. D. 56; Donovan v. City, 33 N. Y. 290; Tennant v. Crocker, 48 N. W. Rep. 577; Bladen v. Philadelphia, 60 Pa. St. 464. Defendants as officers of the city cannot urge an estoppel against their own violation of duty and express law. Bank v. School Twp., 1 N. D. 96; 2 Pom. Eq. § 813; Tube Works v. City, 5 Dak. 54. Bangs & Guthrie, for respondents. The complainants have by their delay suffered other, parties to incur expense and to enter into contracts and engagements of a burdensome character, this laches will preclude them in obtaining equitable relief. 2 Story Eq. § 959; Herman on Estoppel § 1221; Tash v. Adams, 10 Cush. 252. Laches is a bar to relief in equity. Smith v. Thompson, 54 Am. Dec. 126; Bausman v. Kelley, 38 Minn. 197; Kellogg v. Ely, 15 Ohio St. 64; Wiggin v. Mayor, 9 Paige 24. The Court will refuse an injunction, because of the unnecessary delay of the parties seeking it, if the expense of constructing the work complained of has been incurred. Hartness v. Mad River, 6 Ohio St. 137; Collins v. City, 12 Green (N. J.) 293; Chamberlain v. Town, 14 At. Rep. 865; City v. Alexandria, 12 Pet 93; Attorney General v. Ry. Co., 9 Green 49; Ellis v Karl, 7 Neb. 381; Royal Bank v. Ry. Co., 150 Mass. 490; Bigelow v. Los Angeles, 85 Cal. 614; Osborn v. Ry. Co., 37 Fed Rep. 830; East St. Louis v. Ry. Co., 98 Ill. 415. The making of the contracts for construction of power house did not create an indebtedness against the city. A debt is a specified sum of money which is due from one person to another and denotes not only an obligation of a debtor to pay, but also the right of the creditor to receive and enforce the payment. City v. Hames, 112 Ind. 323; French v. Burlington, 42 Ia. 514; Grant v. Davenport, 36 Ia. 396; Quill v. Indianapolis, 124 Ind. 292; Spillman v. Parkersburg, 35 W. Va. 613; Burlington v. Woodard, 49 Ia. 58; Crowder v. Town, 128 Ind. 496; Wood v. Partridge, 11 Mass. 487; Dively v. City, 27 Ia. 227; Valpariso v. Gardner, 97 Ind. 1; State v. McCauley, 15 Cal. 430; Smith v. Dedham, 144 Mass. 177; Ithica Water Wks. Co. v. Ithica, 31 Hun. 426; 38 Am. Rep. 97. WALLIN, J. This action was brought by resident taxpayers of the City of Grand Forks to enjoin said city, and its officers, who are made defendants, from completing the erection of a certain brick building, and placing therein certain machinery, and paying |