for the same out of the city treasury, which building and machinery are intended to be used, when completed and furnished, as an electric light plant to be owned and operated by said city. The action was tried without a jury, and resulted in the entry of a judgment in the District Court dismissing the action, with costs. against the plaintiffs. The abstract of the record filed in this Court is voluminous, and the plaintiffs' attorneys have assigned a formidable array of errors in their brief, but for the purpose of disposing of the case we have not found it necessary to pass upon any question which is not directly related to the power of the city council to contract for the electric light plant, and pay for the same out of the general fund of the city. No claim is made that the fund to pay for the plant is to be derived from any special fund arising upon the sale of bonds; on the contrary, the contention of counsel for the respondents is that the building and machinery can and will be paid for out of the general fund of the city.

To develop the pivotal question in the case it will be necessary to mention only certain facts disclosed by the record, and with respect to which there is no controversy between counsel. It is conceded that the City of Grand Forks, through its officers, and pursuant to certain bids which had been previously made in response to proposals for bids made in behalf of the city, did, on the 26th day of January, 1898, enter into certain contracts in writing as follows: One of said contracts was made by and between the City of Grand Forks and James Dinnie, whereby it was agreed that said Dinnie, for a consideration of $2,665, to be paid by the city, should erect and build a brick building for the city in accordance with plans as stated in said contract, the said building to be used as a part of an electric light plant to be owned and operated by said city. The other of said written contracts was made and entered into between the City of Grand Forks and the firm of W. F. Grey & Co., and whereby said firm, in consideration of the sum of $12,703, agreed to be paid by the city, undertook to furnish and place in said brick building a dynamo and certain machinery and appliances, as stipulated by the contract, the same to constitute a part of said electric light plant. It is conceded that prior to the commencement of this action said contracting parties, viz. James Dinnie and said firm of W. F. Grey & Co., had respectively entered upon the performance of their contracts, and had performed a part thereof, and the city had allowed a claim or bill presented on account of said contract with Dinnie, and issued and delivered to said Dinnie a city warrant therefor for the sum of $1,168.16; and the city had also issued and delivered to said firm of Grey & Co., on account of material furnished under said contract, a city warrant for $130. The right of the City of Grand Forks, which is organized under Chapter 28 of the Political Code, to enter into the contracts we have mentioned, is broadly challenged by the plaintiffs' counsel.

is conceded that among the powers expressly conferred upon the city is that of providing for the lighting of the city. Rev. Codes, § 2148. The contention is that the city in attempting to exercise this power has wholly failed to conform to plain charter requirements, which are made prerequisites to its exercise, and without which the said contracts could not lawfully be entered into, or the plant be lawfully paid for out of the general fund of the city, or at all. In a nutshell, the claim is made in behalf of the plaintiffs that no sum or amount whatever was ever lawfully levied or lawfully appropriated by the city council to meet and defray, out of the general fund, the large expense necessarily included in the erection and furnishing of an improvement within the city such as that contemplated by the contracts we have mentioned; and consequently that the city has prematurely and without authority of law entered upon the enterprise of providing light for the city by the erection. of the building and equipping the same as stated in said contracts. We remark first, although the point was not made by counsel, that we question whether, under said charter, it would be lawful either for the city to levy or appropriate funds to build and equip an electric light plant to be owned and operated by the city, until such plant had been authorized by some ordinance passed and adopted for that purpose, and which should make provision for maintaining and operating the plant after its construction and equipment. No such ordinance was ever passed by the city council. As has been seen, the charter clothes the city council with the general power to provide for lighting the city; but the charter nowhere provides the mode or points out the manner of making such provision. In such cases the charter expressly provides as follows: "When, by this chapter the power is conferred upon the city council to do and perform any act or thing, and the manner of exercising the same is not specifically pointed out, the city council may provide by ordinance the details necessary for the full exercise of such power." Rev. Codes, § 2333; Id., § 2148, subd. 77. The manifest object of this statutory provision is to prevent, and not permit, the council to actually exercise large grants of authority without specific regulations of the same first having been made by some enactment which has the force of law. Hence the requirement that either the charter or some ordinance shall point out the manner of exercising power specifically granted in the charter. A mere resolution of the council does not suffice to meet this requirement. We mention this matter here, not as the crucial point in this case, but to call attention to the fact that when the action hereafter mentioned was taken by the city council, which bears upon the electric light plant in question, no ordinance had ever been adopted by the city council declaring that the city should build, own, or equip an electric light plant, or providing for the maintenance or control of any such plant. As has been seen, it is not pretended in behalf of the city that the funds necessary to build and equip the plant were raised or

expected to be raised by the sale of bonds, or from any fund other that the general fund of the city; and much evidence was offered at the trial in behalf of the city for the purpose of showing that the tax levy of September, 1897, for the general fund, when reinforced by certain back taxes, collected and uncollected, would furnish sufficient funds to defray the ordinary expenses of the city, and also to leave an unexpended balance sufficient to build and equip the plant in question. But, in the view we are compelled to take of the facts and issues embraced in this record, it is not, in our opinion, important to inquire whether or not the general fund was replete, or whether there was or was not on hand and available to build and equip the plant an amount of revenue, either levied or collected, belonging to the general fund of the city. We are far from being convinced by the evidence in the record that the condition of the city treasury was such that at the time said contracts were entered into the city had funds on hand belonging to the general fund sufficient in amount to meet the current expenses of the city, and build and equip an electric light plant such as was contracted for by the city. But, if such funds were available, we should still hold that the contracts in question were ultra vires. In our opinion, the objections to these contracts as binding obligations are radical and insurmountable. They were entered into at a time and under circumstances which are fatal to their validity. The contracts were without authority of law for the reason that no such improvement as that comprehended in the erection of a brick building and its equipment, with the machinery mentioned, was ever authorized or provided for either by an annual appropriation bill for said city for 1897, or by the tax levy of 1897 for the then current fiscal year. The city council of Grand Forks, at its regular meeting in September, 1897, adopted a certain levying resolution, which is the only attempt to levy a tax which was made by the council in said year. No mention was made in said resolution of any improvement of the character of that contracted for later by said written contracts, nor was the matter of an electric light plant referred to in the resolution. The wording of the said resolution is as follows: "Be it resolved by the city council of the City of Grand Forks, North Dakota, that there be, and is hereby, levied on the property subject to taxation in the City of Grand Forks, North Dakota, as taxes for the fiscal year commencing September 1st, 1897, and ending August 31st, 1898, the sum of fifty-two thousand dollars; said amount to be divided as follows: For general fund purposes, the sum of $35,000; for interest fund purposes, $15,500; for sinking fund purposes, $1,500." It further appears that said amounts were extended upon the tax books of the county by the county auditor. No annual appropriation bill was passed or adopted in said year, either prior to or concurrently with said levying resolution of September 9, 1897. Nor was there an attempt to pass any ordinance embracing an annual appropriation bill by said city council in said year other

than a certain alleged enactment which was adopted by the council on the 18th day of December, 1897, and which reads as follows: "An ordinance making the annual appropriation for the fiscal years 1897 and 1898, entitled "The Annual Appropriation Bill."

"Be it ordained by the city council of the City of Grand Forks, North Dakota :

Section 1. Salaries and Expenses. There is hereby appropriated from the general fund of said city the sum of fifty thousand dollars ($50,000.00), or so much thereof as may be necessary, for the purpose of paying salaries of city officers, defraying the expense of erecting, completing and installing an electric light plant for said city, and the operation expense of the same during said fiscal year, and the general and incidental expenses of the city government, including the payment of city orders out of the general fund.

"Section 2. Waterworks and Filtration Plant. There is hereby appropriated the sum of fifteen thousand ($15,000.00), dollars or so much thereof as may be necessary, for the maintenance of the waterworks system and filtration plant.

"Section 3. Interest. There is hereby appropriated from the interest fund the sum of fifteen thousand five hundred dollars ($15,500.00), or so much thereof as may be necessary, for the payment of interest on city bonds and warrants."

Perhaps the most striking feature of this alleged annual appropriation bill is the date of its adoption (December 18, 1897), when considered with reference to the alleged levy of the annual taxes for the same fiscal year, which, as appears, occurred on September 9th preceding the adoption of such alleged appropriation bill. The city charter declares that the annual appropriation bill shall be an ordinance, and further expressly declares that the city tax levy shall be "based upon the annual appropriation bill for the year." Rev. Codes, §§ 2190, 2262. While it is true that the provisions of the statute with respect to the time within which any proceeding connected with the tax levy must be taken are to be construed as directory, and not mandatory, yet it is also manifestly true that the annual appropriation for the fiscal year must precede or be concurrent in time with the levy, since the levy is based thereon, and can lawfully be based on no other foundation. Section 2262 declares: "The city council shall at its regular meeting in September of each year or within ten days thereafter pass an ordinance, to be termed the annual appropriation bill, in which it may appropriate such sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation; and such. ordinance shall specify the purposes of which such appropriations are made and the amount appropriated for each purpose. No further appropriations shall be made at any other time within such fiscal year unless the proposition to make each appropriation has been first sanctioned by a majority of the legal voters of such city either by a petition signed by them or at a general or special

election duly called for that purpose." A mere reading of this section of the statute in connection with section 2190, Revised Codes, suffices to demonstrate that the tax levy and the annual appropriation for city expenditures for a given fiscal year are inseparably connected with each other. The right to lay burdens upon property owners by a city tax levy is conditioned by the charter upon the passage of an ordinance which shall specify the several purposes for which the tax to be levied is to be expended, and the specific amounts which shall be devoted to each purpose. The attempted levy of taxes in the City of Grand Forks in 1897 was, therefore, abortive, and without legal validity, because the levying resolution was not authorized or supported by any existing annual appropriation for the expenditures of the city for the then current year. The case falls within the principle laid down by this court in Shuttuck v. Smith, 6 N. D. 56, 69 N. W. Rep. 5. It follows from what has been said that at the time the contracts in question were entered into the city had not made provision for any expenditure of city funds for the purposes of the contracts, nor had the city levied any taxes to meet the expense and cost of the electric light plant, nor had the city levied any taxes for the ordinary expenses of the year in question. Under the circumstances existing when the contracts were signed, there was no valid tax levy out of which the plant could lawfully be paid for; much less was there any existing levy for the specific improvement which we are considering.

We now turn to an independent ground upon which the illegality of the electric light enterprise is, if possible, more transparently conspicuous. The trial court has found, and the fact is conceded, that a majority of the taxpayers of Grand Forks have never by vote or petition given their sanction to any appropriation for an electric light plant to be owned and operated by the city. The fact is pertinent, because the statute (section 2262) inhibits the city council from making any other or further appropriations of city money for the fiscal year, after the annual appropriation bill has been enacted, without the approval of a majority of the voters. As we have seen, the annual appropriation bill is expressly required to be adopted prior to or at the time of the tax levy, and we have also seen that the statute, by its requirements, stands directly in the way of passing such annual appropriation bill at any later date, and all further appropriations after the tax levy are in terms prohibited by the charter, unless the same have the special sanction of the voters. These provisions of the organic law of the city are unambiguous, and their meaning is not obscure. They plainly show that the alleged ordinance adopted by the city council on December 18, 1897, and denominated an annual appropriation bill for that fiscal year, is utterly void, and in the teeth of express charter provisions declaring that no such appropriation bill could lawfully be enacted by the city council. Section 2262. It is not pretended that the en