sold, may be going further than the evidence | ly over $10. He had nothing whatever to warrants; but whether he directed the constable to sell this particular property or not is wholly immaterial, because there is ample evidence of ratification by him of the acts of the constable in selling the property. It is not clear from the evidence whether Murry notified Belmore of his claim, on behalf of the children, to the property prior to the sale or after the sale; but it does appear that he was so notified before any of the property had been removed, and his answer to the notice was that he had been out a lot of money and was going to take the property. This action on his part, coupled with his receipt and appropriation of the money derived from the sale to his own use, furnished ample evidence of ratification on his part. In 4 Cyc. 764, it is said:

"Where an officer levies a writ of attachment on the property of a stranger, attachment plaintiff is liable to the claimant of the ownership and right of possession thereof not only when he directs the wrongful levy, but also when he subsequently adopts or ratifies the officer's acts, independently of any bond and jointly with the attaching officer."

In the case of Perrin v. Claflin, 11 Mo. 13 the court said:

"The doctrine of the common law is that the person who agrees to a trespass after it is done, where the trespass is done to his benefit or for his use, is a trespasser ab initio. His subsequent agreement is equivalent to a previous command."

do with the sale or removal of the remainder of the property, and no connection whatever with Belmore. This being true, a joint verdict against Dickey and Belmore for the full value of all the property removed from the lands was not warranted by the evidence, and the court, upon proper application, would have set aside the verdict as to Dickey, as it had power to do. The verdict as to Belmore, however, was sustained by the facts proven. It is evident that the court realized that the verdict against Dickey was unwarranted by the evidence, and that it attempted to correct the same. It had no power to make this correction in the manner attempted. After a verdict has been received and entered upon the minutes, and the jury has been dismissed, they have not the power to reassemble and alter their verdict. Warner v. N. Y. Central R. R. Co., 52 N. Y. 437, 11 Am. Rep. 724; Walters v. Junkins, 16 Serg. & R. (Pa.) 414, 16 Am. Dec. 585; Sargent v. State, 11 Ohio, 472; Salinas v. Stillman, 25 Tex. 12.

[4] While the court erred in reassembling the jury and changing the verdict, yet appellant is precluded from taking advantage of the same, because of the conduct of his counsel. Mr. Hitson, one of the attorneys representing both defendants, was present in the courtroom when the judge called the jury into the box and began to interrogate them as to their intention in returning the verdict. When Mr. Hitson discovered what the court was about to do, he arose and left the

There was ample evidence of ratification by Belmore of the acts of the constable, and, this being true, he was liable for the value of all the property sold under the attach-courtroom. After the verdict had been corment levy, whether purchased by him or others. Such being true, the only remaining question under this branch of the case is whether the evidence warranted the recovery of the amount awarded. There was evidence, which, if true, warranted a recovery of more than $500. Consequently there is no merit in this contention.

[2] It is sufficient answer .to the second proposition urged to say that no such question was presented in the trial court. The record is silent as to any interest owned, or claimed, in or to the property by the father of the children named, or in fact that the father was still living, or survived his wife. It is well settled that a question, not jurisdictional, cannot be raised for the first time on appeal. Elliott on Appellate Procedure, § 470; State v. Padilla, 18 N. M. 573, 139 Pac. 143.

rected and the jury dismissed, he returned and objected to any change being made in the judgment. From the bill of exceptions it is apparent that he purposely refrained from calling the attention of the court to its want of power to change the verdict, and purposely and intentionally permitted such change to be made so that he would be in a position to force a new trial for the defendant Belmore, because, after the verdict was changed, the judgment would be at variance with the same, unless it was also altered. Attorneys are officers of the court, and it is their duty to assist the court in arriving at a correct conclusion in matters of law and fact. They have no right to sit idly by and see error committed, affecting the interests of their client, without making an honest effort to avoid the error. Mr. Hitson should, when he apprehended the purposes of the court, have called the attention of the court to its lack of power, and, had he done so doubtless the court would have found some legal method of correcting the injustice done Dickey, by the verdict returned. Certainly it would have had the power, upon proper There was no evidence adduced upon the application, to have set aside the verdict as trial to connect the defendant Dickey with to Dickey, and could have permitted it to the alleged trespass, save the fact that he stand as to Belmore. Instead of attempting attended the sale of the attached property to assist the court to arrive at a correct con and purchased the windmill, valued at slight-clusion, and avoid error, the bill of excep

[3] The next assignment of error relied upon is that:

"The court erred in calling back to the jury box the jurymen who tried this case, and having then and there attempted to impeach and correct their verdict, on the day after said verdict had been returned and they had been discharged."

tions shows that Hitson arose and left the | ficiency of the evidence as to the damages claim courtroom and absented himself until as-ed by the defendant, caused by the granting of the court assessing damages upon the dissole the temporary order, and does not object to tion of the order, he cannot have the action of the court reviewed on appeal.

2. JUDGMENT 526-CONSTRUCTION-AMEND- erly set for trial on the 26th day of NovemED COMPLAINT.

to satisfy the said judgment and asking that before the answer was filed. The court he be restrained from levying said execution properly overruled the motion. until the motion to set aside the judgment was disposed of.

apparent that appellant is not entitled to have these questions reviewed.

BRANTLY, C. J. This action was brought by plaintiff, a resident of the defendant city

The judgment will be affirmed; and it is and the owner of property therein subject so ordered.

HANNA and PARKER, JJ., concur.

(51 Mont. 551)

LEPLEY v. CITY OF FT. BENTON et al. (No. 3671.)

(Supreme Court of Montana. Jan. 15, 1916.) 1. MUNICIPAL CORPORATIONS 864

DEBTEDNESS-AMOUNT.

IN

to taxation, to restrain the city authorities from issuing and selling bonds of the city to the amount of $17,000 to procure funds to establish a municipal lighting plant. The proposed bond issue was authorized by a vote of the electors of the city held on July 10, 1914. They were sold on January 6, 1915, but when this action was commenced had not been delivered to the purchaser. It is alleged that the indebtedness incurred by the bonds, together with that already incurred and outstanding, will exceed the 3 per cent. limit prescribed by the Constitution, and therefore that the bonds are void. The following statement of the financial condi tion of the city is made the basis for this claim: That the assessed valuation of the property within the city for the year 1913 ws $810,000, and for 1914 $950,000; that the city is at present indebted to the amount of $4500, which is made up of these items: Bonds for water supply, etc., "$4,500 and upwards"; floating indebtedness represented by outstanding warrants issued in payment of current expenses of the city government, “$3,000 and upwards"; bonds sold for the purpose of establishing a sewer system, including a contract by the city for the construction of the system, $33,000; and the city's proportion of $33,394.09, the cost of grading, paving, lighting, etc., in improvement district No. 1 of the city, the contract for which has already been let, the estimated proportion being "$3,000 and upwards." Upon the filing of the complaint on February 27, 1915, the court ordered a temporary injunction to issue. On March 23d the defendants filed their answer, denying the material averments in the In such case, where the permission granted complaint, and moved for a dissolution of the at the election was for the council to incur in- order. After a hearing, the court made an debtedness for a sewer system, which, with ex-order sustaining the motion. The plaintiff isting indebtedness, would exceed the 3 per cent. limit, the city could not, before issuing sewer bonds, incur indebtedness up to the 3 per cent. limit.

Const. art. 13, § 6, declares that no city, township, or school district shall become indebted in an amount exceeding 3 per cent. of the value of its taxable property, but that municipalities may, on vote of the taxpayers, incur increased indebtedness when necessary to construct a sewer system or procure a water supply. Rev. Codes, § 3259, subd. 64, which enacts the constitutional provision in statutory form, authorizes the incurring of indebtedness not exceeding 10 per cent. above the 3 per cent. limit for the construction of a sewer or water system. A municipality, which was not then indebted up to the 3 per cent. limit, being desirous of constructing a sewer system, was authorized by a vote of the electors to incur an indebtedness beyond the 3 per cent. limit. Held, that the Constitution and statutes only author ize a city to incur indebtedness beyond the 3 per cent. limit when such indebtedness is necessary for the construction of a sewer or waterworks system; therefore, as the city was not, at the time of the election, indebted up to the 3 per cent. limit, only the amount of indebtedness for the construction of the sewer system which exceeded the 3 per cent. limit was authorized, and the city could not, before issuing bonds for such system, incur other indebtedness up to the 3 per cent. limit.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1828-1835; Dec. Dig. 864.]

2. MUNICIPAL CORPORATIONS

DEBTEDNESS-ELECTIONS.

864

IN

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1828-1835; Dec. Dig. 864.]

appealed.

As we gather them from the record, the events giving rise to the controversy may be stated as follows: On December 9, 1913, the council of the defendant city passed an ordinance, submitting to the taxpayers the

3. APPEAL AND ERROR 855-DETERMINA-question whether the city should contract

TION-QUESTIONS PRESENTED FOR REVIEW. Where a question decisive of the case is presented by the record, the Supreme Court will determine it, though it did not appear to have been considered by the trial court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3406; Dec. Dig. 855.]

Appeal from District Court, Chouteau County; J. W. Tattan, Judge.

Action by Charles Lepley against the City

of Ft. Benton and others. From an order vacating a temporary injunction, plaintiff appeals. Reversed.

Stranahan & Stranahan, of Ft. Benton, for appellant. Pray & Callaway, of Great Falls, for respondents.

an indebtedness to the amount of $33,000 by an issue and sale of its bonds to procure funds for the construction of a sewer system It was recited in the ordinance that the indebtedness thus to be incurred, including existing indebtedness, would exceed the constitutional limit of 3 per cent, of the assessed valuation of the property in the city. In pursuance of the ordinance the election was held on January 30, 1914, and by a majority vote the issuance of the bonds was author ized. On June 1, 1914, the council passed a second ordinance, submitting to the qualified electors the question whether the city should contract an indebtedness to the amount of

$17,000 by an issue and sale of its bonds to at which the debt was authorized, without procure funds to construct a municipal light-regard to what was subsequently done.

[1] The decisive question in the case therefore is: Could the council, under the provisions of the Constitution and statute applicable, arbitrarily class the debt authorized at the election of January 30, 1914, as falling exclusively within the 10 per cent. limit, leaving an unabsorbed margin within the 3 per cent. limit for other indebtedness?

Section 6, art. 13, of the Constitution, declares:

ing plant. This ordinance recited that the proposed indebtedness, together with that already outstanding, would not exceed the constitutional limit of 3 per cent. The election held on July 10, 1914, resulted in a favorable vote. On August 1st a contract was let by the council for the construction of the sewer system. The resolution, letting this contract, recited that it was let upon the condition that a sale of the bonds could be effected. The formal contract was executed "No city, town, township or school district on August 8th. A sale of the bonds not hav- shall be allowed to become indebted in any ing been effected, on September 8th the con- cluding existing indebtedness in the aggregate manner or for any purpose to an amount, intract was so amended by consent of the con- exceeding three per centum of the value of the tractor as to extend the time within which taxable property therein, to be ascertained by the work of construction should be com- the last assessment for the state and county pleted. On January 6, 1915, the council ef-edness, and all bonds or obligations in excess of taxes previous to the incurring of such indebtfected a sale of all the bonds authorized at such amount given by or on behalf of, such city, both elections, the lighting plant bonds first, town, township or school district shall be void; and the sewer bonds a few minutes later. provided, however, that the Legislative Assembly may extend the limit mentioned in this secThe course pursued by the council indicates tion, by authorizing municipal corporations to that at the time the first issue of bonds was submit the question to a vote of the taxpayers proposed, it held the view that the power of affected thereby, when such increase is necessary to construct a sewerage system or to procure a the city to incur any further indebtedness supply of water for such municipality which within the 3 per cent. limit would be fully shall own and control said water supply and exhausted by that issue. The proposition to devote the revenue derived therefrom to the payment of the debt."

Subdivision 64 of section 3259 of the Revised Codes was enacted in part to effectuate this provision, and, so far as applicable here, is simply an enactment of the provision of the Constitution in statutory form. The provision was examined and construed in Butler v. Andrus, 35 Mont. 575, 90 Pac. 785. After stating the purpose of the limitation imposed by the provision, this court said:

make the second issue was therefore an afterthought, the council having doubtless concluded that it could class the whole of the issue first authorized within the 10 per cent. limit, and thus leave a margin within the 3 per cent. limit for the issue of those subsequently authorized. Otherwise the order adopted for the sale of the bonds cannot be explained. Indeed, it is claimed by counsel for defendants that the sale of the issue authorized at the June election, first in order, classed the amount represented by them with-clear and unambiguous, and means just what it in the 3 per cent. limit, with the result that the issue authorized by the election in January would automatically fall exclusively under the 10 per cent. limit. At the hearing of the motion it seems to have been assumed by counsel on both sides that this would ordinarily have been the result in such case. Counsel

"The constitutional limitation in question is says, to wit, that no indebtedness may be contracted in any manner or amount, for any purpose, in excess of the prescribed limit. State ex rel. Helena Waterworks Co. v. City of Helena, 24 Mont. 521, 63 Pac. 99 [55 L. R. A. 336, 81 Am. St. Rep. 453]. The proviso under which the Legislature may authorize an extension of the limit is also clear in purpose, to wit, to allow an extension of this limit when such exten

for the plaintiff insist, however, that such sion (increase) is necessary to construct a sewerage system or procure a water supply. It could not have been the result here, because cannot be granted or be made available for any the pursued by the counsel in letting the other purpose nor under any other circumstancsewer construction contract on August 11, es than those which create the necessity for it. 1914, by which it became bound to the the expression, and an additional indebtedness The Legislature, in granting the privilege, used amount of $33,000, fixed the status of the shall be incurred when necessary to construct,' bonds authorized to this amount as within etc. This language seems susceptible of but the 3 per cent. limit so far as there was any if there is no debt already contracted, for the one construction. There may be no extension, further margin within that limit, and hence word 'additional' qualifies the character of the exhausted the power of the city to incur any debt to be contracted, and refers also to a prefurther indebtedness. This contract was ad- may be added. The word 'necessary' defines the existing amount of indebtedness to which it mittedly made contingent upon the sale of the condition of affairs which requires the additionbonds; but it follows that when the sale was al indebtedness. The condition must be such effected, the city became indebted to the full as to create the necessity. If a municipality amount of the bonds and liable to the con- the necessary funds in its treasury, no addiis not indebted in any amount at all, or if it has tractor for the same amount, contingent only tional indebtedness can be incurred; nor can it on his performance of the contract. There- be said that any necessity has arisen demanding fore the status of this indebtedness, as to it. Otherwise, we are compelled to the conclusion that, whenever a city government has its classification within one limit or the oth-determined to construct a sewerage system or er, thus became fixed by relation to the date procure a water supply, this fact of itself cre