Page:North Dakota Reports (vol. 48).pdf/59

city commissioners and began to make a survey of the streets and alleys which it was proposed to pave and to collect the data for the preparation of the plans and specifications ; that a large majority of the property holders affected by the proposed paving have protested to the said city commissioners and remonstrated against said paving or any part thereof being constructed, but that in disregard of said protests, the engineers are proceeding with the survey and preparation of their plans and specifications and that they intend to present and file said plans and specifications with the city auditor as soon as they are prepared; and that the city commissioners intend to pay out of the city treasury a large sum to said engineers to compensate them for said work and will do so unless restrained from so doing; that such payment will be made by warrants drawn upon paving districts Numbered 2 and 3, and that said Board will order that the property of said districts, including the property of plaintiff he specially assessed to pay said warrants; that the defendants are threatening to proceed with the procuring of said plans, and with the construction of said proposed paving, and unless restrained from so doing, will incur costs and expenses therefor and cause the same to be paid by warrants drawn upon said paving districts Nos. 2 and 3; that no necessity exists for the making of said proposed improvement or for procuring plans and specifications therefor; that said board has proceeded arbitrarily, knowing that no necessity exists, and that their acts have been and will continue to be against the wishes and desires of the plaintiff and that the cost thereof will be prohibitive. The demand for relief is that the defendants be enjoined from doing any of the acts complained of. The defendants demurred to the complaint upon the ground, among others, that it did not state facts sufficient to constitute a cause of action. The trial court issued an order to show cause why injunction should not issue pendente lite. A hearing was had upon such order, at which affidavits were presented by the respective parties. The plaintiff submitted the verified complaint and his own affidavit stating substantially the same facts, as those set forth in the complaint. The defendants submitted six affidavits, namely, the affidavits of four members of the city commission, the city auditor and the consulting engineer. From these affidavits it appears that the consulting engineer is working under a contract by the terms of which he “will not be entitled to compensation for services in connection with the paving of districts Nos. 2 and 3 of the city of Devils Lake until such time as a contract or contracts are let for the paving of