Subsequently contracts were made with W. D. Lovell for the construction of the waterworks system and with the John O’Connor Company for the construction of the sewer system; and prior to the trial said Lovell had completed all excavation work on the waterworks system and had completed: the greater part of the waterworks system, and the city council had approved the estimates of the city engineer and had issued warrants to the said Lovell in the sum of $79,923.53. The city, by condemnation suit, had procured title to a tract of land for the outlet of the sewer. The trial court found, as a fact, that the city of Hankinson had no adequate fire protection, and:
“That the only means of sanitation and disposition of sewage and refuse is by private privies and cesspools; that by reason of the condition of the soil and the general location of said cesspools citizens of Hankinson are in constant jeopardy of spread of typhoid fever and other infection and disease; that there is now in the course of construction in said city of Hankinson a large, modern, fully equipped sanitary school building, the plans of which provide for a system of sanitation, water supply, fire protection, and sewage which can be made available and useful only by the establishment of such waterworks and sewer systems provided herein.”
The court further found:
‘‘That there is no evidence to sustain the allegations of fraud and collusion set forth in the complaint, and that there is no evidence except that the defendants have each acted in the utmost good faith.”
The first, and principal, contention of the plaintiffs is that the proceedings had subsequent to the filing of protests are invalid. It is pointed out that § 3704, C. L. 1913, provides that such protests must be considered at the next regular meeting of the city council after the expiration of the time for filing a protest; that the first publication of the resolutions of necessity here was made on July 22d; that the time for filing protests expired August 6th; that on August 4th—two days before the expiration of the time in which protests might be filed—a protest signed by some 176 persons was filed; that the statute provides that the regular meetings of a city council shall be held on the first Monday of each month; that the next regular meeting of the city council after August 6th would be on the first Monday of September; that the city council here did not take action upon the protests at such meeting, but took action thereon at a meeting held August 10th.
