purposes.” Section 4 of an ordinance not pleaded, but offered in evidence, also confines the power in express terms upon the “mayor and council” to “levy the necessary taxes” on the “first Monday of September.” The answer expressly avers that the several acts pleaded by the defendant as constituting the assessment, equalization, and levy of the taxes of 1884, and embracing also the sale of plaintiff's property by the city treasurer in 1885, for such taxes, and the execution and delivery of the tax certificates and tax deed, were all and singular done and performed under and by virtue of “chapter 6 of the ordinances of the City of Fargo.”
At the trial plaintiff claimed that no such ordinance existed, because the same was never legally enacted or adopted by the city council, for the reason that upon the passage of the ordinance by the council the “yeas and nays were not entered upon the record of the city council,” as was required to be done by § 13 of the city charter. We think the evidence fully sustained plaintiff's contention on this point, and the trial court found it to be true, as a matter of fact, that the yeas and nays were not entered in the record of the city council upon the passage of the ordinance, and that “said record contains no entry of or concerning the passage of said ordinances, except as follows: “April 19th, 1881, council met pursuant to adjournment. Revised ordinances were accepted, and old ones repealed.” Upon this record we are compelled to hold, under the authorities cited below, that the alleged ordinance was not legally passed or adopted, and hence never became a valid enactment. See 1 Dill. Mun. Corp. § 291, and cases cited in note 1. See analogous doctrine applied to legislation. Cooley, Const. Lim. (6th Ed.) 168; Suth. St. Const. § 48. Our attention is directed to the fact that an ordinance was adopted in 1884, which among other things, changes the date of selling real estate for city taxes, and fixes the rate of interest on city taxes after such taxes become delinquent at a rate specified by § I of the original ordinance. But this latter ordinance purports to be only an amendment of a single section of the original
