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personal property as shall have the effect of a mortgage or lien upon such property. [C. L. § 2808.

A conditional sale of personal property, with delivery of possession to the vendee with an agreement that the property in the chattels is not to vest in the vendee until the performance of the condition, is not fraudulent per se, and is valid as against third persons claiming through the vendee. Shoshonetz v. Campbell, 7 U. 46; 24 P. 672. For discussion of the distinction between a pledge and a chattel

mortgage, see Hyams v. Bamberger, 10 U. 3; 36 P. 202. A conditional sale of merchandise to be resold by the vendee, is valid, as against his attaching creditors. Hirsch v. Steele, 10 U. 18; 36 P. 49. In the absence of fraud an agreement for a conditional sale is good and valid as well against third persons as against parties to the transaction. Russell v. Harkness, 4 Ü. 197; 7 P. 865. Affirmed, 118 U. S. 663.

160. Foreclosure by advertisement. Notice. Notice that such mortgage will be foreclosed by a sale of the mortgaged property or some part thereof, shall be given as follows: by advertisement published at least once a week for two successive weeks prior to the sale in some newspaper printed in the county in which such sale is to take place, or, in case no newspaper is printed therein, by posting up notices at least ten days prior to the sale in at least five public places in such county, two of which shall be in the precinct where the mortgaged property is to be offered for sale.

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161. Id. Contents of notice. Every such notice shall specify: First, the date of the mortgage and where filed; second, the names of the mortgagor and mortgagee and the assignee of the mortgagee, if any; third, the amount claimed to be due thereon at the time of the first publication or posting of such notice; fourth, a description of the mortgaged property conforming substantially with that contained in the mortgage; fifth, the time and place of sale.

Neb. (1895) 729*.

162. Id. Sale. All sales shall be made within thirty days after the seizure of the property, unless the same shall be postponed as hereinafter provided. All sales shall be made by public auction, and shall be commenced between the hours of twelve, m., and four o'clock p. m., and shall be held in the county where the mortgage was first filed, or in any county where the property may have been removed by consent of parties and in which the mortgage was duly filed, and in view of the property so being sold. The mortgagee, his assignees, and his or their legal representatives, may fairly and in good faith purchase any of the mortgaged property offered at such sale, and when the mortgage shall have been foreclosed as herein provided, any and all right and equity of redemption which the mortgagor may or might have had shall be and become extinguished.

Neb. (1895) 22 731-3.

163. Postponement of sale. Any sale may be postponed to a definite time by public announcement made at the time and place of sale, with the consent of the mortgagor, if he is present; provided, that if a sale be postponed for more than one week, notice shall be given by publication, or by posting as in the first instance.

N. Dak. (1895) % 5887".

164. Return of sale. Penalty. Within ten days after the sale of any mortgaged property as hereinbefore provided, the mortgagee or his assignee shall make, or cause to be made, a statement under oath of the proceedings under such sale, specifying particularly the property sold, the amount received therefor and the costs and expenses, which shall be itemized, and the disposition made by him of the proceeds of the sale, and shall deliver the same to the mortgagor or send the same to him by registered letter; and on failure so to do shall forfeit to the mortgagor the sum of twenty-five dollars damages.

N. Dak. (1895) ? 5888*.

165. Distribution of proceeds. Fees. Out of the proceeds arising from the sale, the person making the sale shall pay: First, the costs and expenses of foreclosure; second, the amount of the mortgage debt due to the person entitled thereto; and, third, the balance, if any, to the owner of the mortgaged property.

The fees for the publication of notice shall in no case exceed the sum of three dollars. The fee of the person crying the sale shall be two dollars per day. N. Dak. (1895) 5889*.

166. Fraudulent disposal of property. Any mortgagor, agent, servant, or employee of any mortgagor of personal property who shall, during the time such mortgage remains in force, destroy, sell, conceal, or otherwise dispose of the whole or any part of the mortgaged property, or who shall remove the same or any part thereof from the state without the written consent of the mortgagee, his legal representatives or assigns, shall be deemed guilty of obtaining money under false pretenses, and, on conviction thereof, shall be punished by a fine not exceeding three times the value of the property described in the mortgage, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment. The term mortgage in this section shall embrace deeds of trust and all instruments intended as security for debt. [C. L. §§ 2811-12.

167. Wife must concur. It shall be unlawful for the husband, where the relation of husband and wife exists, to create any lien by chattel mortgage or otherwise, upon any personal property owned by him and exempt by law to resident heads of families from seizure and sale upon any attachment, execution, or other process issued from any court in this state, without the consent of his wife; and from and after the time when this title shall take effect, no such mortgage of personal property shall be valid unless executed by both husband and wife. Kan. (1889)

3914*.

168. Conditional sales to railways. The provisions of this title shall not apply to contracts made by any railway company owning or operating a railway in this state, for the possession, use, and conditional purchase of rolling stock and equipments to operate such railway, and containing the condition that the title shall not pass until full payment of the purchase price; and such contract shall be valid as to all persons without recording the same. [C. L. § 2814.

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169. Petition for incorporation. When the inhabitants of any part of any county, not embraced within the limits of any city, shall desire to be ized into a city, they may apply, by petition in writing, signed by not less than one hundred of the qualified electors of the territory to be embraced in the proposed city, to the board of county commissioners of the proper county, which petition shall describe the territory proposed to be embraced in such city, and shall have annexed thereto an accurate map or plat thereof, and state the name proposed for such city, and shall be accompanied with satisfactory proof of the

number of the inhabitants within the territory embraced in said limits. § 1709.

Legislature shall provide for municipal incorporation by general law, Con. art. 11, sec. 5.

[C. L.

170. Proceedings. Election. When such petition shall be presented, the board of county commissioners shall forthwith designate the class of the proposed city, and in cities of the first or of the second class, designate the boundaries of the municipal wards thereof, and shall fix the time and place within the boundaries of such proposed city at which the election may be held to determine such question. Such election shall be held and conducted, as nearly as may be, in the same manner as provided by law for conducting general elections. Before such election is held, the board of county commissioners shall give notice by publication in some newspaper published within said limits, if there be one, at least once a week for four successive weeks; but if there be no newspaper published therein, then by posting notices at least four weeks in five public places within said limits. Said notices shall contain a statement of the contents of the petition and describe the territory proposed to be incorporated, and the officers to be elected, and shall also designate the time and place at which the election shall be held. The ballots used at such election shall be "for incorporation," or "against incorporation," and if for incorporation," the names of the persons to be voted for. [C. L. § 1710.

171. Notice of result. If a majority of the ballots cast at such election be in favor of incorporation, the county clerk shall immediately, on the result of the canvass of the returns of said election being filed in the proper office, give notice of the result by publication in the same manner and for the same time as provided in the preceding section, and in such notices he shall designate to which of the classes of municipal corporations hereinafter provided such city shall belong. A copy of the notice, with proper proof of its publication, shall be filed with the papers, and a certified copy of all papers and record entries, relating to the matter on file in the clerk's office, shall be filed in the office of the county recorder and in the office of the secretary of state. Upon the filing of said papers, it shall be the duty of the secretary of state to make publication in some newspaper having general circulation within the state, of the incorporation of said city. [C. L. $ 1711*.

172. Officers to be elected. Canvass. At the time of holding said election the qualified voters within the limits shall vote for the municipal officers hereinafter provided for. The canvass and returns of the votes cast at said election shall be made as provided by law. [C. L. § 1712*.

Bonds of officers, 217.

173. Incorporation complete, when. When the papers referred to in section one hundred and seventy-one are filed and the officers are elected and qualified for such city, and publication is made by said clerk and the secretary of state, the incorporation thereof shall be complete; and all courts in this state shall take judicial notice of the existence of such city. [C. L. § 1713*.

174. Classification of cities. Municipal corporations in this state now existing and those hereafter organized shall be, and the same are hereby divided into three classes. Those cities having twenty thousand or more inhabitants shall be known as cities of the first class; those cities having more than five thousand and less than twenty thousand inhabitants shall be known as cities of the second class; and all other cities shall be known as cities of the third class. [C. L. § 1722. Courts will take judicial notice of the fact that its part. Overruling Hays v. Corey, 6 U. 150; 21 P. Salt Lake City has a population sufficient to make 1089. People, ex rel. Bynon, v. Page, 6 U. 353; 23 it a city of the first class, and, as such, it becomes P. 761. one of the proper class without any act done upon

175. Change of class. Whenever any city of the second class shall have attained the population of twenty thousand or more, or any city of the third class, or town, shall have attained the population of five thousand or more, and such

fact shall have been duly ascertained and certified to the governor by the mayor or the president of the board of trustees, he shall declare, by public proclamation, such city or town to be of the first or of the second class, as the case may be, and such city or town, thus changed, shall be governed by the provisions of this title applicable to cities of such class. [C. L. § 1724*.

Taking census, 206, sub. 72.

176. Judicial notice of change. All courts in this state shall take judicial notice of the change of the organization of any city or town. C. L. § 1718*.

177. Legal results of change in classification. All rights and property of every kind and description which were vested in any municipal corporation under its former organization shall be deemed and held to be vested in the same municipal corporation upon its becoming incorporated under the provisions of this title; but no rights or liabilities, either in favor of or against such incorporation existing at the time of becoming so incorporated under this title, and no action or prosecution of any kind shall be affected by such change; but the same shall stand and progress as if no change had been made; provided, that whenever a different remedy is given by this title, which may properly be made applicable to any right existing at the time of such city or town so becoming incorporated under this title, the same shall be deemed cumulative to the remedy before provided. and used accordingly. [C. L. § 1720.

Similar section, 311.

178. Id. Ordinances. All ordinances and resolutions in force in any city or town when it shall change its organization under this title, shall continue in full force and effect until repealed or amended, notwithstanding such change of organization; and the making of such change of organization shall not be construed to affect the change in the legal identity of the corporation of such city or town, provided such ordinances and resolutions do not conflict with the provisions of this title. [C. L. § 1721*.

179. Id. Officers. When any town or city shall, by proclamation of the governor, become a city of the second class, or any city of the second class shall in like manner become a city of the first class, the officers then in office shall continue to be the officers of the city until the next municipal election, and until their successors shall be duly elected and qualified. When new territory is organized as a city or town, or a town becomes a city, by petition and vote of the people, the officers first elected shall serve until the next municipal election, and until their successors shall be duly elected and qualified.

180. General powers of corporation. Cities and towns incorporated under this title shall be bodies politic and corporate and shall be known and designated by the name and style adopted, and under such name may sue and be sued, contract and be contracted with, acquire and hold real and personal property for corporate purposes, have a common seal, and may change the same at pleasure, have perpetual succession, and exercise all the powers hereinafter conferred. [C. L. § 1719.

181. Municipal wards. All incorporated cities of the first and of the second class shall be divided into five municipal wards, the boundaries of which shall be prescribed by ordinance; provided, that the boundaries of municipal wards shall not be changed oftener than once in five years, and the wards shall be as nearly as may be of equal population, and in compact form. [C. L. $ 1725*

182. Government. The municipal government of all incorporated cities is hereby vested in a mayor and a city council. In cities of the first class, the city council shall be composed of fifteen councilmen, three from each ward; in cities of the second class, of ten councilmen, two from each ward; and in cities of the third class, of five councilmen, chosen at large by the qualified voters of the city. [C. L. §§ 1726*, 1728*, 1729*.

183. Mayor and councilmen. Qualifications. Mayors and councilmen shall be qualified voters within their respective cities, and councilmen of cities of the first and of the second class shall be qualified voters of their respective wards. [C. L. §§ 1726*, 1728*, 1729*.

184. Id. How chosen. Mayors shall be chosen by the qualified voters of their respective cities, and councilmen of cities of the first and of the second class by the qualified voters of their respective wards. [C. L. §§ 1727-9*. Municipal elections, general provisions, 22 887-891.

CHAPTER 2.

MAYOR.

185. Mayor and mayor pro tem. The chief executive of a city shall be the mayor and during his temporary absence or disability the city council shall elect one of its number to act as mayor pro tem., who, during such absence or disability, shall possess the power of mayor. [C. L. SS 1730, 1732*; '94,

pp. 6-7.

Qualifications of mayor, 183; by whom chosen, ? 184.

186. Vacancy. Whenever a vacancy shall happen in the office of mayor, the city council shall elect a mayor, who shall possess all the rights and powers of mayor until the next municipal election, and until his successor is elected and qualified. [C. L. § 1731.

187. Removal. If a mayor, at any time during his term of office, shall remove from the limits of the city, his office shall thereby become vacant. [C. L. $ 1733.

188. Mayor to preside over council, when. In cities of the third class, the mayor shall preside at all meetings of the city council, but shall not vote except in case of a tie, when he shall give the casting vote. [C. L. § 1734*; '92. p. 17.

189. Powers, generally. He may exercise within the city limits the powers conferred upon him to suppress disorder and keep peace; and he may remit fines and forfeitures and release any person imprisoned for violation of any city ordinance, and shall report such remittance or release, with the cause thereof, to the city council at its next session. [C. L. § 1736.

190. Duties. He shall perform all duties which are or may be prescribed by law, or by ordinance, and shall see that the laws and ordinances are faithfully executed. [C. L. § 1737.

191. May examine books. He shall have power at all times to examine and inspect the books, records, and papers of any officer or agent employed by the city. [C. L. § 1738.

192. Messages. The mayor shall from time to time give the council information relative to the affairs of the city, and shall recommend for their consideration such measures as he may deem expedient. [C. L. § 1739.

193. May call out inhabitants. He shall have power, when necessary, to call upon every male inhabitant of the city over the age of twenty-one years to aid in enforcing the laws and ordinances, in suppressing riots and other disorderly conduct, or in carrying into effect any law or ordinance of the city. § 1740.

[C. L.

194. Revision of ordinances. He may appoint, by and with the advice of the city council, one or more competent persons to prepare and submit to the city council for their adoption or rejection, an ordinance in revision of the ordinances

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