tions of the Code and the ordinances of the city, and prayed that the latter be declared void, and the contract invalid. Thereafter Nancy Reed intervened, and asked for substantially the same relief. Upon hearing, both the petition of plaintiff and that of intervener were dismissed, and they appeal. Affirmed. T. M. Giberson and W. J. Grunewald, for appellant Grunewald. J. A. Reed and Rickel, Crocker & Tourtellott, for appellant Reed. Redmond & Stewart, for appellees Ford & De La Hunt. J. N. Hughes, for appellee city of Cedar Rapids. LADD, C. J. The practical object of this action is to enjoin the construction of a sewer system according to the district plan provided in the Code. The ordinance adopted by the council of Cedar Rapids in 1900 contains substantially the same provisions as the statutes. It created of the entire city one sewer district, as was authorized by section 79 of the Code, providing that the council "may by ordinance divide such city into such sewer districts as the council may determine, numbering them consecutively, or the entire city may be included in one district." See section 962. It also authorized the city council to levy at one time the whole of the cost of any such sewer as an assessment on all the taxable real property within said district subject to special taxation. Appellants contend that the statutes do not confer authority "to levy a district sewer fund on all the real estate" of the city included in a single district. The power to levy the tax for a sewer fund is found in subdivision 3 of section 1005 of the Code: "Where the city has been divided into sewer districts, a tax not exceeding five mills on the taxable real property in the district, for the district sewer fund, to be used to pay in whole or in part, the cost of the making, reconstruction or repair of any sewer located or laid in that particular district; provided that, on petition of the owners of two-thirds in value of all the taxable real estate within such sewer district for the construction of a sewer in such district, then the maximum percentage of taxes that can be levied in any one year shall not be limited to five mills but shall be such percentage of the valuation of such property as will produce at least onetenth of the whole cost of such sewer assessable upon the real property in such district." The point made is that this section contemplated the creation of more than one district. It is plain, however, that the division suggested is that authorized by the statute heretofore quoted. The very object in allowing the creation of one or more districts was to effectuate the just distribution of the burdens, imposed in making the improvement. Save for that purpose, nothing could be at tained in dividing the city or by including it in one district. Words importing the plural number may be applied to one person or thing (section 48, Code), and, in order to give full effect to both sections, the last must be construed to have reference to such district or districts as may be formed under the authority of the first. Grimmell v. City of Des Moines, 57 Iowa, 144, 10 N. W. 330, is conclusive on this question. 2. Section 978 of the Code reads: "When the whole or any part of the cost of the making or reconstruction of any sewer shall be ordered paid from the district or city sewer fund, the council may after the completion, by resolution, levy at one time the whole or any part of the cost of such sewer upon all taxable real property within such sewer district, or within the district, and determine the whole percentage of taxes necessary to pay the same and the percentage to be paid each year, not exceeding the maximum annual limit of such taxes, and the number of years, not exceeding ten, given for the maturity of each installment." In pursuance of this authority the fourth paragraph of the ordinance enacted that: "The city council shall levy at one time the whole of the cost of any such sewer as an assessment upon all the taxable real property within said district, subject to special taxation, which assessment shall be due and payable in ten annual payments. One installment with interest at 6 per cent. upon the whole am unt shall be due and payable at the same time as the general city tax next after making such levy; and one like installment, with interest on the amount remaining unpaid, each year thereafter until the whole amount is paid. The same shall become delinquent at the same time and bear the same penalty as the general city tax." The municipality is only liable, under the ordinance and statute, for the levy and collection of the tas. As the city was indebted in excess of 5 per cent. of the taxable property therein, both this statute and the ordinance are assailed as being against the cnstitutional inhibition of an indebtedness "in any manner or for any purpose to an amount in the aggregate, exceeding 5 per cent. on the value of the taxable property within such county or corporation." Section 3, art. 11, Const. There are two answers to this objection. The first is that a tax, in the legal sense, is not a debt. In the recent case of Plymouth Co. v. Moore, 87 N. W. 662, we said: "The weight of judicial opinion seems to be that a tax is not a debt within the commonly accepted definition of that word.” To the same effect, see Burnham v. City of Milwaukee (Wis.) 73 N. W. 1018; Sackett v. City of New Albany, 88 Ind. 473, 45 Am. Rep. 467. The second is that this tax, if a debt, is not an obligation of the city, but of each individual property holder. The municipality is bound to levy, collect, and pay over, and is answerable for nothing save the performance of these duties. See Ft. Dodge Electric Light & Power Co. v. City of Ft. Dodge (Iowa) 89 N. W. 7. It is not obligated to pay the money from any other source. If the Its duties end in compelling others to pay. Beyond this its obligation does not extend. In Water Co. v. Woodward, 49 Iowa, 58.-a somewhat similar case in principle,-the court said: "The obligation of the city is to levy the tax, and see that the amount collected is applied to the specified purposes. special fund legally provided is not sufficient, then it may be well said the deficiency is not payable by the city, and it is difficult to conceive that there can be such a thing as a debt which is never to be paid. No burden is created thereby, and there cannot be such indebtedness. In a constitutional sense the prohibited indebtedness must be a burden, and payable by the city from funds which could not constitutionally be appropriated to that purpose." In Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532, after referring to the above decision, our conclusion was thus stated: "If the city obligates itself to pay, no matter what its revenues from special assessments, a debt is created, which falls within the constitutional inhibition. If, however, it simply appropriates a part of its revenues, and pledges them to the payment of the obligation, or if it simply undertakes, as a trustee or agent, to collect these assessments, and apply them on the work, without liability on its part for anything further, then no debt is created." In an exhaustive review of the authorities generally by Weaver, J., in Swanson v. City of Ottumwa (decided at present term) 91 N. W. 1048, a similar plan, directed to the payment of a system of waterworks, was approved, "no good reason" being found "to condemn it as an unconstitutional exercise of municipal power." The scheme enables a city already involved in debt to provide for necessary improvements, or to procure public utilities on the installment plan. With the wisdom of conferring such a power we have no concern. Of necessity much must depend upon the discretion with which it shall be exercised and the objects to be attained. The rapid growth of many cities in the state has rendered it all but impossible to make necessary improvements with the funds available from the obligations within the constitutional limit, and this method of anticipating moneys to be paid in installments during a series of years, if not abused, as we must assume it will not be.-may prove of great value to the people directly interested. As the limitation of the constitution is not on the power of taxation, the plan followed by the city is not obnoxious to its provisions. 3. Appellant Reed also insists that chapter 29 of the Acts of the 28th General Assembly requires the cost of construction to be first assessed against the particular property benefited, and only the balance of the expense, after applying the fund so derived, be paid from the general sewer fund. The limitations of that chapter apply to special assessments on abutting property, and there is no basis whatever for this contention. 4. Again, appellant Reed, conceding, for the sake of argument, the naked authority to enter into the contract and make the levy, urges that the exercise of this power has been so arbitrary, oppressive, and unreasonable that the court should interfere. This contention seems to be grounded on the assumption that sewerage has been established in a large portion of the city, and paid for by special assessment against the property benefited, and that the method proposed will charge such property again for similar improvements, from which no special benefit will be derived. The trouble with appellant's argument is that the facts are not as assumed. While the cost of lateral sewers has been assessed to abutting property, in large part, at least, the main arteries, since 1885, have been constructed at the expense of the city. That year a comprehension system of sanitary and stormwater sewerage was perfected by an engineer named Davis, and $100,000 raised by the sale of city bonds to begin its construction. It is agreed that the money was expended for that purpose, and trunk sewers have not been put in since, save at the cost of the city. In view of this situation it would seem that the plan proposed is less likely to result in discrimination in the distribution of the taxes than that which might result from a change in method of payment. Independent School Dist. v. City of Burlington, 60 Iowa, 500, 15 N. W. 295. Perfect equalization of tax burdens may never be expected, but in a series of years the plan adopted by the city council will be as likely as any other to equitably distribute the cost of such improvements as here proposed; not especially, though often incidentally, beneficial to abutting owners. 5. The charge of collusion and bad faith in bringing the suit is unsupported by the evidence. The claim that favoritism was shown the successful bidder is without foundation. It seems that the bonds, as they were to bear 6 per cent. interest, are marketable at a considerable premium; and, without the slightest evidence to sustain the accusation, intervener argues that the mayor of the city secretly advised Ford & De La Hunt that they would be paid in bonds, rather than from the proceeds of a sale thereof; and that, because of this information, they were given an unfair advantage, and enabled to underbid competitors. The city ordinance, in harmony with the statute, provided that the bonds may be sold at public or private sale, or paid to the contractor in payment of the sewer. The specifications were silent as to the manner of payment, but the resolution ordering the construction of the sewer stipulated that they were "to be paid for in storm-water sewer bonds." The pub lished notice for bids contained the same clause, and the fact that Ford knew his firm was to receive bonds in payment for the work was better evidence of the possession of ordinary intelligence and the ability to read than of some secret connection with the executive officers of the city. If other bidders were equally fortunate, they could experience no difficulty in ascertaining that payment was to be made in bonds. The recklessness of the charge is further illustrated by the fact that the successful bid was $14,914 lower than any other, while the probable premium on the bonds, according to the evidence, will not exceed $8,000. That the mayor was a member of the firm of lawyers employed by the contractor in this action is not evidence that he was retained prior to its beginning. The accusation in its entirety is without foundation. The court rightly dismissed both petitions. Affirmed. WALTS et al. v. GRAND LODGE OF IOWA 1. From proof of genuineness of deceased's signature to a letter written by his second wife, directing that she and their child be substituted as beneficiaries in his benefit certificate, arises a presumption that the letter was voluntarily and consciously signed, with knowledge of its contents, which is not affected by the fact that no witness was present. 2. That one was frequently in a stupor, by reason of drugs administered to allay pain, during which time he talked irrationally, does not discredit his mental capacity during the intervals of wakefulness, when he talked rationally. 3. That one in directing change in the beneficiaries in his benefit certificate wrote a letter, instead of filling out blanks thereon as directed, does not tend to show lack of mental capacity. Appeal from district court, Polk county; C. A. Bishop, Judge. Action to recover on a beneficiary certifiIcate in the Grand Lodge of Iowa Workmen of the State of Iowa, issued to Marvin Walts, deceased. Defendant Maggie Walts is the widow of deceased and Alvin Walts their son. Plaintiffs are children of deceased by a former marriage. The grand lodge paid the amount of the certificate into court, asking that the right thereto be determined as between the other defendants (who will be treated as the sole defendants in this opinion) and the plaintiffs. Plaintiffs claim under the certificate as originally issued, while defendants claim by virtue of a change of beneficiary, alleged to have been made by direction of deceased before his death. Judgment for defendants, from which plaintiffs appeal. Affirmed. Thomas A. Cheshire, for appellants. Courtright & Arbuckle, for appellees. MCCLAIN, J. The attempted change of beneficiary, the validity of which is in question, was made by the officers of the grand lodge in pursuance of a letter in the handwriting of Maggie Walts, requesting that the change be made, to which her husband's name was affixed in his own handwriting, with the additional words following his name, also in his handwriting, "This is my wish to have it done;" and the only question in the case is as to whether this letter, containing the direction for change of beneficiary, was the valid act of the deceased. That the signature and words following it, above quoted, were in his handwriting, is not disputed; but it is contended that there is no sufficient evidence that the contents of the letter which he signed were known or assented to by him, and it is further contended that he was not at the time of affixing his signature possessed of sufficient mental capacity to exercise the authority to make the change of beneficiary directed in the letter. In the first place, it must be conceded that on proof of the genuineness of the signature it is to be presumed, in the absence of any evidence or circumstances pointing to a contrary conclusion, that the letter sent was the voluntary act of the deceased, executed with his knowledge of its contents, and with the intent that it should be acted upon by the officers of the grand lodge. Although counsel for plaintiffs contends that the failure of Maggie Walts to have any witness present at the time when, according to her testimony. she wrote the letter under her husband's direction, and he affixed his signature thereto, is a suspicious circumstance, sufficient to overcome the presumption arising from the proof of the genuineness of the signature, we find nothing in the evidence throwing legitimate suspicion upon the transaction, or rendering it necessary for her to explain or substantiate it. She is, of course, incompetent as a witness to testify with reference to the transaction between herself and husband in connection with which the letter was written and signed, but no evidence is necessary, in the absence of any showing that the letter was not voluntarily and consciously signed, with knowledge of its contents. The instrument speaks for itself. In this connection the claim is made for plaintiffs that there is evidence to show that the intentions of deceased existing up to the time of the writing of this letter were to have the certificate continue in force for the benefit of plaintiffs, and that this fact tends to discredit the letter directing that the change of beneficiary be made. But the whole evidence on the subject amounts to this: that about the time of the marriage of deceased to his second wife he did express an intention that the certificate should remain payable to his children by his first marriage, but subsequently, and prior to the commencement of the sickness which finally resulted in his death (during which sickness the letter in question was written), he wrote a letter to the officers of the grand lodge, asking how a change of beneficiary might be made, and expressing the intention to make such change, and after the writing of the letter in which the change was definitely directed, he spoke of having written it, and expressed anxiety as to whether the officers of the grand lodge had received and acted upon it. It is true that there is some effort made, by way of argument, to throw discredit on the evidence of witnesses as to these matters, but we may say here, with reference to the entire evidence in the case, that while conflicting in some minor details, there is no substantial conflict as to any of the material facts, and there is no reason to believe that any of the witnesses have testified falsely. There is no occasion disclosed by the evidence for presuming that at the time deceased signed the letter directing the change of beneficiary he did not intend to direct such change to be made, unless it shall be found either that he was unduly influenced by his wife, or was mentally incapable of doing a valid legal act. As to suggestions of undue influence, all we need to say is that there is no evidence with reference thereto. There was ample opportunity, no doubt, for the wife to exercise such influence, if she was able to do so, and thereby control her husband's action; but the burden of proof is on the plaintiffs to show it if it existed, and there is not the slightest support for the claim. quently about getting a double shovel plow and seed potatoes, but it appears on investigation that, absurd as this talk on his part may have been under the immediate circumstances and surroundings, nevertheless it was addressed to one with whom he had formerly had conversations in regard to opening a garden in the spring, which was then not far distant, and the only circumstance indicating that the conversation was irrational was the fact of its being wholly disconnected with the conversation which was addressed to him. Certainly no medical authority would say that this would indicate insanity, however much it might tend to prove that he was at the time partially unconscious of what was going on about him. Another witness dwells on the fact of his lamentations in regard to his financial condition, basing his surprise at these lamentations on the assumption that the deceased was well off; but the testimony further discloses that at the time of his illness deceased had but little ready money, and that his homestead was under mortgage, and it is certainly not surprising that one in the distress of a severe illness, and anticipating approaching dissolution, should feel anxious as to the condition of the family dependent upon him. Without discussing the evidence further, it is enough to say that it does not tend to prove an unsound mind. That deceased was frequently in a stupor would not discredit his intelligence and comprehension of his legal relations during intervals of wakefulness, and it clearly ap pears that he had such intervals from day to day, during which he talked rationally and intelligently. See Reeves v. Howard (decid To make clear the position of plaintiffs with reference to the mental capacity of deceased at the time the letter directing the change was written, some further facts must be stated. Marvin Walts, just prior to his last illness, a few weeks before his death, was a man of about 63 years of age, perhaps of impaired physical vigor, but capable of carrying on his occupation as a carpenter. During his last illness he was afflicted with a variety of diseases, including acute bron-ed at present term) 91 N. W. 896. chitis, inflammatory rheumatism, and neuralgia of the heart. Especially during the first two or three weeks of illness, he suffered perhaps almost continuously acute and distressing pain, to relieve which his attending physician administered, and directed the administration of, considerable and frequent doses of medicine, including chloral and morphine. As a result of the administration of the medicine and the fever attending his diseases, the patient was frequently, and sometimes for a considerable part of each day, in a condition of stupor and unconscious, and during his unconsciousness he was frequently flighty, and talked irrationally. This general condition continued up to about the time when the letter was written, and several witnesses who saw him during this time gave it as their opinion that he was not of sound mind, and was incapable of exercising a valid legal judgment. But looking at the facts to which they testified, and on which their opinions are based, it becomes perfectly plain that there was no sufficient evidence of insanity or mental unsoundness. For instance, much stress is laid on the fact that during this time the deceased talked fre One other circumstance relied on in behalf of plaintiffs as showing lack of mental capacity on the part of the deceased is that, although in the letter written to him by the officers of the grand lodge, in response to his request for information as to how the change of beneficiary should be made, he was given explicit instructions to proceed by filling out and signing a blank form which he would find on the back of the certificate, and sending it to a certain specified officer, he disregarded these directions, and authorized the change in a letter, as above described, which was directed to a different officer than the one named. But certainly this does not show, or even tend to show, lack of mental capacity. It might well be that the certificate and the letter of directions were then beyond his reach, and that in his distress he adopted what was a perfectly rational, and it may be, under the circumstances, the natural, and perhaps only, method then available to him of having his wishes carried out. On the whole, after fully considering all the claims made by counsel for plaintiffs, we are satisfied that the decree of the lower court was correct, and it is affirmed. WOODARD v. NORRIS et al. (Supreme Court of Iowa. Oct. 28, 1902.) WILLS-CONSTRUCTION-APPLICATION-NOTICE -DEFAULT JUDGMENT-DENIAL OF APPLICATION TO SET ASIDE-REVIEW-ABUSE OF DISCRETION. 1. A notice served on all defendants stated that on a certain day a petition would be filed asking that the will of a testator be interpreted in so far as it relates to lands devised to a legatee, to wit, the N. W. 4, and the W. 2 of the N. E. 4, of the section, township, and range named, and for further particulars referred defendants to the petition. Held not ob jectionable because the will by mistake described a part of the land as the E. 1⁄2 of the N. E. 14 of such section, which the testator did not own. 2. The supreme court will not disturb the trial court's refusal to set aside a default judgment in the absence of a clear showing of abuse of discretion. Appeal from district court, Jasper county; W G. Clements, Judge. Appeal from an order refusing to set aside a default and a judgment rendered thereon. Affirmed. James Nugent, for appellants. W. O. McElroy and Clements & Arnold, for appellee. PER CURIAM. Timely notice was served on all of the defendants notifying them that on the 25th day of January, 1901, a petition would be on file asking that the will of "J. D. Norris be interpreted so far as the same relates to the lands devised to the said Bessic A. Woodard, to wit, the northwest quarter, and the west half of the northeast quarter," of the section, township, and range therein named. The notice also says that "for further particulars you are referred to said petition." It is contended that this notice was not sufficient, because the will devised the E. 1⁄2 of the N. E. 4, which the testator did not own, instead of the W. 1⁄2 thereof, as stated in the notice, which he did own. There can be nothing in this claim for the reason that the notice in itself gave information to the defendants that the plaintiff was making some kind of a claim to the land actually owned by J. D. Norris at the time he made his will, and for the further reason that the defendants were directed to the petition for the particulars of said claim, and in both of these respects the notice is unlike the notice in Jordan v. Woodin, 93 Iowa, 453, 61 N. W. 948. That no sufficient excuse for nonappearance was presented to the district court is clearly apparent from the record, and in fact we very much doubt the sufficiency of the showing of merits. Under the well-settled rule that we will not disturb the large discretion given the trial court in matters of this kind, unless an abuse thereof is clearly shown, we must af firm the order. See Liggett v. Worrall, 98 Iowa, 529, 67 N. W. 406. Affirmed. 2. See Appeal and Error, vol. 2, Cent. Dig. } 591; vol. 3, Cent. Dig. § 3823. SCHUNEMAN ▼. SHERMAN (DAVENPORT MALTING CO., Intervener). (Supreme Court of Iowa. Oct. 27, 1902.) MULCT LAW-STATEMENT OF CONSENT-SUBSEQUENT INCORPORATION OF TOWN. 1. Code, § 2449, requires, as a condition to sale of intoxicating liquors in towns of less than 5,000 population, a statement of general consent, signed by 65 per cent. of the voters of the county, which shall be no protection in a town in which a majority of the voters do not sign it. Section 2450 provides that the statement shall be canvassed by the board of supervisors, and its finding as to results shall be entered of record, and shall be effectual for the purposes contemplated. Held that, where a town is incorporated after the signing and canvassing of a statement of consent. it is necessary, even if a new statement need not be obtained, that there be a canvass by the board as to such town before one can engage in the liquor business therein. Appeal from district court, Dickinson county; A. D. Bailie, Judge. Injunction proceedings to restrain defendant, Sherman, from maintaining a nuisance by the sale of intoxicating liquors in a build ing in what is known as the town of Terrilt. Defendant denied that he was maintaining a nuisance, and pleaded compliance with the terms of the mulct law. The Davenport Malting Company intervened, claiming to have purchased the building wherein the nuisance is alleged to have existed after the commencement of this action, without notice that Sherman was not complying with the provisions of the mulct law, and averred that Sherman was not selling liquor in the building contrary to law. Plaintiff denied that Sherman had complied with the provisions of the mulct law. On these issues the case was tried to the court, resulting in a decree for plaintiff, and defendant and intervener appeal. Affirmed. Henry Vollmer and L. E. Francis, for appellants. Dunshee & Dorn, E. R. Acres, and St. Clair & Reigard, for appellee. DEEMER, J. Defendant and intervener admit the sale of intoxicating liquor in the building in question, and the main question in the case is whether or not they should be protected therein by reason of having complied with the provisions of what is known as the "mulct law." These provisions are pretty well understood, and we do not therefore set them out in extenso. Suffice it to say that prohibition is still the rule in this state, and freedom from the penalties imposed by the liquor law for the sale of intoxicants the exception; and he who would bring himself within the exception must prove compliance with all the conditions imposed to secure immunity. Some of these conditions are as follows: In towns having a population of less than 5,000, "a statement of general consent must be filed with the county auditor, signed by sixty-five per cent. of all the legal voters residing within the county," and such statement "shall con |