thereof, as the said Treasurer is hereinafter directed to sell and convey property liable to street improvements: Provided, That nothing herein. shall be so construed as to prevent any person from obtaining an injunction upon the proceedings prior to the making of any such improvements. If no such appeal shall have been taken as aforesaid, it shall be the duty of such Treasurer, within ten days after the expiration of said twenty days, to levy said precept upon the lot or land therein described, and to sell the same, or so much thereof as may be necessary to pay such assessment with costs and charges. But before any such sale, he shall give notice of the time and place thereof, by advertising the same for three weeks successively in a newspaper printed and published nearest to such lot or land, if any such be printed and published within the county wherein such city is situated, and by posting up written or printed notices thereof in at least three public places in said city. And every such sale shall be by public auction, and upon or near the premises or in the City Court room of said city, in the discretion of said Treasurer. And no sale of said lot or land previous or subsequent to the date of such estimate, and subsequent to the date of such petition or determination of the Common Council to make such improvement without petition, shall invalidate or affect any sale thereof in pursuance of this Act. Upon the sale of any lot or land by virtue of such precept, and the payment of the purchase-money, the Treasurer (or, in case of his death or going out of office, his successor) shall execute, acknowledge, and deliver to the purchaser a certificate of conveyance for the premises; which shall be valid and effectual to convey all the right, title, and interest of any such owner or purchaser from him as aforesaid, except as hereinafter provided, and shall be prima facie evidence of all the facts recited therein. In case the purchaser of any real estate under a precept, as aforesaid, having paid the purchase-money therefor, shall die before a certificate of conveyance, as herein provided, shall have been executed to him, the Treasurer shall convey the same to the heirs or devisees of such deceased purchaser. The proceeds of any such sale shall be applied as follows, to-wit: Firstly, To the payment of such assessment, with interest thereon from the date of such estimate, and all costs accrued thereon by reason of said sale; and, Secondly, The residue of such proceeds shall be paid to the owner, or his or her heirs or representatives, of such real estate, if unknown, it shall be paid into the city treasury; and such city shall at all times be responsible to such owner, heirs, or representatives for such residue. The purchaser under such precept shall hold such real estate subject to the lien of the unpaid part of its proportion of the whole cost of the improvement. The Treasurer shall be entitled to a commission of five per cent. on the first hundred dollars, and three per cent. on any excess above that sum; but when the money is paid to him without sale, one-half commission only shall be received by him. For levying on the real estate and advertising the same, he shall receive one dollar; for personal demand for payment, twenty-five cents; for return of the precept, with his doings thereon, one dollar; for making certificate on sale of real estate, one dollar. He shall indorse on said precept the time of receiving the same, and, within three months thereafter, he shall make return thereof to the Clerk, with his proceedings thereon. Any purchaser failing to pay the purchase-money shall be subject to the like penalties and proceedings as purchasers at Sheriff's sale are by the laws of this State. The owner of any lot or land

or,

sold as aforesaid, or his agent or attorney, heirs or representatives, may redeem the same at any time within one year after the day of sale, by paying to the purchaser, or to the City Treasurer for the use of the said purchaser, or his heirs or assigns, the sum mentioned in his certificate and the amount of all subsequent assessments paid by the purchaser, with fifty per cent. on the whole sum, and interest from date of purchase or time of payment: Provided, That infants, idiots, insane persons, and femes covert may redeem any such lot or land belonging to them, sold for assessment as aforesaid, within one year from expiration of such disability. Claimants of a part of such land, or of any undivided part of the same, may redeem the whole as other owners may redeem. If such owner, or any person on his behalf, shall fail to redeem such land within one year as aforesaid, at the expiration thereof, and on production of the certificate of purchase, the Treasurer shall execute to the purchaser, his heirs or assigns, in the name of the city, a conveyance of the real estate so sold; which shall vest in the grantee an absolute estate in fee-simple, subject, however, to all claims which the city may have thereon for assessments or liens or [other] incumbrances. Such certificate and final conveyance shall resemble, as nearly as may be, the certificate and conveyance for tax-sales. and be prima facie evidence of all the facts recited therein.

1. On appeal from the precept, the contractor is plaintiff, and the appeal-bond should be payable to him.- First Presb. Ch. v. City, 42 Ind. 115.

2. The transcript, on appeal, must contain a copy of the contract.- City of Logans. port v. Blakemore, 17 Ind. 318. It must also show an advertisement of letting (Stewart v. City, 41 Ind. 153); also, when there was no petition, that the order was voted for by two-thirds of all the members of the Council (Baker v. Tobin, 40 Ind. 310); also, that the contract was let upon a bid submitted under the advertisement (Moberry v. City, 38 Ind. 198).

3. It can not be pleaded in bar, that the street was not a street of the city; nor can any other fact be pleaded which arose before the contract was made. Id.

4. The transcript may be amended on appeal.--Lammers v. Balfe, 41 Ind. 218. But if the amendment show a proper estimate made after the appeal was taken (an imperfect one having been made before), the amended transcript will be bad on demurrer.Id. The affidavit on which the precept issued can not be amended on appeal.- Balfe v. Johnson, 40 Ind. 235.

5. Nul tiel record is not a good plea in such a case.― Martindale v. Palmer, 52 Ind. 411.

6. Mandate lies to compel the issue of a precept.-Chapin v. Osborn, 29 Ind. 99. And this seems to be the only remedy for the recovery for such part of the work as is assessable against individual property.-City of Greencastle v. Allen, 43 Ind. 347. 7. The acceptance of the work by the city authorities is prima facie evidence that it has been done according to contract.- Gulick v. Connelly, 42 Ind. 134.

8. On appeal, the only issues of fact triable are, whether a contract was made; whether the proceedings of the officers, subsequent to the order directing the work, were regular; whether the work has been done according to the contract; and whether the estimate has been properly made.- Id.

9. Local assessments for such improvements are constitutional; but, under this sec tion, if a lot be divided and owned by separate owners, only that part which abuts the street can be assessed.—City of New Albany v. Cook, 29 Índ. 220.

10. The track of a railroad bordering on a street is assessable.- P. & I. R. R. v. Haunn, 68 Ind. 562.

11. When the transcript on appeal shows that, after the contract is let and its execu. tion was definitely postponed on the petition of a property-owner, the contractor con. senting, the petitioner can not, after the work is done under the contract, as thus modified, raise any question as to the passage of the original order or notice of the letting. Johnson v. Allen, 62 Ind. 57.

12. If it appear by the transcript that the contract was let without advertisement, as

required by ordinance, a demurrer to it should be sustained.- Kretsch v. Helm, 45 Ind. 438.

13. Such notice must be reasonable; and if the time be not defined by ordinance, the Court will determine in each case.-Moberry v. City, 38 Ind. 198; City of Logansport v. Puterbaugh, 46 id. 550.

14. An order for the improvement must precede advertising for proposals; and such order must so specify the nature and plan of improvement as to define what it authorizes to be done.-Merrill v. Abbott, 62 Ind. 549.

15. The Council can not be compelled by mandate to improve a street at the expense of its general fund, nor, it seems, in any case against its judgment as to its propriety. -Mayor etc., v. Roberts, 34 Ind. 471.

[1885 S., p. 73. In force July 18, 1885.]

3165a. Satisfaction of lien. 1. The Common Councils of the cities of this State and Boards of Trustees of incorporated towns of this State shall have power to pass and enforce ordinances requiring contractors, making street or other improvements in such cities, to receipt and fully satisfy the estimate records and other books showing a lien against any one's property in favor of such contractor, within thirty days from the time of the payment of such estimate to said contractor, and to impose penalties for violation of such ordinances.

3166. City Commissioners. 1. There shall be appointed once in each year, by the Circuit Court in the county wherein is situated any city of this State incorporated under the general Act for the incorporation of cities, five freeholders, residents of said city, who shall constitute a body to be called City Commissioners, and whose duty it shall be to hear and determine all matters appertaining to the acquisition, opening, laying out, altering, and straightening of streets, alleys, and highways within said city, and also to hear and determine all matters appertaining to the altering or straightening of streams within said city, and the taking of lands for sewerage purposes. Such Commissioners shall serve for one year and until their successors are elected and qualified; and, before entering upon the duties of their appointment, shall take an oath to faithfully and impartially discharge their duties as Commissioners; which oath shall be indorsed upon their certificate of appointment. The City Clerk shall, within three days after such appointment, issue to each Commissioner à certificate of his appointment.

3167. Proceedings in Council. 26. Before any matter of the opening, laying out, or altering of any street alley, highway, or water-course, or of the vacation thereof, shall be referred to the City Commissioners, the Common Council shall refer the matter to an appropriate committee,, who shall examine the matter, and report at the next meeting of the Common Council upon the expedi ency of so referring; and if the Common Council shall determine, by a two-thirds vote. to submit the said matter to the Commissioners, it shall be so ordered, and shall thereupon be referred to said Commissioners, as hereinbefore provided; but no such matter shall be submitted unless so ordered by a two-thirds vote of such Common Council. In case any Commissioner shall be interested, he shall be incompetent; and in case a number are interested, so great as not to leave a major

ity competent, the Council may appoint, at any regular meeting, Commissioners pro tempore. Any person interested in such proceedings, or whose property is affected, may present his objections, and if the Commissioners be found interested, Commissioners pro tempore shall be appointed.

[1879 S., p. 96. In force March 31, 1879.]

3168. Duty of Commissioners. 2. Said Commissioners shall meet upon the request of the Common Council; and it is made the duty of the City Clerk to notify each of them of such request, and to designate therein the time and place of meeting; which notice shall be served by the City Marshal at least fifteen days prior to the time designated, either by reading or by leaving a copy at the usual places of residence of said Commissioners. They shall meet at the time and place designated, and examine the property sought to be appropriated, and shall also view and examine the real estate in the vicinity thereof to be benefited or injured by such proposed improvement. They shall, within ten days after they have concluded such examination, file in the office of the City Clerk a written report, describing the property to be appropriated, and the name of the owner, if it be known (and, if unknown, a description of all real estate to be damaged thereby, if any there be). In cases when no part thereof is taken, and the name of the owner, if it be known (and, if unknown, stating the owner's name is unknown), a description of all real estate beneficially affected by said change or improvement, stating the owner's name if known (and, if unknown, showing it to be unknown). And upon the filing of such report with such Clerk, said Commissioners shall also file with such Clerk a notice of the time and place when they will meet to estimate the injuries and benefits to the property sought to be appropriated, and to estimate the benefits and dam. ages to all real estate injuriously or beneficially affected by such change or improvement; which meeting shall be held not less than fifty nor more than sixty days from the time of the filing such report and notice. And upon the filing of such report and notice, the Clerk shall issue a written or printed notice to the persons whose lands are proposed to be appropriated and to those whose property it is proposed to benefit or damage or against whom or in favor of whom any assessment is to be made. If such person reside in the county where said city is situated, notice shall be served upon him, either by reading or leaving a copy thereof at his last and usual place of residence, at least ten days before the time designated for such meeting. In case the land-owner be unknown, or be not a resident of the county, or in case the residence of the land-owner be unknown, then notice shall be made by publication, once in each week, in a newspaper of general circulation published in said city, for three consecutive weeks. The last publication of notice must be at least fifteen days prior to the time designated for such meeting. It shall be the duty of the Marshal to serve such notice, and make due return of service of such notice to the City Clerk; and the City Clerk shall obtain proof of publication as provided by law, and preserve such proof, as also the notice returned by the Marshal. The notice to be issued by the Clerk shall state, generally, the character of the proposed change, alteration, or improvement, but need not describe the proposed change or improvement particularly, and need not describe the property to be affected; but if it be sufficient to inform the person of the general nature or character of the change, or of the general direction and character of the proposed route or line of the proposed street, alley, highway, or

water-course to be laid out, changed, or improved, and the time and place of such meeting, it shall be valid and effectual. If an interested person shall appear before the Commissioners, he shall not thereafter be permitted to aver either a defect or want of notice. It shall be the duty of the Marshal to serve all notices and subpoenas issued by the City Clerk or the Commissioners.

[1875 S., p. 17. In force March 17, 1875.]

3169. Hearing and proceedings. 3. Said Commissioners, or a majority of them, shall meet at the time and place designated, and shall proceed to hear and determine all matters concerning the laying out of the street, alley, highway, or water-course so mentioned in the notice issued to them. They shall have power to administer oaths, to hear evidence, to examine witnesses, and to adjourn from time to time. They shall also have power to issue subpoenas for witnesses, and require the Marshal to serve the same; and shall have power to require the City Engineer to render tnem such assistance as they may require. A majority of such Commissioners may act, determine, and make valid and effectual reports; and they shall have power to attach and punish, by fine, witnesses who fail to ap pear when properly subpoenaed.

3170. Assessment of damages and benefits. 4. It shall be their duty to examine the property sought to be appropriated, and to estimate its value; and they shall also view the real estate in the vicinity thereof, and estimate both the injuries and benefits thereto. In assessing and awarding damages and benefits, they shall not be confined to real estate upon or along the line of the proposed change or improvement, but shall estimate benefits and damages to all real estate injuriously or beneficially affected. They shall also consider and determine what part, if any, of the expense of such change or improvement ought to be paid out of the general fund of the city. They shall assess upon each lot of land belonging to the same person the damages alone [done] thereto, and shall also assess all benefits which may accrue to real estate in the vicinity and which may be beneficially affected; and shall also assess the value of real estate actually appropriated, and the benefits resulting to the part, if any there be, of any lot or parcel of land not taken, as well as to the other real estate benefited but of which no part is taken.

3171. Report. 5. The said Commissioners shall, within ten days after they have concluded their investigation, file in the office of the City Clerk a written report, wherein they shall report upon the following matters, towit:

First. The value of the property to be appropriated, describing it, and the name of the owner, if it be known (and, if unknown, stating that the owner's name is unknown).

Second. The damages to property, if any there be, in cases where no part thereof is taken.

Third. The benefits to real estate beneficially affected by said change or improvement, describing the real estate, stating the owner's name, if known (and, if unknown, showing it to be unknown).

Fourth. The general character and direction of the proposed improvement or change, as to length, direction, and width.

Fifth. The amount, if any, to be paid by the city.

3172. Report. 6. The character of the change or improvement shall