efits received, including abutting property as well as property not situated on the line of such improvement, but in the opinion of the board of public works, beneficially affected by the construction of such improvements.

This act is probably unconstitutional under the decision in the case of School City of Rushville v. Hayes, 162 Ind. 193.

[Acts 1905, p. 195. In force March 4, 1905.]

3666. Public utilities-Cities of 3,300 to 3,405.-1. That in all cases where the common council of any city of this state having a population of not less than three thousand three hundred, nor more than three thousand four hundred and five, by the last preceding United States census, shall hereafter contract, or has heretofore contracted, with any person, firm or corporation for supplying said city with pure water for fire protection or other purposes, or shall hereafter contract, or has heretofore contracted, with any person, firm or corporation for the lighting of any streets or public places of said city with electric lights, or where any city shall hereafter purchase or has heretofore purchased any waterworks system or electric light plant, or both, located within said city, and desire to use public hydrants for fire protection or electric lights for lighting the streets and public places within said city, then and in either of such cases, such common council is hereby authorized to levy and collect an annual specific tax for paying said contract price for said water or electric lights so furnished, or to pay the cost of furnishing said water for fire protection and electric lights for lighting the streets and public places, if furnished by said city, not exceeding eighty cents on the hundred dollars of taxable property within such city to be levied and collected as other corporation taxes are now levied and collected. This act is probably unconstitutional under the decision in the case of School City of Rushville v. Hayes, 162 Ind. 193.

ELEVATING RAILROAD TRACKS.

[Acts 1905, p. 144. In force March 3, 1905.]

3667. Cities of 100,000-Track elevation or depression.-1. That upon petition therefor, or upon its own initiative, the board of public works of any city of more than one hundred thousand population, according to the last preceding United States census, may adopt a resolution for the alteration of any grade crossing or crossings of any steam railroad track or tracks or any highway or highways in said city and the approaches thereto, or for the elevation or depression of the steam railroad track or tracks crossing any highway or highways in said city. Upon the adoption of such resolution said board shall cause notice thereof to be published in some daily newspaper of general circulation in such city once each week for two consecutive weeks, which notice shall name a date, after the last day of publication, at which said board shall receive and hear remonstrances from persons

interested in and affected by such improvement, and when it will determine the public necessity and convenience thereof; and at the hearing which may be adjourned from time to time, said board shall consider such remonstrances, if any, and thereupon take final action. and confirm, modify or rescind their original resolution. In addition to the above publication, ten days' written notice of such hearing shall be served on some resident agent or officer of any steam railroad or street railway whose tracks are affected by such proceeding, and upon the county commissioners of the county in which such city is located, and also upon the town clerk of any incorporated town lying within or surrounded by the corporate limits of such city; but failure to give such notice shall not invalidate the jurisdiction of said board in the premises, and all persons shall be deemed and held to be notified of the pendency of the proceedings and of all acts, hearings, adjournments and orders of said board therein by the original notice of publication as aforesaid. In the preparation or consideration of said resolution said board may cause plans or specifications to be prepared by the city civil engineer prescribing the manner, character and limits of such improvement in the alteration of existing grade crossings, or the elevation or depression of tracks thereat, together with an estimate of the total cost thereof: Provided, however, That in no case shall such plans require a greater permanent grade of the main tracks of any railroad than one foot in one hundred feet, unless a greater grade be agreed upon by the railroad companies affected.

Cities of one hundred thousand inhabitants have no authority, under the power conferred upon such cities to declare what shall constitute a nuisance, to enact an ordinance requiring all railroad companies within a specified district to change the grade of their roads and to elevate the same where they cross streets, so as to conform to a grade fixed by the city. State v. Indianapolis Ry. Co., 160 Ind. 45.

3668. Improvement-How apportioned, expense divided.-2. If there be more than one railroad company with tracks affected, then said board of public works shall, at such hearing determine the relative amount of such improvement equitably to be borne by each of said railroad companies. The expense to be borne by all the parties in interest shall include any expense which may be incurred by raising or lowering the grade of any street, alley or other highway, and the construction and reconstruction of the pavement of the entire width of the street, including sidewalks, and the alteration and construction of necessary drains required by such separation of grades; also the damages, if any, recoverable under existing law by any person, firm or corporation on account of such elevation or depression of tracks, and the cost of the elevation or depression of the railroad track or tracks, except the cost of the ties, ballast and rails of the railroad track or tracks or street railway tracks and the expense of relaying and reconstructing the same; and shall also include that portion of the sum of four thousand

dollars per annum herein provided to be paid the city civil engineer, that relates to the time consumed in the construction of such improvement, as shall be determined by the board. The steam railroad or railroads whose tracks are affected shall pay seventy-five per cent. of such total cost. Where such crossing is occupied by the track or tracks of any street railway company such street railway company shall pay five per cent. of such total cost. Where both street railway tracks and steam railroad tracks occupy said crossing the city shall pay fourteen per cent. and the county in which said city is located shall pay six per cent. of such total cost. Where such steam railroad track or tracks cross any street, avenue or other public way at which there are no street railway tracks, the city shall pay seventeen per cent. and the county in which said city is located eight per cent. of such total cost. In ascertaining the total cost of separating the highway and steam railroad grades at a crossing where the highway is occupied by street railroad tracks, of which five per centum may be apportioned as aforesaid to the street railway company, the cost of elevating or depressing the steam railroad tracks shall be taken into. account only from the center of such crossing in each direction to a distance of two hundred feet: Provided, however, If any person, firm or corporation has a contract with said city by which such person, firm or corporation has agreed to elevate or depress his or its railroad tracks upon the order of the city or its proper authorities, then such person, firm or corporation shall be required to elevate or depress such track or tracks in accordance with such contract, and the provisions of this act shall not affect the terms of such contract.

3669. Written agreement. 3. It shall be competent for such city, by its board of public works, and any railroad company or companies. in respect to whose track or tracks the improvement authorized in this act is contemplated, to enter into a written agreement describing the plan of improvement which will be mutually satisfactory to them and with any other stipulations to which they shall agree, not inconsistent with the provisions of this act, which agreement shall be filed with the said board of public works and shall form the basis of the proceedings thereafter had in relation to the matter embraced in such agreement.

3670. Allotment of work-Inspectors-Engineer-Appeal.-4. Said board shall make its allotment of said work between said steam railroad companies, said city, said street railway company, or any or all of them, and shall communicate its order of allotment to the parties interested within ten days from the time of such allotment. In such order the time for the commencement and completion of such work shall be fixed. The board may employ such inspectors as may be necessary to properly supervise any such work, at a salary to be fixed by it not to exceed sixty-five dollars per month for each such inspector, and also any additional clerk required thereby at a salary to be fixed by it not to exceed twelve hundred dollars per annum. It may likewise require

the services of the city civil engineer, who shall be allowed not to exceed four thousand dollars per annum in addition to his regular salary for his services, and out of which he shall pay his necessary assistants. The action of the board as to the necessity and convenience. of such improvement and of the extent or manner thereof, or plans and specifications thereof, and the allotment of the work thereof and apportionment of the cost thereof shall be final and conclusive upon all, persons: Provided, That any person, firm or corporation deeming himself or itself aggrieved by such order of said board may appeal therefrom to the superior court of the county in which said city is located within. fifteen days from the entry of such order. Upon such appeal being taken all parties shall be deemed bound thereby, and said court, all the judges thereof sitting, may modify or conform [confirm] the order of said board in whole or in part, and the finding and judgment of such court shall be final and binding on all parties and no appeal shall lie therefrom.

3671. Streets-Damages-Notice-Remonstrance-Hearing - Appeal. 5. Said board shall likewise provide in such proceeding for the opening, laying out, change or vacation of any street or other public way which may be required by such separation of grades, and the proceedings thereto shall conform as nearly as possible to those provided by the law governing cities of such class. Said board shall likewise determine the damage, if any, which may be recoverable under existing law by any person, firm or corporation on account of such elevation or depression of tracks. Upon the preparation of a list of an assessment of damages, said board shall cause a written notice to be served upon the owner of each piece of property, showing the amount of such assessment, by leaving a copy of the same at his last usual place of residence in said city, or by delivering a copy to such owner personally and shall cause notice to be given by publication in some daily newspaper of general circulation in such city once each week for two consecutive weeks, which shall name a date, not earlier than ten days after receipt of notice or after the last publication, as the case may be, on which said board shall receive and hear remonstrances from any person or corporation touching said assessment of damages, and all persons affected thereby, whether residents or non-residents, shall be deemed to be notified of such hearing by such published notice. Upon the date. set for such hearing, said board shall consider said assessment and remonstrances and modify or confirm the said assessments, which shall be final and binding, except that any person or corporation thus remonstrating may, within twenty days thereafter, take an appeal to the superior court in the county in which said city is located and have said assessment, in so far as it affects the person appealing, tried and determined in such court, from the decree of which an appeal may be taken to the supreme or appellate court as in other cases.

3672. Approval of work-Settlements-Issue of bonds.-6. The work of such elevation or depression where the same crosses a street or other

highway, including abutments at the side of the street, any supporting posts that may be allowed at the curb or center of the street, and the superstructure with reference to drainage and safety, shall be constructed to the approval of the board and city civil engineer. Said board, by its engineer, shall from time to time, and on completion of the same, inspect the work. Upon completion of the work, or from time. to time during its progress upon petition of the city or the railroad charged with the work, or part thereof, said board shall adjust equitable settlements between the parties interested therein, in such manner that the total cost of such alteration shall be apportioned between the parties as theretofore decided on by said board; and such adjustment shall be binding on said parties, unless any aggrieved party shall within fifteen days after the entry of the order of the board thereon, file his complaint in said superior court to review such adjustment, and the decree of such court therein shall be final. Upon each such settlement, the city comptroller shall draw his warrant or warrants upon the city treasurer in payment of its portion of such costs, which may be drawn upon the general funds of the city without a special appropriation being made therefor by the city council, but said city council shall upon the estimate of the city comptroller provide by proper levy of taxes for the raising of funds to meet and defray the expenses of such separation of grades, and for such purpose said city is authorized to levy a tax of not more than four cents on each hundred dollars of valuation, in addition to the annual levy now authorized by law; upon each such settlement, the county auditor shall draw his warrant or warrants upon the county treasurer in payment of the county's portion of such cost, which may be paid out of the general funds without a special appropriation therefor by the county council, but said county council shall provide therefor in its annual levy of taxes; and the city or county is authorized, respectively, to issue bonds for the purpose of paying their respective parts of the cost of such alteration in grade crossings; and the railroad corporation or corporations, including as well the street railway company, shall upon such adjustment, or decree, pay their portion of such cost as directed thereby, or in default thereof the same may be placed on the tax duplicate and collected as are special assessments.

3673. Town in city-Portion of expense.-7. Should any incorporated town lie within or be surrounded by the corporate limits of such city, then such town and its board of trustees shall be liable to and shall pay to said city such portion of the amount annually paid by said city. for separation of grades under the provisions of this act as the total assessed valuation of the taxable property of said town shall bear to the total assessed valuation of the taxable property of said city; such payments shall be made at the end of each year upon demand of said city, and the board of trustees of said town is hereby authorized and required to levy the necessary tax to enable it to carry out the provisions of this section.