owing by it, the amount of cash on hand, or to be received within a year, not pledged or obligated to any other use and available for expenditure in the cost of said improvement; the rate of taxation in force for the last preceding two years and such other facts as may be required by the court.

3687. Insufficient funds Tax levy-Limit.-12. If it shall appear from said verified statement that the city has not in hand, and will not have in hand from its ordinary revenues, an amount of money available to be applied to that purpose sufficient to pay so much of the estimated total cost of the improvement as shall have been imposed upon the city in the preliminary decree of the court aforesaid, it shall be the duty of the court to order the city by its common council and mayor to levy such tax as it may be authorized by the law to levy, sufficient in estimated amount to pay within seven years so much of the estimated total cost of the improvement as shall have been so imposed on the city; provided such levy shall not exceed the rate of twenty-five cents annually on each one hundred dollars valuation. If the mayor and common council shall neglect or refuse to levy such tax as directed by the court the court shall have power to punish them as for contempt, or at its discretion make the levy itself by an order and direct the proper officers of the city to put the same on the tax duplicate and collect the same, and hold and disburse the money so raised under the order of the court.

3688. Power to create special fund.-13. For the purpose of enabling the city in such case to levy the tax required by the foregoing section, power is hereby given to the mayor and common council of any city subject to the provisions of this act to create a special fund in its treasury to be known as the street and railroad crossings fund, and to levy a special tax for the use and maintenance of said fund not exceeding twentyfive cents annually on the hundred dollars valuation. All money raised by such tax shall be placed in said fund and shall be used only to defray expenses of the improvement by this act authorized.

3689. Contracts - Bids - Payment - Bond.-14 As soon after the entry of the preliminary decree above provided for as may be practicable, the commissioners shall proceed to cause to be done all that part of said work of improvement not required by the preliminary decree to be done and constructed by the railroad company or companies, whose track or tracks are to be separated from the streets at their intersections. The work shall be done by contract, and under one contract for the whole, or under such separate contracts for such parts as it may be divided into by the commissioners with the approval of the court. Such contract or contracts shall be let to the lowest and best bidder or bidders after the giving of such notice of the letting as shall be prescribed by the court. Each bidder shall state in his bid his willingness to accept in payment for work awarded to and done by him, such proportion of cash as the commissioners may be able to pay and for the residue to accept the certificates of the commissioners hereinafter authorized. Each bid shall be accompanied by a bond with surety to be approved by said commissioners

in the full sum of the bid that the contract will be faithfully performed if awarded to the bidder. The commissioners shall report all bids received, and all awards of contracts made to the court for approval and the contracts shall not be in force until approved by the court, and with the approval of each contract the court shall also approve the bond given by the contractor for the performance of his contract.

3690. Commissioners-Reports as to progress.--15. The commissioners shall, from time to time, and as often as may be required by the court, report to the court the progress of the work in their hands, and receive from the court any direction which the court shall give in respect to any part of the work or proceedings. For the purpose of all actions by the court which shall be required by this act, except proceedings in which adversary parties are to be heard, the court shall be always open and the judge in chambers shall have all the powers of the court in session.

3691. Estimates-Pro rata payments--Certificate of indebtedness. 16. As the work shall progress under the contracts let by the commissioners by authority of the last foregoing section, the commissioners shall cause estimates to be made from time to time, as may be provided in the contracts, of the amount of work done, and pay the contractors pro rata for the work completed, reserving, however, ten per cent. of the amounts so estimated until the full completion of the contract. If at the time any such payment shall become due, the commissioners shall not have in hand. the money necessary to pay the same, they shall issue to the contractor or his order a certificate stating the amount due and payable, and that it will be paid with interest at six per cent. per annum from the date of the certificate whenever funds available for that purpose shall come to the hands of the commissioners; all of which certificates shall be reported to the court for approval, and such approval certified by the clerk under the seal of the court.

3692. Court's final decree-Apportionment of expense.-17. The proceedings shall remain open on the docket of the court until full completion of the work of improvement, after which the court shall make a final decree as herein directed. A date shall be fixed by the court on which there shall be a hearing of all matters relating to said improvement which anyone shall desire to present, of which hearing and the date thereof, notice shall be given by publication in some daily paper published in the city in which the improvement is located for not less than ten days successively. At such hearing the court shall ascertain from the testimony of witnesses produced by the parties, or called by the court for its own information, what was the reasonable and proper cost of the work done toward said improvement by the railroad company, or each of them, if there be more than one, under the order of the court in the making of the improvement; and shall also ascertain from a final report which it shall be the duty of the commissioners to file not less than ten days before the hearing, and such other evidence as may be offered by any one interested or direction of the court; what was the cost of all the work done in the making of the improvement other than that done by the railroad com

pany or companies, and all sums paid for lands taken for the improvement and for injury to lands by reason of the improvement. To these items of cost shall be added all other expenses which, in the judgment of the court, should be included as part of the cost of the improvement; and thereupon the court shall find and adjudge the amount of the entire cost of the improvement, and shall divide and apportion the same among and between the railroad company or companies, severally, whose track or tracks shall have been included in the improvement, and the city, in such shares and proportions as shall seem to the court to be equitable and just within the limits fixed herein in view of all the facts and circumstances affecting the question: Provided, first, that in fixing the proportion of cost of the improvement to be paid by the city, no part of said cost beyond the limits of the city shall be imposed upon said city; but the same shall be borne by the railroad company or companies whose tracks are involved in the said improvement: And provided, further, That the aggregate amount so apportioned to the railroad company or companies whose track or tracks shall have been included in the improvement shall not be less than sixty-four per cent. nor more than sixty-five per cent. of the entire cost of the improvement within the city limits; and the aggregate sum apportioned to the railroad companies, if there are more than one, shall be by the court apportioned among and between such companies severally. And provided, further, That any damages accruing to any property owned by said railroad company or companies, shall not be assessed against said city, but the same shall be borne by said railroad company or companies in addition to the assessment herein authorized to be made against them.

If it shall be

3693. Excess apportionment - Reimbursement.-18. found by the court that the cost of the work done by the railroad company or any of the railroad companies whose track or tracks shall have been included in the improvement was greater than the amount of the aggregate cost of the improvement apportioned and charged to such company or companies in the final decree of the court in the last preceding section authorized, each such railroad company shall be entitled to be reimbursed the excess of such cost over the amount so apportioned to it; and in like manner if it shall be found that the amount expended by the city was in excess of the amount so apportioned to it, it shall be entitled to be reimbursed the excess.

3694. New trial or appeal from apportionment.-19. Within ten days after the entry of the final decree any railroad company or other party to it, or the city, may file a motion for new trial upon ground of inequality or inequitableness in the apportionment made by the court, and upon the overruling thereof, and within sixty days thereafter, appeal to the supreme court of the state, as in civil actions, and the appeal shall be heard and determined in that court as appeals in civil actions.

3695. Taxation-When continued.-20. If the sum raised by taxation in the city or that raised by taxation in the county shall be insufficient, at the time of the making of the final decree, to pay that part of the cost

of the improvement apportioned to the city, and such sums, if any, as the city shall be required to pay for the reimbursement of the railroad company or companies under the decree, the court shall have power and it shall be its duty to direct and enforce the continued collection of taxes in the city, in the same manner hereinbefore directed, until a sufficient amount shall have been realized to pay all such sums.

3696. Postponement of work.-21. If, at the time of or prior to the entry of the preliminary decree it shall be, in the judgment of the court, impracticable to proceed with the execution of the work without more ready money on the part of the city than is at that time available, it shall be within the power of the court to postpone the work until such time as sufficient funds shall have been realized from the taxes herein authorized to enable the work to proceed, and until the further order of the court, when the said work shall be resumed.

3697. Improvement completed-Unexpended balance.-22. When said work of improvement shall have been fully completed, and all the cost thereof and all incidental expenses necessary to the proceedings shall have been apportioned and fully paid, and not before, the said proceedings shall be discontinued on the docket of the court; and the power of the court to direct and enforce the raising of money by taxation hereinbefore conferred shall continue until that time, and any money then remaining unexpended which shall have been collected by special tax for the purpose of said improvement shall be turned into the general fund of the city in and from which it was collected.

3698. Partial improvement-Court's powers.-23. If upon or after the making of the preliminary decree, it shall be, in the judgment of the court, impracticable or unwise for any reason to proceed at once with the execution of the entire work of improvement contemplated in the decree, and there shall be reasons why the abolition of the grade crossing at one or more street crossings forming part of the general plan of improvement should be completed without delay, the court shall have power to order the doing of that part of the proposed work in advance of the remainder thereof. In such case the railroad company or companies interested shall be required to propose and submit to the court a plan and specifications for doing that part of the work, which may be adopted, modified or rejected by the court, upon which the court shall make an order describing and specifying how the work shall be done. And thereupon that part of the work shall be done in accordance with the directions of this act as far as they shall be applicable. All orders made in regard to the expense of the work and the apportionment of such expense shall be made with reference to the fact that it is to be regarded as part of the entire plan of improvement to be eventually carried out, and in those matters a large discretion shall be vested in the court: Provided, however, That no general plan of improvement shall be adopted by the court which will compel any railroad company, against its consent, to maintain permanently within the city a gradient greater than three quarters of one per cent. for any distance greater than eight hundred feet.

3699. Readjustment of assessment.-24. If it shall become apparent, in the judgment of the court, at any time in the progress of the improvement that any railroad company, or the city, will be compelled, in order to conform to the orders of the court to expend a larger amount of money on the work than will be apportioned to it in the final decree, it shall be within the power of the court to order payment to such party by any or all of the other said parties of such sum or sums as it may be practicable for it or them to pay which will be clearly within the amounts which it or they will be required to pay for reimbursement under the apportionment to be made in the final decree; and in the final decree such payments shall be taken into account in the apportionment.

3700. Opening or vacation of streets.-25. It shall be within the power of the court to provide for the opening of any new streets, or the vacation of any old street across the railroad or railroads along which grade crossings are to be abolished as part of the plan of improvement, and all such changes shall be part of the subject matter referred to the commissioners by the court, and they shall include in their report an assessment of benefits and injuries to property affected by such opening or vacation of any street, and the proceedings in reference to such changes shall conform as nearly as may be to the proceedings provided in the case of opening or vacating streets by the city.

3701. Removal of poles.-26. If in the progress of said improvement, any telegraph, or telephone poles standing upon a public street shall be found in the way, the court shall have the power to order the removal of such poles at the, expense of the company owning the same. 3702. Trespass, penalty.-27. After any railroad shall have been improved by the abolition of grade crossings on the same within any city under the provisions of this act it shall be unlawful for any person, not an employe of such company in the discharge of his duty, to go, walk, stand, or be on the right of way belonging to said railroad company within such city except at a station provided by the railroad company for passenger or freight business, and any person so offending shall be punished by fine not exceeding twenty-five dollars.

3703. City rights not abridged.-28. Nothing in this act contained shall be taken to repeal or modify any existing law in reference to the power of cities to require and compel the abolition of grade crossings at the intersections of railroads and streets within the city by proceedings other than those authorized and provided in this act; but the remedy herein provided shall be deemed cumulative.

CITIES AND TOWNS.

ELECTIONS.

[Acts 1905, p. 219. In force April 15, 1905.]

3704. Eligible to office.-229. No property qualifications shall be necessary to render any citizen eligible to hold any office of any municipal corporation in this state.