portion of the cost, in the ratio of the front lines of the lots owned by them to the whole improved line; and in all cases where such improvement shall have been made or may hereafter be made on any street or alley running along or through any unplatted lands lying within the corporate limits of such city, the cost of such improvements shall be estimated according to the whole length of the street or alley, or the part thereof to be improved per running foot, and the owners of such unplatted lands bordering on such street or alley or the part thereof to be improved shall be liable to the contractor for their proportion of the cost, in the ratio of the front lines of such unplatted lands owned by them to the whole improved line; and in making the assessment against such owners for the improvement, such unplatted lands shall be assessed across the ground fronting or immediately abutting on such improvement back to the distance of one hundred and fifty feet from such front line, and the contractor shall have a lien thereon for the value of such improvements: Provided, however, That where such land is subdivided, the land lying immediately upon and adjacent to the line of the improvement shall be primarily liable to and for the whole cost of the improvement, and, should that prove insufficient to pay such cost, then the second parcel and other parcels in their order to the rear parcel of said one hundred and fifty feet shall be liable in their order; and if the owners of such unplatted lands fail to pay for such improvements within sixty days after the completion of the same, such contractor may enforce his certain lien in the Circuit Court of the county where such city is situated, and the Court shall ascertain the value of such improvements according to the contract price therefor and render a judgment for the amount thereof against the owner of such lands, and direct that such lands, or so much as may be necessary, be sold by the Sheriff upon an order of sale issued upon such judgment, without relief from valuation or appraisement laws, and the Sheriff shall issue to the purchaser a certificate of sale therefor, which shall entitle the holder thereof, his heirs or assigns, to a deed therefor within one year from the date of such sale: Provided, That the owner of such lands may redeem from any such sale under the provisions of the law now in force concerning the redemption of lands sold upon execution and foreclosure of mortgages.

1. If a party stand by and see an improvement progress under these sections, after it has progressed to the improvement of his property he is estopped to question the power of the city to make the contract.-Hellenkamp v. City, 30 Ind. 192; City of Lafayette v. Fowler, 34 id. 140. But, see City of Evansville v. Pfisterer, id. 36.

2. Coverture is no bar to the assessment of real estate of a married woman.-Ball

v. Balfe, 41 Ind. 221. Nor is the omission to assess other property.-Balfe v. Bell,

40 Ind. 337.

3. The County Board is liable for proper assessments upon the court house grounds. -Board v. Shrader, 36 Ind. 87.

[1867, p. 33. In force March 14, 1867.]

3164. Payment - Lien-Order without petition. 70. When any such contract shall have been made, or shall have been heretofore made and shall have been in progress of fulfillment, the Common Council shall have power to cause estimates to be made, from time to time, of the amount of work done by the contractor, and to require such amount to be paid to him, deducting a reasonable percentage to secure the completion of the contract, until the whole shall be finished, and to prescribe the time within which the whole shall be completed; and such estimates shall be liens upon the grounds upon which they are assessed, to the same extent that taxes are a lien, and shall have the same preference over other demands. The Common Council, with the concurrence of two-thirds of the members thereof, may order or cause any or all of the improvements mentioned in the preceding section, and repairs of any kind on street and alleys, to be made in like manner, without such petition; and either charge and cause any or all of the expenses thereof to be assessed and collected, as hereinafter provided, when petition is made, or if it is deemed just and right by the Common Council, to cause such expenses, or any part thereof, to be paid out of the general revenue of the city.

1. The lien of the estimate does not begin until the estimate is made.-Jones v. Schulmeyer, 38 Ind. 119: Longsdale v. Nicklaus, id. 289. And it attaches only where there is, in the proceedings, such description of the property as identifies it.-P. & I. R. R. Co. v. Haunn, 68 Ind. 562.

2. The assessment must be against each parcel of ground separately, and not in gross against several lots having a common owner.- Balfe v. Johnson, 40 Ind. 235.

3165. Payment, how enforced. 71. In case any of the owners of

lots or parcels of ground on which such assessments have been made shall fail or refuse, for the space of twenty days after the date of the estimate, to pay the amount thereof due by such person to such contractor, such contractor shall file his affidavit in the Clerk's office of said city, stating that the whole or some part of said assessment remains unpaid, showing the amount paid and the amount due; that the estimate thereof has been duly made, and that the work estimated has been done according to contract. It shall be the duty of the Clerk, at the next or any subsequent meeting of the Common Council, to report the said affidavit to the Council, whose duty it shall be to cause a precept to issue for the collection of such assessment, or any unpaid balance thereof; which precept shall be signed by the Mayor and attested by the Clerk, and sealed with the seal of said city, and shall set forth the name of the person against whom the assessment is made; the description of the lot or land on which it is made; the amount of such assessment; and the date of the estimate; which shall be directed to the Treasurer of such city, commanding him to make such assessment, or unpaid balance thereof, within ten days after receiving such precept, of the owner in whose name such assessment is made; which precept the Clerk shall forthwith deliver to the Treasurer, who shall serve the same by reading the same, personally, to such owner, or by leaving a copy of such precept at his last or usual place of residence; or, if such owner be unknown, or not a resident of such city, then by publication for three successive weeks in a weekly newspaper printed and published in the city, briefly setting forth the facts of the estimate, the amount due, that the work has been done as contracted, the name of the person whose property is to be sold, the description of the property, and the date of the order of said precept by the said Council, and giving notice that if such assessment be not paid within twenty days after publication, he will proceed to make the same by levy and sale of the lot or land whereon the same is assessed. Any owner of land, or his representatives, aggrieved by such precept, may appeal therefrom, within twenty days after such demand or publication, to the Circuit Court of the county wherein such city is situated, upon filing sufficient bond with the Clerk of said city, conditioned for the payment of whatever judgment may be rendered against such appellant in said Court; and such appeal shall stay all proceedings by such Treasurer. And the trial of such appeal shall be conducted as other trials of civil causes are conducted in said Court; provided that no question of fact shall be tried which may arise prior to the making of the contract for the said improvement under the order of the Council. The Clerk shall, upon the filing of said bond, forthwith make out and certify, under his hand and official seal, a true and complete copy of all papers connected in any way with the said street improvement, beginning with the order of the Council directing the work to be done and contracted for, and including all notices, precepts, orders of Council, bonds, and other papers filed in said matter; which transcript shall be in the nature of a complaint, and to which the appellant shall answer upon rule. And in case the Court and jury shall find, upon trial, that the proceedings of said officers, subsequent to said order directing the work to be done, are regular; that a contract has been made; that the work has been done, in whole or in part, according to the contract; and that the estimate has been properly made thereon, then said Court shall direct the said property to be sold and conveyed by the Sheriff

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, or, 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

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.

[1875 S., p. 17.

3187. Action on report.

3188. Clerk's duty.

3189. Reference of report and proceedings.

3190. Change of street on petition of abutters.

3191. Removal of obstructions, etc.

3192. Plats.

3193. Pending proceedings.

3194. Compensation and damages.

In force May 17, 1875.]

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 a 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