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 appear 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

be stated with reasonable certainty; and the real estate for which damages are awarded, and that upon which benefits are assessed, shall be described with like certainty in the report of the Commissioners. In cases where both benefits and damages shall be assessed upon the same real estate, or to the same person or persons, the benefits, if less than the damages, shall be deducted from the assessment of damages. In assessing benefits, the said Commissioners shall consider, not only the real estate through which the proposed improvement is to pass, but shall consider all such as is benefited and which is in the vicinage.

3173. Report as to infants and insane. 7. In case any land-owner interested in or affected by such proceedings shall be of unsound mind, or shall be an infant, the Commissioners shall certify the same to the proper Court; and said Court shall, thereupon, appoint a guardian for such infant or person of unsound mind; and thereupon the Commissioners shall cause five days' notice to be given each guardian, who shall, thereupon, appear and protect the interests of his ward. In case such infant or person of unsound mind have a guardian duly appointed and qualified, then notice may be served upon such guardian, as provided in the second section hereof [$3168]; and such notice shall be valid and effectual. If there be a defect of notice or failure of notice as to one or more interested persons, such failure or defect shall not affect such proceedings, except in so far as they may touch the interests or property of such person or persons themselves, and shall not avail any other person concerned in such proceedings. Upon the application of persons whose lands or property shall have been assessed, but who have not had notice (which they must affirmatively show), the City Clerk shall notify said Commissioners, who shall meet upon their own motion, hear and determine the claims of such persons (to whom five days' notice shall be given), and report to the Council. In case they are entitled to damages which have not been assessed, the same shall be paid out of the city treasury; and in case the land shall have been assessed with benefits, and the Commissioners deem the assessment just, the original assessment shall be deemed valid and effectual, and shall be enforced as originally made. 3174. Action of Council on report. 8. If the Common Council, within twenty-eight days after the filing of said report, shall, by a vote of two-thirds of the members thereof, determine to make the appropriation of the real estate for such improvement, they shall enact a resolution accepting said report, and requiring the City Clerk to deliver a certified copy of so much thereof as assesses benefits and damages upon real estate, and in which the real estate so assessed is described, to the City Treasurer. The Common Council may refer back the matters reported upon to said Commissioners, with such suggestions as they may deem proper; and the Commissioners shall meet and proceed, as provided in section twenty-three of this Act [ 3189].

3175. Duty of Clerk-Lien. 9. It shall be the duty of the City Clerk to deliver a certified copy of said report, as provided in the preceding section, to the City Treasurer, and to copy the entire report into the records of the Common Council, and to carefully file and preserve the original. The benefits assessed shall be a complete and valid lien upon the real estate described as assessed, from and after the time the aforesaid resolution is adopted accepting such report, and filing a copy thereof in the office of the Recorder of the county; and such lien shall be valid and enforceable against

subsequent purchasers, and shall have priority over all other liens, except those for State taxes.

3176. Payment of damages. 10. The Common Council may determine to pay out of the general funds of the city the total amount of damages assessed, or any part thereof; and in case this shall be ordered and done, all benefits collected shall be paid into the treasury of the city, and shall belong to such city. In case the Common Council deem it proper to delay until such benefits are collected, they shall order the proceedings delayed until such benefits shall be collected: Provided, They shall not cause a delay beyond one year, except in cases where the delay is caused by appeal, injunction, or other legal proceedings. 3177. Collection of assessments. II. Within ten days after the receipt of the certified copy of the report, as provided in sections eight and nine of this Act [$$ 3174 and 3175], the City Treasurer shall, in cases where the owners of the lands assessed are residents of the city, make demands of them, personally, for the amount of the benefits assessed, or shall leave at their residences written notices specifying the date of the filing of the report and the amount of the benefits assessed, and demanding payment of the amounts assessed; but said notice need not describe the real estate assessed nor the character of the improvement or change, and shall be sufficient if it notify the person of the assessment, the date of filing, and the amount assessed. In case the person or persons owning the lands should be non-residents of the city or unknown, or their residences be unknown, then the Treasurer shall publish, for three weeks consecutively, in a paper of general circulation, a notice, specifying therein the date of the filing of report, the description of the real estate assessed, the amount assessed, the names of the owners, if known (and, if unknown, stating them to be unknown). In case the persons notified personally, or by written notices left at their residences, shall fail to pay such assessments within three months thereafter, the Treasurer shall proceed to collect such assessments as hereinafter provided; and if the persons notified by publication shall fail to pay such assessments within one month after the last publication, the City Treasurer shall proceed to collect such assessments as herein provided. The said assessments shall be collected and enforced in the same manner as assessments for street improvements; and the provisions of the law in force at the time upon the subject of the collection of assessments for street improvements ordered by the Common Council shall gov ern the Treasurer, and he shall proceed in accordance therewith; except in this, that no precept shall be required, and that he shall proceed upon the certified copy of the report of the Commissioners; and with the further exception, that no other or further demand than that herein provided for shall be made. It is hereby made the duty of the Treasurer to keep a proper record of all his proceedings.

3178. Report of collections. 12. It shall be the duty of the City Treasurer to report to the Common Council the amount received by him upon such assessments at their regular meeting next after such receipt. He shall pay the damages only upon warrants ordered by the Common Council and drawn by the City Clerk.

3179. Private corporations. 13. In case the Common Council propose to appropriate a highway, bridge, or other property owned by a private corporation, or to assess benefits or damages upon property so owned.

the Clerk shall give notice to such corporation; and the said notice shall be served upon any officer thereof residing in such city; and if there be no officer residing in the city, then upon any agent residing therein or doing business in such city for such corporation. When a highway or bridge within a city, owned by a private corporation, is abandoned, or suffered to be out of repair so as to incommode or endanger travelers, the Commis sioners aforesaid are required to consider these facts in estimating the injury, if any, accruing from its use or appropriation for public purposes by the city, and may also estimate whatever it may cost such city to make the bridge or highway safe and free from damage.

3180. Appeal. 14. If any person having an interest in the lands affected by such proceedings shall deem himself aggrieved thereby, he may appeal to any Court of general jurisdiction, in the county within thirty days after the confirmation of said report by the Council. In such case, the person asking the appeal must designate the Court to which he appeals, and file a bond within thirty days from the confirmation of said report, conditioned for the payment of all damages and costs which may accrue by reason of such appeal should he not prosecute such appeal to effect. Upon such appeal, the regularity of the proceedings of the Commissioners, and the questions as to the amount of benefits or damages assessed may be tried; but such appeals shall not prevent such city from proceeding with the proposed appropriation, nor from making the proposed change or improvement. The City Clerk shall, upon the filing of a bond with sufficient surety, conditioned as aforesaid, make a transcript of the proceedings of the Council requesting the meeting of the Commissioners, the notice to the person appealing, the proceedings and the report of the Commissioners, and the action of the Common Council thereon, upon the second day of the term. After filing the said transcript (and of which filing the appellant shall notify the Attorney of the city, in writing), the appellant shall, in writing, state specifically the grounds of his objection to the proceedings of the Common Council and Commissioners; and [no] other questions shall be tried or heard, except such as are with certainty to a common intent presented by the aforesaid written statement filed by such appellant. If the transcript shall show that a majority of such Commissioners were present at the meeting in which were had the proceedings appealed from, then no question shall be considered or tried concerning the request of the Common Council to the Commissioners, nor as to the character of the notice or manner of serving it upon said Commissioners. The transcript of the proceedings of the Common Council and Commissioners shall be considered as the complaint; and the written statement, to be filed by the appellant as aforesaid, shall be in the nature of an answer or demurrer. Issues of law and of fact may be formed, tried, and determined as in other actions at law. The question as to whether notice was given others, or as to whether proper assessments were made in favor of or against persons other than the appellant, shall not be tried; nor shall any question be tried which does not directly affect the property or right of the person or persons who take the appeal as aforesaid. No question shall be tried concerning the regularity of the appointment of the Commissioners, their qualification or competency, unless the appellant, by answer duly verified, shall put such matters in issue; but of their appointment, competency, and qualification the records of the Common Council shall be prima facie evidence; and it shall