[1901 S., p. 401. Approved March 11, 1901.]

3391a. Sewers for sanitary and drainage purposes Towns may construct. 1. That incorporated towns within the State of Indiana be and they are hereby authorized to build, construct and maintain sewers and systems of sewers either for sanitary or drainage purposes within the corporate limits of said town and outlets thereto to any neighboring stream or watercourse and charge the expense thereof upon the properties benefited thereby; Provided, That any such town may in its discretion pay the whole or any part of the cost of such sewers constructed by them out of the general fund of such

town.

3391b. Resolution by board of trustees. 2. That the Board of Trustees of any town desiring to construct any sewer, system of sewers or outlets thereto or all of such improvements together as one work, shall by resolution duly passed at any regular meeting of such board, and entered upon the records of said town, declare their desire so to do, giving a general description of the work intended with the beginning, route and terminus thereof and shall appoint a competent civil engineer to survey the same.

3391c. Survey by engineer.

3. The said engineer shall make a careful survey of the proposed sewer, and report in writing to the Board of Trustees of such town, the following facts:

First. An accurate description of the beginning, route, terminus and fall of the proposed sewer or sewers, including the outlet of the same.

Second. Detailed specifications, plans and profile for the proposed sewer. Third. The kind of material to be used and the size of the sewer proposed. Fourth. An estimate of the cost of the construction of the same.

Fifth. A description of the district which will be benefited by the construction of the proposed sewer, so specifically that all property owners to be affected thereby may be informed whether or not any property owned by them will be affected by the proposed improvement.

Sixth. A description of any lands which will probably be damaged by the proposed improvement, name of the owner of such lands, together with the probable amount of the damage.

3391d. Publication of notice. 4. The said Board of Trustees shall thereupon cause notices directed to whom it may concern to be published in at least one newspaper of general circulation in said town, printed and published therein, stating in substance that the said board had declared its desire to construct said sewer, giving the beginning, route and terminus thereof, that said engineer had been duly appointed to survey the same and that he had filed his report as required by law, and that the board has fixed a certain day for the hearing of said report and the final determination of said board thereon. Such notice shall be published at least thirty days before the day fixed for the hearing of said report and should there be no newspaper printed or published in said town,, then like notices, either written or printed, shall be posted at at least five public places along the line of such sewer and at the beginning and terminus thereof, at least thirty days before the time fixed for the hearing of said report.

3391e. Meeting to determine report. 5. At the time fixed in said notices for the hearing of said report the said Board of Trustees shall meet at their regular place of meeting and shall there hear and determine said report. Any and all persons interested in the same may appear before said board and be heard in respect to the same and may introduce evidence upon any question involved in said report and may be heard in person or by counsel, and such meeting may be adjourned from day to day and from time to time until such hearing is fully had. Upon the completion of such hearing the said Board of Trustees shall thereupon by resolution or ordinance in writing passed and adopted by at least a two-thirds vote of said board determine the public utility of the proposed work and adopt said report. Or they may in their discretion change alter or amend the same in any particular and adopt the same as so

altered, changed or amended, or in their discretion they may refer the same back to the engineer for amendment and reconsideration and further report therein. in which case the same notice and proceedings shall be had as upon the original report as herein provided. Should said report either as originally made or as altered, changed or amended, fail of adoption by a two-thirds vote, the proceeding shall be deemed to be abandoned.

3391f. Work let to lowest bidder. 6. That upon the adoption of the engineer's report of the proposed work, the Board of Trustees shall proceed to let said work to the lowest and best responsible bidder at a public letting, after three weeks' notice of the time and place thereof published in a newspaper of general circulation printed and published in such town wherein said work is proposed, and if no paper is published therein, by posting like notices in at least five public places in such town for the period aforesaid: Provided, That nothing herein shall be construed to prevent said town from giving such additional notice as its Board of Trustees may deem proper.

3391g. Bond of contractor. 7. Any person to whom said proposed work shall be let shall before entering upon the work and within such time as the board may direct enter into a bond with good and sufficient sureties, to be approved by the board, conditioned for the faithful performance of the proposed work in all respects according to the specifications thereof and within the time required by the board, and for the payment of all labor and material and board of hands employed in the construction of said work and while engaged thereon. 3391h. Engineer to superintend. 8. The Board of Trustees may appoint an engineer to superintend and inspect the work as it progresses, the costs thereof to be paid as a part of the costs of construction.

3391i. Liability for work. 9. The Board of Trustees at the time they adopt said report of the engineer shall determine what part if any of the cost of the proposed work shall be paid out of the general fund of the town. Upon the completion of said work the engineer appointed to survey the same shall inspect the work and report to the Board of Trustees the completion thereof, or if not fully completed or defectively done, shall report the same. The Board of Trustees shall make no assessments until the work is fully, completely and satisfactorily done and no liability shall exist in any form either against the town or the property holders until the work is fully performed according to the plans and specifications thereof.

3391j. Acceptance by Board. 10. Upon the completion of said work, the Board of Trustees shall accept the same and shall thereupon by resolution charge and assess against the property holders benefited thereby the cost of the construction of said work, including the costs of preliminary surveys and expenses of all damages to property incident to the construction of the same less any amount that the town may have determined to pay. in proportion to the benefits derived from such improvement, but not in excess of the benefits derived. Said Board of Trustees shall make a full and complete schedule of all lots or tracts of land benefited by said improvement specifically describing each lot or tract giving the name of the owner or owners of the same and the aggregate amount of benefits assessed against each lot or tract.

3391k. Hearing for parties assessed. 11. Upon making said assessments, the said board shall fix a day upon which parties assessed may be heard as to the equality thereof and shall give at least twenty days' notice of the time of such hearing by publication in some newspaper of general circulation, printed and published in said town, directed to whom it may concern, and if no such paper is printed or published in said town, then by like notices, written or printed, posted up in at least five public places therein. Upon the day fixed in said notice, the board shall meet and after hearing all persons interested either in person or by counsel, shall affirm or modify and affirm as modified said assessment and the same shall thenceforward be binding and conclusive and shall be and constitute a first lien upon all property assessed from the date of the original resolution

adopted by the board as herein provided: Provided, That any party assessed may appeal from the determination of said board to the Circuit Court of the county in which such town is situate, and the only question triable on said appeal shall be as to proportionate amount of said assessment and upon the determination of said appeal the Clerk of the Circuit Court shall certify the judgment to the Clerk of said town and the same shall be and become a part of the asseessment above provided for. Should the Circuit Court reduce the amount of any assessment on such appeal, the town causing such improvements to be made shall pay the difference between the assessments as made by the Board of Trustees and that fixed by the court. The court shall make a reasonable order as to the payment of costs, the Town Clerk shall make out a transcript of the proceedings for the appellant: Provided, That if either trustee is directly interested in or affected by such assessments, he shall have no voice in the making of them: Provided further, That if a majority of said Board of Trustees be personally interested in the assessment so to be made, the said Board of Trustees shall appoint three disinterested resident freeholders to make the said assessments. Said freeholders shall be first duly sworn to faithfully and impartially discharge their said duties. The said three freeholders shall also hear all objections to such assessments and change or modify the said assessments as they may deem right and proper, after hearing the remonstrances in this act provided; and the report as so made, or as modified and affirmed, shall be held to be the true and lawful assessment of benefits or damages as in this act provided and shall have the same force and effect in law as if they had been made by a disinterested Board of Trustees. The Clerk of such town shall enter the fact of the appointment of said three freeholders and the assessment as finally made by them upon the records of such Town Board of Trustees.

33911. Payment by installments.

12. Any person whose property

is assessed for the construction of said work may have the right to pay such assessment in ten equal annual instalments with six per cent. interest payable annually, the first payment to be due and payable at the first taxpaying day provided by general law next after the assessments shall be certified to the County Treasurer for collection as hereinafter provided by filing with the Clerk of said town within twenty days after the determination of said assessment by the Board of Trustees his written agreement duly signed by him waiving all irregularity in the assessment and proceeding and agreeing to pay the same with six per cent. interest and all costs of collecting the same without relief from valuation or appraisement laws. All other assessments shall be due and payable on and after the expiration of twenty days from the day of making said assessment by the board as above provided.

3391m. Suit to enforce.

13. Should any person or persons whose lands are assessed for the construction of such improvement fail or neglect to pay the same within twenty days from the date of the assessment such town may bring suit in the Circuit Court of the proper county for the use of the contractors, or the contractor may bring such suit in his own name for the collection of the same and the foreclosure of the liens thereof and the only defense to such suit shall be that of payment. All persons delinquent shall be joined in one suit and the court upon the hearing of the cause, if a finding shall be made for the plaintiff, shall add to such assessment five per cent., of the several amounts thereof as

and for his attorney's fees and if more than one suit is instituted they shall be consolidated and the plaintiff taxed with all costs except in one action.

3391n. Assessment placed on tax duplicate. 14. Where persons

assessed shall claim the right to pay their assessment in instalments as above provided, and shall comply with the conditions above provided, the Clerk of said town shall forthwith certify to the Auditor of the county in which said town is situated the said several assessments who shall forthwith place said assessments upon the tax duplicates of said county and the Treasurer thereof shall thereupon proceed to collect said taxes as other taxes are collected: Provided, That the first instalment shall be due and payable at the next succeeding day provided by general law for taxes becoming delinquent after said assessment shall have been so certified to said Auditor and shall become delinquent if not paid on or before said day, and be collected in the same manner and under the same penalties as is provided for the collection of other delinquent taxes.

33910. Bonds for construction. 15. For the purpose of anticipating the payment of said assessments to be paid in installments as aforesaid, the town shall issue its bonds for the amount of such assessment bearing six per cent interest payable annually and sell the same either at public or private sale and with the proceeds pay the expenses of the construction of said work: Provided, That if the contractor desire they may issue and deliver to him such bonds at not less than par. The said towns shall not be liable on account of the construction of said work or on said bonds unless the total amount of assessed benefits shall not equal the amount of the cost of such work and then only for the deficiency and for such amount as the said Board of Trustees shall determine to pay out of the general fund as above provided.

3391p. Sewers through private property. 16. All sewers constructed under the provisions of this act shall, when practicable, be constructed within streets, alleys and public highways, but may be constructed, when necessary, through private property and the damages therefor assessed and paid as herein provided. All property benefited by the construction of any sewer may be assessed for the construction of the same whether abutting upon the sewer or not but in such cases the benefits assessed shall be limited to the benefits to be received by the property as an outlet for drainage or sewerage.

17. Should any

3391q. Petition for sewer Writ of mandate. citizen or citizens, residents of any incorporated town, own property so situated that the want of drainage or sewerage endangers the public health of said town, he or they may petition the Board of Trustees thereof to construct a sewer or drain under the provisions of this act and should said board refuse to do so he may apply to the Circuit Court for a writ of mandate compelling them so to do and if upon the hearing of such cause the court shall determine that his or their said property is so situated that a lack of drainage or sewerage is dangerous to the public health and that a proper drain or sewer can be constructed with reasonable cost the court shall peremptorily order such Board of Trustees to construct the same under and pursuant to the provisions of this act and shall enforce such order by attachment.

[1867, p. 205. In force March, 11, 1867.]

3392. Power over sewers. 1. The Board of Trustees of any incor

porated town in this State shall have full power and authority to construct and repair any sewer along any street or alley in any incorporated town in this State, or along any part of a street, block, or square in any incorporated town in this State; and they shall be the sole judges of the necessity and utility of the construction of such sewer.

See sections 3391a to 3391q concerning construction of sewers for sanitary and other purposes in towns of the state.

3393. Proceedings to establish and construct. 2. Whenever the Board of Trustees of any incorporated town in this State shall determine to construct any sewer authorized by this Act, such Board of Trustees shall, upon their records, specify and determine the place of beginning and termination of such sewer, its route, course, and distance, and shall also determine and specify, in their said records, the depth below the grade at which such sewer shall be sunk, the size or diameter of the same, and of what materials the same shall be constructed. And thereupon such Board of Trustees shall appoint three appraisers, freeholders and voters in said town, not in any way interested in the proposed sewer, whose duty it shall be to examine all the in-lots, out-lots, and parts of in-lots and parts of outlots in said town, that would in any manner be benefited by the construction of the proposed sewer; and shall assess the amount of benefits to each lot or parts of lots, that will result thereto by the construction of such sewer. And said appraisers shall make out a schedule of said lots or parts of lots, with the said appraisement thereto; and shall append to such schedule their affidavit that the said assessment is, in all respects, a true and impartial assessment of the benefits resulting to each lot and part of lot in any way benefited by the said proposed sewer, according to the best of their judgment. And the said appraisers shall file said schedule with the Clerk of the Board of Trustees of such town, who shall record the same in the records of said Board of Trustees; and from and after the recording of said schedule above directed, the assessments therein made shall be a lien upon the lots and parts of lots, respectively, against which they are made, to be in no manner divested only as hereinafter provided.

3394. Order to appraisers. 3. Before said appraisers shall proceed to discharge their duties as in the preceding section, said Board of Trustees shall cause to be issued to them a certified copy of their order, giving the commencement, termination, distance, route, depth below the grade, and the materials of which such sewer is to be constructed, and of their appointment.

3395. Majority may act. 4. The majority of said appraisers shall be competent to act; and two of them concurring in the same proposition, such concurrence shall be taken as the decision of said appraisers on such proposition.

3396. Schedule filed-Construction. 5. As soon as the said schedule of assessment, made by the said appraisers, is returned and recorded in the records of said Board of Trustees, such Board of Trustees shall proceed and cause the said sewer to be constructed in accordance with their previous plans and specifications, as near as can be done, making such alterations from the original plan, only, as the necessity of the case or the better construction of the work may seem to require.

3397. Apportionment of cost. 6. As soon as the Board of Trustees ascertain the cost of the construction of such sewer, they shall make