limits of the city. The evident intention of this statute is to leave all public bridges within the city limits under the absolute management of the council of the city, and to charge the city with the duty of keeping such bridges in repair. A public bridge within the limits of a city, located upon a public street or highway of the city, constitutes a part of such street or highway, and a city, where it takes charge of the same, is liable to persons suffering injury or loss, without fault or negligence, for the neglect to keep such bridges in repair. It does not change this that a particular bridge which is out of repair and at which an injury happens was originally built and maintained by the county. Acceptance of the bridge is not needed, for when the city takes charge of the highway it takes charge of its parts; Goshen v. Myers, 119-199.

A complaint against a city, in an action to recover for an injury in consequence of a defective sidewalk, which alleges that such sidewalk had been negligently left out of repair and unsafe for use, of which the city had notice for more than a month; that while plaintiff was carefully walking along it, during the night time, it gave way under his weight, by reason of its decayed condition, and he was, without fault on his part, precipitated down an embankment, sustaining injuries, states a cause of action. Nor is it defective by reason of a failure to allege that proper signals of danger were negligently omitted to be placed, so as to warn traveler, of the sidewalk's dangerous condition. In such an action an answer alleging that the city is indebted up to the constitutional limit and possesses no funds available for the repair of its streets and sidewalks, presents no defense, inasmuch as under sections 3162, 3164-5 the city has power to repair its streets and sidewalks at the cost of adjacent property owners; N. Albany v. M'Culloch, 127-502.

This section gives to the common council of a city exclusive power over streets, alleys and bridges of such city. Therefore, a complaint in an action against a county for a personal injury resulting from the negligence of the county in failing properly to guard a bridge, within the limits of a city, while making repairs thereon which does not show that the bridge belonged to the county, or that it was its duty to keep it in repair is bad. The fact that the county built the bridge and had contracted for its repair does not disclose the county's liability to maintain it; Spicer v. Board etc., 126– 370.

3162. Petition for improvement. Where a street improvement assessment can only be enforced by proceedings in court, after due notice to the property owner, the city charter and ordinances under which such assessment is levied are not void because they fail to provide for notice of the assessment; Law v. Johnston, 118-262, following Garvin v. Daussman, 114-429.

3163. Costs, how apportioned. This act, of 1885, covers the entire subject matter embraced in the main body of section 69 of the act of 1867, in relation to cities (3163); it enlarges the authority of the common council of a city in causing assessments to be made against lots and lands for the improvement of streets and alleys and contains some inconsistent provisions on the subject of assessing unplatted lands as well as in other respects. It, therefore, impliedly repealed and superseded the main body of such section 3163, saving only contracts entered into before the passage of the act; Crowell v. Jaqua, 114-248.

an

The subject matter of this enactment (statute of 1885) as indicated by its title, act concerning contracts made by the order of the common council of cities for the grading and improvement of streets and alleys" etc., and the body of the statute is entirely different from that covered by section 3106, subdivision 43 (of the powers of council), which relates to the construction of drains, sewers and cisterns, none of which are necessarily a part of a street improvement; it, therefore, in no way limits or widens the operation of the last mentioned clause of section; Elkhart v. Wickwire, 121-340.

This section, constituting the statute of 1885 (S., p. 207), relating to street improvements by cities, will not be given a retrospective operation, so as to change existing rights, and the act does not assume to affect such rights by enlarging the lien of the contractor as to work done under the statute of 1881, where the work was completed and a sale had under a precept prior to the passage of the act of 1885. The statute of 1881, as to assessments under it, covered only the front line of the property to be assessed in its general terms; but, by specific terms, expressly directing how the assessment shall be made, it provided that the ground shall be assessed back to the distance of fifty feet from such front line. This being the limit no levy, under that statute, of an assessment can be on a greater quantity of ground; Niklaus v. Conkling, 118-290.

3165. Payment, how enforced. This section is only modified, by the statute of 1885 (3163), so as to require that liens for assessments against unplatted lands shall be enforced by proceedings in the circuit court, instead of by the issuance of a precept to the city treasurer. In all other respects the section remains intact. For the enforcement of liens, created by assessments against lots and all classes of similarly platted lands within the limits of a city, a precept may be issued as heretofore, in accordance with the provisions of the section; Crowell v. Jaqua, 114–249.

Where the common council of a city has, by the publication of a notice which it adjudges sufficient, acquired jurisdiction to let a contract, on an appeal from a precept to enforce an assessment, under this section any inquiry into such incidental facts as the rejection of bids and the subsequent reconsideration of the vote to reject is precluded; Ross v. Stackhouse, 114-204.

A precept issued under this section is void if issued without the filing by the contractor of an affidavit “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; " so, where a complaint for the enforcement of an assessment shows an insufficient affidavit, not embodying, in a substantial manner, all of the requirements of the statute providing for such affidavit, it is bad on demurrer; Clements v. Lee, 114-399.

Under an appeal from a judgment enforcing a street improvement assessment, this section prescribes what questions shall be tried. In such a proceeding it is expressly 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." In such proceeding it is not admissible to show that the contractor wrongfully removed gravel and other material - such damages can not be set off against the assessment. Nor can the validity or inaccuracy of any other assessment than the one sought to be enforced be questioned if that appears to be accurate and enforceable the contractor is entitled to judgment thereon; Sims v. Hines, 121-536.

The validity of a provision in an ordinance, authorizing a street improvement, that surplus earth accumulating in the course of the improvement shall belong to the contractor can not, in view of this section, be questioned in a proceeding to enforce an assessment. Where a common council, by taking all the necessary preliminary steps, acquires jurisdiction and makes a contract for street improvements, a party benefited will not be permitted to stand by until the work is completed and, then, claim exoneration when the contractor seeks to obtain pay for his work; Jenkins v. Stetler, 118276.

In an action to quiet title to a lot, against a defendant's adverse claim of title through a purchase of the lot at a sale to satisfy an assessment for the cost of a street improvement, the plaintiff is, by this statute, prohibited from availing himself of any irregularity, or trying any question of fact arising prior to the letting of the contract for the work on the street; wherefore, proceedings up to and including the making of the contract will be deemed lawful; Trustees v. Rausch, 122–176.

If, under this section, which precludes any inquiry concerning facts that arose prior to the making of the contract, any question relating to the sufficiency of the notice can be raised - a proposition which is doubted — it can be done only by answer; Clements v. Lee, 114-399.

7128. Petition - Contract. Where the record of proceedings of a board of trustees shows that a petition was presented to the board and that the members thereof adjudged it to be sufficient, there is an adjudication on a jurisdictional fact, which is conclusive against a collateral attack; M'Eneney v. Sullivan, 125–411.

This statute does not restrict the authority of municipal corporations to order local assessments to cases where petitions are filed. It vests in them authority to order assessments, by a vote of two-thirds of the members of the common council or the board of trustees, without a petition. It follows that where there is an insufficient petition the proceedings are not necessarily void for want of jurisdiction—as where the record shows that the assessment was ordered by a unanimous vote — - the assessment may not have been based on the petition; M'Eneney v. Sullivan, 125-411. Notice at some stage of the proceedings prior to a conclusive judgment is requisite in order to authorize the subjection of property to a special lien for a local assessment; Barber etc. Co. v. Edgerton, 125-463; Kuntz v. Sumption, 117-1; Garvin v. Daussman, II4-429. This statute of 1889 provides for notice to the property owners (§§ 7129 and 7134) and, in respect thereof, is constitutional; M'Eneney v. Sullivan, 125-409.

7129. Sewer - Procedure to construct. Under this section the common council of a city may declare in the same resolution the necessity for the proposed street improvement and order the same to be made. It is not necessary first to pass a resolution declaring the necessity of the improvement and, then, afford parties uninterested an opportunity to be heard as to the necessity for the construction of the work before a valid order can be made for the improvement. It complies, substantially, with the statute to embrace both matters in the one resolution, and that it is so done will not invalidate the proceeding; Barber etc. Co. v. Edgerton, 125-457.

This section, which provides for notice to the property owners of the time when and place where they may make objection to the necessity of the improvement contemplated, does not require the appointment of a committee to hear the objections, or that there should be any determination of the rights of the objectors. It simply contemplates that no action shall be taken by the common council, after the adoption of the resolution to make the improvement, until notice is given and an opportunity afforded the property owners to present, for the consideration of the council, such objections as they may make as to the necessity for the construction of the work. This object is accomplished by requiring objections to be filed with the clerk, to be by him ĺaid before the common council; Quill v. Indianapolis, 124–295.

7133, 7134. Final estimates etc.- Assessment notice. As to whether or not a particular improvement is necessary must, of necessity, be left to the discretion of the common council of the city where the improvement is to be made. Under the statutes in force, this question may be determined, by such a council, without notice to the property owner who is to be affected by the improvement (§ 7129). Assessments to pay for the improvement ordered to be made are laid on the assumption that the property affected is benefited to the extent of a sum equal to the cost. Whether or not, however, such improvement will or does, in fact, benefit the property in a sum equal to its cost is essentially a judicial question, on which the property owner is entitled to be heard. These sections of this act provide for such notice to be given to the owners of property abutting on a street to be improved and afford such owners an opportunity to be heard on the question of benefits; Barber etc. Co. v. Edgerton, 125-464.

7137. Assessment, payment — In full — By instalment. A property owner who, in consideration of the right to pay his assessment in semi-annual instalments, has agreed that he will waive all irregularities in the assessment can not question the validity of the provision of the act that "no suit shall lie to restrain or enjoin the collection of such assessment," and that the validity of such assessment shall not be questioned. Such provision applies only to those persons who, in consideration of their right to pay their assessments in semi-annual instalments, agree in a writing, to be filed with the city clerk, that they will not make any objection to the legality or regularity of their respective assessments and is constitutional; Quill v. Indianapolis, 124-301.

ARTICLE 5 - OPENING AND VACATION OF STREETS.

3166. City commissioners. A city has no power to condemn real estate, belonging to a railroad company, in actual use for right of way and for depot purposes and to appropriate the same to the use of the public as a street. The statute, authorizing cities to condemn and take lands for public use as a street, neither in terms nor by necessary implication authorizes the taking of property already dedicated to a public use, and land held for a right of way and depot purposes by a railroad company, when in actual use for such purposes, is so dedicated; Valparaiso v. C. & G. T. Ry. Co., 123-468.

The statute authorizing municipal corporations to appropriate lands for streets does not confer power on them to take land occupied and used by a railroad company. Land already appropriated to a public use can not be appropriated to another public use, unless the statute clearly confers authority to make a second seizure; L. S. & M. S. Ry. Co. v. Cin. etc. Ry. Co., 116-590. An injunction will lie to enjoin proceedings to appropriate a strip of ground occupied by a railroad track, such strip being part of a continous railroad; Seymour v. J., M. & I. RR. Co., 126–466.

3167. Proceedings in council. When a city undertakes to lay out a new street or alley the proceeding should be referred to the city commissioners. Preliminary, however, to referring such matter to such commissioners, the common council should refer the matter to an appropriate committee, who shall examine the matter and report

at the next meeting of the council as to the expediency of so referring. When the committee reports, the council votes on the question of referring the matter to the city commissioners. If two-thirds vote in favor of reference, the matter is referred; if two-thirds do not vote in favor of referring it, that ends the question of the improvement. Where, then, a city undertakes to widen an alley into a street — which if it be not the laying out of a new street is an act subject to the same provisions of lawwithout referring the matter to the city commissioners for the assessment of benefits and damages, thus depriving a property owner of the right to have his damages assessed in the manner prescribed by the statute, such city is liable to such property owner for the damages which were assessable by the commissioners; Anderson v. Bain, 120-258.

ARTICLE 6— ANNEXATION OF TERRITORY.

3195. Extension over platted lots. The common council of a city has authority, without the consent of the owner, to annex territory and extend its boundaries so as to include lots laid off and platted adjoining the city, if the plat has been acknowledged and properly recorded, but not otherwise; aliter as to lots laid off and platted by one who is not the owner of the land and who has no authority in the premises; Indianapolis v. Patterson, 112-347.

AN ACT repealing section one of an act entitled an act concerning the taxation of certain lands and other property within the limits of cities and towns, approved April 16, 1881, and declaring an emergency. [Approved and in force March 9, 1889; S., 1889, p. 398.

7319. [3261] Agricultural lands etc. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That section 1 of the above entitled act, being section 3261 of the Revised Statutes of 1881, be and the same is hereby repealed: Provided, that nothing contained in this act shall affect pending litigation, and the rights of such litigants shall remain the same as if this act had not been passed.

7320. Emergency. § 2. Whereas, an emergency exists for the immediate taking effect of this act; the same shall be in full force and effect from and after its passage.

AN ACT to abolish the office of and board of trustees of water works in cities and incorporated towns having a population of less than five thousand. [Approved March 3, 1891; in force June 10, 1891; S., 1891, p. 64.

7321. [3270] Boards abolished, where. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That the office of and board of water works trustees in cities and incorporated towns of less than five thousand population be and the same are hereby abolished.

7322. Water works, management of-Compensation. § 2. That in cities and incorporated towns of less than five thousand population having water works established, or in which water works may be hereafter constructed or established, the city common council, or the trustees of incorporated towns, may construct, conduct, manage and control their own respective water works, and may appoint such agents, employes or committees of councilmen or town trustees to manage and conduct the same as the common council or town trustees shall deem necessary or proper, and for such compensation as may be agreed on or shall be fixed by the common council or town trustees.

7323. Repealing clause. § 3. All laws or parts of laws in conflict herewith are hereby repealed.