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ords removed to the new county seat, and any person or persons, for the purpose of procuring such relocation, shall have paid the county in full, in accordance with the provisions of this act, it shall be the duty of the board of commissioners of such county to convey, by quit claim, to the said petitioners the entire interest and estate of the county in such public grounds and buildings of the old county seat; and to release said petitioners, individually and collectively, from any and all obligation or obligations entered into in accordance with the provisions of this act.

7622. Appeal. § 10. In all cases of location or removal of county seats there shall be allowed an appeal to the circuit court, and to the supreme court, by any person or persons aggrieved thereby, under the same regulations as now provided by law for appeals in other cases from the board of commissioners, and from the circuit court, the party appealing giving bond for costs, as may be required by the board of commissioners, or by the judge of the circuit court.

7623. Repealing clause. § 11. All acts or parts of laws in conflict with the provisions of this act are hereby repealed.

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4243. Plans and specifications. This section provides that it shall not be lawful for any board of commissioners to make any contract for the construction of a court house until plans and specifications have been adopted and deposited in the office of the county auditor. It does not follow, however, that in case plans and specifications are adopted, in which the commissioners reserve the right to make alterations in the plans or in the details of construction and to adjust the price in the proportion that the alterations bear to the contract price of the whole work, the requirement of this section is disregarded; Kitchell v. Board etc., 123-543.

4245. Letting - Bond - Conditions. Where the contractor for the construction of a county building abandons his contract after a material portion of the work has been performed, the board of county commissioners has incidental power to take charge of the work and complete the building, without adopting new plans and specifications or letting a new contract. The county is liable for money, labor or materials furnished at the request of the board and used in the construction of the building. The board, however, has no power to assume any indebtedness of the contractor for materials furnished to him. For such indebtedness the county can not be made liable; Bass Foundry v. Board etc., 115-242.

4246. Contractor's bond. Sureties on a bond given, in pursuance of the provisions of this section, by a contractor for the erection of a county building, can not be held liable for debts incurred by a subcontractor as to whose acts there is no stipulation in the condition of the bond. The statute contains nothing to extend the liability beyond the default of the contractor; State, ex rel. v. Granite Co., 117-476. The bond constitutes a guaranty for the faithful performance of the work and that the contractor shall pay all debts incurred by him in the prosecution thereof. Hence, the liability on the bond does not extend to debts incurred by a subcontractor; Faurote v. State, ex rel., 111-73; Faurote v. State, ex rel. Saxon, 111-73; Faurote v. State, ex rel., 110-463.

4246-4247. Contractor's bond - Laborer's suit. The statute requires the bond to be executed and it is executed to secure the accomplishment of two purposes: (1) the faithful performance and execution of the work by the contractors, and (2) the prompt payment, by the contractors, of all debts incurred by them in the prosecution of the work, including labor, materials furnished and for boarding the laborers thereon. With the accomplishment of the second of the purposes, after the taking of such bond the board of county commissioners has nothing whatever to do. If the contractors fail promptly to pay such debts, incurred by them in the prosecution of the work, the right of action therefor, against them and their bondsmen, under the statute, is in the laborer, the material man or the person furnishing board to such contractors. This right of action can not be defeated by any act done, or omitted to be done, by the board of commissioners of the county; Conn v. State, ex rel., 125518, following and reaffirming Dewey v. State, ex rei., 91-173.

4248. Sale of county property. A board of county commissioners may contract for the removal of the county court house and jail to a new site; for the reconstruction of the buildings thereon or to sell the old buildings and erect new ones upon the new site. In doing this the board acts in a ministerial and not in a judicial capacity and although they may not act wisely, in the absence of an abuse of discretion amounting to fraud, the action of the board can not be questioned. In the sale, however, of county property a board must strictly comply with this statute. Where, however, the board enters into a contract, whereby the contractor is to remove the county buildings to a new site and provide all material that may be required in their reconstruction, in addition to that which the old buildings furnish, there is no sale of the old buildings to the contractor, within the meaning of this section, and the notice of sale therein provided for is not necessary; Crow v. Board etc., 118-52.

A board of county commissioners held a valid judgment, which was a lien on real estate, and attempted to assign it; an execution issued under the judgment and the real estate of the defendant therein was sold under the execution. The purchaser at the sale paid the full amount of the judgment. Third persons can not contest the validity of the assignment and the execution and sale under the judgment on the ground of the insufficiency of the notice of the sale and transfer by the commissioners; Wells v. Bower, 126-117.

NOTES TO CHAPTER 47

DENTISTRY.

4257a. Violation of act - Penalty. The act to regulate the practice of dentistry, of 1887 (§§ 4249-4257c) is a constitutional enactment; Wilkins v. State, 113-515.

SEC.

1

CHAPTER 49.

DRAINAGE.

SEC.

7624. Drainage petition Notice Railroad in- 7651. Cleansing-Inspection.

terests.

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7652. Cleansing tax-Contract.
7653. Ditch record.

7654.

Record - Account Special fund.

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7655. Compensation - Fees,

7656. Fees, payment of.

7657. Statute, effect of.

7658.

Emergency.

7659.

Work complete - Surplus fund.
Emergency.

7632. Bond for costs - -View and report - Action 7660.

on.

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7661. Township trustee- Cleansing.

7662. Allotment of cost- Annual cleansing.

7663. Repair - Allotment notice.

7664. Objections - Hearing.

7665. Appeal Costs-Surveyor's fee.

7666. Work, when completed.

7667. Trustees' duties.

7636.

Appeal, hearing - Judgment.

7637. Construction contracts.

7638. Contracts, how sold - Bonds.

7639. Work not complete on time.

7668. Obstructions, removal.

7640. Assessment bonds.

7669.

Trustees' pay- Agent.

7641. Ditch tax - Lien Costs Damages.

7670.

Trustees' bonds - Supervisors' bonds.

7642. County bonds - Tax.

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7643. Officer's neglects.

7644. Ditch in two or more counties.

7645. Ditch on section line etc.

7646. Ditch tax, collection.

7648.

7647. Ditch change.

Engineer's bond.

7675.

7676.

7649. Bridges, culverts etc.

7650. Obstructing ditch.

7672. Allotment anew.

7673. Repealing clause.

7674. Ditch cleansing, annual.

Allotment record- Failure to clean.
Emergency.

7677. Interstate drains.

7678. Constructed, when and how.
7679. Emergency.

AN ACT to amend section 2 of an act entitled "An act concerning drainage and repealing certain laws relating to drainage; prohibiting the obstruction of drains established under the laws of this state, prescribing the penalty therefor and declaring an emergency," approved April 6, 1885. Approved March 9, 1889; in force May 10, 1889; S., 1889, p. 285.*

7624.* [4273a] Drainage petition -Jurisdiction-Notice to land owner- Railroad interests - Assessments. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That section 2 of the above entitled act be, and the same is hereby, amended to read as follows: Sec. 2. Whenever any owner or owners of any separate and distinct tract or tracts of land lying outside the corporate limits of any city or town in this state which would be benefited by drainage, and which can not be accomplished without extraordinary labor and expense, as determined by the court: Provided, also, that where such drain passes through the corporate limits of such city or town, the same shall be located in, upon and along the streets or alleys thereof, wherever the same may be practicable without affecting other lands, shall desire such drainage, or which can not be accomplished in the best and cheapest manner without passing through the corporate limits of such city or town, such owner or owners may apply for such drainage by petition to the circuit court or superior court of the county in which the lands of the petitioner or petitioners are situated. The petition shall describe in tracts of forty acres according to fractions of government surveys, or less tracts when they exist, and in Clark's grant and the French grant, and all preemptions of Indian reserva

* See 88 4273-4284.

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