drainage to make their report at the appointed time. It is, also, settled that persons whose lands are or may be affected by the construction of a drain which has been petitioned for may have the petition dismissed, in case the drainage commissioners, without an order of the court extending the time, fail to make their report at the time fixed therefor. Such motion, however, comes too late from a party who has appeared to the petition and filed a remonstrance or asked leave so to do; his motion to dismiss or to strike out the petition, in such case, should be overruled; Blake v. Quivey, 113-125.

Where a judgment is rendered adversely to a remonstrant in a drainage proceeding, he assigning as one of the causes for remonstrance that the work can not be accomplished without an expense exceeding the aggregate benefits, and he appeals without a stay of proceedings, and the judgment of the trial court is reversed, such remonstrant can not afterward recover damages, for injury to his land, caused by the construction of the ditch pending the appeal; Thompson v. Reasoner, 122–457. 4277. Lien Notice of work established — Satisfaction. This section pro vides that the commissioner of drainage charged with the construction of a drain may require assessments made in aid of it to be paid in instalments, not exceeding 20 per cent. per month, at such times. as he may fix after thirty days' notice to be given in a prescribed manner. This means that the commissioner in charge of the work may require assessments to be paid in instalments, not exceeding 20 per cent. during each calendar month, and that the times fixed for the payment of such instalments need not necessarily be exactly one month apart; Hackett v. State, for use etc., 113-537.

This section creates a lien on a railroad; it does not, however, authorize the body of the road to be sold (L'ville etc. Ry. Co. v. Boney, 117-501). Wherefore in a proceeding to enforce a lien of assessments, after judgment has been rendered against a company for a certain sum, a decree of foreclosure and order for the sale of the right of way of the railroad through certain sections of land for the satisfaction of the judgment is not maintainable; L., N. A. & C. Ry. Co. v. State, for use etc., 122-445.

Under the statute of 1883 the approval and confirmation, by the court, of the assessment as made in the report of the drainage commissioners creates the lien, which relates to the time of filing the petition. It is not necessary, as a condition precedent, to the right of the drainage commissioner to maintain an action for the collection of the assessments, that the percentage of assessments made by the commissioner having the work in charge shall have been reported to and confirmed by the court, nor that the commissioner shall have filed, in the recorder's office of the county, notice that the work has been established by the court and of the several assessments against the several tracts of land; L., N. A. & C. Ry. Co. v. State, for use etc., 112-414.

4279. Supplemental petition. The power of the court, until the work is fully completed and accepted, must be regarded as a continuing power within the limits that the entire cost of the improvement must fall on the lands benefited in proportion to the benefits which accrue to each tract affected, and that no tract can be assessed in a sum exceeding the amount of benefits resulting to it from the work as adjudged by the court. Until the commissioner has made his final report the proceeding remains under the control of the court (Steele v. Hanna, 117-333). In the event that the original assessment of benefits proves inadequate to complete the work it is competent for the court, on proper petition and notice, to refer the matter to the commissioners of drainage or if they be, for any reason, incompetent to act, to new commissioners, for the purpose of reassessing benefits, in order to complete the work or pay the deficit in case the work has been completed; Rogers v. Voorhees, 124-469.

4281. Surveyor's duty. This section makes it the duty of the county surveyor of any county in which proceedings for the construction of a ditch are had, to "keep the same in repair to the full dimensions, as to width and depth, as required in the original specifications." It, also, prescribes the duties of the surveyor, in respect to apportioning and assessing the cost of the repairs upon the lands adjudged in the original procecding benefited, in proportion to the benefits assessed in the first instance. The surveyor is required to give notice of the assessments, and an appeal to the circuit court is authorized to be taken by any person aggrieved. This section is constitutional, obviating, as it does, the defects of the section as it stood prior to the enactment of this statute in 1885. The original section attempted to confer authority on township trustees to impose an assessment on land without notice and a hearing, or an opportunity

to be heard, on the part of the owner of the property to be assessed and was, therefore, held to be unconstitutional as virtually depriving the owner of his property without due process of law (Campbell v. Dwiggins, 83-473; Tyler v. State, ex rel., 83-563). The authority and proceedings of the county surveyor under the statute must be confined within and conform strictly to the statute, and that authority is strictly limited to maintaining ditches in repair to the dimensions, as to width and depth, as required in the original specifications; Fries v. Brier, 111-66; Trimble v. M'Gee, 112-311.

Where a county surveyor on being served with the statutory notice, by a land owner, requiring him to repair a drain, by cleaning it out to its full dimensions as required by the original specifications, exercises the discretion committed to him and deterinines that it is his duty so to cleanse the drain, his judgment is conclusive as to the necessity of making the repairs, and the exercise of his discretion is not a subject of judicial cognizance (Weaver v. Templin, 113-298). The jurisdiction of the surveyor is confined to making repairs and removing obstructions from drains and while it is true that the courts might interfere if the officer was proceeding beyond his jurisdiction there is no ground for judicial interference unless the complaint for relief by injunction shows he is proceeding beyond the limits of his jurisdiction; Amoss v. Lassell, 122-37.

This section, providing for the construction and repair of ditches extending in to more than one county, intends that where the surveyor of the county in which the ditch was established repairs a ditch extending in to another county, it is his duty to apportion the cost and certify to the county auditor, of each county, such portion as is chargeable against the lands in such county. It, then, becomes the duty of the county auditor of each county to draw his warrant on the treasury for such portion of the cost as is chargeable against the lands in his county, for which amount the treasury of such county will be reimbursed by the collection of the assessment against the lands in such county; Crooks v. State, ex rel., 126–573.

This section is constitutional. The constitution sanctions no law under which a lien can be conclusively imposed on property without notice to the owner, affording him an opportunity to be heard in a competent tribunal, but it is, nevertheless, competent for the legislature to prescribe the kind of notice and the tribunal before which he may be heard; Johnson v. Lewis, 115-491.

Action to enjoin a county surveyor and persons to whom the surveyor had let a contract for the repair of a drain, or ditch, theretofore established, from proceeding with the work. The grounds of proceeding were (1) that the drain had never been constructed as required under the plans and specifications originally adopted; and (2) that the surveyor gave no notice of the sale, or letting of the work, to those employed to cleanse the drain. (a) No statute requires the surveyor to give notice of the letting of the contract to repair, nor is it required that the reparation shall be by contract. (b) Where it appears that the drain was duly located and established, that the lands benefited were assessed and the work allotted and that the surveyor was proceeding, seven years thereafter, to repair the drain, it will be presumed, as against a general averment that the drain was not completed according to the original plans and specifications, that the work was duly accepted as the law required. Such an acceptance creates a conclusive presumption that the work was completed according to the plans and specifications on file; Bunnell v. Peet, 123-437.

The evident intention of this section is to commit the question of the propriety of repairing a public ditch to the discretion and decision of the proper county surveyor and to treat his decision, in favor of the propriety of repairing it, as final; Kirkpatrick v. Taylor, 118-331; Markley v. Rudy, 115-538.

Under this section and section 5952, which is a part of an original act providing for the election and prescribing the duties of county surveyors where, in the repair of ditches, lands owned by such surveyor or by persons related to him within the prohibited degree of consanguinity, are benefited by and liable to assessment for such repairs declaring that he has no power to act. When he receives notice that a ditch is out of repair and the fact of interest or relationship exists he should report the fact to the county board, asking the appointment of a disinterested deputy to make the necessary repairs and assessments; Markley v. Rudy, 115-536, overruling Kelly v. Hocket, 10-299, so far as it is inconsistent with the general principles on which the surveyor's incompetency is made to rest.

Under this section any person feeling himself aggrieved may separately appeal from any assessment made in pursuance of its provisions. On the trial of the merits of

the appeal the question of the propriety or necessity of repairing the ditch shall neither be reviewed nor taken into consideration, but the investigation shall be confined to the amount which should be assessed against the lands of the party appealing, leaving the question as to the competency of the surveyor to make the assessments, and all kindred questions, open to examination as preliminary or incidental to the trial on the merits; Markley v. Rudy, 115-537.

Under this section, as to the reparation of ditches by the county surveyor, on an appeal, to the circuit court, from an assessment made by the county surveyor, apportioning the expense of repairing a ditch, evidence that the money expended by the surveyor was disbursed for excavating and repairing a ditch on a different line from that designated in the original specifications is admissible; Taylor v. Brown, 127-294.

The provision of the statute, "the only question tried shall be to determine the costs of such repair and what amount thereof should be assessed against the appellant's lands," referring to the adequacy of the remedy on appeal makes it properand within the scope and meaning of the statute-to determine whether the appellant's lands are subject to any assessment for such repairs and whether there should be any part of the costs assessed against such lands. It can not be determined what amount should be assessed against the lands without determining whether any part should be so assessed; Kirkpatrick v. Taylor, 118-331.

4284. Repealing and saving clause. Under this section which, as to its provisoes is somewhat obscure, it is to be inferred that the legislature intended that all assessments for work done under the laws repealed should be made and collected according to the provisions of such laws and should not be affected by such repeal; Dunkle v. Herron, 115-473. All assessments for work done under the repealed statute of 1883 (S., p. 173) were unaffected by the repeal and remained enforceable according to the provisions of the statute under which they were made; Geiger v. Bradley,

117-124.

The saving clause of this section applies to an action on the bond of a drainage commissioner, appointed under the statute of 1881, for a breach of duty in the construction of a drain under the latter act, where it is not made to appear that prior to the commencement of the action the proceedings for the establishment of the drain had terminated. In the absence of the saving clause an action would lie for waste or conversion of the funds by the commissioner; Smith v. State, ex rel., 117-172. 4286. Petition-Viewers. This statute authorizing county commissioners, in certain cases, to cause to be constructed ditches etc., within their county, does not require the petition particularly to describe the location of the proposed ditch or drain. The requirement is that the petition shall contain a general description of the proposed starting point, route and terminus of the ditch. A petition which does this is sufficient; Metty v. Marsh, 124-21.

4295. Remonstrance. It was the evident intention, by this section, that all griev ances growing out of the establishment and construction of a ditch by county commissioners should be presented to the board and settled in that tribunal. There is a right to remonstrate not only against the report of the viewers but, also, against that of the reviewers, and it is not to be doubted that the board has power to reject the report of any set of reviewers, should it be satisfied that the report is unjust to any party in interest. This power is to be inferred from the language of section 4294, under the provision of which the board is not required to establish the ditch unless it shall find that such report is in accordance with the provisions of the act under which the proceedings are had; Metty v. Marsh, 124-22.

4301. Appeal. This section gives a right of appeal on four questions: (1) the utility of the ditch in respect of the " public health, convenience or welfare; " (2) the practicability of the route; (3) the due proportions of the assessments to the benefits; and (4) the award of damages to the person. When, however, an appeal is perfected if there shall be no issue for trial and no question of the jurisdiction of the board remaining to be heard, it having been already disposed of, it is not error for the court to sustain a motion for judgment in favor of establishing the ditch; a prima facie case being made by the petition and the reports of the viewers and reviewers; Metty v. Marsh, 124-22.

Pending proceedings before a board of ounty commissioners to establish a ditch an appeal was taken to the circuit court from the decision of the board to strike out an application to certify the case to the federal circuit court. The appeal was dis

missed and, being unauthorized, it did not affect the jurisdiction of the county board; Donalson v. Lawson, 126–170.

4305. Surveyor's certificate. During August, 1883, there became due from an owner of land a sum of money as a ditch assessment, for which a certificate was issued and the amount due was placed on the tax duplicate, for collection as other taxes. At the time the ditch assessment was so placed on the duplicate the state and county taxes against such land were delinquent. During December of that year the land owner paid the state and county taxes, leaving the ditch assessment unpaid, and for that assessment the land was advertised and sold. The mode of collection prescribed by this section is exclusive. No action can be maintained to recover the amount due for the cost of constructing a ditch, under this statute. The certificate issued to the contractor by the surveyor is due and payable by the land owner immediately and on a failure to pay it, in this case, on or before the first Monday of November, 1883, as required by section 6426, it became delinquent. Being delinquent it was the duty of those charged with its collection to advertise and sell the land against which it was charged for its payment and the sale transferred to the purchaser the lien for such taxes, to the extent of the amount paid at the sale and the amount of taxes, subsequently paid, with statutory interest and penalties; Cullen v. Strang, 124-341.

This section creates a new right and prescribes a mode of enforcing it. The mode prescribed must be pursued to the exclusion of all other remedies. Therefore a ditch assessment can be collected in no other mode than that prescribed by the statute (Storms v. Stevens, 104-46). So, if assessments against land constitute a lien on such land, such lien is to be enforced by advertisement and sale of the land, for such sum as it will bring at public auction - as other lands are sold for delinquent taxes; Edgerton v. Sch. Tp., 126-262.

4317a. Wet lands. The legislature having declared that the drainage of wet lands is a matter of public benefit there is left to the local tribunals nothing more than the duty of determining whether a particular ditch will be of public utility or will be conducive to the public health, welfare and convenience. If the particular ditch will drain any considerable body of wet lands it is of public utility and benefit. The reclamation of such lands and the draining of marshes and ponds is of public utility and is conducive to the public health etc., and it is not necessary, in order that the use may be regarded as public, that the whole community, or any large portion of it, may participate in it. If a drain be of public benefit the fact that some individuals may be specially benefited above others affected by it, will not deprive it of its public character. Where, then, such drainage will promote the public health etc., the authority to direct it may be exercised under the police power; hence, the drainage law is constitutional, as a valid exercise of that power. Whether it is practicable or expedient to construct a ditch on a route proposed is for the determination of the local authorities and their decision is not subject to review or control by the courts; Zigler v. Menges, 121-102.

The statutes of the state relating to drainage were not intended to provide a system of drainage for the fresh water lakes of the state. Those statutes apply and were intended to apply, only, to wet and marshy lands, swamps, ponds and the like; B. & O. & C. RR. Co. v. Ketring, 122-9.

7662. Inspection - Allotment of reparation etc. Section 2663, being the first section of this statute (of 1889), places ditches constructed under the laws of the state under the control of the township trustees of the several townships in which they are situate. This section (7664) makes it the duty of the county surveyor of the county in which any of such ditches or drains may be situate to view and examine each and every such drain or ditch within his county, and to fix and determine the portion thereof that the owner of each tract of land and each corporation, county or township assessed for the construction thereof, should annually clean out and keep in repair; and, at the same time, set apart and apportion to each parcel of land, a share or portion of such ditch or drain, according to the benefits to be received thereby, to be cleaned out annually and kept in repair by the owner of each tract of land etc. The act provides that "the surveyor shall receive three dollars per day for actual services and the same rate for parts of days, to be paid out of any money in the county treasury, not otherwise appropriated etc. The surveyor may appoint deputies, ($ 5952) but no statute authorizes the payment of deputy surveyors. It would seem that the legislature contemplated that the surveyor would perform the services required of him,

under this, act personally. It provides that after a completion of the apportionment the surveyor shall hear complaints as to his action and for an appeal from his decision on any such complaint ( 7664). Such hearing and disposition of these complaints can not be before a deputy, for it is, in its nature, judicial. Therefore, a county is not liable for the services of deputies employed by a county surveyor to do any of the work embraced in this statute; State, ex rel., v. Roach, 123-170.

This section requires the county surveyor to apportion, or allot, to each tract of land benefited by a ditch constructed before its passage, which, in his judgment, the owner of the land should keep in repair, except in cases where an allotment has been made by "reviewers." An allotment made by viewers is not an allotment made by reviewers. The surveyor may ignore an allotment made by viewers; it is his duty to allot to each tract benefited by such ditch the quantity the owner of such land should keep in repair, except in cases where an allotment has been made by reviewers; Wheatley v. Romack, 124-433.