Appendix — Public Service Co. of Northern Ill. v. Corboy

INDEX.

Synopsis of Indiana Drainage Act of 1907..... 29-36

Prentis v. Atlantic Coast Line, 211 U. S., 210. .36-39

Mississippi Railroad Commission v. Illinois

Central Railroad Co., 203 U. S., 335....... 39-40

Louisville & Nashville Railroad Co. v. Garrett,

Se Ue ly SN uobd vowed Becneeenscessseue 40-42

Southern Ry. Co. v. Greensboro Ice & Coal Co.,

et Bs hd dcccdnccsendecscicbsecceres 42

Simon v. Southern Ry. Co., 236 U. S., 115..... 42-47

Hunt v. New York Cotton Exchange, 205 U. S.,

Ny 4 6s ebotdusesdvecetiessoesbeusadess 47-49

Madisonville Traction Co. v. St. Bernard Min-

BEE Cig BO Ue Mie Be eve cccdsvecsccescess 49-52

Indiana Drainage Act of 1907.............. 53-84

_

Appendix. 29

APPENDIX.

Awatysis or Inptiana Drarnace Act or 1907.

Section 1 provides that the board of commissioners

of each county shall appoint a citizen of the county as

drainage commissioner. The county surveyor is named

ex officio a second commissioner. Each is required to

give a bond for the faithful discharge of his duties as

drainage commissioner.

Section 2 provides that whenever the owners of tracts

of land lying outside the corporate limits of a city shall

desire to drain such tracts of land and such drainage

cannot be accomplished in the best and cheapest man-

ner without affecting the lands of others, such owners

may apply for such drainage by petition filed in the Cir-

cuit or Superior Court of the county in which petition-

ers’ lands are situated. Such petition shall describe the

lands which will be affected by the proposed drainage

and shall give the names of the owners thereof if known,

or if not known, such fact shall be stated. The petition

shall also state that in the opinion of petitioners the

public health will be improved or that the proposed

work will be of public utility, and it shall state gen-

erally the method by which it is believed such drainage

can be accomplished most economically and the belief

of petitioners that the expense of such drainage will

be less than the benefits resulting to the owners of lands

affected,

Section 3 provides that upon the filing of such peti-

tion in the office of the clerk of the court the petitioners

shall fix a date for the docketing thereof and shall give

notice thereof to all landowners mentioned in the peti-

tion. Such notice must be served upon such landowners

—7

30 Appendix.

in person or by leaving a copy at his usual place of resi-

dence. As to nonresident landowners mentioned in the

petition, notice must be given by posting notices in three

places designated in the township in which such lands

are situated and by sending a copy of such notice by

mail to such nonresidents if their address can be ascer-

tained, and also by causing publication of such notice,

If such notice is given not less than 20 days before the

date set for docketing the petition, the court orders the

petition to be placed upon the docket as a pending action.

Any person named in the petition as a landowner may

file in court objections to the petition within 10 days

after the date of such docket. After the expiration of

the 10 days the court passes upon the objections and if

it shall find the petition defective, it shall dismiss the

same, unless amended, or if it deems the petition suff-

cient, it shall enter an order appointing a third drain-

age commissioner to act with the other two, and shall

refer the petition to the three commissioners, and fix a

time and place for the meeting of the commissioners and

a time when they must report to the court. The com-

missioners must then make personal inspection of the

lands described in the petition and of other lands likely

to be affected by the proposed work. If they find that

the drainage proposed is impracticable and will not im-

prove the public health or benefit any public highway or

be of public utility, or that the expense of effecting the

drainage will be less than the benefits to the owners of

the lands likely to be benefited by the propused drain-

age, they shall so report their finding to the court and

thereupon the petition shall bé dismissed. If they find

otherwise, they shall proceed and determine the best

and cheapest method of drainage and the route and

character of the proposed work and establish the same by

cateteteieaaien ti emer

Appendia. 31

metes and bounds and shall estimate the cost thereof

dividing the ditch into sections and shall assess the

benefits or damages, as the case may be, to each sepa-

rate tract of land to be affected, including easements

held by corporations and any land, rights, easements or

water power injuriously or beneficially affected, and

shall report their findings to the court. The commis-

sioners may determine what the method of drainage

shall be—by removing obstructions from a natural or

artificial watercourse or diverting such watercourse

from its channel or by constructing an artificial chan-

nel or by various other means. In case any lands are

named in the report as affected by the proposed work

which are not named in the petition, the court shall fix

a time for hearing the report upon notice to the owners

of such lands.

Section 4 provides that upon the making of such re-

port to the court any landowner affected by the work

proposed and reported benefited or damaged may re-

monstrate against the report within 10 days after the

filing thereof. Upon the hearing of the remonstrances

the court may direct the commissioners to amend and

perfect their report, or may refer the matter anew to

the commissioners in case the report is defective; or the

court may modify and equalize the assessments estab-

lished in the report and for such purposes all persons

whose lands are reported as affected or are stated in

the petition as affected, shall be deemed to be in court |

by virtue of the notices previously given; or the court

may confirm assessments stated in the report. If the

court shall determine that it will not be practicable to

accomplish the proposed drainage without an expense .

exceeding the aggregate benefits, or that the proposed

work will neither improve the public health nor bene-

——

32 Appendix.

fit any public highway nor be of public utility, or that

the proposed work will not properly drain the land to

be affected, the court shall order the proceedings to be

dismissed. If the court shall approve the proposed

work and shall be satisfied with the assessments there-

for, or shall equalize the assessments to its satisfaction

‘it shall make an order declaring the proposed work

established, and approving assessments. as made by the

commissioners, or as equalized and modified as above

provided for, and shall assign the same to one of the

three commissioners above provided for, for construc-

tion, or the court may assign it for construction to any

disinterested freeholder of the county.’’ All questions

of fact arising on the petition, report or remonstrances,

shall be tried by the court without a jury. The order of

the court approving and confirming the assessments, and

declaring the proposed work of drainage established,

shall be final and conclusive, unless an appeal therefrom

to the Supreme Court shall be taken within 30 days.

Section 5 provides that the commissioner charged

with the execution of the work shall proceed to have the

same constructed. He shall pay all expenses incident

to such construction and costs of the proceeding. He

shall pay all damages assessed and allowed by the court

and the cost of constructing the work. He shall collect

all assessments of benefits reported by the commis-

sioners as adjusted by the court for the purpose of meet-

ing the expenses of construction, apportioning such

collections pro rata among the assessed property own-

ers. He shall divide the work into sections and let the

work of construction by public bidding. In case an as-

sessed landowner shall become delinquent in his pay-

ments, the commissioner shall certify such fact to the

county auditor, who shall cause same to be collected the

Appendia. 33

same as other delinquent state and county taxes are col-

lected.

Section 53 provides for the issuance of drainage bonds

under certain conditions, but has no special bearing upon

the issues in this case.

Section 6 provides that the filing of the petition shall

be deemed notice of the pendency of the proceedings to

all persons whose lands are named in the petition, and

the filing of the report of the commissioners shal] be

deemed notice of the pendency of the proceedings to all

persons whose lands are named therein and not named

in the original petition, and the amount of assessments

when approved by the court shall be a lien upon the

lands assessed. The construction commissioner shall

record in the office of the recorder of each county where

the lands are situated, a notice that the work has been

established by the court and the respective assessments

upon the lands affected.

Section 7 provides that the commissioner shall keep an

accurate account of all work done and moneys collected

by him and of all payments made on account of work.

He must make a full report of the work to the court as

often as once in six months, and the court shall allow

him for his services a fixed amount per day for the time

actually employed, subject to a maximum limitation.

The construction commissioner ‘‘shall at all times be

under the control and direction of the court, and shall

obey such directions; and for failure so to do shall for-

feit his compensation and be dealt with summarily

as for contempt, and may also be removed from office

by the court.’’? The court may at any time direct another

one of the commissioners to proceed with the construc-

tion of the work and may at any time discharge there-

from the commissioner appointed. Laborers and ma-

34 Appendiz.

terialmen are given a lien upon the fund for the pay-

ment of their claims. And in case of any disagreement

between the contractors or any such laborer or material-

man claiming such lien, the court shall upon motion of

the commissioner, the contractor or the person claiming

such lien, determine such matter.

Section 8 provides that the act shall be liberally con-

strued to promote the drainage and reclamation of over-

flowed lands, and the collection of assessments shall not

be defeated because of any defect in the proceedings

prior to the judgment establishing the ditch, but such

judgment shall be conclusive that all prior proceedings

were regular, and no person may take advantage of

any error, defect or infirmity unless such person is di-

rectly affected thereby. Any person interested may file

with the court a supplemental petition showing that

lands not mentioned in the original report are affected

by the proposed drainage, in which case the court shal}

require such person to give notice to the persons af-

fected thereby and shall refer the petition to the drain-

age commissioners for a report and proceedings may

thereafter be had thereon as if it were an original pe-

tition, but such proceedings shall not affect the original

petition unless the court shall order the same consoli-

dated and made a part thereof.

Section 8} provides that whenever a ditch is to be

constructed, widened, deepened, straightened or changed

so near to the state line between the State of Indiana

and any adjoining State that the work proposed to be

done will affect lands in the adjoining State, the Board

of Commissioners, or their proper officers, of the several

counties in Indiana so adjoining such other State, shall

have authority to join with the proper officers of the ad-

jacent counties of such other State in such construction,

Appendix. 35

widening, deepening, straightening or otherwise chang-

ing such ditch. The Commissioners of the counties of

this State are given power to enter into contracts jointly

with the proper officers of the adjoining counties in the

other States to construct, repair or improve any such

ditch, each paying a proportionate part of the expenses

thereof.

Section 9 provides for the payment by townships,

towns and cities of assessments against highways,

streets and other public places therein.

Sections 10 to 16, inclusive, provide for repairing and

maintaining ditches when once constructed. The work

generally is under the supervision of the Trustee of the

Township in which the ditch is located. The county sur-

veyor allots portions of the ditch to the property own-

ers along the ditch who are required to keep the same

clean and in repair. In case of their failure to do so

the Township Trustee shall provide by contract to have

the work done. If any landowner objects to his allot-

ment he may appeal to the Circuit or Superior Court

of the county and have his allotment reviewed.

Section 17 provides that when a proposed work of

drainage, and the lands affected thereby, are located

wholly within one county, the petitioning landowners

may apply by petition to the Board of Commissioners

of such county in like manner as hereinbefore provided

with respect to an application to the Circuit or Superior

Court of the county. Similar proceedings are then taken

by the Board of County Commissioners as are taken by

the court in other cases. Appeals may be taken from

the decision of the Board of County Commissioners to

the proper court of the county.

Section 18 requires a landowner adjoining a ditch to

keep the operation of the ditch adjoining his land free

36 Appendix.

from obstructions caused by cattle or other stock on his

land.

Section 19 provides that the owners of land adjoin-

ing a ditch upon applying by petition to the Circuit or

Superior Court or the Board of Commissioners, as the

case may be, may change the nature of the construction

of the ditch by tiling or covering the ditch or by chang-

ing it in other respects. Similar proceedings are then

taken as in the case of original construction, and the

changes asked in the petition may be allowed by the

court and made by the parties.

Section 20 provides that the repair of all ditches, other

than dredge ditches, shall be under the supervision of

the Township Trustees, provided, however, that upon

petition of one-third of the persons whose lands are as-

sessed upon any ditch the Township Trustees shall turn

the work of repair and supervision over to the County

Surveyor.

Synopsis or Decisions AND QUOTATIONS FROM OPINIONS.

Prentis v. Atlantic Coast Line, 211 U.S., 210.

In this case certain railroad corporations filed

bills in equity in the federal court in Virginia

to enjoin members of the Virginia State Corpora-

tion Commission from enforcing an order fixing

passenger rates, on the ground that such rates were

confiscatory and unconstitutional. The defendants

argued that the proceedings before the Commission were

proceedings in a court of the State, which could not be

enjoined by a federal court under Section 720. This

Court assumed for the purpose of its decision that the

Commission was for some purposes a court within the

meaning of Section 720, and in the commonly accepted

sense of that word, and that it had been clothed by stat-

Appendix. 37

ute with legislative, judicial and executive powers. This

Court further assumed, without deciding, that if the pro-

ceeding before the Commission against the railroad com-

panies had been to enforce the Commission’s order regu-

lating rates and to punish the railroad companies for a

breach of such order, then the Commission would be sit-

ting as a court and would be protected from interference

on the part of a federal court. This Court, however,

held that the proceeding of the Commission in fixing

passenger rates was not judicial, but was legislative in

nature, and that such a proceeding was not a proceed-

ing in a court within the meaning of Section 720, even

though the general or dominant character of the Commis-

sion was judicial. In other words, this Court held that

an act of a judicial body which was legislative in nature

and which was unconstitutional could be enjoined by a

federal court, and that such action by the court was not

forbidden by Section 720. In delivering the opinion of

the Court Mr. Justice Holmes said (pp. 225-7) :

‘*In order to decide the cases it is not necessary

to discuss all the questions that were raised or

touched upon in argument, and some we shall lay on

one side. We shall assume that when, as here, a state

constitution sees fit to unite legislative and judicial

powers in a single hand, there is nothing to hinder

so far as the Constitution of the United States is

concerned. Dreyer v. Illinois, 187 U. S. 71, 83, 84;

Winchester ¢ Strasburg R. R. Co. v. Commonwealth,

106 Virginia, 264, 268. We shall assume, as we have

said, that some of the powers of the commission

are judicial, and we shall assume, without deciding,

that, if it was proceeding against the appellees to

enforce this order and to punish them for a breach,

it then would be sitting as a court and would be

protected from interference on the part of courts

of the United States.

But we think it equally plain that the proceedings

drawn in question here are legislative in their na-

38

Appendin.

ture, and none the less so that they have taken place

with a body which at another moment, or in its prin-

cipal or dominant aspect, is a court such as is meant

by Sec. 720. A judicial inquiry investigates, declares

and enforces liabilities as they stand on present or

past facts and under laws supposed already to ex-

ist. That is its purpose and end. Legislation on the

other hand looks to the future and changes existing

conditions by making a new rule to be applied there-

after to all or some part of those subject to its

power. The establishment of a rate is the making of

a rule for the future, and therefore is an act legis-

lative not judicial in kind, as seems to be fully recog-

nized by the Supreme Court of Appeals, Common-

wealth v. Atlantic Coast Line Ry. Co., 106 Virginia,

61, 64, and especially by its learned President in his

pointed remarks in Winchester and Strasburg R.

R. Co. and others v. Commonwealth, 106 Virginia,

264, 281. See further Interstate Commerce Com-

mission v. Cincinnati, New Orleans & Texas Pacific

Ry. Co., 167 U. S. 479, 499, 500, 505; San Diego

Land & Town Co. v. Jasper, 189 U. S. 439, 440.

Proceedings legislative in nature are not pro-

ceedings in a court within the meaning of Rev.

Stats. Sec. 720, no matter what may be the general

or dominant character of the body in which they

may take place. Southern Ry. Co. v. Greensboro

Ice & Coal Co., 134 Fed. Rep. 82, 94, affirmed sub

nom. McNeill v. Southern Ry. Co. 202 U. S. 543,

That question depends not upon the character of

the body but upon the character of the proceedings.

Ex parte Virginia, 100 U. S. 339, 348. They are not

a suit in which a writ of error would lie under Rev.

Stats. Sec. 709, and Act of February 18, 1875, c. 80,

18 Stat. 318. See Upshur County v. Rich, 135 U. S.

467; Wallace v. Adams, 204 U. S. 415, 423. The de-

cision upon them cannot be res judicata when a suit

is brought. See Reagan v. Farmers’ Loan & Trust

Co., 154 U. S. 362. And it does not matter what in-

quiries may have been made as a preliminary to the

legislative act. Most legislation is preceded by

hearings and investigations. But the effect of the

inquiry, and of the decision upon it, is determined

=

Appendia. 39

by the nature of the act to which the inquiry and de-

cision lead up. A judge sitting with a jury is not

competent to decide issues of fact; but matters of

fact that are merely premises to a rule of law he may

decide. He may find out for himself, in whatever

way seems best, whether a supposed statute ever

really was passed. In Pickering v. Barkley, Style,

132, merchants were asked by the court to state their

understanding as an aid to the decision of a de-

murrer. The nature of the final aet determines the

nature of the previous inquiry. As the judge is

bound to declare the law he must know or discover

the facts that establish the law. So when the final

act is legislative the decision which induces it can-

not be judicial in the practical sense, although the

questions considered might be the same that would

arise in the trial of a case. If a state constitution

should provide for a hearing before any law should

be passed, and should declare that it should be a

judicial proceeding in rem and the decision binding

upon all the world, it hardly is to be supposed that

the simple device could make the constitutionality

of the law res judicata, if it subsequently should be

drawn in question before a court of the United

States. And all that we have said would be equally

true if an appeal had been taken to the Supreme

Court of Appeals and it had confirmed the rate. Its

action in doing so would not have been judicial, al-

though the questions debated by it might have been

the same that might come before it as a court, and

would have been discussed and passed upon by it in

the same way“hat it would deal with them if they

arose afterwards in a case properly so called.’’

Mississippi Railroad Commission v. Illinois Central Rail-

road Company, 203 U. S., 335.

The Railroad Company filed a bill in the Cir-

cuit Court of the United States to enjoin the

Railroad Commission of Mississippi from enforcing

an order requiring it to stop certain of its trains

at a small station upon its line. It was urged that

40 Appendix.

the Commission was a court and that under Section

720, a federal court could not enjoin its acts. In deliy-

ering the opinion of the Court Mr. Justice Peckham

said (p. 341):

“Tt is also objected that an injunction will not lie

from a United States court to stay proceedings in

a state court, because of the provisions of Section

720, United States Revised Statutes. 1 Comp.

Stat. 581. The commission is, however, not B

court, and is a mere administrative agency of the

State, as held by the Mississippi court. Telegraph

Co. v. Railroad Commission, 74 Mississippi, 80.”

Louisville & Nashville R. R. Co. v. Garrett, 231 U. S., 298.

A bill was filed by the Railroad Company in the

Cirenit Court of the United States to enjoin the Rail-

road Commission of Kentucky from enforcing two orders

of the Commission, one prescribing maximum rates,

and the other awarding certain amounts in reparation

for payments previously made to the Railroad Com-

pany for the transportation of merchandise in excess

of rates previously established by the Commission. The

lower court denied a motion for an interlocutory injunc-

tion. This Court affirmed the order of the lower court. It

was contended that the act creating the Railroad Commis-

sion violated the State constitution by undertaking to con-

fer judicial powers upon the Commission, whereas under

the constitution judicial powers could be vested only in

the courts of the state. This Court held that prescribing

rates for the future was an act legislative and not judi-

cial ir kind. In the course of his opinion Mr. Justice

Hughes said (p. 305):

“Tt has frequently been pointed out that prescrib-

ing rates for the future is an act legislative, and not

judicial, in kind. Interstate Commerce Commission

v. C., N. 0. é T. P. Ry. Co., 167 U. 8. 479, 499; Me-

——

Appendia. 41

Chord vy. Louisville & Nashville R. R. Co., 183 U. S.

483, 495; Prentis v. Atlantic Coast Line Co., 211 U.S.

210, 226; Knoaville v. Knoxville Water Co., 212 U.S.

1,8. It pertains, broadly speaking, to the legislative

power. The legislature may act directly, or, in the

absence of constitutional restriction, it may commit

the authority to fix rates to a subordinate body.’’

And further (p. 307):

‘‘The contention is that, before the Commission

makes such an order, it is required to exercise judi-

cial functions. It is first to determine whether the

carrier has been exacting more than is just and rea-

sonable; it is to give notice and a hearing; it is to

‘hear such statements, arguments or evidence of-

fered by the parties’ as it may deem relevant; and,

it is in case it determines that the carrier is ‘guilty

of extortion’ that it is to prescribe the just and

reasonable rate. Still, the hearing and determina-

tion, viewed as prerequisite to the fixing of rates,

are merely preliminary to the legislative act. To

this act, the entire proceeding led; and it was this

consequence which gave to the proceeding its dis-

tinctive character. Very properly, and it might be

said, necessarily—even without the express com-

mand of the statute—would the Commission ascer-

tain whether the former, or existing, rate, Was un-

reasonable before it fixed a different rate. And

in such an inquiry, for the purpose of prescribing

a rule for the future, there would be no invasion of

the province of the judicial department. Even

where it is essential to maintain strictly the dis-

tinction between the judicial and other branches of

the government, it must still be recognized that the

ascertainment of facts, or the reaching of conclu-

sions upon evidence taken in the course of a hear-

ing of parties interested, may be entirely proper

in the exercise of executive or legislative, as dis-

tinguished from judicial, powers. The legislature,

had it seen fit, might have conducted similar in-

quiries through committees of its members, or spe-

cially constituted bodies, upon whose report as to

the reasonableness of existing rates it would decide

whether or not they were extortionate and whether

—y

42 Appendia.

other rates should be established, and it might ha »

used methods like those of judicial tribunals in tL»

endeavor to elicit the facts. It is ‘the nature of the

final act’ that determines ‘the nature of the previous

inquiry.’ ’’ (Italics ours.)

Southern Ry. Co. v. Greensboro Ice and Coal Co., 134

Fed., 82.

A bill was filed in the United States Circuit Court

to enjoin the Commissioners of the North Caro-

lina Corporation Commission and certain other parties

from bringing suits for penalties and damages by reason

of the refusal of the complainant to comply with cer-

tain orders of the Commission. It was contended that

the proceedings of the Commission were court proceed-

ings, and could not be enjoined by a federal court. Upon

this point Purnell, District Judge, said (p. 94) :

“True, the Corporation Commission of North

Carolina is, in words, made a court of record, and

it is conceded the Circuit Court of the United States

cannot restrain a state court, but the Corporation

Commission is vested with powers not judicial, some

of which have been held to be legislative, some execu-

tive, and the restriction on the injunction of this

court as to state courts does not apply, especially

inasmuch as the acts complained of and asked to be

enjoined are not judicial acts. As to these acts it is

a state agency, not acting judicially.’’ (Italics ours.)

The decision of the District Judge was affirmed by this

Court in the case of McNeill v. Southern Railway Co.,

202 U. S., 543. .

Simon v. Southern Ry. Co., 236 U. S., 115.

One Simon obtained a judgment in a State court of

Louisiana without notice to the Railway Company. The

Railway Company thereupon filed its bill in the federal

court to enjoin Simon from enforcing his judgment. This

| Appendix. 43

Court held that Section 720 did not forbid a federal court

from enjoining the execution of a void judgment. In

delivering the opinion of the Court, Mr. Justice Lamar

said (121-2):

‘*The primary question whether the United States

court had jurisdiction of the case must of course

be determined by considering the allegations of the

Bill. It shows diversity of citizenship and charges

that Simon was seeking to enforce by levy a judg-

ment obtained by fraud and without notice to the

Railway Company. If that be so the United States

courts, by virtue of their general equity powers,

had jurisdiction to enjoin the plaintiff from enfore-

ing a judgment thus doubly void. For even where

there has been process and service, if the court ‘finds

that the parties have been guilty of fraud in ob-

taining a judgment * * * it will deprive them of

the benefit of it.’ McDaniel v. Traylor, 196 U. S.,

415, 423. Much more so will equity enjoin parties

from enforcing those obtained without service. For

in such a case the person named as defendant ‘can

no more be regarded as a party than any other

member of the community.’ Such judgments are not

erroneous and not voidable but upon principles of

natural justice, and under the due process clause of

the Fourteenth Amendment, are absolutely void.

They constitute no justification to a plaintiff who if

concerned in executing such judgments is considered

in law as a mere trespasser. Harris v. Hardeman,

14 How. 339 (default judgment entered on improper

service). Williamson v. Berry, 8 How. 541; Scott

v. McNeal, 154 U. S., 46; Western Indemnity Co. v.

Rupp, 235 U. S. 273.

On principle and authority, therefore, a judgment,

obtained in a suit in which the defendant had no no-

tice, was a nullity and the party against whom it

was obtained was entitled to relief.’’

And further (123-7) ;

‘*The Appellant, Simon, however, contends that

even if there was equity in the bill; and even if the

Railway Company could have brought a new and in-

dependent suit in the state court to enjoin him from

using the judgment,—yet in the present case the

. OO Eee Pe ee DOR, Pe ee ee ~ ee ee Oe, Say

Appendix.

Federal Court was without power to afford the same

relief because Sec. 720 of the Revised Statutes pro-

vides that, except in bankruptcy cases, a United

States court shall not ‘stay procedings in any court

of a State.’

In 1793, when that statute was adopted (1 Stat.

334), courts of equity had a well-recognized power

to issue writs of injunction to stay proceedings pend-

ing in eourt,—in order to avoid a multiplicity of

suits, to enable the defendant to avail himself of

equitable defenses and the like. It was also true

that the courts of equity of one State or country

could enjoin its own citizens from prosecuting suits

in another State or country. Cole v. Cunningham,

133 U. S., 107. This, of course, often gave rise to

irritating controversies between the courts them-

selves which could, and sometimes did, issue contra-

dictory injunctions.

On principles of comity and to avoid such in-

evitable conflicts the act of 1793 was passed. Diggs

v. Wolcott, 4 Cranch. 179, 180 (1807), and Hull v.

Burr, 234 U. S. 712 (1914) (the first and last cases

in this court dealing with that question), furnish

typical instances in which the statute has been ap-

plied. Those decisions, and the authorities there-

in cited, show that although the facts might have

been such as to warrant an injunction against a suit

then pending in a state court, yet See. 720 prevented

the Federal court from staying the proceedings in

the state court.

But when the litigation has ended and a final judg-

ment has been obtained—and when the plaintiff en-

deavors to use such judgment—a new state of facts,

not within the language of the statute may arise. In

the nature of the case, however, there are few de

cisions dealing with such a question. For where

the state court had jurisdiction of the person and

subject matter the judgment rendered in the suit

would be binding on the parties until reversed and

there would, therefore, usually be no equity in a

bill in a Federal court seeking an injunction against

the enforcement of a state judgment thus binding

between the parties. See Marshall v. Holmes, 141

U. S. 600, where Nougue v. Clapp, 101 U.S. 591, re

lied on by Appellant, is discussed.

™ a ee FR a aes eee re

Appendix. 45

There have, however, been a few cases in which

there was equity in the bill brought to enjoin the

plaintiff from enforcing the state judgment, and

where that equity was found to exist appropriate re-

lief has been granted. For example, in Julian v.

Central Trust Company, 193 U. S. 112, a judgment

was obtained in a state court, execution thereon was

levied on property which, while not in possession of

the Federal court, was in possession of a purchaser

who held under the conditions of a Federal decree.

It was held that the existence of that equity author-

ized an injunction to prevent the plaintiff from im-

properly enforcing his judgment, even though it may

have been perfectly valid in itself.

Other cases might be cited involving the same

principle. But this is sufficient to show that if, in

a proper case, the plaintiff holding a valid state

judgment can be enjoined by the United States court

from its inequitable use,—by so much the more can

the Federal courts enjoin him from using that which

purports to be a judgment but is, in fact, an abso-

lute nullity. Marshall v. Holmes, 141 U. S. 597;

Gaines v. Fuentes, 92 U. 8S. 10; Barrow v. Hunton,

99 U. S. 85.

That the United States Circuit Court here could

enjoin Simon from enforcing a void judgment

against the Southern Railway Company, has al-

ready been ruled in another branch of this very case.

In habeas corpus proceedings (Ex parte Simon, 208

U. S. 144) he sought relief from the punishment im-

posed because of his violation of the temporary in-

junction granted in this cause. He there claimed

that the attachment for contempt was void because

the court was without power to issue the injunction

— he had violated. On that subject this court

said:

‘This is not a suit coram non judice and wholly

void by reason of Rev. Stat. Sec. 720, forbidding

United States courts to stay by injunction proceed-

ings in any state court. The Cireuit Court had

jurisdiction of the cause. That must be assumed at

this stage, and finally unless we overrule the strong

intimations in Marshall v. Holmes, 141 U. S. 589,

and the earlier cases cited in that case.’

a

The appellant insists, however, that Marshall y.

Holmes, referred to as conclusive unless overruled,

does not support the jurisdiction of the Circuit Court

because there no injunction was granted by the

United States court.

In that case Mrs. Marshall brought a suit, in a

Lonisiana court, and obtained a temporary injunc-

tion restraining Holmes, Sheriff, from levying

Mayer’s judgments alleged to be fraudulent. Her

petition for removal to the United States court was

denied and the case proceeded to final hearing in the

state court where the temporary injunction was dis-

solved. That decree was affirmed by the Supreme

Court of Louisiana. The case was then brought here

to review the order refusing to allow the case to be

removed to the Federal court. In discussing that

issue the Appellee contended that ‘it was not com-

petent for the Circuit Court of the United States,

by any form of decree, to deprive Mayer of the bene-

fit of his judgment at law, and that Mrs. Marshall |

could obtain the relief asked only in the court in

which the judgment had been rendered.’ In consid-

46 Appendia.

ering that contention (which is substantially the

same as that urged by the Appellant Simon here),

the court asked ‘whether, where the requisite di-

versity of citizenship existed, the Circuit Court of

the United States could not deprive a party of the

benefit of a judgment fraudulently obtained by him

in a state court?’ In answering this question the

court pointed out the difference between enjoining

a court and enjoining a party; and the difference

between setting aside a judgment for irregularity

and setting it aside for fraud. It was held that

the case was removable, since, there being diversity _

of citizenship, the Circuit Court of the United States

had jurisdiction to award Mrs. Marshall protection

by preventing the plaintiff from enforcing his judg-

ments if they were found to be fraudulent in fact,

saying that the

‘Authorities would seem to place beyond ques-

tion the jurisdiction of the Circuit Court to take

cognizance of the present suit, which is none the

less an original, independent suit, because it relates

to judgments obtained in the court of another juris-

ro

a

A ppendia. 47

diction. While it cannot require the state court it-

self to set aside or vacate the judgments in ques-

tion, it may, as between the parties before it, if the

facts justify such relief, adjudge that Mayer shall

not enjoy the inequitable advantage obtained by his

judgments. A decree to that effect would operate

directly upon him, and would not contravene that

provision of the statute prohibiting a court of the

United States from granting a writ of injunction

to stay proceedings in a state court. ‘‘It would

simply take from him the benefit of judgments ob-

tained by fraud.’’ And if a United States court

can enjoin a plaintiff from using a judgment, proved

to be fraudulent, it can likewise enjoin him from us-

ing a judgment absolutely void for want of serv-

ice.’ 9?

Hunt v. New York Cotton Exchange, 205 U. S., 322.

One Hunt, a broker carrying on his business in

Tennessee, was receiving quotations of the New York

Cotton Exchange through the Western Union Tele-

graph Company under a contract with the Telegraph

Company. The Exchange entered into an agreement

with the Telegraph Company by the terms of which the

Telegraph Company agreed not to furnish quotations

to brokers who had not obtained quotation privileges

from the Exchange. Pursuant to such agreement the

Telegraph Company notified Hunt that it would discon-

tinue furnishing him quotations, whereupon he filed a

bill in the State court of Tennessee to compel the Tele-

graph Company to continue such service. While the

proceeding was pending and an injunction had been is-

sued restraining the Telegraph Company from discontin-

uing such service, the Exchange filed a bill in the federal

court in Tennessee to enjoin him from receiving quota-

tions of sales upon the Exchange. The case came be-

fore this Court on jurisdictional questions only, and this

Court held that Section 720 did not forbid the federal

48 Appendia.

court joining Hunt from using such quotations, al-

though there was then in the State court a proceeding

under yhich he was given the right to use such quota

tions. ‘fhis Court held that the case in the federal court

was No’ {je same as to parties or purposes as the ease in

the Stas geurt, and that the pendeney of the suit in the

State Giri did not deprive the federal court of juris.

diction.

In dqjvering the opinion of the Court Mr. Justice Me

Kenna said (398-9) :

“The next contention of appellant is that the court

hag no jurisdiction to grant the injunction and pro-

appealed from, The only on

Jones, 13 Wall, 579; pe v, Reynolds, 06 U, , 840;

tevens, 160 U, &, 483, ‘These

cases do not sustain his contention, In Central

Bank vy, Stevens it was decided that a state court

had no power to enjoin a party whose rights had

ad Court of the United

a decree of that court, In the other eases cited, et

cept Watson v. Jones, the pospese 8 to diredtly

we

enjoin parties from pr in the state courts

mW son ¥. Jones was pers eet what identity of

Appendix, 49

rties, rights and relief prayed for were necessary

enable t peocener of an action in one court to

he pleaded in bar in another court, and it was said;

‘The identity in these particulars should he such

that if the pending case had already heen disp

af, it could he pleaded in har as a former adjudiea-

tion of the same matter between the same parties,’

The principle was also expressed in that ease, and

sustained by authorities, that the possession of prop-

erty by one court cannot be interfered with by an

other, and, that ‘The act of Congress of Mareh 2

1793 (now $720 of the Revised Statutes of the United

States) as construed in Diggs v. Walcott, 4 Cranch,

179, and Peck 7. Jenness,7 , 625, are cuen con-

elusive against injunctions from ¢ irenit

Court, forbidding defendants in the case to take

¥, Alfon, . &, 168; Insylapee BA,

Assignee, 9 0, ®, BB; Blanton eb

daminisiriins fh 6 8 8 ff “9

arge Co, . Rep, 228; Ba

Stone, 68 Fed, Hop, 383.”

Madisonville Traction Co, y, St, Bernard Mining Co,,

196 U, 8,, 239,

The Traction Company, a Kentucky corporation,

hogan a proceeding in a Mtate court of Ken

tueky to condemn for its use certain lands helonging to

the Mining Company, a Delaware corporation, The

Mining Company attempted to remove the ease to the

Cirenit Court of the United States, The State eourt

held that the ease was not a removable one and, there-

fore, proceeded with the case. The Mining Company

50 A ppendiz,

thereupon filed a bill in the Cireuit Court of the United

States to enjoin the Traction Company from further

prosecuting ite suit in the State court, The Traction

Company demurred to the bill, The Cirenit Court over:

riled the demurrer and as the Trastion Company eleoted

to stand by ite demurrer, a final deoree was entered en-

joining it from further prosecuting its ease in the State

court, Upon appeal this Court affirmed the deeree of

the Cirenit Court, It was argued that the condemnation

proceeding was of such nature that it could not be re-

moved. This Court held that it was a controversy be

tween citizens of different States and that the necessary

jurisdictional amount wag involved and that the case

wad removable, Me, Justice Harlan, i dehivering the

opinion of thie Court, cited an aeteaed from a Aacisiow

by MH Suation Pawar iy Hula Milan yaa by

¥: Ibs, A gpm 193) Pen Me a (

i, pon

ea avian QUIN ye Bea ee iad right

vie er

y If there was

eh rtd t for 4 +4 ay my a

by less than a common Jay DBFT) OF in some other

it ‘had

ity way, But the fact made such

evens | and special provisions AS not make the

proceons any the less a trial, or euch a suit as, if

ween r tizens of two Btates, could not be removed

to the Federal courts, If this were possible, then

the only thing the legislature of a State would have

to do to destroy the right of removal entirely would

he to simply change Kr modify the details of pro

cedure,"?

Vurther in his opinion Mr, Jastice Harlan said (2524):

aking generally, it is for the state rimari

uta y, to declare for iol ri

rposes private property, within ite hy F

‘akan upon compensation to the owner, as we 7

to prescribe mode in which it may be condemned

’ in

‘Appendix, 51

er hades 2 ma - prem any

mode 0 g private pro for a pub

pose and of avert cing” the po , pipgncarion | Whe

de therefor pote yen Hi udu

rook of " Civeult Court the Cnted Mia

condemnation preceeding whieh in ite essential

ures ia a suit involving a controversy between Milt.

eend oO any eran Males, ‘A State eannot,’ this

eourt has said, ‘tie up a eitiven of another State

having property ts within ite territory fn a

by tnauthori of its own officers to suite for

redress in s own "US a4 an ¥. Farmers’

FY LONE | BO i,

ereign power of the Bt to de bp logitimate

purposes for which private property may igs A he

ng

ns upon compensation to the owner b

or secured, But at the same time it could i yaa

as of course it must, the aushorny of the th

Law of the Land, which expressly extends t

dicial power of the United States to all suits

volving controversies between - td of different

coe and which also, by statute in the an

ors of the United ‘tates, without qualification

nt tion of sueh controversies, late cannot

han, vy sor grow isions wil hat from rom the 60g:

taange 6 al eourls a | _

wie the which ae a 4 Ty fob

he ui of the Constitution in extending

ag Me of the me yuiee States to contro-

1, of different ne would

thereby a y adonek of Con-

—a

Appendin.

gress admitted of the case in the County Court be-

ing brought within the original cognizance of the

Cireuit Court, that is an end of the matter, although

it be a case of the appropriation of private property

to public uses under the authority of the State. Un-

der any other view a State, by its own tribunals,

could deprive citizens of other States of their prop-

erty by condemnation, without giving them an op-

portunity to protect themselves, in a National court,

against local prejudice and influence.

It may, however, be urged that the Delaware cor-

poration can be fully protected by the state court in

its rights of property, because, if any Federal right

be denied it, the authority of this court can be in-

voked upon writ of error to the highest court of the

State. But the question whether the property is au-

thorized by the local statute to be condemned, as

well as the question of the amount of compensation

to the owner, could not come here by writ of error

from the state court. Such questions would not ordi-

narily involve a Federal right. In the present case

the commissioners reported the damages to be only

$100; whereas, the owner alleges that the amount

awarded was grossly inadequate, practicaly confisca-

tory. That question, as well as the question whether

the statute authorized the Traction Company to take

the property, the Delaware corporation is constitu-

tionally entitled, as between it and the Kentucky cor-

poration, by reason of the diverse citizenship of the

parties, to have determined upon their merits in a

court of the United States, in which, presumably, it

will be protected against local prejudice or influence.

The Circuit Court, recognizing the right of the Trac-

iton Company to appropriate the land in question,

if necessary for its purposes, could do all that is

required by the Kentucky statute, and meet fully the

ends of justice. Besides, a court always looks to sub-

stance and not to mere forms. Mere forms are not of

vital consequence in cases of condemnation. Koll v.

United States, 91 U. S. 367, 375; United States v.

Jones, 109 U. 8. 513, 519.’ (Italics ours.)

=

Appendia. 53

Cuapter 252.

AN ACT CONCERNING DRAINAGE, AND REPEALING LAWS

IN CONFLICT.

[S. 214. Approved March 11, 1907.]

Drainage—Commissioner—A ppointment.

Section 1. Drainage—Commissioner—A ppointment.—

Be it enacted by the general assembly of the State of

Indiana, That it shall be the duty of the board of com-

missioners of each county in this state, at their first

regular session in January after the taking effect of this

act, to appoint a drainage commissioner, who shall be

a person of intelligence and good judgment, and a rep-

utable citizen of the county who shall hold his office for

two years and until his successor shall be appointed and

qualified, unless sooner removed by the board of com-

missioners. The board of commissioners may remove

{ such drainage commissioner from office at any time, and

whenever there shall be a vacancy in such office the board

of commissioners may fill the same by appointment at

any regular or special session of said board. Every such

drainage commissioner shall, before entering upon the

discharge of his duties, take and subscribe an oath of

office, and shall give bond payable to the State of Indi-

ana, with sureties and in a penalty of not less than five

thousand dollars, to be filed with and approved by the

auditor of such county, conditioned for the proper and

faithful discharge of his duties, and that he will account

according to law for all money that shall come to his

hands as such commissioner. The auditor shall there-

upon issue to such commissioner a certified copy of the

order of his appointment. The county surveyor shall

be ex officio a drainage commissioner, and shall give a

bond as above required of the drainage commissioner in

addition to his ordinary official bond. Such drainage

commissioner provided for herein and the third commis-

sioner appointed by the court shall each receive as com-

pensation for all services provided for in this act three

($3.00) dollars per day, and the surveyor shall receive

four ($4.00) dollars per day, each of them being paid for

NRT os vt alta i als 2 beet ete cae he Geen ee fae ca

7

54 Appendia.

the time he has actually engaged in the prosecution of the

duties required herein.

Petition—Contents—Bond.

Sec. 2. Petition—Contents—Bond.—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, or whenever a township trustee

shall desire to provide for the drainage of a public high-

way or the grounds of a public school, or whenever the

common council of any incorporated city or board of

trustees of any town shall find it necessary for the suc-

cessful drainage of any such lands, public highway,

grounds of a public school, incorporated city or town shall

desire to drain the same and the drainage thereof can not

be accomplished in the best and cheapest manner with-

out affecting the lands of others such owner or owners,

township trustee, common council or board of trustees,

as the case may be, may apply for such drainage by peti-

tion filed in duplicate to the circuit court or superior

court of the county in which the lands of the pene

or petitioners are situated. The petition shall describe

in tracts of forty acres according to fractions of govern-

ment surveys, or less tracts when they exist, and in

Clark’s grant and the French grant, and all pre-emptions

of Indian reservation in such tracts [as] are owned, the

lands of others, which it is believed will be affected by

the proposed drainage, and give the names of the owners

thereof, if known, or upon diligent inquiry can be ascer-

tained, and if unknown shall so state. If the name of the

owner is unknown and can not be ascertained on diligent

inquiry it shall be sufficient to describe such land as be-

longing to the person or party who appears to be the

owner by the last tax duplicate or record of transfers

kept by the auditor of the county in which such land

is situated. If any of the lands to be benefited lie within

the corporate limits of any city or town in this state,

the same shall be described by lots and the numbers

thereof as shown by the plat books of such city or town.

Such petition shall be sufficient to give the court juris-

diction over all lands described therein and power to

fix a lien thereon, if they are described as belonging to

the person who appears to be the owner according to the

last tax duplicate or record of transfer kept by the audi-

PPL LIT BA AEN Y PY ee ER, PETE Yh LR TEN —

4

Appendia. 55

tor of the county where the same is situated. If the

right of way of any railroad company is believed to be

affected, it shall be sufficient to describe it as the right

of way of such railroad company, naming it through sec-

tion, township and range, giving the numbers of the same.

It shall also state that in the opinion of the petitioners

that the public health will be improved, or that one or

more public highways of the county, or street or streets

of, or within the corporate limits of a city or town, will

be benefited by the proposed drainage, or that the pro-

posed work will be of public utility; and it shall state

generally the method by which it is believed such drain-

can be accomplished in the cheapest and best man-

ner, and the belief of the petitioners that the costs, dam-

ages and expenses of such drainage will be less than the

benefits which will result to the owners of the lands likely

to be benefited thereby. And all the assessments made

upon the owners of such tracts, parcels and lots of lands

as may be benefited by such drainage shall be in such

equitable proportion as such drainage commissioners

may deem just: Provided, also, That [at] the time of

filing of said petition said ned or petitioners shall

give a bond with good and sufficient freehold sureties,

yable to the state, to be approved by the court, con-

itioned to pay all expenses in the event the court shall

fail to establish said proposed drain: Provided, That

when any such proposed drain will run into two or more

counties, or on the county lines dividing two counties,

the circuit court or the superior court of the county hav-

ing the greatest length of said proposed ditch shall have

jurisdiction of said work: Provided, That when said

ditch, drain or levee extends into more than one county,

one of the drainage commissioners herein provided for

a appointed by the court from one of such other

counties.

Docketing—Notice—Third Commissioner —Objections—

Proceedings.

Sec. 3. Docketing—Notice—Third Commissioner—

Objections—Proceedings.—Whenever the petitioner or

petitioners shall file their petition in the clerk’s office of

the circuit or superior court, he or they shall fix or note

thereon the day set for the docketing thereof and shall

give the owner or occupant of each tract of land de-

scribed in said petition, who is a resident of the county

PR Fete at ree NE eT OEE UCU UES UY) Se BRE t

56 Appendiz.

or counties in which said land is situated, and to the

trustee of the township, mayor of the city, president of

the board of trustees of every town or city, and the agent

of any railroad company or corporation or company, pub-

lic or private, to be affected by the proposed work, notice

thereof by serving upon such owner or occupant, persons

or party, a written or printed notice setting forth the

route of such drain as described in the petition, the fact

of the filing and pendency of such petition, and when the

same shall be docketed, which notice may be served by the

petitioner or petitioners, or either of them, or by any

person for them, by delivering a copy to the person to be

notified, or by leaving such copy at his last and usual

place of residence, and proof thereof made by the aff-

davit of the person making such service. The service

of such notice upon the station agent of any railroad

company in the county in which the proceedings are in-

stituted shall be sufficient notice to such railroad com-

pany, and in case there be no agent of such railroad in the

county, such company shall be notified in the same man-

ner as other non-resident land owners, and as to all own-

ers of lands to be affected by such proposed drainage,

who at the time of filing the petition are nonresidents of

the county or counties in which the lands to be affected

are situated; notice of the filing, pendency, and the time

fixed for docketing of said petition shall be given by post-

ing up written or printed notices thereof at three public

places in each township where the lands described in said

petition are situated, and near the line of the proposed

work, and one at the door of the court house in each of

the counties in which said lands are situated, and b

sending through the United States mail a copy of suc

notice to nonresidents, if their postoffice addresses can

be ascertained by inquiry at the office of the county treas-

urer of the county, which notices shall be similar in

form to those required to be served on resident owners;

and by causing to be published for two times in each

of the two leading newspapers representing the two

political parties casting the largest number of votes at

the last preceding state or general election, which said

notice shall contain only the names of land owner or own-

ers who are nonresidents of the county or whose resi-

dence can not be ascertained, but in all other respects

shall be similar in form to those required to be served

on resident land owners; and if it appears to the court

OO ae —

ss

Appendix. 57

that notice has been given of the filing of said petition

by service of notice upon resident land owners, and by

posting and publication of notices as above provided

not less than twenty days before the day set as the day

for docketing the same, the court shall order the same

placed on the docket of said court as an action pending

therein. Any person named in such petition as the owner

of lands shall have ten days, exclusive of Sunday, and

the day for docketing such action after such docketing,

to file with said court any demurrer, remonstrance or

objection he may have to the form of said petition, or

as to why said drainage commissioners, or either of them,

on account of their interest in said work, or kinship

to any person whose lands are affected thereby, should

not act in the matter. After said ten days have elapsed,

the court shall consider such remonstrance, demurrer or

objection, if any, and, if it finds said petition defective,

shall dismiss the same at the cost of the petitioner or

petitioners, unless the same shall be amended within a

time fixed by the court: Provided, That if within twenty

(20) days, exclusive of Sundays, from the day set for

the docketing of such petition, two-thirds in number of

the land owners named as such in such petition, or who

may be affected by any assessment or damages, resident

in the county or counties where the lands affected are

situated, shall remonstrate in writing against the con-

struction of such drain or ditch, such petition shall be

dismissed at the cost of the petitioners: Provided, That

in cases pending at the time of taking effect of this act

where a two-thirds remonstrance has not been filed, such

remonstrance may be filed to the report of the drainage

commissioners, except in cases pending on petition filed

under the act of the general assembly of the State of

Indiana entitled ‘‘an act concerning drainage’’ approved

March 6th, 1905. If no remonstrance shall be filed, and

the court deems said petition sufficient, such court shall

make an order referring the same to the drainage com-

missioners above provided for: Provided, That when

such order shall be made referring such petition to the

drainage commissioners, it shall be the duty of the court

to appoint a third drainage commissioner to act therein,

who shall be a reputable freeholder, not related to any

land owner affected, disinterested, and a man of intelli-

gence and good judgment, and a resident of some town-

ship through or into which such ditch or drain is pro-

—

58 Appendix.

posed to be constructed, who shall take an oath that he

will faithfully and honestly perform his duties, before

entering thereon; and it shall be the duty of the peti-

tioners, at their own cost, to give notice to such person

of such appointment. All objections to the petition or

the acting of any drainage commissioner not made within

said ten days shall be deemed waived. In the order

of referring said matter to said commissioners, the court

shall fix a time and place for the meeting of said com-

missioners, and a time when they shall report. The clerk

shall deliver to them a duplicate copy of such petition

and of such order, and they shall meet accordingly. They

shall make personal inspection of the lands described in

the petition, and of all other lands likely to be affected by

the proposed work; and consider: First, whether the

drainage proposed is practicable; second, whether, when

accomplished, it will improve the public health or benefit

any public highway in the county or street of a town or

city, or be of public utility; and third, whether the costs,

damages and expenses of effecting the drainage will be

less than the benefits to the owners of the lands likely to

be benefited by the proposed drainage. If they find any

of these inquiries in the negative, they shall make report

of such finding to the court, and thereupon the petition

shall be dismissed at the cost of the petitioners. But if

they find otherwise, they shall proceed and definitely de-

termine the best and cheapest method of drainage, the

termini and route, location and character of the proposed

work, and fix the same by metes and bounds, courses and

distance and description, including grades and bench

marks, including all necessary arms, estimate the cost

thereof, divide the drain or ditch into sections not more

than one hundred feet in length, and compute and set out

the number of cubic yards of excavation in each section,

assess the benefits or damages as the case may be to

each separate tract of land to be affected thereby, and to

easements held by railway or other corporations, as well

as to cities, towns, or other public or private corpora-

tions, including any land, rights, easements or water

power injuriously or beneficially affected and to make

report to the court, under oath, as directed: Provided,

also, That when any ditch, drain, or levee, runs into

another county than the one where such proceeding there-

for as aforesaid are instituted, no bridge, culvert, or

road in such other county shall be destroyed, injured or

PSUR ST SR EAT oF PETA TE RL I ee Oe ————S

v

Appendiz. 59

interfered with, unless the damage to be occasioned

thereby to such bridge, culvert or road has been con-

sidered, estimated and assessed by the said drainage

commission, and the payment of such damages to such

county provided for by assessing the same pro rata as

other damages are assessed. The drainage commission-

ers, in locating the line or lines of work of drainage, may

vary from the line described in the petition as they deem

best and may fix the beginning or outlet so as to secure

the best results; they may run the line so as to avoid all

injury possible to lands, easements or public grounds

and so as to benefit public highways, streets or alleys,

by using the earth excavated for road beds, or in any

other way they deem best: Provided, That in no case

shal! they change or construct the work as to sacrifice

the best interests of such work or drainage. They may

determine that the method of drainage shall be by re-

moving obstructions from a natural or artificial water-

course; or diverting such watercourse from its channel,

by deepening, widening or changing the channel of such

watercourse; by constructing an artificial channel, with

or without arms or branches; by providing that said

work may be the tiling of an already existing public open

drain or tiling an already existing public open drain and

constructing as a part of said work a new drain; by pro-

viding that such drain shall be open or tiled and covered,

or partly opened and partly tiled and dug by shovel,

dredge or otherwise; by constructing levees or dykes;

or by any or all of such methods combined: Provided,

That all timber, shrubs and trees standing within twenty-

five feet of any tiled part of any public drain, or of any

army tile drain shall be removed by the owner of the

ands on which such timber, shrubs and trees are located:

Provided, That such drain shall not be located so close to

any lake covering ten acres or more of ground as to lower

the water level of the lake, and shall at no point be nearer

than forty rods to the high water mark of such lake.

“Excepting only where such drains empty into such

lakes.’’? Any two of such commissioners may act without

the presence or concurrence of the third. The county

surveyor shall be the engineer, if entirely disinterested

and competent; otherwise the court shall appoint a

disinterested and competent engineer who shall make the

necessary surveys, and shall preserve in his office and

EIRENE NALIN TOIL SPERM PLING PED EDN A SUSIE SE DS Sh ATER RTE RIL SR

60 Appendix.

shall turn over to his successor legible copies of all notes

made by him in the discharge of his duties: Provided,

That in case the county surveyor shall not be a civil en-

gineer or is incompetent, or shall fail to give the bond

required, the court may designate some competent civil

engineer to act instead of the surveyor, who shall, be-

fore entering upon his duties, take and subscribe an

oath of office, and give bond as herein required of the

county surveyor: And, provided further, That in all

cases where lands are named in said report as affected

by such proposed work, which are not named in the peti-

tion, the court shall fix a time for hearing the report, and

it shall be the duty of the petitioners, at their own cost,

to give ten days’ notice to the owners of such lands of the

filing of such report in the same manner as is herein re-

quired to be given of the filing and docketing of the peti-

tion, which notice shall state the time for hearing such

report, and in such case the court shall continue the hear-

ing of said entire report until such notice has been given

as last above provided. The same proceedings shall

be had in regard to such report as if all the lands men-

tioned therein, and the owners thereof, had been named

in the original notice of the filing of the petition, and

in locating and fixing the size and dimension of drains and

ditches, they shall provide ample means for the drainage

or protection from overflow of the land to be affected,

having in view future contingencies, as well as the pres-

ent. The drainage commissioners shall include in their

report an itemized account of the costs and expenses in-

curred in making the survey and assessments, and the

completing and filing of their report.

Remonstrance—Damages—Assessments—T rial—Order.

Src. 4. Remonstrance—Damages—Assessments—Trial

—Order.—Upon the making of such report to the court,

ten days, exclusive of the day of filing such report and

Sundays, shall be allowed to any owner of lands affected

by the work proposed and reported benefited or damaged,

to remonstrate against the report; the remonstrance

shall be verified by the owner of the land or by some per-

son on his or her behalf, and may be for any of the fol-

lowing causes:

First. That the report of the commissioners is not ac

cording to law.

Second. By any person or persons whose lands are

PAE S LEE EAS OI ILE LEI ELS MOET EATON LEI RO OEE AES LIN ROO RID

Appendix. 61

assessed as benefited, that the damages assessed to any

specified tract of land are exorbitant.

Third. By any person or persons whose lands are as-

sessed as benefited, that his or their specified lands are

assessed too much as compared with other lands assessed

as benefited or damaged, specifying the same.

Fourth. By any person or persons whose lands are

assessed as benefited, that other tracts, specifying the

same, are assessed too low according to the benefits to be

received.

Fifth. By any person whose lands are assessed as

benefited, that the same will not be affected, nor bene-

fited to the extent of the assessment by the proposed

work if accomplished.

Sixth. By any person whose lands are assessed as

damaged, that the damages assessed are inadequate.

Seventh. By any person whose lands are reported as

benefited, that his lands will be damaged by the construc-

tion of the proposed work.

Eighth. That it will not be practicable to accomplish

the proposed drainage without an expense exceeding the

aggregate benefits.

Ninth. That the proposed work will neither improve

the public health nor benefit any public highway of the

county, nor be of public utility.

Tenth. That the proposed work as decided upon and

reported by the commissioners, will not be sufficient to

properly drain the land to be affected, and the filing of

such remonstrance in the office of the clerk of such circuit

court shall be a sufficient filing thereof under this act

whether in term time or vacation.

If, upon hearing, the court shall decide that the first

of the above causes of remonstrance is true, the court

may direct the commissioners to amend and perfect

their report, or the court may in its discretion set aside

said report, refer the matter anew back to said commis-

sioners for a new report. In making such order for a

new report, the court shall fix the time and place of their

meeting, and when they shall report; and when said

new report is made and filed, any person whose lands

are reported as affected may remonstrate within the

same time therefrom and for the same causes as is hereby

allowed to remonstrate against the first report, but such

second remonstrance shall only be as to new matters con-

tained in the second, or amended report. All questions of

RAR rte SAAC LER RINT LEAP RT HE LEGER ALOE NS CEI OEM .

bales =e — . -. = a eS

62 Appendia.

facts arising on the petition, report or remonstrance, shall

be tried by the court without a jury. If the remonstrance

or remonstrances shall be sustained by the court on the

second, third, fourth, fifth, sixth or seventh causes of

remonstrance, the court may modify and equalize the

assessments as justice may require by diminishing the

assessments on some tracts and increasing it on others,

or by giving or withholding damages, and for such pur-

poses all persons whose lands are reported as affected,

or are stated in the petition as affected, shall be deemed

to be in court, by virtue of the notices originally given

to such parties of the pendency of the petition, or by the

notices subsequently given to the owners of lands which

were not in the original petition, but brought in by the

action of the commissioners; and if lands described in

the petition as affected by the proposed work, and the

commissioners have reported such lands as neither bene-

fited nor damaged, the court may, if the facts and justice

shall warrant it, make assessments against the same, and

as such assessments are so changed, modified and equal-

ized, or made, they shall stand and be adjudged valid. If

the finding and judgment of the court be against the re-

monstrance or remonstrances on the second, third, fourth,

fifth, sixth and seventh causes as above set out, the assess-

ments made by the commissioners shall be confirmed, and

the order of confirming shall be final and conclusive. If

the finding and judgment of the court be in support of the

remonstrance or remonstrances on the eighth, ninth or

tenth causes of remonstrance, the proceedings shall be

dismissed, at the cost of the petitioners, including the

costs and per diem of the commissioners, reasonable fees

for the services of petitioners’ attorneys, all court costs

and the costs of the trial of the remonstrances. If there

be no remonstrance, or, if the finding and judgment shall

be in all respects against the remonstrance for the first,

eighth, ninth and tenth causes of the remonstrance, or

if for the second, third, fourth, fifth, sixth or seventh

causes of remonstrance, the court can and does equalize

the same as above provided, the court shall make an order

declaring the proposed work established, and approving

assessments as made by the commissioners, or as equal-

ized and modified as above provided for, and shall assign

the same to one of the three commissioners above pro-

vided for, for construction, or the court may assign it

for construction to any disinterested freeholder of the

OPAL EYE LILLE LOO EE BEANILE OG Se ES EES ETE Le" LETT

Appendix. 63

county, who shall, before entering upon his duties, take

and subscribe an oath of office, and give bond, payable to

the State of Indiana, in such sum as the court may re-

quire, conditioned that he will honestly and faithfully

rform his duties and account for all moneys that may

come into his hands. When the finding and judgment of

the court is against the remonstrance for any cause, or

when in his, her or their favor on the second, third,

fourth, fifth, sixth or seventh causes, and the assessments

or benefits or damages to the person remonstrating is

not changed ten per cent. in favor of the remonstrant,

he shall pay the costs occasioned by his remonstrance,

and in all other cases the costs shall be paid by the peti-

tioner. In all cases of appeal tried in the circuit court,

and in all trials in that court, provided for in this act,

the trial shall be by the court, without a jury. There shall

be no change of venue from the county. The order of

the court approving and confirming the assessments, and

declaring the proposed work of drainage established shall

be final and conclusive, unless an appeal therefrom to the

supreme court be taken and an appeal bond filed within

thirty days, to the approval of the court or the clerk in

vacation. A transcript of the record on such appeal and

all bills of exceptions shall be filed in the office of the

clerk of the supreme court within sixty days after the

filing of the appeal bond. All parties shall take notice

of, and be bound by such appeal, and all proceedings in

the matter of such drainage shall be stayed until its de-

termination.

Constructing Drain—Collecting Assessments.

Sec. 5. Constructing Drain—Collecting Assessments.

—The commissioner or other person charged with the

execution of the work, as above provided for, shall pro-

ceed to have the same constructed. He shall pay the

costs not otherwise adjudged and all expenses incident

to the construction of such work, including reasonable

attorney’s fees of the petitioner in the preparation and

presentation of the petition, and the prosecution of the

same and for such services as may be necessary in any

stage of the proceedings not exceeding four per cent.

of the assessed benefits as approved by the court in all

drains in which the assessed benefits are greater than one

thousand dollars ($1,000), the costs of giving notice, and

shall pay such other costs and expenses as the court shall

LAR PRRERLP EE OLED L AEE OLE GED OWE MEELIS ISIE ESIC S RE SIGE ID BME Fe ‘

64 Appendia.

deem proper out of the funds collected from the assess-

ments made and confirmed as aforesaid: Provided, That

no claim for costs, expenses or otherwise, except on con-

tract for constructing the work, shall be paid until it is

presented to the court, and by the court allowed. He

shall pay into the county treasury, aS Soon as he may

eollect from the assessments sufficient for the purpose,

whatever that sum shall have been by the provisions of

this law paid out of the county treasury on account of

such work. He shall also pay all damages that have been

assessed and allowed by the court and the cost of con-

structing the work. He shall, for the purpose of raising

funds for the above mentioned purposes, collect pro

rata of the assessments of benefits reported by the drain-

age commissioners, and as adjusted by the court, such

sums of money as may be necessary therefor, not exceed-

ing the whole benefits so adjudged upon any one tract,

and not to exceed its pro rata share where the total

amount of all assessments is not required for such pay-

ments, and require the same to be paid in installments

not exceeding ten per cent. per month, at such times as

he shall fix after thirty days’ notice thereof, by one pub-

lication in a newspaper published in the county in which

such lands are located, which notice shall state when and

where all such installments shall be payable. He shall

divide such work into stations not exceeding one hundred

feet in length, and provide himself with and furnish on

demand to any person interested or to any one proposing

to bid on such work, the computation of the number of

cubic yards of excavation in each station as is above pro-

vided for; and shall, after giving notice for two weeks

in a newspaper of general circulation in each county

where lands assessed as benefited are situated, proceed

to let such work by contract to the lowest and best bid-

der. He may let the work as a whole, or subdivide the

same into two or more sections and let the same in sepa-

rate contracts, as will in his best judgment the most

speedily and economically accomplish its completion:

Provided, That any person, against whose lands assess-

ments of benefits have been made, shall have the prefer-

ence, at the same rate, over any other contractor. Such

contractor shall, within the time, which shall be rea-

sonable, and which, for good cause, may be extended un-

der the direction of the person charged with the construc-

tion of such work, construct such part of such work 80

lt a jee FOO BILE LE LOR LES LOOSE IO MLS AITO A At

P |

Appendia. 65

set off to him: Provided, That should any such person

fail or refuse to construct such portion of said work so

contracted to him within the time according to the speci-

fications, and should it become manifest, before the ex-

piration of such time, that such person would not com-

plete the same, or would be unable to complete the same

within the time limited, or in the manner specified, then

the person charged with the construction of such work

may annul such contract and let the same to the best

bidder, first giving ten days’ notice by the publication in

a newspaper published in the county in which that part

of such work lies: Provided, Such person so in default

shall not again become a bidder for such portion of such

work, but such person shall be allowed on his contract a

fair price for the work he has performed up to the time

his contract is so annulled, such price to be determined

by the court establishing said work. If such person to

whom an allotment of work is contracted, be the owner

of lands assessed for benefits, and shall perform his work

within the time specified, the price thereof shall be ap-

plied on his assessment, and the same shall not be col-

lected of him as above provided: Provided, further,

That any person or party who shall have successfully

bid for the whole or any part of said work, shall, when

the same is so set off to him, enter into a contract with

the person in charge to perform such part of such work

and give bond and surety, and in a proper penalty, for

the performance of his contract, and that he will pay

all damages occasioned by his nonfulfillment of his said

contract, which may be recovered in any court of com-

petent jurisdiction. And in case any person or party

whose jands are assessed for the construction of such

ditch shall be damaged by reason of such default and

failure of such contractor to complete the work within

the time limited, such contractor so in default shall be

liable on his bond to the person or party so damaged to

the full amount of such damages, which may be recov-

ered in any court of competent jurisdiction in a suit or

an action on such bond by the State of Indiana on the

relation of the person or party damaged for the use of

such person or party injured or damaged, and the amount

recovered shall be paid to the party injured, and such

superintendent of construction may bring suit on such

bond in any court of competent jurisdiction to recover

any increase cost, expense or damages of or to the work

66 Appendix.

by reason of such failure of such contractor, and the

amount recovered shall be and become a part of the funds

in the hands of such superintendent, for the construe-

tion of such work, the same as assessments. He shall

collect the assessments not satisfied, as herein provided

for, or such part thereof as may be by him deemed nec-

essary for the purposes herein mentioned, and apply the

same as herein provided, and for the purpose of maki

such collections, if not paid as above required, he

make his certificate, showing the amount of such assess-

ments against any tract or tracts of land, the default

in its payment as required, and file the same with the

auditor of the county where such lands are situated, and

thereupon the auditor shall place the same on the delin-

quent tax duplicate, and the same shall be collected as

other delinquent state and county taxes are collected:

Provided, Personal property or real estate other than

that assessed as benefited, shall not be sold therefor:

Provided, That in all sales of real estate made by the

treasurer of any county under the provisions of this act,

the owner thereof, or any person having an interest

therein or lien thereon, at the time of sale, shall have

the right to redeem the same at any time within two

years from the date of sale, by paying into the county

treasury, for the benefit of the purchaser at such sale,

the amount for which said land was sold, together with

a penalty of fifteen bs centum per annum for such time

as may have elapsed from the date of sale until the time

of such redemption. But in no event shall the total com-

angen of such surveyor and his necessary assistants,

» greater than a sum equal to four (4) per cent. of the

actual cost of excavation of any drain whose total cost

of excavation shall exceed three thousand dollars

($3,000). Such, and any and all bills for services of such

surveyor and his assistants shall be first approved and

allowed by the judge of the circuit court of the county

where such proceedings shall have been commenced, and

shall be paid out of the fund raised for the construction

of such ditch and not otherwise.

Drainage Bonds—Request—A greement—Assessment.

Seo. 5}. In all cases where the contract price for the

construction of any work of drainage, as provided for

in this act, shall exceed the sum of five thousand dollars,

drainage bonds may be issued to procure funds for the

Se Se es ea in

‘Appendia. | 67

payment of the costs of such construction, provided the

owners of two-thirds in acreage of the lands assessed

for benefits shall within sixty days from the establish-

ment of the work and approval of the assessments of

benefits and damages file their written request therefor

with the superintendent of construction. In such written

request such land owners shall agree that in consideration

of the right to pay his assessment in ten yearly install-

‘ ments, he will not make any objection to any illegality or

irregularity, if any, in the proceedings up to, and includ-

ing the letting of the contract and the issuing of such

bonds and he will pay such assessments with interest as

the same become due. The fling of such requests and the

issue of bonds, if any there should be, shall in no manner

affect the collection of assessment from land owners and

others assessed for benefits who have not filed requests

for the issue of bonds, and as to them the collection of

assessments provided for in the last section shall be made

as if no bonds were issued; and bonds shall be issued to

cover only so much of the cost of the work as is appor-

tioned to the lands of those who have filed requests

therefor, and shall be liens only on such lands and pay-

able only out of the assessments made thereon. Such a

portionment shall be made as follows: The superintend-

ent of construction shall carefully ascertain the total

original cost of the work of drainage including all dam-

ages awarded to the owners of lands and all incidental

expenses and shall apportion such total cost and expenses

to the several tracts of land and parties assessed for

benefits in proportion to the assessments for benefits not

in any case exceeding such benefits. Thereupon, the

superintendent shall report all such facts to the court

in term time or the judge thereof in vacation; together

with all such requests for bonds and waivers of irregu-

larities by land owners, which report the court or judge

shall examine, and, if found correct, shall approve, where- °

upon such report and requests and waivers, with such

approval, shall be entered in full in the order book of the

court, and a certified copy of such entry shall be made

by the clerk and delivered to the auditor of each county

in which lands are located for which the owners have

requested the issue of bonds, which certified copies shall

be filed by such auditors and laid before their respective

boards of commissioners, at such ensuing session. Each

board of commissioners, at such ensuing monthly session

68 Appendix.

after filing of such transcript, shall direct the county aud-

itor to prepare an assessment sheet or drainage dupli-

cate showing the total amount of costs apportioned to

all the parcels of land for which the owners request the

issue of bonds, with proper columns for the payment of

installments and interest. And such auditor shall as-

sess ratably from year to year upon such lands a sum

sufficient to pay such bonds and interest as they severally

mature. The first of such assessments shall be due and

ayable at the semi-annual payment of taxes next follow-

ing the letting of the contract, and the remaining assess-

ments on the same day each year thereafter for nine

successive years, with interest at six per cent. per annum,

payable semi-annually, on all unpaid assessments. Such

assessments and interest shall be collected by the county

treasurer as state and county taxes are collected, and

shall be subject to the same penalties in case of nonpay-

ment when due; and all laws for the collection of de-

linquent taxes and for the sale of lands for taxes and re-

demption from sale shall apply equally to the collection

of such assessments. Any land owner desiring to re-

lieve his lands of the lien of such costs of drainage, may

at any time pay the whole amount of unpaid installments

with all interest to accrue thereon until the maturity of

such bonds respectively. The treasurer shall receipt for

any payment on such installments and mark such pay-

ment on the duplicate, as in the case of payment of

taxes; and any such payment shall be a release of the

lien of such cost and of the assessment for such drain-

age to the extent of such payment. As soon as such

drainage duplicate is so prepared, the board of county

commissioners of each county shall issue the bonds of the

county to the amount of the cost of drainage so placed

upon the — for collection in such county. The

bonds shall be numbered consecutively and shall be in

denominations of one hundred dollars or any multiple

thereof, except that one bond may be for less than one

hundred dollars. One-tenth of such bonds as near as

may be, shall fall due and be payable on the first day of

June or December, as the case may be, following the next

succeeding semi-annual payment of taxes, and one-tenth

of such bonds, as near as may be, shall fall due on the

same day every year thereafter, for nine successive

years. All such bonds shall bear interest from the date

of letting the contract for such drainage until the bonds

eee ss x saa aa tialil ae

Appendix. 69

are paid, respectively, at six per cent per annum, pay-

1 pt pt on the first day of June and the

first day of December each year. They shall show on

their face for what purpose they are issued, and shall

be payable out of collections made on such bonded as-

sessments and not otherwise. Upon the signing of such

bonds by the county commissioners and _ attestation

thereof by the county auditor, they shall be turned over

to the county treasurer, who shall rage to the auditor

therefor. Thereupon, the treasurer shall give notice

by publication once in a newspaper of general circulation

published in the county, and by posting a copy of such

notice at the door of the court house, that at the office

of such county treasurer, on and after the hour of ten

o’clock a. m. on a day to be named not less than par |

days thereafter, the treasurer will proceed to sell su

bonds at not less than their par value to the highest and

best bidder for cash: Provided, however, That in lieu

of selling such bonds, as herein provided, the county

commissioners by order of record to that effect, may

direct that the bonds shall be exchanged at par and held

by the county treasurer for any unloaned school funds

as other unused funds held in the county treasurer

[treasury]; in which case, the assessment and interest

collected for the payment of such bonds shall be paid into

and credited to the fund so used in their purchase. The

proceeds of such bonds shall be drawn out of the county

treasurer [treasury] only on the warrant of the auditor

upon the certificate of such drainage commissioner in

payment of the costs of construction and expenses inci-

dent thereto. In case the bonds sell at a premium, the

aggregate amount of such premium shall be apportioned

pro rata to the several assessments which are bonded

and the amount thus apportioned to each parcel shall

operate as a payment to that extent of the first matur-

ing installment.

Lien—N otice—Recording—Satisfaction.

Seo. 6. Lien—Notice—Recording—Satisfaction.—The

filing of the petition shall be deemed notice of the pen-

dency of the proceedings to all persons whose lands are

named in the petition, and the filing of the report of the

commissioners locating the work and fixing the amount

of assessments shall be deemed notice of the pendenc

of the proceedings to all persons whose lands are nam

70 Appendix.

therein and not named in the original petition, and the

amount of the so assessed from the time the same are ap-

proved and con-assessments as made or approved and

confirmed by the court, shall be a lien first and para-

mount upon the lands firmed. The commissioners

charged with the construction of the work shall, as soon

as may be after he has been directed to construct the

work, make out a notice wherein he shall state that the

work has been established by the court; also the several

assessments to the several tracts of land as the same

have been finally confirmed by the court, and cause the

same to be recorded in the office of the recorder of each

county where any such lands may be situated. When-

ever the assessments against any tract of land shall have

been paid in money, or satisfied by the construction of

a portion of said work as in [is] provided for in section

5 of this act, it shall be the duty of the commissioner or

person charged with the construction of such work, within

thirty days from the time of such payment or satisfac-

tion, to enter satisfaction of such lien upon the margin

of the page where such assessments are recorded, or if

this be impracticable for want of room, then on some

other page of the same or other record, reference being

made thereto by marginal note on the page where such

assessment is recorded. This provision shall apply to

all drainage commissioners appointed under this act,

and also to all commissioners of drainage in charge of

work established under any former law of this state.

Account—Report—Suits—Liens—C ompensation.

Sec. 7. Account—Report—Suits—Liens.—Such com-

missioners shall keep an accurate account of all work

or material received or moneys collected by him on ac-

count of any and all assessments, and of all payments

made on account of the work intrusted to him, and shall

take vouchers for such payment. He shall also keep an

exact account of the time occupied by him in the perform-

ance of his duties. Whenever he shall be engaged on two

or more works on the same day, he shall divide such day

among them in proportion to the time devoted to each.

He shall as often as once in six months make a full re-

port of such matters under oath, to the court; and the

court shall allow him for his services not exceeding three

dollars per day for the time actually and necessarily em-

ployed; but in no event shall the compensation paid to

‘Appendia. 71

such drainage commissioner be greater than a sum equal

to three per cent. of the total cost of such excavation

of such drain, — on drains where the total cost of

excavation shall be less than three thousand ($3,000) dol-

lars; he shall at all times be under the control and direc-

tion of the court, and shall obey such directions; and

for failure so to do shall forfeit his compensation and

be dealt with summarily as for contempt, and may also

be removed from office by the court. Suit may also

be brought upon his bond in the name of the state, and

the amount recovered shall be applied to the construc-

tion of the work. The court may at any time, when the

occasion may require, direct another one of the com-

missioners to proceed with the construction of the work,

and may at any time discharge therefrom the commis-

sioner appointed thereto. All laborers and other persons

who shall hereafter perform any labor or other service,

or furnish board or any materials in the construction of

any work under the provisions of this act shall have a lien

upon the fund raised for the payment of the same; and

upon notice in writing filed with the person whose duty

it shall be to pay out such fund, of the amount due and

what the same is for, such person shall withhold pay-

ment to the contractor for such work to an amount suffi-

cient to satisfy such lien until the same is adjusted and

paid; and in case of disagreement between the con-

tractor and the person claiming such lien as to the amount

or validity thereof, the court ordering the construction

thereof shall, upon motion of the commissioner, the con-

tractor, or the person claiming such lien, determine such

matter; and upon failure to comply with the above pro-

visions, such person in charge of such work shall be lia-

ble on his bond for the amount improperly paid over

to such contractor: And provided, further, That none

of the provisions of this act shall apply to proceedings

instituted prior to the passage of this act.

Act Construed—Supplemental Petition.

Sec. 8. Act Construed—Supplemental Petition.—This

act shall be liberally construed to promote the drainage

and reclamation of wet or overflowed lands, and collec-

tion of assessments shall not be defeated by reason of

any defect in the proceedings occurring prior to the

judgment of the court confirming and establishing the

assessment of benefits and injuries, but such judgment

Ty

72 Appendiz.

shall be conclusive and final, that all prior proceedings

were regular and according to law, nor shall any person

be permitted to take advantage of any error, defect, or

informality, unless the person comp aining thereof is

directly affected thereby. Any person interested may

file with the court a supplemental —— showing that

lands not mentioned in the original report are affected,

as he believes, by such drainage, in which case the court

shall require such person to give such notice as it may

deem proper and sufficient to the persons affected thereby,

and shall refer the same to the drainage commissioners

for a report, and any and all proceedings may be had

thereon, and orders and decrees made therein, the same

as if it were an original petition, but the proceedings

thereon shall not affect the original petition, unless the

court shall, for good reason, order the same consolidated

and made a part of the original petition, in which case

the court may make such orders therein as are herein

authorized.

Drains on State Lines.

Sec. 8}. Whenever it may be desirable to construct,

widen, deepen, straighten or change any ditch, drain or

water course lying on, along, across or near to the state

line between the State of Indiana and any adjoining state,

or whenever it may be desirable to construct, repair or

improve any work of drainage as provided for in this

act, which ditch, drain, water course or other work of

drainage can not be constructed, repaired or improved

in the best manner without affecting lands in such ad-

joining state, the boards of commissioners and other

proper officers of the several counties in this state, so

adjoining another state, shall have authority to join with

the proper officers of such adjacent counties of other

states in the construction, widening, deepening, straight-

ening, repairing or improving of any such ditch, drain,

water course, or other work of drainage. Such commis-

sioners of such counties in this state are given powers

jointly to enter into contracts with the proper officers

of such counties in adjoining states to construct, repair

or improve any such work of drainage, each to pay such

proportion of the costs and expenses of the work as e

the contracting officials shall be deemed just. Such wor

of drainage shall be made on petition of land owners or

corporations as provided for in this act and this act so

PERERA gL CH OE TE nr at Se Sa

==

Appendic. 73

far as applicable shall govern the commissioners and

other officers of this state in relation to joint work of

drainage, provided such adjoining county or counties in

other states shall pay their proper share of necessary

costs and expenses.

Highways—Payment of Assessments.

Sec. 9. Highways—Payment of Assessments.—Any

benefits assessed to any highway shall be assessed against

the proper township, and shall be paid by the trustee

out of the township fund belonging to such township.

Assessments on account of improvements to streets and

alleys in incorporated towns or cities shall be against

such towns or cities.

Repairs—Obstructions—Township Trustee.

Sec. 10. Repairs—Obstructions—Township Trustee.

—That all ditches or drains that may have been, or may

hereafter be, constructed under and by virtue of any law

of this state, shall, except as hereinafter otherwise pro-

vided, after the allotment shall be made by the county

surveyor as hereinafter provided, be under the charge

and supervision of the trustee of the township in which

the same are a part thereof, whose duty it shall be to see

that the same are cleaned out and kept open and in

proper repair, free from obstruction, so as to answer

their purpose.

Allotment—County Surveyor’s Duties.

Sec. 11. Allotment—County Surveyor’s Duties.—As

soon as practicable, after the passage of this act, it

shall be the duty of the county surveyor in each county

in this state in which any such ditch or drain, or part

thereof, is located when ordered by the trustee of the

township in which some part of such ditch is located, to

proceed to view and examine each and every such ditch

or drain within his respective county, except dredged

ditches, and to fix and determine the portion thereof

that the owner of each tract of land and each corpora-

tion, county or township assessed for the construction

thereof should biennially clean out and keep in repair,

and shall also at the same time set apart and appor-

tion to each parcel of land, and to each corporate road

or railroad, and to the township where public highways

are benefited, a share or portion of such ditch or drain,

according to the benefits to be received thereby, to be

74 Appendix.

cleaned out biennially and kept in repair by the owner of

each tract of land, or by such corporate road or rail-

road, or by the township. Such surveyor shall, when-

ever practicable, locate such share or portion of such

ditch upon such tract of land, or upon the right of way

of such corporate road or railroad, or on the highway,

on account of which such share is allotted to the town-

ship. In making such allotments such surveyor shall

begin at the mouth of the ditch where he shall fix a per-

manent mark or monument of the place of beginning,

and he shall also establish a permanent mark or monu-

ment at the upper end of each allotment, and give the

location of each share, its number and length in feet, —

and a brief description of the manner in which the work

shall be done. Each ditch or drain shall be cleaned out

to a depth and width not less than its original speci-

fications: Provided, That where ditches were originally

allotted for construction by reviewers appointed by the

board of county commissioners, under any former law,

the allotments shall remain the same for repair under

this act, unless a majority of the parties assessed shall

petition the surveyor or the trustee shall request in writ-

ing a reapportionment under the provisions of this act,

in which event the same proceedings shall be had as

in other cases. The allotment shall describe the land

in such tracts as may meet the convenience of owners,

and in case of a subsequent subdivision of such tracts

ihe allotment may be subdivided by contract, and the du-

ties prescribed under this act pass to grantees: Pro-

vided, That where any person or persons shall have con-

verted that portion of said ditch running through his

or their lands or part thereof into a blind ditch by put-

ting in drain tile of sufficient dimensions to serve the

purpose of drainage, said drain tile so put in being con-

tinuous from the head or beginning of such ditch through

the land of said owner or owners, and thus obviating the

necessity of working that part of said ditch so tiled of

said ditch on his or their lands, said tiling shall be taken

in consideration in making said allotments, and the allot-

ments herein provided shall be made among the land own-

ers, roads or railroads onl through whose lands such

ditch is open; and where allotments have been made to

include land or lands through which such blind ditch or

tiling forms a fan of said open ditch, the owner or own-

ers receiving due credit for the allotments so tiled. The

_——

Appendia. 75

owners of the land through which an open ditch runs

shall remove all brush and weeds from the banks of that

part of the ditch through the lands, owned by them re-

spectively, during the month of July in each year; and

shall be given credit for such work in making allotments

for the repair of such ditches.

Record of Allotments—Notice.

Sec. 12. Record of Allotments—Notice.—Such sur-

veyor shall reduce such allotments to writing, and after

the same are finally fixed and established he shall record

the same in a book to be kept for that purpose, and known

as the drainage record. He shall thereupon cause to be

sted up, for not less than ten days, in five public places

in the township where lands are allotted a portion of said

work, written or printed notices of the place where and

the time when he will hear all objections that may be

made to such allotments, which notice may be in sub-

stance as follows:

To whom it may concern:

You are hereby notified that I will be at my office on

eee DOT GE nnncks sawdus ,19..., at the hour of ....,

and will then and there hear all objections that may be

made to my allotment for cleaning out biennially and

keeping in repair the ......... eee town-

«ae county, Indiana, when and where

you can appear and be heard if you see fit.

eevee eeer eee eree eee eeeeereeee ee ee

Dated this ...... OE sc acccusenvws 19

5] eeee

A copy of said notice shall also be sent by mail to the

trustee of the township in which an allotment is made

by reason of any highway, and to each individual whose

lands are allotted portions of work, and to an officer of

each corporation, and to a station agent of each rail-

road whom portions of said work has been allotted.

Where the residence of any nonresident owner of such

land is known to the surveyor, he shall send a copy of

such notice by mail to such nonresident. If a nonresi-

dent owner of land have a known agent in the county

a copy of said notice shall be mailed to such agent.

Hearing Objections—Order.

Sec. 13. Hearing Objections—Order.—Upon the day

named in such notice such surveyor shall be present at the

76 Appendia.

time and place therein mentioned, and shall hear all ob-

jections made to such allotments, and shall have power

to administer oaths to all persons examined before or

by him. He may adjourn the hearing from day to day,

or from time to time, as may be deemed necessary, un-

til all objections are heard. All persons interested shall

take notice of such adjournment without further no-

tice. After hearing all objections that may be offered

to such allotments, such surveyor shall confirm or change

the same as justice may require, and shall enter an or-

der accordingly, which shall be final and conclusive upon

all parties interested, unless appealed from in ten days

thereafter.

Appeal—N otice—Costs.

Sec. 14. Appeal—Notice—Costs.—Any person or cor-

poration aggrieved may appeal from such order to the

circuit or superior court of the county by filing with the

clerk of said court, within ten days from the time of such

order, an undertaking conditional that he will duly prose-

cute such appeal and pay all costs that may be adjudged

against him on such appeal, such surety to be approved

by said clerk; whereupon such clerk shall issue a notice

in the nature of a summons to such surveyor, which shall

be served by the sheriff of said county, and thereupon

such surveyor shall file with such clerk a copy of the ree-

ord of such allotments and the objection of the appel-

lant thereto, which shall be all the proceedings necessary

upon such appeal. All other persons interested shall

take notice of such appeal, which shall be tried by the

court. If the court reduce the allotment one-fifth in

amount then all costs occasioned by such appeals shall

be taxed against such surveyor, and paid out of the gen-

eral funds in the country treasury not otherwise appro-

priated, otherwise the costs shall be adjudged against

the appellant. If more than one person appeal sepa-

rately the cases shall be consolidated and tried together.

The court may confirm the allotment made by the sur-

veyor or change the same, and its decision upon such

appeal shall be final and conclusive. The surveyor shall

receive for his actual services in alloting any such ditch

for repairs four dollars per day and not to exceed two

dollars per day for the services of each deputy surveyor,

and the same rate for parts of days, to be paid out of any

money in the county treasury not otherwise apportion

PEE ee eS RS, eee SAE See ne ee ; a ia —

meres

‘Appendia. 77

upon a report on oath filed with the county auditor, but

in cases wherein it is necessary to employ a civil engineer

to act in such capacity as a deputy surveyor, then such

deputy shall be paid at the rate of not to exceed four

dollars per day for the time actually employed: Pro-

vided, That the total amount to be allowed to such sur-

veyor for the services of himself and his necessary as-

sistants shall not exceed the sum of ten ($10) dollars for

each mile of any ditch or drain so allotted by him.

Cleaning and Keeping in Repair—Trustee—Duties.

Sec. 15. Cleaning and Keeping in Repair—Trustee

Duties.—It shall be the duty of the township trustee to

procure a transcript of the surveyor’s record of allot-

ments of ditches in his township as soon as practicable

after the passage of this act or after the same has been

made, and he shall biennially prior to the first day of

August fix a time within which each allotment on every

ditch shall be cleaned out and put in repair by the per-

son whose duty it shall be to perform said work; in

fixing such time for the cleaning out of such allotment

such trustee shall begin with the allotment nearest to

the mouth of any such ditch, and proceed in regular suc-

cession up stream to the beginning of such ditch. He shall

notify owners of allotments in sections of not less than

one mile in continuous length of the ditch to have their

respective allotments cleaned and ready for inspection at

one and the same time and may, in his discretion, notify

a greater number, or even all the owners of allotments

to be completed and ready for inspection on the same

day, and any person who shall permit or allow any earth,

sand or material from an uncleaned allotment to wash

down, in or upon, or in any [way] fill or impair any

allotment which is clean, shall remove the same at his

own cost, and on failure so to do, the trustee shall cause

the same to be removed at the cost of the party so in

default and such trustee may recover such cost before

a justice of the peace or any court of record in a suit

brought by him against the person so in default, or he

may certify the amount of such cost and expense to the

auditor of the county, who shall place the same upon the

next tax duplicate against the land of the party so in

default and the same shall be collected the same as as-

sessments are collected. He shall make a record of the

time so fixed by him for the completion of each allot-

78 Appendia.

ment on every such ditch separately in a book provided

for that purpose. That on or before a day fixed by said

trustee for that purpose, the owner of the land allotted

shall appear before the trustee and declare his intention

to clean or repair his said allotment and shall execute

and deliver to said trustee an undertaking in such sum

as the trustee shall fix providing for the completion of

said work within the time specified and according to the

original specifications. That prior to the first day of

August, of every second year in which such ditch is to be

cleaned or repaired, notice shall be given to the owner

or occupant of each tract of land on which allotments

have been made, which notice may be served by the trus-

tee or other competent person, or mailed to his address

by registered letter. Such notice shall be sufficient if

it name the ditch, the owner of the land, describe the

allotment, specify the time within which the allotment

shall be completed, and the time at which the owner shall

appear and declare his intention to perform said work

and file undertaking for the completion of the same. That

immediately after the day fixed for the filing of the un-

dertaking by the owner of the land allotted, said trustee

shall give ten days’ notice by posting three notices in five

public places within the township, describing each allot-

ment in which an undertaking by the owner has not been

filed, and after ten days sell the same for construction to

the best responsible bidder, taking bond from the con-

tractor for the faithful performance and completion of

said work: Provided, Said trustee may cause said

allotments in which owner of land has not filed bond,

ecmpleted without sale, where in his judgment it can be

accomplished in a cheaper manner.

Completion of Allotment—Failure—Costs.

Src. 16. It shall be the duty of every owner of land or

corporation who has filed a written undertaking for the

completion of any allotment, to perform the same within

the time fixed, and on failure so to do the’ trustee shall

proceed at once to have the same completed, and the

cost: thereof together with the costs for the completing

of the other allotments including his own per diem cer-

tified to the auditor of the county, who shall place the

same on the tax duplicate as other taxes against such

person or corporation to be collected as other taxes are

collected, and when collected the same to be paid over

—

Appendix. 79

to such trustee, or such trustee may recover such ex-

penses and his fees before any justice of the peace of

the township where the owner resides, or through or

into which such road or railroad runs; or he may bring

suit in the circuit court or superior court of the county

to collect such expense and fees, and enforce and fore-

close the lien on such land, township or railroad, and

he may bring suit in the circuit or superior court of the

county upon any undertaking or upon the bond of any

contractor for any breach thereof, and the amount re-

covered shall be paid into the township fund of such

township, and in all suits brought by the trustee under

the provisions of this act such trustee shall also recover

reasonable attorney fees and the judgment shall be with-

out relief from valuation or appraisement laws: Pro-

vided, That prior to the first day of August, in any year,

in which a ditch shall be cleaned, the trustee may by the

assistance of a surveyor or otherwise ascertain the grade

line and the cubic yards of earth to be removed, and when

said work is completed said trustee may have the same

accepted by a competent surveyor. And the service of

the surveyor and giving of notice shall be paid by the

township.

Petition to County Commissioners—Proceedings.

Sec. 17. Petition to County Commissioners—Proceed-

ings—When any proposed work of drainage and the

lands, highways, easements, public grounds and cities,

towns or townships to be affected thereby are wholly

within one county the petitioner [or] petitioners for such

drainage, instead of applying for the same to the circuit

or superior court as provided for in this act, may apply

thereto by petition to the board of commissioners of such

county at any regular monthly session of such board, and

all provisions hereinbefore made as to such petitions,

notice of the hearing, demurrer, pleading or motion in

relation thereto, hearing thereof, dismissal or amendment

of the petition and references to the drainage commis-

sioners, remonstrance and exceptions thereto and action

and ruling therein; action on such report, allowance and

payment of claims, and all other matter in relation to

such work, shall be had and concluded as far as applicable

by and under direction of such board of county commis-

sioners, as hereinbefore in this act provided for in the

circuit or superior court, except as provided for in this

80 Appendix.

section. —— from the action of the county board on

the report of the drainage commissioners may be taken

to the circuit or superior court of the county within the

time and in the manner provided in case of appeal from

the action of the circuit court or superior court to the

supreme court, and a like appeal, taken within like time

and in like manner, may be had to the supreme court from

the decision of the circuit or superior court on the ap-

peal from the board. The reports of the drainage com-

missioners shall be prima facie evidence of the facts

stated in such reports, whether before the board of

commissioners, in the circuit or superior court or the

supreme court. The county auditor, in case of the filin

of a petition for drainage before the — board, sh

perform all the duties provided to be performed by the

clerk of the circuit court and the board of commission-

ers, in case of the filing of such petition before the board,

is given all the powers required to perform all the duties

in regard to such work of drainage, so far as the same

is applicable that have hereinbefore been prescribed for

the circuit or superior court save and except such board

shall have no jurisdiction over any work or drainage

where any part thereof or any lands to be affected there-

by are situated in another county: Provided, That when

objections, demurrers, remonstrances, pleadings and re-

ports are to be filed within certain fixed time, the same

may be heard by the board at the next term of such

commissioners’ court. Whenever it shall ——— by the

statements in a petition for drainage filed under pro-

visions of this section, that the same if constructed will

not, with all its branches, exceed two miles in length, and

will not cost to exceed three hundred dollars, exclusive

of the tile that may be used therein, and that the sur-

veyor of the county is not interested therein, or related

to the parties likely to be affected thereby, the auditor

of the county shall refer the same at once to the sur-

veyor of the county, and it shall be his duty to investi-

gate and report therein to the auditor of such county

within thirty days, and in so doing he shall perform and

have all the duties and powers granted by this act to

engineers, drainage commissioners and viewers in drain-

age proceedings. Upon the filing of such report, the

auditor shall issue a notice to each landowner named

therein, in which he shall set forth in proper blanks:

. ——

Ss A ‘e Sd ae | Se

Appendiz. 81

ee A general description of the route of said

dite

Second: The names of the land owners named therein.

Third: A general description of such owner’s land

and the amount such land is assessed for benefits or

damages.

Fourth: The day when the same will be heard by the

board of commissioners, which shall be at the next ditch

day, by the rules of such board that it is not less than

fifteen days after such report is filed with the auditor.

If the petitioner ask to serve such notices he may do

so, but if he fails to call within three days after the

filing of such report therefor or if he fails to serve the

same, they shall be delivered to the sheriff of the oom

where such land owners reside, and such sheriff sha

immediately serve the same as summons is served in

civil actions, the cost thereof to be taxed to the petitioner

as a part of the expense to be paid by him in said mat-

ter. Upon the day set for the hearing, if the board of

commissioners find that all persons named in said re-

port have been notified thereof more than ten days prior

to such day, they shall proceed to hear the same, and in

so doing shall have power to hear and determine said

matter the same as is granted in such proceedings in

the circuit court and make such changes in plan of said

work and to change and — the assessments of bene-

fits and damages as is granted to said court in this act.

And every land owner shall have the right, and it shall

be his duty, to file such objection thereto as might or

could be done in such — in the other sections

of this act. If any land owner shall be dissatisfied with

the judgment of such board, he shall have the right to

appeal therefrom in the same manner that — are

taken from other decisions of such board; and the court

to which such appeal is taken shall have the power to

hear and determine such matters as if it originated in

such court. At all of such hearings the report of the

op hag shall be evidence of the fact therein stated,

and the burden of changing such report shall be upon

_ the remonstrant. Such ditch shall be constructed and

repaired in the same manner as in the act provided for

the construction and repair of other ditches. If it shall

appear to the board that notice has not been given to

persons affected as hereunto provided, the hearing

82 Appendia.

of such matter shall be continued till they have received

notice when such matter shall be heard, and if it appears

by affidavit at any time that any land owner is a non-

resident of the state, or his residence is unknown, the

auditor of said county shall give notice of such matter

in the same way and for the same time that notices are

given to nonresidents in civil actions in the circuit court.

Obstructions.

Sec. 18. That the owner of inclosed land through

which any allotted ditch may run, shall be liable to the

trustee for any obstructions caused by cattle or stock,

and upon notice from the trustee, the owner of said land

shall immediately remove such obstruction, and if not

so removed, the trustee shall have said ditch repaired,

and may sue such owner in any court having jurisdic-

tion, and collect all expenses incurred in making any

such repair, provided such expenses shall include the

reasonable attorney’s fees.

Tiling or Change—Petition—Proceedings.

Sec. 19. Should the owner of any land, or any cor-

poration, affected by the construction, change, improve-

ment or extension of any work of drainage under this or

any former law of this state, be of the opinion that such

work, or any part of it, may be more economically kept

in repair, or may be made more efficient for its purpose,

by tiling and covering; by removing tile and making the

drain open; by changing the line of the drain or extend-

ing its length; or by making any other change in the

work as originally constructed, such land owner or cor-

poration may apply for such change, improvement or

extension by filing a petition therefor with the circuit or

superior court, or with the board of commissior ers, as

the case may be, of the county in which the proceedings

were had for the construction of such work. The form

and contents of such petition and other provisions in ©

relation thereto shall, so far as applicable, ‘be the same

as provided in section two of this act for the original

petition for the construction of the work; and the pro-

visions of section three, as to notice and hearing of such

petition or remonstrance thereto, reference thereof to

the drainage commissioners; the provisions of sections

three and four as to the report of the drainage commis-

a

gz

sioners, exceptions thereto and action on such excep-

tions and on the report; and the provisions of section

five and section seven as to the duties of the superin-

tendent of construction, shall, so far as applicable, be

the same in case of such change or improvement in such

work of drainage as in case of the original construction

of the work; and if such work of change or improvement

is done under the direction of the circuit or superior

court, and the total cost exceed five thousand dollars, the

provisions of section six in relation to the issue of drain-

age bonds shall also apply. In all other respects the pro-

visions of this act in relation to the construction of any

work of drainage shall, so far as applicable, govern in

the making of any such change, improvement or exten-

sion of any work constructed under this act or under any

former drainage law of this state: Provided, That if the

changes contemplated do not affect more than two miles

of said ditch and will not cost to exceed three hundred

dollars ($300.00) exclusive of tile to be used therein, then

all the procedure and provisions in relation thereto may

be had in accordance with the provisions of section 17

of this act: Provided, further, That if the drain which

it is proposed to change in accordance with the method

of procedure laid down in said section 17 of this act, was

originally established in the circuit or superior court,

then the clerk of such court shall proceed in all ways as

would the auditor of the county in carrying out the pro-

visions prescribed for him in said section 17.

Appendix. 83

When Surveyor May Repair.

Sec. 20. The repair of all drains or ditches other than

dredge ditches, shall be in the hands of the township

trustees in whose townships such ditches or any part

thereof may be situate: Provided, That when not less

than one-third of the persons whose lands are assessed

upon any ditch, shall petition the trustee of such town-

ship or townships, such trustee shall turn the work of

repair and supervision of any ditch mentioned in such

petition over to the county surveyor, who shall proceed

to repair and clean such ditch in the same manner that

such work would be done under the provisions hereof for

the cleaning of such ditches by township trustees: And,

rovided, That when any such trustee shall fail to per-

orm any duty provided for him in this act, he shall be

84 Appendia.

guilty of a misdemeanor, and may be fined in any sum

not less than $25 nor more than $100, in any court of

competent jurisdiction.

Repeal—Exception.

Sec. 21. All laws and parts of laws heretofore enacted

in relation to drainage are hereby repealed: Provided,

Any pending proceedings shall be continued under this

act, except that all proceedings which shall have been

commenced under and in accordance with an act entitled

‘‘An act concerning drainage,’’ approved March 6, 1906,

shall be concluded and determined in accordance with

all of the provisions of said act.

Fresh Water Lakes—Act Not Affected.

Src. 22. Nothing in this act shall be taken to affect or

repeal any part of an act entitled ‘‘An act to preserve

the fresh water lakes of the State of Indiana at their

established level and protect them from danger of being

injuriously affected or destroyed by the lowering of the

water thereof and providing penalties for violation

thereof, and declaring an emergency ;”’ approved March

6, 1905, the same being chapter 152 of the acts of 1905,

but that this act shall be considered supplemental there-

to: Provided, That this act shall not repeal any law

enacted by the session of 1907 of the general assembly

- the State of Indiana, but shall be supplemental

thereto.