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and shall be refunded to the county by the superintendent of construction out of the first moneys collected by him; next in order he shall pay all awards of damages caused by the drainage and thereafter he shall pay to the contractor such sums as shall from time to time become due under the terms of the contract, reserving, however, twenty per cent. thereof, which shall be due and payable only on the completion and approval of the work. For the purpose of raising funds for making such payments, the superintendent shall collect of the assessments of benefits reported by the drainage commissioners, and adjudged by the court, such sums as may be necessary therefor, not exceeding the whole amount of benefits assessed against any tracts, and require the same to be paid to him in installments not exceeding ten per cent. per month, at such times and at such places as he shall fix, after thirty days' notice thereof given by one publication in a newspaper of general circulation published in the county in which the lands are situated. The superintendent of construction shall, on demand of any person interested or proposing to bid on such work, furnish a statement of the computation of the number of cubic yards of excavation, or filling, as the case may be, in each station, as reported by the drainage commissioners; and shall, after giving notice for bids, by two publications, once each week, for two successive weeks in a newspaper of general circulation published in each county where lands assessed as benefited are situated, the last of which publications shall be ten days before the day fixed for receiving such bids, proceed to let the work, by contract, to the lowest and best bidder or bidders. Such contractor shall give bond to the approval of the superintendent, for the performance of his contract, and that he will pay all damages caused by failure to do so, which may be recovered in any court of competent jurisdiction. Any person furnishing labor or material to such contractor or to any subcontractor, or furnishing board or lodging to the employes of such contractor or subcontractor, in the construction of such work, and failing to receive compensation therefor, shall have a right of action on such bond for the amount found due him. Should any person who has been awarded such contract fail or refuse to construct such work within the time or according to the specifications provided for in the contract, or should it be manifest, before the expiration of such time, that such person would not complete the work within the time limited or in the manner specified, the superintendent may annul the contract and let the work again to the lowest and best bidder, and after giving notice as provided on receiving the first bids. Such former bidder, so in default, shall not again become a bidder for such work, but he shall be allowed on his contract a fair price for the work which he has done up to the time of the annulment of his contract, less costs of readvertising and other costs occasioned by such default, and less also the excess, if any, of the cost of construction under the second contract above the amount of his contract, which amount to be paid him shall be determined by the court. The superintendent of construction shall collect the assessments herein before provided for or such part thereof as may by him be deemed necessary,
for the payment of the costs and expenses of the work. If any such assessments is not paid in the amount and at the time by him required, he shall make his certificate showing the amount of the assessment against any tract, and the default in its payment as required, and shall file the same with the auditor of the county in which said tract is situated; and thereupon the auditor shall place such amount, together with ten per cent. penalty for the default, upon the tax duplicate to be collected, as state and county taxes are collected at the next ensuing date for the semiannual payment of taxes. If such assessments and penalty are not then paid, an additional penalty of five per cent. shall be added, and the land shall be sold for such assessment, penalty and interest therein, at six per cent. from the date of last default to the date of sale, as lands are sold for the nonpayment of delinquent taxes, and redemption from such sale may be had in the same manner, during the same time and on the same terms as provided by law for the redemption of lands sold for delinquent taxes. Any assessment made against any township, city or town, by reason of benefits to any highway, street or public grounds, or for other benefit to such corporation, shall be paid out of the general funds of such township, city or town, as the case may be; and the provisions of the next section as to the issue of drainage bonds shall have no application to assessments against such corporations.
See notes to section 5626, Burns' R. S. 1901.
If a drain is established along a natural watercourse, the county and township authorities can not be compelled to remove bridges over such watercourses so that machines may be used in constructing such drain. State v. Board, 157 Ind. 96.
If owners of land assessed for drainage benefits are not named in the petition nor made parties to the drainage proceedings, the assessment against such land can not be enforced. Hunt v. State, 26 App. 518.
Lands located in the county adjoining the one in which a drain is constructed may be assessed with benefits for the construction of the drain. State v. Elliott, 32 App. 605.
If a commissioner appointed to construct a drain fails to complete the same, and proceedings are instituted to compel him to perform his duty, expenses incurred by such commissioner over such controversy can not be retained by him out of assessments collected. Carter v. Buller, 159 Ind. 52.
The court is not bound to allow a commissioner who superintends the construction of a drain the full amount claimed by him, although such commissioner is the only person who testifies as to the correctness of the claim. Carter v. Buller, 159 Ind. 52.
5627. Bonds-When and how issued and paid.-6. In all cases where the contract price for the construction of any work or 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 payment of the costs of such construction, provided the owners of two-thirds in acreage of the lands assessed for benefits shall within thirty days from the establishment of the work and approval of the assessments of benefits and damages file their written request therefor with the superintendent of con
struction. In such written request such land owners shall agree that in consideration of the right to pay his assessment in ten yearly installments he will not make any objection to any illegality or irregularity, if any, in the proceedings up to and including the letting of the contract and the issuing of such bonds and that he will pay such assessments with interest as the same become due. The filing of such requests and the issue of bonds, if any there should be, shall in no manner affect the collection of assessments 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 apportioned to the lands of those who have filed requests therefor, and shall be liens only on such lands and payable only out of the assessments made thereon. Such apportionment shall be made. as follows: The superintendent of construction shall carefully ascertain the total original cost of the work of drainage, including all damages 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 or the judge thereof in vacation, together with all such requests for bonds and waivers of irregularities by land owners, which report the court or judge shall examine, and, if found correct, shall approve, whereupon 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 their next ensuing session. Each board of commissioners, at such ensuing monthly session after the filing of such transcript, shall direct the county auditor to prepare an assessment sheet or drainage duplicate 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 assess 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 payable at the semiannual payment of taxes next following the letting of the contract, and the remaining assessments on the same day each year thereafter for nine successive years, with interest at six per cent. per annum, payable semiannually, 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 nonpayment when due; and all laws for the collection of delinquent taxes and for the sale of lands for taxes and redemption from such sale shall apply equally to the collection of such assessments. Any land owner desiring to relieve 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 payment 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 drainage 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 duplicate for collection in such county. The bonds shall be numbered consecutively and shall be in denomination 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 contrast for such drainage until the bonds are paid, respectively, at six per cent. per annum, payable semiannually 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 assessments 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 receipt 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 twenty days thereafter, the treasurer will proceed to sell such 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 treasury; in which case the assessments 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 treasury only on the warrant of the auditor upon the certificate of the superintendent in payment of the cost of construction of such drainage and expenses incident thereto. In case the bonds sell at a premium the aggregate amount of such premium shall be apportioned pro rata to the several assessments for cost against the respective parcels of land, and the amount thus apportioned to each parcel shall operate as a payment to that extent of the first maturing installment.
5628. Account Report Suits Liens.-7. The superintendent of construction of every work of drainage shall keep an account of all mon
eys collected and paid out by him in relation to such work, and shall take vouchers for all sums paid out. He shall also keep an account of the time occupied by him in the performance of his duties, and whenever he shall be engaged in two or more works on the same day he shall divide such day among such works in proportion to the time devoted to each. He shall, at least once in six months, make to the court under oath a full report of all matters relating to any such work; and the court shall allow him for his services three dollars per day for the time actually and necessarily employed by him therein. Such superintendent shall at all times. be under the control and direction of the court; and for any failure to obey the orders of the court he shall forfeit all compensation due him and be dealt with summarily as for contempt, and may be removed by the court. Suit may also be brought upon his bond in the name of the state for any failure of duty, and the amount recovered shall be applied in payment of the costs and expenses of the construction of the work. The court may at any time discharge the superintendent and appoint another in his place. All laborers and other persons who shall perform any service or furnish any materials in the construction of any work under the provisions of this act shall have a lien upon the fund raised for the construction of the same; and upon notice in writing, of the amount due and what the same is for, filed with the county treasurer, such treasurer shall withhold payment to the contractor on any warrant drawn in his favor, to any amount sufficient to satisfy such lien, until the same is adjusted; and in case of disagreement between the contractor and the person claiming such lien, as to the amount or validity thereof, the court, on motion of the superintendent, contractor or person claiming the lien, shall determine such matter. On failure to comply with the foregoing provisions the superintendent shall be liable on his bond for any sum improperly paid over to the contractor. Should any funds remain after the payment of the costs of the construction of the work of drainage and expenses connected therewith, the same shall be distributed, pro rata, according to the amount paid by the owners of the lands and the corporations assessed for such work.
See notes to section 5628, Burns' R. S. 1901.
5629. Construction of act-Supplemental petition.-8. This act shall be liberally construed to promote the drainage of wet or overflowed lands; and the collection of assessments shall not be defeated by reason of any defect in the proceeding occurring prior to the judgment of the court approving and confirming the assessment of benefits and damages and ordering the work established, provided only the court had jurisdiction, but, such judgment shall be conclusive that all prior proceedings were regular and according to law; nor shall any person, at any stage of the proceedings, be permitted to take advantage of any error, defect or informality which does not directly affect himself; and should the court deem it just to release any person of any liability, or to modify his assessment, such act of the court shall in no manner affect the rights