from the police power of the state. Winfield v. Public Service Commission, 187 Ind. 53, 118 N. E. 531.

A contract under this statute suspended the regulatory power of the city and of the state so far as mere property interests were concerned during the time fixed by the grant; but the contract affected only the rights of the parties to it. Central Union Tel. Co. v. Indianapolis Tel. Co., Ind., 126 N. E. 629.

Cl. 12. Since there is no presumption that the board of public works, in authorizing removal of sand from a city park, discharged the duty imposed by this section requiring a bond for damages caused by the excavation, the complaint of the taxpayers to enjoin such removal was held insufficient in not alleging that no such bond was executed. Spurrier v. Vater, 62 App. 669, 113 N. E. 732.

Cl. 15. This clause does not make it the duty of a canal proprietor to construct or maintain bridges at highway crossings which were not in existence when the canal was constructed, even though such highways were laid out by duly authorized public officials, nor does such duty exist at common law. City of Indianapolis v. Indianapolis Water Co., 185 Ind. 277, 113 N. E. 369.

8698. Contracts, notice, bids, forfeiture.

Contractors for public works for cities may be required to execute bonds to secure the payment of claims of materialmen and laborers. Aetna Indemnity Co. v. Indianapolis Mortar etc. Co., 178 Ind. 70, 98 N. E. 706.

If a contract for the making of public improvements in a city provides that the contractor shall pay for material used, a bond given to secure the performance of the contract enures to the benefit of persons who furnish materials, and it is not necessary that the surety on the bond shall be notified that materials were furnished to the contractor and that he failed to pay for the same. Aetna Indemnity Co. v. Indianapolis Mortar etc. Co., 178 Ind. 70, 98 N. E. 706.

Courts have no power to add other conditions to a contractor's bond to those fixed by the board of public works under this section and thereby may stand on terms of bond as written. Southern Surety Co. v. National Lumber Co., App. -, 122 N. E. 686.

[Acts 1919, p. 635. In force March 14, 1919.]

8699a. Appeals from boards of public works.-1. All appeals now allowed, or which may hereafter be allowed by law from any action or decision of the board of public works or the board of park commissioners of any city shall be taken by the party appealing, filing in the circuit or superior court of the county wherein such city is located, an original complaint against such city as defendant. Such complaint on appeal shall be filed within twenty days from the date of the action or decision of the board complained of. One or more parties appealing may join in same complaint. Such appeals shall not be taken by transcript. Such complaint on appeal shall contain:

First: The title of the cause, specifying the name of the court and the county in which the appeal is filed, whether it is an appeal from the board of public works or board of park commissioners, and the name or names of the party plaintiff to such appeal. Such city shall be named as the only defendant. The board of public works and the

board of park commissioners, and the individual members of such board shall not be made parties defendant to any such complaint. Second: A statement of the facts constituting the cause of appeal, showing the nature of the proceedings in which, and the date on which, the action or decision complained of was taken, and that a remonstrance in writing was filed by plaintiff with such board as required by law, and showing the date on which such remonstrance was filed.

Third: A description of each lot, parcel or tract of real estate owned by the party or parties appealing and the amount of award of damages and the amount of the assessment of benefits complained of, as the case may be, as to each lot, parcel or tract of real estate described in said complaint.

Fourth: Where an appeal is authorized which does not involve the question of the award of damages or the assessment of benefits, such complaint shall allege specifically wherein the party appealing complains of the action or decision of such board.

Fifth: A demand for the relief to which the plaintiff may suppose himself entitled, stating when involved, the amount of damages that should be awarded or the amount of benefits that should be assessed as the case may be, to or against each particular lot, parcel or tract of real estate described in said complaint.

8699b. City may file demurrer.-2. No pleading shall be required by such city to such complaint on appeal, but such city may file a demurrer to the complaint and raise any question of law as to the sufficiency of the complaint appearing on the face thereof, and file a motion to dismiss on the ground that the complaint was not filed within the time allowed by law.

8699c. Consolidation of appeals, objection.-3. If more than one appeal is taken from any such proceeding, and said appeals shall be filed in the same or different courts, any party to any such appeal shall have the right to file in any such court a motion stating that the ends of justice will be best served by consolidating said appeals, and if the court in which such motion is filed shall decide that the ends of justice will be best served by such consolidation, then in such event such court shall order all of such appeals consolidated, and the same shall be heard at the same time by such court, and different appeals pending in different courts may all be transferred to one court, for the purpose of consolidation or trial, and the court shall have a right to hear all of such appeals at the same time, either with or without consolidation, as the court in its discretion may determine: Provided, however, That any party appealing if he objects to such consolidation shall have the right to a separate trial of his appeal.

8699d. Trial on appeal, burden of proof.-4. The decisions of the board appealed from shall be final and conclusive on all parties except the party appealing therefrom as provided herein, and such decision appealed from shall be prima facie correct, and the burden of proof in all such appeals shall be on the party appealing. All such appeals shall be tried by the court without the intervention of a jury. Such court shall try and hear the issues raised by such appeals de novo, and the manner, method or means of arriving at any such action or decision by said board, in making any award of damages or assessment of benefits, shall not be reviewed or considered by such court on appeal. The amount of benefits assessed or the damages awarded affecting any other real estate in any such proceeding by any such board from which such appeal is taken, shall not be considered by such court on appeal. Such court shall have the power of its own motion, and it shall be its duty upon motion of either party to view and inspect any district and real estate and property affected, damaged, benefited, appropriated or taken, and the work or thing proposed or done. Such court may set aside, affirm, lower or increase any award of damages or assessment of benefits as it may deem just under the law and evidence, and may affirm or modify the action of such board appealed from in whole or in part. The judgment of such court shall be final, and no appeal shall lie therefrom.

8699e. Judgment, certified copy.-5. If the court finds that the action of the board appealed from should in all things be affirmed, its judgment shall be that the action of said board, naming the board and the proceedings in which the appeal is taken, shall in all things be affirmed, and judgment for costs shall be rendered against the party appealing. If the court finds that the action of the board appealed from should not be affirmed in all things, then the court shall make a general finding, showing the nature of such proceeding, and giving the judgment of the court on all matters involved in such appeal, adjudging specifically the amount of the award of damages or the amount of the assessment of benefits as the case may be, as to each lot, parcel or description of real estate involved in such appeal, or the judgment of the court on other matters involved where the appeal does not relate to the award of damages or the assessment of benefits, and the court shall render such judgment as to the cost of such appeal as the facts and law may require. A certified copy of the judgment of the court in said appeal under the seal of the clerk of such court shall be delivered to such board from which said appeal was taken, and such board shall certify to the department of finance of such city accordingly and do everything that may be necessary to carry out and comply with such judgment.

8699f. Award of damages, costs to board, appropriation.-6. In the event that the amount of any award of damages are increased, or the amount of any assessment of benefits are reduced on appeal, such city shall be liable to the plaintiff for such increase in the award of damages, and shall be liable to the party entitled thereto for such reduction in the assessment of benefits. Such amounts and costs and expenses, if said appeal is taken from the board of public works, shall be paid by such board of public works out of any funds appropriated by the common council for that purpose, and such common council shall make all necessary appropriations to enable said board of public works to make all payments required by this act. If such appeal is taken from the board of park commissioners of such city, then such amounts, costs and expenses shall be paid by said board of park commissioners out of its general fund.

8699g. Precedence of appeal.-7. Any such appeal shall take precedence over other pending litigation, and be tried and determined by the court at as early date as practical.

Section 8 of the above act repeals all laws or parts of laws in conflict therewith. Section 9 of the above act provides that the act be in force and effect from and after its passage.

[Acts 1921, p. 19. In force February 17, 1921.]

8699h. Contracts for removal of railroad tracks.-1. The board of works of any city having a population of not less than sixty-six thousand one hundred (66,100) or more than seventy-two (72,000) thousand according to the last preceding United States census, may contract in writing with any steam railroad company occupying a public street in said city and having a right of way on such street for the abandonment of said right of way and the relocation of its tracks on a private right of way to be secured by said railroad company and to pay said railroad company for the abandonment of such right of way in such street.

86991. Approval of contract.-2. Such contract, when executed by the board of public works and such railroad company, shall be submitted to the common council of such city and if approved by the said common council, shall be binding upon both parties thereto.

8699j. Tax levy, bonds.-3. The money to be paid such railroad company shall be raised by such city in the following manner, to-wit: The board of works shall cause the real estate, exclusive of improvements, to be benefited by the abandonment of such right of way in said street to be assessed benefits, which benefits, when so assessed, shall not be in excess of one-half the sum agreed to be paid said railroad company; and in assessing such benefits, the board shall have the power to fix and determine the district on either side of the street so

occupied by said railroad company, the full length plus 150 feet of that part of the street occupied by such railroad company but not further, in which district when so fixed and determined by said board, all the real estate, exclusive of improvements, shall be assessed benefits in such amounts that the total of the benefits so assessed shall not exceed one-half the amount agreed to be paid by said city. The remaining portion of the amount to be paid by said city shall be raised by general tax levy or levies to be determined by said board of works: Provided, That if the board of works shall decide to spread the tax levies over a term of years, then the city may issue bonds for such sum or sums as will be required to pay the amount so agreed to be paid in said contract less the amount to be raised by special assessment as determined by said board.

8699k. List of property benefited, description.-4. For the purpose of determining the assessments provided for in section three hereof such board shall cause to be prepared a list or roll of all the names of the owners and holders of real estate and of interest therein to be beneficially affected by such abandonment of such right of way and located within the district fixed by the board as provided in section three hereof. In addition to such names, such list shall show with reasonable certainty a description of each piece of property belonging to such persons and beneficially affected. No greater certainty in names or description shall be necessary to the validity of such assessment than is required in the assessment of taxes.

86991. Assessment of benefits.-5. Upon the completion of such list said board shall proceed to assess the benefits accruing to each piece of property on said list. When such assessments are completed said board shall cause a written notice showing the amount of such assessment to be served upon the owner of each piece of property, by leaving a copy of the same at his last usual place of residence in such city or by delivering a copy to such owner personally. If such person be a non-resident or his residence shall be unknown then he shall be notified by publication in some daily newspaper of general circulation in such city once each week for three successive weeks. Such notice shall also name a day not earlier than ten days after service of notice or after the last publication, as the case may be, on which said board shall receive or hear remonstrance from persons with regard to the amount of their respective assessments.

8699m. Minors and insane persons.-6. In case any person having interest in land affected by such proceedings shall be of unsound mind or an infant, said board of public works shall certify the same to the city attorney and said city attorney shall forthwith apply to the proper court and secure the appointment of a guardian for such infant or