"For declaratory resolution No;" and "Against declaratory resolution No;" designating the number of resolution submitted, or other similar phrases by which the voter may effectually express his choice upon the question submitted; and each phrase shall have printed to the left thereof a voting square, by marking in which square the voter shall express his choice; and such elections shall otherwise be governed by the general election laws of the State of Indiana, so far as applicable. If such resolution be submitted at a general election of such city or town, the tickets therefor shall be printed upon and at the bottom of the general tickets containing the names of candidates at such election. If a majority of the votes cast at such election be in favor of such resolution, such common council or board of trustees may, by ordinance, confirm such resolution and proceed to execute the policy thereof; but if a majority of such votes be opposed to such resolution, then such common council or board of trustees shall have no power to confirm the same or to execute the policy thereof. Such city or town is hereby authorized, for the purpose of procuring the means to acquire the aforesaid works and utilities, or to improve the same when acquired, as hereinbefore authorized, to issue and sell the bonds of such city or town pursuant to and in conformity with the provisions of section fifty-five (55) of this act.

See section 8657 Revised Statutes of 1914.

This act amends section 8921 of the Revised Statutes of 1914.

See sections 8704, 8705, 8706, 8709 for the first three sections of the above act. Construction of the statute authorizing municipal corporations to erect and operate electric light works, and the necessity of the provisions of the statute being strictly complied with, and the right of tax payers to enjoin the carrying out of a contract for the erection of such works. Cooper v. Town of Middletown, 56 App. 374, 105 N. E. 393.

8921a. Proceedings affected.-5. That the provisions of this act shall affect in such cities all proceedings theretofore commenced but not completed, including proceedings in which there are now pending appeals from the award of benefits or damages: Provided, The provisions of section one (1) hereof shall not apply to such pending proceedings in the event the time for filing remonstrances has passed. See sections 8704, 8705, 8706, 8709 and 8921 for the first four sections of the above act.

Section 6 of the above act provides that the act be in force and effect from and after its passage.

[Acts 1915, p. 528. In force April 26, 1915.] 8924b. Service outside of corporate limits.-1. That all municipal corporations of this state which now own or operate or which may hereafter own or operate electric light, power or water plants shall be and are hereby authorized, upon procuring the consent of the public service commission therefor to furnish either electrical current, or

water, or both, to any person, firm or corporation, either municipal or private, living or situated without the corporate limits of the municipal corporation owning or operating such electric light, power or water plants.

[Acts 1915, p. 476. In force March 8, 1915.]

8924c. Surplus funds, transfer to general fund.-1. That any city in the State of Indiana, having established an electric lighting and power plant which is owned and operated by such city and which has outstanding its bonds issued for the purpose of establishing such plant and which has from the earnings of such plant accumulated a surplus after having paid the current expenses thereof, and after having set aside a sufficient amount to provide for the depreciation thereof and after having set aside a sinking fund for the payment of such bonds, in an amount which at 3 per cent compound interest computed to the date of maturity shall equal the face value thereof, such city shall be and is hereby by this act authorized and empowered to transfer any such surplus to its general fund and use the same as a part of its general fund for any of the lawful purposes for which its general funds may be used and applied: Provided, That before such surplus shall be transferred to and become a part of the general fund of such city as aforesaid, such city shall first report to the public service commission of Indiana, the amount of its earnings for the year or years involved, the amount of its current expenses, the amount it has allowed and set apart for depreciation of the plant, the amount of its bonds outstanding issued for payment for establishing such plant, and the amount it has set apart as a sinking fund for the payment of such bonds as they mature, such city shall be authorized to transfer and use such part of such surplus earnings as aforesaid only as shall be approved and by proper order authorized by such public service commission.

[Acts 1921, p. 511. In force May 31, 1921.]

8924d. Bonds for light and water plants legalized.-1. Where in any case the board of trustees of any incorporated town in this state shall have borrowed money for the purpose of installing, erecting and maintaining a municipal light and water plant, and where the interest on such money so borrowed shall have been paid out of the general funds in the town treasury, and where the state board of tax commissioners shall have issued an order permitting the board of trustees to issue the bonds of such incorporated town, for the purpose of refunding the indebtedness thus incurred, then and in that event all acts, orders and proceedings of the board of trustees of any such incorporated town are hereby rendered legal, valid and binding in any and all respects whatsoever.

SEC.

12. CONTRACTS FOR PUBLIC WORKS.

8938. Contracts for works and build

ings.

8938. Contracts for works and buildings.

See note to section 8696.

Where prior to the enactment of this section, a telephone company obtained a franchise from a city for the use of streets, which franchise was in all respects valid, except that the city had no authority to grant the telephone company the right to use its streets free from the supervision of the state, such act does not ratify the unauthorized grant. Winfield v. Public Service Commission, 187 Ind. 53, 118 N. E. 531.

8939. Grant of corporate franchise, limit.

The statute which authorizes cities and towns to grant to telephone and other public service corporations the right to use the streets and operate and carry on a business within the municipal corporation, is not in violation of the provisions of the Constitution, but such statute vests in the municipal authorities a discretion as to the granting of such rights and privileges, and they can not be compelled by mandate to grant such rights. State ex rel. v. Stickelman, 182 Ind. 102, 105 N. E. 777.

When the granting of a franchise to use the streets of a city and to carry on a business is to be confirmed by the council of the city by an ordinance, an extension of rights under such franchise must be made in like manner, and can not be made by a resolution adopted by the board of public works. Indiana Railways etc. Co. v. City of Kokomo, 183 Ind. 543, 108 N. E. 771.

See note to section 8696.

8940. Paving-Corporation's portion-Payment. See note to section 8710.

SEC.

16. CONDEMNATION OF LANDS.

8959. Condemnation of lands, proce

dure, fifth class or town.

8959. Condemnation of lands, procedure, fifth class or town.

It can not be held as a matter of law that a municipal corporation can not appropriate a longitudinal strip off of a railroad right of way for use as a street. Town of Cicero v. Lake Erie etc. R. Co., 52 App. 298, 97 N. E. 389.

Prior to the amendment of this section, suits to enjoin the prosecution of work authorized by contract, had to be brought within ten days from the letting of the contract. Anheier v. Fowler, 53 App. 535, 102 N. E. 108.

Before the bond of a contractor for a public work is accepted, additional persons may sign the bond as sureties without releasing prior signers. Fry v. Bannon Sewer Pipe Co., 179 Ind. 309, 101 N. E. 10.

Liabilities of the sureties on the bonds of contractors for public works for the payment of the debts of such contractors incurred for materials and labor. Aetna

Indemnity Co. v. Indianapolis Mortar etc. Co., 178 Ind. 70, 98 N. E. 706; Fry v. Bannon Sewer Pipe Co., 179 Ind. 309, 101 N. E. 10; American Fidelity Co. v. East Ohio etc. Sewer Pipe Co., 53 App. 335, 101 N. E. 671.

The loan of money to a contractor for a public work to carry on the work, or payment of debts contracted in the prosecution of the work at the request of the contractor, is a sufficient consideration to support an assignment to the person who makes such loan or pays such debts by the contractor of his claims for compensation for such work. American Fidelity Co. v. East Ohio etc. Sewer Pipe Co., 53 App. 335, 101 N. E. 671.

The statute providing for the grading and paving of streets does not authorize the making of assessments against property when a street is only graded, but to justify such assessments the street must be graded and improved with some kind of modern paving material. Town of Jasper v. Cassidy, 53 App. 678, 102 N. E. 278.

If a land owner appeals to a circuit court from an award of damages for land appropriated for a public street, and on a trial by jury damages are assessed in favor of such owner, the city, before judgment is rendered on the verdict, may dismiss the condemnation proceedings and thereby escape liability for such damages. Isley v. City of Attica, 59 App. 694, 109 N. E. 918.

Liability of a city for damages done to property by the negligent acts of a contractor who is making a public improvement under a contract with the city. Julius Keller etc. Co. v. Herkless, 59 App. 472, 109 N. E. 797.

8960. Common council-Board of trustees-General powers. See note to sections 8908-8920.

8961. Streets, alleys, water-courses, sewers, control.

If a municipal corporation is compelled to pay damages caused by defects in a street when such defects are caused by the acts of a third person, such corpora tion may recover the amount paid from the person causing the defects in the street. City of Bloomington v. Chicago etc. R. Co., 52 App. 510, 98 N. E. 188. If a street is located upon the boundary line of a city, the city can not vacate that portion of the street within the corporate limits of the city. City of Gary v. Much, 180 Ind. 26, 101 N. E. 4.

This section is to be construed in connection with other statues which authorize municipal corporations to improve streets and to construct other public works. City of Jeffersonville v. Louisville etc. Tract. Co., 59 App. 237, 107 N. E. 748.

Streets can not be graded at the expense of property owners unless the same are paved with some kind of paving material. Town of Jasper v. Cassidy, 53 App. 678, 102 N. E. 278.

See note to sections 8908-8920.

This section and section 8697 do not have the effect of changing the conduct of the city in maintaining a public park from a governmental to a purely private function. City of Kokomo v. Loy, App. 110 N. E. 694.

[Acts 1921, p. 687. In force March 10, 1921.]

8961c. Costs of street improvement, cities of first class and county. -1. The cost of improving any street or public highway in cities of the first class, which connect with, extend or continue as a hard surface public highway beyond the corporate limits of such city into the county in which such city is located in excess of the amount that may be assessed as special benefits against the real estate abutting on such street or highway or part thereof so improved, shall be paid equally by such city and by such county in which such city is located as provided in this act.

8961d. Streets connecting with hard surface roads.-2. Whenever the board of public works of any city of the first class desires to improve, with any one of the kinds of modern pavements, any street or public highway in such city, in whole or in part which connects with, extends or continues as a hard surface public highway beyond the corporate limits of such city into the county in which such city is located, said board of public works shall adopt a preliminary resolution for the improvement of such street or public highway or part thereof so proposed to be improved and proceed in all other respects as now provided by law, for the adoption of preliminary resolutions and the adoption of detailed drawings and general specifications of such work and the giving of notice. In the event that it is ascertained that the estimated cost of such improvement made by the city civil engineer of such city as now provided by law, will exceed the total amount of special benefits that can be assessed against the real estate abutting on said street or public highway or the part thereof so proposed to be improved, it shall be the duty of the board of public works to cause its clerk to deliver to the board of commissioners of the county in which such city is located, a copy of such preliminary improvement resolution, together with the amount of the estimated cost thereof made by the city civil engineer of said city and a statement that such estimate exceeds the amount, which under the law can be assessed against the real estate abutting on that part of said street or public highway so proposed to be improved and that the board of public works has determined that such proposed improvement is a matter of general benefit and public utility to said city and county, and that the cost of such proposed improvement in excess of the special benefits to be assessed against the abutting real estate shal [1] be paid one-half by such city of the first class and one-half by the county in which such city is located. Special benefits shall not in any case be more than