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sioner shall institute condem
tion shall set
persons liable to be assessed for the construction of such
SEC. 5. If within twenty days after the making of such when commisorder of determination, as provided in section four of this chapter, all the persons through whose lands the proposed nation proceeddrain is to pass shall not have executed a release of the right of way, and all damages on account thereof, the commissioner shall, as soon as practicable, make application to the probate court of the county in which such lands are situated, for [the] appointment of three special commissioners, who shall be resident freeholders of the county, to determine the necessity for such drain, and for the taking of private property for the use and benefit of the public, for the purpose thereof, and the just compensation to be made therefor. Such application shall be in writing, and shall set forth:
First, The fact that an application for a drain was made, What applicaand when, describing the drain, and also giving the route forth. and dimensions thereof, according to the application and survey;
Second, That an order determining the necessity for the drain was made by the commissioner, giving the time when the order was made;
Third, (1) The several descriptions or tracts of land, with the names of the owner or owners of every such tract, who have neglected or refused to execute a release of right of way and damages; (2) The several descriptions or tracts of land owned by any minor, idiot or person of unsound mind, unknown persons or non-residents of the township, the execution of a release of right of way and damages for which has been neglected or refused; (3) The names of all persons who will be liable to an assessment for benefits in the construction of such drain, under the provisions of this act, with a description of the lands for which they are liable to be assessed; and (4) The several descriptions or tracts of land, owned by unknown persons or non-residents of the township, which will be liable to assessment for benefits in the construction of such drain under the provisions of this act. No lands or tract of land not described or set forth in such application shall thereafter be included in the special assessment district provided in section one of chapter four.
SEC. 8. The court to whom such application is made shall court to appoint at the time and place fixed in the citation, or at any time to heariand place of
sioners to appraise dam. age, etc.
Proviso as to jury.
which it may adjourn, and upon proof of service and publication where required, proceed to hear and determine as to the regularity of all the proceedings had up to and including the filing of the said application, and in case he shall determine that all of said proceedings have been reg
ular and in conformity to law, said court shall make an Special commis- order appointing three disinterested and competent resident
freeholders as special commissioners to ascertain and determine the necessity for such drain, and to appraise and determine the damages or compensation to be allowed to the owners
or parties interested in the real estate proposed to be taken Court to appoint for the right of way of such drain. Such court shall time and place of meeting, etc. immediately upon the appointment of such commissioners,
and with the concurrence of the drain commissioner, appoint a time and place (such time to be not less than five nor more than fifteen days thereafter), at which time such special commissioners shall meet the drain commissioner and other parties in interest, to consider the matters and things with respect to which they have been appointed, and said court shall make public announcement thereof, and thereupon the [proceeding) proceedings shall be deemed a continuing proceeding, and no further notice of the time and place of hearing shall be required, and such appointment and announcement shall be made a part of the record in the case: Provided, That any one person whose estate or interest is to be affected by the proceedings may demand and have from such court at the time of hearing of said application, a jury of twelve freeholders of said county to ascertain and determine the necessity for taking or using such lands and to appraise and determine the damages and compensation to be allowed therefor. The demand of any one of the
parties interested for a jury shall be deemed to be a demand Right to jury for all, and if no jury be demanded on the part of any per
son interested in said proceedings, before the appointment of special commissioners shall be made by such court, his or
her right to the same shall be deemed to have been waived. Selection of jury, Whenever such demand for such jury shall have been made,
the court shall thereupon direct the sheriff or any constable of the county to make a list in writing, of twenty-four disinterested and competent freeholders of the county, qualified to serve as jurors in the courts of record in this State. Such sheriff or officer shall, before he proceeds to make such list, be sworn by the court or judge to select such persons according to his best judgment, and without favor or partiality to either party. From such list the person or persons demanding such jury may alternately strike off six names, and the drain commissioner six names, and in case of either of them refusing or neglecting to do so, the judge shall strike off from said list for the party so refusing or neglecting so as to leave only twelve names thereon. Such court, or the judge thereof, shall issue a venire in the usual form, inserting therein the twelve names so remaining on
said list, and requiring such jury to meet at the time and place appointed therefor by the court, at which meeting said judge shall be present. Said venire may be served by the sheriff, any constable, or other proper officer of the county, as in other cases; and if at the time and place appointed by said court or judge for said jury to meet, any of the persons named as jurors do not attend, or if any named in the venire, or chosen as talesmen, shall be rejected in a challenge for cause, which right of challenge is hereby granted, it shall be competent for said court, or the judge thereof, to order the said sheriff other officer to summon immediately as many competent persons who shall be resident freeholders as may be necessary, with the persons in attendance as jurors, to furnish a panel of twelve jurors. Said jury shall thereupon be sworn to faithfully discharge Jury to be sworn the duties of jurors in the matter in which they are called etc. to act, and to well and truly determine the necessity of such drain, and of the taking of private property for the use and benefit of the public, for the purpose thereof, and the just compensation to be paid therefor. The said jury, with the drain commissioner, and other parties in interest who may be present, shall proceed at that time, or at any time to which they may adjourn, to view said premises, and for such purpose they shall have the right to enter upon any lands traversed by the route of the proposed drain.
SEC. 10. The said jury or special commissioners shall hear to hear proofs, the proofs and allegations of the several parties in interest, etc. and shall ascertain and determine the necessity for such drain, and for the taking of such private property for the use and benefit of the public for the purpose thereof, and the just compensation to be made therefor in each case, which compensation shall be determined without reference to any benefits that may accrue to the land in consequence of the construction of such proposed drain. There shall be Drain commisproduced by the drain commissioner at such hearing, the Sloner to produce original application for the laying out of such drain, and tion, etc. the minutes of his action thereon, so far as had; also copies of the order of determination, and of the application to the probate court, with the citation annexed, and a copy of all the proceedings in the probate court, the 'minutes of the surveyor, signed by him, and the order appointing the jury or special commissioners, as the case may be. The jury or May adjourn not commissioners may adjourn such hearing from day to day, dass. for any cause, not exceeding in all ten days, announcement of which adjournment shall be then and there publicly made.
SEC. 11. The said jury or special commissioners shall, To make return within fifteen days from the date of their first meeting, inake days. a return in writing of their hearing, determination, and of their several awards. The special commissioners shall file said return with the drain commissioner, who shall examine the same, and if he shall find such return not to be in substantial conformity with the statute,
to exceed ten
turn with judge
he shall return
to the special commissioners for correction, with his objections in writing. The
special commissioners shall thereupon proceed to correct Return to be their return and file the same with the drain commissioner food with oral within five days. When the drain commissioner shall find
such return to be without material error, he shall file the
same with the other papers in his possession pertaining to Jury to file re- such drain. In case of a jury they shall file and return of probate, etc.
with the judge of probate who shall examine the same, and if he shall find such return not to be in substantial conformity with the statute, he shall return the same to the jury for correction, with his objections in writing. The jury shall thereupon proceed to correct their return, and file the same with the court within five days, and when such report shall have been confirmed by such court, a certified copy of
such order of confirmation shall be furnished by the court Such return shall to the drain commissioner. Such return by such jury or cient conveyance: special commissioners shall be deemed a sufficient convey
ance to vest the fee of the lands necessary to be taken for such drain, and upon which damages are awarded, in the township in which they are situated, in trust to and for the uses and purpose of drainage and for no other use or purpose whatever: Provided, That the amount of compensation that may have been awarded therefor shall have been paid or tendered or secured to the person entitled thereto, as hereinafter provided.
be deemed suffi
Orders tybe SEC. 8. All orders for the payment for lands for right of drawn upon the drain fund.
way, for services rendered and work performed, shall be drawn by the commissioner upon the drain fund of each particular drain. All orders for the payment for lands for right of way, and for all other services rendered and expenses incurred, except contracts for construction, shall be paid out of the first year's taxes, and the balance of such first year's taxes, if any, shall be applied pro rata among the several contractors in payment of the contracts for the construction of such drain. For the balance due upon such contracts, the
commissioner shall draw orders payable out of the second Orders to be year's assessment. All orders drawn by township drain com
missioners shall be countersigned by the township clerk, and all orders shall be drawn payable on the first day of February of the year in which the drain taxes for the payment thereof are required to be paid: Provided, That no commissioner shall draw orders payable in any one year for a larger amount than each year's assessment, but shall draw, as near may be, to the exact amount assessed. All orders not paid when due, by reason of delinquency in the payment of such drain taxes, shall draw lawful interest from the date of maturity, said interest to be computed by the county or township treasurer, as the case may be, and to be paid with
countersigned by township clerk.
the principal out of the proper fund on which it was drawn, and out of no other fund, and such treasurer shall report to the drain commissioner the amount paid as interest on such orders. All accounts of drain commissioners for personal services shall be audited and allowed by the township board, or the board of supervisors, as the case may be.
SECTION. 1. Whenever a drain, or any portion thereof, who may make needs cleaning out, deepening, widening or extending, any cleaning or
for five freeholders of the township or townships in which such widening drain is situated, one or more of whom shall be owners of land which, at the time of its construction, was assessed therefor, may make application in writing to the commissioner by whom it was constructed, or to his successor in office, setting forth its necessity, and the commissioner shall, Duts of comas soon as practicable thereafter, go upon the line thereof and carefully examine such drain, and if, in his judgment, the request of the applicant should be granted, he shall fix the per cent of the cost of cleaning out, that the owner of such parcel or lot of land shall be assessed therefor: Pro- Proviso as to vided, That in case of an established county drain, having ship commission: its beginning, entire course and terminus within one town- er, etc. I ship, and where all the lands liable to be assessed for benefits on account thereof are also located in such township, a majority of the owners of the land assessed for the construction therefor may make application in writing, signed by them, to the county drain commissioner for a transfer of the jurisdiction of the said drain to the township drain commissioner of the township in which the drain is situated, and it shall be the duty of the said county drain commissioner upon receiving such application, to transfer to the said township drain commissioner a copy of all records and papers and an order on the county treasurer for any funds which may belong to said drain; and the said county drain commissioner shall receive pay for making said copy of the records out of any money belonging to the said drain, if any, otherwise the persons making the application shall pay the cost thereof before such copies are delivered, and all such drains shall thereafter be under the jurisdiction of such township drain commissioner, who shall proceed to act upon any application as hereinbefore provided in this section: And provided further, That such assessment shall be further proviso made according to benefits, and shall be subject to appeal ments. the same
as in the first instance, except that in all cases under this section where drains are only cleaned out, the cost thereof may, in the discretion of the drain commissioner, be assessed
upon the same per cent fixed for the construction thereof: And provided further, That whenever any such Further