ing as the exercise of an arbitrary power directed against private property.1076 Official authority to consider applications for review, correction or setting aside of a drain assessment and the procedure in respect to these questions, will depend upon the language of special or local statutes." § 453. Appeals. 1077 The report of the commissioners or viewers upon the questions legally submitted to them is subject to appeal and exception by those who may deem themselves aggrieved and who are entitled to this right.1076 The ground of appeal or exception should spe * That a land pute any invalidity to the proceedings establishing the ditch for the reason that the board of commissioners was not invested with jurisdiction over the subject-matter or on account of the absence originally of notice to appellant, whose land is affected by the construction of the improvement. owner cannot, by a suit for an injunction, obtain a review of the assessment of benefits against his land for the construction of a public ditch, is settled by our decisions." Trimble v. Koch, 26 Ohio St. 434; Allyn v. Depew, 28 Ohio St. 619. See, also, chap. VI, subd. II, on Special Assessments. 1076 Weinreich v. Hensley, 121 Cal. 647; People v. Clayton, 115 Ill. 150. The failure to return a delinquent list to the collector at the proper time will not affect the validity of the proceedings where the necessary notice has been given. Payson v. People, 175 Ill. 267. In a proceeding to collect a delinquent special assessment, a nonresident may show that he received no notice of the proceedings for the organization of the drainage district as required by law. Allerton v. Monona County, 111 Iowa, 560, 82 N. W. 922. 1077 Scholtz v. Ely, 123 Mich. 541, 82 N. W. 237. 1078 See, also, authorities cited § 449. Sarber v. Rankin, 154 Ind. 236, 56 N. E. 225; Trittipo v. Beaver, 155 Ind. 652, 58 N. E. 1034; Makeever v. Martindale, 156 Ind. 655, 60 N. E. 341. A remonstrance will not be considered if unaccompanied by the bond required by law to be filed at the same time. Inwood v. Smith, 156 Ind. 687, 60 N. E. 703; North v. Davisson, 157 Ind. 610, 62 N. E. 447. An essential of a legal appeal is a proper party. Munson v. Blake, 101 Ind. 78; Morgan Civil Tp. v. Hunt, 104 Ind. 590. A remonstrance should be verified. Studabaker v. Studabaker, 152 Ind. 89; Ex parte Sullivan, 154 Ind. 440; In re Wilson, 21 Ky. L. R. 231, 51 S. W. 149. The appeal bond must be filed as required by statute. Lancaster v. Leaman, 21 Ky. L. R. 617, 52 S. W. 963. Appeal authorized under Ky. St. § 2396. Long v. Ignia Probate Judge, 130 Mich. 338, 89 N. W. 938. A corporation can only appeal when authorized in the manner provided by law. Swan Creek Tp. v. Brown, 130 Mich. 382, 90 N. W. 38. The right to restrain the construction of a drain is cifically state the error complained of; 1079 indefinite and general charges will not usually be sustained. 1080 The question of all irregularities in the proceedings may be raised unless the time for such action has elapsed,1081 the party is estopped by his laches or conduct, 1082 has waived any rights either by negative or affirmative conduct,1083 or has failed to use other remedies that should first be exhausted.1084 On appeal the presumption is in favor of the correctness of the decision of the lower tribunal.1085 dependent upon the ownership of the land. Dressen v. Nicollet County Com'rs, 76 Minn. 290; People v. Watson, 64 N. Y. 167; Stanly v. Watson, 33 N. C. (11 Ired.) 124. To entitle one to an appeal, his interests should have been affected. 1079 Moffit V. Medsker Draining Ass'n, 48 Ind. 107; Higbee v. Peed, 98 Ind. 420; Meranda v. Spurlin, 100. Ind. 380; Lancaster v. Leaman, 22 Ky. L. R. 1842, 61 S. W. 281. "Any person who is a party to a proceeding and feels aggrieved by any part of the judgment and desires to have that part reviewed must appeal therefrom. If one party appeals from a certain part of the judgment and does not question the balance of it, it does not give those who may be made defendants in the appeal that is prosecuted the right to have the circuit court review the whole judgment that was rendered in the proceeding in the county court." 1080 Etchison Ditching Ass'n V. Hillis, 40 Ind. 408. 1081 Elgin, J. & E. R. Co. v. Hohenshell, 193 Ill. 159; Trigger v. Drainage Dist. No. 1, 193 Ill. 230; Cochran v. White, 151 Ind. 435, 51 N. E. 723; Toy v. Craig, 158 Ind. 444, 63 N. E. 796; Oliver v. Monona County, 117 Iowa, 43, 90 N. W. 510; Nishnabotna Drainage Dist. v. Campbell, 154 Mo. 151. 387; Trimble v. McGee, 112 Ind. 307; 1083 Briar v. Jobs Creek Drainage Dist. Com'rs, 185 Ill. 257; People v. Wayne County Drain Com'r, 40 Mich. 745; Hackett v. Brown, 128 Mich. 141, 87 N. W. 102; Kellogg v. Ely, 15 Ohio St. 64. Before the doctrine of estoppel should operate, there should be opportunity for an appeal. See Tinsman V. Monroe County Drain Com'r, 90 Mich. 382. 1084 Lees v. Drainage Com'rs, 125 Ill. 47; Sanner v. Union Drainage Dist., 175 Ill. 575. 1085 Lower Kings River Reclamation Dist. v. McCullah, 124 Cal. 175. "It appears from the transcript that a large amount of evidence was offered, both by the defendants contesting and also on behalf of the corpor 1082 People v. Chapman, 127. Ill. ation district, bearing upon the char § 454. Construction. The manner, the time, and the place, of the construction of a drain or ditch as already suggested in a preceding section, 1080 are discretionary matters with the authorities legally charged, and unless there is a palpable abuse of such discretion, property own ers have no right to interfere with the action of the public authorities 1087 The cost of construction may include the fees of engineers, 1088 Maintenance. The maintenance of ditches or drains, after their original construction is apportioned in much the same manner as the original cost for the construction, 1089 and the duty of keeping them in repair rests upon those to whom, by law, it is given. 1090 $455. Expenditures in connection with a supply of water. 1088 Watts V. Gibson County Com'rs, 22 Ind. App. 309, 52 N. E. 825. It is the author's belief that the proper functions of a public corporation are to regulate and govern and that it is neither deacter of the land, as well as upon is completed as provided in the the manner of assessing the same, specifications. Zigler v. Menges, 121 and the question of relative bene- Ind. 99. fits and whether such assessment was in proportion to the benefits. And the findings of the court on all these questions are in favor of the plaintiff corporation and against said defendants. From an examination of such testimony, it clearly appears that the most that can be said in favor of said defendants is that there is a substantial conflict in such testimony; but there is evidence sufficient to support the findings, and, that being the case, this court will not, under well-established rules, interfere with such findings." But see the case of McKinsey v. Bowman, 58 Ind. 28. 1086 See § 446, ante. 1087 State v. Henry County Com'rs, 157 Ind. 96, 60 N. E. 939; Studabaker v. Studabaker, 152 Ind. 89, 51 N. E. 933. It is the duty of the supervising engineer to show that the ditch 1089 Sarber v. Rankin, 154 Ind. 236, 56 N. E. 225; Campbell v. Dwiggins, 83 Ind. 473. A statute which gives a township trustee the absolute unlimited and final power of providing for the repair of drains upon ex parte proceedings is unconstitutional as taking property without due process of law. Ingerman v. Noblesville Tp., 90 Ind. 393; Roundenbush v. Mitchell, 154 Ind. 616. The cost of maintenance may be apportioned upon the basis of benefits. Citing and following Johnson v. Lewis, 115 Ind. 490; Kirkpatrick v. Taylor, 118 Ind. 329; Zimmerman v. Savage, 145 Ind. 124. 1090 Sanitary Dist. of Chicago v. Lee, 79 Ill. App. 159. This duty would include the erection of a sirable nor legal that it engage in undertakings, do those things or transact that business, which, properly, should be left to private enterprise. To govern and regulate efficiently and rightly requires complete disinterestedness, a condition which cannot exist where hope of gain or fear of loss are attendant essentials of certain acts or transactions. It is difficult to separate completely at all times the radically different acts of governing and regulating and engaging in a pursuit or undertaking having for its ultimate purpose the making of a profit. As has been said, "the fundamental powers of a state are limited to safeguarding political and industrial equity between its citizens or the groups of citizens who are created legal persons by its authority. This safeguarding necessarily requires judicial and impartial relations to the subject of control. Such relations can be maintained only where the controlling power has no interest in the subject of control either as "beneficiary, an owner or a user of its services. These, as some of the considerations, have impelled the courts, until comparatively recent times, to withdraw from all public corporations, including municipalities, the legal right to engage in the business of securing and supplying water, either for their own use or that of the individual members of the community. However, since it is claimed that this act is the distribution of a natural product and essential to the good health of the people rather than the manufacture and sale of a commodity, it comes within a legal exercise of the police power and is not to be regarded as a private enterprise to be carefully avoided. As said in a recent case:1091 "Water-works are public utilities; the power bridge and its continuous maintenance. Fletcher v. White, 151 Ind. 401, 51 N. E. 482. 1091 Asher v. Hutchinson Water, Light & Power Co., 66 Kan. 496, 61 L. R. A. 52. See, also, Merrill v. Southside Irr. Co., 112 Cal. 426, 44 Pac. 720; Warner v. Town of Gunnison, 2 Colo. App. 430; White v. Farmers' High Line Canal & Reservoir Co., 22 Colo. 191, 43 Pac. 1028, 31 L. R. A. 828; Smith v. Inhabitants of Lincoln, 170 Mass. 488, 49 N. E. 743; Springfield F. & M. Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 30 L. R. A. 660; David v. Portland Water Committee, 14 Or. 98; Huron Waterworks Co. v. City of Huron, 7 S. D. 9, 30 L. R. A. 848; City of Springville v. Fullmer, 7 Utah, 450, 27 Pac. 577; Metcalfe v. City of Seattle, 1 Wash. St. 297; State v. Snodgrass, 1 Wash. St. 305; Smith v. City of Seattle, 25 Wash. 300; Ellinwood v. City of Reedsburg, 91 Wis. 131. Smith v. City of Nashville, 88 Tenn. 464, 7 L. R. A. 469. "Nothing should be of greater concern to a municipal corporation than the pres to own or otherwise provide a system of water-works conferred upon cities has relation to public purposes and for the public and appertains to the corporation and its political or governmental capacity: they are supported at public expense and are subject to the exclusive control of the city in its governmental capacity for the convenience, health and general welfare of the city." From the standpoint of the expenditure of public moneys, it would be well to consider and follow strictly the legal rights of a public corporation and the purpose and object of organization. A supply of pure and wholesome water at a reasonable cost is the end sought to be attained; logically, it would seem as if this were an object for private undertaking and private consideration, subject to the ever present and sufficient power of the government to regulate and control the time, manner and quality of the supply and the compensation charged.1092 It is quite commonly conceded, however, at the present time, that public corporations, especially municipalities, have the legal right to make provision for a sufficient supply of water for their own use.' 1093 Whether they have such right to the ervation of the good health of the inhabitants. Nothing can be more conducive to that end than a regular and sufficient supply of wholesome water which common observation teaches all men can be furnished in a populous city only through the instrumentality of well equipped waterworks, hence, for a city to meet such a demand is to perform a public act and confer a public blessing." *** It cannot be held that the city in doing so is engaging in a private enterprise or performing a mu nicipal function for a private end. 1092 San Diego Land & Town Co. v. National City, 174 U. S. 739; Rogers Park Water Co. v. Fergus, 180 U. S. 624; Los Angeles City Water Co. v. City of Los Angeles, 88 Fed. 720; Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 254. 1093 Illinois Trust & Sav. Bank v. Arkansas City Water Co., 67 Fed. Abb. Corp. Vol. II — 12 196; Intendant & Town Council of Livingston v. Pippin, 31 Ala. 542; City of Rome v. Cabot, 28 Ga. 50. A municipal corporation possessing the usual powers expressly granted by the legislature has the implied power to make such contracts in its corporate capacity as the local authorities may regard essential and necessary for the public welfare, including a contract for the construction of a system of waterworks for the purpose of supplying the city and its inhabitants with water. Murphy v. City of Waycross, 90 Ga. 36; Dutton v. City of Aurora, 114 Ill. 138; City of Vincennes v. Callender, 86 Ind. 484. A municipality may, under Ind. statutes, become part stockholder in a private corporation authorized to construct waterworks. City of Lexington v. Lafayette County Bank, 165 Mo. 671. The au |