On Petition for Rehearing.
Hackney, O. J.The petition for a rehearing is directed only to the question of the power of the surveyor to make the repairs in question. If we understand counsel, they maintain that the act of 1885, section 5631, Burns’ R. S. 1894, does not apply to the *130drain here in question, because of the proviso in section thirteen, section 5646, Burns’ R. S. 1894, that said act shall not be held to repeal or affect in any manner the act of April 21, 1881, the act under which this drainage was accomplished. Section ten, of the act for drainage proceedings in the circuit court, section 4282, R. S. 1881, and section twenty-three of the act for drainage proceedings in the commissioners’court were in the same language. They provided for the cleaning and repairing of drains by the township trustee, the payment therefor from the township fund, and the reimbursement of that fund by assessments. This court, in Campbell v. Dwiggins, 83 Ind. 473, in 1882, held said two sections unconstitutional as to the proceedings to reimburse the township fund. In 1885 the General Assembly enacted the act of April 6 (Acts 1885, p. 129), its general features applying to proceedings for drainage in the circuit courts. In section ten of that act, section 5631, Burns’ R. S. 1894, it was provided that when a drain was completed the county surveyor should keep it in repair. Its language clearly made it applicable to drains constructed in two or more counties, and provided for the apportionments and collection of the eost between the lands of the several counties. It then provided, in language free from ambiguity or doubt, that “the provisions of this section shall also apply to all works constructed for the purpose of drainage under any law now or heretofore in force in this state.” There then existed no substitute for the provisions of the acts of 1881 so held to violate the constitution.
The intention of the General Assembly to create a new method of repairing and collecting the cost seems manifest unless the proviso referred to should be held to limit the act for drainage secured by proceedings in the circuit court; The necessity for such legislation, *131and the comprehensive language of said provision, applying to all drainage under all laws, strongly support the intention to cover the provisions of section twenty-three, supra, of the act of 1881, and cure the defect therein.
The proviso, in our opinion, does not defeat this intention. It speaks with reference to the act of April 21, 1881, as a whole, and expresses the purpose to keep said act alive and in force. It is not to be implied that the new provision as to repairs, in the absence of the proviso, would repeal the act of April 21, 1881. Construing the two acts of 1881 with that of 1885, it seems clear to our minds that it was intended by the latter act to provide for the cleaning of drains in two or more counties by the surveyor of the county in which the proceedings were instituted, whether by proceedings in the circuit court or in the commissioner’s court.
In the original opinion we employed language implying our conclusion that section 4310, R. S. 1881 failed by the holding that section 4307, supra, was not constitutional. From the holding in Ingerman v. Noblesville Tp., 90 Ind. 393, that only the provisions, of section 4307, supra, as to assessing lands for the re-, imbursement of the township fund, were unconstitutional, section 4310, supra, would probably not be defeated. But, as intimated in the original opinion, section 4310 was of doubtful force from its failure to designate the officers and the procedure for repairing joint drains. • However, we are clearly of the opinion that the act of 1885, supra, provided a complete method, and applied when the repairs here in question were made. The petition is overruled.