to leave legislation on the subject of tie votes in city elections as it stood before, and, besides section 43 of the act concerning cities and towns provides that all city elections shall be held in conformity with the general election laws of the state. There can be no doubt of the duty of appellees to call a special election. We are of opinion that the court below erred in sustaining the demurrer to the petition and alternative writ. Judgment reversed, with a direction to overrule said demurrer, and for further proceedings not inconsistent with this opinion.

(167 Ind. 1)

SPURGEON et al. v. RHODES.
(No. 20,728.)

(Supreme Court of Indiana. June 19, 1906.) 1. INJUNCTION - PRELIMINARY INJUNCTION COMPLAINT-AFFIDAVITS.

A temporary injunction may be granted on notice to the adverse party, upon the facts warranting its issuance being proved by averments stated on information and belief, where the adverse party does not deny the averments.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Injunction, §§ 317, 321.] 2. SAME-SUFFICIENCY OF SHOWING.

The court, before issuing a temporary injunction, must find that a wrong is about to be committed which will be irreparable, and the mere apprehensions of the complainant, unsustained by facts, are not sufficient.

[Ed. Note. For cases in point, see vol. 27, Cent. Dig. Injunction, §§ 305, 306.] 3. SAME.

On an application by a physician for a temporary injunction to restrain the state board of medical examiners from hearing charges against him and revoking his license, the affidavit of plaintiff was on information and belief only. No affidavit was given of the truth of the facts alleged in the complaint by any person having personal knowledge thereof. The gist of the complaint was that the board had prejudged plaintiff's case and had intended to revoke his license without any evidence and without giving him a hearing. The affidavits of the members of the board and their attorneys denied every wrong charged in the complaint and averred that they would give plaintiff a fair and impartial hearing and determine the charges according to the evidence. Held, that plaintiff was not entitled to a preliminary injunction.

[Ed. Note.--For cases in point, see vol. 27. Cent. Dig. Injunction, §§ 320, 322.]

4. SAME-MEDICAL BOARD HEARING CHARGES AGAINST PHYSICIAN.

Where, in a suit by a physician to restrain the state board of medical examiners from hearing and determining charges against him and revoking his license to practice medicine, the complaint alleged that the board had conspired with a third person to deprive plaintiff of his license, the fact that the third person was not in the state and could not be compelled to attend the hearing of the charges, and that the board would try the charges without his presence or testimony, furnished no ground for enjoining the board from hearing and determining the charges.

5. SAME PRELIMINARY INJUNCTION DAVITS.

AFFI

In a suit by a licensed physician to restrain the state board of medical examiners from hearing and determining charges against him and revoking his license to practice, the

affidavit of the attorney of the board is not evidence against the board. 6. CONSTITUTIONAL LAW

PROHIBITIONS IN FEDERAL CONSTITUTION-APPLICABILITY TO PROCEEDINGS UNDER STATE LAWS.

Const. U. S. art. 3, § 2, providing for trial of crime by jury and amendments 5 and 6, providing that no person shall be held to answer for crime, unless on an indictment, and that in all criminal prosecutions the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor, do not apply to prosecutions in the courts of the states or to laws enacted by the Legislatures of the states, but only to prosecutions in the courts of the United States and laws enacted by Congress. 7. PHYSICIANS AND SURGEONS - REGULATION OF PRACTICE--STATUTES-VALIDITY.

Statutes prescribing the qualifications of medical practitioners and regulating the practice of medicine are within the police power of the state, infringing no provisions of either federal or state Constitutions.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Physicians and Surgeons, §§ 1, 2.] 8. CONSTITUTIONAL LAW DELEGATION OF LEGISLATIVE POWERS-LOCAL AUTHORITIES. Burns' Ann. St. 1901, § 7322, authorizing the state board of medical examiners to revoke a license issued to a physician who is guilty of a felony or gross immorality. etc., and providing for a hearing by the board of charges against a licensed physician, is valid.

[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 99.]

Appeal from Circuit Court, Marion County; W. J. Buckingham, Special Judge.

Action by John Milton Rhodes against W. A. Spurgeon and others. From an order granting a temporary injunction, defendants appeal. Reversed.

MONKS, J. It appears from the record that in 1899 appellee was duly licensed to practice medicine in Marion county, Ind., and has since that time engaged in such practice. In June, 1905, a writing making definite and specific charges of acts of gross immorality, verified by the affidavit of one Eva Boykin, was presented to the state board of medical registråtion and examination under section 7322, Burns' Ann. St. 1901, asking that his license be revoked therefor. Said board fixed a time and place for the hearing of said charges and gave appellee notice thereof as required by section 7322, supra. Thereupon before the time fixed for said hearing appellee brought this suit to enjoin appellants, the members of said board, from proceeding to hear and determine charges of "gross immorality" which were then pending against him before said board, and from revoking his license to practice medicine. A temporary injunction was granted by the judge in vacation upon notice to appellants, and from such order this appeal was taken.

It is insisted by appellants that the court erred in granting said temporary injunction. Section 7319, Burns' Ann. St. 1901, authorizes the granting of a license to practice medicine upon a certificate issued by the state board

of medical registration and examination. Section 7322, Burns' Ann. St. 1901, provides that any such license may be revoked by said board, if the person holding the same is "guilty of a felony, or gross immorality, or is addicted to the use of liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery." Said section provides further that: "A specific written charge, verified by affidavit, must be presented to the board, making definite and specific charges of such facts against the holder of such license. The board shall thereupon fix a time and place for the hearing of such charges, at which the person charged may appear and defend against the same. A copy of such charges, together with a notice of the time and place fixed for the hearing, shall be served upon the person so charged at least twenty (20) days before the time set for the hearing of the same. If, after such hearing, the board revokes such certificate and license, such order shall be by said board entered upon its record." In case the board revokes the license an appeal may be taken to the circuit or superior court of the county in which said license was issued. On appeal the verified charges are treated as the complaint, and "the accused may plead to said charges and issues may be formed thereon as in any civil case." The complaint averred: That the individual appellants were members of and composed the state board of medical registration and examination. That in 1899 the appellee was duly licensed to practice medicine in Marion county, and has since that time been engaged in such practice, and that this right is of value to him and is a property right. That the board has "conspired with one Eva Boykin to fraudulently deprive" appellee of his license. That in pursuance of said conspiracy said board employed said Eva Boykin to visit him and to attempt to induce him to commit an abortion upon said Eva Boykin, and in furtherance of said conspiracy sa'd board hired said Eva Boykin to file affidavits before it. That the appellee had been notified by the board of the filing of charges against him, charging him with gross immorality and for answering which he was required to appear before the board on the 16th day of August. That he was thus required to appear under and by virtue of authority claimed to be conferred by an act regulating the practice of medicine as amended in 1901, which provided that upon charges of gross immorality a license might be revoked by the board. That the charge against him as given-gross immorality-is a "fraudulent one," made by said Boykin at the instigation of said board, and in furtherance of the conspiracy she filed said affidavit before said board, and charged him with unfitness to practice medicine, in that he, believing the affiant to be pregnant, had agreed to perform an abortion upon her. That the said Eva Boykin, the secret employé and

conspirator of said board, acting for and on its behalf and in furtherance of said conspiracy, filed the attached fraudulent af fidavit, charging this petitioner with gross immorality such as to unfit him for his practice. "That it is the intention of said board to hear and determine said charges, and said board intends and will, as previously conspired, revoke the license of your petitioner unless restrained from so doing by this court." That said board has "fraudulently conspired" with said Eva Boykin to deprive the appellee of his license, "in that said Eva Boykin was employed by and paid by said board to visit certain physicians, among them the plaintiff, and to then make affidavit against them. That said Eva Boykin is outside of the state of Indiana and a fugitive from justice. from justice. That said board will not produce her at the hearing of the charges against the appellee. against the appellee. That said board will not allow the appellee to produce witnesses in his defense. That the attorneys for the said board have announced that said board intended to revoke the appellee's license, and that he would not be accorded the right to examine his accusers under oath. That the hearing of said charges will work great harm and injury to the appellee in his business and profession, and will injure his reputation, whether they are sustained or not, and whether said license is revoked or not. Wherefore he asks for a permanent injunction and temporary restraining order preventing said board from trying the appellee and from revoking his license." The charges show that the appellee had offered to perform this abortion upon the said Eva Boykin, believing her to be pregnant, for $10, or $15 or $25, according to the character of the opertion. This complaint was sworn to by the appellee, who states that the matters and facts therein contained are true "as he is informed and verily believes."

An affidavit of a person not a party to this proceeding was filed in support of said application for injunction, which stated that an attorney for appellants had said to affiant "that said Eva Boykin and a man whose name he had agreed not to disclose were gathering evidence against physicians, and that certain doctors, among them Dr. Rhodes (appellee), had been notified to appear before the board for trial, as they desired to make some examples in order to stop abortions; that Eva Boykin was a 'tool,' or 'stool pigeon,' and had been employed by the board to gather evidence. Said attorney further stated to said affiant that the board would not have said Eva Boykin at the trial of said Rhodes; that in fact the board would introduce no testimony in any of the cases then pending, other than the affidavits which were filed against the physician on trial." This affidavit and the verified complaint were all the evidence given by the appellee at the hearing of said application. The affidavits of five members of the board were

read in evidence. These affidavits were substantially the same, and each alleged that no steps of any kind had been taken or would be taken to wrongfully deprive appellee of his license; that Eva Boykin had not been hired to make said affidavits; that said board had no intention to revoke appellee's license unless the evidence, when heard, justified and required it; that it is not true that said board will not allow appellee to produce witnesses in his defense, but, on the contrary, it is and always has been the intention of said board in this case, and the uniform practice of said board in like cases, to permit oral evidence and witnesses to be examined if the party so desired; that the members of said board had no intention or purpose except to hear the evidence fairly and impartially, and then to fairly and impartially determine his rights as the law and the preponderance of the evidence require. Appellants also read in evidence the affidavit of their attorneys, which states that said attorneys never said that the board intended to revoke appellee's license, nor did the the board, so far as their information and knowledge goes, have any such intention, or any intention, except to hear the evidence and fairly determine whether or not the charges were sustained.

Appellants contend that appellee's affidavit, being only upon information and belief, cannot be accepted in a court when the matter is in controversy. It has been held as a general rule that when a party seeks a temporary restraining order, which in this state is without notice, if the facts and circum. stances are not within his personal knowledge, he should state them upon his information and belief, and annex or file therewith the affidavit of some other person, having personal knowledge of the facts alleged, that the same are true upon his personal knowledge of the facts. Beach's Mod. Eq. Prac. $769, and cases cited; High on Injunctions (4th Ed.) §§ 35, 1567, 1569, 1574, 1575, 1581; Gibson's Suits in Chancery, § 818; Campbell v. Morrison, 7 Paige (N. Y.) 157; Bank of Orleans v. Skinner, 9 Paige (N. Y.) 305; Youngblood v. Schamp, 15 N. J. Eq. 42; Manistique Lumber Co. v. Lovejoy, 55 Mich. 189, 20 N. W. 899; Brooks & Hardy v. O'Hara Bros. (C. C.) 8 Fed. 529; Ballard v. Eckman & Vetsburg, 20 Fla. 661, 675, 676. As to the correctness of the rule we need not decide, for the temporary injunction was granted upon notice to appellants, and in such a case the fact that many or all of the material averments of the application are stated upon information and belief will not prevent the granting of the relief when the defendant in no manner denies such averments. Gibson v. Gibson, 46 Wis. 462, 1 N. W. 154. The mere apprehensions or fears of a complainant, unsustained by fact, do not constitute a sufficient ground for the interference of equity by injunction. Not the complainant, therefore, but the court, must

determine that a wrong is about to be committed which will be irreparable before the relief will be granted. High on Injunctions (4th Ed.) §§ 35, 1567, 1569, 1571, 1574, and cases cited; Attorney General v. Bank of Columbia, 1 Paige (N. Y.) 511; Campbell v. Morrison, 7 Paige (N. Y.) 157; Youngblood v. Schamp, 15 N. J. Eq. 42; Warfield v. Owens, 4 Gill (Md.) 364, 382; Goodwin v. New York, N. H. & H. Ry., 43 Conn. 494. In Campbell v. Morrison, 7 Paige (N. Y.), at page 160, it was said: "The complainant does not profess to know anything of the facts upon which his application for an injunction is founded. He therefore merely swears to his information and belief, which information may have been derived from those who were no better informed than himself on the subject. Such an allegation is undoubtedly sufficient in a bill to call for a discovery from the defendant of the facts thus stated; and it may in certain cases be sufficient to authorize the issuing of an injunction, where the defendant has had an opportunity to be heard in opposition to the application. Mum ford v. Sales (in Chancery 20th March, 1838); Attorney General v. Bank of Columbia, 1 Paige (N. Y.) 511." The chancellor said, in Attorney General v. Bank of Columbia, 1 Paige (N. Y.) 515: "Where a party cannot be presumed to have positive knowledge of a fact, it is the consistent practice of this and of all other courts to permit him to swear to his information and belief, and give the adverse party, who alone can swear positively on the subject, an opportunity to deny it on oath. If he does not deny it, or furnish some explanation to induce the court to think otherwise, the belief of the other party is to be taken as the fact." High on Injunctions (4th Ed.) § 1574, says: "And when the motion for a preliminary injunction is heard upon bill and answer, or upon bill, answer, and affidavits, and the equities of the bill are fully met and negatived, the injunction will not be granted.”

Applying the rules above stated governing the granting of temporary injunctions when notice of the motion therefor has been given to the defendant, it is evident that the evidence given in this cause was not sufficient to sustain the allegations of the complaint. It is not necessary, therefore, for us to decide, and we do not decide, whether or not, if said allegations had been established by sufficient and proper evidence, appellee would have been entitled to a temporary injunction. It will be observed that the affidavit of appellee to the complaint, which was read in evidence, was on his "information and belief" only, and that no evidence was given of the truth of the facts alleged in the complaint by any person having personal knowledge thereof; that the affidavits of the five members of the board and their attorneys deny every possible wrong charged in the complaint. The allegation to the effect that Eva Boykin was employed to procure evidence in regard

to the character of appellee is not denied, but this alone would not authorize the granting of a temporary injunction. The gist of the complaint is that appellants had prejudged appellee's case and had intended to revoke his license without any evidence and without giving him a hearing. Said affidavits of appellants and their attorneys deny the charge, and say in effect that they intend to and will give him a fair and impartial hearing, and will determine said charges according to the evidence. This is all he is entitled to demand. The fact that Eva Boy. kin is not in this state and cannot be compelled to attend the hearing of said charges, or that the board would try said charges without her presence or testimony, furnished no ground for enjoining the board from hearing and determining the truth of said charges. The affidavit in regard to the statement made by the attorney for appellants adds nothing to the complaint, and does not tend to support it, for the reason that said attorney was not a member of said board, and his statements were not proper evidence against appellants.

It is next insisted by appellee that said temporary injunction was properly granted for the reason that section 7322, supra, so far as it attempts to confer on said board the power to try appellee and determine whether or not he is guilty or not guilty of the gross immorality charged, and to revoke or refuse to revoke his license therefor, is wholly unconstitutional and void, in that it attempts to confer upon said board judicial power; that it is in violation of the fifth amendment of the Constitution of the United States, which provides that "no person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment by a grand jury," and of the sixth amendment of the same Constitution, which provides that "in all criminal prosecutions the accused shall enjoy the right *

to have compulsory process for obtaining witnesses in his favor" in this: that no provision is made in said section or act for compelling the attendance of appellee's witnesses by compulsory process; that said section 7322 violates section 2, subd. 3, of article 3 of the Constitution of the United States (Burns' Ann. St. 1901, § 16) which provides that "the trial of all crimes except in cases of impeachment shall be by jury." As to appellee's contention in regard to the sixteenth section of article 3 of the Constitution of the United States, and the fifth and sixth amendments of the same Constitution, it is sufficient answer to say that the facts stated in the charges, the trial of which appellee seeks to enjoin in this case, do not constitute a public offense, nor is it claimed that they constitute such offense; but, even if they did, said provisions of the Constitution of the United States do not affect or apply to prosecutions or proceedings in the courts of the states or to laws enacted by the Legislatures of the states, but

only to proceedings and prosecutions in the courts of the United States and laws enacted by Congress. Cooley's Const. Lim. (7th Ed.) p. 46, and cases cited in notes 4 and 5; Twitchell v. Comm., 7 Wall. (U. S.) 321, 19 L. Ed. 223; Barron v. Mayor, etc., 7 Pet. (U. S.) 243, 8 L. Ed. 672; Herman v. State, 8 Ind. 545, 552; Lake Erie, etc., R. Co. v. Heath, 9 Ind. 558, 559; Baker v. Gordon, 23 Ind. 204, 209; Butler v. State, 97 Ind. 378, 382; Lloyd v. Dollison, 194 U. S. 445, 24 Sup. Ct. 703, 48 L. Ed. 1062; Capital City Co. v. Ohio, 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed. 171; Barton v. Kimmerley (Ind. Sup.) 76 N. E. 250, and cases cited.

Statutes prescribing the qualifications of practitioners of medicine and surgery, and otherwise regulating the practice of those professions have been uniformly upheld by the courts as a valid exercise of the police power of the states, infringing no provisions of either federal or state Constitutions. State v. Green, 112 Ind. 462, 14 N. E. 352; Eastman v. State, 109 Ind. 278, 10 N. E. 97, 58 Am. Rep. 400; State v. Webster, 150 Ind. 607, 50 N. E. 750, and cases cited, 41 L. R. A. 212; Parks v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190; Meffert v. Medical Board, 66 Kan. 710, 714, 715, 72 Pac. 247; People v. Hawker, 152 N. Y. 234, 46 N. E. 607; Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563; Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; Hawker v. New York, 170 U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002; 22 Am. & Eng. Ency. of Law (2d Ed.) pp. 780–782; 2 Current Law, pp. 887, 888. Statutes containing a provision like the one in question here, authorizing the board to revoke a license when the holder has been guilty of a felony or of gross immorality, have been held not to violate any provision of the federal or state Constitutions, and it has been held that the granting or refusing to grant a license to practice medicine, or the revocation thereof by the board, is not the exercise: of judicial power. 22 Am. & Eng. Ency. of Law (2d Ed.) pp. 784, 785; 2 Current Law, p. 888; State v. Webster, 150 Ind. 607, 50 N. E. 750, 41 L. R. A. 212, and cases cited in 41 L. R. A. 214; Town of Greenwood v. State, 159 Ind. 267, 269, 64 N. E. 849; Wilkins v. State, 113 Ind. 514, 16 N. E. 192; Ellis v. Steuben Co., 153 Ind. 91, 54 N. E. 382; Meffert v. Medical Board, 66 Kan. 710, 72 Pac.. 247; Meffert v. Packer et al., 195 U. S. 625, 25 Sup. Ct. 790, 49 L. Ed. 350; State v. State Board, etc., 34 Minn. 387, 26 N. W. 123; State v. State Board, etc., 34 Minn. 391, 26 N. W. 125; State v. Board, etc., 32 Minn. 324, 20 N. W. 238, 50 Am. Rep. 575; Traer v. State Board, etc., 106 Iowa, 559, 76 N. W. 833; State Board, etc., v. Roy, 22 R. I. 538, 48 Atl. 802; People v. Hawker, 152 N. Y. 234, 46 N. E. 607; Hawker v. New York, 170 U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. It was said by this court in State v. Webster, 150 Ind. 621, 50 N. E. 755: "While in some

respects quasi judicial, the action of the board is not judicial, any more than is the action of a county surveyor in fixing a boundary line, or of a county superintendent in giving or refusing a teacher's certificate, or the action of numberless other officers or boards in making investigations and decisions in matters committed to them. Neither is the circumstance that an appeal is allowed from a decision of the board an indication that its action is judicial. "The right of appeal from the action of boards in their administrative character,' it was said by this court in Board v. Heaston, 144 Ind. 583, 41 N. E. 457, 43 N. E. 651, 55 Am. St. Rep. 192, 'is frequently conferred by statute. The appeal in such cases is not permitted because the action of the board is considered judicial, but it is granted as a method of getting the matter involved before a court that it may be determined judicially.'"

It is clear that the judge erred in granting the temporary injunction. The order granting the same is therefore reversed.

(167 Ind. 31)

QUICK V. PARRATT, Township Trustee, et al. (No. 20,843.)

(Supreme Court of Indiana. June 20, 1906.) DRAINS-EXPENSE OF CLEANING-LIABILITY OF TOWNSHIP.

Burns' Ann. St. 1901, § 5638, provides that, if a landowner fails to clean his allotment of a public ditch, the township trustee shall have the same cleaned and certify the cost to the county auditor, who shall place it on the tax duplicate, and also provides that the trustee may recover such expense and his fees by action. Held, that neither a township nor its trustee, as such official, is liable for the work performed in cleaning out any allotment of a public ditch under a contract of employment made by the trustee under the statute.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Drains, § 65.]

Appeal from Circuit Court, Pulaski County; John C. Nye, Judge.

Action by William M. Quick against John Parratt, as trustee of Rich Grove township, Pulaski county, and another. From a judgment in favor of defendants, plaintiff appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Affirmed.

Spaugler & Son and Robbins & Pentecost, for appellant.

JORDAN, C. J. Appellant sued John Parratt, trustee of Rich Grove township, Pulaski county, Ind., together with said Rich Grove township, to recover a money judgment. The complaint alleges the following facts: John Parratt, as trustee of Rich Grove township, Pulaski county, Ind., in the year 1902, employed George Turner to clean out allotment No. 13, of a public ditch, known as the "Ender Ditch," situated in said township. Turner, under and in pursuance of the contract of employment, cleaned out the ditch

allotment, for which labor he was to be paid $90 out of the funds of the said Rich Grove township. Upon completion of the work the trustee issued to him the following certificate, which was filed with and made a part of the complaint: "State of Indiana, Pulaski County-ss.: I, John Parratt, trustee of Rich Grove township, in said county and state aforesaid, do hereby certify that George Turner, by my direction as said trustee, has done labor in cleaning out allotment No. 13 in the Ender ditch, assessed to the south half of the northwest quarter and northeast quarter of the southwest quarter of section 31, township 31 north, range 3 west, in Pulaski county, Indiana, in the name of W. G. and Levi Ender to the amount of ninety dollars, and he is entitled to receive said sum out of the township funds of said township as soon as the assessment now on file in the auditor's office against said land above described is paid. Dated this 12th day of December, 1902. John Parratt, Trustee of Rich Grove township. [Seal.]" On July 18, 1903, Turner, for a valuable consideration, assigned in writing this certificate to appellant, who, at and prior to the commencement of this action, was the bona fide holder thereof. No part of the $90 has been paid and the township trustee has refused to pay the same, or any part thereof, and has wholly failed to collect the assessment for the allotment. Appellee Parratt, the trustee, appeared to the action and filed a motion to dismiss the same, so far as he was concerned, assigning as a reason therefor that he was not the proper party, either in his individual or official capacity. This motion, as the record recites, was sustained. Rich Grove township demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Its demurrer was sustained, and, on the appellant's refusal to plead further, judgment was rendered against him for cost.

Section 5633, Burns' Ann. St. 1901, authorizes the county surveyor to allot portions of a public ditch to landowners, corporations, etc., assessed for the construction thereof for the purpose of cleaning out and keeping such improvements in repair. After the allotments have been made, section 5637, Burns' Ann. St. 1901, imposes it as a duty upon such landowners, etc., to clean out and repair the respective parts of the ditch allotted to them, between the 1st day of August and the 1st day of November of each year. Section 5638, Burns' Ann. St. 1901, expressly provides that it shall be the duty of every person or corporation to whom an allotment of a public ditch has been made, upon receipt of the notice from the township trustee, as therein provided, "to perform his allotment within the time fixed in said notice, and on failure so to do, the trustee shall proceed at once to have the same completed and shall certify the cost thereon, including his own per diem, to the auditor of the