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the legislative intent to authorize a corporate organization for all the purposes named in the statute, nor for any two or more of the purposes named. In West v. Ditching

Co., 32 Ind. 138, suit was brought to collect an assessment made by a ditching corporation. It was held that the objects of the corporation should be declared with reasonable distinctness, that the statute made such declaration a condition precedent to the organization, and without it no such corporation was authorized or could exist. The com. plaint in that case was held bad because it affirmatively showed that the object of the organization was not sufficiently declared in the articles of association. In People v. Beach, 19 Hun, 259, it is said: "The statute referred to provides for the formation of companies for the purpose of carrying on any kind of manufacturing, mining, mechanical, or chemical business.' [Laws 1848, c. 40.] This language is in the disjunctive, thus authorizing an organization for the carrying on of business having in view either of these purposes as its auxiliary or means of producing results; nor does section 20, which provides for extending the business of a company formed or to be formed to any 'other' manufacturing, mining, mechanical, or chemical business, 'confer the right to combine any two or more of these general purposes.' This section leaves the purpose of the organization still to be limited to one of the general classes of business designated in the act as manufacturing, mining, mechanical, or chemical." See, also, State v. Beck, 81 Ind. 500; Draining Co. v. Mauck, 43 Ind. 300; O'Reiley v. Draining Co., 32 Ind. 169; Draining Co. v. Nofsinger, 43 Ind. 566; State v. International Inv. Co., 88 Wis. 512, 60 N. W. 996; State v. Minnesota Thresher Mfg. Co., 40 Minn. 213, 41 N. W. 1020, 3 L. K. A. 510; Isle Royale Land Corp. Co. v. Secretary of State, 76 Mich. 162, 43 N. W. 14; In re Deveaux, 54 Ga. 673; In re Richmond Retail Coal Co. of Philadelphia, 9 Pa. Co. Ct. R. 172; In re Pennsylvania State Sportsmen's Ass'n, 1 Pa. Dist. R. 763; In re Skandinaviska, 3 Pa. Dist. R. 235; In re Crown Bank, L. R. 44 Ch. Div. 634, 32 Am. & Eng. Corp. Cas. 574. As there is no statute authorizing the organization of a corporation for the purposes named, it follows that the articles of association are void.

Judgment reversed, with instructions to sustain the demurrer to the complaint.

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sessment agrees in writing, to be filed with the clerk of the city or town, in consideration of the right to pay his assessments in installments, that he will not object to the assessments be cause of illegality or irregularity, and will pay the same, with interest thereon, he shall have the benefit of paying his assessments in 10 annual installments, one who executes the waiver and agreement provided for therein becomes personally liable on the installments of his assessment as they become due.

Wiley and Black, JJ., dissenting.

Appeal from circuit court, Madison county; John F. McClure, Judge.

Action by the Edward C. Jones Company against Solomon Perry to collect street-improvement assessments. Judgment for defendant, and plaintiff appeals. Reversed. Bagot, Ellison & Bagot and Wm. F. Edwards, for appellant. Crouse & Jones, for appellee.

HENLEY, J. The common council of the city of Alexandria, in the year 1893, by proceedings in every way proper, so far as the record in this cause shows, improved the por tion of Harrison street extending north from Madison street to Taylor street in said city. The proceedings were had and improvement made under sections 4288-4298, Burns' Rev. St. 1894; being what is commonly known as the "Barrett Law." The total cost of this improvement was $22,077.48, which amount was duly apportioned and assessed against the real estate abutting on the improvement, according to the frontage of the several lots along the same. The appellee in this cause was, and still is, the owner of certain real estate, which was assessed for its portion of the cost of the improvement; the amount of the assessment against appellee's property being $722.19. The amount of this assessment became a lien against appellee's real estate, said real estate being alone liable for the same; and no personal judgment could have been rendered against appellee for the amount of said assessment unless by some act of appellee himself he became personally liable for the amount. When the improvement was completed, appellee, by the terms of the statute, could have paid his assessment, and satisfied the lien existing upon his real estate, or he could have permitted his real estate to be sold to discharge said lien, or he had the privilege, under the statute, of executing a waiver and agreement to pay the said assessment in 10 annual installments, with interest. Appellee took the latter course, and executed the waiver and agreement permitted by the statute under which the work was done. The record shows that other persons affected by this improvement together with the appellee executed the waiver and agreement contemplated by the statute, and that the total amount of the assessment against the property of the persons 80 executing the waiver and agreement amounted to $16,370, and that street-improvement bonds to said amount were issued by the city of Alexandria, and turned

over to the contractors in part payment for said improvement. These bonds were sold and transferred by the contractors to the appellant, and this action was commenced by appellant against appellee to enforce the collection of certain installments on appellee's assessment which were due and unpaid. By appellant's complaint it is sought, not only to enforce the lien of said assessments against appellee's said real estate, but also to procure a personal judgment for said amount against appellee. This personal judgment is sought under the terms of the waiver and agreement executed by appellee, and in order to protect appellant against loss in case appellee's real estate should fail to sell for a sum sufficient to pay said assessment. Upon the trial of the cause the court made a special finding of facts, and stated its conclusions of law thereon. To the conclusions of law, appellant excepted. The only error assigned in this court is that the lower court erred in its second conclusion of law stated on the special finding of facts. The second conclusion of law to which objection is made by appellant is "that plaintiff is not entitled to personal judgment against the defendant, Solomon Perry."

follows: "Should any one of such assessments exceed the sum of fifty dollars, then if the owner of the lot or parcel of ground against which such assessment is made, if he, within two weeks after the making of such assessment, shall promise and agree in writing, to be filed with the clerk of such city or town, and to be spread of record by him, in consideration of the right to pay his or their assessment or respective assessments in installments, that they will not make any objection to the illegality or irregularity as to their respective assessments, and will pay the same, with interest thereon, at the rate of not exceeding six per centum per annum, as shall by ordinance or resolution of the common council of such city, or board of trustees of such town, be prescribed and required, he or they shall have the benefit of paying said assessments in ten annual installments as hereinafter provided." Section 4294, Burns' Rev. St. 1894. As to the agreement executed under this statute, we find no room for construction, other than the plain and common meaning to be given the words employed. The consideration for the agreement is expressly stated, in the language of the statute, to be "in consideration of the right to pay his or their assessments in installments." For such consideration the assessed property owner agrees: First, that he will not make any objection to the illegality or irregularity of his assessment; second, that he will pay such assessment in installments, with interest thereon at a rate not exceeding 6 per cent. per annum. This court held in the case of Richcreek v. Moorman, 14 Ind. App. 370, 42 N. E. 943, that the assessed property owner could not, after signing the agreement contemplated by section 4294, supra, be heard to question the regularity of his assessment. If that part of the statute which permits the property owner to waive an illegal or irregular act is to be enforced, is it right that his plain, unequivocal agreement to pay, founded upon a valid consideration therein expressed, should be held of no effect? We think not. Every element of a debt is present. The obligation arises out of an express contract. It entitles the creditor to receive from the promisor, unconditionally, a certain sum of money, the amount of which is fixed, and which the promisor is under a legal duty to pay, without regard to any future contingency. State v. Hawes, 112 Ind. 323, 14 N. E. 87; Mayor,

The pleadings have been in no way attacked, and it is conceded that the record presents the question argued by counsel. By the special finding of facts, the court found all the facts necessary to establish the lien of the assessment upon appellee's real estate. The court also made the following finding, numbered 18, in its special finding of facts, viz.: "That, within two weeks from the date of approval of said final estimate and report, property owners along the said part of said street so improved, and owning real estate abutting thereon, filed with the clerk of said city their contract and agreement in writing in the words and figures following, to wit: "The undersigned, who have been respectively assessed in excess of $50.00 for the construction of North Harrison street, between Madison and Taylor streets, in the city of Alexandria, in the county of Madison, state of Indiana, hereby severally promise and agree, in consideration of having the right to pay their respective assessments for said improvement in installments, that they will not make any objection to their respective assessments, as to the illegality or irregularity of the same, but will respectively pay the said installments, with interest | etc., v. Gill, 31 Md. 375. The statute under thereon at such rate, not exceeding six per cent., as shall by ordinance or resolution of the common council of said city be prescribed and required. Dated Oct. 30th, 1893.'" Signed to this agreement and waiver, along with others, appears the name of appellee. The above agreement was such an agreement as the act under consideration authorizes the assessed property owner to execute. That part of the act authorizing the execution of the waiver and agreement is as

consideration does not, nor does it attempt to, create a personal liability upon the part of the property owner whose property may be assessed under its provisions. It simply provides a way by which the assessment may, be paid in installments. It provides a way by which the property owner, at his own option, can agree to pay. He becomes personally liable, not by force of the statute, but by his own agreement, made after the debt is created, and for a valuable considera.

tion, the extension of the time of payment. It is the history of the growth of cities and towns that the real estate therein at times rapidly increases in value, and at other times as rapidly decreases in value. The lots and parcels of land abutting upon a street may be worth many times the amount of the assessments levied upon them at the time the improvement is made and the assessment falls due, and in a short time thereafter may be worth less than the assessment. But the cost of the improvement is fixed. The contractor has already expended his money. If permitted to foreclose his statutory lien at the time the assessment falls due, he would obtain his money; but the owner of the property, by an agreement which the statute simply permits, defers the time of payment for 10 years. In order to do this, he agrees to pay the debt. We cannot hold that after so contracting he can, if his property decreas es in value to a point where it is not worth as much as the debt, throw the assessed real estate, with the resulting loss, upon the holder of the debt, and thus escape the consequences of his own act. We are satisfied that the legislature did not so intend. In the case of Quill v. City of Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681, cited by appellee's counsel, the question here under consideration was not before the court. The position occupied by appellee is very similar to that of the purchaser of mortgaged real estate, who buys subject to the mortgage. He does not incur a personal liability to the holder of the mortgage, but when the debt secured by the mortgage falls due he could, by contract, agree to pay the debt if divided into 10 equal annual installments. No one would contend that such an agreement did not create a personal liability. In the case at bar we have an agreement duly executed; such an agreement as the statute expressly permits; a valid consideration expressed therein. We would do violence to the plain meaning of the words employed, to hold other than that appellee became personally liable for the amount of the assessment against his real estate by the execution of the waiver and agreement herein set out. The lower court erred in its second conclusion of law stated upon the facts found. The judgment is reversed, with instructions to the lower court to restate its conclusions of law, and render judgment accordingly.

WILEY, J. (dissenting). I am unable to concur in the conclusion reached by the majority of my associates in the prevailing opinion, and I am so firmly convinced that the reasoning which leads to the conclusion is fallacious, and the conclusion itself is erroneous, that I cannot forbear in expressing the views which I entertain, and which views, it seems to me, are in harmony with sound reason, and in line with the weight of authority upon the subject involved. The right of a municipality to lay a burden upon

a private property for a public improvement is a recognized right, but that right, as I shall later show, rests upon the theory that such property thereby derives a benefit equal to the burden imposed. This is the whole superstructure upon which the right rests, and, except where the power has been conferred upon the municipality by express enactment of the lawmaking power of the state, no attempt has ever been made to create a personal liability against the owner; and, in most of the states of the Union where the question has been raised, it has been held that even such legislative enactment cannot create a personal liability. This proposition will be elaborated in a subsequent part of this opinion. As stated in the prevailing opinion, the court below made a special finding of facts, and stated conclusions of law thereon. The first conclusion of law was to the effect that appellant was entitled to have its lien foreclosed, and the property sold to pay and satisfy the amount of principal and interest and attorney's fees found to be due. The second conclusion of law was "that the plaintiff is not entitled to a personal judgment against the defendants," etc. Considering the importance of the question here involved, I may be pardoned for a full expression of my views, even though in doing so I may embrace in the opinion parts of the record which appear in the prevailing opinion.

Section 4294, Burns' Rev. St. 1894, makes provisions for the payment of street assessments, at the election of the property owners, in 10 equal installments. The right to so pay is by statute made conditional, and, before being granted such right, they are required to do certain things. In two weeks after the assessment is made, they must agree in writing, which writing must be filed with the clerk, that (1) they will not make any objections to the "illegality or irregularity" as to the assessment made against their property; (2) that they will pay the same, with interest thereon. These are two things they must agree to, and, having done this, the time for payment is extended, etc. The consideration for this waiver, as expressed in the statute, is that the property owners will not object to the "illegality or irregularity" of their respective assessments, and will pay the same, with interest. As to what is meant by the promise to pay, will be considered further on. When the improvement in question was made, appellee, with others, took the benefit of the installment plan payment, and executed and filed with the clerk the following waiver: "The undersigned, having been respectively assessed in excess of $50.00 for the construction of North Harrison street between Madison and Taylor streets, in the city of Alexandria, * hereby severally promise and agree, in consideration of having the right to pay their respective assessments for said improvement in installments, that they

will not make any objection to their respective assessments, or to the illegality or irregularity of the same, but will respectively pay the said installments, with interest thereon," etc. The proposition for which appellant contends is made manifest by the following quotation from the brief of counsel: "The appellant seeks in this action not only to enforce the lien of said assessment, with accrued interest, costs, and attorney's fees, against the appellee's real estate, but also to procure personal judgment for said amount against the appellee under the terms of said waiver and agreement so executed by him, in order to protect itself against the possibility of loss in case the appellee's real estate should fail to sell for a sum sufficient to pay said claim and charges." In plain or more direct words, it is the theory of appellant that by the waiver above set out, of the appellee, he became personally liable for the payment of the amount assessed against his real estate. In this connection I might remark that appellant, in its complaint, referred to this waiver, and filed a copy of it with the complaint as an exhibit, yet the complaint is not based upon the waiver, but the bonds, and the waiver is not the foundation of the action.

It is argued that the waiver above set out constituted a valid and binding agreement on the part of appellee to pay the amount of the assessments against his property, and that by such agreement he became personally liable for the amount assessed. The prevailing opinion holds that this waiver did constitute a valid and binding agreement, and created a personal liability against appellee. This is the first time that this question has been directly presented to the courts of this state in its present form, but I think the principle involved has been fully settled. That part of the statute for our construction is as follows: "Should any one of such assessments exceed the sum of fifty dollars, then if the owner of the lot or parcel against which said assessment is made, may, if he, within two weeks after the making of such assessments, shall promise and agree, in writing, to be filed with the clerk of such city or town, and to be spread of record by him in consideration of the right to pay his or their respective assessments in installments, that they will not make any objection to illegality or irregularity as to their respective assessments, and will pay the same, with interest thereon, * * * he or they shall have the benefit of paying said assessments in ten annual installments," etc. This provision of the statute should be considered and construed in connection with the whole statute relative to the subject-matter of which it is a part; for the rule prevails that, for the purpose of arriving at the legislative intent in the enactment of a statute, courts will look to the whole statute, and all of its parts. Parvin v. Wimberg, 130 Ind. 561, 30 N. E. 790, 15 L. R. A. 775; Railway Co. v.

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Backus, 133 Ind. 513, 33 N. E. 421, 18 L. R. A. 729; Board v. Holliday, 150 Ind. 216, 49 N. E. 14, 42 L. R. A. 826. When so construed, I cannot believe that it was the intention of the legislature, by enacting that part of the statute quoted, to create a personal liability against the property owner upon an assessment against his property for a street improvement, or to make it optional with him to create such liability. A statute providing for an assessment against real estate for a public improvement rests upon the theory that by the improvement the property is benefited to the extent of the assessment, and that the owner has received peculiar benefits which the citizens do not share in common. Quill v. City of Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681; Heick v. Voight, 110 Ind. 279, 11 N. E. 306; Ross v. Stackhouse, 114 Ind. 200, 16 N. E. 501. Following that part of the statute under consideration is a provision that any owner of a lot, who has been assessed, "who will not promise and agree in writing, as herein provided, * * shall be required to pay his or their assessments in full when made." It is also provided that the contractor or his assigns may foreclose his assessments as a mortgage is foreclosed, and that he shall recover, in addition to the assessment with interest, all costs and attorney's fees. The waiver to which we have referred was evidently enacted for the benefit of the property owner, to the end that the payment of the assessment against his property should be lightened as much as possible, by extending the time of payment 10 years, etc. This, in many instances, would greatly lighten the burden of the assessment. To this end the board of trustees or the common council or the town or city are authorized to issue improvement bonds, by which a fund may be created with which to pay the contractor. The bonds thus issued are required to bear the names of the streets improved, if the assessment is for street improvements; and "such bonds shall transfer to the contractor and his assigns all the right and interest of such city or town to, in and with respect to every such assessment and the lien thereby created against the property of such owners assessed as shall avail themselves of the provision of this act to have their assessments paid in installments, and shall authorize such contractor and his assigns to receive, sue for and collect, or to have collected, any such assessments embraced in any such bond, by or through any of the methods provided by law for the collection of assessments for local improvements including the provisions of this act." Section 4297. Provision is made in the same section whereby the owner of bonds may proceed "to collect such assessments and foreclose the lien thereof * * and shall recover, in addition to the amount of such bond and the interest thereof, a reasonable attorney's fee, together with the costs

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of such suit." Section 4296 provides that "such bonds, when issued, shall transfer to the owner thereof, the right and interest of such city or incorporated town in and to such assessments and the liens thereby created, with full power to enforce the collection thereof by foreclosure or otherwise under any of the provisions of this act." It is significant to note in this connection what this statute transfers to the owners of the bonds. The bonds are issued by the town or city, and are primarily their property. They may be transferred to any person. There is no provision of the statute requiring the contractor to take the bonds in payment of his work, though this is often done. The town or city may sell them to any one, for the primary and sole object in issuing them is to raise money with which to pay for the improvement. Section 4296. To the owner of the bonds the statute transfers all the right and interest of the town or city in and to such assessments, and liens thereby created. Section 4296. It seems to me that by this statute the legislature studiously avoided making any provision for transferring to the owner of the bonds any personal liability, which, in my judgment, the prevailing opinion erroneously holds was created by the waiver provided for in section 4294. The only thing contemplated by the statute, which the town or city could transfer, is their right and interest in and to the "assessments and liens created thereby." This section of the statute follows the one providing for the waiver and agreement to pay, and it is obvious, therefore, that the legislature did not have in mind that it had created a personal liability against the property owner, or it would have made provision for transferring such liability to the bondholder. It follows from this that, if there is any personal liability, which I affirm does not exist, that liability is in favor of the town or city; for the agreement (if, indeed, it may be dignified by that comprehensive term) is made with the city or town, and the statute makes no provision for its parting with that right.

I have referred to the fact that street improvement bonds go into the commercial markets and are sold. They are purchased by speculators as an investment. Will any one for a moment contend that such bonds go upon the commercial markets and marts of speculation on the faith of the waiver of the property owner that he will not question the legality or regularity of the assessment, and that he will pay his assessment in 10 equal installments? Certainly not. market value is measured by the assessments and the lien created thereby, and the credit of the property out of which alone they can be collected. In many instances, doubtless, the property owner is wholly insolvent. If the waiver creates a personal liability, then the owner of the bonds may waive his right to foreclose the lien of the assessment,-the

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only right he is given by statute by the transfer,-and sue directly upon the agreement to pay. He need not resort to the enforcement of his lien in the first instance. If this can be done, the future, to property owners in towns and cities, is fraught with untold hardships and paved with enormous evils, under the rule established by the prevailing opinion in this case. It will establish class litigation, in that the rich will be annoyed by actions for personal liability, while the owner of the bonds will pursue the only remedy contemplated by statute, and foreclose the lien of the assessment against the property of the poor. Neither can it be said that the contractor performs the work and furnishes the material for the improvement upon the faith of the statutory waiver of the property owner, for the evident reason that the work is completed before assessment is made, and before it is known whether the property owner will avail himself of the right to pay in installments.

Another provision of the statute is worthy of notice, and goes far in aiding in determining the intention of the legislature on the question of a personal liability of the property owner. As we have seen, the statute only authorizes the issuing of bonds for the purpose of creating a fund out of which to pay for the improvement. The lien created by statute is primarily in favor of the city, and is so declared by the express language of the statute (section 4288, Burns' Rev. St. 1894). The statute charges the town or city primarily with the duty of collecting assessments as they become due. The right and interest of the town in and to the assessments and the lien created thereby can only be transferred to the owner of the bonds. While it is the duty of the municipality to collect the assessments as they become due, and they are made collectible as other taxes, etc., the legislature wisely provided a remedy for the bondholder in default of the municipality to perform the duty imposed upon it by statute; and it was provided that "if such city or incorporated town shall fail, neglect or refuse to promptly enforce and collect such assessments when due, the owner or holder of the bonds * * may foreclose such lien or liens as a mortgage is foreclosed," etc. The statute further provides that "the amount realized by the sale of such property, or the payment of such assessment, shall be applied pro rata to the payment of the then outstanding bonds," etc. If it had been the intention of the legislature to create a personal liability against the property owner, or make it pos sible for him to create one against himself, it would have undoubtedly provided a remedy by which such liability could be enforced. The statute under consideration is in derogation of the common law, and must be strictly construed. It should be observed that every provision of the statute looking to the collection of the assessments relates to who

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