30 Ind. 309 | Ind. | 1868
This was a proceeding to enjoin the collection of an assessment for tho construction of a gravel road, mado under the act of March 11th, 1807. There was an attempt to organize the company under the act of May 12th, 1852. That statute provides “that any number of persons may form themselves into a corporation for the purpose of constructing or owning plank, macadamized, gravel, clay and dirt roads, by complying with the following requirements: They shall unite in articles of association, setting forth the name which they assume, the line of the route, aud the place to and from which it is proposed to construct the road, tho amount of capital stock, and the number of shares into which it is divided, the names and places of residence of the subscribers, and the amount of stock taken by each, shall he subscribed to said articles of association.” 1 G. & H. 474, sec. 1.
The following is a copy of the articles of association :
“Fairview Turnpike.
“Fairview, Fayette county, Indiana, March 8th, 1865. “Wo, the undersigned, agree to pay the several sums an*310 nexed to our names, for the purpose of constructing a gravel turnpike road in conjunction with the Eairview and Connersville Turnpike Road; commencing at the line between Rush and Eayette, in the village of Eairview, running on the section line east, three miles, to the end of the aforesaid Eairview and Connersville pike; the amount of capital stock forty-five hundred dollars, to be divided into ninety shares of fifty dollars each; payments to be made as the stockholders may agree when they meet to elect directors.” Signed with the names of the stockholders, the amount of stock for which each subscribed, with the residence of each.
The defect in'the articles of association is the omission of the corporate name. It is claimed that the heading-, “Eairview Turnpike,” is a sufficient compliance with the requirement of the statute in this respect. We think otherwise. It does not profess to be the name of the company.
The plaintiffs are not shareholders, but are the owners of land within one and one half miles of the' line and terminus of the road.
The last clause of the articles of association tends strongly to show that it was not the intention to become, a corporate body to be governed by the act of May 12th, 1852; for by section 11 of that act it is the province of the directors to require payment from subscribers to the capital stock.
It is claimed that the order of the board of commissioners appointing the assessors, not appealed from, is conclusive on the complainants. There must be a corporation to authorize the collection of assessments. Without this prerequisite the order of the commissioners is a nullity.
The appellants never contracted with the company as a corporation, nor were they connected with the attempted organization in any way to estop them from denying its existence. See Williams v. The Franklin Township Academical Association, 26 Ind. 310.
The court erred in sustaining the demurrer to the amended complaint.
The judgment is reversed, with costs; cause remanded, with directions to overrule the demurrer to the amended complaint, and for further proceedings.
