It is true, I think, that there is nothing in Act No. 168 of 1926 to prevent a property owner or any other person from assuming personal liability for a local assessment thereon for the cost of paving. But I cannot concur in the holding that the defendant in this case did assume such liability by signing the notes sued on. That was not the purpose of his signing the notes.
The purpose of the notes was merely to evidence a statutory debt or charge imposed upon the property itself to cover the cost of the paving. In the prevailing opinion it is said that, "It has been uniformly held that statutes thus worded impose no personal liability on the owners of property abutting on the street or alley paved or otherwise improved." But it is held that the property owner, who, in order to gain the privilege of paying this statutory debt or charge in installments, must make himself personally liable therefor. This, I think, was never contemplated by the Legislature. One of the purposes in making provision for these installment payments was to make the statute *Page 263 less burdensome on the property owner who is destitute of ready cash with which to pay a debt imposed upon his property, in some instances, without his consent. Another was to encourage property owners to consent to the making of such improvements. The municipality cannot initiate proceedings to pave and improve streets and alleys under this statute. It can proceed only upon the written petition of the owners of not less than a majority of the lineal front footage of the property abutting on the street or alley to be improved. As to the minority property owners, they have no choice. The municipality, with the consent of the majority, imposes the charge upon all the property according to the front footage.
It is conceivable that none of the property owners would consent to the paving if the total charges therefor had to be paid in one lump sum, in which event the municipality could make no such improvements. But as an inducement to the property owners to consent to the improvement, which is beneficial to the inhabitants at large, the municipality is authorized to permit these assessments to be paid in installments. Without such privilege, it is doubtful whether the property owners of small towns would ever consent to the making of such improvements. The Legislature realized that and this provision for the delay in making the payments was to encourage municipal improvements. In some of the older statutes, the property owners had only four years in which to make the deferred payments, but the one of 1926 allows nine years, which is an additional inducement.
It must be borne in mind that the debt or charge for the paving is levied or assessed *Page 264 against the property and not against the owner of it. The charge against the property may be paid by the owner in one lump sum within ten days after the passage of the ordinance accepting the work and making the assessment against the property. Or it may be paid in installments, 10 per cent. cash and the balance in nine years.
The act, in section 9, specifically provides that "as evidenceof such deferred payments," the property owners shall sign nine promissory notes, "which said notes when paraphed by the municipal Clerk or Secretary to identify them with the ordinancelevying the assessment, shall carry with them in the possession of any bona fide owner the lien and privilege above provided." (Italics are mine.)
The notes are "evidence of the deferred payments" of the statutory charge against the property. The notes are tied to the ordinance levying the assessment by the paraph of the clerk. The notes and the ordinance must necessarily be read and construed together, and when so read and construed, it is manifest that the only debt contemplated is the statutory charge against the property itself.
The charge made against the property by the municipality admittedly does not constitute a personal obligation of the owner and the giving of notes to "evidence" that charge does not convert it into such.
None of the paving acts, beginning with Act No. 113 of 1886 and down to date, were so harsh as to compel the payment of the total charge for paving in one lump sum. The old acts all provide for the payment of a certain percentage of the cost in cash and the balance in "deferred payments," to represent which the municipality issued certificates. *Page 265 The property owners were given time in which to make the payments without request on their part. In the act of 1886, one-third of the cost was to be paid in cash and the balance in two equal installments. In a much later act, Act No. 147 of 1902, one-fifth was to be paid in cash and the balance in five equal annual installments. The deferred payments were to be evidenced by certificates issued and signed by the mayor.
The purpose of the Legislature in granting time to make these payments was to lighten the burden on the property owner, to give him a chance to save his property from sacrifice in case he was caught without ready cash.
It is inconceivable that the Legislature in adopting subsequent acts, such as Act No. 187 of 1920 and Act No. 168 of 1926, in which notes of the property owner instead of certificates by the mayor were to be given as evidence of the deferred payments, intended to make the burden heavier than it was under former acts. And yet that is the result if the property owner, in order to gain the advantage of paying the amount in installments, must assume personal liability for the paving charges.
In the former acts, the municipalities issued certificates evidencing the deferred payments. Under the acts of 1920 and 1926, certificates are not mentioned. But as evidence of the deferred payments, notes of the property owner are to be given. I think these notes were intended to subserve the same purpose as did the certificates under the older acts. They stand in lieu of the certificates, and when the property owner signs such notes, he assumes no personal liability but merely makes *Page 266 an instrument which evidences the deferred payments.
I dissent.