dissenting:
I am unable to concur in this decision. I think the judgments of the circuit and Appellate Courts should be affirmed. The provision in the constitution of the State of Kansas, that “dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder,” as interpreted by the legislature and by the Supreme Court of that State, is self-executing, and that interpretation should be adopted and followed. While the liability is statutory, it is one which arises upon the contract of subscription, and an action to enforce it is transitory. The liability is not to the corporation, nor to the creditors of the corporation as a class, but to each individual creditor ah security for “dues from the corporation.” It is not a joint liability of the stockholders, but a several liability of each stockholder. The rule is, that a liability arising out of contract, though created by a constitution or statute, and such constitution or statute providing no remedy, may be enforced by an appropriate common law action in any court having jurisdiction of the subject matter and the parties. The liability, though secondary to that of the corporation and in the nature of a guaranty, is at the same time an original and independent liability, that exists as between the stockholder in his individual capacity and the creditor in his individual capacity, and that is created by the contract of subscription. It is not a right or equity that must be worked out through the corporation itself, and therefore this case is not governed by the decisions in Patterson v. Lynde, 112 Ill. 196, Young v. Farwell, 139 id. 326, and other like cases. The view I have taken is supported by Howell v. Manglesdorf & Co. 33 Kan. 194, Abbey v. Dry Goods Co. 44 id. 415, Cooley’s Const. Lim. (6th ed.) 99, Pollard v. Bailey, 20 Wall. 520, Flash v. Conn, 109 U. S. 371, Fourth Nat. Bank v. Francklyn, 120 id. 747, Dennick v. Railroad Co. 103 id. 11, Fairfield v. County of Gallatin, 100 id. 47, Wincock v. Turpin, 96 Ill. 135, Schalucky v. Field, 124 id. 617, Schertz v. First Nat. Bank, 47 Ill. App. 124, and numerous other authorities.
I am authorized by Justices Magruder and Cartwright to say that they concur in the views I have expressed.