As the rights of the parties may be determined from the facts found and the conclusion of law stated, we have refrained from setting out the material averments of the complaint. It may be said, however, that it proceeds upon the theory that the lease granted to the lessee, for a period of five years, the right to drill gas wells on the leased premises, reserving to appellee 20 acres of the land surrounding the buildings, the boundaries of which appellee was to designate. The lease did not name any time in which such boundaries should be designated, but the complaint avers that appellee was ready and willing to so designate the boundaries whenever the lessee indicated it was ready to drill a well, and, also, that appellee did designate a place where a well might be drilled. The lease provided that, upon failure to drill a well within a designated period, the lessee was to pay the lessor an annual rental of $100. Such a condition in a lease of this character is a valid condition and may be enforced. Indianapolis Natural Gas Co. v. Spaugh, et al., 17 Ind. App. 683, 46 N. E. 691; Indianapolis Gas Co. v. Pierce, 25 Ind. App. 116, 56 N. E. 137; Doxey's Estate v. Service, 30 Ind. App. 174, 65 N. E. 757. In this case it is charged that the original lessee assigned the lease to the Indianapolis Natural Gas Company, and that it assigned it to the Indianapolis Gas Company. The facts specially found establish such assignments. By such assignments the appellant the Indianapolis Gas Company, by operation of law, became the lessee, and acquired all the rights of a lessee thereunder.

Appellants affirm that they, as assignees, were under no obligation to perform any duty under the lease until appellee had marked the boundaries of the portion of the premises upon which a well or wells might be drilled under the terms of the lease, and, as he did not so mark such boundaries, appellants are released from liability. The appellee alleges, and the special findings show, that he was ready and willing to mark the boundaries whenever the lessee evinced a willingness and readiness to drill a well. It is also shown that he designated a place where a well might be drilled, and, in the absence of a finding to the contrary, it will be presumed that the place designated was on that part of the premises where the lease provided a well might be located. But appellants say that the lease gave no right to appellee to designate a place where a well might be drilled, but only to designate the boundaries of the 20 acres surrounding the buildings, within which boundaries no well should be drilled. It is found that neither appellants nor their assignor ever requested appellee "to more definitely fix the boundaries of said portions of the land so leased," and that appellee was "at all times ready and willing to more definitely locate the first well and fix the

boundaries of the portions of said leased premises," etc. These facts bring this case squarely within the rule declared in Indianapolis Natural Gas Company v. Spaugh et al., supra, and upon the point immediately under consideration that case rules. In Kokomo, etc., Co. v. Albright et ux., 18 Ind. App. 151, 47 N. E. 682, which was an action against appellant upon a gas lease which contained a clause that appellant was to drill a well upon "ground to be mutually agreed upon," and where it failed to do so, it was held that appellee could maintain an action to recover rent upon such failure, and it was there said: "Appellant was not bound to drill a gas well. It had a right to do so. It was enough for appellees to be ready and willing to agree with appellant upon a place, and to wait for notice from the appellant that it was ready to locate the well."

It is next contended that, as the appellant the Indianapolis Gas Company had no knowledge of the existence of the lease at the time of the purchase from appellant the Indianapolis Natural Gas Company and the transfer covering only such leases as were on the lease register and shown to be "live leases," the assignment of the contract was never accepted by it, and hence it is not liable under the contract. It was no fault of appellee that his lease did not appear upon the lease register, for with that he had nothing to do. It sufficiently appears that the Indianapolis Gas Company accepted from its immediate assignor "all live leases," and that the lease in suit was assigned to it. Such lease was a "live lease," for it was operative for five years after its execution. It was executed in 1887, and was assigned to the Indianapolis Gas Company in April, 1890. The assignment and acceptance of the lease to and by the Indianapolis Gas Company carried with it all the obligations assumed by the original lessee. Appellant recognized that the lease was a "live lease" and a binding and enforceable contract, for it is found as a fact-and such finding is based upon positive evidencethat in 1892, two years or more after it took the assignment, it made two or more attempts to get appellee to consent to its cancellation. If it was not a "live lease," and appellant was not bound by it, then it could have had no reason or object in securing its cancellation. It is exhibited by the findings that this lease was assigned to appellant the Indianapolis Gas Company, and passed into its possession when the Indianapolis Natural Gas Company transferred all of its leases to it. The contention of appellant upon this point, in view of the established facts, is without merit.

Every material fact essential to appellee's recovery is exhibited by the special findings and abundantly supported by the evidence.

Judgment affirmed.

(36 Ind. App. 706) INDIANAPOLIS GAS CO. et al. v. RAYLE. (No. 5,518.)

(Appellate Court of Indiana, Division No. 2. Dec. 8, 1905.)

Appeal from Circuit Court, Hancock County; Edward W. Felt, Judge.

Action by Asa P. Rayle against the Indianapolis Gas Company and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Kane & Kane, for appellants. L. S. Baldwin, for appellee.

WILEY, J. The questions involved in this case, and the facts upon which the rights of the parties depend, are identical in substance to those presented by the record in the case of Indianapolis Gas Company et al. v. William G. Pierce (decided November 28, 1905; Ind. App.) 76 N. E. 173, and upon the authority of that case the judgment is affirmed.

(36 Ind. App. 495)

SIMOYAN v. ROHAN et al. (No. 5,458.) (Appellate Court of Indiana, Division No. 1. Nov. 14, 1905.)

1. LICENSES-TRANSIENT MERCHANT.

An owner of a stock of goods, who was accustomed to travel from place to place for the purpose of selling such goods, entered into an agreement with a local merchandise company, under which the company was to furnish space in its store for the display and sale of the goods, give the assistance of its regular clerks, and hire an auctioneer, in return for a commission on all sales and the right to purchase at an agreed price all the stock remaining unsold at the end of the sale. The owner made out an itemized bill of the goods, charging them to the merchandise company, but the bill was not signed by either party, and no title passed thereunder. The sale was conducted under the owner's control, and at its close he removed the unsold stock to another city. Held, that the owner was a transient merchant, within the meaning of Act May 15, 1901 (Acts 1901, p. 466, c. 208; Burns' Ann. St. 1901, §§ 7231a72311) defining a transient merchant as one engaged in transacting a temporary and transient business in one locality, or traveling from place to place in the state, and requiring such a merchant to take out a license.

[Ed. Note. For cases in point, see vol. 32, Cent. Dig. Licenses, § 31.]

2. TAXATION LIABILITY OF TRANSIENT MERCHANT FOR TAXES-DOUBLE TAXATION.

If a transient merchant has paid taxes on his goods in one county, he is excused from payment of further taxes for that year in another county on substantially the same stock. 3. SAME-LEVY OF ASSESSMENT-DETERMINATION OF VALUE OF PROPERTY.

The value of the stock of a transient merchant, for the purpose of an assessment under Burns' Ann. St. 1901, § 8441, providing for the assessment of the stock of such a merchant, is to be determined at the time and place the owner temporarily locates and offers the stock for sale.

Rohan and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Vesey & Vesey, for appellant. Barrett & Morris, for appellees.

ROBINSON, J. Suit by appellant to enjoin appellees from levying upon a stock of goods for license fees and taxes required by statute of transient merchants. Upon a special finding of facts, the court stated conclusions of law in appellees' favor. Errors are assigned as to each conclusion of law and in denying a new trial.

Appellant is a resident of the city and state of New York, and for several years has been engaged in selling oriental rugs in various cities and states, and for that purpose it has been his custom to travel from city to city selling the rugs, and in each city to occupy a storeroom for such purpose, which sale usually continued in each city from one to two weeks. The D. N. Foster Company is an Indiana corporation engaged in selling furniture, carpets, rugs, and other goods, and for such purpose occupies, in the city of Ft. Wayne, the three floors of a building, the second floor of which is 50 by 150 feet, one end of which is occupied by the carpet department. About April 1, 1902, appellant was disposing of a stock of rugs in Muncie, Ind., and after April 1st the county assessor of that county assessed appellant's stock for taxes at $1,000, the taxes on which amounted to $16.20 for state, county, and school tax for the year 1902, and taxes for the city of Muncie for that year $10, which sums on May 5, 1902, appellant paid to the proper officers, and received from them receipts in full for such taxes. Appellant imports and receives consignments of rugs from time to time at various cities, and at Muncie he sold rugs to the amount of $4,000. After completing the sales at Muncie appellant removed the remaining stock to Lima, Ohio, at which place he received further consignments, and at Lima he sold rugs to the amount of $2,000. About May 8, 1902, he shipped his stock remaining unsold from Lima, with other rugs and goods added thereto, to Ft. Wayne, Ind., the same being billed to appellant in his own name, where they arrived May 12, 1902. The value of the stock brought to Ft. Wayne was $7,500. After his arrival at Ft. Wayne, having made inquiry for a storeroom and as to the taxes and license fees, he entered into a verbal agreement with the above-named furniture company, by which it was agreed that the company should furnish appellant one of its rooms for the display and sale of rugs, and that they were to be displayed in the carpet room of such company's store; a portion of the company's stock being removed to another part of the room to make place

Suit by Artin Simoyan against John H.

played the rugs, explained their qualities and prices to prospective purchasers, and had sole

charge of such sales and the prices at which the rugs should be sold. The furniture company advertised the sale of the rugs and paid the auctioneer, who was secured by appellant, and the help of its regular clerks and cashier in conducting the sale out of the percentage agreed to be paid as hereinafter found. It was further agreed between the company and appellant that the company should receive for the use of its storeroom, and the services of its clerks and cashiers, and for its profits, the sum of 71⁄2 per cent. on all goods sold at auction and 10 per cent. on all goods sold at private sale, and that the company should have the right to purchase, if it desired, all the stock remaining unsold at the close of the sale at a price agreed upon by the parties; but it was not expected or anticipated that the company would retain or purchase any portion of the rugs, and the company did not purchase or retain any of them. Pursuant to this agreement appellant delivered the stock of rugs in the company's storeroom, a portion of which stock were the rugs from Lima with a large amount of new rugs, and appellant made out a bill, upon which there was an itemized list of the rugs, with numbers and prices; but the bill was an ordinary bill, charging the rugs at the prices thereon named to the furniture company, but was not signed by appellant or the furniture company, and contained no words of sale, transfer, or consignment. The agreement between the appellant and the furniture company was not made in good faith, but was a scheme entered into to enable appellant to avoid the payment of the lawful taxes as a transient merchant and the payment of license fees exacted by law of such merchants. The sale of the rugs was conducted in the carpet room of the furniture company, under the direction, control, and management of appellant, upon five separate days, at which sales rugs were sold at the aggregate price of $3,500, after which appellant packed and removed the rugs unsold to another city for the purpose of making further sales. The company paid the auctioneer and all other expenses, including the auctioneer's license fee, out of 71⁄2 per cent. on the aggregate amount sold at auction and 10 per cent. on the amount sold at private sale. After the rugs were displayed for sale and before the sales began, appellee Baldwin, acting under the direction and by authority of appellee Rohan, treasurer, demanded of appellant that he pay the county treasurer a license fee of $20 per day for each day on which he displayed and sold rugs for the period of 10 days, and at the close of the five days' sale again demanded a license fee of $20 per day for the five days, aggregating $100, which amount appellant refused to pay. After the rugs were displayed and offered for sale the county assessor demanded of appellant the true value in money of such stock; but ap76 N.E.-12

pellant refused to return such value under oath or otherwise within 24 hours after such demand, and thereupon the assessor valued the stock at $7,500, and returned such valuation to the county auditor, who caused the same to be entered at once on the current tax duplicate in the hands of the treasurer, and computed the taxes thereon at the rate for state, county, township, and municipal purposes in Ft. Wayne, which were assessed at $163.50. Thereafter, before the bringing of this action, appellee Rohan, acting through his deputy, Baldwin, demanded of appellant $163.50 taxes, and the further payment of $100 as a license fee, or $20 per day for the five days; and, appellant having refused to pay such sums or any part thereof, thereupon the treasurer levied the same on the stock, and was threatening to take the same into his possession under such levy for the payment of the taxes and license fees, and to sell the same for the satisfaction of such taxes and fees, both and all of which are unpaid. One thousand dollars in value of the goods assessed by the assessor are the same goods assessed by the assessor in Muncie, but appellant failed or refused to exhibit to the assessor the treasurer's receipts for such taxes so paid by him at Muncie; and, when the deputy treasurer demanded of him as to whether the taxes had been paid in any other county in the state, appellant informed him that they had not, and wholly failed and neglected to exhibit to him either of such receipts. Appellant had never offered to pay or tendered such taxes so assessed, or such license fee, or any part thereof.

The court stated as conclusions of law (1) that appellant is, and was at the time the stock was assessed, a transient merchant; (2) that the stock was liable for assessment at the rate for state, county, township, and municipal purposes in Ft. Wayne, less the amount in value so assessed and paid by him at Muncie; (3) that appellant is liable to pay a license fee as a transient merchant at the rate of $20 per day for each day he displayed and offered his stock for sale in Ft. Wayne; (4) that there is due and unpaid from appellant $100, as a license fee payable to the county treasurer, which was duly levied thereon and is a lien on the stock of rugs; (5) that there is due and unpaid, as taxes for state, county, township, and municipal purposes, to the treasurer, $141, which is a lien upon the stock of rugs and was duly levied thereon by the treasurer; (6) that appellant is not entitled to an injunction enjoining the sale of the stock of rugs for the payment of such license fee and taxes; (7) that appellees are entitled to recover from appellant their costs. The judgment was that appellant take nothing by his action, and that appellee recover costs.

Section 6 of the act in force May 15, 1901 (Acts 1901, p. 469, c. 208; Burns' Ann. St.

1901, §§ 7231a-72311), provides: "The words 'transient merchant,' when used in this act shall include all persons, individuals, copartners and corporations, both of principals and agents, who engage in, do or transact any temporary and transient business in this state, either in one locality or in traveling from place to place in this state, selling goods, wares and merchandise, and who, for the purpose of carrying on such business, hire, lease or occupy any building or structure for the exhibition and sale of such goods, wares and merchandise." The act makes it unlawful for a transient merchant to do business without having first obtained a license, and, among other things, provides for the issuing of a license and a license fee. We are not here considering a city or town ordinance passed in pursuance of legislative authority given to municipal corporations to license the business of transient merchants, but a legislative act, which itself fixes the amount of the license fee and the restrictions upon the business. One purpose of the Legislature, no doubt, in enacting the statute, was for the benefit of local merchants, on whom the municipality is partly dependent for its support, and to protect them from an unfair competition; and another probably was to protect the houses and places of business of the citizens of the municipality from the practices of itinerant traders of unknown repute. "The object of the statute," said the court, in Commonwealth v. Crowell, 156 Mass. 215, 30 N. E. 1015, "would seem to be to protect the public from the imposition liable to be practiced upon it by itinerant venders who are not hawkers or peddlers, because hiring, leasing, or occupying a building for their business, but who sell temporarily or transiently in one place, or in traveling from place to place, goods, wares, or merchandise, and who might naturally be supposed to be free, to some extent at least, from the restraints and influences inducing fair and honest dealing which apply to persons established permanently in trade in a given locality. The statute applies to residents and nonresidents, and is not, as we construe it, designed or calculated to prevent fair and free competition, but only to protect the public against fraud, and to place the traffic under what the Legislature, having regard to the character of the business, deems wholesome restraints." But we are not so much concerned on this appeal with the purpose of the Legislature in enacting the above statute as we are with the question, do the facts found by the court bring appellant within the above statutory definition of a transient merchant? We think they do. There was evidence authorizing the trial court to conclude that there was no sale of the goods by appellant to the furniture company, and that the agreement and arrangement between them was not bona fide, but was entered into to enable appellant

to avoid the payment of license fees and taxes. Appellant never parted with his title. to the rugs, and no contract was made that would in any sense bind the furniture company to take the goods.

It is also argued that the goods were improperly assessed for taxes. If the stock of goods at Ft. Wayne was substantially the same stock appellant had at Muncie, the receipt of the treasurer of Deleware county and of the city of Muncie for the taxes paid there for the current year would excuse him from the further payment of further taxes for that year. But the evidence and findings do not show that the stock was substantially the same. He was not assessed in Ft. Wayne with any property on which he had paid taxes in Deleware county. The statute (section 8441, Burns' Ann. St. 1901) does not provide that the assessment shall be made on the value of the stock owned by the transient person on a fixed date, but shall be made on the value of the stock at the time he locates in the place for the purpose of selling or disposing of the goods, and offers to sell or otherwise dispose of them. The statute should not be given a construction that would enable a transient person to escape an assessment on a stock worth $10,000 by producing a treasurer's receipt for taxes previously paid in another county on the stock worth at that time but $100. The question is, what is the true value in money of the stock at the time the statute makes the stock liable to assessment? This value is to be determined at the time and place the owner temporarily locates and offers the stock for sale. It is to be presumed that the assessing officers will assess the property at its true value in money; and, if they do, the owner could not be required to pay taxes on the same property more than once in the same year. It is true that local merchants are not assessed on additions made to their stocks after they have been assessed for the current year; and it is also true that there are some inconveniences and inequalities resulting from fixing the liability of persons and property for taxation by an assessment as of a certain day. But it is, perhaps, the best regulation the law can establish. The most practicable system has been found to be to notice changes in ownership and increased values after the period of assessment at the time for a new assessment. But local merchants are required to list stock on hand on the date fixed, and "all amounts purchased with a view to possession or profit." However, this may be no more than an illustration of the inequalities of taxation. But with the power of the Legislature to impose a tax, as it has imposed it by section 8441, supra, we have nothing to do on this appeal. Appellant placed himself within a class of persons the property of whom is assessed for taxes in a particular way. The findings show that the officers were not

attempting to collect taxes on any property on which the taxes for the current year had been paid. The officers assessed the stock, as the statute requires, at its value at the time it was offered for sale, and the tax receipts do not show that all taxes for the current year had "been paid on such stock of goods."

Judgment affirmed.

(38 Ind. App. 226)

CLEVELAND, C., C. & ST. L. RY. CO. v.
PORTER et al. (No. 5,069.)
(Appellate Court of Indiana, Division No. 2.
Nov. 15, 1905.)

MUNICIPAL CORPORATIONS-ASSESSMENTS FOR
PUBLIC IMPROVEMENTS-ENFORCEMENT-RE-
COVERY OF ATTORNEY'S FEES.

Under Burns' Ann. St. 1901, § 4290, authorizing the recovery of attorney's fees on foreclosure of the lien of an assessment for street improvements, and section 4297, providing that in such foreclosure any number of the owners of property on which the assessment is a lien may be joined as defendants, attorney's fees are recoverable on foreclosure of the lien against back-lying property, instituted subsequent to a foreclosure of the lien against the abutting property.

On petition for rehearing. Petition overruled.

For former opinion, see 74 N. E. 260.

WILEY, C. J. In appellant's brief in support of its petition for a rehearing four propositions are presented and discussed: (1) That appellees having foreclosed the lien upon the abutting property cannot now maintain another suit to foreclose the same lien upon the back-lying property. (2) If there was no assessment against the back-lying property, there can be no foreclosure, and if there was an assessment it was indivisible, and appellees cannot make it divisible and split their demands. (3) That it was error to allow attorney's fees, as they were not claimed in the complaint, nor could more than one attorney's fee be recovered. (4) That there was not due process of law, and appellant was denied an equal protection of the law. It would seem that the first, second, and fourth propositions just stated have been adjudicated adversely to appellant's contention by the decision in the case of Voris v. Pittsburgh Plate Glass Company, 163 Ind. 599, 70 N. E. 249, upon which the original opinion of affirmance was based.

The Appellate Court is bound by the law as declared by the Supreme Court, and hence that case rules the one here as to all similar questions involved and decided. Speaking for myself, I am not in full accord with the rule there declared that, when an assessment is made against abutting property for a street improvement where such property does not extend back from the street line 150 feet, the lien of the assessment attaches to the back-lying property within the taxing district, even where no assessment has been 1 Transfer denied.

made against such back-lying property, and the name of its owner has not been placed upon the assessment roll. Neither am I in accord with the doctrine that the holder of the lien can first proceed against the abutting property, and upon failure to realize upon sale a sufficient sum to discharge the lien, costs, etc., he may subsequently proceed against the next adjacent back-lying property, and so on till all the property within the taxing district is exhausted. This would permit the lienholder to split up his demand and bring as many suits as there are property owners within the taxing district. There might be one, two, three, or more of such property owners, and this would be manifestly unjust and inequitable, and necessarily lead to a multiplicity of suits. This is against the policy of the law. The statute (section 4290, Burns' Ann. St. 1901) declares that such a lien shall be foreclosed "as a mortgage is foreclosed," and that the lien holder shall recover the amount of the bond or certificate, interest, and cost, and "a reasonable attorney's fees." By section 4297, Burns' Ann. St. 1901, it is provided that in such foreclosure any number of "owners of property on which the same [certificates or bonds] are a lien, may be joined as defendants in such suits." Being true, as held in the Voris Case, that while the abutting property is primarily liable, the lien of the assessment attaches to all the back-lying property within the taxing district, whether the assessment or the name or names of the back-lying owner or owners appear upon the assessment roll, it necessarily follows that, in a suit to foreclose the lien, all the back-lying owners, under the statute, are proper defendants, and should be made such, to the end that litigation might be reduced to a minimum; and property owners might not be unnecessarily embarrassed by a multiplicity of suits, and burdened by an accumulation of unnecessary costs and attorney's fees. While it is not probable, it is highly possible, in such case that a half-dozen property owners might own lands adjacent and within the taxing district and, if so, there may be six separate foreclosure suits. If six such suits, then six separate and distinct attorney's fees may be inIcluded and collected, and costs taxed and collected six times.

To illustrate the point I have in mind: Suppose an assessment is made against abutting land for a street improvement in the sum of $500; suppose there are six separate tracts of land adjacent thereto and to each other within the taxing district owned by different persons. The lienholder first brings his suit to foreclose his lien on the abutting property. He is entitled to judgment for the amount of the assessment, the interest thereon, attorney's fees and costs. The property is sold under the decree, and purchased for $12, as one tract of land was