Another limitation on the right of assessment is contained in the next section of the Civil Code, which prohibits the levy of an assessment while any portion of a previous one remains unpaid, except in certain cases mentioned in the section.

There is no limitation on the number of assessments which may be made; the number may be infinite. The stockholders have no voice in the matter whatever.

As to railroads, an assessment on the capital stock not in excess of ten per cent may be made as often as one a month, whether previous assessments are paid or not.

NONE UNTIL PREVIOUS ONE PAID

Section 333 of the Civil Code is as follows:

§333. No assessment must be levied while any portion of a previous one remains unpaid, unless :

1. The power of the corporation has been exercised in accordance with the provisions of this article for the purpose of collecting such previous assessment;

2. The collection of the previous assessment has been enjoined; or,

3. The assessment falls within the provisions of either the first, second, or third subdivision of section 332. (Enacted March 21, 1872.)

When the exceptions mentioned in this section are considered, the effect of the section is only to limit assessments for paying expenses and conducting the business to cases where "any portion of a previous one remains unpaid."

What is meant by the first subdivision of this section, when considered with reference to the introductory clause, is not clear, for purchase by the corporation at the sale operates as a payment of the assessment on

those shares. It has never been interpreted by the courts.

If a former assessment was waived and rescinded, the power of the directors to levy another assessment under subdivision 1 of section 332, supra, was not exhausted, nor if a portion of a previous assessment was liquidated by offsetting an illegal salary of the president against the assessment on his stock.91

WHAT ORDER OF ASSESSMENT MUST CONTAIN

Section 334 of the Civil Code is as follows:

§ 334. Every order levying an assessment must specify the amount thereof, when, to whom, and where payable; fix a day, subsequent to the full term of publication of the assessment notice, on which the unpaid assessments shall be delinquent, not less than thirty nor more than sixty days from the time of making the order levying the assessment; and a day for the sale of delinquent stock, not less than fifteen nor more than sixty days from the day the stock is declared delinquent. (Enacted March 21, 1872.)

It is said "the proceedings by which the property of a stockholder is declared forfeited, without suit, or personal notice of any kind, must be strictly construed. All the conditions precedent to such forfeiture must exist," and, where the order of sale failed to state the place where the assessment was payable, the assessment and subsequent sale of the stock were void.92 New dates of maturity, delinquency and sale may be fixed by resolution, under section 346 of the Civil Code;93 nor is it any objection that the new date of delinquency is

90 Union Sav. Bank v. Leiter, 145 Cal. 696, 79 Pac. 441.

91 Strouse v. Sylvester, 6 Cal. Unrep. 798, 66 Pac. 660.

92 Ruck v. Caledonia etc. Min. Co., 6 Cal. App. 356, 358, 92 Pac. 194.

98 Smith v. Gate City Oil Co., 160 Cal. 446, 117 Pac. 525; Shannon v. Tooker, 167 Cal. 484, 140 Pac. 10.

more than sixty days after the resolution levying the assessment.

NOTICE OF ASSESSMENT-FORM

Section 335 of the Civil Code is as follows:

§ 335. Upon the making of the order, the secretary shall cause to be published a notice thereof, in the following form:

(Name of corporation in full. Location of principal place of business.) Notice is hereby given, that at a meeting of the directors, held on the (date), an assessment of (amount) per share was levied upon the capital stock of the corporation, payable (when, to whom, and where). Any stock upon which this assessment shall remain unpaid on the (day fixed) will be delinquent and advertised for sale at public auction, and, unless payment is made before, will be sold on the (day appointed), to pay the delinquent assessment, together with costs of advertising and expenses of sale.

(Signature of secretary, with location of office.) (Enacted March 21, 1872.)

A notice which stated that an assessment of ten dollars a share had been levied upon the "capital stock" of the corporation, when the levy was in fact on the subscribed capital stock (as limited in section 331) is, notwithstanding, good; the legislature having the power to prescribe the form of notice, and having done so, the notice corresponding therewith was sufficient.94

If the pleading fails to raise the point that the secretary never certified to the notice, the point can not be raised afterward.95

94 San Joaquin Land etc. Co. v. Beecher, 101 Cal. 70, 81, 35 Pac. 349. 95 Union Sav. Bank v. Rinaldo, 6 Cal. App. 637, 92 Pac. 873.

NOTICE OF ASSESSMENT PUBLICATION AND SERVICE

Section 336 of the Civil Code is as follows:

§ 336. The notice must be personally served upon each stockholder, or, in lieu of personal service, must be sent through the mail, addressed to each stockholder at his place of residence, if known, and, if not known, at the place where the principal office of the corporation is situated,

And be published once a week, for four successive weeks, in some newspaper of general circulation and devoted to the publication of general news, published at the place designated in the Articles of Incorporation as the principal place of business, and also in some newspaper published in the county in which the works of the corporation are situated, if a paper be published therein.

If the works of the corporation are not within a state or territory of the United States, publication in a paper of the place where they are situated is not necessary.

If there be no newspaper published at the place designated as the principal place of business of the corporation, then the publication must be made in some other newspaper of the county, if there be one, and, if there be none, then in a newspaper published in an adjoining county. (Amended March 30, 1874; amendts. 1873-4, p. 206.)

The statute does not prescribe any time before or after which this notice shall be published. The court, construing a complaint which alleged that "upon making the resolution as aforesaid" (the order mentioned in the preceding section) and that the notice was published at the places and for the duration of time required by the statute, held the complaint sufficient.96 Where the stockholder had actual notice of the sale, the failure to publish this notice in a county where a part of the corporation's irrigation canal was located was

96 Bottle Mining etc. Co. v. Kern, 9 Cal. App. 527, 532, 533, 99 Pac.

Cal. Corp.-31.

held not material.97 Also where notices were mailed to the stockholder it is presumed that they were received, if there is no denial of that fact.

DELINQUENT NOTICE-FORM

Section 337 of the Civil Code is as follows:

§ 337. If any portion of the assessment mentioned in the notice remains unpaid on the day specified therein. for declaring the stock delinquent, the secretary must, unless otherwise ordered by the board of directors, cause to be published, in the same papers in which the notice hereinbefore provided for shall have been published, a notice substantially in the following form:

(Name in full. Location of principal place of business.) NOTICE.-There is delinquent upon the following described stock, on account of assessment levied on the (date), (and assessments levied previous thereto, if any) the several amounts set opposite the names of the respective shareholders, as follows: (Names, number of certificate, number of shares, amount). And in accordance with law (and an order of the board of directors made on the [date], if any such order shall have been made), so many shares of each parcel of such stock as may be necessary, will be sold, at the (particular place), on the (date), at (the hour) of such day, to pay delinquent assessments thereon, together with costs of advertising and expenses of the sale. (Name of secrętary, with location of office.) (Enacted March 21, 1872.)

If the publication of this notice is not begun at least fifteen days before the day appointed for the sale, it, and all proceedings thereafter, are invalid; after that time has arrived, if the publication has not begun, the directors do not have even the power to waive further proceedings in the matter of the sale of the stock and

97 Stephens v. Lemoore Canal etc. Co., 22 Cal. App. 579, 587, 588, 135 Pac. 707.