
    The Commissioners of Knox County v. William J. McComb and Joshua Davis, executors of Robert McComb deceased.
    1. By a special act of tbe legislature, passed February 26, 1846, the commissioners of Knox county were authorized to subscribe, on behalf of their county, a certain amount to the capital stock of a railroad company, and, “whenever they may deem the same expedient, to sell and transfer any and all stock so subscribed, in order to pay off the indebtedness which may arise under this act: Provided, however, that no sale or transfer of the stock shall be of any force except upon condition of its producing its full par value, and the actual extinguishment or cancellation of an equivalent amount of obligations of tbe county created under this act.” The commissioners accordingly subscribed such stock, and issued the bonds of the county in payment therefor.
    By the 25th section of the “ act to provide for the creation and regulation of incorporated companies in the State of Ohio,” passed May 1, 1852, it was enacted that “ the commissioners of any county . . . which has heretofore subscribed to the capital stock of any railroad company, and has issued, or shall hereafter issue, any bonds for the payment of such subscription, are hereby authorized to sell the said stock, or any part thereof, and on such terms as they shall deem to be for the-interest of said county, and may apply the proceeds of such sale to the payment of the bonds of such county.
    
      Held — That the act of 1852, by necessary implication, repealed the limitation on the power of sale imposed by the proviso in the act of 1846.
    2. By said act of 1846, it was declared “ that the net profits or dividends upon the stock subscribed by the county shall stand pledged for the payment of the indebtedness and interest which may become demandable from the county under this act.” Upon suit brought by the county commissioners to compel payment of the price at which defendant had purchased a portion of said stock from the county in 1853 — Held: That said statutory pledge of the profits and dividends of said stock was intended as a security to the holders of the county bonds issued in payment of said subscription; and, in the absence of any assertion by them of rights under this statutory pledge, the purchaser cannot invalidate his contract of purchase, on the ground that its terms impair the obligations of the bondholders’ contract.
    Error to tbe court of common pleas of Ricbland county. Reserved in tbe district court.
    Tbe questions in this case are raised by tbe pleadings m tbe original action.
    Tbe plaintiffs brought tbeir action in tbe court below to enforce a contract for tbe sale by them to Robert McComb of certain stock in tbe Columbus and Lake Erie Railroad Company, which bad been subscribed by tbe commissioners of Knox county, under tbe authority of an act passed February 26,1846.
    Tbeir petition was as follows:
    “Tbe said commissioners of Knox county, Ohio, plaintiffs, complain of tbe said William J. McComb and Joshua Davis, jr., executors of tbe last will and testament of Robert McComb, deceased, and say that tbe said commissioners were-on the 30th day of September, A.D. 1853, the lawful owners of one hundred shares of the stock of the Columbus and Lake Erie Railroad Company, and being such owners, they did, on the said 30th day of September, A.D. 1853, transfer the said stock to the said Robert McComb, then in full life, and the said Robert McComb, in consideration thereof, then promised the said plaintiffs, in writing, that he would pay them, the said commissioners, therefor, the sum of five thousand dollars, on or before the first day of June, A.D. 186T, with interest on said sum from and after the 1st day of October, A.D. 1853, the said interest to be payable annually, on the 1st day of October of each year. It was further provided by the said writing, that the said principal sum,.or any part thereof, might be paid at the office of the county treasurer of said Knox county, either in money, or in the bonds of said county, which had been issued by the said county in payment of its subscription for stock in said railroad company, such payment to be evidenced by the said treasurer’s receipt therefor; and it was further provided, that in like manner the interest to accrue on said sum should be paid to the said treasurer, at his office, either in money or by the application of the interest that had accrued upon the above-named bonds, issued by the said county. A copy of said writing and the indorseiment thereon is hereto attached, marked ‘A,’ and made a ¡part of this petition. ■ v
    “ Plaintiffs further say, that the said Robert McComb did -on the said 30th day of September, A.D. 1853, and at the time of said purchase of stock, and as a part consideration i therefor, execute and deliver to the said plaintiffs, a written -pledge and hypothecation ■ of said one hundred shares of i stock, to secure the payment of said sum of five thousand ■ dollars and its interest as aforesaid. A copy of said pledge is hereto attached, marked ‘ B,’ and made a part of this petition.
    “Plaintiffs further say, that the said Robert McComb did not in his lifetime, nor have his said executors since his death, .paid any sum whatever on said obligation, as principal or ¿interest, either in money or in the bonds of the said Knox county, ,or by tbe application of any interest that had accrued on the said county bonds.
    “ And plaintiffs further say, that there is now due to them, from the said defendants, as executors as aforesaid, for interest accrued on the said obligation, the sum of four thousand seven hundred and eighty-eight dollars, with interest on the same since the 1st day of October, A.D. 1865.
    “ Plaintiffs, on the 13th clay of December, A.D. 1865, presented to the said defendants, as executors as aforesaid, a true account of the aforesaid claim against the estate of the said Bobert McComb, deceased, duly authenticated, and demanded their indorsement thereon of its allowance as a valid claim against said estate, which indorsement and allowance the said executors refused to make, but on the contrary rejected the said claim.
    “ Plaintiffs ask judgment against the said defendants, as executors as aforesaid, for the sum of four thousand seven hundred and eighty-eight dollars, with interest on the same, since the 1st day of October, A.D. 1865.”
    COPT OK PAPER, MARKED “ A.”
    “In consideration of one hundred shares of the stock of the Columbus and Lake Erie Bail-road Company, transferred to him by the county commissioners of Knox county aforesaid, the sum of five thousand dollars, on or before the first day of June, A.D. 1867, with interest to be paid annually on the first day of October, from and after the first day of October, A.D. 1853, payment of which said principal sum or any part thereof may be made at the office of the county treasurer of said county, in money or in the bonds of said Knox county, issued in payment of said county subscription, for its stock in said railroad company, to be evidenced by said treasure'r’s receipt therefor, and in like manner the interest to accrue on this obligation shall be paid to said treasurer, at ids said office, in money, or by the application of interest accrued upon the bonds above named of the county.
    “ Given under my hand this 30th day of September, A.D, 1853.
    Bobert McComb.”
    
      Said writing is indorsed as follows:
    “ The payment of the money within named is secured by a pledge or hypothecation of the stock within named, to the said county commissioners, bearing even date herewith.”
    COPT OK PAPER, MARKED “ B.”
    “The undersigned, Robert McComb, being indebted to the county commissioners of Knox county, Ohio, in the sum of five thousand dollars, payable on or before the first day of June, A.D. one thousand eight hundred and sixty-seven, at the office of the county treasurer of said county, with interest thereon payable annually on the first day of October, A.D. 1853, as by the written undertaking to said county commissioners, bearing even date herewith, more fully appears, hereby pledge and hypothecate to said county commissioners of Knox county, Ohio, as a security for the payment of said indebtedness according to said undertaking, the same one hundred shares of the capital stock of the Columbus and Lake Erie Railroad Company, which were transferred to him by said commissioners, as the consideration for said indebtedness, the certificate of which stock bears even date herewith, and has written upon the same a memorandum of the fact of this pledge, and is numbered twenty-six. This pledge is made subject to the following terms and conditions:
    
      “First. Lf said indebtedness shall be well and truly paid, with the interest to accrue thereon according to the terms and conditions of said undertaking, this pledge is to be void.
    “ Second. H default be made in the payment of the principal sum of said indebtedness, or of any instalment of any interest to accrue thereon, for the period of fifty days after the same shall become due and payable according to the terms of said undertaking, the said commissioners are hereby fully authorized and empowered, at any time after thirty days’ notice of the time and place of sale, published in some newspaper of general circulation in said Knox county, to sell and dispose of said stock at public vendue, at the court house door in said county, for the best price to be had therefor in money. The proceeds, after paying necessary expenses, t® be applied in payment of tbe principal and interest of said indebtedness, and the residue, if any, to be paid over to him, or his assigns (subject to his pledge) of said stock. Provided, however, that he or his said assigns shall have the right, at any time before such sale is concluded, to redeem said stock from liability to be sold, by paying of the amount due of principal and interest according to said undertaking of said indebtedness, with all necessary expenses incurred with a view to such sale.
    “ And provided further, that in case of the death of the grantor of this pledge, no sale shall be had of said stock until after the expiration of eight months after the death of said grantor.
    “ Thvrd. If a consolidation shall be effected according to law of the said Columbus and Lake Erie Railroad Company and the Mansfield and Sandusky City Railroad Company, whereby the grantor of this pledge shall become entitled to stock in the new company, to be formed by such consolidation, said grantor, at the time of receiving said new stock, shall pledge the same to said county commissioners, subject to the same conditions annexed to this pledge, and thereupon this pledge shall become void.
    “Fourth. The grantor of this pledge, or his assigns thereof, shall have the right, at any time hereafter, to have this pledge cancelled and given up, upon substituting in lieu thereof any other security acceptable to the commissioners, and in case of a partial payment of the principal sum of said indebtedness, the grantor shall have the right to have a proportional part of the stock hereby pledged, or which may hereafter be pledged in the new company, released.
    “Robert McComb.
    
      “September 30th, 1853.”
    To this petition the defendants answered as follows:
    “The said defendants for answer to the petition of the said plaintiffs say, that by a special act of the general assembly of the State of Ohio, entitled ‘ An act to authorize the commissioners of Knox and other counties to take stock in a railroad, passed February 26, A.D. 1846,’ the plaintiffs were authorized on certain conditions, in said act specified, to become subscribers, to an amount not exceeding one hundred thousand dollars, to the capital stock of any railroad company, by whose road a direct communication should be opened through said county of Knox, and to or near its county seat; and in payment of the stock subscribed by them, they were further authorized by said act to issue bonds or obligations of said county, of equal amount,, payable to such company, to be negotiable, to bear interest at the rate of six per cent, per annum, payable annually at the treasury of the county, and to be redeemable at such times as they might deem expedient, but not over twenty years from date.
    “ The plaintiffs, by virtue of the powers conferred upon them by said act, subscribed one hundred thousand dollars to the capital stock of the Columbus and Lake Erie Railroad Company, and in payment thereof, in pursuance to the provisions of said act, issued the bonds of said county, five hundred of which were of the denomination of $100 each; and one thousand of which were of the denomination of $50 each a portion of each denomination being dated November 1, 1847, and the remainder March 1, 1848, and all of which were made payable June 1, 1867, with interest payable on the 1st of January of each successive year. A true copy of the body of all of said bonds, date, number, and amount excepted, is hereto attached, marked “ A,” and made a part of this answer.
    
      “ For the payment of the indebtedness of the county thus created, and the interest thereon, it was expressly provided among other things by said act, that the faith of the county^ and the net profits or dividends upon the stock so subscribed, should stand pledged to the holder of said bonds.
    
      “ The plaintiffs were also by said act specially authorized, in order to pay off such indebtedness, to sell and transfer, whenever they might deem the same expedient, any or all of the stock so subscribed or owned by said county; but it was expressly provided by said act, that no sale or transfer of the stock thus owned by the county should be of any force, except upon condition of its producing its full par value, and the actual extinguishment or cancellation of an equivalent amount of said obligations of said county, created under said act. Defendants further say, that the one hundred shares of stock in the petition mentioned were parcel of the stock so subscribed and paid -for by the plaintiffs as aforesaid, and the par value thereof on the said 30th day of September, A.D. 1853, was five thousand dollars in money. The alleged sale and transfer of said stock did not produce its full par value, nor did it extinguish or cancel an equivalent or any amount of the said obligations of said county created under said act. The only consideration of said sale and transfer of said stock was tl^e supposed obligation of said Robert McOomb, set forth in the petition, and the only consideration of the said supposed obligation of said McOomb was the said sale and transfer of said stock.
    
      “ Defendants further say, that at the time of the alleged sale and transfer of said stock to the said Robert McOomb, all the said bonds of said county, issued under the act aforesaid, amounted to one hundred thousand dollars as aforesaid, were outstanding and unpaid, and constituted a subsisting indebtedness against said county; and they further say, that the principal part of the same is still outstanding and unpaid, and a subsisting indebtedness against said county.
    “ Defendants fm’ther say, that the sale and transfer of said stock so made by the plaintiffs as aforesaid, was not only without legal authority and power on their part, but was illegal, and in violation of the said statute of the State of Ohio, and the same was wholly void, and conferred no valid right upon said McOomb to said stock. They also say that the supposed obligation and agreement of said McOomb, in the petition set forth, was without consideration and is null and void.”
    COPT OK BOND MARKED “ A.”
    The county of Knox, in the State of Ohio, doth acknowljdge to owe to the Columbus and Lake Erie Railroad Company or bearer, the sum of fifty dollars, to be paid at the treasurer’s office of said county; on the 1st day of June, 1867, with interest at the rate of six per centum per annum, on the successive first, days of January of each year, bn presentation to the treasurer of the respective interest warrants hereto attached. This bond, however, may be paid at any time hereafter, at the pleasure of -the commissioners of said county, at the treasurer’s office aforesaid, provided the said commissioners shall give three months’ notice thereof by publication in some newspaper to be printed in the town of Mount Vernon; in which case, if the said commissioners shall provide the necessary means of payment, and the holder neglect to present this bond for payment, and surrender the unpaid interest warrants, then the interest herein shall thenceforth cease to accrue. This bond is No. 657, of a series of one thousand bonds of this tenor and date, issued under the statute of Ohio, entitled “ An act to authorize the commissioners of Knox and other counties to take stock in a railroad, passed February 26th, 1846,” and the said county doth hereby pledge its faith, and the net profits and dividends of its stock in said railroad, to the holder of this bond, for the payment of this indebtedness and interest, and doth hereby obligate itself, that its officers shall carry into execution the fourth section of said statute, according to its true intent and meaning.
    “In witness whereof, the commissioners and auditor of said county have hereunto set their names and1 the seal of said county.
    “J. Withrow,
    [seal.] “ Robert Graham,
    “Wm. Babcock,
    
      Commissioners of Knox Cotmty.
    
    “M. M. Beam, AvKitor.
    
    
      u Ma/rehlst, 1848.”
    To this answer the plaintiffs demurred, on the ground that it did not contain sufficient facts to bar their action. This demurrer was overruled, and the plaintiffs excepted.
    Thereupon the plaintiffs replied as follows:
    
      “ First. • The said plaintiffs for reply to the answer of the said defendants say, that the said plaintiffs before the commencement of this suit, and on, to wit: the 28th day of May, A.D. 1866, were prepared with five thousand dollars of the bonds issued by the said county of Knox, in the manner set forth in the answer of the said defendants, which said' bonds were then outstanding and subsisting liabilities against the said county of Knox; and they further say, that they then presented the said bonds to the said defendants, and offered to cancel the same upon the said defendants paying to the said plaintiffs the amount then due to plaintiffs, upon the obligation of the said Robert McComb, deceased, set forth in the said petition, but the said defendants then refused to pay the same, or any part thereof.
    
      “ Second. The said plaintiffs for a second reply to the answer of the said defendants say, that they deny that the obligation of the said Robert McComb, set forth in their said petition, was given without consideration, or was or is null and void.”
    To each of these replies the defendants demurred, and their demurrers were sustained, and the plaintiffs excepted.
    Judgment was thereupon entered for the defendants.
    To reverse this judgment, a petition in error was filed in the district court.
    The errors assigned were:
    1. That the court of common pleas erred in overruling the demurrer to the amended answer.
    2. In sustaining the demurrer to the first reply.
    3. In sustaining the demurrer to the second reply.
    
      4. In giving judgment for the defendants.
    The district court reserved the case to this court for decision.
    
      W. K. Smith and William McClelland for plaintiffs:
    1. The sale of stock to McComb was authorized by the local law of 1846.
    The sale must be one producing the full par value of the stock. The par value is an amount equal to the stock. This is expressly decided in Town of Newark v. Elliott et al., 5 Ohio St. 113.
    This sale of $5000 in stock was for the sum of $5000, and was therefore a sale at par. ■
    But it is said that this was a sale on credit, and that a sale at par is a sale for cash. This point has been settled by this court against the claim of the defendants. Newark v. Elliott, 5 Ohio St. 113.
    
      We call particular attention to the case of Clarke v. The City of Rochester, 28 New York, 605.
    In the case at bar, it is'true that the stock was transferred at the time of the sale, but it is also true that it was, eo instante, transferred back again to the county commissioners as security for the payment of the bond of McCoinb.
    After the execution of this pledge the title to the stock was and now is in the commissioners, and it cannot be divested until full payment is made.
    It is urged against the validity of this sale that it did not produce the actual extinguishment or cancellation of an equivalent amount of county bonds, and therefore was pro* hibited by sec. 5 of the act of 1846.
    The true interpretation of that section is, that the legislature did not intend that the sale should, at the time it was made, produce an actual extinguishment or cancellation of an equivalent amount of bonds, but that it should furnish the means 'for cancelling them at their maturity, and when the terms of sale were fully complied with.
    Eor rules for the interpretation of statutes, see Burgett v. Burgett, 1 Ohio, 221; Spicer v. Gesleman, 15 Ohio, 341.
    If McComb had paid in bonds, they would have been can-celled. If he had paid in money, the commissioners would have had, at the maturity of the bonds, $5000 in money with which they could have cancelled an equivalent amount of bonds.
    The commissioners are sworn officers of the law, and it presumes that they will do their entire duty. Bank of the United States v. Dandridge, 12 Wheaton, 64; Ward v. Banders, 2 Ohio St. 247.
    
      2. The local law of February, 1846, which imposed the conditions and limitations insisted upon by the defendants, was itself repealed, by the 25th section of the act to regulate railroad companies, passed May 1, 1852. S. & C. Stat. 282.
    This law is repugnant to the provisions of the local law of 1846. That law provided that the stock should sell for its par value. This authorizes the sale upon “ such terms as the commissioners shall deem to be for the interest of the county.” That law required the sale to produce the actual extinguishment or cancellation of an equivalent amount of the bonds issued by the county. This requires no such thing, but allows the commissioners to apply the proceeds of the sale to the payment of the county bonds or not, in their discretion. The two acts cannot stand together; they-flatly contradict each other.
    The intention of the legislature to repeal the former law is plain. They have used language that clearly expresses such intention. The language is, “the commissioners of any county which has heretofore subscribed to the capital stock of any railroad company, and has issued any bonds, are hereby authorized,” &c.
    If*this act of 1852 be looked at in the light of the public history of the country, it will be found that it was the intention of the law-makers to repeal the local act of 1846. The rule of construction referred to is stated in Aldridge v. Williams, 3 How. 24.
    The legislature must have intended this general law to apply to these special acts, and, as we believe, to those where there was a limitation on the power of alienation. Without such limitation the county had the power to sell. The power to acquire implies the power to alienate, unless there is a qualification of that power in the charter. Newark v. Elliott, 5 Ohio St. 121.
    Repeal by implication is well defined in the books. Sedgwick on Stat. and Const Law, p. 124; Nassa v. Com., 25 Penn. St. 126; Fair v. Bracket, 30 Verm. 344; Com'rs of Vermillion County v. Potts, 10 Ind. 286; De Paw v. City of Albany, 22 Ind. 204; Johnston's Estate, 33 Penn. St. 511; 
      King v. Carter, 4 Burr. 2026; King v. Davis, 1 Leach's Cases, 306; Com. v. Crowley, 1 Ash. 181; Moore v. Vance, 1 Ohio, 1; Lorain Plank Road v. Cotton, 12 Ohio St. 263; Curwen's Introduction to vol. i. Rev. Stat. p. 17; Davies v. Farnham, 3 How. 636; Bartlett v. King, 12 Mass. 545; Mullen v. People, 31 Ill. 444; Wakefield v. Phelps, 37 N. H. 295; Norris v. Crocker, 13 How. 429; Com. v. Com'rs. of Allegheny County, 40 Penn. St. 348; Amey v. City of Allegheny, 24 How. 364.
    These cases show how far the courts have gone in repealing statutes by implication, .and, we believe, fully support our position that the local act of 1816 was repealed by the general law of 1852.
    
      It. C. FLu/rd, A. G. Thu/rmcm, PE. PE. Hunter, and H. G. Hedges for defendants.
    
      R. C. Hu/rd for defendants:
    It is no longer in Ohio a question that quasi corporations, like the plaintiffs, can exercise no power which is not conferred upon them by statute; and that all grants of power to them are subject to strict construction. This doctrine, dften recognized and applied by this court, is succinctly stated in the case of Treadwell v. Commissioners, etc., 11 Ohio St. 190; Herzo v. San Francisco, 33 Cal. 134.
    Where, then, did the plaintiffs obtain their power to sell the stock, which was the subject of the contract in question, and what was the nature and extent of the grant ?
    I. The commissioners of Knox county derived whatever power they had'to sell the stock of the county in the Columbus and Lake Erie Railroad Company, from the act of February 26,1816.
    1. This act is special, or, as similar statutes are sometimes called, particular, in its provisions, and limited in its application to six counties.
    The power of ¡tole is conferred in sec. 5, and is guarded with clear limitations, which leave no doubt that the legislature meant that the powers conferred by it should be exercised strictly in. accordance with its provisions, and that all rights accruing under it should be permanently fixed by it.
    It is said, however, that these restrictions upon the power of sale have been removed; that this portion of the act of February 26, 1846, has been repealed by the 25th section of the “ act to provide for the creation and regulation of incorporated companies in the State of Ohio,” passed May 1,1852. S. & C. Stat. 282.
    This act contains no words of repeal. If, therefore, it operates to repeal the act of February 26, 1846, or any part of it, it must be by implication, and that on the ground of an irreconcilable inconsistence between the provisions of the two acts.
    2. Repeals by implication are not favored; and one affirmative statute shall not be held to repeal another if they can be reconciled by any mode of interpretation. Ludlow's heirs v. Johnston, 3 Ohio, 564; Dodge v. Gridley, 10 Ohio, 173; Fosdick v. Village of Perrysburg, 14 Ohio St. 472; 6 Bac. Abr., tit. “Statutes,” D [373]; Foster's case, 11 Rep. 63; 1 Roll Rep. 88; 10 Mod. 118; Weston's case, Dyer, 347; Bro. Parl. pl. 9; Hard. 344; Gregory's case, 6 Coke Rep. 19, b.; Comyn's Dig.; Warder v. Arell, 2 Wash. Va. Rep. 282; Town of Ottawa v. The County of La Salle, 12 Ill. 339; Beriden v. Barbin, 13 La. An. Rep. 458; Attorney-General v. Brown, 1 Wis. 513.
    3. The acts of February 26,1846, and May 1,1852, are not inconsistent, and therefore the latter does not, to any extent, repeal the former.
    An examination of the statutes in force at the time of the passage of the act of May 1, 1852, will show an appropriate “ subject for that law to operate upon,” without extending its provisions to the special subject which had already been so fully and particularly provided for in the act of February 26, 1846.
    Prior to May 1, 1852, numerous special acts had been passed authorizing cities, counties, and townships to subscribe various amounts to the capital stock of railroad, turnpike, and bridge companies. In many cases no power was granted to sell the stock, the act being wholly silent on the subject. Instances of this sort are found in the local laws from 1845 to 1851, vol. 43, p. 232; vol. 44, pp. 24, 74, 178, 206; vol. 45, p. 65; vol. 46, pp. 73, 235, 275; vol. 47, pp. 155, 161, 167, 170, 172, 178; vol. 48, pp. 245, 257, 260, 266, 282, 294, 316, 317; vol. 49, pp. 45, 143.
    In some cases, the power to sell was withheld by necessary implication. Instances of this sort will be found in vol. 46, pp. 165, 235, 276; vol. 47, pp. 156, 161, 176, 179; vol. 48, pp. 251, 261, 295, 316; vol. 49, p. 782.
    ■ In other cases-, the power to sell was expressly granted, accompanied with an injunction that the proceeds should be applied to the payment of the bonds. Instances of this sort will be found in vol. 43, pp. 46, 109, 133; vol. 45, p. 87; vol. 46, p. 44; vol. 49, p. 433.
    In other cases, the power to sell was granted without any restrictions. Instances of this sort will be found in vol. 49, pp. 461, 524; vol. 44, p. 109.
    In the acts above mentioned, which contain no grant of power to sell the stock, we find an ample subject for the law of May 1,1852, to operate upon; and there was a manifest propriety in providing for such cases by a general statute.
    II. The act of February 26, 1846, did not authorize the commissioners to make ^he contract on which they have sued.
    It having been shown that the plaintiffs derived their power to sell the stock under the act of February 26,1846, that act must be looked to for directions as to the execution of the power. Baltimore v. Porter, 18 Md. Rep. 284.
    This contract was not. authorized by the act of February 26, 1846, because: .
    1. It failed to accomplish the object for which a sale was authorized, viz.: the payment of a corresponding amount of the county bonds issued under that act.
    2. The attempted sale was a violation of the provisions of the fourth section of the act. The pledge, therein contained, of the “ net profits and dividends upon the stock,” create a vested right in the purchasers of the bonds. It was designed as a specific and valuable security to the bondholder, and was distinctly held forth in the bonds to facilitate their negotiation.
    3. The people of the county had a special interest in an adherence to the terms of the law. It may well be supposed that the people authorized the subscription on condition that ■the statute would be adhered to.
    
      A. G. Thurman for defendants:
    I. The contract in question was not authorized by the act of February 26, 1846 (44 O. L. L. 192), but was and is void, because:
    1. It was a sale upon credit, which was not authorized by the act. Parsons on Contracts, 49, 50; Story on Sales, 54, sec. 70; Delafield v. Illinois, 2 Hill, 173; idem, 26 Wend. 223, 224; 1 Campbell's N. P. R. 258; Story on Agency, 78.
    2. It was not a sale for the “ full par value” of the stock, as required by the act. Sec. 5, proviso; Illinois v. Delafield, 8 Paige, 537; Delafield v. Illinois, 2 Hill, 172; Com'rs of Gallia v. Holcomb, 7 Ohio, pt. 1, 233; Straus v. Eagle Ins. Co., 5 Ohio St. 61; Bank of Chillicothe v. Swayne, 8 Ohio 257; Treadwell v. Commissioners, 11 Ohio St. 190; Head v. Providence Ins. Co., 8 Cranch. 127; Hopple v. Brown Tp., 13 Ohio St. 311.
    3. It did not produce “ the actual extinguishment or cancellation of an equivalent amount of obligations of the county,” as required by the act.
    The fact is undeniable, and the legal effect of it is declared by the statute itself, to wit: that the sale or transfer shall not be “ of any force.” No language could be more explicit or comprehensive — none could more clearly convey the supreme legislative will. Thei’e is no room for construction. Sedgwick on Stat., etc., 231; Bosley v. Mattingley, 14 B. Monroe, 89; Fisher v. Blight, 2 Cranch, 358, 399.
    4. The sale to McComb was repugnant to section 4 of the act. It violated the pledge in favor of ■ the bondholders, it took the dividends and profits from the commissioners and gave them to McComb, and it annulled the provisions for the payinent of interest and creation of a sinking fund. And in this connection, note that the interest to be paid by the county on her obligations, and that to be paid by Mo-Comb on his contract, were payable, not upon the same, but upon different days, remote from each other.
    II. Were the commissioners authorized to make the sale by section 25 of the general incorporation act of May 1, 1852? (S. & C. 282.)
    The whole matter is in a nut-shell. The act of 1846 is not expressly repealed by that of 1852. It is not named, nor is there in the act of 1852 any general provision that former acts inconsistent with section 25 ai’e repealed. Yet the general assembly had the subject of repeals in view, for in section 15 of the act (S. & O. 279) they provide for repealing certain provisions of charters. But not a word, either general or special, repealing said act of 1846.
    The question then is, was it repealed by implication? I confidently affirm that it was not, and for the following reasons:
    1. Both statutes are affirmative. And the rule is, that: “ When two affirmative statutes exist, one is not to be construed to repeal the other by implication, unless they cam, be reconciled by no mode of vnterpreiation.” Dodge v. Gridley, 10 Ohio, 178; Cass v. Dillon, 2 Ohio St. 611; Ludlow v. Johnson, 3 Ohio, 553.
    The statutes under consideration can be reconciled by applying each to its proper subject.
    2. There are subjects for both statutes to operate upon, and in such a case there is no repeal by implication. The principle is well stated by Pendleton Pres., 2 Wash. Va. Rep. 282.
    3. The act of 1846 is special, particular, and positive. That of 1852 is general and affirmative. It contains no negati/ve words.
    
    That there is no repeal by implication in such a case, was clearly decided in the well-considered case of Fosdick v. Perrysburg, 14 Ohio St. 485 et seq.
    
    The principle was tersely and well stated by Black, C.J., in Brown v. County Commissioners, 21 Penn. St. R. 43.
    
      The rule is as old as Gregory's Case, 6 Coke's Rep. 196. And see Sedgwick, 486.
    No one will pretend that sec. 25 of the act of 1852 would be without meaning if it did not repeal the act of 1846.
    4. The act of 1852 does not repeal that of 1846 by implication, because that would be inconsistent with the vested rights of the holders of the county bonds, secured to them by sec. 4 of the act of 1846.
    
      H. H. Hunter for defendants:
    I. The contract of sale to the defendants’ testator, of the stock, by the plaintiffs, and their transfer of the same to him, is void ah initio, by reason of the plaintiffs, in making the same, having exceeded the power conferred upon them by the statute.
    The plaintiffs in making a ease entitling them to recover by virtue of a special statutory power, must show by averment not only the statutory grant of power, but also, that in the exercise of the power they conformed to the prescribed ■ conditions and limitations. This has not been done in this case. Their petition therefore is insufficient.
    2. If it were legally competent to disregard the question of pleading referred to, and consider the case in reference to the special act and the exhibits, A and B of the petition, we then insist that it appears negatively, that the transaction was void under the statute.
    The two instruments are to be read together as parts of one transaction. Thus read, they show that the commissioners exceeded their power.
    The stock was actually transferred to the intestate, and full power vested in him to annihilate it, substituting a different thing in its place, without any payment of money or county bonds to the value of one cent.
    The sole object, to effect which a sale was authorized, was “in order to pay off the*indebtedness” which might arise under the act. But the actual doing of that, and not a possible provision for it, dependent upon the future ability of the purchaser to make payment, was required.
    
    
      The sale upon the agreed extended term of credit was not authorized. The sale authorized was a sale at par for cash
    
    3. A further question arises in the case: whether the restrictive provisions of the special act, which have been referred to, are repealed, by implication by section 25 of the act of May 1, 1852. (S. & C. 282.)
    This question has been so fully discussed by the counsel for the defendants, that I do not deem it necessary to make an additional remark about it, except to remind the court of the general rule, “ that repeals by implication are not favored, and that if the intent to repeal be not clearly deducible from the subsequent enactment, and it be possible for both to stand together, no repeal is to be implied.” How this is, in the case in hand, is easily solved; and is to be done, not upon any basis of reasoning which the court might deem expedient, but simply in view of what is said and expressed in the subsequent law.
    4. There is, however, a further consideration growing out of this branch of the subject, of vital importance in the case, which remains to be presented.
    It is this: That a repeal of the special act, as claimed by the plaintiffs, would be a.violation of the constitution of the State of Ohio, and that of the United States.
    Section 28, art. 2, of the constitution of Ohio provides: “ The general assembly shall have no power to pass retroactive laws, or laws impairing the obligations of contracts,” .etc.
    Sec. 10, art. 1, of the Constitution of the United States •provides: “No State shall pass any ex post facto law, or law -.impairing the obligations of contracts,” etc.
    ■ The terms of the special - act in question operate as, and -form part of the contract between the holders of the bonds ■ of the county issued in payment of the subscription of the ■ county for the stock, and the county, whereby the dividends ■ to accrue on the stock (in legal effect the stock itself) should •.stand pledged for the payment of the bonds.
    Section 4 of the act provides: “ That the faith of the .county so subscribing stock under the provisions of this act, and the net profits or dividends upon the stools subscribed by the county to such company, shall stand pledged for the fayment of the indebtedness and interest, which may become d/u,e and payable from the county under this act,” etc.
    The answer specifically sets up this provision of the act, together with that so frequently referred to above, in section 5, conferring power, subject to the specified conditions, upon the commissioners to sell the stock.
    It is obvious that these terms restricting the power of sale by the commissioners, and the grant of the power itself, are part and parcel of the conditions of the pledge of the dividends and profits of the stock, as contained in section 4. That is to say, the pledge is subject to the exercise of this power of sale and transfer of the stock, but is only subject to the exercise of the power as limited and restricted. This statutory pledge, in express terms, is “ as a security for the payment-of the bonds of the county authorized to be issued under the act;” and upon their being issued and delivered, to any bona-fide holder thereof by legal operation, became not merely a vested-right in the holder, but a contract right in behalf of each holder thereof. And it is manifest, that any law enacted by the general assembly after the issuing and delivery of the bonds to a bona-fide holder thereof, which in any respect altered or changed the terms or conditions of the pledge, would, to the same extent, impair the obligation of the contract of pledge, and be therefore unconstitutional and void.
    It appears from the answer (demurred to) that at the date of this supposed repealing act, the contract relation provided for by the special act, of pledge of the profits and dividends of the stock for the payment of the bonds, had become and was fully operative.
    Was the contract of pledge, as stated, a contract within the meaning of the constitution %
    
    
      “ The lien of a bondholder, who has loaned money to the State, on a pledge of property by legislative act, cannot be divested or postponed by a subsequent legislative act.” (Wabash, &c. v. Beers, 2 Black, 448.)
    
      It is obvious in what respect the repeal, if valid, would impair the contract. It is this: By the original or special act the commissioners were only authorized to sell and transfer the stock subject to the conditions prescribed by that act But, if that act be repealed, its restrictions, if the repealing act be held constitutional, are abrogated, and unlimited power is conferred upon the commissioners to sell the same at discretion.
    
    The court is referred to the recent well-considered case of Von Hoffman v. City of Quincy, 4 Wallace, 522, 523, 535, 548, and the cases therein cited.
    But it maybe objected that, admitting the effect of the act of 1852 to be, to repeal all of that part of the special act of 1846 which is inconsistent with it (which is the claim of the plaintiffs), and admitting that such repeal would be unconstitutional and ineffectual as against the holders of the county bonds, that the question only affects them — and that if they do not raise it, that it is not competent for the defendants, or others in like relations, to make or interpose it.
    The first answer to this is, that if a law be unconstitutional and void as to some persons, it necessarily is so as to all other persons — void means void; and in respect to an unconstitutional law, it is the manifest right of all, whose interest it is to do so, in defence of a demand asserted against them resting upon the law, to show its unconstitutionality.
    But we have shown that prior to, and at the time of the passage of this act, which the plaintiffs claim to have k repealing effect, the bonds of the county were issued and outstanding in the hands of loná-fide holders, and that the sale and transfer of the stock by the commissioners to the testator and others was in violation of the pledge secured to the bondholders by the provisions of the special act; and that being so, it follows of legal necessity, that the sale and transfer remained subject to the lien of the bondholders precisely as if the repealing act had not been passed; and why so? Simply because the .repealing act was void in so far as it impaired the contract of pledge in behalf of the bondholders.
    
      The principle settled in the case of Hawthorn v. Calef, 2 Wallace, 10, has a material bearing upon the constitutional question under consideration. See, also, the cases therein referred to
   Scott, J.

The defence made in this case to the action of the plaintiffs is, that the commissioners of Knox county had not legal power to make the contract upon which suit is brought. Defendants claim that the plaintiffs were prohibited, by the fifth section of the act of February 26, 1846, from making any sale which was not a sale at par, and which did not result in an actual extinguishment or cancellation of an equivalent amount of the bonds of the county. And they allege that the sale and transfer of stock set out in the plaintiffs’ petition, did not produce its full par value, nor extinguish or cancel an equivalent, or any amount of the obligations of said county, created under said act. On the other hand, it is claimed for the plaintiffs that the conditions and limitations upon the power of sale, imposed by the 5th section of the local act of February, 1846, were.repealed by the 25th section of the general act to regulate incorporated companies, passed May 1,1852, which conferred on the plaintiffs a power of sale limited, as to terms, only by their own discretion; and secondly, that however this may be, the terms of sale, as stated in the pleadings, were not inconsistent with the limitations of the act of 1846. The 1st, 2d, 4th, and 5th sections of that act (44 O. L. L. 192) read as follows:

“ Seo. 1. That whenever a majority of the qualified electors of the counties of Delaware, Marion, Holmes, Medina, Crawford, and Knox, respectively, shall consent thereto, as provided in the sixth and seventh sections of this act, it is hereby made the duty of the commissioners of said counties, respectively, for and in behalf of their respective county, to become subscribers to 'an amount not exceeding one hundred thousand dollars to the capital stock of any qompapy heretofore or which may hereafter be incorporated to construct any railroad which of itself, or in conjunction with other compañíes, may open a direct communication through their respective county, and to or near its county seat.

Seo. 2. That the commissioners of each of the said counties, in payment of any amount of stock subscribed under this act, shall issue, or cause to be issued, bonds or obligations of the county, of equal amount, payable to said company and made negotiable, bearing interest, to be paid annually at the treasury of said county, at the rate of six per cent, and redeemable at such time as may be deemed expedient by the commissioners, not over twenty years from date.

Seo. 4. That the faith of the county so subscribing stock under the provisions of this act, and the net profits or dividends upon the stock subscribed by the county to such company, shall .stand pledged for the payment of the indebtedness and interest which may become demandable from the county under this act; and it is, moreover, hereby made the duty of such commissioners and the auditor of the county, from and after any indebtedness of the county arising, under this act, against the county, to add such per centum upon the tax duplicate of the county annually, over and above the ordinary State and county taxes, as shall be sufficient, including the dividends aforesaid, to pay the accruing interest arising under this act, and also to produce a sinking fund of such amount as they may deem expedient; and the money so levied shall, when collected, be applied to the purpose aforesaid, and to none other.

Seo. 5. That the commissioners of such county shall, by themselves or such agents as they may appoint, have full power to vote at all meetings of stockholders of said railroad company, in proportion to the stock owned by the county, and in all other respects to act in behalf of the county in ’the business of said company, as may be in accordance with law and best calculated to promote the true interests of the company without injustice to the county; and, moreover, the sand commissioners a/re hereby authorized, whenever they may deem the same expedient, to sell and tramsfer a/ny and all stoclc of the company subscribed or owned by the county, m order to pay off the i/ndebtedmess which may a/rise under this act: Provided, however, that no sale or transfer of the stock thus owned by the county shall be of any force, except upon condition of its producing its full par valme, and the actual extinguishment or cancellaUon of an egui/oalent amount of obligations of the county created under this act.”

By the general “ act to provide for the creation and regulation of incorporated companies in the State of Ohio,” passed May 1,1852 (1 S. & C. Stat. 282), it was provided in the twenty-fifth section as follows:

“ The commissioners of any county, the city or town council of any city or town, and the trustees of any township, which county, city, town or township, has heretofore subscribed to the capital stock of any railroad company, or turnpike or plank-road company, and has issued, or shall hereafter issue, any bonds for the payment of such subscription, are hereby authorized to sell the said stock, or any part thereof, and on such terms as they shall deem to be for the interest of said county, city, town or township, respectively, and may apply the proceeds of such sale to the payment of the bonds of such county, city, town or township, respectively subscribed.”

The question arises whether the general power here given to sell stock previously subscribed operates a repeal, by implication, of the conditions and limitations of the power of salé given to the plaintiffs by the local and special act of 1846.

Prior to 1852, many local and special acts had been passed by the legislature, authorizing cities, counties, and townships to subscribe to the capital stock of railroad, turnpike, and other companies, but no general law had ever conferred such powers.

In some of these special enactments, a general power was given to sell the stock which might be subscribed, without any restriction or limitation thereon. In many cases no power of sale was expressly granted, the act being silent on the subject; and in other cases a sale was allowed only for the purpose of paying off the bonds or indebtedness arising from the subscription, of stock, or was coupled with other limitations and restrictions, as in the act of 1846, now under consideration. By the research of counsel we have been referred to numerous instances of these various classes of special acts, which it would be tedious and unnecessary to cite in detail. Under these special grants of authority many of the cities, counties, and townships of the State subscribed largely in aid of railroad and other enterprises. These subscriptions frequently proved to be unwise and unprofitable as investments, and imposed heavy liabilities on the communities upon whose behalf the subscriptions were made.

The experience of the people of the State in this behalf was such, that in framing the constitution of 1851 it was specially provided, that no authority to make such subscriptions should ever be conferred by the general assembly on any county, city, town or township of the State. In the following year, the general act of May 1, 1852, was passed, which purports in the most general terms to authorize the commissioners of any county, the city or town council of any city- or town, and the trustees of any township, which county, city, town or township has heretofore subscribed to the capital stock of any railroad company, . . . and has is sued, or shall hereafter issue, any bonds for the payment of such subscription, ... to sell the said stock, or any part thereof, and on such terms as they shall deem to be for the interest of said county, city,” etc.

It cannot be denied that the broad terms of this enactment clearly comprehend the case of Knox county, as it stood at the date of the act. The commissioners of that county had previously subscribed $100,000 to the capital stock of the Columbus and Lake Erie Eailroad Company, and in payment therefor had issued its bonds. This is the case contemplated and provided for by the statute. And whether we look to the terms of the act, or the circumstances which may be supposed to have led to its passage, we see no reason to doubt that it falls within the very purpose and intention of the legislature. The cases intended to be provided for could not have been such as had arisen under a general law, for no general law had ever authorized subscriptions by counties to the stock of railroad companies. The prior statutes to be affected by the new law could, therefore, be none other than the special acts to which we have referred, or some of them. None of them is expressly repealed or referred to in the new law — to which, however, we can give, effect only by allowing it to modify prior legislation on the same subject.

If it was not intended to apply to all cases in which a conditional or qualified power of sale had been previously granted as well as to cases in which no power of sale had been expressly conferred, then to what class or classes of cases is its application to be limited ? To cases, say counsel, arising under the special acts which contained no grant of power to sell the stock. But what conceivable policy could have induced the legislature to confer an unlimited and discretionary power of sale in every case in which a power of sale liad been previously wholly withheld, and to refuse a like extensive discretion in all cases where the power had been previously granted with limitations ? If a continual and progressive depreciation in the market values of railroad stocks had made it expedient to give full and unlimited powers of sale, where no discretion had been previously conferred, would not the same circumstance have dictated the removal of the limitations on discretion with which previous grants of a power of sale had been accompanied? The circumstances which evidently induced this general grant of unqualified powers in 1852, justify the belief that the intention of the legislature was no less general than the terms employed would seem clearly to indicate.

It is true, that repeals by implication are not favored, and are only allowed where the repugnancy is clear; but in this case there is a plain repugnancy, and the two enactments can only be reconciled by assuming, without reason, that the legislature in the latter act did not mean what they have clearly and plainly said. It has been well said, that “ every act is made either for the purpose of making a change in the law or for the purpose of better declaring the law; and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment.” Dean of Ely v. Bliss, 5 Beav. 582.

The present is not, then, the case of two affirmative statutes which are so far consistent with each other that full effect may be given to both. And in this respect we think the case of Wardell v. Arell, 2 Wash. Va. R. 282, and other cases cited by counsel for defendants, are not analogous to the case ■ before us. Nor is it a case for the application of the rule that a later statute, general and affirmative, does not abrogate a former, which is particular; ” for, here, no effect whatever can be given to the later general statute, unless it be allowed to modify prior special statutes by conferring powers which they withheld. And in giving this operation to it, as we have already said, no good reason is perceived for discriminating between the act of February, 1846, and other special acts which had either conferred a limited power of sale, or had failed to confer any such power. We see no reason to doubt that the legislature intended to confer a discretionary power of sale, as unlimited in respect to terms as the rights of individuals vested under prior laws would in each case permit.

It is claimed, however, that the legislature could not, constitutionally, confer on the county commissioners of Knox county the discretionary power of sale which the act of 1852 purports to confer. The argument is, that by the fourth section of the act of 1846, the net profits or dividends upon the stock subscribed by the county were pledged for the payment of the principal and interest of the bonds to be issued under that act; that this statutory pledge was a part of the contract under which the bonds previously issued by the county were at the time held by the bondholders; that the contract of sale on which suit is brought ■ is inconsistent with this pledge, and cannot therefore be held valid without impairing the obligations of a contract, which under our constitutions, both State and Federal, cannot be done.

To this claim, we think, several answers may be made. 1. We do not see that the terms of the contract sued upon were in derogation of the rights of the bondholders under this statutory pledge; for the pledge was as a security for the payment of the annual interest accruing upon the bonds, and of the principal sum at maturity. By the contract of sale, the purchaser of the stock was bound to pay a corresponding amount of interest annually, and of principal at maturity. If defendants’ testator, therefore, complied with his contract, the bondholders’claims would be fully satisfied, and no occasion could arise for the assertion of his statutory lien. And we think it no valid objection that the purchaser might have involved himself in trouble by a failure to perform his contract. Besides, the hypothecation of the stock, made concurrently with the sale, left it in the power of the commissioners to secure the application of profits or dividends to the discharge of interest in arrear, or of principal at maturity. But if we are mistaken in this, still, this statutory pledge was for the security of the bondholders only, and can therefore be asserted only by them. If they are content with the sole responsiblity of the county of Knox (the obligor in their bonds), surely the defendants have no right to complain on their behalf. The act of 1852 does not become void, though it cannot, constitutionally, operate to the prejudice of rights previously vested. It does not appear that the bondholders have ever asserted or threatened to assert the right which is here set up for them; nor but that they have at all times acquiesced fully in the purchase made by defendants’ testator; nor that defendants have lost or are likely to lose any of the benefits of their testator’s contract.

Under these circumstances, we think the defendants cannot avoid the obligations of the contract in question; and that the court of common pleas therefore erred in overruling the demurrer of the plaintiffs to the answer of 'the defendants. The judgment of the court of common pleas is therefore reversed, and the demurrer to defendants’ answer sustained.

Bbinkebhoff, C.J., and Welch, White, and Day, JJ., con« curred.  