
    Charles Gorgas v. Thomas Blackburn and others, Officers of the Town of Massillon.
    The answer to a mandamus must respond to all the allegations in the writ, or it will be held bad on demurrer.
    The saving clause of the act repealing the act incorporating the town of Massillon, imposed upon the persons, then officers of said town, the duty of levying and collecting taxes, and paying its debts; and they can not, by resignation, avoid the performance of this duty.
    This is an application for a writ of mandamus to the town council of the town of Massillon, reserved in the county of Stark. »
    This writ, issued in this'case, is directed to Thomas Blackburn, mayor; Henry W. Smith, recorder; William Bowen, John E. McLane, David R. Atwater, Sylvanus Buckins, and *Levi Rawson, trustees of the corporation, and known as the town council of Massillon, and recites, “ 'That whereas it is represented to said coart by Charles (Jorgas, that at the November term, 1841, of the court of common pleas of said county, he recovered judgment against said corporation for the sum of $1,079.57, including costs, which judgment remains in full force and unsatisfied, and that said corporation has no property subject to execution to satisfy the same, and that you, as officers, as aforesaid, of said corporation, are the persons authorized to levy and collect taxes to pay and satisfy said judgment, which you have hitherto refused and neglected todo.
    “You are, therefore, hereby commanded, without unnecessary delay, to levy and collect,” etc., “ or forthwith to show cause to this court why you neglected or refused,” etc.
    In the application for the mandamus, which is verified by the affidavit of the applicant, it is stated, in addition to what is recited in the writ, that, on March 26, 1841, the act' creating the corporation of Massillon was repealed, but that the repealing act contained the following proviso:
    “Provided, that the officers of said town shall havo power, by their corporate name, to sue and be liable to. be sued, to levy and collect all taxes necessary to discharge the present liabilities of said town; and provided further, that all rights acquired and liabilities incurred by virtue of said act (incorporating said town) shall remain valid in all respects as if this act had not been passed.”
    And that the debt on which the judgment was rendered, existed at the time of the repealing of the act of incorporation, and was then an existing liability against said corporation.
    The defendants have all answered, and among other things for cause, etc., say that, at the time of the service of the writ, they were not officers of the town of Massillon, they having before that time resigned their offices respectively, etc.
    To these answers, the counsel for Gorgas demurred, generally, and counsel for the respondents joined in demurrer; and, to determine the question as to the sufficiency of the answers, *the case was reserved for the consideration of this court.
    Griswold & Grant, for the plaintiff:
    The answers of the respondents are defective, because they do not respond to all the allegations in the writ — or, in other words, do not cover the whole ground assumed by the plaintiff. They say the respondents are not officers, etc., and the reason given is, because they have resigned, but without stating when. They admit they have been officers, but do not state when they ceased to be such. It may have been after the writ issued — it may have been before, but after the passage of the act, repealing the act incorporating the town of Massillon. They are, then, evasive, and on that ground bad on demurrer.
    They are bad, too, because, applying to them the rules of pleading, by which they must be governed, they admit all that is alleged by the plaintiff. Every plea must be construed most strongly against the pleader, and every allegation not traversed, is held to be admitted — applying these rules, this is the case before the court.
    The plaintiff has a claim against the town of Massillon, which existed at the time of the repeal of its charter, and which is reduced to judgment. The repealing aht pi’ovides, that all liabilities against the town shall remain valid in all respects as if the repealing act had not been passed ; the officers were declared liable to be sued, and empowered to levy and collect taxes to pay its debts ■ — these defendants were at that time its officers, having the power to levy the tax — after the issuing of the writ, they resign, and claim thus to be divested of all responsibility, and that the town, by a novel species of bankruptcy, stands discharged of the debt.
    It seems to us that the simple statement of the case bespeaks the judgment of the court in favor of the plaintiff.
    The legislature seems to. have had a suspicion that there *might be repudiation lurking in the application of the citizens of Massillon for a repeal of its charter. It “snuffed it on the tainted breeze,” .and, therefore, very wisely guarded against the intended fraud, by providing that all “rights acquired ” against the town “should remain as valid in all respects as if this act had not passed.” And, not content with this declaration, for the purpose of preserving these rights unimpaired, there was this further proviso, that the officers should proceed to levy and collect taxes to pay the debts of the town.
    This duty is devolved upon “the officers of-said town,” that is, upon those who, at the time of the passage of the repealing act, were officers. They, must bo performed by these officers, because the town can never have any other. In the repealing act, no provision is made for any future election; no mode prescribed for filling vacancies. These officers, then, must levy and collect the tax, or it can never be done; and if not done, clearly the design of the legislature will be frustrated, and rights then existing against the town will not “remain valid in all respects as if that act bad not passed.”
    If this view of the case be correct, these respondents stand charged with the performance of a duty which they can not avoid by resignation. They are clothed with a power which they must exorcise, no matter how repugnant to their feelings. They must discharge the honest debts of the town before they will be permitted to cast off their trappings, and lay aside the dignity of office, and return to the sweets of private life, for which they are evidently longing
    “"With ardent hope and strong desire.”
    This, it seems to us, embodies the whole argument of the case. It is with the court, and its decision will determine whether this, the latest adventure in the scheme of repudiation, shall be crowned with success.
    S. Pease, Keith & Miller; and Eolger & Underhill, for the respondents,
    submitted the case without argument.
   *Wood, C. J.

On application of the town of Massillon, the act of incorporation was repealed by the legislature. But the debt of the plaintiff, Gorgas, on which his judgment was obtained, existed against the town as a valid debt, before the repeal of the charter, and the repealing act contains this proviso:

“That the officers of said town shall have power, by their corporate napie, to sue and be sued, and to levy and collect taxes necessary to discharge the present liabilities of said town,” etc., and “ that all rights acquired, and liabilities incurred by virtue of said act, shall remain valid in all respects,” etc.

The repeal of the charter, therefore, did not discharge the officers of the corporation from the duties of collecting the debts duo the town, and paying off the liabilities it had incurred. It was the duty of the then officers of the town to provide for the payment of its debts — those in office when the charter was rejiealod — and they are continued as such officers by the act for that purpose. No fraudulent resignation will absolve them from the discharge of the duties imposed, for the statute makes no provision for successors or any other persons than the then officers, to levy taxes or pay the debts of the corporation.

What, then, is the answer? That when the writ was served they were not officers — they had resigned. When did they resign ? Was it before the repealing act fixed their duties? The answer docs not state, and in this respect is clearly defective, foi the rule is, that every plea must have convenient certainty of time, place, and .persons, and must be construed most strongly against the pleader.

It is admitted by the answer that the respondents were officers of the corporation, and as the time of their resignations is not averred in the plea to bo before, the law will intend it was after the repeal and their duties fixed.

The demurrer must be sustained, with costs.  