
    The State v. Commissioners.
    1. The act of March 29, 1867, and the acts amendatory and supplementary thereto, commonly called the two-mile-road improvement laws, authorize the commissioners of counties, for the purpose of raising money necessary to meet the expenses of road improvements, “to issue the bonds of the county,” and thereby create a debt of the county in its quasi corporate capacity, notwithstanding they also require the commissioners to assess the cost and expense of the improvement upon the lands benefited thereby and situate within two miles thereof.
    2. When, from any cause sufficient money be not realized from such local assessments to pay the debt so created, it is, the duty of the commissioners to levy a tax therefor upon all the taxable property of the county.
    3. A purchaser of such bonds, who has no actual knowledge of any defect in their execution, is not bound to look beyond the findings and record of the commissioners, for the purpose of ascertaining whether conditions precedent to their execution have been performed.
    Mandamus.
    This proceeding is prosecuted by the state on the relation of Uriah Horseman’s administrators, to compel the board of commissioners of Fayette county to levy a tax to pay a balance due upon certain bonds issued by them, and known as “the state road bonds.”
    The class of bonds so known, amounting to $35,000, was issued by the commissioners to Grove & Coffman, contractors, to pay for a certain road improvement, under the act of March 29, 1867 (64 Ohio L. 80), entitled, “ An act to authorize county commissioners to construct roads on the petition of a majority of the -resident land-holders, along and adjacent to the line of said road, and to repeal an act therein named,” and the acts amendatory and supplemental thereto.
    The commissioners to whom a petition for the road improvement had been duly presented, proceeded regularly under the statute to construct the road, finding, among other things, that a majority of the resident land-holders of the county whose lands were reported as benefited, and ought to be assessed, had subscribed the petition, and issued bonds as aforesaid to the contractors, who completed the construction of the road, in accordance with their contract, in the year 1870.
    Eor the purpose of satisfying the bonds so issued, the' commissioners caused an assessment to be made upon the lands benefited and situate within two miles of the road. The amount so assessed was sufficient to pay all the bonds; but certain of the land-holders whose lands were assessed obtained a perpetual injunction against the enforcement of the assessment against their lands (see Hays v. Jones, 27 Ohio St. 218). So that, after applying the amount collected on the assessment, twenty-nine of the bonds so issued, for $500 each, were left wholly unpaid and unprovided for.
    Nine of these last-named bonds, before maturity, had, in the usual course of business, been indorsed and transferred by Grove & Coffman-to relators’ intestate, Uriah Horseman.
    Upon this state of facts, it is submitted by the defendants that they have no power to provide for the payment of relators’ claim by a levy of taxes either upon the taxable property of the county, or of the road-improvement district.
    
      Mills Gardner and Melville Hayes for plaintiff:
    The power to issue the bonds was conferred by section 7 of the act of March 29, 1877 (74 Ohio L. 147), and see 64 Ohio L. 80 ; 65 Ohio L. 44.
    The bonds are not issued upon any consent of land-owners. The commissioners are required to issue the bonds, if they order the improvement. They are not issued cn the faith of the assessment. The county is primarily liable. State ex rel. v. Commissioners, 6 Ohio St. 285; Commissioners v. Pittsburgh, 88 Pa. St. 66 ; Bank v. Chillicothe, 7 Ohio (pt. 2), 31; 2 Kent Comm. 298 ; 2 Cranch, 127; 4 Wheat. 636; 4 Pet. 152. The county’s security is the assessment.
    If the bonds purport upon their face to be issued by author-' ity, the purchaser of the bonds is not required to inquire into; their regularity. High on Ex. L. R. § 383 ; Mayor v. Lord, 9 Wall. 414; Flags v. Palmyra, 33 Mo. 440; County of Warren v. Marcy, 97 U. S. 96 ; State ex rel. v. Board of Education, 27 Ohio St. 96 ; Knox Co. v. Aspinwall, 21 How. 539 ; Bissell v. Jeffersonville, 24 How. 289; State ex rel. v. Vanhorn, 7 Ohio St. 327; State ex rel. v. Goshen Tp., 14 Ohio St. 569.
    Estoppel applies. State ex rel. v. Board of Education, 27 Ohio St. 97 ; 1 Dillon Mun. Corp. 307, § 416; 21 How. 539 ; 16 Wall. 644; 24 How. 288 ; 96 U. S. 51; 14 Ohio St. 260 ; 8 Ohio St. 400; 2 Ohio St. 607.
    Mandamus is the proper remedy.
   MoIlvaine, J.

If the defendants have power to provide for the payment of relators’ claim by taxation, their duty to do so is not questioned. Nor is the power of the commissioners to provide, by taxation, for the payment of the debts of the county, disputed. The principal contention, therefore, is, does the claim of relators constitute a debt of the county ?

The form of the bond, if that alone were to be considered, would clearly indicate an obligation on the part of the county. The following is a copy:

“ No. 131. State of Ohio, $500.00.
County of Fayette.
“ Be it known that the County of Fayette, in the State of Ohio, hereby acknowledges to owe Grove & Coffman, or bearer, the sum of Five Hundred Dollars, payable at the office of the Treasurer of said Fayette County, on the first day of March, 1871, with interest at the rate of seven per centum per annum, from the first day of September, 1868, payable semi-annually at said Treasurer’s office on the 1st day of March and September in each year, on the surrender of each coupon hereto annexed—attested by the Auditor of said county. ,
This bond is issued in pursuance of and according to an act of the General Assembly of the State of Ohio, entitled £An act to authorize the County Commissioners to construct roads on petition of a majority of the'resident land-owners along and adjacent to the lino of said road, and repeal an act therein named,’ passed March 29, 1867, and the acts amendatory and supplementary to said act, passed March 31, 1868, and May 16, 1868, respectively.
In testimony whereof, The Commissioners of said County of Fayette, and as such Commissioners have hereunto set our hands and names, and affixed the seal of said County, this 4th day of November, 1869.
“A. MoOandless, Allen TIegler, ) Commissioners Auditor of Wm. Clark, j- of said Fayette Fayette County, O. Enos Reeder, ) County, Ohio. Registered Nov. 4, 1869.”

The question of the power of the commissioners to obligate the county, is, however, raised on the statutes to which reference is made in the bond. The holder of the bond is notified by its face, that the power assumed by the commissioners is to be found in these statutes. Section 7 of the statute provides, ££ That for the purpose of raising money necessary to meet the expenses of such improvement, the commissioners of the county are hereby authorized to issue the bonds of the eountij, payable in installments, or at intervals not exceeding in all five years, bearing interest at the rate not to exceed seven per cent, per annum, payable semi-annually, which bonds shall not be sold for less than their par value.” From the language of the statute here quoted, perhaps no one would deny that the debt evidenced by the authorized bonds is the debt of the county in its quasi corporate capacity—indeed, the language is not susceptible of any other méaning : but, inasmuch as the same section provides for an assessment upon the lands specially benefited and lying within two miles of the improvement, to meet the payment of the interest and principal of the bonds, it is contended that no other mode or manner of taxation can be resorted to for the purpose of paying the bonds. However plausible this contention may be, we think it cannot be maintained. That the legislature might have so provided, we do not deny, but if sueli was the intention, it should have been expressed in very clear and unmistakable terms. Such terms were not used, nor is such inference clear. On the other hand, the liability of the county in its quasi corporate capacity is expressed in apt and unmistakable words : and if for such liability a portion only of the taxable property of the county can in any event be taxed, such intent on the part of the legislature should have been expressed in like apt and unmistakable terms. As between the county and the taxing district created by the statute, to wit; “ the territory within two miles of the road improvement,” it cannot be doubted that the intent of the ■statute was to impose the burden of the improvement upon the latter; but as to the creditor holding bonds issued to meet the expenses of the improvement, the faith of the county to the extent of all its taxable property was pledged, by the express authority given -to the commissioners to issue therefor “ the bonds of the' county.” Whenever, therefore, payment of the bonds cannot be provided for, by local assessment under the statute, it is the duty of the commissioners to make provision for their payment, as for the payment of other debts of the county, by a levy upon all the taxable property of the county.

Again, although the question is not raised by the pleadings in this case, it is suggested that, inasmuch as the power of the commissioners to make improvements, under the act of March 29, 1867, and its amendments, depends on the fact that the petition for the improvement be subscribed by a majority of the resident land-holders whose lands were reported benefited thereby, which fact did not exist in the case before us, as was adjudged in the case of Hays v. Jones, 27 Ohio St. 218, therefore the-bonds in question were unauthorized and void. True, it was found in that case that the jurisdictional fact named was. wanting, and therefore it was adjudged, that the defendants, parties in that case, be forever restrained from enforcing the collection of the special assessment against the property of the plaintiffs in that action. Rut the relators, or their intestate, though he purchased the bonds during the pendency of that action, were not parties to it or bound by its result.

The jurisdictional fact in question is thus stated in the answer of the defendants to this proceeding:

“ During said proceedings, and before the final order, a majority of the land-holders resident in said Fayette county whose lands had been reported for assessment, as aforesaid, had signed said petition for said improvement.
“ That in the month of July, 1868, the said report of said viewers and surveyor came on to be heard before the said board of county commissioners, at which time a number of said petitioners presented a remonstrance to said board asking that said improvement be not made, yet the said commissioners decided that a majority of the land-holders whose lands had been reported for assessment had signed the petition, and then made the final order for said improvement on the-day of July, a. d. 1868, and such further proceedings were had that the contract for making such improvement was awarded to' Grove & Coffman, to be paid for in the bonds of said Fayette county, of which the said bonds mentioned in the plaintiff’s petition constituted a part, and said improvement completed in the year 1870, according to the contract and specifications therefor.”

The rights of the relators, as we conceive, do not depend upon the fact whether or not a majority of the land-holders had subscribed the petition for the improvement. That their intestate purchased the bonds before maturity, for a valuable consideration, and without actual knowledge of any defect in their execution,' is -conceded. Of .coqrse, to the extent he was bound to inquire as to the regularity of their execution, he is chargeable with any information which reasonable diligence would have revealed. Fie was bound to know that the bonds were issued under the authority of certain statutes. The face of the bond gaVe him this information. It was certified in the bond that it was “ issued in pursuance of and according to ” the statute; and there are authorities which hold that an indorsee may rely on such recital, without further inquiry as to the regularity of the issue. State ex rel. v. Robertson, 27 Ohio St. 96; Warren v. Marcy, 97 U. S. 96.

But conceding that such recital does not relieve the purchaser of such bonds from further inquiry as to the performance of conditions precedent to their execution, an examination of the records of the commissioners would have 'revealed the fact that every condition precedent had been fully performed ; and among others, that a majority of the resident land-holders whose lands were reported benefited by the improvement, had subscribed the petition, and that the commissioners had so found the fact to be. True, under the decision of Hays v. Jones, this finding was not conclusive in such a ease ; but, nevertheless, it was a fact which it became the duty of the commissioners to pass upon, and having found it in favor of the improvement, and issued bonds reciting the fact that every condition precedent had been performed, it appears to us, that an innocent purchaser of the bonds, relying upon the information thus acquired, should be protected against such defense on the part of the county, which, in fact, has realized and enjoyed the' full benefit of the proceeds. Commissioners v. Aspinwall, 21 How. U. S. 539; Bissell v. Jeffersonville, 21 Ib. 287; Warren v. Moray, 97 U. S. 96; State ex rel. v. Robertson, 27 Ohio St. 96; State ex rel. v. Garrett, 7 Ohio St. 327; Shoemaker v. Goshen Township, 11 Ohio St. 569.

Peremptory writ awarded.  