
    The State of Ohio ex rel. Daniel H. Treadwell v. The Commissioners of Hancock County.
    1. To authorize a denial of an allegation in a petition, a want of belief is sufficient, and it is not improper to accompany the denial with a statement that the party making it has no knowledge or information on which to form a belief.
    2. An act of the general assembly provided that the county commissioners of any county through or in which a railroad might be located by a railroad company, should be authorized to subscribe to the capital stock of the company, and issue negotiable bonds in payment of such subscription. An alternative mandamus was awarded to require the commissioners to levy a tax to pay bonds purporting on their face to have been issued in payment of such a subscription, and to be payable to bearer, and which were stated to be held by the relator as a bona fide holder. The answer to the writ stated that the road had never been located through or in the county. Held, on demurrer, to be a sufficient defense, as showing that the bonds had been issued illegally and without authority of law.
    3. The act provided that bonds issued and negotiated by the commissioners, and regular on the face thereof, should, in the hands of the company or of any bona fide holder thereof, be deemed and taken in all courts and elsewhere, as conclusive evidence of the regularity of everything required by the act to be done preliminary to the issuing and negotiation of such bonds. Held, that to make bonds regular on the face thereof, such conclusive evidence, and an estoppel to a defense showing a want of power in the commissioners, there must be an averment that they had been “ issued and negotiated by the commissioners.”
    Mandamus.
    Tbe alternative writ of mandamus states that Daniel H Treadwell is the owner of four bonds, being precisely alike, and one' of which is as follows :
    “No. 55. United States of America, State of Ohio, Co. of Hancock. $1000. Dayton and Michigan Railroad Company. The county of Hancock acknowledges itself indebted to the Dayton and Michigan Railroad Company, or bearer, the sum of One Thousand Dollars, negotiable and payable at the office of the Ohio Life Insurance and Trust Company, in the city of New York, on the first day of January, A. D. 1864, upon the presentation and delivery of this certificate, bearing an interest of seven per cent, per annum, payable annually, on the first day of January, at the said office of the Ohio Life Insurance and Trust Company, in the city of New York, upon presentation and delivery of the proper coupon hereto attached, signed by the auditor of said county. This bond is issued in part payment of a subscription of one hundred thousand dollars, by the said county of Hancock, to the capital stock of the Dayton and Michigan Railroad Company, chartered March 5, 1851, and -an act to authorize the commissioners of Clark county to subscribe stock in railroad companies, passed March 8, 1850. Witness the seal of Hancock county, and the signature of the Board of Commissioners, and Auditor of said county. August 8, A. D. 1853. William W. Hughes, Thomas Kelley, Commissioners of Hancock county [seal], E. Barud, Auditor.”
    The first interest warrant attached to the bond, the others being similar, was as follows :
    “Interest Warrant, No. 4, for $70. On the 1st day of January, 1858, at the office of the Ohio Life Insurance and Trust Company, in the city of New York, the commissioners of Hancock county will pay the bearer seventy dollars, interest on their bond No. 55. E. Barud, Auditor.”
    The writ proceeds to state that the bonds were regular on the face thereof, and what they recite, and what interest warrants were attached thereto. A demand of the payment of some of these interest warrants is then stated, and a refusal to pay, and the amount due of unpaid installments of interest claimed, is three hundred and fifty dollars.
    
      It is further stated that Daniel II. Treadwell is the bona fide holder of said bonds and interest warrants for a full and valuable consideration paid, and that said installments of interest have not been paid because the board of commissioners and auditor of said county of Hancock have neglected and failed to provide the necessary funds by taxation.
    The parts of the laws which apply to the action of the commissioners in issuing the bonds, and to their effect, are printed in the margin of the bonds, and are set forth in connection with them as follows :
    
      “ An act to incorporate the Dayton and Michigan Railroad Company, passed March 5, 1851.
    
      “ Sec. 6. The county commissioners of any county through •or in which said road may be located, shall be, and they are hereby authorized to subscribe to the capital stock of said company any sum not exceeding one hundred thousand dollars. The corporate authorities of Dayton, Troy, Piqua, Sidney, Lima, Perrysburgh, Maumee City and Toledo, shall also be authorized to subscribe to said railroad company any sum not exceeding fifty thousand dollars. And the trustees of any township in any county through which said road may be located shall be authorized to subscribe to the capital stock of said railroad company any sum not exceeding ten thousand dollars; and in making such subscriptions, and in all matters •pertaining thereto, the commissioners of counties, corporate ■authorities of said cities and towns, and trustees of townships, shall have all the rights, privileges and powers, and be subject to the restrictions of an ‘ act to authorize the commissioners of Clark county to subscribe stock in railroad companies,’ passed March 8, 1854, so far as the same are applicable, and not inconsistent with this act. Provided, that the vote on the question of subscribing stock to said railroad company, in any county, city, town or township, as provided for in this act, shall be taken at the annual spring or fall election, by giving twenty days’ notice thereof in the manner provided for in the act above referred to, except as modified by this act; and provided, further, that a majority of all the 'voters voting at such election shall vote for subscription.”
    
      “An act to authorize the commissioners of Clark county to subscribe stock in railroad companies, passed March 8,. 1850.
    “ Sue. 2. The commissioners of said county, for the purpose of paying the stock subscribed under this act, are hereby authorized to borrow the necessary amount of money, for which they shall issue bonds or obligations of the county, in amounts not less than one hundred dollars, which bonds or obligations shall he made negotiable, bearing interest, payable-annually, at such place and at such rate, not exceeding seven per centum per annum, as may be agreed upon; and such bonds or obligations may he made redeemable at such time-as may be deemed expedient by said commissioners; or such bonds or obligations, or any part thereof, may be issued directly to said company in payment of said stock, as said commissioners and the officers of said company may agree ; and. all bonds and obligations issued and negotiated by said commissioners, trustees, or town council, and regular on the face thereof, shall, in the hands of said company, or of any bona fide holder thereof, be deemed and taken in all courts and elsewhere as conclusive evidence of the regularity of everything required by this act to be done, preliminary to the issuing and negotiation of such notes or obligations.”
    To the alternative writ of mandamus the commissioners of Hancock county filed an answer, which was divided into eight parts and numbered, as constituting distinct defenses, and to the 1st, 2nd, 3rd and 8th of which there was a demurrer.
    The 1st is a denial that the relator is the owner of the bonds or interest warrants. It is in this form : “ that they have no knowledge or information other than is afforded by said writ, that the said Daniel H. Treadwell is the holder of said supposed bonds, or of either of them, or any of the said supposed interest warrants (or coupons), or of either of them, in said writ mentioned; and can not, therefore, admit,, but on the contrary do deny that he is the holder of said supposed bonds, or of either of them, or of said supposed inter est warrants, or of either of them.”
    The part of the answer numbered 2, states that neither of the bonds or coupons was delivered to the Dayton and Michigan Railroad Company.
    The 3rd states that the Dayton and Michigan Railroad Company never has located its road through or in said county.
    The 8th states, “ that the road has never been made or located through or in the county; that before and at the date af the supposed bonds and coupons, it was permanently located and partly made so as not to touch the county, and has since been completed so as not to touch the same; that no subscription to the capital stock of the railroad company has ever been made by or on behalf of the county, or accepted by the company; that no certificate of stock therein has ever been issued to the county or its commissioners; that the county or commissioners have never held, or been entitled to, any stock therein, or been recognized by the company as so entitled; that the supposed bonds and coupons never have been, nor has any one of either of them been delivered to the company in payment of any stock subscription or otherwise; nor have they, or any one of either of them, ever been sold, pledged or hypothecated by the commissioners, or otherwise disposed of by them, for any consideration ; nor has any consideration been paid, given or promised to, or received by the county or board for the supposed bonds or either of them, or the supposed coupons or either of them.”
    The case was heard on the demurrer to the 1st, 2nd, 3rd and 8th parts of the answer.
    
      Worthington ‡ Matthews, and Wolcott, for the relator.
    
      Grillen Mungen, and Thurman, for defendants.
   G-holson, J.

An objection to the form in which the denial of an allegation in a pleading is made, ought, properly, to be taken by motion; but as the point has been argued by counsel, it has been considered.

A strong argument may be urged from the adoption in our code of the language of the New York code, and the omission of that part of the latter, which allows an answer to contain a denial of any knowledge or information sufficient to form a belief. We think we are not required to yield to this argument derived from the history of our code, but are at liberty, in view of the different provisions on the subject, to give it such a construction as will comport with reason and justice.

It will be observed that there are differences between our code and that of New York in other particulars connected with the verification of pleadings. Our code provides that every pleading of fact must be verified; but this verification is sufficient when it shows a belief that the facts stated are true, while the code of New York requires the verification to be to the effect that the pleading “ is true to the knowledge of the person making it, except as to matters stated on information and belief, and as to those matters, he believes it to be true.” Our code contemplates, for the sake of brevity and conciseness, a simple statement of facts, without reference to the manner a knowledge of them, or a reason to believe them, may have been obtained, or may exist; and, it is probable, with this view any reference to knowledge or information was omitted.

It is well known that the rules of pleading in equity recognized those states of the mind as to the truth of any proposition, which reason and experience show have always prevailed. They are expressed by words in common use, assent, dissent, doubt; or, belief, disbelief, unbelief. The last words are sometimes used as synonymous; but unbelief, in the sense of no belief, or a want of belief, is certainly distinguishable from disbelief. That state of mind which did not permit a man to say that he either believed or disbelieved a fact alleged to exist, or to have occurred, was recognized; and, in such a case, he could not be charged without proof. We can not suppose that our code intended to abrogate this well known distinction, and- require a party either to believe or disbelieve an allegation, or, if unable to form a belief, to suf fer the same consequence as if he did believe. Nor do we suppose it was intended to impose upon a person against whom a demand or charge was made, a duty, before unknown to our law, that of active diligence in acquiring knowledge, or obtaining information, which might induce a belief in the correctness of the demand or charge, and thus, by dispensing with further evidence, facilitate its enforcement.

A party is permitted to assert in his pleading those facts only which he believes to exist, or to have occurred; he may deny those which he does not believe. The provisions of our code require a denial of allegations controverted, and make-an affidavit of belief sufficient. The denial and the affidavit, taken together, may be regarded as a statement that the-party does not believe the proposition which he controverts. This, in many cases, he may do without asserting its untruth. And in many cases, as in actions against executors and administrators, and public corporations, whose officers are constantly changing, if it were not permitted, there might be a failure of justice. In accordance with a sense of the justice and propriety of allowing a denial where there is no belief, the practice has arisen of accompanying the denial with the reason why no belief can be formed. That practice has been adopted in this case, and a majority of the court think that such a form of denial may be properly permitted.

It is urged that, though the relator may have no title to the bonds, to enforce the payment of interest on which th'e alternative writ of mandamus has been awarded; yet that is no reason why the proceeding should not progress, so that the duty of payment may be discharged toward those really interested. The objection of a want of interest, it was contended, should have been made when the writ was awarded, and is now too late. In such a case as the present, the real and substantial matter is the right of the relator to demand payment of a sum of money for which he has no other legal remedy. It would be unjust to either party to conclude that matter upon a preliminary showing, or upon a motion to quash, without that trial for which, we think, the provisions-of our law regulating the remedy now provide. .

The defense that neither of the bonds or coupons was delivered to the Dayton and Michigan Railroad Company, cannot be maintained. The fact may be true, and yet be consistent with the right of the relator. The authority was to issue bonds for the purpose of paying a subscription to the Dayton and Michigan Railroad Company. They might be issued directly to the company, or to a third person, to raise money for the purpose of paying a subscription made. The bonds must have been prepared before an actual issue and negotiation, and the recital should be construed as showing the purpose intended, and is not inconsistent with either of the modes of issue and negotiation to which the authority extended.

The defenses numbered as the 3d and 8th may properly be considered together. They show, in the absence of anything alleged in the writ to limit and restrain their effect, that the issue of the papers purporting to be the bonds of the county of Hancock was illegal, and creates no right to require a tax to be levied upon the people of that county.

The board of commissioners of a county is a quasi corporation, “ a local organization which, for purposes of civil administration* is invested with,a few of the functions characteristic of a corporate existence.” Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109, 115. A grant of powers to such a corporation must be strictly construed. Ib. When acting under a special power, it must act strictly on the conditions under which it is given. The Queen v. Ellis, 6 Q. B. 501, 516; Stricker v. Kelly, 7 Hill, 9-25.

We do not understand these general principles to be controverted, but it is sought to avoid their effect in this case by an estoppel, arising from an acquiescence on the part of the people of the county, according to the principle of the decision in the case of Garrett v. Van Horne, 7 Ohio St. Rep. 327; or, from the action of the commissioners in deciding that the conditions upon which their authority to act depended, had been fulfilled; or, from the effect which the statute gives to bonds regular on their face, as conclusive evidence that the proper preliminary steps to the issue and negotiation of the bonds had been taken.

As to the first ground of estoppel, we do not think that any of the allegations in the writ are intended to present, in advance, a case of acquiescence which would preclude the defense of illegality. Nor do we think it would have been proper so to have framed the writ. When acts of acquiescence are presented by proof to meet the defenses of illegality, it will be proper to decide upon their sufficiency and effect for such a purpose, but not before.

As to the second ground of estoppel, and in support of which the case of Aspinwall v. The Commissioners of Knox County, 21 How. 539, has been cited, it may be observed that -one point of that case is not presented by the pleadings in this case. We have not here, as was presented in that case, a record of the action of the board of commissioners. We need not, therefore, now inquire whether the description of .such a board as given in the opinion in that case, applies in “this State, nor whether it was competent for the board of commissioners of Hancock county, under the special power conferred, to determine, by a finding conclusive in any collateral proceeding, the facts essential to give them any authority to act.

To the mere facts of the putting the bonds in circulation, and the recital in them of the authority under which they were issued, and independent of the provision of the act hereafter to be considered, we are not prepared to give the conclusive effect which is claimed in this case. The decision of the supreme court of the United States must rest on the assumption that it was competent for the commissioners of Knox county, by some act of their own, to make their authority complete, an assumption we are not at liberty to make in this case. This is shown by the case on which that court relies— Royal British Bank v. Tarquand, 6 Ell. & Black. 327 — in which case it is said, that parties dealing with joint stock companies “ are bound to read the statute and the deed of settlement. But they are not bound to do more. And the party here, on reading the deed of settlement, would find, not a prohibition from borrowing, but a permission to do so on certain conditions. Finding that the authority might be mado complete by a resolution, he would have a right to infer the fact of a resolution authorizing that which on the face of the document appears to be legitimately done.” The resolution referred to, the case shows to be a resolution of the company which had been informally and irregularly made. If the authority could not have been made complete by any action of the company with which the party was dealing, but depended upon a condition required by the statute, the decision would have been different. The principle on which the case was decided is shown by the report of it when before the queen’s bench. 5 Ell. & Black. 248. It was a case of irregularity in the proceedings of a company having power to do the act,, and an excess of authority on the part of its directors, which it was held should not affect a third person dealing with the company in good faith. The other case cited in the opinion of the supreme court of the United States — Maclae v. Sutherland, 28 Eng. L. & E. 114 — is there stated to be a case of irregularity in framing a security.

The distinction between such cases and those where an act is illegal, or there is a want of power, is manifest. In the same volume of the reports of the supreme court of the United States, a want of power on the part of a corporation was held to render invalid notes which it had executed, and it was said that “ persons dealing with the managers of a corporation must take notice of the' limitations imposed upon their authority by the act of incorporation.” Pearce v. Madison & Ind. R. R. Co., 21 Howard, 441-443. The principle applies with full force to a board of county commissioners, acting under a special power and in reference to a particular matter.

We have now to inquire whether the defenses of illegality are precluded by the operation of the act, which declares in substance, that bonds issued and negotiated by the commissioners, and regular on the face thereof, in the hands of the company, or of any bona fide holder, shall be deemed conclusive evidence of the .regularity of everything required by this act to be done preliminary to the issuing and negotiation of such bonds. We see no reason to suppose that this provision does not apply to the subscription which the commissioners of Hancock were authorized to make to the Dayton and Michigan Railroad Company. But to avail himself of the estoppel which bonds regular on their face would create, we think the relator must bring himself within the terms of the act.

It would not be proper for us now to say what would be an issue and negotiation of bonds by the commissioners to entitle a party to the effect given to them as evidence by the statute. It will be better to wait until the facts and circumstances under which the commissioners parted with the possession of the bonds, are brought forward in proof, and then determine whether they constitute such an issue and negotiation as the law requires. Such facts and circumstances may be offered in connection with the bonds, to meet the defenses of illegality. We are now asked to preclude those defenses, and statements made in advance for such a purpose' should be distinct and clear.

There is no express averment in the writ that the bonds were issued and negotiated by the commissioners. Such a conclusion could only be arrived at by inferences drawn from a recital in the bond described in the writ, and from the position of the relator as a bona fide holder of the bonds. We are not prepared to say that inferences would supply the requisite averment. But, independent of that consideration, after a careful examination of the statements in the writ, we do not think they can be considered as equivalent to an averment that the bonds were issued and negotiated by the commissioners.

The demurrer to the second part of the answer will be sustained, and overruled as to the first, third and eighth.

Brinkerhoee, C.J., and Scott, Sutliee, and Peck, JJ.t concurred..  