Commonwealth ex rel. Hamilton versus The Select and Common Councils of the City of Pittsburgh, 34 Pa. 496 (Pa.)

The opinion of the court was delivered by

Strong, J.

The alternative mandamus in this case, following the suggestion of the relator, avers that he is the owner of two certificates of loan or bonds of the City of Pittsburgh, each for the sum of $1000, the ownership of which he acquired by pur

chase; that these certificates of loan, or bonds, with others, amounting in all to the sum of f150,000, were issued by the said city in payment of a subscription for three thousand shares of the capital stock of the Chartiers Valley Railroad Company ; that all the bonds are signed by the mayor of the city, countersigned by the treasurer, and sealed with the city’s corporate seal; and that they pledge the faith, credit, and property of the said City of Pittsburgh for the payment of the principal and interest thereof. It is further averred, that by an Act of Assembly, approved February 7th 1853, the organization of the Chartiers Valley Railroad Company was authorized, and the City of Pittsburgh was empowered to subscribe to the capital stock of said company, not exceeding the number of five thousand shares, to borrow money for the payment of such subscription, and to make provision for the payment of the principal and interest of the money so borrowed by the assessment and collection of such tax as may be necessary for that purpose, as in other cases of loans to corporations. It is further averred, that the Act of Assembly provided, that the subscription to the stock should be directed by resolution passed by the corporate constituted authorities of said city, and that accordingly the councils thereof, by ordinance passed the 27th day of June 1853, authorized and directed the mayor to subscribe in behalf of the city three thousand shares of the capital stock of said company, and to make and execute bonds for the payment of such subscription. Still further, it is averred, that the bonds were duly transferred in accordance with the Act of Assembly, and that a large amount of interest is now, and has been for a long time past, due and payable upon them, but that the City of Pittsburgh has wholly neglected and refused to pay said interest so due, or to make' any provision whatever for the payment thereof; and that under the Acts of Assembly it is the duty of the Select and Common Councils of the said city, in each and every year, to provide for the payment of said interest, by the assessment and collection of such taxes as may be necessary for the purpose; but that they have wholly and wrongfully neglected to make any provision whatever for the payment, notwithstanding the holders of the bonds or certificates of loan have demanded and endeavoured to procure payment.

We shall spend no time in endeavouring to prove, what is apparent upon the face of this statement of facts, that it presents a fit case for a mandamus. Here is a clear legal right in the relator, a corresponding duty in the defendants, and a want of any other adequate and specific remedy. No action at law would lie at the suit of the relator against the defendants, for not making provision for the payment of the interest, for not levying and collecting a tax, which is the thing sought to be accomplished by this writ. That an action might be brought against the city upon the bonds

themselves is true, hut that is not the right here asserted, nor would it enforce the duty alleged. The liability of the city to pay the bonds is one thing, the duty of the councils to make provision for their payment is quite another. The city councils are public bodies, and the members of the council are public officers. Nothing is better settled than that mandamus is the appropriate writ by which the Commonwealth compels the performance of a public duty. The propriety of this form of remedy for such a case as this relator presents, was fully vindicated' in Commonwealth ex rel. Thomas, v. The Commissioners of Allegheny Co., 8 Casey 218, and both English and American authorities were referred to in support of its use. Cases are numerous in which the writ has been sustained to enforce the levy and collection of a tax : Queen v. The Wardens of the Parish of St. Saviour, 7 Ad. & El. 925; Queen v. The Select Vestrymen of St. Margaret, 8 Ad. & El. 889; Queen v. Thomas, 3 Com. Bench 589. Tapping, in his Treatise on Mandamus, says, page 67, “ The writ has often been granted to command churchwardens to make and raise one or more rates for the repayment of principal money, with interest, borrowed on the credit of the parish and church rates.” So it has been granted to command justices to tax, rate, and assess a parish for the support of the poor. In the case of The Justices of Clark v. The Paris, &c. Turnpike Road Company, 11 B. Monroe 143, it was decided, that mandamus was the appropriate and only remedy for compelling compliance with a duty to levy money to pay a subscription to the stock of a turnpike road company. In Graham v. City of Maysville, 6 Am. L. R. 589, it was applied by the Court of Appeals of Kentucky to a case in all essential particulars like the present. Many other similar decisions might be cited. If, then, the relator is the owner of some of the bonds upon which interest is due and payable, and if it be the duty of the defendants to make provision for the payment of the interest, by levying and collecting a tax, a duty which they have neglected and refused to perform, it is no novelty that they are called, upon by the writ of mandamus to discharge that duty. The novelty is in the necessity for the writ, and not in the writ itself.

Before entering upon an examination of the return made by the defendants to the alternative writ, it seems proper to dispose of the objections urged against the writ itself. They are eleven in number, and all of them are merely formal. The first is, that it does not aver or set out any law conferring authority upon the City of Pittsburgh to make provision for the payment of bonds, or interest accruing thereon, by assessing and collecting taxes, but avers that a subscription was made, and that bonds were issued in payment of said subscription, without showing any authority of law for the issue of bonds for that purposb. The writ does,

however, aver authority in the City of Pittsburgh, conferred by an Act of Assembly, to subscribe to the capital stock, to borrow money to pay for the subscription, and to make provision for the payment of the principal and interest of the sum so borrowed, by the assessment • and collection of a tax. A power to borrow money, surely it need not be argued, includes the power to give bonds or other usual securities to the lender. We cannot be expected to decide that the bonds are illegal, because the Act of Assembly did not specify what securities might be given for the money borrowed, or that a power to borrow money to pay a debt, including as it does the power to issue bonds, is not executed by giving bonds to the creditor. In substance, the money is borrowed from the purchasers of the bonds; it is advanced on the faith of the city’s obligations, for the very purpose for which the city was authorized to raise it. Apart from the fact, that the Act of Assembly referred to in the writ authorized the bonds issued for the purpose of borrowing the money; to be given and received in payment of the subscription, it is to be observed that they were, in fact, made payable to bearer, that they might readily pass from hand to hand. The Chartiers Valley Railroad Company may therefore well be considered the agent of the obligors, to raise money upon their obligations. It has never before been doubted, that he is a borrower, who executes his bonds payable to bearer, and then, by his agent, sells them in the-market.

It is next objected, that the writ does not set out when the principal of the bonds is payable, what rate of interest they bear, or the time or place at which it is payable. No attempt has been made to inform us why such allegations are needful. The date of the bonds, the facts that they do bear interest (which of course is legal interest, when no other rate is mentioned), the fact that interest is in arrear, the fact that the relator is the owner of some of the bonds, and the fact that the defendants have made no provision for payment, but have wholly neglected and refused to make provision, although it is their duty by law to make it, are averred, and if these averments of fact be true, the right to a peremptory mandamus is complete. The respondents are not now asked to make provision for the payment of the principal, nor are they by this proceeding required to pay even the interest; the demand of the writ is only that they provide for the payment of the interest. To a compliance with this demand, it is of no consequence that the writ should state when the principal will become payable, or when or where the interest is to be paid.

The next objection is, that the writ does not set out the relator’s title to the bonds, but simply avers that he became the purchaser, without stating how they were 'transferred, or the consideration paid by him. The averment of ownership of the bonds by the relator is only necessary to show his right to ask the interference

of the court hy mandamus. If he has a legal right, no matter how he acquired it, it is all that the law demands. The amount of the consideration paid by him on his purchase, or the mode in which the bonds were transferred to him, are quite immaterial to the question whether he has a legal right. But the writ does aver that the bonds were purchased by the relator, and that he holds them in his own right, and it also asserts, that they were duly transferred in accordance with the Act of Assembly.

The fourth exception is, that the relator alleges that coupons for the interest were attached to the bonds, but does not aver that he is either the purchaser or holder of any of the coupons, while the copy of the bond attached to his affidavit shows that the interest is only payable on the presentation of the coupons. If the exception means anything, it is that the relator’s legal right is not sufficiently averred. It is, however, set out that he is the purchaser and holder of bonds bearing interest, and that all the bonds-have coupons attached. The ownership of the bonds necessarily includes the ownership of the right to the interest secured by them, and of the coupons attached, which are themselves part of the securities. The writ does therefore aver sufficiently the relator’s title to the interest, which the defendants neglect and refuse to provide for.

It is next urged, that the writ is insufficient, because it contains no averment that any demand was ever made upon the councils to make provision for the payment of the interest alleged to be due, by the assessment and collection of taxes for that purpose. It is undoubtedly the general rule, that the writ should contain an averment of a demand and refusal. The reason assigned is, that it should appear that the defendants have had the option of doing or refusing to do that which is required of them, before the application be made to the court for compulsory process. This is a right of the defendants; but, like all other rights, it may be waived. The law never requires a vain thing. Thus, in cases where a tender is necessary, if the party to whom it is due declares that he will not accept it, none need be made; a readiness to make it in such a ease is all that is required. Here, the writ avers, not alone that the defendants have neglected, but that they have refused to make any provision for the payment of the interest. The allegation is, that they have had their option (all which a demand is intended to give), and that they have chosen to refuse. That a precise demand is not necessary in all cases, is shown in Regina v. Kendall, 1 Ad. & El. (N. S.) 386; and in regard to a refusal, anything which shows that the defendant does not intend to perform the duty, is sufficient to warrant the issue of a mandamus: 4 B. & Ad. 530; 10 A. & E. 561; 8 A. & E. 889, 901; Graham v. City of Maysville, supra.

The sixth exception taken to the writ is, that it contains no

reference to any act or law which makes it the duty of the Select and Common Councils of the city of Pittsburgh, or the defendants, to assess taxes for any purpose. Even if it were necessary to refer to and'recite the particular Act of Assembly which imposes upon the defendants the duty, the performance of which the writ commands, it is a sufficient answer to this exception that it is not founded in fact. The writ avers that by virtue of the Act of February 7th 1853, and also of the Act of Assembly, conferring upon the Select and Common Councils of the city of Pittsburgh power to assess and collect taxes for the use of the said city, it became their duty to provide for the payment of the interest upon the bonds, by the assessment and collection of such taxes as may be necessary for the purpose.

It is absurd to argue, that conferring such a power is imposing no duty. The Select and Common Councils are public agents, created to perform a public trust. One of the purposes of their creation is, that they may provide for the payment of the debts of the city. It is true, that the Act of February 7th 1853, only declares that the city “shall have power” to make provision for the payment of the principal and interest of the money borrowed, by the assessment and collection of a tax; but in a statute the word may means must or shall, in cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power should be exercised. Thus, in Rex v. Barlow, 2 Salk. 609, churchwardens were indicted for not making a rate or assessment under the statute of 14 Car. 2, for the reimbursement of some constables. The words of the statute were, they “ shall have power and authority to make a rate;” but the statute was construed to be peremptory, imposing a duty, because the constables had an interest in the exercise of the power. ’In the King v. The Inhabitants of Derby, Skin. 370, it was said that may, in the case of a public officer, is tantamount to shall. In the Newburg Turnpike Co. v. Miller, 5 Johns. Ch. 113, it was. said, that whenever an act to be done under a statute, is to be done by a public officer, and concerns the public interest, or the rights of third persons, which require the performance of the act, then it becomes the duty of the officer to do it. Malcom v. Rogers, 5 Cow. 188, is to the same effect. The duty of the city is therefore imperative, to «jassess and collect taxes, and the power and corresponding duty are, by one of the acts referred to, devolved upon the Select and Common Councils.

It is a sufficient answer to the seventh objection to the writ, that the Act of February 7th 1853, directs that provision be made for the payment of the principal and interest of the debt incurred by the subscription, by the assessment and collection of a tax. The case is very unlike the King v. The Margate Pier Co., 3 B. & A.

220. That was a mandamus to a corporation, commanding them to pay a poor rate. The ordinary remedy was a distress, and the writ omitted to state that the defendants had no effects upon which a distress could be levied. But here the writ avers, that by reason of the neglect and refusal of the defendants to perform their legal duty, i. e., that of making provision, the relator has been unable to recover the amount of interest now, and for a long time past due and unpaid.

The eighth exception is, that the writ does not sufficiently aver the want of other legal remedy. It does, however, distinctly assert, that the relator cannot have adequate relief without the aid of a writ of mandamus, and no more need be averred. It is all which was alleged in the case of Commonwealth ex rel. Thomas v. The Commissioners, and the averment was there held sufficient.

The ninth exception is, that the mandate is to provide for interest not yet due, and which may never become due, and therefore anticipates a future violation of duty. The mandate is to make provision for the payment of all the interest due when the writ issued, and all that should become due during the year 1859. Providing for the interest due, and all that would become due while the defendants are in office, is in reality one duty, and a refusal to take the first step is a refusal to perform any part of the duty.

The tenth objection is, that several parties, claiming under different rights, are joined in the same writ. This is a mistake of the fact, and therefore needs no further notice.

The eleventh and last exception is, that the writ does not mention the amount of interest due, or for which provision is to be made. It is, however, in this respect sufficiently certain. It describes the bonds, their date and amount. They are bonds of the City of Pittsburgh. Erom the necessity of the case, the amount of unpaid interest must be known to the obligors. The extent of their duty is therefore defined. In this particular the writ is like that in Thomas’s case, which was ruled to be sufficient.

This is all which need be said respecting the objections urged against the writ itself. They are all thoroughly technical, and many of them have been heretofore held by this court to be unavailing: 8 Casey 218.

We pass, now, to the return made to the. alternative writ. Several matters are alleged as reasons why the duty which the writ seeks to enforce has not been performed, and why a peremptory mandamus should not issue. The first is, an objection to the jurisdiction of this court. That jurisdiction is by the Constitution declared to be co-extensive with the state. The power to issue writs of mandamus has always been exercised by the court, and recognised as an .existing power, again and again, by the legisla

ture. We do not understand this to be denied, but it is contended, that the court, while sitting in the Eastern District, is not authorized to send its writ to the defendants, .who are resident in the Western District. The state, it is true, has been divided into four districts, but for what purpose ? It was not to limit the jurisdiction of the court, or to restrict the range of its writ. The districts were created, as the Act of Assembly declares, solely for the purpose of holding the Supreme Court, and the judges are required to hold terms in each district. If this be the object of division into districts, it can have no effect upon the range of the court’s writ. Were there no such division, it would hardly be claimed, that the writ might not go to any part of the state, from the place where the court might be in session. Accordingly, it has been ruled, that the Supreme Court, at its session in either of its districts, may issue writs of mandamus to any part of the state: 9 Harris 9. And indeed it must be so ; for if these writs, and writs of quo warranto, did not run beyond the limits of the district in which the court is in session, there would be in many cases a failure of justice. The ruling in 9 Harris 9, was followed in Thomas’s case, and is no longer opeh to question. Nor certainly can there be any reason to complain, when the defendant is heard within the district in which he resides.

The next averment of the return is, that there is no such corporation or body politic, known to the law, as the City of Pittsburgh, of whose councils, Select or Common, the persons named in the writ are supposed to be members, but that the corporate name is “ The Mayor, Aldermen, and Citizens of Pittsburgh.” The writ is directed to the Select and Common Councils of the city of Pittsburgh, composed of D. Fitzsimmons and others, defendants. It is not directed to the city, but to the individuals who constitute the Select and Common Councils. The question is not, therefore, whether, if an action had been brought at law against the City of Pittsburgh, the misnomer might have been pleaded in abatement, for it is not the corporation which is sued. But even if it were, the mistake is amendable. Formerly, when the doctrine of amendments remained as at common law, the court would not allow a writ of mandamus to be amended after return filed; but, as is said by Tapping, p. 834, the strict rule of the common law has been, of late years, altogether departed from; the principle, as to amendment, which now obtains being, that it shall be allowed in all cases, when such a course will promote justice. Thus, in a late case, the court ordered the writ to be amended during an argument, in order that such argument might proce'ed independently of such objection: Rex v. Newbury, 1 Q. B. 759. It needs no argument to prove that justice would not be promoted, by turning the relator out of court because he has described the defendants as members of the Select and Common

Councils of Pittsburgh, instead of members of the Select and Common Councils of “ The Mayor, Aldermen, and Citizens of Pittsburgh.” Even the very act which incorporated the city, more than once denominates it the City of Pittsburgh. One of our statutes of amendments authorizes an amendment of the record of any action, in any stage of the proceedings, when it shall- appear, by any sufficient evidence, that a mistake has been made in the Christian name or surname of any party, plaintiff or defendant. As statutes of jeofails are construed liberally, it would seem to be within the spirit of this act to allow an amendment of a corporate name, when a corporation is a party; but whether it would or not, need not now be decided, for the mandamus is not to the artificial being known either as the City of Pittsburgh, or as “ The Mayor, Aldermen, and Citizens of Pittsburgh.” It is not, therefore, misdirected.

The third averment of the return is somewhat similar to the second. It is in substance, that by none of the Acts of Assembly mentioned, is the corporation known by the name and style of The Mayor, Aldermen, and Citizens of Pittsburgh, authorized to subscribe for stock of the said railroad company, or to issue bonds therefor, or to make provision for the payment of the principal and interest thereof. It is not denied, that such authority was conferred upon the City of Pittsburgh, nor indeed could it be, for it is in direct terms by the Act of February 7th 1853. What is this, then, but an evasive averment ? In construing the statute, we are to give effect to the legislative intention, and in speaking of the corporation, it is generally denominated the City of Pittsburgh. This is its common name in the numerous statutes which have been passed conferring upon it privileges, and it has never before been doubted what the legislature intended. Thus, among many instances, when, after the great fire, a state appropriation was made for the relief of the sufferers, it was made only for the sufferers by the fire in the City of Pittsburgh, and was directed to be paid to the Mayor and Select and Common Councils of the said city. Who questioned, then, that this was a benefit conferred upon the Mayor, Aldermen, and Citizens of Pittsburgh? We should justly be regarded as trifling with statutory enactments, were we to hold that the Act of 1853 did not confer upon the municipal corporation the power to subscribe for stock, to issue bonds, and to make provision for the payment of the principal and interest thereof.

Next it is pleaded, that the Select and Common Councils of which the defendants are members, are by law deliberative and legislative bodies only, possessed of an entire discretion in the exercise of all the power committed to their hands, subject to no control whatever beyond their own sense and convictions of duty, so long as they are acting within the legitimate sphere of the

powers conferred upon them. This is at most a denial of the legal duty, which the writ charges to he resting upon them, coupled with a negation of the right of this court to control their discretion. It may he admitted, that if respondents have an option to do one thing or another, courts will not award a mandamus to compel one thing to he done. They cannot he compelled to exercise their discretion in a particular way. Yet, even a judicial officer, as has often been decided, may be commanded to proceed to judgment — an arbitrator to make an award — though what the judgment or award shall be, the court will not direct: Tapping 109. But this is not a case in which the defendants have any discretion. This averment in their return mistakes their legal duty. It is not an obligation to consider, to use a discretion, but it is an obligation to act. The 6th section of the Act of February 7th 1853, gave them power to make provision for the payment of the principal and interest by the assessment and collection of such tax as may be necessary for that purpose. As they are public officers, and as the relator is interested in their thus making provision, the possession of the power brings with it the duty to exercise it. Their discretion is taken away. _ This has already been shown ,by our remarks upon one of the objections taken to the form of the writ, and the authorities need not again be cited.

Next, the return avers that the Select and Common Councils are not integral parts of the corporation, but only several and co-ordinate branches of the legislature thereof, acting separately and independently of each other; that the concurrence of both bodies is essential to the validity of all legislative acts affecting the corporation; and that the defendants are without power of themselves to assess or impose taxes, or to compel the concurrence of the other .branch of said councils in any act. We do not perceive that this is any answer to the mandate of the writ, and no attempt has been made to show us how the fact avez-red is material. The defendants are all the members of both branches, and if each discharges his duty, there can be no want of concurrence of councils.

The 6th averment of the return, after reciting the Act of 1853, and the ordinance authorizing the subscription, and after admitting that the subscription was made as averred in the writ, and that bonds were given to the company for the amount, proceeds to chaz’ge that the Act of Assembly provided that the bonds should be transferable in such manner as should be directed by the city, and that they might be received by the company in such manner as might be agreed upon between the parties. The defendants then aver, that no money was borrowed to pay for the stock, but that the bonds were made payable, and actually delivered to the

company itself, and that no direction was given by the corporation as to the manner in which the bonds should be transferable. How does all this negative the liability of the defendants to make provision for the payment of the interest ? Conceding the facts alleged, as the demurrer does, it is only by drawing an erroneous inference of law from those facts, that they become of any importance. We have already shown, that giving the bonds to the company in payment, was a mode of borrowing authorized by the act. But the payment to the company by the bonds was expressly authorized. It would be most illiberal construction, even if it were not so, to hold that the power to assess a tax was conferred only in case the money should be borrowed from third persons and paid to the company.

The other assertion of fact, that the city did not direct how the bonds should be transferred, if it means anything, is a blow at the title of the relator; but it is not denied, in any part of the return, that they were made payable to bearer, and therefore that they passed by delivery, or that they were thus made by the agents of the city. This obviously amounts in effect, though not in words, to a direction of the mode in which they should be transferred. When, therefore, it is averred, that there was no direction, it can only be intended that there was none by express ordinance. The averment is therefore wholly immaterial. It would be allowing a gross fraud, if, after the city has executed its bonds, affixed to them its corporate seal, made them payable to bearer, and sent them out to find purchasers, it might be permitted to say, to one who has advanced his money on the faith of them, that it had not directed how they should be transferred.

The next allegations of the return are, that the city ordinance, which directed the subscription, provided that the directors of the company should-agree with the city in writing to pay the current interest accruing on the bonds; that the subscription should not be made until subscriptions to the amount of $350,000 had been first obtained from other responsible sources, other than contractors ; that the money realized from the sale of the bonds should be expended in the construction of the road nearest Pittsburgh; that no bonds should be issued or signed by the mayor until the survey and location of the road should be first made and agreed upon by the board of directors: and also, that the councils should appoint three of their number as a committee, under whose control the bonds should be sold, of all which the relator and other holders of the bonds had legal notice, as the defendants believe. The return then proceeds to aver that these conditions were not complied with, and that the company has not paid the current interest, but that it is insolvent.

If the facts thus pleaded can avail the defendants at all, it must be because they show that the city is not liable upon the

bonds. If, therefore, these facts be all admitted, and yet the liability of the city to pay the debt exist, they constitute no sufficient answer to the writ. Now, it is to be observed, that, by the provisions of the ordinance itself, the mayor was designated as the agent of the corporation to make the subscription, to execute and issue the bonds, and to enter into the agreement with the company that it should pay the. current interest. He was the agent of the city alone. True, he was required not to subscribe, or sign bonds, or issue them, until certain preliminary things, intended for the benefit of the city, had first been done; but, from the nature of his agency, he was to determine whether they had been done. When, therefore, the bonds were issued and came into the hands of a purchaser, he had a right to presume that everything preliminary to their lawful issue had been done; for if it had not, the obligors were in fault. The bonds themselves, though referring to the ordinance, gave the purchaser no notice of any default in the city’s agent. The return charges, indeed, that the relator and other bondholders had notice of the ordinance and its requirements, but it does not aver that they had any notice of the alleged facts that those requirements, which were prerequisites to the issue and sale of the bonds, had not been complied with. Those facts are entirely outside of the ordinance itself. Still more, the bonds were created for the purpose of sale. They were intended as a means of raising money for the construction of the railroa.d. It was with this design that the municipal subscription, payable in bonds, was authorized by the legislature. If it had been required that the company should-retain the bonds, they would have been useless in the prosecution of their work, and the purpose of the subscription would have been defeated. It was so understood by the city, for the ordinance speaks of their sale, and requires that the moneys realized from the sale should be expended in the construction of the part of the road nearest Pittsburgh. Accordingly, they were issued in the best form for sale and easy transfer; they were made payable to bearer, and consequently passed by delivery. Again, the ordinance directed that the bonds should be issued bearing interest, payable half-yearly; in other words, that by them, the city should assume the obligation to pay not only the principal but the interest, and so the bonds were in fact put upon the market.

Now, under these circumstances, it can with no reason be contended, that the purchaser of the bonds stands in no better situation than the Chartiers Valley Railroad Company, which received them in payment of the subscription. We have not, it is true, decided that such securities are negotiable in the sense in which' bills of exchange and promissory notes are held to be, and, in this particular, we have not gone so far as the tribunals of our sister

states, and of England, have gone. We carefully avoided so deciding in the case of The Commonwealth v. The Commissioners of Allegheny County, and thus left open a door through which that county might, if she would, secure all the equities which she has. But it has been ruled in this state, that the legal title to a bond of a corporation, payable to bearer, passes by delivery, and that the holder may sue in his own name: Carr v. Le Fevre, 3 Casey 413. In other words, the obligor is regarded as having bound himself directly to the holder. In the ordinary case of an assignment of a bond, the assignee doubtless takes the security, subject to a right in the obligor to defalcate against the assignor, or show want of consideration or non-existence of the debt. We speak now of assignments which pass the legal title. But, as was said by Gibson, J., in Davis v. Barr, 9 S. & R. 141, “With any agreement between the original parties, inconsistent with the purport or legal effect of the instrument, the assignee has nothing to do. * The assignee is not bound to call upon the obligor for information about matters, the existence of which he has no reason to suspect; the necessity of inquiry being limited, as I have said, to want of consideration and set-off.” This statement is not, indeed, precisely accurate. The obligor may set up against an assignee of the obligee, not only set-off and want of consideration, but he may disprove the existence of the debt. Yet he cannot assert a secret equity, or an agreement merely collateral. And even in the case of an ordinary bond, if it be placed in the hands of an obligee, for the purpose of enabling him to raise money upon it, the purchaser is affected by no want of consideration or defence of the obligor against the obligee. Any other rule would be enabling the obligor to perpetrate a fraud, and indeed, to make use of that fraud to his own advantage. It has often been ruled, that if the obligor encourage a transfer of a common bond, he cannot afterwards deny that he owes it, and this, though the transferee hold it only by equitable assignment. The principle of such a ruling applies with double force to bonds made payable to bearer, where the legal title passes by delivery, and which have been issued for the purpose of sale. The purchaser ,of such a bond has a right to presume that every prerequisite necessary to give force to the instrument has been complied with, •especially, when it is a prerequisite only for the benefit of the obligor.

That portion of the averment which alleges that one of the conditions upon which the bonds were directed by the ordinance to be issued was, that the company should agree to pay the current interest, and that they were delivered to the company on that condition, comes far short of a denial that the city is liable to pay interest to a purchaser and holder. The agreement of the company to pay current interest, was to be an agreement with

the city, not with the bondholder. It was for the benefit of the city exclusively that it was demanded, and it could by no possibility affect the right of the holder of the bond. The bonds, as has been seen, were authorized by the ordinance to bind the city to pay interest, and they were in truth so issued. That it was intended that the holder was to get interest is not denied, but how could he get it except from the city ? The agreement of the company was no contract with him, and the transfer of the bond to him could not amount to an assignment of any security for the payment of interest which the obligor held. It would not pass even if it had been an engagement of a third person to the company to pay the interest: Beckley v. Eckert, 8 Barr 292. Much less when it is a promise to the debtor. In Davis v. Barr, it was held, that with an agreement of the original parties to restrain the use of a bond, an assignee of it had nothing to do. It would be extraordinary, if, in a suit upon a bond of a principal and surety, even the latter could set up as a defence, that the principal had agreed to pay the interest, and that therefore he was not liable; but it would be still more extraordinary if the principal debtor could defend himself under such a promise of the surety. Yet, in this case, the company is not so much as a surety, so far as relates to the holders of the bonds. True, when the bonds were passed- from the company, a guarantee of the principal and interest was endorsed, but if the bonds do not bind the city to pay interest, there is nothing but the principal upon which the guarantee can operate. Nor could it make any difference if the holder had notice, when he took the security, that the company had agreed to pay the interest, for the bond in words gave him the obligation of the city to pay, and whether it be as primary debtor or surety, it could not affect him. We have, however, said enough upon these averments of the return to show that they are wholly insufficient.

Next comes an allegation, not of any fact, but of a supposed principle of law. It is, that the bonds, being under the seal of the corporation, are open to every legal defence appearing on their face, and subject to every equity to which they were liable in the hands of the original holders; that all purchasers are affected with notice of such defences; and that the corporation, when sued in a court of law, may avail itself of all such defences, whether legal or equitable. This has already been sufficiently considered and shown to be only partially correct in its application to this case, not standing at all in the way of the relator’s right, or the city’s liability.

The next averment is but a repetition of what was held in Commonwealth ex rel. Thomas v. The Commissioners, &c., to be wholly insufficient. It is most evasive. Taken as a whole, it is no denial

Of what the writ asserts, that the relator purchased and is possessed of the bonds.

The assertion that as to any of the bonds other than those held by the relator, the defendants are not bound to answer in this suit, can hardly be called an averment of any fact. It seems intended, however, as an objection to a supposed misjoinder of parties, and, as such, rests upon a plain misconception. The defendants are not called upon to answer several parties, but to respond to the Commonwealth for an alleged neglect and refusal to perform official duty. If that duty exist at all, it is to assess and collect taxes to pay the interest upon all the bonds, and that duty is the same whether one or all of the bondholders apply for the writ of mandamus: Tapping 325. That obedience to the writ may have the effect of perfecting the rights of many, is no objection to a writ prosecuted by one relator.

The 12th and next averment is double. The defendants deny that the bonds, or any of them, were transferred in accordance with the Acts of Assembly, or any of them. They also aver that they are prohibited from laying on any more tax on the valuation of taxable property than is already assessed and required for the ordinary uses of the city.

The defendants do not deny that the bonds were transferred, but only that the transfer was in accordance with the Acts of Assembly. It would be absurd to hold that such an averment negatives any material part of the relator’s case. If a transfer, according to Acts of Assembly, was necessary, then the return should aver the particular facts which distinguished the transfer from such an one as the statute demands. Such a return as this has been denominated shuffling, and held therefore to be utterly insufficient. See case cited in Tapping 352, where the return was, that “ a rate was not made according to Act of Parliament.” A writ of mandamus is not to be answered by a frivolous, evasive, or uncertain return; nor can it be answered by any legal inferences of the defendants from facts not stated. This court has a right to know what the facts are, that it may judge whether the legal inferences are well drawn.

The other averment may be considered in connection with the 16th substantive allegation of the return, which is more definite and certain. It is declared, that the act incorporating the town of Pittsburgh into a borough, prohibited the levy of any tax in any one year exceeding half a cent on a dollar on the valuation of taxable property, unless some object of general utility should be thought necessary, in which case a majority of the taxable inhabitants should approve and certify the same in writing; that this act is recognised and adopted in the act defining the powers of the councils of the city; that the tax, now and for. a long time past, required and assessed for the ordinary uses of the city, is at

the rate of half a cent on the dollar annually of the valuation; and that a majority of taxables have never, in writing, approved of the subscription, or of the levy of any additional tax therefor.

The facts pleaded in these averments, so far as they are facts and not legal conclusions, are admitted by the demurrer, but it is still an open question whether the law does impose upon the councils such a restriction as to render the performance of the act, enjoined by the writ, illegal, and therefore impossible. Now, without inquiring how far the powers of the councils were limited by the Act of Assembly incorporating the city of Pittsburgh, it need only be noticed that the very act which authorized the subscription, also empowered, and, as we have seen, made it the duty of the city (acting, of course, through its councils) to provide for the payment of the principal and interest of the debt incurred by the subscription, by the assessment and collection of such tax as may be necessary for that purpose. If there was any restriction upon the rate of taxation before, which we do not say, it was certainly removed by the Act of February 7th 1853, so far as relates to the levy of a tax for the payment of the principal and interest of the debt incurred by the subscription. When the legislature gave the power, it gave with it everything which was necessary for its exercise, and repealed every statutory prohibition of its enjoyment.

The remaining averments of the return may be disposed of in a few words. That the liability of'the city upon its bonds is disputed, and that no judgment has been recovered to warrant a mandamus execution, are wholly insufficient allegations. The defendants must obey the writ, or show facts from which this court may determine that the debt is not due by the city, or at least that it is doubtful whether it be due. And this writ is not to be confounded with a mandamus execution. Nor is the pend-ency of a suit, upon other bonds than those of the relator, at all material, in the absence of any averment of facts which, if true, would amount to a defence. The same matter is not in controversy in that suit which is contested here.

The 17th averment of the return, in which the defendants allege that they cannot conscientiously consent to levy a tax, because they do not believe that the relator and other holders of the bonds have any legal claim against the city, certainly has the merit of novelty as a defence. -It will hardly be expected that we should spend time upon that.

The denial of a demand for the interest has already been sufficiently discussed in our notice of the objections taken to the writ. It is not denied, that the defendants have refused and still refuse to make provision for the payment of the interest. That the company paid until' its insolvency, cannot relieve them from

liability to provide for the payment of what is in arrears, if the city be liable to pay.

The only other allegations of the return are general averments —that the city is a municipal corporation; that the citizens and property-holders never conferred upon the mayor or councils the power to subscribe for stock in a railroad company; that the bonds were issued under the authority of the legislature, without the authority of the inhabitants of the city; and that, therefore, the bonds are not in the nature of a contract. These averments seem intended to negative the policy and constitutionality of the Act of Assembly authorizing the subscription. We shall not discuss them. The impolicy of municipal subscriptions to stock in railroad companies must be admitted, but the constitutionality of laws authorizing them has been sustained not only in this state, but in our sister states, by a weight and uniformity of judicial decisions, such as very few other constitutional views have been able to bring to their support.

Upon a review of the whole case, therefore, we find ourselves constrained to adjudge the return to the alternative mandamus insufficient. We might have shown that many of its allegations are uncertain, argumentative, or evasive, but even if the facts alleged be treated as well as pleaded, they amount to no justification for a neglect or refusal to make full and ample provision for the payment of the interest upon the bonds (amounting to $150,000), by the assessment and collection of such taxes as may be necessary for the purpose.

Judgment must, therefore, be entered upon the demurrer •against the defendants, and a peremptory writ awarded.

And now, to wit, February 13th 1860, this cause having come on for hearing, at the last term of the court at Pittsburgh, was fully argued by counsel, whereupon the court, after due and mature consideration thereon had (for that it appears that the said return by the said defendants, made to the alternative writ, is altogether insufficient), do order and adjudge that judgment be entered upon the demurrer for the Commonwealth ; and that the defendants and their successors in office be, and they are hereby commanded forthwith to make full and ample provision for the payment of all the interest now due upon the bonds issued by the Mayor, Aldermen, and Citizens of Pittsburgh, in payment of their subscription of $150,000 to the capital stock of the Chartiers Yalley Railroad Company, according to the tenor of said bonds, by the assessment and collection of such taxes as may be necessary for the purpose. And it is further ordered that the defendants pay the costs of this suit.