The relator moves for judgment on the pleadings; and in support of the motion, it is insisted, among other things, that the answer filed by the counsel for the defendant is only the answer of Supervisor McCoppin, who verified it; and that if it is held to be either his answer or that of the board, it does not state facts sufficient to constitute a defence to the action.

It is apparent upon inspection that it is not the answer of McCoppin, for its form is: "The Board of Supervisors do come, and, for answer to the amended petition and affidavit, upon which the application of the above-named plaintiff is made, allege and show," etc. The fact that it is verified by him has but slight, if any, tendency to show that it is his answer, and is entirely overcome by the fact that all the allegations are made in the name of the board. If it can be regarded as a pleading in the cause, it must be held to be the answer of the Board of Supervisors.

The relator objects to the answer being considered the answer of the board, because it does not appear that the board, as an aggregate body, resolved upon and made the return; or, as we understand the objection, that the board has not by resolution adopted the return, as prepared by their counsel, not directed what matters should be set forth in their answer. It is not doubted that the counsel who signed and filed the answer of the board, were duly authorized to represent them, and such being the case, they were fully empowered to appear for them in the action, and do all those things that counsel might lawfully do in behalf of a person who was the sole defendant. In this respect they bear the same relation to the board that they do to the clerk of the city and county, and their authority is the same in either case, and similar presumptions will be indulged in, that the answer is the answer of the persons or body that it purports to be. No authority is cited, holding that it must be stated in the answer to the petition, or the return to the alternative writ, made by a corporation or a board forming a constituent part of the corporate authority, that the corporation or board had resolved upon the return or answer; and no reason suggests itself to our mind why such a statement should not be required in the petition, when a corpora

tion is the relator, if it is necessary in the answer of the corporation. The general rules of pleading are substantially the same in mandamus as in other civil actions. (Tap. on Man., 8 N. Y., 348; Commercial Bank v. Canal Commissioners, 10 Wend., 26; People v. Ransom, 2 Comst., 490.)

Among the numerous cases found in our reports of actions brought by or against corporations, none is noticed in which it stated that the corporation had resolved upon the complaint or answer, or had, as a corporate act, directed what either should contain; and in examining many of the cases cited by Tapping on Mandamus, no such statement is found or said to be required in the return; but it would appear from those cases that it is neither usual nor necessary- the presumption being that it was the return of the officer or body it purported to be. In Mayor of Thetford's case, 1 Salk., 192, which was mandamus to the mayor and Common Council, the return was made in the name of the corporation, but without the common seal, or the hand of the mayor set to it. After search of precedents, which were found both ways, the court held the return good, because they were estopped by the record to say it is not their act; and the court says that the city of London, every year, makes an attorney, by warrant, without either sealing or signing. In Rex v. Mayor of Abingdon, 2 Salk., 431, which was mandamus to the mayor, bailiffs, and burgesses, the mayor made a return, and brought it in to file it, and it was objected to as a return of the mayor and a minority; but Mr. Chief-Justice HOLT said: "It is not fit that we should examine upon affidavit whether there was the consent of the majority." (See, also, Rex v. St. John's Coll., 4 Mod., 241.)

But it is said that there are, in effect, two returns, or answers - that in the name of the board, and that composed of the answers of the six supervisors; and that as the latter is inconsistent with the former, and is made by one-half of the members, it must overrule the answer made in the name of the board at least that, taking all the answers together, they make such an inconsistent return, that they must be all disregarded. We have already said that the members of the board are not parties to this action, and their answers as such

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members must be disregarded. The presumption is that the answer made and filed by the counsel for the board in their name is the answer of the board. "When a corporation aggregate, to which a writ is directed, has regularly resolved upon and made a return, individual dissentients cannot be allowed to dispute its propriety," (Tap. on Man., 341;) but if the dissentients also file a return as the return of the corporation, the court will ascertain which is the return of the majority; and doubtless, without holding to the strict rule in 1 Salk., 192, that the members are estopped to say that the return is not the return of the majority, they may allege that the return is not the return of the majority, or has not been resolved upon by the corporation, and thereupon have the collateral issue determined by the court. That, however, is not the case before us, but the dissentients merely undertake to controvert certain of the facts alleged in the answer of the board, in avoidance of the facts stated in the petition.

The question then occurs, is the relator entitled to judgment on the pleadings, regarding the answer verified by McCoppin as the answer of the Board of Supervisors? The motion of the relator to that effect is equivalent to a demurrer to the answer, on the ground that it does not state facts sufficient to constitute a defence. Section thirty-seven of the Practice Act, providing that "all the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this Act," is applicable to proceedings in mandamus.

The principal facts upon which the right of the relator depends, briefly stated, are as follows; the Board of Supervisors had been commanded by the final judgment of this court to subscribe six hundred thousand dollars to the stock of the Central Pacific Railroad Company, and to issue the bonds of the city and county in payment of such subscription, pursuant to the provisions of the Act of April 22, 1863; that afterward, under the provisions of the Act of April 4, 1864, the Board of Supervisors passed ordinance Number Five Hundred and Eighty-two, approved June 21, 1864, the terms of which were accepted by the relator, by which the parties

compromised the claims of the railroad company upon the city and county, under the Act of 1863, it being agreed that the board should, in lieu of making the subscription and delivering the bonds to the amount of six hundred thousand dollars, deliver such bonds only to the amount of four hundred thousand dollars, without making any subscription to the stock, the bonds to be delivered to the relator, upon the condition that they should be accepted in full discharge and satisfaction of all obligations, claims, etc., of the company against the city and county; that the company tendered to the city and county a full release and discharge of said obligations, claims, &c., to be delivered on the receipt of said bonds; that the Mayor, Auditor, and Treasurer of said city and county, whose duty it was to prepare and sign said bonds, were in certain proceedings in this court, wherein they were the defendant and the company was the relator, ordered by a peremptory writ of mandamus, to execute and deliver without delay, to the company, the four hundred bonds, of one thousand dollars each, as in said ordinances provided. It seems not to be doubted, and the decision in the last mentioned case (People v. Coon, Mayor et al., 26 Cal., 635,) settles the point, that the four hundred bonds to be issued under ordinance Number Five Hundred and Eighty-two, are parcel of the six hundred bonds provided for in the Act of 1863, they differing in the latter only in the date they were to bear.

In examining the answer somewhat in detail, the only question will be whether it states fact sufficient to constitute a defence to the action, and many of the objections taken in the argument by the counsel for the relator, which might have been considered if made the grounds of a special demurrer, or of some proper motion to strike out, etc., must be disregarded.

The defendants' denial that they "became or were lawfully or duly or otherwise bound or obliged to subscribe six hundred thousand dollars, or any other sum, to the capital stock" of the company, or to execute or deliver any bonds, is not the denial of any fact alleged in the petition. The judgment in the case of The People ex rel., Central Pacific Railroad Company v. The Board of Supervisors, etc., whereby the defendants were

commanded to subscribe to the stock, not being denied stands admitted, and the denial that they were bound to obey the judgment, is only a denial of a conclusion or principle of law. (People v. Commissioners of Fort Edward, 11 How. Pr., 89.) If it is permitted to show collaterally that the judgment is void, the points of invalidity must be specified.

The remarks we have just made are applicable to the denial that they were "bound by law to execute or deliver" the four hundred bonds to the company, and the accompanying averment that ordinance Number Five Hundred and Eighty-two is "wholly illegal and void." The facts from which the court might draw the inference that the ordinance was void, and not the assumed inference, should have been stated. The further allegation that neither the board nor the Legislature have the right or power to make a donation to the company of four hundred thousand dollars of the money of the city and county of San Francisco, even assuming that it appeared that such a donation had been attempted, is rather a specification of a ground of demurrer, than an allegation of a fact.

The next averment of the answer is, that the election in the city and county of San Francisco, held pursuant to the Act of April 22, 1863, -the Act authorizing the subscription to the stock of the company,-" was not fairly or properly or legally conducted, but was effected, influenced, and controlled by corruption and bribery," practised and perpetrated by the company and its agents and employees; and they specify nine instances in which the alleged agent of the company employed the company's money to corruptly influence the electors to vote in favor of the proposition to subscribe to the stock of the company. It will be seen, on reading the Act of April 22, 1863, (Statutes 1863, p. 380,) that the board could not be required, and were not permitted, to subscribe to the capital stock of the company, unless a majority of those voting upon the proposition voted in favor of the subscription. It was absolutely essential, therefore, in instituting proceedings against the board, to compel the subscription to be made; that the relator should allege, and, if it was denied by the board, to prove on the trial that a majority of the votes cast were in