(dissenting). — I dissent. While I have not read the most of the eases cited in the majority opinion, I am satisfied they did not involve a contract like the contract upon which this action is based. But " why,” say the majority, "should a judgment be allowed at all against the municipality, as the contractor has a right to proceed against the officers and enforce the assessment? Why subject the city to the primary liability? ” I answer, for the very best of reasons, viz.: because it contracted to assume the primary liability, and the citation from the contract in the opinion shows this conclusively. It expressly covenants that it will prosecute the business of collecting this assessment without delay. It was upon this provision of *344the contract that the contractor no donbt relied. "Why should the city not be compelled to respect its contracts? The essence of the whole controversy is this: A contract has been made, plain and specific in its terms. That contract has been violated by the appellant, to the injury of the respondent, and I think it a most excellent idea to compel the performance of a contract by a city the same as by a private individual. The only other question is, did the city have the authority to make such a contract? I think it did. The city councilmen are the agents and trustees of the taxjayers of the city and not of the parties with whom they are contracting; and the improvements of streets, while they may be paid by local assessment, are matters which affect the interest of the whole city and every taxpayer in the city, and are matters falling especially within the general jurisdiction of the city council.
The judgment should be affirmed.