By the Court.
Porter, J.It is quite evident from the inaction and delay of the board of supervisors, as well as from the grounds on which the application for a mandamus Avas resisted, that the board did not recognize its obligation to raise the moneys in question under the act of 1860. There was, it is true, no formal refusal; but we think the court below Avas right in holding that, under the circumstances disclosed in the affidavits, the neglect of the board was equivalent to a refusal to comply with the requisition. Reg. v. St. Margaret, 8 Ad. & E. 889, 904; People v. Supervisors of Richmond, 20 N. Y. 252, 253.
The question whether the act of 1855 was constitutional is not necessarily involved; and such questions are never considered in this court unless they are essential to the determination of the appeal. Frees v. Ford, 6 N. Y. 176. The authority which the supervisors were called upon to exercise was conferred by a subsequent law, the validity of which is entirely clear. L. 1860, p. 1024, c. 509, § 6; Thomas v. Leland, 24 Wend. 65; Townof Guilford v. Supervisors of Chenango, 13 N. Y. 143; Brewster v. City of Syracuse, 19 Id. 116. The board was empowered, by the act of 1860, to raise and collect by tax, a fund, not exceeding eighty thousand dollars, and sufficient to pay such amount as might be found due to the contractors with the commissioners of records. It was neither charged with the duty nor clothed with the power of making payment. The act left it with the courts to determine whether the claimants were entitled to the money so raised, and the comptroller was not authorized to pay it over until the rights of the contractors should be judicially ascertained.
The record discloses the fact that, at the time of the passage *570of the act of 1860, a litigation was pending between the contractors and the appellants, in which an issue was made as to the validity of the law appointing the commissioners; and the design of the legislature evidently was, to direct the raising of a fund sufficient to meet the demands of the claimants, for services rendered by them for the public benefit and on' the pledge of the public faith, and the performance of which was certified by the proper officers in conformity with the provisions of the act of 1855. . It is equally plain that the legislature did not intend to direct the payment of the fund from the treasury, until the rights of the parties beneficially interested should be fixed by legal adjudication'.
It is insisted that the judicial determination, which, by the terms of the act, was to precede the application of the fund by the comptroller, was a condition precedent to the authority of the board to raise it. Such a construction would bb subversive of the plain purpose of the provision. If the precise amount to be paid was to be fixed by judgment before the action of the supervisors, there would have been no propriety in the limitation of the levy to eighty thousand dollars. The law required them, to raise, within this limit, so much as should be sufficient to meet the amount'found due to the contractor; and this was readily ascertainable by the certificates of the commissioners, which the statute had made presumptive evidence of the fact. L. 1855, p. 763, c. 407, § 2. In respect,.however, to payments by the comptroller from the fund in question to the contractors, the legislature superadded the further condition that the amounts should be judicially ascertained. The design of the law-makers is quite apparent, and though the language in which the intent is expressed is loose and inartificial, we are bound to give full and fair effect to the substance of the provision.
The order of the general term should be affirmed.
All the judges concurred, except Bbown, J., who was absent.
Order affirmed, with costs.