(dissenting):
I am of opinion that this action cannot be maintained. In tbe first place, tbe plaintiffs do not seek to invalidate tbe assessment. Although it is averred in the complaint that it is illegal, yet that point was expressly waived on the argument of this appeal. And probably the rule of law on this subject would deprive the plaintiffs of a right to sue for equitable relief upon that ground. (See 14 N. Y., 534; 25 id., 322; 43 id., 290 ; 15 Barb., 375; 43 id., 239; 56 id., 340; 10 Abb. [N. S.], 119.) In the second place, the plaintiffs have no such interest in the fund raised by the assessment, as entitles them to interfere with the disposition of it. The referee seems to have regarded the commissioners as agents of the plaintiffs and other tax-payers who have been assessed for making the sewer, and, upon that ground, accorded to' them an interest in the fund. But this is a mistake. It would be preposterous to hold, that the legal relation of principal and agent existed between the tax-payers and the commissioners. The cases referred to by the referee, which so designate such commissioners, do not mean that the legal relation of principal and agent exists, but merely use the language to illustrate the interpretation placed upon a contract nominally between the city corporation and the contractor, where the city in reality contracts, not in behalf of the citizens at large, but for the sole benefit of the persons assessed for the improvement. The commissioners are officers of the corporation. The collection of the assessment is an exercise of the power of taxation which belongs to the sovereignty of the State, and which, in this instance, has been delegated by the legislature to the corporation. The money paid by the tax-payers is in no sense a voluntary contribution to a common fund, but it is a compulsory payment in discharge of a public burden. Nor does the right to a return of the excess of the assessment over the amount necessary to defray the expense of the work, give to the persons entitled to participate in such distribution any interest in the fund before such excess is ascertained, or any right to have the cost of the work cheapened in order that the amount to be distributed may be increased. For it is only after it has been ascertained that a surplus exists after defraying the actual cost of the work, that their interests respectively attach.
Independently of these considerations, I am of opinion that no *74illegality bas been shown in the action of the commissioners. The conclusion of the referee that the ordinance does not authorize the contract in question, seems to rest wholly upon the idea that it bears a construction that the sewer should be deepened by some process besides tunneling. I cannot assent to that proposition. Here is an old sewer whidh the public authorities have thought best to enlarge. They therefore passed an ordinance declaring that the following improvement is expedient, namely: “ The deepening and enlarging of Platt street outlet sewer, from the east high bank in the rear of the Jefferson mills, leading to the west line of State street, by enlarging that portion of the sewer in Mill street and Platt street, to the west line of State street.” The objection taken is, that the commissioners have entered into a contract for doing that part of the work in Mill street and Platt street by the process of tunneling, instead of excavating from the surface downward, thereby increasing the cost of the improvement. It will be seen that the ordinance does not specify the particular mode in which this portion of the work shall be done. ¥e see no more difficulty in deepening a sewer by one mode than by the other. All that is necessary to be done is to sink the bottom of it, and to do this it cannot be necessary to remove the top. I therefore think that the commissioners had the power to choose the mode which, in their judgment, would .best subserve the public interest, and that with the- honest exercise of that judgment the court has no power to interfere. I have not found any thing in the charter which justifies the complaint of the owners of property assessed for the improvement, that the commissioners caused the sewer to be deepened by the process of tunneling. The right given to them by section 164, to designate the kind of improvement they prefer, and the obligation imposed on the commissioners to adopt and carry out that method of improvement, have not been infringed by the commissioners, for the petition for the sewer in question contains no expression of a preference for an open cut sewer, but it merely asks that it be twenty-five feet deep. Nor did the commissioners exceed their powers in making the second contract at an increased cost. They kept within the estimate. They were not required to advertise the letting anew. The provision of section 164 of the charter, requiring them to advertise for proposals, was complied with by causing *75the requisite notice to be published for the prescribed period. Having done that,.they were authorized to let the contract as they should deem for the best interest of tax-payers, upon the day named in the notice, or upon an adjourned day. Of this letting, the latter were not entitled to any other notice than that advertisement, and they had no right to interfere with the making of the contract. The notion that the power of the commissioners was spent by the first letting, and that no new letting could be made without notice to the owners, in my opinion, has no warrant in the charter. Nor is it supported by any finding of the referee. The duty was imposed by the charter on the commissioners, and no inference against their fidelity to such trust can be drawn from the fact that they assented to the cancellation of the first contract and entered into another whereby the cost of the work was increased. On the contrary, they acted upon a petition which set forth sufficient reasons for the change, and I am unable to discover any thing in their conduct which the law should condemn.
I think the part of the'judgment appealed from should be reversed, and that a new trial should not be granted.
Smith, J., concurred in the opinion of MerwiN, J.Judgment affirmed, with costs.