ON REHEARING.
Grant, J.After the former decisions in this case had been rendered, the defendant village applied for a rehearing, claiming that its views as to the legality of the proceedings had not been properly presented to the court, and that the village, under the belief that it was not interested, but that the contest was one virtually between the com*160plainant, the contractor, and the defendant bank, had intrusted its defense mainly to the counsel for the other parties. Rehearing was granted, and the case has been again fully argued. We see no occasion to change our former opinion. Neither the contractor nor the bank had any contractual relations with the assessment district. The contracts with the contractor and with the bank were both made with the municipal corporation through its trustees. The trustees were clothed with power to order the sewer, to make contracts for its construction, and to borrow the money to build it. The trustees did not exceed their authority. They had power to fix a district, and apportion 5 per cent, upon the assessed valuation in payment thereof, and to assess the balance upon the village at large, or pay it out of its general fund. It must be presumed that the trustees intended to construct this sewer. It was their duty to find out how much they could assess upon the district, and to assess the balance upon the village at large. Those dealing with the municipality'Under such circumstances had the right to assume that its trustees had acted legally, and had done what the charter authorized them to do. The statute contemplates that a sewer is not alone for the benefit of a locality, but is essential to protect the health of all the inhabitants; else it would not provide that a portion of the expense may be placed upon the village at large.
Under the contention of the complainant, both the district and the defendant village have secured the construction of a sewer without any cost to them. Courts can only sanction such a result when compelled to do so by the inexorable rules of law. It is no new doctrine that municipalities will be compelled to do that which their charters give them power to do. Where the law provided that the board of supervisors of a county owing debts which its current revenue was not sufficient to pay “may, if deemed advisable, levy a special tax not to exceed in any one year one per cent, upon the taxable property,” etc., it was held that the law was mandatory, although permissive *161in form; that it was the legal duty of the corporation to levy the tax; and that, whenever the public interest or individual rights called for the exercise of this power, courts would compel action. Supervisors v. United States, 4 Wall. 435. It was also held in a case very similar to the one now before us that it was the duty of the city to proceed with a new assessment. The court said:
“It is true that, under the contract, petitioner was to be paid from and out of the money to be raised by the assessment, and it is also true that the city did not personally assume the payment for the improvement; but the city did assume the obligation to collect the assessment imposed to pay for the improvement, and that obligation, in connection with the other facts and circumstances in the case, required the city to use all reasonable efforts within its power to make and collect a new assessment to pay petitioner for the labor and materials used in the construction of the improvement, as provided in the contract.” People v. City of Pontiac, 185 Ill. 437, 445 (50 N. E. 1114).
It is also said that, “where a city agrees to pay for certain improvements out of a fund to be raised by assessments upon abutting property, and which the property owners refused to pay, and the city was without authority to enforce, the city is primarily liable.” 2 Smith, Mod. Law Mun. Corp. § 1275, and cases there cited; Commercial Nat. Bank v. City of Portland, 24 Or. 188 (33 Pac. 532, 41 Am. St. Rep. 854); City of Chicago v. People, 56 Ill. 327.
The principle governing this case was enunciated in East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 201 (58 N. W. 1012), where this court, speaking through Mr. Justice Montgomery, said:
“The village has had the benefit of a full performance by the relator; it has ratified, by auditing these bills, a contract which, as we have said, it had the original power to make; and we think, within settled rules, the village is bound to respond to relator.”
So in this case the defendant village entered into con*162tracts with the contractor and with the bank, which it had full authority under the law to make. It has received the full benefit of said contracts. It made a mistake in attempting to assess the whole cost of the public improvement upon a local district. It had power to assess a portion upon the district and the rest upon the village at large. It was a mistake or irregularity which the law authorizes it to correct. Having received the benefits, the law will compel it to do what it has the power to do.
Our former decision is affirmed.
The other Justices concurred.