PEOPLE ex rel. MURPHY v. KELLY

PEOPLE ex rel. MURPHY v. KELLY. N. Y. Court of Appeals ; March, 1879. Municipal Corporations. — Statutes.—Public Works. — Power op Congress over Bridges. — Limit op Cost, and Limit op Appropriation. — Constitutional Law. — Mandamus. Congress, in the exercise of its power to authorize the erection of a bridge over navigable waters,-even though it may, to some extent, impede navigation, may devolve upon a public officer the power to approve or prescribe the plan of the structure, subject to the authority of Congress to modify the same (pp. 441). Under a statute requiring the secretary of war to give notice to the bridge company if he approved the plan, and authorizing them, on receiving such notice, to proceed with its erection, he may convey such notice in any way which is effectual; and a communication to their president purporting to be by direction of the secretary of war, and signed by a subordinate officer, is sufficient (pp. 441, 442). The constitutional amendment declaring that “no county, city, town, or village shall hereafter give any money, or property, or loan its credit 'to or in aid of any individual, association, or corporation, or become directly or indirectly the owner of stock in or bonds of any association or corporation ” (L. 1874, p. 983, same provision, 1 B. 8. 6th Ed. 102, section 11), does not forbid the legislature to enact a statute authorizing one or more municipalities which are already stockholders in a corporation for the construction of a public work, to become the entire owners of the work, by agreeing on a dissolution of the corporation, and retiring by purchase the stock of other stockholders (pp. 443-445). The constitutional amendment, declaring “nor shall such county, city, town or village be allowed to incur any indebtedness, except for county, city, town, or village purposes ” (L. 1874, p. 933, same provision, 1 R. S. 6th Ed. p. 103), does not forbid a statute authorizing two cities to construct a public bridge connecting them (p. 446). It is not essential, to constitute a “city purpose,” that the work should be wholly within the city limits. It is enough if the improvement be for the common and general benefit of all the citizens, as distinguished from an external work, from which only incidental benefits to the municipality may flow (p. 447). A bridge connecting two cities is a city purpose for each, within the constitutional provision (p. 448). It is for the legislature to determine, in the first instance, what is a “ county, city, town, or village purpose,” within the meaning of the constitution; and although their determination is subject to the power of the judiciary to decide the constitutional question, yet the legislative act should not be declared unconstitutional, unless the purpose appears clearly to be one not authorized (p. 449). A statute will not be declared unconstitutional in its main provisions, by reason of the existence of a questionable clause, which might be stricken from the act without impairing any of its essential provisions or affecting its purpose (p. 449). A State statute authorized the erection of a bridge, to be so constructed as not to obstruct the free and common navigation of the river; a subsequent act of congress sanctioned the bridge to be constructed, provided that it be so constructed as not to obstruct, impair, or injuriously modify the navigation of the river, and submitted the plans to the approval of the secretary of war ; to secure this condition. After he had approved a plan of structure, the State legislature passed another act, authorizing the completion of the structure. Ileld, that this was an approval of the plan, and a structure in conformity thereto could not be judicially condemned on the ground that it would be an obstruction to navigation (p. 450). The comptroller of the city of New York is not justified in refusing to provide the means required pursuant to the statute, by alleging that the trustees of the bridge have departed from the plan prescribed pursuant to law, are extravagant in the expenditure, and that the bridge will prove unsafe and useless (p. 451, 453). In a statute conferring the power and duty to construct a public work, according to a designated plan, with a separate clause authorizing the board, charged with the duty, to call on the municipalities concerned, for such sums as they deem proper for the expenses, provided the amount to be paid shall not exceed a specified sum, the sum limited does not imply a limit on the entire- cost of the work. A statute (L. 1875, c. 300), entitled as an act “ for the completion ” of a bridge in the course of construction between the cities of New York and Brooklyn, provided that “ the expense of constructing and maintaining the same, and acquiring the land necessary therefor, and all liabilities imposed upon them or incurred by them by virtue of this act shall be defrayed by the said cities, in proportion of two third parts by the city of Brooklyn, and one third part by the city of New York; and for such purpose the said trustees shall, from time to time, as they shall deem necessary, call upon the said cities by request made to the mayor and comptroller thereof respectively, for such sums as they shall deem proper in the proportions above mentioned, provided, however, that the whole amount to be paid by both cities shall not exceed $8,000,000, and the city of New York shall not be called upon to pay a greater sum than $1,000,000 in any one year, and the city of Brooklyn not more than $2,000,000 in any one year, until the said bridge shall be fully completed and open for public travel; and the debts and liabilities incurred therefore shall be fully paid; and the said cities of New York and Brooklyn are hereby authorized and required from time to time to issue bonds bearing interest not to exceed seven per cent, per annum, for the purpose of meeting the requirements of the said trustees, and to pay the proceeds thereof to them. Held, that the limitation was not a limitation on the entire cost, but only on the appropriation (p. 455). The common council of the city of New York passed an ordinance authorizing and directing the comptroller to issue the bonds required; but before he had done so, they passed a-resolution requesting him to withhold the issue of bonds until the question should be judicially determined. Held, that this did not affect his legal duty, but a mandamus might issue (p. 455). Appeal from an order granting a peremptory mandamus, and reversing an order at special term, which denied writ. The relator applied at special term of the supreme court, in the first department, for a peremptory writ of mandamus to John Kelly as comptroller, commanding •Mm to borrow and pay over to the trustees of the New York and Brooklyn Bridge the amount of two calls, each for $500,000, made by said trustees on the mayor and comptroller of the city of New York in accordance with the provisions of section 3 of chapter 300 of the Laws of 1875, stated below. There were two proceedings taken and carried on pari passu. The one was taken against the respondent, Kelly, alone. To the other the mayor, auditor, clerk of the common council, and chamberlain of the city were made parties, because objection was suggested on behalf of the respondent, Kelly, that the application was defective as to parties. The court at special term held, during the argument, on the question of practice, that the proceeding was well taken against the comptroller alone; but as a matter of precaution and to avoid technical difficulties, appeals were taken in both proceedings. As both applications were made on the same papers, but one record was made on appeal. ■A stipulation was given waiving all technical objections, if any, to the proceedings. The affidavit of the relator, Murphy, set forth that he was president of the trustees of the New York and Brooklyn Bridge, and that the application was made on their behalf and under their direction, and named the persons composing such board ; it then recited chronologically the history of the enterprise (see the first part of the opinion by Earl, J., p. 439); and that there was necessary in the year 1878 to defray the expense of constructing the bridge and to discharge debts already incurred by said trustees, in the prosecution of said work, two sums each of $1,500,000 ; that in compliance with the statute the said trustees called on the city of New York, by request made to the mayor and comptroller thereof, for one-third of each of said sums ; each call being for $500,000. The affidavit further set forth the duty devolved on the city by section 3 of the act of 1875 ; an ordinance of the common council of the city of New York passed May 9, 1876, whereby the comptroller was directed to issue bonds as provided by said section 3, in such form as he might deem proper, and borrow money to comply with the calls of said trustees ; that the amount of money already paid by the city and the amount named in the calls now in litigation together were less than the one-third of $8,000,000, the limit prescribed by said act; that the city of New York had failed to comply with said calls, and that the default of the city was caused wholly by the neglect and failure of the respondent, Kelly, as comptroller, to issue bonds and borrow the moneys called for ; that a demand had been made on respondent to comply with such calls, and that he had refused the same. In the - proceeding against the other officials of the city, a further affidavit recited the incumbents of the several offices, that the auditor had failed to audit the trustees’ demand, the mayor to countersign the bonds, the clerk to attest the same, &c., and prayed that mandamus might issue against each of them respectively to discharge their respective duties towards a complete compliance with the statute by the payment to the trustees of the money called for. Affidavits were submitted by the respondent, Kelly, in answer to the application, to the effect that the bridge upon completion would obstruct navigation; and, in justification of failure to pay, that the original enterprise was instituted for .improper purposes ; that William M. Tweed, on an examination before the common council, testified as to improper means on the part of the officers of the old bridge company to secure the subscription of the city of New York to the capital stock of said company, though the respondent did not allege such testimony to be true; also, that the act of 1875 is unconstitutional as contravening section 11, article 8, of the amended constitution. Also, alleging that the relator, Mr. Murphy, admitted that the trustees were proceeding with the work without reference to the ultimate cost; and alleging that the trustees were so proceeding with the work in such an extravagant manner, that the bridge would be nearly if not fully one-third incompleted when the entire expenditure authorized by the act of 1875 had been made.. That ample provision was made by the law of 1875 to complete the bridge within the limit of expenditure therein authorized, but that the trustees refused to bring their expenditures within such limit; and, finally, that the board of estimate and apportionment had not authorized the issue of any more bonds, and that the ordinance of the common council for the issue of the bridge bonds had been repealed by another ordinance annexed to the affidavit. The several city officers, other than the mayor and comptroller, submitted affidavits, alleging that no demand had been made upon them to perform the acts required. In reply there was submitted a further affidavit by the relator, denying expressly the assertions of William M. Tweed, and denying all charge of extravagance and waste ; setting forth that the respondent, Kelly, is himself one of the trustees of the bridge, and that one-half the board are Mr. Kelly’s appointees; that until the affidavit was made by Mr. Kelly, in answer to this application, he had never opposed or even criticised any action of the board, or of its proposed plans ; that, the only admission or statement of the relator was made in answer to an argument of counsel before the board of estimate, when the relator gave as his opinion that the limit named in the act of 1875 was a limit of appropriation, not of cost; that the trustees have endeavored strictly to comply with the appropriation, but that he and the trustees have deemed the paramount and controlling consideration, both to comply with the requirements of the secretary of war and for the benefit of the public, was the entire strength and safety of the structure; that at the present time the bridge is more than three-fourths built and more than three-fourths of the expenditure made, and that from a further calculation made in August last, it can be predicated with all reasonable certainty that the bridge 'will be finished and completed at an expense not $200,000 in excess of the amount named in 1876, exclusive of $350,000 expended in the change of Frankfort street by direction of chapter 165, Laws of 1877. On the argument the counsel for the relator stated that their application was solely for a peremptory writ. Barrett, J., denied the application, assigning his reasons as follows: — It may be conceded that where power to construct a public work is expressly conferred, its exercise is not impliedly limited by the amount of the appropriation therefor. But was the legislative provision in question a mere appropriation, or was it a limitation upon the entire cost ? It is urged that where the latter is intended, express words of limitation are generally used. That may be quite true, and it may be a good reason why the implication should be clear and irresistible. But that is all. The legislative intent is not to be ignored because of the form of its expression. Now, looking at the act (Laws of 1875, c. 300), it seems quite plain that the general powers conferred are subject to the proviso that the bridge is to be fully completed at a cost to the two cities of not more than $8,000,000. For a sum (within that limit) to be paid by them they are to have a structure “open to public travel, and with its debts and liabilities fully paid.” The entire act, from its title to the last section, contemplates the completion .of the work, and the third section fixes the maximum of expenditure. True, the language of the' proviso is “ that the whole amount to be paid by both cities should not exceed,” &c.; but there is not the slightest suggestion of any other construction, voluntary or involuntary, than by the two cities ; and as the bridgé is to be their property, the intention is apparent that they and they alone shall pay for it. Indeed this was not disputed. The real contention was that the language above quoted, construed with reference to the general power to construct, was merely a limit upon the continuing right to draw from the cities without further legislative appropriation. This, however, completely ignores the context, viz., that “the city of New York shall not be called upon to pay a greater sum than $1,000,000 in anyone year, and the city of Brooklyn not more than $2,000,000 in any one year, until the said bridge shall be fully completed and open for public travel, and the debts and liabilities incurred therefor shall be fully paid.” These annual contributions are of course a part of the totality of $8,000,000. Is it not perfectly clear, therefore, that the proviso must be read ás though the italicized words immediately followed the $8,000,000 limitation ? What directly precedes must be read in the light of what immediately follows, and it is really difficult, in the face of this explicit and unqualified language, to perceive the application of the general principles of construction, so fully stated and so laboriously fortified by authorities in the able and instructive brief submitted by the learned counsel for the relator. It was intimated that even if this be a correct reading of the proviso, a limitation upon the cost was not effected ; that the legislature, while thus undoubtedly limiting the appropriation, simply intended to impress thereon the expression of a desire, enforced by no positive restriction, that the authorized sum should suffice. The idea imputes to the law-making power the puerility of mere idle admonition. It is wholly without warrant in the comprehensive and forcible language employed; and if it be sound we can only say that no limitation upon the cost of a public work can be effected by implication. We must be permitted to add that the position of the trustees really borders upon nullification of the legislative will; for the relator claims that although the two cities cannot, under the existing law, be required to pay more than the $8,000,000, yet they can be compelled to pay every dollar of it without the slightest hope of receiving in return a completed structure. Thus the legislature declares that the whole amount to be paid shall not, the trustees that it shall, exceed $8,000,000. This is what it comes to. The cities are to pay the entire $8,000,000 and receive an unfinished structure. What then % Why, necessarily then they must either lose substantially all that has been expended or go on and pay to complete just what the legislature has said they shall not, namely, in excess of the $8,000,000. Much has been said about the difficulty and inutility of estimating in advance the cost of so great and novel an enterprise. This is suggested as an argument against an intention to limit the cost. But where is the difficulty in fixing some limit, and why should any public work be authorized until the power that imposes the burden has counted the cost, so far, at least, as to be able to fix a fair maximum % In the present instance, however, there could have been no difficulty, for the reason that when the legislature acted, the experiment was not in its inception, plans and estimates having been made long before, and, in fact, nearly $5,000,000 having already been expended upon the work. How natural and reasonable that a limit upon the entire cost should then be fixed ! As to the wisdom oí thus limiting municipal servants in the execution of public trusts there surely can be no doubt, and the court should favor a construction which tends to check improvidence and waste (See McDonald v. Mayor, 68 N. Y. 28). Let the official keep strictly within his statutory authority. If the work cannot be done with the means afforded, that is, within the prescribed limits, let it stop until the sovereign power can again be appealed to. The present application is addressed to sound judicial discretion. The relator takes high ground, demanding either a peremptory mandamus or a denial of his motion. An alternative writ he emphatically declines to accept. Thus he concedes, for the purposes of this motion, all the material facts in the opposing affidavits, and insists that, notwithstanding, a peremptory writ is his absolute right. If our views are correct, this position is entirely untenable. Further, if we have even demonstrated the doubtfulness of his legal right, the writ of mandamus, upon well settled principles, should not be granted. Without specially considering the charges of. waste and extravagance or the other points presented in opposition, the motion must, for these reasons, be denied with $10 costs. The relator appealed to the court at general term, where the orders were reversed, the following opinion being rendered: By the Court. — Davis, P. J. — [Pronouncing the opinion orally.] — There are only two important questions involved here. The first relates' to the remedy; whether it should be by mandamus or by some other proceeding to enforce the alleged rights of the trustees ; and whether, if a mandamus be issued, it should be an alternative or peremptory writ. The peremptory writ is the proper legal process in all cases where there is a clear right connected with a clear legal duty, independent of extrinsic facts to be determined or passed upon by a court or jury. In this case we conceive that there is no reasonable doubt that the legal right exists, if the construction of the statute be such as we think it requires, and if the legal duty is created by the statute, and by the subsequent action of the common council, clothing the comptroller with the necessary power, and directing its execution by the issuing of the bonds provided by the statute. By the ordinance of the common council, passed on May 8, 1876, the comptroller was authorized and directed to issue the bonds specially described and provided for in the statute and ' /nee, to meet the calls permitted by the sti m. time to time as they should be made. Th& xance supplemented the statute, and created a condition of things by which a clear legal duty was imposed upon the comptroller to bring a clear legal right, existing in the trustees and created by a statute, into full operative force. Subsequently the common council adopted a resolution, prefaced with a preamble, setting forth the grounds upon which the resolution was based; but that resolution is neither a repeal nor a modification of the former ordinance. It does not purport to be either. It simply “ requests’’ the comptroller not to take the action which the ordinance of May 8, 1876, provides for, until he has first taken the judgment of the court. This amounted to nothing more than a suggestive request, which the comptroller in the due course of his administrative functions might properly respect, but which, if disregarded, would subject him to no serious consequences. The court cannot, however, under the circumstances, do otherwise than say that the comptroller was justified by the resolution in taking the opinion of the court before acting under the ordinance, and his whole duty in that regard will have been fully discharged whenever the court shall have passed upon the questions now presented. This brings us to consider the other and the principal question, which is simply whether or not the construction placed by the court below upon the statute is or is not a correct one. In our judgment, the statute of 1875, having provided for the erection of the bridge, by section 3 proceeds to • provide for the moneys requisite to carry out the general objects of the statute. It first imposes in very general terms the expense of constructing and maintaining the bridge, and acquiring the land necessary therefor, upon the two cities of Brooklyn and New York. It then proceeds to provide the mode in which the trustees are to obtain the money necessary to be expended, by directing that upon their request the mayor and comptroller of the respective cities shall pay over the moneys to be raised under the act. A sum is appropriated in gross,'to wit, $8,000,000, to be drawn upon under this act, as prescribed, in the proportions of two-thirds from the city of Brooklyn and one-third from the city of New York. This is the maximum sum which can be called for by the trustees from the respective cities, and it is limited, both as to the amounts, the proportions, and the times within which it can be drawn. The act provides that from the city of New York there shall not in any one year be called a sum in excess of $1,000,000, and from the city of Brooklyn in any one year in excess of the sum of $2,000,000. And it provides that the right, to call shall terminate whenever the $8,000,000 shall have been thus exhausted. But the statute also looks, to another contingency, which is that the total cost and expenses of the bridge, and of the necessary structures connected with it, may not reach $8,000,000. And so another limitation is imposed, as we think, upon the power of the trustees to call upon the cities, and that limitation is expressed in the concluding words of the sentence, which have been, as we think, misunderstood to be a restriction upon the total cost of the bridge under all circumstances. That provision is couched in the words “until the said bridge shall be fully completed and open for public travel, and the debts and liabilities incurred therefor shall be fully paid.” The true significance of that provision, as we think, is this in effect: connected with the residue of the section, it provides for the calling by the trustees upon the several cities from time to time in the proportions named for such portions of the gross sum as may be required “until the said bridge shall be fully completed and open for public travel, and the debts and liabilities incurred therefor shall be fully paid.” That is to say, the right to call upon the cities for the $8,000,000 is to be determined when those events occur, to wit, when the bridge is completed and open for public travel and all debts and liabilities are paid. So that if the bridge shall be completed for a less sum, the right to call is at an end, though the whole appropriation be not exhausted. If the bridge costs $6,000,000, there can be no call beyond that sum, and whenever the bridge is completed and the debts, &c., are paid, if the drafts have not exhausted the $8,000,000 indicted in the statute, the right to call terminates. This makes the statute, as we think, consistent with the objects in view, and free from all intent to provide that the cost of the bridge itself shall be limited under all circumstances to the sum of $8,000,000. It leaves open entirely to the future consideration of the legislature whether or not it will, in the exercise of its absolute power over the whole subject, make such further appropriation as shall be necessary to complete the structure, and determine in what mode the appropriation shall be paid. It may exclude the city of New York from all further payments. It may impose it upon the State, or wholly upon the city of Brooklyn, or distribute it upon such localities, and in such amounts, and in such ways, as that depositary of the absolute power of legislation in this State shall in its discretion see fit. That leaves the case free from any embarrassment. We think, therefore, that the legal right exists on the part of the trustees, and the legal duty on the part of the comptroller, and that a mandamus directing the comptroller, in pursuance of the statute and ordinance already alluded to, to issue the bonds and pay over the moneys as applied for, ought to have been granted. The order below will be reversed, and an order entered in accordance with the decision now announced. From the orders of the general term the defendants appealed to this court. George F. Comstock and William Henry Arnoux ( William C. Whitney, counsel to the corporation) for the appellants, defendants. I. The act of May 14, 1875, on which these proceedings are founded, was enacted in direct violation of the constitutional amendment of January 1, 1875 [see head notes]. It is evident that the purpose of re-enacting the private law, of changing from a private to a public work, and of making a public district, was to avoid the constitutional amendment, then recently adopted. But while the decisions in People v. Albertson, 55 N. Y. 50 ; People v. Shepard, 36 Id. 285; People v. Draper, 15 Id. 532, defined the power of the legislature in constitutionally establishing districts of other areas than those already established, these decisions' also defined the limit of legislative power. If, therefore, the court shall find that this district is colorable merely, then it is obnoxious to this last cited decision. If, on the other hand, it is a substantial, new, geographical district, essentially different and distinct from the city of New York, then the law is unconstitutional in creating a debt for the benefit of this new division, for it is providing for the incurring of an indebtedness which is not for city or county purposes. Further than that, the trustees of this new geographical division are made a corporation, with power to sue and be sued, and the moneys demanded by the trustees are borrowed by the city for the benefit of this new district, in which the city becomes, by the law, a joint owner with the city of Brooklyn, so that New York buys and pays for land outside of its corporate limits and beyond the purpose for which its citizens can be taxed. The provision to purchase the stock of the private stockholders, in section 1, is clearly in violation of the constitution. This law violates — 1st. That provision of the constitution which forbids loaning money or credit to a corporation. 2d. That which forbids a city to become the owner of stock in a corporation. 3d. That which forbids the city of New York the incurring of indebtedness except for city purposes. II: Whenever the relator declines an alternative mandamus, he puts himself upon a strict legal right, and stands before the court in,the attitude of one who demurs to the answer, and by so doing admits the allegations in the answering affidavits to be true. For the purpose of this appeal, therefore, the court must take all the answering affidavits to be wholly unchallenged, and must pass upon the questions presented by this appeal under that concession. They make their motion for a peremptory writ of mandamus upon the moving and opposing affidavits. A motion so made is in the nature of a demurrer. It concedes the facts to be set forth in the opposing affidavits, and proceeds upon the plea that although true in each and every .particular, they do not constitute a sufficient answer (People ex rel. Bently v. Commissioners of Highways, 6 Wend. 559; and 7 Id. 474; Commercial Bank of Albany v. Canal Commissioners, 10 Id. 31; People ex rel. Jennings v. Seymour, 6 Cow. 515, 579; Exp. Rogers, 7 Id. 526; Fish v. Weatherwax, 2 Johns. Cas. 2d Ed. note, 217-263, and cases cited). Disputed facts cannot be passed upon on this motion. It is only where there is no question as to the facts, or where the conceded facts constitute no answer, that this writ can be issued in the first instance. In Exp. Rogers, 7 Cow. 526, it was declared, that on an application for a mandamus, when both parties are heard, and there is no dispute as to the facts, and the law is with the application, a peremptory mandamus will be granted in the first instance. In Commercial Bank of Albany v. Canal Commissioners, 10 Wend. 31, the question was fully considered and the decision bears. The modern practice is not to award a mandamus in the first instance, but to grant an order to show cause why a mandamus should not issue. In such cases the question is discussed upon the original papers on which the order was obtained, and upon the opposing affidavits. If there is no dispute about the facts the court denies the application, or may award a peremptory writ in the first instance. If the facts on which the claim of the relator depends are in dispute, the court awards an alternative mandamus. In People ex rel. Cagger Supervisors of Schuyler (2 Abb. Pr. N. S. 78), the court, at general term, held that the “ more modern practice is to give the ordinary notice of a motion based upon affidavits, that on the hearing a peremptory writ will be asked for. In that case, if it then appears that no material facts are in dispute, the court may grant or deny the peremptory writ at once, disposing of the question of law subject to a revision on appeal. But if it then appears that material facts are in dispute, and that the application has merits, the course is to grant an alternate writ, that issues may be joined and the disputed facts settled by a proper trial. In People ex rel. Bagley v. Green, 1 Hun, 4, it was decided: “Where the fact, upon which the right may depend, is controverted, it must first be tried and determined, before a peremptory mandamus can be issued, and that determination is to be made not upon conflicting affidavits, but upon an issue framed upon the return to the alternative writ, to be tried by a jury according to the course of the common law.” III. The limitation of the expenditure to the sum of $8,000,000 is a limitation upon the power of the trustees to demand, or of the cities to grant, any sum that can exceed the amount specified, and likewise a limitation upon the cost of the bridge, so that whenever it shall appear that the bridge cannot be completed for public travel and all the bills paid by the expenditure stated, the power and duty of the trustees to ask for, or of the city to advance, any moneys for the further prosecution of the work is at an end, unless and until there should be further legislative enactment granting such power (Amey v. Allegheny, 24 How. U. S. 364). The language of the court of appeals in McDonald v. Mayor (68 N. Y. 23, 28), is peculiarly appropriate to this case. In that action plaintiff claimed to recover the value of certain materials delivered by him to the city at the request of the superintendent of roads of the city of New York, contrary to the charter; the plaintiff was defeated. “It is plain,” say the court, Folgker, J., “that if the restriction put upon municipalities by the legislature, for the purposes of reducing and limiting the incurring of debt and the expenditure of the public money, may be removed, upon the doctrine now contended for, there is no legislative remedy for the evils of municipal government, which of late have excited so much attention and painful foreboding. Restrictions and inhibition by statute are practically of no avail, if they can be brought to naught by the unauthorized action of every official of lowest degree, acquiesced in, or not repudiated, by his superiors” (Citing Denio, J., Peterson v. Mayor, 17 N. Y. 449; Peck v. Burr, 10 Id. 294; and see Wallace v. Mayor of San Jose, 29 Cal. 180, 187; Wyncoop v. Congregational Society, 10 Iowa, 185). The same idea is thus expressed in Parsons v. Goshen, 11 Pick. 399: “ This limitation upon the power and authority of towns to enters into contracts and stipulations is a wise and salutary provision of law, not only as it protects the rights and interests of the minority of the legal voters, but as it may not unfrequently prove beneficial to the interests of the majority, who may be hurried into rash and unprofitable speculations by some popular and delusive excitement, to the influence of which even wise and considerate men are sometimes liable.” Donovan v. Mayor, 33 N. Y. 291, was a case of similar character. Pobteb, J., delivering the opinion of the court, says: “As there was neither an appropriation for the work nor a certificate of its necessity by the head of the department, and as it was unauthorized by the common council, the contract was made by the municipal authorities in direct violation of law. A contract thus made by public officers, acting in a purely fiduciary capacity, is a simple and absolute nullity. The city has no power to act except through its municipal officers, and when they assume, as its agents, to exercise authority in disregard of prohibitions applying alike to them and their principal, their action is wholly ineffectual, unless it be to subject them to personal liability for assuming powers with which the law has not clothed them.” An act of congress of 1820 (3 Stat. at L. 568, and see 1 U. S. R. S. § 3732) provides that “no contract shall hereafter be made ” by specified secretaries, including the secretary of the navy, “except under a law authorizing the making of the same, or under an appropriation adequate to its fulfillment.” Under a law subordinate to that act, the secretary of the navy was “directed to cause to be constructed at each of the navy yards at Kittery, &c., &c., a floating dry dock, .... and the sum of $50,000 is hereby appropriated toward said dock at Kittery.” It appeared that the choice was limited to two patented inventions, and the price demanded exceeded the appropriation. The attorney-general was asked whether the secretary was authorized to contract for the works at a price exceeding the appropriation. Mr. Attorney-General Clifford answered: “As the amount appropriated is confessedly inadequate to the fulfillment of the contracts, if any should be made, it is manifest that the authority does not exist. The prohibition is too explicit and comprehensive to be overcome by any rule of construction known to the law ” (4 Op. Att.-Gen. 600). In another case, where, by the special provision for a particular work commenced and in progress, it was provided by congress that nothing in the act should be so construed as to authorize any officer of the government to bind the United States by contract beyond the amount of the existing appropriation, Mr. Attorney-General Cushing was of the opinion that the law did not empower the president to engage the government beyond the specific sum (6 Op. Att.-Gen. 26). Judge Billow, in his able work on Municipal Corporations (2d Ed., § 381), in reference to legislative restrictions upon corporate powers, aptly says : “ The opposite doctrine would be fraught with such danger, and accompanied with such abuse, that it would soon end in the ruin of municipalities, or be’ legislatively overthrown. . . . . The history of the workings of municipal bodies has demonstrated the salutary nature of this principle, and that it is the part of true wisdom to keep the corporate wings clipped down to the lawful stándard.”. There is nothing inconsistent with the foregoing views of the court of appeals as expreessd by Judge Folgeb, and those of Judge McLean in the Cincinnati Court-house case (Cook v. Commissioners of Hamilton County, 6 McLean, 112, 119), where $200-000 had been appropriated: “ There is no express limitation in this regard, nor can one be implied, unless it be that $200,000 only were appropriated. In all public works, either by the Federal or State governments, it is not usual to appropriate, when the work will require several years for its completion, more than a small part of the necessary expenditure. Any other course, especially where the money must be borrowed, would be a wasteful expenditure. By the Act, the Commissioners were authorized to erect all such suitable and necessary-public buildings for the said county, &c., of such materials and upon such plan, as to them shall seem-proper.’ From this provision it is clear that the buildings were to be constructed under the discretion of the Commissioners, which is inconsistent with the supposition that they were limited in their expenditure to $200,000. Every practical man must see that the buildings required to be constructed would cost more than three times that sum. In the absence of any express limitation, so unreasonable an inference as would defeat the object of the law, cannot be made nor sustained.” So, in the case of the Water Works of the city of Salem (14 Allen, 87), the court, after carefully examining the law authorizing the works, finds that, although the legislature did not impose any limitation upon the cost of the works, it did impose a limitation upon the amount of indebtedness that might be incurred on account thereof, and the intent of the legislature was not expressed in anything like the explicit language used in this case. The following cases, recently cited in a note to the case of Kingsley v. Brooklyn (5 Abb. N. C. 1), as bearing upon this question, throw thereon but little light in County of Jackson v. Hall (53 Ill. 440), the county court having, under the law, full authority to build a jail, authorized one to be built, provided it should not cost exceeding $10,000. The contractor built it at a cost of $25,000. The court accepted the building and issued the bonds therefor. It was held that this was legal. The case in Pennsylvania adjudged that the approach to a bridge “is so necessary to its use, that without it the structure is a vain thing; utterly useless, and of no account. The bridge is incomplete until everything necessary for its proper use has been supplied, and every such necessary appliance is part of the bridge.” The question was whether (he township or the county was liable for grading the highway approaching the bridge. The court held in accordance with the above views, that it was a county charge (Penn Township v. Perry Co., 78 Penn. St. 457). Hasbrouck v. City of Milwaukee, 13 Wis. 37, held, that where a city was authorized to expend a certain amount of money to construct a harbor, the law did not confer power to construct a harbor the expense of which should exceed that sum, and that as to such excess the contract was illegal, and that no legislative ratification of the excessive contract was binding without the assent of the city. The amount appropriated was paid the contractors, and they brought their action for the excess of cost, and judgment was rendered against them. In Guidet v. Mayor (36 Superior Court Rep. [4 J. & S.] 557), it was held, that to entitle a party to recover against the city, he must show a strict compliance with the law, and where the law required a certificate as a condition of payment, the failure to produce such certificate, or to account for its absence, was fatal to plaintiff’s claim. In the case at bar, Judge Barrett commends his decision by the thoughtful and conclusive argument of his opinion. The only suggestion of any weight that can possibly be made against his view is, that in a great work of this kind it cannot be presumed that the cost can be accurately predetermined. Whatever force there may be in this argument, it can only apply to the construction of the act to be given by the court; for whether the cost can be predetermined or not, if the legislature has intended to limit such cost, and has so expressed that intention, that the courts can discern it, then the courts are in duty bound to give effect to the legislative will. But with the same logical force that Judge Barrett demolished the argument against limitation on cost, he deals with this proposition, This case is made all the stronger by the use of the word “ provided,” which is generally considered not to enlarge, but rather to restrain, the clause to which it refers (Rice v. City of Keokuk, 15 Iowa, 579, 583). “The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview (Minis v. U. S., 15 Pet. 445). The effect of a proviso is not to enlarge or extend the act or the section of which it is part, but rather to put a limitation and a restraint upon the language which the lawmaker has employed (In the matter of Webb, 24 How. Pr. 247). “Conditions and provisos . . . . have for their object to limit the scope and defeat the purpose of the principal contract” (Dilleber v. Home Life Ins. Co., 69 N. Y. 256). In an assessment case, involving the power of the city to impose an assessment, the court of appeals say: “ It is a power given, with a proviso annexed. The demand of the proviso must be answered, as a prerequisite to the legitimate exercise of the power.” “A proviso in a grant or enactment, is something taken back from the power first declared. The grant or enactment is to read, not as if the larger power was ever given, but as if no more was ever given than is contained within the terms or bonds of the proviso” (Matter of Second Ave. Church, 66 JV. T, 895). The authorities are unanimous upon this proposition, that whenever, by express language or by reasonable implication, the courts shall find that the legislature intended to restrain a municipal corporation in the expenditure of money, the courts will not sanction any acts which necessarily violate such restraint, especially where such restraint is imposed in the form of a proviso. And whenever it was discovered that the work authorized could not be completed, as directed, within the sum limited, it became the duty of the trustees themselves to refrain from any further expenditure of money ; for there is no presumption, either of law or in fact, that the legislature would authorize any increased expenditure. In this case the trustees not only violated their duty, but, through the instrumentality of the courts, seek to compel the municipal authorities to violate theirs. The court can rebuke this lawlessness by affirming the order of the court below denying the peremptory mandamus, the application for which “ really borders upon the nullification of the legislative will.” IV. The bridge as it is now being constructed violates both the law of the State of New York and of the United States. The provisions of the former against ‘ ‘ the construction of any bridge which shall obstruct the free and common navigation of the East River,” and of the latter, “ that the said bridge shall be so constructed and built as not to obstruct, impair or injuriously modify the navigation of the river,” protect the commón law right of the people in the navigation of the East River, an arm of the sea between Long Island Sound and the bay of New York, in which the tide ebbs and flows. The navigable waters of every civilized nation, including the sea within its jurisdiction, and all bays, estuaries, tidal-waters and rivers belong to the people at large, are public highways, and cannot be encroached upon or permanently appropriated to any private use of any individual or corporation, without the consent of the sovereign power. In England, since Magna Charta, this right is superior to the king, and can only be restricted by parliament, and is universally superior to every-other civil right with which it comes in conflict. There is also & jus publicum in every public seaport, by which all persons, except enemies, have the right to enter and depart with their goods, wares and merchandise without let or hindrance. In this country, a grant of power to regulate commerce is given to congress by the constitution, and this includes the power to regulate navigation and establish seaports. This power is exclusive. In consequence thereof, the States have no authority to obstruct any port or navigable tidal-waters which form connecting links with the sea or extend through other States. Subject to this right, the riparian sovereign alone can authorize the construction of a bridge wholly within its own territory, and can prescribe terms upon which it shall be so constructed. Hence it follows that, as the East River is wholly within the State of New York, and is a navigable arm of the sea, no restriction whatever can be put upon the public right of navigation and free use of said river without the concurrent consent of the State and of the nation. The permission of one without the consent of the other is -unavailing. The permission which has been given by the concurrent authority of the State and nation, protects the common law rights of the people. At common law, whatever, at any time, in any manner, or under any circumstances, obstructs, impairs, impedes, hinders, delays, or that adds anything to the expense of the free use of, or that in any other manner encroaches upon the Jus publicum in or to any highway, marine, fluvial or terrestrial, of human agency, unless authorized by the sovereign power, is a nuisance, and as such may be abated by force, or by due process of law. A mathematical calculation will suffice to determine that a bridge is a nuisance (Wheeling Bridge Case, 13 How. U. S., 564)In this State, it has been held, that where a vessel being out of repair, receives damage from an obstruction which it would not have received if it had been in repair, the owner of such vessel can recover for the injury thus done. A telegraph company had authority to sink a cable across the Hudson River, which should not “injuriously interrupt the navigation of said waters.” A loose iron, hanging below the keel of a vessel, caught in the cable, and so the vessel was injured. It was held that the company was liable (Blanchard v. Western Union Tel. Co., 60 N. Y. 510). In principle there can be no difference between a cable below the surface of the water that obstructs navigation, and a cable above the surface of the water that effects the same result. And if the owner cannot be compelled to repair his vessel to sail over one cable, he cannot be compelled to alter his vessel to sail under another. Nor is the question of expense an open one, for it has been held that any obstruction which would render navigation more expensive, would be unlawful (Avery v. Fox, 1 Abb. U. S. 246). A still stronger case is afforded in North Carolina. A railroad company, under authority by State law, built a bridge across the river Neuse, and a steamboat captain deliberately ran Ms steamer into, and tore away part of the bridge. For this he was indicted for a trespass. The court held that the bridge obstructing a navigable river was a nuisance, and, therefore, the accused was not guilty (State v. Parrott, 71 N. C. 311; 17 Am. R. 5; and see State v. Dibble, 4 Jones L. [N. C.] 107, 115 ; Renwick v. Morris, 3 Hill, 621). In this respect marine and terrestrial highways have a common footing. As far back as King Charles, it was held that the erecting of a gate, although it be not locked or tied, but that every subject may open it and have passage at his pleasure, is a nuisance; for it is not so free and easy a passage as if no such inclosure had been (James v. Hayward, Cro. Car. 184). So, where a footway had a stone stile two feet high across it, the defendant removed the stile and put up a five-bar gate with a step upon it, Parke, Baron, held he had no right to put up a high five-bar gate to give the people the trouble of getting over it (Bateman v. Burge, 6 Car. & P. 391). Our courts have further held that trees or shrubs standing or growing in the highway that obstruct, hinder or annoy travelers, are nuisances (Phifer v. Cox, 21 Ohio St. 248; 8 Am. R. 58). The only difference between the terrestrial and - the marine highway is this, that if they ever come in conflict, the water highway has superior rights. If the foregoing point is sound in law, as we believe it to be, then the defendants were bound to refuse to advance to the trustees of the bridge any more moneys, whether the bridge was to be built within the limit of the expenditure or otherwise. The grant of the moneys by the State of New York being predicated upon the condition precedent that the bridge shall not obstruct the free and common navigation of the East River, and it being admitted by relators in the form of the proceedings taken herein that the bridge is now, as a matter of. fact, and will be, an obstruction to the free and common navigation of said river, the court should refuse, in the exercise of its sound discretion, to compel the application of moneys to the erection of an illegal structure. We urge this point upon the respectful consideration of the court with additional earnestness, for this further reason: This argument is now to be heard in the month of February, when no work of importance in the prosecution of the erection of the bridge can be undertaken, so that there is no delay in the work. At the same time, the legislature is in session at the capítol, and it can say whether it will consent to waive the condition it has imposed, that this bridge shall not obstruct the free and common navigation of the river, a question vitally important to the commercial supremacy of the city of New York, and one upon which the welfare of the whole State largely depends. Y. The authority given to the secretary of war, under the act of congress, was simply confined to the inception of the work ; it neither did nor could confer upon him the judicial power of judging and determining that the bridge would not obstruct, impair or injuriously modify the navigation of the river; but if it-did, it could not confer upon him the right to determine whether the State law was complied with. This authority is no greater than, it is not so great as, the authority conferred on the commissioner of patents. But the courts have always held that the issuing of a patent was only a prima facie right, and the courts have never thereby been ousted of their jurisdiction over that subject. YI. Even under that authority the bridge is an unlawful structure. 1. The law says: “until the secretary of war approve the plan and the location of the said bridge, and notify said company of the same in writing, the bridge shall not be built or commenced.’’ Now, there is no pretense that the secretary of war has ever notified the company in writing or otherwise of his approval. It is simply that General Humphreys says that he is directed by the secretary of war to inform them that he approves their plan. The familiar principle is that one who exercises a delegated authority has no power to delegate that authority. The law made the secretary agent to give written notice. The secretary had no authority to authorize General Humphreys to give such notice. Otherwise the series might be' indefinitely continued. 2. But, conceding for the sake of argument that the authority has been validly exercised, nevertheless the bridge is an unlawful structure.The express requirement of the conditions is, that there shall be no violation of the fourth condition while the bridge is in course of 'construction, and the diagram opposite page 78 shows that the storm ropes, so called, violate it, and the affidavits show that such storm ropes have caused injury to vessels. Putting up these stays was a revocation of the permission to build. The court in construing a condition cannot inquire into the magnitude of its infringement.' The maxim de minimis has no application to conditions. VII. The courts should not sanction the application of the trustees for any more money because of the reckless and criminal extravagance of the trustees in their procedure, and the uselessness of the bridge when completed. 1. The evidence before the court clearly shows that the moneys paid by the cities to the trustees have been wasted. 2. The evidence before the court also shows that the bridge is not being constructed in conformity to that provision' of the law that requires that the said bridge shall be constructed for the safe travel of the inhabitants of the cities of New York and Brooklyn. Another danger to be apprehended from the bridge is the overcrowding of foot-passengers. Of course the bridge, with a grade of two hundred feet to the mile, would be utterly useless for loaded vehicles. Carriages, light wagons and empty-teams only could ever make any practical use of the bridge. In view of these facts, we hazard nothing in saying that the universal public sentiment in New York city is opposed to the bridge as injurious to navigation, prejudicial to the maritime interests of the port of New York, an unsafe and unnecessary structure, and useless for all practical purposes of locomotion. And furthermore, if the same, under its present plan, could be built from its foundation for $4,000,000, the people would refuse to sanction such expenditure, deeming it to be dear at that price. It will be borne in mind that under the form of the proceeding herein, the relator has, in legal effect, demurred to the answer the defendants have made, and thereby admitted all the allegations of fact in the answer to be true, as has heretofore been shown. Under these conceded facts, it is admitted that the bridge, when completed, will not be safe for the travel of the inhabitants of the cities; and upon this fact the court must act, for the law puts the construction of the bridge upon the two cities, and appoints the trustees “for the purpose of managing and constructing said bridge,” giving them “full power, control and direction over the plan and construction of said bridge.” It is, therefore, the plain legal duty of the trustees to construct this bridge for the safe travel of the inhabitants, and whenever a public board violate a duty imposed by law, the courts have power to restrain them ; a fortiori, when they come seeking the interposition of the court in their behalf as a matter of favor, the courts will refuse to aid them. B. Over this matter the courts have control. The plans and specifications were, by law, placed in the control of the trustees, but the safety of the structure never was. The courts have this matter in their jurisdiction, and if they find that the plans adopted by the trustees will result in an unsafe structure, the courts can restrain the further expenditure of money, that may not only be wasted, but that may involve in some grave catastrophe the lives of many citizens. In this case the courts can exercise their restraining power by refusing to grant the order demanded by the relator. William M. Evarts, A. J. Vanderpoel, Austin Abbott, and Edgar M. Cullen (Cullen & Bergen, attorneys), for the relator, respondent: I. The question which arises on the construction of section 3, chapter 300, Laws of 1875, is, whether the limit of $8,000,000 is a limit on the amount of municipal appropriation, or whether it is a limit on the entire cost of the whole work as a completed structure, and imposed in such a form as that the appropriation, even within the limit, is not available, if it appears that in performing the duty imposed upon the trustees to construct the bridge according to the plan prescribed by the legislature, the complete execution of the plan will cost more than $8,000,000? In other words, is the duty of the trustees to construct the bridge, and their right to any of the moneys provided by the act of 1875, dependent on the condition that it be made to appear that notwithstanding all fluctuations in the value of labor and materials, all delays from accidental causes, all possibilities of interest accumulating before money is furnished by the cities to make payments, the bridge will be completed within the limit of $8,000,000? The claim of the relator is that the duty is imposed on the trustees to construct the bridge — that “full power, control and direction over the plan and construction of said bridge ” is given to them (subject to the act of congress and action under it of the secretary of war), and that the limit of money prescribed by the act was a limit on the amount of the contributions to be made by the two cities. That the trustees are entitled to such contribu-tions up to the sum so limited; that the subject of further appropriations, if found necessary and expedient, was a matter for future legislative action, and the question of the necessary cost of the bridge cannot be determined by the courts or by any other tribunal than by the trustees themselves. That when the bridge is completed, and all debts fully paid, the right to draw money ceases, even though the whole $8,000,000 has not been expended. 1. The act of 1875, the construction of which is in dispute, provides, in section 1, for retiring the private stock of the old bridge company, the dissolution of such company, and that “the debts and liabilities of the same shall be paid by the trustees hereinafter mentioned,” and the bridge now in course of construction over the East river, between the cities of New York and Brooklyn, shall be completed and managed as hereinafter provided for on behalf of the cities of New York and Brooklyn. Section 2 makes provision for the appointment of the board of trustees to manage the bridge, and that such board “shall have full power, control and direction over the plan and construction of the bridge.”' Section 3 provides that the expense of constructing the bridge, and of all liabilities incurred under the act shall be defrayed by the two cities in the proportion of one-third by the city of New York and two-thirds by the city of Brooklyn; that for such purposes the trustees shall call on the cities for such sums as they deem proper in the proportions above mentioned, “provided however, that the whole amount to be paid by both cities shall not exceed $8,000,000 ; and the city' of New York shall not be called on to pay a greater sum than $1,000,000 in any one year, and the city of Brooklyn not more than $2,000,000 in any one year, until the said bridge shall be fully completed and opened for public travel, and the debts and liabilities incurred therefor shall be fully paid.” 2. The question of construction at issue here may most conveniently be shown by inserting in italics what serves to make clear the meaning contended for on each side: The Relator’s Construction. § 3 . . . the expense of constructing and maintaining the same, and acquiring the land necessary therefor, and all liabilities imposed upon them, or incurred by them, by virtue of this act, shall be defrayed by the said cities in the proportion of two-third parts by the city of Brooklyn, and one-third part by the city of New York, and for such purpose the said trustees shall, from time to time, as they shall deem necessary, call upon the said cities, by request made to the mayor and comptroller thereof respectively, for such sums as they shall deem proper in the proportions above mentioned (provided, however, that the whole amount to be paid by both cities shall not exceed $8,000,000, and the city of New York shall not be called upon to pay a greater sum than $1,000-, 000, in any one year, and the city of Brooklyn not more than $2,000-, 000 in any one year) until the said bridge shall be fully completed and open for public travel, and the debts and liabilities incurred therefor shall be fully paid, and the said cities of New York and Brooklyn are hereby authorized and required, from time to time, to issue bonds,” &c. The Defendant’s Construction. § 3 . . . the expense of constructing and maintaining the same, and acquiring the land necessary therefor, and all liabilities imposed upon them, or incurred by ijiem, by virtue of this act, shall be defrayed by the said cities in the proportion of two-third parts by the city of Brooklyn, and one-third part by the city of New York, and for such purpose the said trustees shall, from time to time, as they shall deem necessary, call upon the said cities, by request made to the mayor and comptroller thereof respectively, for such sums as they shall deem proper in the proportions above mentioned, provided, however, that the whole amount to be paid by both cities, cost of the entire work, shall not exceed $8,000,000, and the city of New York shall not be called upon to pay a greater sum than $1,000,000 in any one year, and the city of Brooklyn not more than $2,000,000 in any one year, nor shall they he called upon to panj said $8,000,000, unless by such payment the said bridge shall be fully completed and open for public travel, and the debts and liabilities incurred therefor shall be fully paid, and the said cities of New York and Brooklyn are hereby authorized and required, from time to time, to issue bonds,” &c. 3. It will be seen that the act does not declare or fix the amount of the debts and liabilities of the former corporation which were to be paid by the trustees. This was all uncertain, and it nowhere provides for an estimate or ascertainment in advance of the cost of completing the bridge, either by the trustees or any other officers or tribunal, nor for the adoption in advance of the details of a plan whose estimated cost would be within the limit of $8,000,000. Therefore, if the limit of the cost of such completion within said sum is a limit on the powers of the trustees to draw any moneys whatever, such limit is not the probable or apparent cost, but the actual cost of the structure, as determined at its completion by the amount of expenditure then made. There is no middle ground on which to stand; either the trustees have the right to draw the moneys provided up to the limit named, or if the bridge should not be “fully completed and open for public travel, and the debts and liabilities therefor fully paid,” every dollar paid to the trustees, or by the trustees, was illegally paid; every contract entered into by the trustees, even at the earliest stage of the work, was void, and gave no right to compensation for materials furnished or labor performed ; and every dollar so expended could be reclaimed from the comptroller who paid, the trustees who expended, and the laborers and material-men who received the moneys, for all persons are bound to know the limits of the authorities granted to public officials. The right of the trustees to lay the foundation-stone would, upon the contention of the respondent, be made to depend on the fate of the cornice of the superstructure to be laid by their successors in office. In other words, the construction of the statute contended for by the appellant, and enunciated at the special term, makes that a precedent condition which, by the laws of nature and of supply and demand in trade, can only be a subsequent contingency. 4. The structure provided for, both from its magnitude and its exceptional character, was incapable of being made the subject of a contract. Of this the legislature were aware, and the act itself provides, not for the payment in a single sum for a completed work, but for daily and constant expenditures by the trustees ' during the progress of the work, not exceeding $3,000,-000 a year. The same board of trustees was not continued- for the whole work, but new appointments are to be made every two years. The first board of trustees might not be able to so far complete the work with the limited sum, but that the succeeding board, by slight changes made in good faith, might exceed, by a few dollars, the expenditure, when the action of the first board would become illegal. Such a construction is at war with the paramount idea of the law, which was to complete a particular structure then unfinished. The act must be construed reasonably toward that end. Who, under the construction contended for by respondent’s counsel, would serve as trustees? Who would contract with the trustees to furnish labor and materials if the validity of the contracts depends on the misfortune or waste of subsequent officials or subsequent mishap to the structure itself? 5. If it be urged that the validity of the trustees’ acts, and their right to obtain funds must be determined, not by subsequent results, but by present and apparent indications, a doctrine for which we claim there is no authority in the act, we answer that such determination must be exercised once for all, and that at the inception of the work ; otherwise, when work is prosecuting on the towers, the price of the iron superstructure rises, and the bridge cannot be finished within the limit; does the prosecution of the work then become illegal ? ■Is it again valid on the decline of prices ? What are the rights of a contractor furnishing stone at a time when, apparently, the work could be completed within the appropriation % Would it be a fair answer to him that iron had advanced in price to an extent not anticipated, and the bridge, therefore, could not be completed within the limit, and therefore his contract became void ? 6. The determination of the cost of the bridge was devolved on the trustees, and cannot be examined by any other tribunal. The trustees were given full power and control over the plan and construction of the bridge subordinate to that approved by the secretary of war. A power in any body to review the determination of the trustees as to the cost of the bridge would necessarily carry power to review and control the plan and construction of the bridge, vested by the acts solely in the trustees. 7. The principles here contended for nowise contravene the doctrine of the limitation of the power of public officers ; all such limitations are made dependent on facts existing at the time of the execution of the power, or acts to be performed prior to such time, and in no case upon future .contingencies. II. To maintain the objections made to the payment of the requisitions which have been made by the trustees, it must appear clearly from the statute not only that $8,000,000 was expressed as the limit of the power of the trustees to contract, but also that the adoption of a plan which it should be practicable under all contingencies to fully complete within that limit, was made a condition to their power to draw up to that limit, or any sum on account thereof. 1. Statutes for the construction or execution of public works are usually either (a) Those which in effect authorize raising a certain sum and create a board of officers to expend that sum, or so much as may be needed in the performance of the work ; and (5) Those which in effect create a board of officers with the power and duty to construct the work, with or without making at. the same time an appropriation for the work. The first method the legislature have invariably or almost invariably adopted where the work is of such nature that whatever is done will be valuable as far as it goes, as in the case of improving the navigation of a stream, or building a highway. In the second class of cases, that is, where the duty to construct the work is imposed with or without providing an appropriation — the power is not necessarily dependent on the existence of an appropriation, nor limited by the amount of an appropriation. This is the method which the legislature have- adopted where the substantial completion of an entire work is essential to the utility of any part of it; as in case of a bridge, a court-house, a capitol or State-house. 2. An examination of statutes of this class, in this State and elsewhere, will show that where the legislature wish to impose in advance “a hard and fast line” as to the entire cost of the structure, it is done in one or two ways ; either (a) By a provision or condition that the entire eost or expense of the work shall not exceed a specified sum ; or (&) By vesting the determination of the plan, or the estimates, in a different body from that which is authorized to make the contracts, and requiring it to be fixed as a condition precedent, or otherwise empowering the latter body to contract only up to the estimates. The former method has been most common in statutes providing for ordinary county bridges, especially where the statute authorized but did not require the work to be done. The latter method has been usual in the case of larger and more expensive structures, which were still, however, of a nature within ordinary experience and capable of approximate estimate. If the nature of the work is such that it is impracticable or undesirable to fix a maximum sum in the outset, it is usual to confer the power and create the duty, and then from time to time to make provision by appropriation, either directly or by issue of bonds or otherwise, to meet expenses incurred, whether before or after the appropriation in the exercise of the power. When this method is pursued the exhaustion of the appropriation does not terminate the officer’s power, though it may suspend his duty and relieve him from liability for non-feasance meanwhile. If the statute creating the power and duty makes no appropriation, the omission does not vitiate the power, but contracts made under the power are valid. Hence the origin of the recent statutes expressly forbidding various particular municipalities or officers to make contracts in excess of appropriations. 3. This distinction does not rest upon a mere question of construction. It inheres in the nature of official power conferred by law, the fundamental principles of which are, that while officers cannot bind the government they represent beyond the limit marked by the power conferred, the power itself implies authority to do whatever is necessary and proper within that limit, to carry it into execution. 4. These principles and the inferences above deduced from them are amply supported by the authorities, of which a brief summary follows: (a) Power to construct implies the power to contract therefor on credit (Ketchum v. City of Buffalo, 14 N. Y. 356, affi’g 21 Barb. 294; Meech v. Same, 29 N. Y. 212). (b) And the rule is the same where the power is vested in a special committee or board of officers (Damon v. Granby, 2 Pick. 352). By the Court, Parker, Ch. J. — “To superintend the building of the house, includes the power to make the necessary contracts, since it does not appear that any other committee or agent was intrusted with this power, and since the making of contracts is essential to the building of the house.” Hence, a committee chosen by a town to rebuild a bridge have implied power to bind the town by contract to build on the credit of the town, although express authority to borrow money for the purpose was given them (Simonds v. Heard, 23 Pick. 120, Opinion by Shaw, Ch. J. S. P., Foote v. City of Salem, 14 Allen, 87 — below stated). It is only when the law expressly prohibits the incurring of a debt that power to construct ceases to imply power to incur the necessary credit. See Donovan v. Mayor, &c. of New York (33 JY. Y. 293 where it was held that under express statutes forbidding a contract where there is no appropriation, a contract made in the absence of appropriation is void. But a new legislative authority to construct without any such express restriction takes the particular work out of the general rule and implies the power to contract irrespective of the general restrictions (See People ex rel. Navano v. Van Nort, 64 Barb. 205; Greene v. Mayor, &c., of New York, 60 N. Y. 303, rev’g 1 Hun, 24). (c) The settled official construction of the federal legislation as to the power of the heads of departments is in accord with this principle. The act of congress (of 1820, § 6, 3 Stat. al L. 568, see 1 R. S. U. S. § 3,732) provided that “no contract shall hereafter be made” by specified secretaries, “ except under a law authorizing the making of the same, or under an appropriation adequate to its fulfillment.” Under this act a law giving power “to cause to be constructed” dry docks, &c., is not enough; it should give express power to contract or make adequate appropriation. But if the law gives express power to contract, the fact that there is no appropriation, or that the appropriation is inadequate, does not affect or limit the power (Nathan Clifford, Atty.-Gen., 1847, 4 Op. Att.-Gen. 600; Caleb Cushing, 1863, 6 Id. 26, 28). The distinction is again stated by Attorney-General Black, in construing the above act in 9 Id. 19, in these words : “If congress empowers the secretary of war to contract for cleaning out the obstructions from a certain river, the secretary may make a contract at once for the whole work; and even though no appropriation has yet been made to meet it, the faith of the government will be pledged to make it good. But if congress has merely appropriated a certain sum to be expended by the secretary of war for the improvement of a river, he exceeds his authority when he contracts for more work than the appropriation will pay.” 5. It fellows that if a statute creating a power and duty to construct a public work provides an appropriation in a sum named, the sum does not by implication define or limit the power. If $200,000 are appropriated for buildings which must cost three times that sum, this is no limitation as to expenditure. No limitation is to be inferred which will defeat the object of the law (1854, Opinion by McLean, J., Cook v. Commrs. of Hamilton, 6 McLean, 112-119). In that case contractors sued the Cincinnati Court-House Commissioners for work done under their contract. One of the defenses relied on by the commissioners was that only $200,000 had been appropriated and that the plans exceeded three times that amount, and that the object of the contract sued on was to evade the restrictions of the act. Held, that there being no express limitation on the power to contract, none could be inferred, from the fact that only $200,000 were appropriated. The court says, page 119: “In all public works, either by the federal or state governments, it is not usual to appropriate when the work will require several years for its completion more than a small part of the necessary expenditure. Any other course, especially when the money must be borrowed, would be a wasteful expenditure. By the act, the commissioners were authorized to ‘ erect all such suitable and necessary public buildings for the said county, &c., of such' materials and upon such plan, as to them shall seem proper.’ From this provision it is clear that the buildings were to be constructed under the discretion of the commissioners, which is inconsistent with the supposition that they were to be limited in their expenditure to $200,000. Every practical man must see that the buildings required to be constructed would cost more than three times that sum. In the absence of any express limitation, so unreasonable an inference as would defeat the object of the law, cannot be made, nor sustained.” In the case of the U. S. Marine Hospital in New Orleans (“The Trenton Company’s Case,” 12 Ct. of Cl. 147, 163), Nott, J., says: “ If a public work were to be undertaken requiring twenty years of time, and involving $20,000,000 of expenditure, it would be an absurdity to require congress to appropriate $20,000,000 at the outset; and it would be equally a mischief if, congress appropriating only $1,000,000 toward the work, an executive department should be compelled thereby to make all its contracts as though $1,000,000 would be all that would ever be appropriated. From the first it has been the policy of the government to appropriate for public works no more money than may be required for the current fiscal year; and the validity of contracts has been deemed to depend upon the authority of the executive officers to contract, which in some cases might be implied from appropriations, and in others might be entirely independent of them. Appropriations are properly the means for satisfying indebtedness, existent or prospective ; but the means for satisfying a debt are not a necessary condition to an authority to contract one.” 6. The distinction between the limit of cost of entire plan and the limit of present power to expend, is further illustrated in the case of the State capitol in Sacramento. Under the constitution of California, which forbade the creation of a debt or liability on th.e part of the State exceeding $300,000, a statute was passed (March 29, 1860) creating a board of commissioners to construct a State capitol. The act provided that the entire cost of the capitol should not exceed $500,000; but only authorized the commissioners to contract to the extent of $100,000. Held, that they might adopt a plan which would require in its execution the $500,000 designated ; but as they could only contract to the extent of $100,000, and further legislation must be had before any greater liability could be created, the statute was not unconstitutional, for it did not create a liability exceeding $300,000 (1860, Opinion by Field, J., Koppikus v. Commissioners, 16 Cal. 248). 7. Even a prohibition or taxation for the purpose beyond a certain limit does not limit the power to contract. If there is no express or specific limit in the statutes as to the amount of liability which a municipality may incur for the purpose of constructing a bridge, provisions of the revenue law forbidding greater tax to be assessed than at a specified rate for bridge purposes, do not impose a limit. The power to incur liability in respect to bridges is distinct from .the power to levy taxes to meet liabilities thus incurred. Limitations in revenue laws as to the amount of tax do not measure the legal power to make contracts for the purpose (Kinsey v. Pulaski County, 2 Dill. 253, Opinion by Dillon, J., 1873). 8. And where, in order to limit the expense, the statute contains a provision requiring a previous estimate, and limiting the power of contracting by the amount of the estimate, the restriction is not to be so strictly construed as to defeat the work. Thus, in a Rochester case, where the charter of the city provided that “ no contract shall be let for making any public improvement at a price greater than the estimate thereof,” Held, that this meant simply that in contracting for making a public improvement, the work included in the estimate shall not be let at a higher price than that specified in the estimate. It does not prohibit the common council from causing other work to be done in addition to that included in the estimate, if they find it necessary in order to complete the improvement (1868, Opinion by J. C. Smith, J., Johnson and E. D. Smith, JJ. Ireland v. Rochester, 51 Barb. 414, 427). 9. These principles are peculiarly important in the case of a work like that of the bridge in question, which not only is of great magnitude and requires a great length of time, but must meet difficulties and obstacles, both in the nature of the soil and the nature of the structure, and the mechanical problems involved, which could not be measured nor fully foreseen in advance. The cost of such a work depends upon conditions which are disclosed only by its performance. To fix by anticipation a limit of aggregate cost as a condition of the power of the trustees to go on with the work and expend the means put at their disposal by the statute, would require putting it at the highest figure which any contingency could possibly render necessary, and thus invite extravagance, or would render the trustees’ contracts and payments, from the beginning, void, if in any contingency the limit proved inadequate to entire completion. 10. In the cases which have arisen respecting the construction of great public works these principles have been applied. In the Salem Water Works case (Foote v. City of Salem, 14 Allen, 87), the act, L. 1864, c. 268, authorized the city to construct certain works, and provided for the appointment of commissioners to execute them, and then by further provisions declared as follows: “For the purpose of defraying the cost of such franchises, property,” &c., “ as are taken,” &c., “and of constructing the works necessary and proper for the accomplishment of said purposes, and paying all expenses incident thereto, the city council shall have authority to issue scrip,” &c., “to an amount not exceeding in the whole, the sum of $500,000.” Held, that this imposed no limitation of the cost, and that the city had implied power to expend sufficient to complete the work in a reasonable and proper manner. Bigelow, Ch. J., in delivering the opinion of the court, said: “In the absence of any clear and explicit limitation, either express or implied, on the right of the city to expend money in the construction of works necessary to procure an adequate supply of water for the inhabitants, it must be held that the legislature intended to authorize an expenditure sufficient in amount to carry into effect the power granted in a reasonable and proper manner. This conclusion is the necessary result of the rule of interpretation, that the grant of a general power or authority carries with it the right to do everything that is necessary or fairly incidental to the due execution of the trust delegated.” And he adds : “If construed as an absolute limitation on the authority of the city, no steps could be safely taken to execute the authority conferred, unless it had been previously ascertained that the expenditure to be incurred would not exceed the prescribed sum. But it is obvious that this would be clearly impracticable in relation to an enterprise of the character contemplated by the statute.” In the case of the capitol extension at Washington, congress passed an act (September 30, 1850), appropriating $100,000 “ for the extension of the capitol, according to such plan as may be approved by the President of the United States, to be expended under his direction by such architect as he may appoint to execute the same.” Under this, the power of the president to make a contract which would involve an expenditure exceeding the amount of the appropriation was sustained by the attorney-general, Caleb Cushing. He says (6 Op. Att.-Gen. 26), “An appropriation of money by congress, for a specific object, is an implied authority for the president to do the thing, provided it can be done, within the limits of the appropriation ; for the mere fact of one appropriation does not necessarily involve the undertaking of congress to make further appropriation, and of course does not of itself empower the president to engage the government beyond the specific sun. But when the constitution of the United States, or any act of congress, authorizes and requires the president to do a thing, which involves the expenditure of public money, then, and in such case, the legality of an engagement of the president to have the thing done, that is, of a contract for its performance, is wholly independent of the question whether there is, or is not, an adequate appropriation by congress for the object.” And he adds that this position is one of the very elements of the business of government. In that case congress, subsequent to the above-mentioned appropriation of $100,000, appropriated $500,000, with a clause, “provided that nothing herein contained shall be so construed as to authorize any officer or agent of the United States to bind the United States, by contract, beyond the amount appropriated by congress, or to sanction any such contract heretofore made.” This, Mr. Cushing advised, was not a limitation of the entire cost of the work or plan. “ The effect of this proviso,” he says, “ is, to reserve to congress the faculty of making, or refusing to make, further appropriations,” and to prevent the contractors from making any claim on the government in excess of appropriations actually made. 6. Even if the limit of the sum to be paid by New York, &c., was a limit of entire cost, it must be presumed that the power to ascertain and determine whether the plan could be completed within that limit, was intended to be vested in the trustees, and must in the nature of things be exercised, once for all, in the adoption of the plan, or if the city of New York had any voice in the matter then, it was spent in the resolution authorizing the issue of the bonds. Thus, where commissioners were appointed by the legislature and directed to ascertain and certify when the bridge was completed, and the county commissioners were required, upon such proof of the completion, to pay therefor, Held, that the bridge commissioners’ certificate was conclusive in the absence of fraud or mistake (Guilder v. Dayton, 22 Minn. 366). So, under a statute providing that county bonds should not be issued until a sufficient sum had been provided by stock subscriptions or otherwise, to complete a certain railroad, and imposing upon them the duty of delivering the bonds when such provision had been made without indicating any person or .tribunal to determine that fact, necessarily delegates that power to the commissioners, and if delivered improvidently the bonds will not be invalidated (Commissioners v. Nichols, 14 Ohio St. 260, followed in Town of Coloma v. Eaves, 92 U S. [2 Otto] 484. S. P., Schanck v. Mayor, &c. of New York, 69 N. Y. 444). And if the sum named is a limit of entire cost, the contracts and obligations incurred in good faith would only be voidable as to the excess. The fact that a part of the indebtedness contracted by a municipal corporation for a certain purpose exceeds the constitutional limit, does not render illegal that portion which is not an excess. The indebtedness will be valid to the extent to which the corporation is allowed to contract (McPherson v. Foster, 43 Iowa, 48, 72, 1876, Opinion by Beck, J.). In this case the constitution forbade any municipal corporation to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding five per cent., on taxable property, &c. A school district whose property and indebtedness was such that the provision only allowed them to incur about $2,057.57 more debt, made a contract for the building of a school-house for $15,000, which they paid in bonds, issued to the contractors, who negotiated them. The plaintiffs, as taxpayers, &c., sued to have the bonds declared illegal and void.’ Meld, that they were void in respect to the excess, but valid to the extent of the debt which could lawfully be incurred. 7. There is nothing in the title of the act to modify these conclusions, (a) It is well settled that the title of an act, while it maybe referred to, where the language of the act itself is doubtful, and especially may be referred to for the purpose of sustaining the act, cannot be used to restrain or extend any provisions in the body of the act (Hadden v. Collector, 5 Wall. 107). Where the meaning of the language is plain, the courts cannot qualify it on supposed ground of public policy (Hyatt v. Taylor, 42 N. Y. 259). (5) But if the title be referred to, it does not-manifest any intention to make completion within the appropriation a condition. Even an express appropriation for the completion of a structure may be used, so far as it will go, although not sufficient to complete the work (People ex rel. Cornell v. Norton, 12 Abb. Pr. N. S. 47; N. Y. Court House case, 1871, Opinion by Sutherland, J. See also Foote v. City of Salem, above cited). III. There is nothing in the statutes prior to 1875, relating to the bridge, manifesting an intent that the language of section 3 should be construed as imposing a limit on the plan or entire cost, effective as a condition precedent to the validity of incurring expense within that limit. 1. By chapter 399 of 1867, a corporation was formed with power to build this bridge. The right was reserved to the cities of New York and Brooklyn to buy the bridge or to subscribe to its stock. No limit on the cost of the bridge was prescribed. The amount of capital which was fixed at $5,000,000, did not raise any such limit (Barry v. Mer. Ex. Co., 1 Sandf. Ch. 280, 298-312, 1844, Opinion by A. V. Sandford). 2. The cities having taken stock in the corporation, chapter 26 of 1869 was passed, giving each city a representation in the board of directors and making it the duty of said company to proceed without delay to construct said bridge. No limit on its cost was prescribed by this act. There was a limit of time, to wit: June 1, 1874 (§ 2). 3. Chapter 601 of 1874 authorized the directors to purchase the right of private stockholders, and thereafter and after the acceptance of the act the two cities should appoint all the directors (certain officers of the cities being directors ex-officio) and the bridge was declared a public highway. For the purpose of completing the bridge, the two cities were authorized to issue bonds for specified amounts. No limit on the cost of the bridge was prescribed by this act. The act having been accepted, the entire board was constituted by the two cities. 4. The legal effect of these acts was that the work, commenced as a private enterprise, became a municipal work (People v. Supervisors of Dutchess, 1 Hill, 50), and the directors were agents and trustees for the two cities, not for the State (People v. Ingersoll, 58 N. Y. 1, 30; Chicago v. McGraw, 75 Ill. 566), and the rules of law by which municipalities are held liable for the acts and defaults of their agents in a voluntary work, and for possible defects in the methods or in the structure, became applicable against the cities (See Barnes v. The District of Columbia, 91 U. S. [1 Otto] 540, 551, and cases cited). 5. The subject of the burdens of municipal indebtedness generally attracted much attention at this time;and the legislature of 1873 and 1874 matured, and after the intervening popular election adopted, constitutional amendments to restrain the creation of such indebtedness. In framing these amendments, they reserved to themselves the power to provide for the completion of this work, it being exceptional in its magnitude and novelty, and in the degree of public necessity demanding it. IV. The provision reading “the debts and liabilities incurred therefor shall be fully paid,” was intended to negative the idea which might be drawn from the preceding words, to wit, that the right to draw money should only exist until the bridge should be fully completed and open for public travel — with an unexpended balance; debts and liabilities might still remain unpaid, which, according to the letter of the clause as to the bridge being fully complete and open to travel, could not thereafter be paid by the trustees. V. The act of 1875 is not obnoxious to the amendment to the constitution adopted in 1874. The amendments touching the subject are as follows : article III. section 18. “The legislature shall not pass a private or local bill in any of the following cases..... providing for building bridges, and chartering companies for such purposes, except on the Hudson river below Waterford, and on the East river, or over the waters forming a part of the boundaries of the State” (L. 1874, pp. 927, 928; Same provision, 1 R. S. 6th ed. 88). 1. Article VIII, section 10, first sentence: “ Neither the credit nor the money of the state shall be given or loaned to or in aid of any association, or private undertaking” (L. 1874, p. 933; Same provision, 1 R. S. 6th ed. 102). Section 11, first sentence : “No county, city, town or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation, or become, directly or indirectly, the owner of stock in or bonds of any association or corporation, nor shall any such county, city, town or village be allowed to incur any indebtedness, except for county, city, town or village purposes ” (L. 1874, p. 933; Same provision, 1 R. S. 6th ed., 102). The former provision of section 1 of article VIII., that “corporations shall not be created by special act except for municipal purposes, and in cases where in the judgment of the Legislature the objects of the corporation cannot be attained under general laws,” was left unchanged. 2. No restriction was placed upon the power of the State to impose upon municipalities the burden and duty of constructing and paying for a public work for their municipal purposes, nor upon the power of the State to appropriate moneys from the State treasury in aid of a municipal public work, as had been done in several cases of bridges — as in the case of the bridge over the Hudson at the mouth of the Scroon river in Warren county (1 L. 1871, p. 525, c. 268); that over the Hudson at the mouth of North creek (2 L. 1870, p. 1452, c. 625); the bridge over French creek (1 Id. p. 1112, c. 492); that over Great Sodus bay, in Wayne county (2 L. 1871, p. 1695, c. 735); and that over Cayuga inlet in Ithaca (L. 1873, p. 949, c. 624); and that over Cattaraugus creek, at Upper Irving (2 L. 1868, p. 1614, c. 717). 3. The amendments reserved and confirmed to the State the power to provide, even by private and local acts, for bridging the East river, and to form- a corporation by special act for municipal purposes, and to authorize and require a municipality to incur debt for its municipal purposes. It has been held in a very well considered case that the restraints on private and local legislation contained in the amendments cannot apply against a work to which no general act can be applicable, such as the completion of a special approach to a city park (Hurlburt v. Banks, 1 Abb. New Cas. 157; Case of the Albany Park, Opinion by Westbrook, J.; affirmed by court of appeals. S. P., People ex rel. Kilmer v. McDonald, 69 N. Y. 362), — so that the power to provide for the completion of this bridge would remain even if it were not expressly excepted. But the express exception clearly manifests the legislative intent that the amendments should not embarrass their power in reference to this work. 4. The amendments took effect on the first of January, 1875, which was after the enactment of all the statutes thus far mentioned. In this situation the legislature, at its first session after the amendments took effect, passed chapter 300 of the Laws of 1875. The main features of this act are that when two-thirds of the private stock should have been retired the company should be dissolved; that the mayors and comptrollers of the two cities, together with others appointed by the chief officers of the two cities respectively, should constitute a board of trustees for the purpose of managing and constructing the bridge (§ 2), “ and shall have full power, control and direction over the plan and construction of said bridge; and the provisions of said chapter (c. 601, of 1874), in regard to the power and duties of the directors of said company, and the power and duties of the mayors and comptrollers of said cities therein provided, shall in all respects be applicable to said trustees, and said mayors and comptrollers, respectively.”" Then followed section 3, upon the construction of which the main question arises. There is nowhere else in the act any limit of cost or expense. 5. We have then in these statutes together a clear case in faror of the natural and ordinary meaning of the proviso in section 3, as in the nature of a limit on an appropriation, not a limit of power. The legislature create a board of officers, and charge them with the duty of erecting or completing the erection of a bridge, and expressly give them ‘ * full power, control and direction over the plan and construction of said bridge.” They then authorize this board to make requisition on the municipal treasuries from time to time, “provided, however, the whole amount to be paid by both cities, shall not exceed $8,000,000.” This is in form a limit on the continuing power to draw without further appropriation. There is nothing to indicate that it was intended as a limit on the plan. If it had been, the proper place of the proviso was section 2, so as to give full power, control and direction over the plan, provided the entire cost of the structure should not exceed $8,000,000. All the provisions of the act which relate to the subject confirm the natural and ordinary meaning, and repel the artificial construetion proposed. 6. There is no constitutional objection based on the objection that the act declares the two cities to be a consolidated district, for (a) It is a well-recognized principle that a clause, which it is not necessary to rely on, for the carrying of a statute into effect, cannot impair its efficacy. (5) The erection of a bridge to connect two adjacent cities is'a “city purpose” with reference to each city. It would.be a city purpose even if there were only one city, and the bridge were not entirely within its limits (City of Philadelphia v. Field, 58 Penn. St. 320; Guilder v. Town of Otsego, 20 Minn. 74; Same v. Town of Dayton, 22 Id. 366; Burroughs on Taxation, p. 75, § 57; Union Pac. R. R. Co. v. Commissioners, 4 Neb. 450). (c) By the common law, bridges were charges upon counties. This part of the common law was never adopted here, but bridges with highways of which they formed a part were charges upon the town (Hill v. Supervisors of Livingston, 12 N. Y. 52). Where the bridge was over, a stream dividing two towns, the towns were liable for its construction and maintenance in equal shares, except where a different rule was imposed by special acts (L. 1841, c. 225 ; Corey v. Rice, 4 Lans. 141; Beckwith v. Whalen, 5 Id. 376). (d) The act of 1875 did not intend to constitute a new political division of the State, but solely to provide for joint action by the two cities in a common work. This is evident by section 12 of the act, by which it is provided that the title to the structure shall vest not in the consolidated district of the two cities nor in the inhabitants of such district, but in severalty in the two cities as separate municipal corporations. (e) The expense of building a bridge between the cities of New York and Brooklyn is therefore a city purpose for each municipality. (/) A nd the legislature have power to provide for the apportionment of the burden by commissioners (Shaw v. Dennis, 5 Gilm. [Ill.] 405, following Thomas v. Leland, 24 Wend. 65; Commonwealth v. Newburyport, 103 Mass. 129; Carter v. Cambridge and Brookline Bridge Proprietors, 104 Id. 236; Dow v. Wakefield, 103 Id. 267; Waterville v. Kennebec County, 59 Me. 80; Matter of Zborowski, 68 N. Y. 96; People ex rel. Kilmer v. McDonald, 69 Id. 365). (g) The consent of the municipality is not necessary (People ex rel. McLean v. Flagg, 46 N. Y. 601; People ex rel. Dunkirk, &c. R. R. Co. v. Batchellor, 53 Id. 128, 140; Ritchie v. Franklin Co., 22 Wall. 67). (h) The fact that the cities are declared to constitute a consolidated district, does not alter or affect the continuance of their antecedent organic individuality for every general municipal purpose (People ex rel. Wood v. Draper, 15 N. Y. 532; People v. Pinckney, 32 Id. 377; Rusch v. City of Davenport, 6 Iowa, 443-450). (i) Whatever may have been the object of declaring the two cities to constitute a consolidated district — whether to avoid imposing on each a liability to private actions for damages in respect to. the work, or to carry out the provisions in section 8, for concurrent jurisdiction or otherwise — the purpose of the structure and of the loan, and taxation neces? sary to erect it, remained precisely what. it was, independent of the creation of such a district ever since it was declared a public highway, viz., a city purpose, and by the very terms of the act the. title, to the structure is vested in the cities respectively. The creation of the district was only a mode of, or incident in, effecting this purpose. 7. If there were doubts on this question this objection could not prevail. The unconstitutionality must be clear to warrant disregarding the law. “ If the purpose designed by the legislature lies so near the border line as that it may be doubtful on which side of it it is domiciled, the courts may not set their judgment against that of the law-makers.” So held on a question whether a tax was for public purposes, and the proper needs of municipal or local government (Weismer v. Village of Douglas, 64 N. Y. 91, 99, Folger, J., 6 Supreme Court [T. & C.] 514. And see Bank of Rome v. Village of Rome, 18 N. Y. 38). VI. No action by the board of estimate and assessment is necessary. 1. The charter only charges the board of estimate and apportionment with estimating the “amounts required to pay the expenses of conducting the public business of the city and county of New York” (Charter, L. 1873, p. 517, c. 335, § 112). And additional power to pass on the issue of bonds, even to pay the principal of outstanding bonds, was not implied, but was expressly given by a- separate clause (Id. 518). 2. The common council constitutes the legislative power of the city, and that is not restrained by the powers of the board of estimate and apportionment. If the common council were confined in the exercise of its authority to matters for. which the board of estimate and apportionment would make appropriations, the legislative power, in this respect, would be vested in that board and become subordinate to the finance department. It was never designed that the appropriations of the board of estimate and apportionment would control legislative action which the charter warranted (People ex rel. Schanck v. Green, 64 N. Y. 499, reversing 6 Hun, 11. S. P., People ex rel. Myer v. Board of Assessors, and Green, 53 How. Pr. 280, 284). VII. The allegation is made that the structure will obstruct navigation. The decision of the secretary of war is conclusive on this point. This question has been the subject of litigation in the United States courts and has there been decided in favor of the trustees by Judge Johnson (Miller v. Mayor, 13 Blatchf. 469). It is assumed that the State courts will follow that decision. VIII. The relator applied solely for a peremptory mandamus. We understand that the stipulation waives all objections to the remedy, but if not — 1. The reasons dictating such application are plain. The final decision of the court of last resort on an alternative writ could not be had for years. Unless there is a dispute of material facts, the controversy can be and should be disposed of on application for peremptory writ. Such is the constant practice of the courts. Public necessities require a determination of the question involved at the earliest possible time. 2. We conceive that there are no issuable or material facts in dispute; certainly whether Tweed had sworn to some statement or not cannot be material. The only allegation in the affidavit of Kelly of any relevancy is that the trustees are so proceeding that the work will not be finished within the appropriation made. 3. The remark of the learned judge that if he had even demonstrated the doubtfulness of the legal right, the writ of mandamus, upon well-settled principles, should not be granted, has no place in a discussion where the point to be determined is the meaning of a statute. The court must solve the doubt as to the construction of the statute, and when the court decides that point there can be no doubt as to the existence or non-existence of the legal right. IX. The practice of the relator in this case is proper. 1. Mandamus is the proper remedy whenever there is a clear right connected with a clear legal duty; no discretion exists to refuse the peremptory writ. “There is no doubt that where a party has no'other specific legal remedy, the court will assist him by issuing its prerogative writ, in order to his obtaining such right” (Judge Mansfield in Dr. Askew’s Case, 4 Burr. 2188). It is the only remedy of the trustees. The trustees are public officers, whether State agents or agents of the two municipalities it is unnecessary to determine. No title to the moneys to be paid vests in them, and it is doubtful if they could maintain suit for such moneys. They stand in a similar relation to the city to that occupied by its board of education, police, or its fire commissioners. 2. In England, the rale is well established that to compel a performance by a municipal corporation of a duty enjoined upon it by law, the mandamus will be either against such corporation or against the particular officers whose duty-it is to act in the premises (Tapping on Mandamus, 316; Rex v. Abingdon, 2 Salk. 699). The same rule obtains in this country (People v. Common Council, 3 Abb. Ct. App. Dec. 502; Mayor v. Lord, 9 Wall. 409; Dillon on Municipal Corporations, § 699; Moses on Mandamus, 200). 3. The relator has sufficient standing to maintain the proceeding. He alleges that the application is made on behalf of and by the direction of the board of trustees. The technical parties to a mandamus are the people and the parties proceeded against. It is only necessary to show an interest in the relator to the extent that it may appear he is not an officious intermeddler. In matters concerning the public interest any citizen may intervene (People v. Supervisors of Sullivan, 56 N. Y. 249; People v. Collins, 19 Wend. 56). 4. Under the case in 3 Abb. Ct. App. Dec. above cited, had the corporation never acted, it would have been incumbent on the relator to proceed against the common council, so that that board might designate the particular officer to act, and the specific character or style of bonds to be issued. But this department of the corporation acted and discharged its duties by the ordinance of May 8, 1876, enjoining the comptroller to borrow the moneys and issue the bonds. The affidavit of the relator specifically charges that the default of the city is caused by the neglect and failure of the comptroller, and this is not denied. Therefore the mandamus is well taken against that officer (People v. Flagg, 16 Barb. 503; People ex rel. Taylor v. Brennan, 39 Id. 522). The resolution of September 3, 1878, does not relieve the comptroller from this duty. First, it does not in terms repeal or abrogate the previous ordinance, but solely requests the comptroller to withhold the further issue of bonds Until the legal question is judicially determined. This application is the only proceeding in which such judicial determination can be had (People ex rel. McSpedon v. Haws, 34 Barb. 69). But further, if it be contended that the resolution was intended to have any greater effect, then it was void. The common council could doubtless have transferred the duty of executing the bonds to any other officer ; this the resolution did not attempt to do. But it could not pass a resolution the effect of which was to violate the law and refuse altogether to execute the duty imposed. There is no necessity for an audit or allowance of any vouchers. The auditor is to settle and adjust all claims in favor of or against the corporation, and all accounts in which the corporation is Concerned as debtor or creditor. This is not a claim against the corporation, nor an account in which the corporation is concerned as debtor or creditor. But further, the act of 1875 provides in express terms the prerequisites for payment of the money, to wit: calls on the city by request made to the mayor and comptroller. With these requirements the trustees have complied. But if the court should be of opinion that the other officials of the city of New York should be parties to the proceeding, a proper order can be made on the second application. The same writs may command several persons to do several acts if the performance of all such acts be necessary, in order that the ultimate object of the writ may be attained (Tapping on Mandamus, 325; Rex v. Middlehurst, 1 Wills, 283). Nor is it any ¡answer that demands have not been previously made on such officers (Commonwealth v. Commissioners of Alleghany, 37 Penn. St. 237; Same v. Same, Id. 277). So in this district writs of mandamus have been simultaneously issued against both the auditor and Comptroller (People ex rel. Duffin v. Earle, 46 How. Pr. 308; People ex rel. Hawley v. Earle, Id. 267). Where the duty of maintaining a bridge over a railroad rests upon the company, an act of the legislature empowering the common council of the city where the bridge was situated to require the company to widen it as public convenience should require, is not objectionable as delegating authority to an interested, tribunal. The council, oven if acting as agent of the city, would not be interested, but it is the agent of the law, and not of the city. English v. New Haven, &c. Co., 32 Conn. 240. The form is not to be too closely regarded. Thus, a vote of a town to build a bridge, has been held equivalent to an “ application” to the supervisors. Bergen v. Gubna, 10 Hun, 11. See note at the end of the case. Page 413 of this vol. Present, Noah Davis, P. J., Brady and Ingalls, JJ. Page 389, above. Page 391, above. See also Northern Transportation Co. of Ohio v. City of Chicago, 98 U. S. (8 Otto); S. C., 7 Reporter, 385. So if a county contracts a debt in building a bridge, but, before the debt becomes due, a new county is created in part out of it, the legislature has power to appoint commissioners to ascertain and award the amount that the new county shall pay as jts share of the debt. People v. Alameda County, 26 Cal. 641. [MAJORITY — By the Court. — Earl, J.] By the Court. — Earl, J. By the act, chapter 399 of the Laws of 1867, certain persons were incorporated as “The New York Bridge Company” for the purpose of constructing and maintaining a permanent bridge over the East river, between the cities of New York and Brooklyn, The capital stock of the company was fixed at $5,000,000, and full authority was conferred upon it to construct the bridge, and to acquire the necessary lands for that purpose. The bridge was required to be not less than one hundred and thirty feet above high tide at the middle of the river, and was to be so constructed as not to obstruct ¡free and common navigation of the river. The two cities were authorized to subscribe to the capital stock of the company such amount as two-thirds of their common councils respectively should determine, and they were also authorized to take the bridge and acquire all the property therein upon terms specified in section 7 of the act. Under that act the city óf New York subscribed to the stock of the company $1,500,000, and the city of Brooklyn subscribed $3,000,000, which subscriptions were paid. On February 20, 1869, ah act (chapter 26 of that year) was passed, amending the prior act. It pro-Tided that the two cities should be represented in the board of directors of the company by certain of their officers, and that the company should proceed without delay to construct the bridge. On March 30, in the same year, an act of congress was passed, entitled “An act to establish a bridge across the East river, between the cities of Brooklyn and New York, in the State of New York, a post road.” It declared the bridge to be constructed under the first act above mentioned, when completed in accordance with that act, to be a lawful structure and post road for the conveyance of the mail of the United States, provided that it should be so constructed as not to obstruct, impair, or injuriously modify the navigation of the river. The bridge company was required to submit to the secretary of war a plan of the bridge, together with other information, so that he might determine whether the bridge, when built, would conform to the prescribed conditions as to obstructing, impairing, or injuriously modifying the navigation of the river, and the secretary of war was authorized and directed, upon receiving such plan and other information, and upon being satisfied that a bridge built on such plan would conform to the prescribed conditions, to notify the company that he approved the same, and upon receiving such notifications, the company was authorized to proceed to the erection of the bridge, conforming strictly to the approved plan. The East river is a public navigable water, and to bridge it required the concurrent authority of the State of New York, and of the United States ; of the former, by reason of its rights in the lands on the shore, and under the water, and of its qualified sovereignty over the water ; and of the latter, by reason of the exclusive power of congress to regulate commerce, and to determine in its regulation thereof to what extent navigation upon the water may be obstructed or interfered with. That congress may authorize a bridge over a public navigable water which will, to some extent, obstruct or interfere with navigation, cannot be disputed (Wheeling Bridge Case, 18 How. U. S. 519; 18 Id. 421; Miller v. Mayor, 13 Blatchf. 469). In 18 How. it is said : ‘ ‘ The power of congress to regulate commerce, includes the regulation of intercourse and navigation, and consequently the power to determine what shall or shall not be deemed in judgment of law, an obstruction of navigation.” In 13 Blatchf., a case involving this bridge, Judge Johnson, after reviewing the authorities, said : “It results from the cases considered, that the authority of congress is paramount, in the regulation of commerce, under the constitution, and that its determination in respect to interference with navigation, by obstructions thereto, is conclusive. What it authorizes may be justified upon its authority. What it forbids is necessarily unlawful. Nor is it to be forgotten that this power of congress is at all times capable of exercise. If it should turn out that the judgment of congress has been mistaken, it can by law require the bridge to be altered, or removed, and can adapt its regulation of commerce to its view of the public interests.” Congress, in the exercise of its power to regulate commerce and navigation, could itself approve the plan Of the bridge, or it could prescribe á inode in which it could be done. Hence it was competent for it to devolve upon the secretary of war the power to approve Or prescribe the plan for the construction of the bridge. By so doing it did hot abdicate its power, but provided an agency, as it does in most other cases, for the complete and practical exercise of its power; and it still retained control of the whole subject by the power expressly reserved, at any time to alter, amend or repeal the act; ■In compliance with the requirement of the act, the bridge company submitted a plan of the bridge to the secretary of war, which was approved by him subject to certain conditions. One of the conditions was that the main span of the bridge should not be less than one hundred and thirty-five feet in the clear above high water ; and another was “ that no guys or stays shall ever be attached to the main span of thé bridge, which shall hang below thé bottom cords thereof.” And on June 21,1869, he notified the bridge company of such approval. The act of congress did not provide how such notice should be given, and hence the secretary of war, having himsélf considered and approved the plan, could convey such notification in person or by. mail, or in any other way which would be effectual. He did it through one Of his subordinates, and it cannot be doubtéd that that was a compliance with the act. Having thus the authority of congress, and of the State legislature, the bridge company proceeded with the construction of the bridge, until the year 1874. During that time it was under obligation, under the State law, to construct the bridge so as not to obstruct “the free and common navigation of the East river,” and under the act of. congress, to construct it according to the plan approved by the secretary of war. In June, 1874, another act was passed by the State legislature (chap. 601 of that year), entitled An act to amend the act of 1867 “ and to provide for the speedy construction of said bridge.” Section one of the act provided that when the two cities should by vote of their common councils respectively, or when either of them should accept the provisions of the third section of the act, and when the owners of two-thirds of the private stock bridge company should accept the provisions of the second section, then and thereafter, the board of directors of the company should consist of twenty members, eight persons to be appointed by the mayor and comptroller of each city, and such mayors and comptrollers. Section two provides that whenever any private stockholder of the bridge company should give his assent to that act by an instrument in writing, signed, acknowledged, and recorded as prescribed, the directors to be appointed under the act were authorized to purchase the rights of such stockholder, which rights were to be determined by the amount paid by such stockholder, together with interest, and to provide for the payment of such amount. Section three declared the bridge to be a public highway for the purpose of rendering the travel between the two cities certain and safe at all times, subject nevertheless to such tolls and prudential and police regulations, as the board of directors should from time to time establish ; and for the purpose of completing the bridge, the two cities, in addition to the amounts before subscribed by them, were respectively authorized to take and pay for further stock, the city of New York to the extent of $1,000,000, and the city of Brooklyn $2,000,000. The effect of that act was to leave the bridge company as a corporation still in existence, and the two cities might or might not own all the stock ; and before any subscriptions to the stock were made under that act by the two cities, the constitutional amendments took effect, January 1, 1875, section 11 of article 8, which provide as follows: “No county, city, town or village shall hereafter give any money or property, or loan its credit, to or in aid of any individual, association or corporation, or become, directly or indirectly, the owner of stock in or bonds of any association or corporation, nor shall such county, city, town or village be allowed to incur any indebtedness, except for county, city, town or village purposes.” After this provision became a part of the State constitution, the legislative act of 1874 could not be carried into effect, and to obviate this obstacle thus interposed, another act was passed May 14, 1875, entitled, “An act providing that the bridge in the course of construction over the East river, between the cities of New York and Brooklyn, by the New York bridge company, shall be a public work of the cities of New York and Brooklyn, and for the dissolution of said company, and the completion and management of the said bridge by the said cities.” Section one provides that whenever two-thirds of the private stock of the company shall have been retired from the company by purchase, as provided by the act of 1874, the company shall be dissolved and the debts and liabilities of the same shall be paid by the trustees of the bridge, and the bridge then in-course of construction, shall be completed and managed as provided in the act on behalf of the two cities, as a consolidated district, for that purpose; and then the act of 1874 is recited at length. Section two provides that within twenty days after the passage of the act, the mayor, comptroller, and president of the board of aldermen of the city of New York shall appoint eight trustees, and the mayor, comptroller and city auditor of the city of Brooklyn shall also appoint eight for the purpose of managing and constructing the bridge; and the trustees thus appointed, together with the mayors and comptrollers of the two cities, shall constitute the board of trustees of the bridge, and shall have full power, control and direction over the plan and construction of the bridge. Section three provides that after the dissolution of the company the bridge shall be a public work to be constructed by the two cities for the accommodation, convenience, and safe travel of the inhabitants of the district, composed of the two cities; and that the expense of constructing and maintaining the same shall be defrayed by the two cities in the proportion of two-thirds by the city of Brooklyn, and one-third by the city of New York; and that for such purpose the trustees shall from time to time, as they shall deem necessary, call upon the cities for such sums as they shall deem proper in the proportions mentioned, “provided, however, that the whole amount to be paid by both cities shall not exceed $8,000,000, and the city of New York shall not be called upon to pay a greater sum than $1,000,000 in any one year, and the city of Brooklyn not more than two $2,000,000, in any one year, until the said bridge shall be fully completed,- and open for public travel.” By sections, five and seven the trustees are given full power and authority to purchase and hold for the two cities all real estate necessary for the bridge, to establish ordinances and laws regulating the use thereof, and the rates of toll for travel over the same, and to keep and maintain the same in good repair at the expense of the two cities. Section deven provides that if any private stockholder of the company shall have declined to sell his rights in the company, as provided in section two of the act of 1874, the trustees are authorized to proceed at once to acquire the same for and in behalf of the two cities, in the manner provided in the preceding section for acquiring real estate. Section twelve provides that upon the dissolution, of the bridge company, as provided in the act, the bridge and all its appurtenances, shall vest absolutely in and belong to the two cities. After the passage of that act, the trustees mentioned therein were appointed. All the private stock of the bridge company was purchased as provided in the acts, and the company was dissolved.' The trustees proceeded with the construction of the bridge, and received for that purpose from the two cities upwards of $5,000,000, $1,500,000 of which was from the city of New York, and in 1878 they made upon the. city of New York two calls of $500,000 each, which are the subject of the present controversy. -The act of 1875 is not, as claimed by the appellant, in conflict with the constitutional provision above recited, It was not the purpose or effect of the act to make the city of New York a stockholder in the bridge company, or to cause it to loan any money or credit to such company. It was the purpose of the act to extinguish the company, and vest all its property in the two cities for a public purpose. The cities already owned most of the stock and property of the company, and a way was provided by which they could become the owners of the balance of the property. This was to be accomplished by voluntary agreement with the private stockholders, and the payment to them of the value of their stock, and in case they could not make such purchase, then such property was tobe taken by the exercise of the right of eminent domain. The two cities could be authorized to take this bridge for a public purpose as they could to take any other property for the same purpose; and the act provided the mode in which, through the trustees, they could do it. AH the money they paid for stock or upon the debts of the company, was simply in furtherance of the purpose to vest the property of the bridge in the two cities, and it was not paid to aid the cqmpany, or t.o make the cities stockholders therein. The effect was to be the dissolution ■of the company, and the transfer of its property. Nor can it be said that the indebtedness authorized to be incurred by the cities for the construction of the bridge, was not for a city purpose. It is impossible to define in a géneral way, with entire accuracy, what a city purpose is, within the meaning of the constitution. Each case must largely depend upon its own facts, and the meaning of these words must be evolved by a process of exclusion and inclusion in judicial construction. It would not be a city purpose for the city of New York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson river generally, between that city and Albany, although incidental benefits might flow to the city. Such works have never been regarded as within the legitimate scope of municipal government. On the contrary, it would be a city purpose to purchase a supply of water outside of the city, and convey it into the city, and for such a purpose a city debt could be created. So, lands for a park for the health and comfort of the inhabitants of a city could be purchased outside of the city limits, and yet conveniently near thereto. Such improvements are for the common and general benefit of all the citizens, and have always been regarded as within the scope of municipal government; and so too, highways or streets leading into a city or village maybe improved, provided the improvements be confined within such limits that they may be regarded as for the common benefit and enjoyment of .all the citizens. It cannot, therefore, well be held, as claimed by the learned counsel for the appellants, that what is meant by a city purpose is some work or expenditure within the city limits. There could-be no good reason- for such a limitation, It could be no worse for a city to, incur debt for city purpose outside of the city limits than for one within suqh limits, and there is just as much reason for allowing it to be incurred in the one case as in the other. The cities of New York and Brooklyn are intimately connected in many ways, by business, social, and commercial ties. Thousands who do business in one city do business in the other. The port of New York includes the whole river at the place where the bridge is to be constructed, and the commerce from all parts of the world which flows into that port, is discharged on each side of the river. To bridge such a water, separating two such cities, must be a city purpose of each city. The bridge will be for the common benefit of all the citizens of both cities, and each citizen will have the same right to use it as every other citizen. It would have been a city purpose if either city had been authorized to build the whole of the bridge, and it is no less so that both are to unite in building it. It has always been the policy of the State for two towns, separated by a stream of water, to bridge the stream at joint expense, and the construction of such a bridge is a town purpose of each town. If the legislature could not authorize these two cities to incur debt for the construction of this bridge, then it could not authorize towns to incur debt for the construction of bridges over streams dividing them. That it was intended by this clause in the constitution to prohibit towns from incurring debt for such a purpose, will not, it is believed, be claimed by any one. Suppose the river had been, like the Thames in London, or the Seine in Paris, wholly within the city of New York, it would not be disputed that it would have been a city purpose to bridge it. Can it be any less so that the river divides what would otherwise be one city ? Suppose this river had been a small stream, like those usually dividing towns, which could be.crossed only by a bridge, would not the construction of the bridge have been a city purpose, just as its construction would have been a town purpose, if it had been between two towns 1 The size of the river and the magnitude of the work certainly does not strip the bridge of the municipal character which it would, otherwise have. The legislature, when legislating in view of this constitutional limitation, must determine in the first instance what is a municipal purpose. Its decision is not, however, final. When its act is challenged, as in conflict with this constitutional limitation, the courts must determine whether debt is authorized to be incurred for a purpose not municipal. But as the dividing line between what is a municipal purpose and what is not, is, in many cases, shadowy and uncertain, great weight should be given by the courts to the legislative determination, and its action should not be annulled unless the purpose appears clearly to be one not authorized. As said by Judge Folger, in Weismer v. Village of Douglas (64 N. Y. 91), “if the purpose designated by the legislature lies so near the border line that it may be doubtful on which side of it it is domiciled, the. courts may not set their judgment against that of the law makers.” It is not perceived for what purpose the .language as to a consolidated district, found in the first section of the act of 1875, was inserted. Whatever the purpose was, it has no bearing upon the constitutional questions involved. The bridge was to be constructed and managed by the two cities, and when completed was to belong to the two cities as tenants in common, each owning a share proportionate to the money contributed by it. So far as-1 can perceive, .this language.could be stricken from the act without in any way impairing any of the essential provisions of the act, or affecting the purpose to be accomplished by it. Therefore, having nothing to say about the wisdom of the legislation under consideration, I am confident in the conclusion that the construction of this bridge is a city purpose of each city, and that each city can incur debt for the same, and that the act of 1875 is not in conflict with any provision of the constitution. After the passage of the act of 1875, it was no longer necessary so to construct the bridge as in no degree to obstruct the free and common navigation of the river, as required by the act of 1867. At the time of the passage of the act of 1875, a, plan of the bridge, approved under a public act of congress, had for some years been adopted and acted upon. That plan showed precisely to what extent the bridge would obstruct navigation upon the river, and more than $5,000,000 had been expended upon the bridge. The plan and character of the bridge must be assumed to have been known to the legislature, and the act of 1875 is an act providing for the completion of the bridge then in course of construction, and the trustees to be appointed under that act are required to complete that bridge. There was then a legislative approval and sanction of the bridge as then being constructed according to the plan prescribed by the act of congress, and thereafter the trustees were required only to conform to the plan thus adopted and approved in the construction of the bridge. So long as there is no departure from such plan, the structure could not be assailed as an obstruction to navigation. What is thus sanctioned both by the State and national legislatures cannot be a nuisance, or otherwise unlawful. There is no allegation on. the part of the defendant that there has been any departure from the approved plan in the construction of the bridge except in one particular, and that is as to the guys or stays. B[e alleges that guys or stays have been and are attached to the main span of the bridge, which hung below the bottom cords thereof. There is no allegation that those gnys or stays are to become a permanent part of the bridge; but they are used only, as seems to be conceded, in the construction of the bridge ; and it may well be doubted whether such temporary appliances are within the condition prescribed by the secretary of war. But if the guys or stays are unauthorized, such a departure from the approved plan would not justify the defendant in withholding the payment of this money. The duty is not imposed upon him, as comptroller of the city, to see that there is no departure from the plan in the construction of the bridge. He is to pay the money when properly called for, and then it is the duty of the trustees of the bridge to properly apply and expend it. If they do not discharge their duty, if they commit a breach of trust, or if they disregard the plan in any material matter, the defendant, as one of the trustees, can go into the proper courts, State or Federal, and compel an observance of their duties, and conformity to the plan. The defendant also alleges, as a justification of his refusal to pay, that the trustees are extravagant in the expenditure of the money intrusted to them, and that the bridge would be useless and unsafe when completed upon the present plan. These matters do not justify the defendant’s refusal. The trustees are appointed pursuant to law, to disburse the money. In its disbursement there may be a certain amouD t of extravagance and wastefulness, flowing from misjudgment or folly, for which there is no remedy. But if they be carried to such an extent as to be reckless and criminal, a court of equity, upon proper application to it, may restrain and control the trustees to prevent the waste of the trust funds. The defendant is a member of the board of trustees, and as such, has opportunities of knowing how the money is expended. If he cannot, as a member of the board, prevent its waste, he may take preventive action in the courts. But he cannot refuse to pay the money. The money thus paid may not be wasted. It would be quite a novel doctrine that the custodian of public money, directed to pay it to persons charged with the duty of expending it, could withhold payment because of the apprehended extravagance of those appointed by law to expend it. The issue as to whether the bridge will be useless and unsafe could not be tried in this proceeding. The legislature has directed the bridge to be completed and has sanctioned the plan adopted. It authorized the appointment of trustees, who were given “full power, control, and direction over the plan and construction of the bridge,” and it made it the duty of the defendant, as comptroller, to pay the money to them. He cannot withhold payment, because, in his judgment, the bridge will be useless and unsafe, or because it will, in fact, to a large extent, be so. • • But the most serious question is yet to be considered. The defendant claims that under the act of 1875, the trustees had no power to proceed with the construction of the bridge and to call for any money from the two cities, and that the cities had no power to pay any money to the trustees, unless the bridge could be completed for not more than the sum of $8,000,000. A careful consideration of the whole subject has constrained us to take a different view of that act. The législature has, at all times, apparently regarded this bridge as of great importance to the two cities, and has appeared to be solicitous about its completion. In, the first act, that of 1867, it authorized the two cities to subscribe an, unlimited amount to the capital stock of the company, and ultimately to become the absolute owners of the bridge. It conferred upon the company the sovereign, power to take lands for the purposes of the bridge, by the right of eminent domain, thus treating it like corporations organized to construct railroads, in which the public are supposed to have an interest. In the act of 1869, it provided for a representation of the two cities by three of the principal officers of each in the board of directors, and directed the company to proceed with the completion of the bridge without delay. The act of 1874 was entitled an act, among other things, “ to provide for the speedy construction of the bridge,”.and the scheme of that act was to place the company under the control of the two cities, and vest all the stock of the same in the two cities. The directors to be appointed under that act were to hold office until the completion of the bridge. The act declared the bridge to be a public highway, and for the purpose of completing it authorized the two cities to advance further sums of money, and take stock therefor, and it provided for the application of the income of the bridge after its completion. All the provisions looked to a completion of the bridge, and no limitation was placed upon the cost thereof. The act of 1875 is entitled an act, among other things, providing for the completion and management of the bridge. The whole act has in view the completion of the bridge and its management after completion. It is provided that “it shall be completed and managed as hereinafter provided for and on behalf of the cities,” that the plan and construction thereof shall be under the control and direction of the trustees ; that it shall be a public work to be constructed by the two cities ; and that the expense of constructing and maintaining it shall be defrayed by the two cities in the proportion mentioned; and then it is provided that the trustees shall call upon the cities for the needed funds “ provided, however, that the whole amount to be paid by both cities, shall not exceed $8,000,000,” There is no requirement that the trustees shall first estimate the cost of the entire bridge, or that they shall not enter upon the construction thereof unless the expense can be kept within $8,000,-000. If it had been intended that the trustees should not enter upon the completion of the bridge, without first determining that in no event it should cost more than that sum, a matter of such controlling importance would have been expressed in plain and explicit language. When the entire legislation upon the subject is considered, the inference is not'warranted that the legislature meant that the structure, then partially completed, upon which upwards of $5,000,000 had been expended, should be abandoned, unless the expense of its completion could be kept to the sum mentioned. The construction of the bridge was a work of great magnitude, unparalleled in the world. The difficulties that might have to be encountered could not be foreseen. It was a work requiring some years for its completion, and the fluctuations in the price of materials and labor could not be anticipated. Another uncertain element in the cost of the bridge was the interest on all the sums advanced by the two cities from time to time, which was to be added to the cost, and no one could forecast the amount of interest which would thus accumulate by necessary delays in the completion of the bridge. The nature of the work was such that it could not have been expected that it could be let by contract. ■These considerations show that it would have been impossible to estimate in advance the precise or even proximate cost of the bridge. And yet, if the contention of the defendant be sound, if the trustees had first made an estimate, bringing the cost within the sum named, and they or their successors had entered upon the’construction of the bridge, and if it had subsequently, unexpectedly and unavoidably, turned out that the cost would exceed that sum by a few thou; sand dollars, the whole expenditure would have been unauthorized and illegal, the trustees disbursing the moneys in good faith would have been personally liable, and the bridge itself would have been an unlawful structure. A construction reaching such a result cannot be the correct one. The legislature intended the bridge should be completed. The work was, of such exceptional character that it did not know, and no one could know, what it would cost, and hence no limit was placed upon its cost. It was probably supposed that the $8,000,000 would be sufficient to complete the bridge, and that was the amount appropriated or made available for the trustees. It was a limit to the amount which they could draw from the two cities, and was a constant admonition to them to keep the expenses within that sum. But they were to go on with the construction of the bridge, and were authorized to draw that sum if needed, and when they had drawn up to that limit they were to stop, and await further legislative authority. The legislature could then authorize more money to be paid by the two cities, or could appropriate sufficient money from the State treasury. The proviso was, not that the bridge should not cost more than $8,000,000, or that it should not be constructed if it was to cost more, but that the two cities should not be called upon to pay more. • I have carefully examined the authorities cited on the argument upon the point last discussed, and find nothing in any of them having any important bearing, and hence they are not referred to here. Having thus given this case the careful examination its magnitude requires, I feel confident in the conclusion that the order appealed from is right, and shouid be affirmed. Rapadlo, Andrews and Daneorth, JJ., concurred. Compare Woodman v. Kilbourn Manuf’g Co., 1 Abb. U. S. 158; State x. Eau Clair, 40 Wis. 533.f Where the charter of a railroad company authorized them to construct a bridge across a navigable stream, provided such bridge was located at a point convenient to navigation, — Held, that the question whether the bridge was so located, was between the State and the company exclusively, and could not be tested in an action against the latter by a private individual. Stephens, &c. Co. v. Central R. R. Co., 34 N. J. L. 280; 4 Vroom, 229. Compare Fosdick v. Perrysburgh, 14 Ohio St. 472; Falconer v. Buffalo, &c. R. R. Co., 69 N. Y. 491. See also Union Pacific R. R. d. United-States, 10 Ct. of Claims, 548. See also Lander v. McMillan, 8 Jones (N. C.) L. 174; Cass v. Pittsburgh, &c. R. R. Co,, 80 Penn. St. 31. For other cases, as to what constitutes a county, city, town, or village purpose, see City Council of Montgomery v. Plank Road Co., 31 Ala. 76; Mobile v. Dargan, 45 Id. 310; Douglas v. Placerville, 18 [DISSENT — Folger, J.] Folger, J. [Dissenting.] — The question which has most grasped my mind is whether the legislature meant to fix á bound to the cost of the bridge. I have been led to think that it did. Such, it seems to me, is the true construction of the act of May 14, 1875. I am aware of the rules of law, that a grant of general power carries with it the right to do everything that is needful or fairly incidental to the due execution of that power (Foote v. Salem, 14 Allen, 92), and that where there is no express limitation upon the power given, an inferential or implied limitation, that would defeat the object of giving the power, cannot be made nor sustained (Cook v. Commsisioners, 6 McLean, 112), and as following therefrom, that if á statute, giving a power and' making it a duty to construct a public work, provides an appropriation in a sum named, the sum does not by inference or implication define or limit the power. But when all this is conceded, it is also to be conceded that the legislature may, in its wise foresight, give a power, express the gift in general terms, and yet fix the bound of cost beyond which the use of the power cannot go. Thus, when a general act declares that no contract shall be made by certain officers of government, save under a law authorizing the same, or under an appropriation big enough for the fulfillment of it, and an act then gives power to cause a public Work to be constructed, it is not enough to warrant a contract for the work ; there must be a power thereto in express terms, or an appropriation large enough for it. So that it comes at last to this, whether, by the Words Used in an act, the legislature, though it has given power in general terms, has not also put a bound -to the cost. In my judgment, both the words used in this act, and the help to the interpretation of them yielded by the legislation in pari materia, show that the legislature meant to name a sum which should be the bound of cost. It is with modest feeling that I suggest, that the question has been hidden somewhat in mistaken analogies. The act has been treated as one providing for the doing of a work of that general public, of which the legislature is the prime representative in giving the power and directing the raising of means ; and as one providing that one set of public agents shall make the plans and do the work and make the payment therefor, and another set of public agents raise the means of payment and hand them over on call. The case is not that, nor like that. The act, at the point of view at which we now are, is simply this ; one which permits the two cities to complete the bridge, and to pay therefor by money raised by bonds, ultimately to be redeemed by the avails of taxation. The provision for trustees, though seeming to form a body of some importance, is merely the making of a new set of municipal agents. What they do is for the cities, and not for themselves, nor any other principal. The parties to the act are only the legislature and the two municipal bodies. We should look upon them thus. The two cities ask from the legislature its permission to finish the bridge. The legislature says to them : You together may finish the bridge; you pay therefor by your bonds ; but the whole amount to be paid by you both, for that purpose shall not exceed $8,000,000. To say that this does not restrict the cost, it appears to me to rest in names, and not reach things. Only these two cities can finish the bridge ; only they can pay therefor; yet they can pay no more than a sum named. When that sum has been used in bridge-building, the work must stop. It may need more to finish it; but as no more can be paid out to finish it, it can cost no more. That is to say, there is then no lawful power to lay out another cent upon it. The force of the act has been spent. Who is to say that the legislature will again give power to raise and expend other millions or thousands ? Until the legislature does give power, no more can be raised and expended; and until then, that structure can never be of any more cost to the two cities. Whatever be its stage of progress, useful or useless, the authorized limit of the cost of it has been reached. Such is the logical result in 14 Allen, supra. It was held there that the words of the act, in that case, authorized the issue of scrip to an amount not exceeding in the whole “a sum named,” was a limit to that amount of the permament municipal debt which could be made; but that it was not a limit on the whole cost of the work, for there was open to the city the means of temporary loans or local taxation. Had the words been there, as they are here, “ the whole amount to be paid shall not exceed $8,000,,000,” would not a parity of reason have made that sum a limit to which expenditure could run ? And would not that be a limit upon actual cost, whatever might be the cost to which plans resting in contemplation would run, if completed? (Hasbrouck v. Milwaukee, 13 Wis. 37). Let me make an illustration. If I should say to one, I make you my agent, go and buy for me a steamship, and you may give my note for the price, I put no limit on the price that he may give or on the amount of the note he may make. If I say to him, buy for me a steamship, yet the whole sum to be given for her must not exceed $800,000, and to that amount you may issue my notes ; there is clearly a bound beyond which he may not go. Nor is- the case different, when I give the authority to buy to one agent with power to call on another agent for the means of payment. Nor is it an impossibility, either in , law or in fact, to put a limit on the expense, where the cost of the project is not to be exactly ascertained at the start. Though it may be problematical, and contingent, it is my right, and it is in my power, by the nse of words, to hold my agent within a limit. Thus, I may say to an agent, build me a steamship of such tonnage and power, but it must not cost more than a sum named. He is bound to keep in mind the limit I have fixed. If he reaches it, and the work is not done, he may not go on. What is his position as to liability to me for having improvidently begun, when he could not reasonably expect to finish, it is not needful here to say. What is his liability to others, with whom he has made contracts beyond the means promised to him, has been decided by the court in Paulding v. Cooper, not yet reported. If a natural person may put such a limit upon delegated power, there is no reason why any other giver of power may not do so. It is then a question of the meaning of the phrases used in giving it. When we turn to section 3 of the act of May 14,1875, we see that the pith of it is to confer authority, upon the two cities to build the bridge, and to issue their bonds to raise the means to meet the expense, but with a limit upon that expense which need not be more succinctly or more plainly expressed than in the language of the act, “provided, however, that the whole amount to be paid by both shall not exceed eight million of dollars.” The amount which they have power to pay must be the amount to which they may go in expenditure, and the amount to which they may go in expenditure is the amount which the work may cost. Though the plans may have been made so large by design, or ignorance, or mistake, as to be too great for the sum authorized ; that does not warrant going on,'when the limit has been reached to which expenditure may run. The work must stop, and it is for the source of power to consider what shall then be done. In my judgment, when the legislature had passed the act of 1875, it, for the time being, had done with the matter. The bridge was not a State Work, like the Erie canal or the State capitol, which the State was doing, and for which the legislature was making and to make appropriations from time to time.' It Was a local municipal work, as to which the legislature had no more at that time to say than to give permission to do it, and with power to affix conditions to the permission. So that the considerations which are urged, drawn from the nature of a public work involving much expenditure and much time to do, and needing only appropriations, from year to year, of comparatively limited amount, are not in place here. Those considerations are appropriate where the legislature is the one agent of the public, whose function it is to direct the work and raise the means, and there are other agents of the public, whose function it is to devise the plan, and to do the work and lay out the money. But here are two corporate entities, with no power to enter upon a project conceived to be of municipal utility, who came as petitioners to the legislature, which may give or withhold, and may a.ffiv conditions and limits. The legislature gives to them' power to build, power to pay out for the building, and power to raise the money in a certain way. It is a single grant of power to single entities. The actors who áre to use each branch of the power are the same. In using each branch of it, they can go no further than the bounds of the power given, and that bound is upon the whole power and upon each- branch of it. It is plain, I think, that the two cities are in a different position from that above indicated of separate agents of the general public. Nor, in my judgment, is the case like that in 6 McLean, supra. There a county was authorized to do a work. As well as can be gathered from the opinion in the case, and the headnote (for there is no statement of facts), an issue of bonds to the amount of $200,000 was authorized and no other means of payment were provided for. But there were no words of restriction, as there are here. It was held that the specification of the amount to which bonds were to be issued was not an implied limitation upon the cost of the work. One argument raised is that in all public works, either by Federal or State governments, it is not usual to appropriate, when the work will require several years for its completion, more than a small part of the necessary expenditure (at once, I suppose, is to be understood), as any other course, especially when the money must be loaned, would be wasteful. It will be seen, at once, that this reasoning does not apply to this case. For here it is expressly said, that the whole amount to be paid shall not exceed $8,000,000. ' Besides, the wasteful expenditure “ likely to arise from a single appropriation in gross,” is guarded against by a limit upon the- amount which shall be paid in each year, to wit: $1,000,000 by one city and $2,000,000 by the other; and by the provision that the interest on all bonds issued shall be counted as part of .the gross sum of $8,000,000. Then the words here, •“ the whole amount to be paid shall not. exceed,” is a limit on what may be paid, put upon the two cities, and no other person or body is to build and to pay, is it not a limit upon the right to incur a liability to pay* which is the same as a limit upon what the'work may cost % That is to say, it is a prohibition, upon doing •more work than that sum will pay for; which is a ■limit upon actual cost, for there can be no further cost, without the intervention of the legislature giving further power to raise and pay money. I think, too, that the history of this enterprise, as shown in legislation, indicates forcibly that it was the purpose of the legislature to set up a limit of cost. It was started as a private enterprise, doubtless with the notion, at first, of private gain therefrom. The amount of the capital stock is,, it is true, not the limit to which a corporation may go, in the purchase or expenditure for property. Yet, when persons ask of the legislature a charter for a purpose, the sum at which they name the capital is an indication to the law-makers of what is then thought to be enough, to set the corporation going and making profits. The corporation started with a named capital of $5,000,000, but with the not universal power to increase. The project looked so feasible and so fruitful, at that sum, that though the privilege was given to the two cities of taking the work from the private corporators, it was upon conditions, that the property should, be paid for by the two cities, at cost, and at premium of thirty-three and one-third per cent, in addition, and that the bridge be made free. The cities, were permitted to become stockholders, but with no provision for a voice in the management. That provision was made two years after, when, as we may infer, the work began to look too large for private means ; and then the requirement was made that the bridge be built by June 1,1874. It was not then done ; but on the fifth of that month, an act was passed to amend the original act, and “ to provide for the speedy construction of the bridge and from it it is apparent that need was felt of public aid. For the purpose of completing it the two cities were authorized to subscribe $3,000,000, in proportions named. The use of this phrase “ for the purpose of completing it,” connected with the amount named, is significant. Here was an indication of the legislative conception, at that time, of what money was needed to complete the bridge, and of the snm which the legislature would permit the two cities to pay therefor. And as further indication of a purpose to limit the amount, was the singular provision that the interest of the bonds issued under the act should form part of the cost, and should be deducted from the amount of payment. I can but regard this peculiar provision as significant of a purpose to restrict the municipal expenditure to the sum named and expressly warranted by the legislature. In May 14, 1875, came the act immediately before us, when the purpose of building the bridge by private enterprise seems to have been given up as too large for private hands, and the legislature was asked to permit the two cities to become the only builders and owners of it. I think that we can see, from its previous guarded action, as shown in the statutes passed, that the legislature was not willing to put the cities upon a work of unrestricted cost, and that the proviso already quoted is charged with more meaning and intensity, from the previous legislative action. I think, too, that these repeated applications to the legislature, for new and varied enactments, made it plain to the law-maker that the cost of the work would be liable to run beyond first expectation, and that, for the safety of the cities, there should be set up abound, beyond which expenditure and .liability should not go, without renewed legislative permission. There is the provision above alluded to, and related in this act, that the interest upon all bonds issued by the two cities should be charged as part of the construction, and be withheld from the annual payments. If the purpose was to have the two cities build, whatever it might cost to carry out the plan, or if the purpose was to have the bridge built, whatever might be the cost, where the good or saving of this provision % Of what avail to withhold an amount equal to the interest, and to make it part of the cost, unless it was to keep the cost from going beyond the limit of-$8,000,000, the amount of the principal sum 'for which bonds could be issued % If the cost could go beyond that sum, it would have to be made up in principal of bonds, or by taxation, or other way of raising money. This provision is certainly significant of the purpose to fix a limit to the cost of ,the work. There may have been the purpose also to compel the diligent prosecution of the work, and the speedy raising of the money upon the bonds called for and issued, and the prompt disbursement of it in the work. But a chief design would seem to be that the cities should not lay out upon the bridge more than the sum named as the limit of the principal of the bonds they might issue ; and as, by the provisions of this act, none but the two cities could lay out money upon it, it was effectual that the cost of the bridge could not go beyond that sum. It is said that the legislature provided by the act that the bridge should be a public work; and should be constructed by the two cities, for the accommodation, convenience and safe travel of the inhabitants of the district. It is argued thence, that the chief idea in the legislative mind was the finishing of the work in a manner safe- and sufficient, and that the cost of doing it was a minor consideration. . I do not think that we can justly say that. The constitution enjoins upon the legislature that it shall restrict in cities the power of taxation, contracting debts and loaning their credit. (Const, art. 8, § 9). Can we properly attribute to. legislative action, iri a particular case, that in framing a statute to meet it, it lost sight of, or seeing, was careless of its general constitutional duty ? For my part, I had rather come to the interpretation of a legislative act with a sense of the existence of this constitutional injunction, and with a feeling that the law-maker acted in the presence of it. Beside, I can not agree that, in looking at a law providing for work that will cost money, to be raised finally by taxation, it is the proper judicial mood, to assume or to concede that the legislature was not prudent and forecasting, and had no thought of the burden it was about to lay upon the people. It would not be wise or honest for it so to do. It would be reckless and improvident. Hence, when words of restriction are found in a statute authorizing a work, costly at the best, they are not to be narrowed in their reach, by the assumption that the legislature looked only at the utility of the work when done, but to have a liberal and broad operation, and to be applied to all parts of the act which may fairly fall within their force, upon the other assumption that the legislature will not carelessly delegate the power to burden the people with debt, but will, as prudent agents, count the cost. So when I read the act, by which it is declared that the bridge is to be constructed in the manner above indicated, and that the expense thereof shall be defrayed by the two cities, and I find it further declared, that for such purpose they may be called on for yearly payments, but that the whole amount shall not exceed $8,000,000, I am unable to repel the conviction that the legislature meant that the two cities should carry out “ such purpose ” by the expenditure of not more than that sum: and that the amount named is a limit upon “such purpose,” as well as upon the liability of the two cities to pay for “such purpose.” I think that the language of the act, in its restrictive words, applies to all that goes before them in the section in which they occur, and that “ expense of construction, &c.,” is as well limited by them as the amount to be paid by the municipalities, which, alone can lawfully construct it. The purpose is to construct the bridge ; for that purpose the two cities may pay a fixed sum, and no more. As no one else may pay, how is more to be paid ; and if no more can be paid, how can the work cost more « It can not cost more, until the legislature is again applied to and again gives power to raise and expend money. It is said, that the legislature contemplated a finished bridge. So, indeed, it did. It is argued therefrom, that it meant, not to fix a limit to the cost of finishing it. It did not contemplate an unfinished bridge. It looked for a finished bridge, at the expenditure of the sum named, otherwise the proviso of limitation was useless. When, then, it gave the power to the two cities to finish it, and limited the exercise of that power with an expenditure of $8,000,000, did it not contemplate that the sum would finish and must finish it « — especially when the sum is named, not in the manner of making an annual or recurring appropriation, but as a gross sum to be spread over years of progress in the work, to be called for as needed, and so that waste may not take place by accumulation of idle funds, and from interest on bonds. The legislature never contemplated an unfinished bridge ; and yet this will be the result with the law as it now stands. As it contemplated a finished bridge, and forbid further payment to that end than the sum named, it contemplated a bridge finished with that sum. We cannot speculate upon the future action of the legislature. It may or may not provide for the finishing the bridge, after the $8,000,000 are expended. This court is to construe the legislative action only as it is. That action will produce only an unfinished structure, which was clearly never intended. It is for the legislature, and not the courts, to determine whether a more expensive structure shall be made. From the language of the act, then, and from the intent of the legislature, as gathered from the successive acts upon this subject, I am of the opinion that it was the' legislative purpose to fix a limit to the cost of the bridge. And now to practically apply the result of this discussion. It is conceded that the contemplated cost of the bridge will exceed, by a considerable sum, the $8,000,000. So that, if the defendant pay the $1,000,000 called for, his principal, the city of New York, will not have a completed bridge. And if the views above expressed are correct, it never will have, until the legislature shall be again applied to, and shall give permission to pay more. Is it not, then, the duty of all concerned to stop until that permission be obtained, if it may be % It is contingent whether it will be. While contingent, it seems the part of financial wisdom to put no more money into a work which may be of so much more useless cost. Is it not, then, within the bounds of a just and proper exercise of discretion for the defendant to refuse to issue further bonds of his municipal principal ? At any rate, is it not proper for a court to decline to issue its discretionary writ of mandamus to compel him to do that which is, to say the least, of doubtful expediency % As these considerations have brought me to the conclusion that the mandamus should not have issued, I am for a reversal of the order of the general term and for an affirmance of that of the special term, without passing upon the other serious questions presented by the appellant. Church, Ch. J., and Miller., J., concurred. Order affirmed with costs. Cal. 643; People v. San Francisco, 27 Id. 655; Sweet v. Buffalo, &c. R. R. Co., 13 Hun, 643; Bristol v. Chicago, 31 Ill. 605; Johnson v. County of Stark, 34 Id. 89; Perkins v. Lewis, Id. 308; Township of Burlington v. Beasley, 94 U. S. (4 Otto) 310; People v. Breslin, 80 Ill. 423; Burrett v. Brooks, 21 Iowa, 144; Bell v. Fonch, 21 Id. 119; Godden v. Crump, 8 Leigh (Va.) 155; Hauson, appellant, 51 Me. 193; People v. Salem, 20 Mich. 452; Chambers v. St. Louis, 29 Mo. 543; Skinner v. Hutton, 33 Id. 244; Taylor v. Newberne, 2 Jones N. C. Eq. 141; Riley v. City of Rochester, 9 N. Y. (5 Seld.) 64; rev’g 13 Barb. 321; Philadelphia v. Commonwealth, 52 Pa. St. 451; Wheeler v. Philadelphia, 77 Id. 338; Van Hostrup v. Madison City, 1 Wall. 391; Rogers v. Burlington, 3 Id. 654; Mitchell v. Burlington, 4 Id. 270; Larned v. Burlington, Id. 275; State v. Madison, 7 Wis. 688; Foster v. Kenosha, 12 Id. 616; Hasbrouck v. City of Milwaukee, 13 Id. 37, 44; Miller v. Milwaukee, 14 Id. 642; State v. Haben, 22 Id. 660; Attor.-Gen. v. Eau Claire, 37 Id. 400; State v. Supervisors, 41 Id. 28; Hitchcock v. Galveston, 2 Woods, 373. For other cases of excess of authority, or of the limit of cost in the execution of public works, see Salem Water Co. v. City of Salem, 5 Oreg. 29; Baldwin v. City of Oswego, 1 Abb. Ct. App. 62; 9 Opinions Att.-Gen. 451; Church v. Brown, 29 Barb. 335; Nogues v. Douglas, 7 Cal. 65; Kingsland v. Mayor, &c. of N. Y., 5 Daly, 448; Peoples’ Ferry Co. v. Balch, 8 Gray (Mass.) 303; District Attorney v. County Commissioners, 14 Id. 138; People v. Northrup, 15 How. Pr. 152; Latham v. Richards, 12 Hun, 360; Jackson County v. Hall, 53 Ill. 440; Condit v. Board of Commissioners, 25 Ind. 422; Burlington, &c. R. R. Co. v. Boestler, 14 Iowa, 555; Reichard v. Warren County, 31 Id. 381; McAuley v. Billenger, 20 Johns. 89; Pipkin v. Robinson, 3 Jones (N. C.) 152; Portland, &c. R. R. Co. v. Hartford, 58 Me. 23; Montague Paper Co. v. Burrows, 121 Mass. 88; People ex rel. Goodsell v. Post, 30 Mich. 353; Monet v. Jones, 18 Miss. (10 Smed. & M.) 237; County of St. Louis v. Cleland, 4 Mo. 84; Douglas v. Virginia City, 5 Nev. 147; Virginia, &c. R. R. Co. v. Lyon County, 6 Id. 68; People v. Fields, 58 N. Y. 491; Hogan v. Mayor, &c. of N. Y., 68 Id. 17; Kensington v. Keith, 2 Pa. St. 218; Hague v. Philadelphia, 48 Id. 537; Penn. Township v. Perry County, 78 Id. 457; Cass v. Pittsburg, &c. R. R. Co., 80 Id. 31; United States v. County of Clark, 96 U. S. (6 Otto) 211; Hitchcock v. Galveston, 1 Id. 341; Torrey v. Milbury, 21 Pick. 64. In this case it was held in the supreme court (10 Hun, 20), that plaintiffs were charged with the duty of keeping the work within the limit authorized by the act, and whenever a contract was made they were charged with the duty of keeping the amount necessary to perform it. It was the duty of the commissioners to keep inviolate the appropriation, hence they were liable personally because they either contracted in excess of their power, or contracted with funds, and misappropriated the funds.