In re Andrus (144 A.D. 805, 1911)

Woodward, J. :

The petitioners, who are the appellants here, constitute the membership of the Bronx Valley sewer commission, a body created by chapter 646 of the Laws of' 1905, and amended by chapter 747 of the Laws of 1907 and chapter 96 of the Laws of 1909, without changing the general character of the act. Under the provisions of the act in question, the sewer commission was created and vested with the power to take and hold all of the property, real, personal and mixed, which should. be necessary for the purpose of constructing a sanitary sewer for the accommodation of several municipalities in the Bronx valley, and it was provided by section 1 of the original act that “ the said commissioners shah so carry out the powers and provisions of this act that the total amount of all expenditures made or liabilities incurred by them for the construction, operation and maintenance of said sewer and outlet sewer and for obtaining lands and easements therefor, shall not exceed two million dollars, and they are prohibited from contracting for any greater, expenditure.” This provision was subsequently amended so that it now provides that the expenditure for the construction, operation and maintenance of said sewer shall not exceed $2,250,000. Section 8 of the act likewise ^provided that the commissioners should advertise for bids, but that “no contracts shall be awarded for one section of this sewer, until estimates have been received- for all sections, so that in no event the limit fixed by this act as to the cost of the total work shall be exceeded,”'and throughout the act there is an evident disposition to carefully safeguard the rights of the public.

Section 14 of the act provided that “ To pay the cost of construction of the sanitary trunk sewer and outlet sewer herein-provided for, and to pay all the expenses and liabilities lawfully incurred by the commissioners under this act^ the county of Westchester is hereby authorized to issue,-in the name and under the seal of the said county in behalf of the district laid out on the plan and map approved under section two of this act as modified by this act, its bonds, in addition to the amounts which-it is now authorized to raise, in such sum or sums as shall equal the entire cost of the sewer hereunder not to exceed two million dollars,” This provision was enlarged by chapter 747 of the Laws of 1907, so that the expediture might aggregate $2,250,000.

The bonds of Westchester county have been issued up to the full amount authorized by the statute, and upon a sale of these bonds a premium of $117,172.50 was realized, and the sum of $34,000 has come into the hands of the treasurer of Westchester ■ county, who is ex-officio treasurer of the Bronx Valley sewer commission, so that there is now on hand the sum of $151,172.50 in excess of the full amount authorized to be expended in the completion of this work. The petitioners recite these facts in an application for a peremptory writ of mandamus to compel the treasurer of Westchester county to pay over these sums upon the orders of the commissioners, and allege that