think this case comes sufficiently within the decision of the court of appeals in the case of the Emigrant Industrial Savings Bank (75 N. Y. 388). It was held in that case, that the power given to the common council by the 91st section of the charter of 1873, is a discretionary power which cannot be delegated; that it is the judgment of the common council which the law requires, and not that of any officer they may designate.
The common council, in this case, by a vote of three-fourths, declared that the regulating and grading be executed under the direction of the commissioner of public works, by days’ work, or in such a manner as he might deem expedient for the best interest of the city and property owners.”
This was not ordering, in the language of the statute, that the work be done otherwise than by contract. It was not any exercise of the judgment of the common council, but leaving *118it entirely to the judgment of the commissioner, how the work should he done. It was not an absolute direction or order, that it should be done by days’ work, but by days’ work, or in such manner as he might deem expedient, and that it was done by days’ work was his determination, and not theirs. The law—says Judge Rapallo, who delivered the opinion of the court of appeals—confers upon the common council the power and duty of deciding in each particular case, whether the provisions requiring the work to be done by contract, and by the lowest bidder, shall be dispensed with, and it is evidently a discretionary power that cannot be delegated. lie further remarks that “ the intention of the statute plainly was, to prohibit the incurrence of expense by the corporation for work or supplies, when the aggregate expense of all work necessary for the completion of any particular job, in all its parts, or of supplies required for any particular purpose, should exceed $1,000, without publicly inviting competition, and awarding the contract to the lowest bidder giving security for its performance. As cases might arise, where, from the nature of the work, or other circumstances, it would be either impracticable or unsuitable to contract for the work or supplies in that manner, a discretion was lodged in the common council, empowering them to direct otherwise in such special cases, but this discretion was carefully guarded by providing that it could be exercised only by the concurrent vote of three-fourths of all the members elected. For the propriety and wisdom of its exercise^ they are,” he says, “ responsible to their constituents, and they cannot either throw off this responsibility, or deprive their constituents of the benefit of their individual judgment, by a delegation of this power to a third party.”
The work, in this instance, involved an expense of $38,913.98. If, in the language of Judge Rapallo, it were impracticable or unsuitable to have had it done by contract, which would be open to competition, as is contemplated by the statute, it was incumbent upon the common council, in the exercise of their discretionary power and judgment, to decide by a vote of three-fourths of their body, in what other manner it should be done, and, in my opinion, they decided *119nothing by the ordinance passed. Nothing was absolutely determined by it. It provided that it might be done by day’s work if the commissioner so determined; thus shifting the responsibility upon him. That he determined that it should be done in a way which they contemplated it might he done, does not help the matter, as it was leaving the final determination to him, which they had no power to do.
The motion of the petitioner is therefore granted.
An appeal to the general term, from the order entered upon the above decision, having been taken, the order was affirmed upon the foregoing opinion, December 1, 1879.*