Opinion
July 12, 1910.
M.B. Jewell, for the appellants.
Allen J. Hastings, for the respondents.
The judgment and order should be affirmed, without costs.
The mandamus directed the water board to turn the water into the pipes extending into the public parks of the city and permit the park commissioners to use, without expense to them such water for public purposes. The water had been turned off by the water board because of the non-payment by the park board of water rents amounting to thirty dollars and sixteen cents. The charter of the city (Laws of 1893, chap. 478, as amd. by Laws of 1904, chap. 327) created these two departments of the city government, the water board and the park board. Section 53 of the charter of 1893 gave the water board power to establish a water system and to procure water for domestic purposes and public use. Section 56 of the act gave the water board power to borrow money and issue bonds therefor, to use in the construction of the water system. Section 61 of the act gave the water board power to establish a scale of water rents to be paid for the use of the water. Section 63 of the act provided that the entire annual receipts for water rents after paying for repairs, extension of system and other necessary expenses, should be applied towards the payment of the interest on the loan and the creation of a sinking fund for the payment of the principal of the loan. Section 64 of the act provided that in case the entire annual receipts for water rents remaining after paying such expenses should in any year be insufficient to pay the interest for that year on the loan, or when any principal becomes due, such water rents with the sum then in the sinking fund should be insufficient to pay such principal with the interest falling due that year, the common council should cause such deficiency to be assessed, levied and collected the same as other expenses of the city. Section 66 provided that the water board should have power to establish by-laws, rules and regulations for the collection of the water rents, and the manner of using water, and enforce the observance thereof by cutting off the use and supply of water. Rule 8a made by the water board provided that if water rents were not paid as therein required, the supply of water should be shut off. Under these provisions of the law and the rule, the water board established a rate for water used by the park, and required the park board to pay the same, and upon their neglect or refusal to pay the same, turned off the water, claiming the park board should pay water rents the same as individual residents of the city using the water. There was no express provision in the charter requiring the city or any of its departments other than the water board to pay water rents the same as individuals. True the provision was general that the water board should establish a rate of water rents for water supplied, but if the design was to require the city and its departments to pay water rents the same as private parties, the act would so have provided, as in the case of the city of Corning now before us for decision. ( Board of Water Comrs. v. City of Corning, 140 App. Div. 11.) There it was expressly provided that the city as well as the individuals should pay water rents to the water board. We see no particular need in requiring it here in the absence of the express provision because it would seem to make no difference whether water rents were paid or the deficiency was paid. In either event the amount would be raised by general taxation upon the city. Even if there was no deficiency in years when only expenses and interest on the loan were to be paid, yet when the principal or any part of it matured, there would be a deficiency, and the sinking fund would then be less in amount if the city had not paid water rents than if it had. The deficiency like the water rents would be payable by general taxation. Whether, therefore, the tax should be for water rents to increase the sinking fund from year to year or to pay deficiency would make no difference to the city or the general taxpayers, nor to the individual water consumers. I conclude, therefore, that the park board could not be required to pay water rents. But if they could, I do not think the remedy could be properly applied by turning off the water. The supply of water to the city for public purposes was a public necessity and should not be interfered with. If the park board or other city officials would not perform a duty imposed upon them by law, to pay over to the water board the water rents, the remedy would very likely be by mandamus on the application of any one having an interest therein to compel the performance of such official duty, as we held in the City of Corning case, above referred to.
No costs need be allowed.
All concurred; ROBSON, J., on last ground stated in opinion.
Judgment and order affirmed, without costs.