People ex rel. Johnson v. Barrows

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 nonpayment by the park board- of water rents amounting to $30.16. The charter of the city (chapter 478, Laws 1893) created these two departments of the city government, the water board and the park board. Section 53 of that act 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, 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. 124 N. Y. Supp. 268 . 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 of 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 concur; ROBSON, J., on the last ground stated in the opinion only.