
    William Ziegler, Resp’t, v. Alfred C. Chapin et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed May 5, 1891.)
    
    Municipal corporations—Eminent domain—Laws 1886, chap. 835.
    By chap, 335, Laws 1886, the city of Brooklyn was authorized to acquire the rights of a water company in New Lots by purchase, “ when ” a price was agreed upon, and if an agreement could not be made, then such rights could be acquired by the right of eminent domain within two years, to be held subject to certain mortgages.- No proceedings were taken within the said two years, but thereafter an agreement for the purchase of such rights was entered into. Plaintiff brought action against the municipal authorities to restrain them from purchasing such property, alleging that it was beyond their authority and wholly illegal and void. Held, that the authority to purchase expired with the limitation of two years, during which the city had the right to take title by eminent domain.
    Appeal from a judgment of the supreme court, general term, second department, affirming order restraining defendants, as officers of the city of Brooklyn, from purchasing the property and franchises of the Long Island Water Supply Company for the city of Brooklyn for $1,250,000.
    
      Geo. F. Danforth, Almet F. Jenks, Wm. C. De Witt and Thos. E. Pearsall, for app’lts; Wm. J. Gaynor, for resp’t.
    
      
       Affirming 37 N. Y. State Rep., 185.
    
   Finch, J.

It is conceded that we cannot review the order of the special term which restrains the defendant officials from purchasing the property and franchises of the Long Island Water Supply Company if the complaint states a good cause of action. The suit is brought by a taxpayer of the city of Brooklyn to prevent such purchase, as being illegal and unauthorized and amounting to a waste of the property and funds of the city, and it was a proper and reasonable exercise of discretion on the part of the court to restrain the purchase pending the litigation in aid of the plaintiffs’ remedy, unless we are able to see on an examination of the complaint that he is clearly and certainly not entitled to the ultimate relief which he seeks. The appeal comes to us dependent upon that proposition, and with a frank acknowledgment that the appellants can only succeed by satisfying us that the plaintiff has suffered no actionable wrong and is entitled to no equitable relief.

In so far as the complaint is founded upon allegations of waste, the appellants appear to be right in their assertion that no cause of action is pleaded; for, while the complaint alleges the meditated payment of an extravagant price, and states facts which are claimed to indicate a want of prudence and good judgment on the part of the mayor and his associates, yet those facts and the inferences claimed are not beyond the possibility of explanation and criticism, and the complaint contains no averment of fraud or collusion or bad faith on the part of the purchasing officials. We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved. Talcot v. Buffalo, 125 N. Y., 280; 34 N. Y. State Rep., 871.

It is said, however, on behalf of the plaintiff that the complaint does contain allegations of fraud on the part of the Water Supply Company; averments that it induced the defendant officials to contract for the purchase by false representations, known to be such, and made with intent to deceive, as to the revenues of the company and the earnings and value of the stock. But the action authorized by § 1925 of the Code is one which the taxpayer may bring against the public officer because of some fraud or bad faith on his part, or to restrain some illegal action. It was not intended as a mode of putting an incapable or confiding official under the protecting guardianship of the court and of making him a ward in chancery to be shielded from the effects of his own folly, nor to enable a taxpayer to try a question of fraud between the officer and those who are dealing with him. If the officer is honest and faithful no suit against him is needed. The taxpayer may explain to him the facts and discover to him the fraud and the courts are open for his protection and the means of redress are at hand. It is only when in the face of explanation and knowledge he still refuses to act and persists in carrying out the wasteful contract that an action against him is needed ; and then it rests upon his misconduct, upon his collusion and fraud, which must be alleged and proved. The'legislature could not have intended that the courts should supply intelligence and prudence to incapable officials at the demand of a taxpayer, but manifestly did intend to give the latter protection against the dishonesty or fraud of the municipal agents.

The action, therefore, can only be maintained, if at all, upon the further ground that the contemplated purchase by the mayor and his associates is beyond their authority and wholly illegal and void. The complaint contains that averment. There is no disagreement as to the source of the authority to purchase if any has been granted, and it is claimed to exist in the terms of the annexation act which merged the town of New Lots in the city of Brooklyn, Laws of 1886, chap. 335. Section 5 of that act reads thus: “ The mayor, comptroller and auditor of the city of Brooklyn are hereby authorized for and in the name of the city of Brooklyn to purchase the reservoir, well, machinery, pipes, franchises and all other property of said company when and at such price as may be agreed upon by said officers and by the said company by its board of directors, who are hereby authorized to sell and convey the same to said city, and in case said parties shall be unable to agree upon a price for the purchase and sale of the said property then in that case the power to acquire said property and franchises by the right of eminent domain is hereby expressly delegated to said city of Brooklyn, and the said officers in the name of and for said city within two years hereafter may proceed to acquire and may acquire all such property by proceedings such as are required for the acquiring of additional land for railway purposes by corporations formed under the provisions of chapter one hundred and forty of the laws of eighteen hundred and fifty. And all such property, when thus purchased and acquired, shall thereupon become and be a part of the water supply property of the said city, but it shall be held subject to two mortgages now on said property, each made to secure the sum of two hundred and fifty thousand dollars and interest.”

I have quoted the section at length in order that we may better judge between the two opposing constructions which have been presented for our consideration. As often happens, one clings to the precise letter of the enactment, while the other seeks to evolve its real spirit and meaning; the study of one ends at a single uncompromising word, while that of the other pervades the whole section and calls to its aid the light furnished by the surrounding circumstances. The defendants claim that it confers a general and unlimited authority to purchase the property of the Water Supply Company “when” an agreement with that company can be made and at any time in the future; and the plaintiff insists that the act ■contemplated an effort to agree with reasonable promptness, and one which, if unsuccessful, could be followed by the permitted proceedings under the law of eminent domain, and that the authority did not and could not outrun the two years allowed for those proceedings. The latter is the interpretation of the general term. Some reference to the situation of the respective parties at the date of the enactment will aid in appreciating its provisions and in ascertaining its meaning.

The city had its own system of water works, with ample power to extend them into the annexed district, and the right of eminent •domain for the purpose of taking land or extinguishing water rights which it appears to have obtained in 1857, when it was vested with the right to absorb the Nassau Water Company. That •company was incorporated in 1855 (chap. 333) for the purpose of supplying the “consolidated city of Brooklyn ” with pure water. It had a capital stock of $3,000,000, for nearly one-half of which the city was authorized to subscribe, and was vested with the right of eminent domain.

The charter further authorized the city at any time within twenty years to take and hold the entire capital'stock, paying therefor the amount actually paid in, with twenty per cent premium.

In 1857 (Chap. 22) the mode of acquisition was changed. The stockholders of the Nassau Company, upon filing their consents to take for their stock par and seven per cent from the date of issue, were authorized to sell and the city to buy; the directors of the company were thereupon made water commissioners of the city, and the right of eminent domain possessed by the corporation was transferred to the city. In 1859 (chap. 396) that right was explicitly given, and the extension of mains and construction •of new work authorized, and the revision of 1888 repeats the provisions. Under one or more of these acts, the city stood at the date of the annexation of New Lots empowered to extend its mains through the annexed district, and armed with authority to •condemn the land or water rights rendered necessary by the extension. If, at that time, it had already absorbed the'Nassau Water Company, it did so under acts which fixed the price to be paid, and left no opportunity for extravagance or waste. But at the •date of the annexation act the town of New Lots was occupied by the Long Island Water Supply Company, which had been incorporated under the general act of 1873 (chap. 737), at a later period amended by the act of 1881 (chap. 213). Under these laws permission has been granted to the company to supply the town with water, and it had entered upon the work and was engaged in its performance. The proposal to annex the town of New Lots to Brooklyn had in it elements of danger to the Water Supply Co. If the city should parallel the existing mains and furnish its own supply, the company might easily be ruined, and it was natural that the interest thus threatened should seek some measure of protection in the annexation act itself. It is not surprising, therefore, to find in that act provisions framed to meet the emergency. The plan adopted was to authorize a purchase by the city of the plant of the company and shut off the city’s competition if it refused to buy. The earlier projects of similar character were, as we have seen, conditioned upon a fixed price, but in this instance a result deemed fair to both parties was effected in a different manner. The city was given an option to purchase at a price agreed upon, or upon failure to agree, at a price to be fixed by commissioners of appraisal. But the city might decline to buy or tof condemn, and to meet that emergency § 4 of the act provided that the city should not extend its mains into the annexed district during the life of the company, unless the option to purchase should be exercised.

The plan formulated by the annexation act thus accomplished two things: it protected the city if it chose to purchase, by giving it the power to condemn the company’s franchise as well as its tangible property, which, under the previous acts, it could not have done, Matter of Rochester Water Com’rs, 66 N. Y., 418; and if the city chose not to buy, the act protected the company by excluding, during its charter life, the municipal competition. The law put neither party at the mercy of the other, but equally guarded the rights of both. It said to the city, in substance, buy out this company with the right to condemn its franchise if it asks an unfair price, or else let it alone for its corporate life, freed from your ruinous rivalry.

I think that is the fair and just interpretation of the statute. It framed a special provision to meet a special emergency. It was for the city an enabling act of which it could avail itself only according to the conditions imposed and in the manner provided. A construction which leaves the authority to purchase operative upon the expiration of the two years, and when the power to condemn has ceased to exist, and when by the city’s neglect to act the value of the company’s franchise has been gravely increased, and so puts the negotiation wholly at the mercy of the vendors, is repugnant to the purpose of fairness and equality which the statute evidently labored to secure.

But it is said that its words are imperative and not to be changed or disregarded; |hat there is authority granted to buy “when” a price is agreed on, and so whether within or without the two years. With all due respect to the potency of the adverb, we must not fail to observe that it is “ when ” and not “ whenever.”' It respects a point of time in the progress of a single negotiation and not in the events of an unlimited future. It contemplates a possible agreement as to price in the course of the one authorized negotiation, of the one permitted effort to buy, and “when” that occurs the authority to purchase arises. But if the single negotiation contemplated ends in a disagreement, then the statute declares, “'then in that case” the city may condemn, "but must exercise the right within two years or not at all. The only negotiation authorized is one which may so end in a disagreement as to permit of a condemnation; may so end that “ then in that case ” the right of eminent domain may be employed, and no other or broader authority is given or contemplated. It is not an authority which is general and unlimited, but one which is special and particular; it is not a rule of action under all circumstances, but one to meet and fit a present and specified emergency; it is an option which, if unexercised within the designated limits and prescribed manner, is lost forever and does not survive; it is an authority for one negotiation which must culminate in agreement or disagreement in such time as to permit the ulterior and consequent power to operate; it is a right only to be exercised while the vendor is under the shadow and restraint of the law of eminent domain. Thus understood, the adverb “ when ” has its due allowance of force and meaning and is neither superfluous nor independent of its surroundings.

And so, while we freely acknowledge that the question admits of honest differences of opinion, we deem the construction of the general term the correct and accurate interpretation of the statute.

The order should be affirmed, with costs.

All concur.  