
    The People, etc., ex rel. The Queens County Water Co. v. The Board of Supervisors of the County of Queens.
    
      (Supreme Court, Special Term, Queens County,
    
    
      Filed September, 1887.)
    
    1. Supervisors—Fire districts—Powers of board of—Laws 1885,
    chap. 439.
    Boards of supervisors are by Laws 1885, chap. 439, empowered to establish fire districts in unincorporated villages, and to authorize such districts to procure a supply of water, and to purchase apparatus for the extinguishment of fires therein upon petition duly made and presented and to provide for the assessment levy and collection of the cost thereof upon the districts. Held, that under the powers thus given, a board of supervisors on establishing such a district might authorize a contract for a water supply.
    2. Same—Cannot rescind contract without consent of other party.
    
      Held, that such a contract having been entered into, the board of supervisors who authorized it could not rescind it without the consent of the other party.
    
      3 Same—Mandamus—When granted.
    
      Meld, that provision having been made for the assessment, levy and collection of the expenses under such contract, the party furnishing the water supply according to its terms, was entitled to a writ of mandamus to the hoard of supervisors directing such assesment, levy and collection.
    Motion for a peremptory mandamus commanding the assessment levy and collection upon the fire district of the unincorporated village of Far Rockaway in the town of Hempstead, Queen’s county, of the sum of $2,000 due the relator for fire service rendered therein during the year 1880-7.
    On July 28th, 1886, the following resolution with its preamble was duly adopted by the board of supervisors at a regular meeting.
    “Whereas, a majority of all the tax-payers and who represent-more than one-half of the assessed value of the taxable property of and in the unincorporated village of Far Ro.ckaway, in the town of Hempstead, in the county of Queens, and state of Hew York, as shown by the assessment roll of the said town of Hempstead, for the year 1885 and the same having been certified to by the board of assessors of said town, have petitioned this board as follows, viz:
    “ To the Honorable the Board of Supervisors of the county of Queens:
    
    Whereas, The unincorporated village of Far Rockaway, in the town of Hempstead, Queens county, Hew York, is at present entirely unprotected against the danger of fire; and
    “ Whereas, The Queens'County Water Company, a corporation duly organized and existing under the Laws of the State of Hew York, has recently constructed water works in said village, with a complete system of fire hydrants, and are now prepared and willing to furnish an ample supply of water for the extinguishment of fires therein.
    “How, therefore, etc., The subscribers, severally being taxable inhabitants of the proposed fire district in the unincorporated village of Far Rockaway, aforesaid, as hereinafter designated, whose names appear on the last preceding assessment-roll of the town of "Hempstead, aforesaid, as owning or representing taxable property of the proposed district, do respectfully petition your honorable body, and pray that you will exercise the power and authority conferred upon you by sub-division 34 of section 1 of chapter 482 of the Laws of 1875, added thereto by section 1 of chapter 512 of the Laws of 1880, as amended by section 1 of chapter 439 of the Laws of 1885, and establish a fire district in the village of Far Rockaway aforesaid, to include all taxable property along and being within five hundred feet of any part of the pipe lines of the Queens County Water Company, as shown in red lines upon the map hereto attached and made a part of this petition; that you will make, authorize or cause to be made a five year contract, on behalf of such fire district, with the said Queens County Water Company for a supply of water through their fire hydrants for the extinguishment of fires within the district aforesaid, at the annual rental or sum for the use of such hydrants for fire purposes of two thousand dollars, to be paid to said company at such time or times as may be agreed upon; and that you will provide for the annual assessment, levy and collection thereof upon such district in the manner prescribed by the statute hereinbefore referred to.
    “And thus ever will your petitioner pray, etc.
    “ [Subscribed and verified as required by statute.]
    “ The board of supervisors of Queens county do hereby, pursuant to chapter 483 of the Laws of 1875, added thereto by section 1 of chapter 513 of the Laws of 1880, as amended by section 1 of chapter 439 of the Laws of 1885, by the vote of a majority of all the supervisors elected to said board, ascertained by taking the ayes and nays, resolve as follows:
    “Resolution No. 6.
    “Section 1. That a fire district be and the same is hereby created and established in the unincorporated village of Far Eockaway, in the town of Hempstead, Queens county, said fire district to include all the territory and taxable property, etc., etc. [Here follows the description of the district.]
    “ § 3. That said fire district is hereby authorized to procure a supply of water for the extinguishment of fires therein in the manner prayed for in said petition, through the fire hydrants of the Queens County Water Company, and that this board authorize the supervisor of the town of Hemp-stead, acting for and on behalf of the said fire district to make and execute a contract for the term of five years on behalf of such fire district, with the said Queens County Water Company for a supply of water through their fire hydrants for the extinguishment of fires within the district aforesaid, at the annual rental or sum for the use of such hydrants for fire purposes, .of two thousand dollars, to be paid to said company, and that the supervisor of the town of Hempstead is hereby authorized and directed to prepare and execute for and in behalf of the fire district aforesaid, a contract as aforesaid, with the Queens County Water Co.
    “ § 3. That the annual sum of two thousand dollars for the term of five years be assessed, levied and collected upon the fire district aforesaid, in the same manner, at the same time and by the same officers as the taxes of the town in which such unincorporated village is located are assessed, levied and collected, and the same or so much thereof as shall have been collected be paid to the said company or assigns, on or before the fifteenth day of February in each year (the first payment to be made February 15, 1887), by the supervisor of the town of Hempstead then in office, and all money so assessed, levied and collected for the said purpose shall be paid to the supervisor of said town by the receiver of taxes therein.
    “§ 4. That if any amount of said tax shall remain unpaid in any one year the same shall - be assessed, levied and collected upon the property delinquent in such district the next fiscal year, and which said amount or sum when collected shall be paid over to the said company or its assigns in the manner hereinbefore provided.
    “ § 5. This act shall take effect immediately, and the clerk of this board is hereby required to file and publish this resolution as required by law, and the Queens County Water Company shall file in the office of the treasurer of Queens county and in the office of the town clerk of the town of Hempstead, a duplicate of the map referred to and accompanying and forming a part of the said petition.”
    Immediately upon the passage of the foregoing resolution the relator accepted of its terms and conditions and for the compensation provided, forthwith began the performance of its service as required thereby.
    On July 31, 1880, a contract was entered into in duplicate between Martin V. Wood, supervisor of the town of Hemp-stead, authorized by said resolution to act for and on behalf of the fire district duly established in the unincorporated village of Far Rockaway of the first part, and the relator of the second part, which was merely a reiteration of the terms and conditions of the foregoing resolution and in itself provided only for the minute details of the service.
    The relator fully performed its service as contracted for, and in every respect lived up to and is now continuing to live up to every requirement on its part both of the resolution and the agreement.
    On November 18, 1886, the board of supervisors by resolution reconsidered their resolution of July 28, 1886, and on the opinion of counsel stating that chap. 439 of the laws of 1885, did not authorize the board, to make or authorize to be made a contract with the water company, and that their powers were exhausted when the fire district was created, and said district authorized to procure a supply of water for fire purposes, declared, that part of the resolution of July 28, 1886, relating to the said contract to be null and void, and to have been made without proper legal jurisdiction on the part of the board, and the petition for the establishment of the fire district with the resolution as reconsidered was laid upon the table to await the further action of the inhabitants of the unincorporated village of Far Rockaway.
    In due season thereafter the relator demanded that the board of supervisors should perform their duty under their resolution of July 28, 1886, in respect to the annual assessment levy and collection of the sum of $2,000 provided for the compensation of the relator. This was not done, and after fully performing its service for a year the relator instituted these proceedings in mandamus to compel the insertion in the next annual tax levy of the sum earned by it.
    
      Frank Keck and R. V. W. DuBois, for the relator; John Fleming, for the board of supervisors.
   Brown, J.

The proceedings of the board of supervisors had in November, 1886, can have no effect upon the validity of the contract with the water company; if that contract was valid when executed, it could not be rescinded by the board of supervisors without the consent of the other party.

I am unable to agree with the view that the supervisors upon the presentation of the petition of the tax-payers had no power beyond the creation of the fire district, and that the question of contracting for a supply of water was after the district was created, to be submitted to the tax-payers.

The statute empowers the board of supervisors to establish the district and to authorize the procurement of a supply of water and to purchase apparatus to extinguish fires. All this is to be done upon the petition signed by more than one-half of the tax-payers of the district.

The board therefore, had, upon the presentation of the petition, the power to establish the district and also at the same time to authorize the contract for a supply of water upon the terms set forth in the petition. The petition contains the only expression of the will of the tax-payers called for by the statute.

But having authorized the contract, how was it to be executed? The clear will and intent of the statute is not to be defeated because in the district there is no proper officer authorized to sign for or represent the tax-payers. Here is. a small section of a town having no independent local government authorized to be set apart from the rest of the town for a particular purpose. They are substantially directed to act through the board of supervisors, and it is clearly to be implied that the supervisors were to sign the necessary contract as the representatives of the district and this power was substantially complied with by designating one of their members to sign the contract.

I think the objections made to the proceedings are without, merit. In this proceeding it must be assumed that the petition was signed by the requisite number of tax-payers. If it was desired to contest that point the remedy is by certiorari to review the proceedings of the board of supervisors.

The motion for a mandamus must be granted.  