
    Water Commissioners of the City of Binghamton, Respondent, v. The City of Binghamton and Others, Appellants.
    Third Department,
    May 3, 1916.
    Municipal corporations — water works, city of Binghamton — charter construed — effect of Second Class Cities Law upon management of water system.
    When the city of Binghamton, having attained a population of 50,000 inhabitants, automatically became a city of the second class, the former act governing the water supply of said city was repealed by implication, although not specifically mentioned in the Second Class Cities Law, and under section 94 of the latter act the control of the water system of said city passed under the supervision, care, management and control of the superintendent of water works appointed by the commissioner of public works.
    The statute authorizing a water supply for the city of Binghamton did not make the water system the private property of a corporation, and hence the system was not owned by the water commissioners of said city.
    Appeal by the defendants, The City of Binghamton and others, from an order of the Supreme Court, made at the Broome Special ■ Term and entered in the office of the clerk of the county of Broome on the 12th day of January, 1916, overruling their demurrer to the complaint.
    
      Maurice E. Page, Corporation Counsel, for the appellants.
    
      Curtiss, Keenan & TutMll [George B. Curtiss of counsel], for the respondent.
   Howard, J.:

On the 1st day of January, 1916, the city of Binghamton, having attained a population of fifty thousand inhabitants, automatically, so to speak, became a city of the second class. (Consol. Laws, chap. 58 [Laws of 1909, chap. 55], § 1; Const, art. 12, § 2.) Binghamton had previously existed as a city since twenty-five days after April 9, 1867, i. e., since May 4, 1867. (Laws of 1867, chap. 291; Laws of 1888, chap. 214; Laws of 1907, chap. 751.) The same Legislature which enacted the first city charter for Binghamton subsequently, and in the same year, enacted a law entitled “An act to supply the city of Binghamton with pure and wholesome water.” (Laws of 1867, chap. 780.) Immediately after the Second Class Cities Law became applicable to Binghamton and on the same day, the treasurer of the city made demands upon the water commissioners that the funds of the water works be turned over to him, and the commissioner of public works at the same time demanded that the affairs, properties, custody and control of the water works be turned over to him. These demands the water commissioners refused to comply with. Alleging that the treasurer and commissioner of public works have threatened to usurp their functions, the water commissioners have brought an action against them and against the city to restrain the said city officials from interfering with the plaintiff in the performance of its duties. The defendants have demurred to the complaint upon the grounds that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the Special Term and the matter comes here on appeal.

The Second Class Cities Law (Consol. Laws, chap. 53; Laws, of 1909, chap. 55), which I shall refer to as the charter, did not specifically repeal chapter 780 of the Laws of 1867 (which I shall speak of as the Water Act) nor specifically repeal any of its amendments. Did it repeal these acts by implication ? That is the question here.

By section 252 of the charter “ All acts or parts of acts and ordinances of the city, in so far as inconsistent with the provisions of this chapter,” are repealed. This forces us to determine whether the Water Act is inconsistent with the charter. Section 94 of the Second Class Cities Law provides: “In case the city owns and operates a system of municipal water works, the commissioner of public works shall appoint, to hold office during his pleasure, a superintendent of water works, who shall have, under the direction of the commissioner, the supervision, care, management and control of the water department and water-works system of the city. ” If it were to be conceded that the city of Binghamton, prior to and on the 1st day of January, 1916, owned and operated its sytem of water works there could be no question here, for, if that were to be conceded, the water works system, by virtue of the provisions of section 94 of the charter above quoted, would pass under the “supervision, care, management and control” of the superintendent of water works.

An examination of the Water Act and its amendments leads quickly to the conclusion that the Binghamton water system was not the private property of a corporation. If, then, the system was not owned by the corporation known as the “ Water Commissioners of the City of Binghamton,” by whom was it owned ? Inevitably we reach the conclusion that it was owned by the city of Binghamton. The Water Act in every particular was inextricably interlaced with the city interests, the city government and the city charter. While the water works was not styled in the new city charter (Laws of 1907, chap. 751) a department of the city, it was in fact a department. It was not enumerated in the list of departments by the new city charter but it was created a department by the original Water Act. Let us note the most salient features of this act. The commissioners were required to meet at the office of the city clerk; the successors of the original commissioners were to be chosen by the electors of the city at a city election, public notice of which was to be given by the common council; the commissioners were required to take and file with the city clerk the constitutional oath of office, and give a bond to the city for the faithful performance of their duties; the treasurer ~ of the water commissioners was also required to give a bond to be approved by the mayor; judgments against the commissioners were to be deemed judgments against the city; the title to all water works property purchased by the commissioners was to be taken in the name of the city; all debts incurred were to be secured by loans upon the credit of the city; deficiencies arising by inability to pay interest upon the water works indebtedness, from the earnings of the water works, was to be paid by the city; an annual tax levy upon the city to replenish the sinking fund for the payment of the principal of the water works debt was provided for; by an amendment (Laws of 1906, chap. 588) the commissioners are required to pay each year to the city treasurer fifteen per cent of the gross annual receipts of the water works to go towards the payment of the general bonded debt of the city.

In view of all these provisions, permeating every feature of the Water Act, can there be any question that the city owned the water works previous to and on January 1, 1916 ? And can there be any question that the city operated its water system ? We think not. For some reason known to the wisdom of the Legislature, and citizens of Binghamton in 1867, the water system was provided for by an act separate from the city charter; nevertheless, the ownership of the system was as clearly in the city and its operation and control were exercised as absolutely by the city, through duly elected officers, as though the Water Act had been a part of the city charter.

Having reached this conclusion, it follows that the Water Act is inconsistent with the Second Class Cities Law; the former providing that the control of the system shall be vested in the water commissioners and the latter providing that the control shall be vested in the superintendent of water works. There are also other inconsistencies. Therefore, the Water Act was repealed by implication by chapter 53 of the Consolidated Laws.

The order overruling the demurrer should be reversed.

All concurred; Lyon, J., not sitting.

Order reversed, with costs, and demurrer sustained, with costs, with usual leave to plaintiffs to plead over on payment of costs in this court and in the court below.  