
    The Woodside Water Company, Appellant, v. Long Island City, Respondent.
    
      Long Island, City—limitations upon the power of its water commissioners to contract with a water supply company, not affected by the Transportation Corporations Law.
    
    The provisions of the charter and of the special acts relative to Long Island City (Laws of 1871, chap. 461, § 9 ; 1879, chap. 100, § 1; 1890, chap. 194), by which its board of water commissioners is forbidden to enter into a contract for the extension or repair of the water works involving an expenditure of more than §1,000 without the consent of the city common council, and is limited in its ■expenditures to §24,000 annually, are not repealed by implication by the provisions, of the Transportation Corporations Law (Laws of 1890) chap. 566, § 81, :as amended by chap. 617 of 1892) authorizing water commissioners generally to contract in the name of the municipal corporation for the delivery by a ¡company, organized under the act, to the city, of water, through hydrant's or ■ ■otherwise, for the extinguishment of fires and for sanitary and other purposes, the expense thereof-to be levied and collected in the same manner as other •city expenses.
    
      Hence, contracts made with a water supply company organized under that act by the board of water commissioners of Long Island City without the consent of its common council, for furnishing to the city water for fire, sanitary and other public purposes, and allowing the company to supply water through its own pipes to the inhabitants of the city upon the payment of water rates directly to the company, are ultra vires, and do not entitle the water company to recover of Long Island City damages for its alleged failure to insert in the budget moneys for the payment for water alleged to have been furnished to the city by the company in an amount exceeding $46,000 under such contracts.
    Appeal by the plaintiff, The Woodside Water Company, from a judgment of the Supreme Court in favor of the defendant entered in the office of the clerk' of the county of Queens on the 16th day of July, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing its complaint.
    This action was brought to recover $46,014.05 as damages alleged to have been sustained by the plaintiff through the failure of the common council of the defendant to insert in the last annual tax levy of the defendant that suin as requisite to the payment for water supplied by the plaintiff to the defendant.
    
      F. H. Van Vechten, for the appellant.
    
      Thomas P. Burke, for the respondent.
   Goodrich, P. J.:

The plaintiff is incorporated as a water supply company under the Transportation Corporations Act (2 R. S. [9th ed.] 1340), having its principal place of business at Newtown, Long Island. • The defendant is a municipal corporation under special charter (Chap. 461, Laws of 1871), by which the mayor, city judge, commissioner of public works and two citizens to be appointed by the mayor were appointed water commissioners of the city. The- board of commissioners ivas authorized to supply the city with water, and for this purpose, by proper proceedings, to take real estate, enter upon lands and take water and conduct the same to the city, to construct and lay aqueducts, pipes, etc., for the1 purpose aforesaid. It was required to keep an account of its expenses in extending the pipes and to report the same to the common council (tit. 10, § 9). There were other provisions which show clearly that the intention of the ■ dharter was that the board should regulate the rate of charges for water, assess and collect' the same and be itself the distributing source of water to the inhabitants.

In 1879 an act was passed (Chap. 100), section 1 of which provided that in each year the heads of departments should submit written estimates in detail of the amounts required for the purposes of their respective departments during the ensuing year and that the expenses of the several departments should in no year exceed the amount appropriated therefor, without the consent of all the members of the common council. In 1890 it was further provided (Chap. 194) that the expenses of the water department, exclusive of the cost of fuel and necessary repairs, should not exceed $24,000 in any one year, and that the board should not, without the consent of the common council, enter into any contract for the extension or repair of the water works, etc., which should involve an expenditure in excess of $1,000.

It is evident that .the scheme of .the charter and the act of 1890 wTas that the action of the board should be subject to the consent of the common council as to contracts involving greater expense than that already stated, and that such contracts -should be made only in connection with and upon the approval of the common council. The board, however, on April 20,1896; and on November 12,1896,' without any consent of the common council, made two contracts with the plaintiff, the full details of which are not set out in the complaint, but the contracts, by consent of counsel, were presented to this court on the argument of this appeal. The first contract provided that the plaintiff should lay and maintain at its own expense water pipes and hydrants in such streets not already occupied by the defendant’s water pipes as should be designated by the board, for the purpose of furnishing through them water to any of the inhabitants along such lines, who should require the same, upon their paying to the plaintiff such charges or compensation as the board might fix, not exceeding the charges for similar supplies made by the city to inhabitants along the lines of its own pipes. The company -was also to erect hydrants and furnish water to the city for fire and sanitary purposes, and pay to the city two per cent on. the net profits of the company, realized from the delivery of water by said company directly to the inhabitants. The second contract provided that the plaintiff should furnish water to the mains and pipes of the defendant for delivery by the city to the inhabitants and for fire, sanitary and other public purposes, as might be required by the city. Intermediate the two contracts, the company, in reliance upon the first contract, expended $69,000 to enable it to comply with the obligations of such contract.

At the time of these contracts chapter 194 of the Laws of 1890 contained the following provision: “The expenses of the water department of said city, exclusive of the cost of fuel and necessary repairs, shall not exceed. twenty-four thousand dollars in any year. The board of water commissioners of said city shall not, without the consent of the common council, enter into any contract for the extension or repair of the water works, machinery or property, or any part thereof, which shall involve an expenditure in excess of the sum of one thousand dollars, and said commissioners shall present to the common council of said city a formal report in detail of their administration of the affairs of the water department on the first days of January and July, respectively, in each year.”

It was the evident purpose of these several acts that the water department should be a branch of the city .government, and to a certain extent amenable to the common council; and that it should not make any contracts involving increased expenditure above the amounts above specified, without the consent of the common council. Whether the contracts are or are not within the letter of the statute as expressed by the use of the words “• extension or repair of the water works,” they are certainly within its spirit, which contemplates a limitation of all the annual exjienses of the department, exclusive of fuel and repairs, to $24,000, and forbids any contract over $1,000, for extension or repair,' without the consent of the common council. The contracts necessarily relate either to the expense of the department or to an extension of the work. If the former, the statute prohibits an expenditure of over $24,000, and if the latter, the consent of the common council is requisite, so that in either view, the contract was ultra vires of the department and illegal. The findings show that the amount of water intended to be furnished and which was furnished to the city itself between May 1, 1896, and January, 1891, amounted to over $46,000.

But the appellant contends that section 81 of the Transportation Act, above cited, authoi’izes the execution of those contracts. It provides that “ water commissioners * * * shall have the power to contract in the name and behalf of the municipal corporation * * * for the delivery by such company to the * * * city, of water through hydrants or otherwise, for. the extinguishment of fires, and for sanitaiy and other public purposes,” the expense thereof to be levied and collected in the same manner as other expenses of the city.

The question arises whether.this general statute repeals by implication the provisions of the city charter. It.is authoritatively settled that general acts are ordinarily held not to repeal the provisions of charters granted to municipal corporations or special acts passed for their benefit, though conflicting with the general provision.

In McKenna v. Edmundstone (91 N. Y. 233) Andrews, J., said: “It is well settled that a special and local statute, providing for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intént to repeal or alter is manifest, although the terms of the general act are broad enough to include the cases embraced in the special law. (Matter of the Commissioners of Central Park, 50 N. Y. 493.) This is but the application of the larger rule that a statute is not to be deemed repealed by implication by a subsequent act upon the same subject unless the two are manifestly inconsistent with and repugnant to each other, or unless a clear intention is disclosed on the face of the later statute to repeal the former one.”

The Transportation Corporations Act is neither inconsistent with nor repugnant to the provisions of chapter 194, Laws of 1890, already cited, nor is any intent to repeal or alter the latter manifest or clearly discoverable on the .face of the Transportation Corporations Act. If needful, it might be added that the latter suggestion derives additional force from the fact that the act containing the limitation is entitled “An act to amend chapter one hundred of the laws of eighteen hundred and seventy-nine, entitled ‘An act relating to,’ and to reduce the expenses of, the city government of Long Island City;’” and was passed in 1890 by the Legislature of the same year which passed the original Transportation Act (see cliap. 566, Laws of 1890), "although the 81st section of the original act related to towns and villages only, and not to cities, and was extended to cities by chapter 617 of the Laws of 1892. It would, be a violent legal presumption, whatever it might be as matter of fact, to assume that the Legislature did not have in mind its previous enactment of the same session and intended to repeal the former act, when it was not referred to in the subsequent statute.

It may also be said that the 81st section of the Transportation Act provides for the furnishing of water to a city only for public purposes and for the expense thereof to be levied and collected by the city, and does not authorize a contract such as the one of April twentieth, which provides for the furnishing of water, not to the city, hut through the private pipes of the company, to inhabitants along the route of such pipes, upon payment of water rates by such inhabitants directly to the company.

We are, therefore, fully in accord with the opinion of the-learned justice at Special Term, that the Transportation Act does not remove the checks upon the water commissioners, as provided in chapter 194 of the Laws of 1890, and it follows that the judgment must be affirmed.

All concurred, except Bartlett, J., who concurred in the result.

Judgment affirmed, with costs.  