#### John A. Drew, Plaintiff, *v.*The Village of White Plains, Defendant.

Second Department,

June 13, 1913.

Municipal corporations — chapter 769 of the Laws of 1896, providing for a water supply for the village of White Plains, construed — authority of water commissioners to purchase water—ultra vires contract — Village Law.

Chapter 769 of the Laws of 1896, entitled “ An act to provide for supplying the village of White Plains with water, and authorizing the issue of bonds therefor, and to create a board of water commissioners for said village,” examined, and *held,*not to limit the power of the board of water commissioners of said village to the construction and operation of a municipal plant; but that, after having acquired a plant, it had the right, if necessary, to increase its water supply by any reasonable . method.

A contract by said board with an individual to supply water to the village for a period of fifteen years, at a certain price per gallon, was not *ultra vires,*although not specifically authorized by the statute.

Said contract was not void because it covered a period longer than one year, in violation of section 8 of the statute, which prohibited the board of water commissioners from entering into contracts for “ any service rendered or to be rendered or supplies furnished or to be furnished for a longer period than one year.”

The Village Law has no application to the water commissioners appointed under chapter 769 of the Laws of 1896, and hence the above contract is not void because made to cover a greater period than five years.

Carr and Stapleton, JJ., dissented.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

*395*H. Snowden Marshall*[ *John Caldwell Myers*with him on the brief], for the plaintiff.

*Frederick B. Van Kleeck, Jr., Corporation Counsel,*for the defendant.

Rich, J.:

This is a submission of a controversy under the provisions of sections 1279-1281 of the Code of Civil Procedure, and it involves the construction of chapter 769 of the Laws of 1896, entitled “An act to provide for supplying the village of White Plains with water, and authorizing the issue of bonds therefor, and to create a board of water commissioners for said village.” When this statute was enacted the village of White Plains was obtaining its supply of water from the Westchester County Water Works Company. The plant of this company was subsequently acquired under said act by defendant, but the supply was found to be so inadequate that in the years 1906, 1907, 1909 and 1910 the village was compelled to purchase water from the city of New York at the cost of one hundred and thirty-three dollars per 1,000,000 gallons, and to pump the same into its mains at an additional cost of eighteen dollars per 1,000,000 gallons. It appears that in the year 1910 the village purchased 107,552,400 gallons in 179 days. On May seventeenth. the city of New York was unable to furnish any water to defendant and discontinued the supply. On June twenty-seventh following the plaintiff entered into a contract with the board of water commissioners of defendant, by which he undertook to furnish the defendant for the period of fifteen years, not less than from 1,000,000 to 8,000,000 gallons, of water per calendar day at defendant’s option, at the rate of eighty dollars per 1,000,000 gallons for the first 1,000,000 gallons and seventy-five dollars per 1,000,000 gallons for the next 2,000,000 gallons or fractions thereof. The water board agreed to take not less than 1,000,000 gallons daily delivered in the village mains, and to pay therefor at the rate stated.

At the time the contract was made, the source of defendant’s water supply consisted of two storage reservoirs and five caisson wells, operated by the water commissioners, and it was wholly inadequate to supply the inhabitants of the village *396with the necessary quantity of pure and wholesome water, and not sufficient for fire protection or other public purposes, and there was no additional supply available except that of plaintiff. In October, 1910, the city of New York granted permission to the commissioners to take from the water running over Kensico dam a limited supply. The plaintiff has complied with the terms of his contract, and at the time of the commencement of this proceeding there was unpaid and due him on account of water delivered to defendant $8,384.63.

It is contended by defendant that the board of water commissioners had no authority to purchase water, and that the contract with the plaintiff is *ultra vires.*The act is entitled, “ An Act to provide for supplying the village of White Plains With water,” etc. Section 3 provides: “The board of water commissioners is hereby directed and empowered to acquire by purchase, or by proceedings for the condemnation of real proper!, * * * any ■ lands, easements, water rights, dam, water plant, water mains and connections, laterals and appurtenances, whether owned or possessed by individuals or water companies, incorporated pursuant to the laws of this State, and said water commissioners shall have the same authority over and the same right to operate and use any and all property, rights and extensions, made by said company or individuals as such commissioners have within the limits of said village. * * * And said water commissioners shall have the exclusive right and power to make all necessary arrangements, regulations and contracts for supplying said village with water, and to purchase, construct or extend all works needful for that purpose; and to that end they are hereby empowered to purchase, take and hold, in the corporate name of the village of White Plains, any real estate, easements, or any other interests in real estate or property required for such purpose, and by themselves, their servants and agents, may, after agreement with such owner or owners, or after just compensation has been ascertained and provided for, enter upon the lands of any person or persons, * * * construct, alter, repair and replace any pipes, conduits, aqueducts or other works necessary to furnish an ample supply of water at any time.” Section 14 provides that the *397net income shall be used for paying bonds when due or “extending the necessary pipes throughout the village, orto increasing the capacity of the works or the supply or both or all, as such board may, in judgment, determine.” The board acquired a municipal plant under this act by condemnation, but it was inadequate for the village supply, and they were forced to purchase water of the city of Hew York for several years. It could not condemn the water supply furnished by plaintiff, for it did not exist. The purpose of the Legislature was to enable the defendant to obtain a sufficient supply of pure and wholesome water. We are concerned upon this appeal with the question as to whether it was intended to authorize the purchase of water for village purposes.

In construing statutes that sense should be adopted which harmonizes best with the context and promotes in the fullest manner the apparent policy and object of the Legislature. *(Manhattan Co.*v. *Kaldenberg,*165 H. Y. 1.) The intent of the Legislature is the object of all construction, and inconsistencies in a statute are to be harmonized and their literal or usual meaning ignored if thereby the intent can be arrived at. *(People ex rel. Gress*v. *Hilliard,*85 App. Div. 507.) The canon of construction is that a thing which is within the intention of the Legislature is within the statute, though not definitely expressed. *(Riggs*v. *Palmer,*115 N. Y. 506, 509; *People ex rel. Wood*v. *Lacombe,*99 id. 43.) The exact and literal wording of a statute may sometimes be rejected if, upon a survey of the whole act and the purposes to be accomplished, it is plain that such exact or literal rendering of the words would not carry out the legislative intent, and the title of the act may be regarded also for the purpose of arriving at the real meaning of the Legislature. *(Bell*v. *Mayor, etc.,*105 N. Y. 139; *Delafield*v. *Brady,*108 id. 524; *Weiler*v. *Newbach,*47 Hun, 166; *Peck*v. *Baldwin,*58 id. 308.)

The board of water commissioners is not a subsidiary body appointed or removable by the municipal authorities; they are elected for a stated term, and the Legislature intended to create a body charged with the duty to provide an adequate supply of water for the necessities of the village, and it gave them the power to do this. I cannot agree with the conten*398tion that the act limits the power of the board of water commissioners to the construction and operation of a municipal plant. After having acquired a plant I think it had the right, if necessary, to increase its water supply by any reasonable method. Although this precise question has not been before the courts of our State, the principle involved has been considered by text hook writers, and it has been held in sister. States that any power sufficient to authorize a municipality to provide a supply of water or light in the absence of special restrictions carries with it the authority to make a proper contract with an individual or corporation therefor. (2 Dillon Hun. Oorp. [5th ed.] § 704; 3 id. § 1302; *Reed*v. *City of Anoka,*85 Minn. 294; *National Foundry & Pipe Works, Ltd.,*v. *Oconto Water Co.,*52 Fed. Rep. 29; *Illinois Trust & Savings Bank*v. *City of Arkansas City,*76 id. 271; *Jack*v. *Village of Grangeville,*9 Ida. 291; *State ex rel. Ellis*v. *Tampa Water Works Co.,*57 Fla. 533; 47 So. Rep. 358; *City of Newport*v. *Newport Light Co.,*84 Ky. 166.)

Attention is directed to *Matter of Water Commissioners of White Plains*(176 N. Y. 239, 250), and it is insisted that the language “Such hoard [board of water commissioners] only has the power to act for the village and make valid contracts with reference to the acquiring of property for water works,” is absolutely controlling in the case at bar. The learned counsel misapprehends the application of the section he quotes. The question presented in that case was the method of determining the value of the plant of the company it subsequently acquired. There was no question as to the power of the water commissioners, and the words quoted were not used as a limitation on the powers of the commissioners, and I think that they'had power to make the contract in suit.

It is next contended that the contract is void because it covers a period longer than one year. This contention is predicated upon the provision of section 8 of the statute creating the water board as follows: “Said board of water commissioners shall not, however, have the right to contract with any individual, corporation or body politic for any service rendered or to he rendered or supplies furnished or to be furnished for a longer period than one year.” The contract is not *399one for services. It is an agreement for the purchase of water, nothing else; and the unit is “gallons,” not horns or days. The contract obligation was expressly limited to the purchase of a commodity necessary for defendant’s existence, at a fixed price and for a definite period of time, nor can the contract be defeated as being one for “ supplies furnished or to be furnished.” The word in the statute is plural and does not apply to the water to be furnished by the plaintiff *(Gleason*v. *Dalton,*28 App. Div. 555; *Harlem Gas Co.*v. *Mayor, etc.,*33 N. Y. 309; *Farmers’ Loan & Trust Co.*v. *Mayor, etc., of New York,*4 Bosw. 80.)

The Village Law (Consol. Laws, chap. 64 [Laws of 1909, chap. 64], § 220 *et seq.)*has no application to the water commissioners, and there is, therefore, no force in the suggestion that the contract is void because it is made to cover a greater period than five years. I am of the opinion that the contract is a valid obligation against the defendant and that the plaintiff is entitled to judgment.

Judgment is awarded, pursuant to the stipulation, to plaintiff against the defendant for $8,384.63, with interest on $1,203.34 from December 10, 1910; on $2,403.04 from January 10, 1911; on $2,480 from February 10, 1911, and on $2,298.25 from March 10, 1911, with costs.

Jenks, P. J., and Thomas, J., concurred; Carr and Staple-ton, JJ., dissented, on the ground that the contract in question was beyond the statutory power of the commissioners.

Judgment for plaintiff, pursuant to stipulation, for $8,384.63, withinterest on$1,203.34 from December 10, 1910; on $2,403.04 from January 10, 1911; on $2,480 from February 10, 1911, and on $2,298.25 from March 10, 1911,with costs.