SAMUEL D. COYKENDALL, Respondent,
WILLIAM R. HARRISON and Others, Constituting the Board of Water Commissioners of the City of Kingston, Appellants, Impleaded with THE CITY OF KINGSTON, Respondent.
APPEAL by the defendants, William R. Harrison and others, constituting the board of water commissioners, etc., from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 11th day of March, 1912, denying a motion to dissolve a temporary injunction.
Arthur C. Connelly [G. D. B. Hasbrouck of counsel], for the appellants.
A. T. Clearwater, for the respondent plaintiff.
James Jenkins, for the respondent city of Kingston.
The plaintiff as a taxpayer of the city of Kingston brings this action to restrain the board of water commissioners of that city from carrying out a contract which it entered into with the New York Continental Jewel Filtration Company, whereby it agreed to pay such company $16,235 for furnishing and installing additional filters and purifying appliances in connection with the water works of that city. No corrupt motives or actual corruption is charged against the board of water commissioners. The complaint does allege in general terms, however, that the contract was entered into on the part of the board in bad faith, because there are certain other ways and means of remedying the concededly bad condition of the water supply of the city much more efficacious than the installing of additional filters. Filtration is a conceded necessity on account of the muddy character of the water supply, and filters of the kind which the board contracted for have been in use for many years, and the installing of additional filters is claimed and would seem to be proper
because of the increased consumption of water and for the purpose of avoiding the undue forcing of water in process of filtration.
Bad faith cannot be predicated upon the fact that the board of water commissioners did not adopt a more efficacious plan than that of additional filtration. The allegations of bad faith are mere conclusions and are not supported by the facts, and we would have no hesitancy in dissolving the injunction except for the fact that as we construe the charter of the city of Kingston the expenditure of $16,000 for additional filters is not an expenditure for ordinary maintenance of the water works system which the board of water commissioners has the power to make without the consent of the common council of the city.
Prior to 1895 the city of Kingston was supplied with water by a private company, but by chapter 803 of the laws of that year a board of water commissioners was created with a view to the establishing of a water system under municipal ownership. This law with certain modifications was incorporated in chapter 747 of the Laws of 1896, being title 9 of the charter of the city of Kingston, and it is this latter law which prescribes the duties and limits the powers of such board.
Section 96 of that law declares that the board, with the assent of the common council, may construct and maintain a water works system for the purpose of supplying the city with wholesome water, and that they may exercise such powers as are necessary and proper to accomplish such purpose 'and shall proceed in the manner hereinafter prescribed.'
Section 97 relates to the plan or system of water supply to be adopted, and the board is commanded to investigate various plans and systems and report the same with its conclusions to the common council of the city, and it is thereby provided that with the assent of such common council it may select and determine upon any plan so reported. To carry into effect such plan it is provided by section 98 that bonds of the city, signed by the mayor and its treasurer, may be issued to prescribed amount, and that such bonds shall be so classified that $24,000 of the principal shall ...