Tonawanda Board & Paper Co. v. City of Tonawanda , 190 N.Y.S. 874 ( 1921 )

Hubbs, J. (dissenting):

I am unable to concur in the opinion by Mr. Justice Davis-. The fundamental question is whether or not a municipal corporation which derives its authority from sections 228 and 229 of the General Village Law of 1897 can make a valid binding contract for twenty years with a private corporation fixing a definite annual rental for the use of 1,500,000 gallons of water per day. These sections authorize the board of water commissioners “to establish a scale of rents for the use of water, to be called ‘ water rents.’ ” They do not in terms permit the making of a contract for a definite, fixed, annual rental for a term of years. If the statute in question in express terms authorized such a contract it probably would be valid but such authority cannot be implied but must be granted in express terms. Such a contract deprives a municipality of its power during the term to fix and regulate water rents and constitutes a surrender of the power of government to that extent. Such a contract should not be permitted unless the authority to enter into it has been clearly delegated by the Legislature. (Eastern Illinois State Normal School v. City of Charleston, 271 Ill. 602; 111 N. E. Rep. 573; L. R. A. 1916D, 991; Home Telephone Co. v. Los Angeles, 211 U. S. 265; 53 Law. Ed. 176.)

I vote, therefore, to reverse the order and to vacate the injunction, with costs.