The People of the State of New York ex rel. The Tupper Lake Water Company, Relator, v. Charles H. Sisson and Others, as Town Auditors, and the Board of Town Auditors of the Town of Altamont, Franklin County, N. Y., Respondents

The People of the State of New York ex rel. The Tupper Lake Water Company, Relator, v. Charles H. Sisson and Others, as Town Auditors, and the Board of Town Auditors of the Town of Altamont, Franklin County, N. Y., Respondents. Town water supply—a contract therefor which provides for a supply to two villages only out of a water supply district embracing the whole town, held to be illegal — a contracting corporation is bound to take notice of the statutory limitation of authority. Section 81 of the Transportation. Corporations Law (Laws of 189Ó, chap. 566, as amd. by chap. 678 of the Laws of 1896), which authorizes a town board to establish a water supply district in the town and to contract, in the name of the town, for the' delivery by a corporation of a supply of water to such district, and Which provides that “ the whole town shall be bound by such-corn-tract, but the rental or expense thereof shall annually, in the samé manner as other expenses of the town are raised, be assessed, levied upon and collected only from the taxable property within such water supply district," requires that the territory supplied with water under the contract shall correspond in area with the territory which is designated as the water supply district. Where the district, as established by the town board, includes the whole town, which is eighteen miles long and six miles wide, a contract for the supply of water to two villages only in such town occupying less than one square mile of territory is invalid, notwithstanding that such villages contain eighty per cent of the inhabitants of the town and about .forty per cent of the taxable property therein. A corporation, making such a contract with the town board is bound, at its peril, to know the limitations upon the authority of the town board, and the fact that it supplies water under the contract creates no claim against the town. Certiorari issued out of the Supreme Court and attested on the 11 th day of January, 1902, directed to Charles H. Sisson and others, as town auditors, and the board of town auditors of the town of Altainont, Franklin county, H Y., commanding them to certify and return to the office of the clerk of the county of Franklin all and singular their proceedings in rejecting the relator’s claim for supplying water for fire protection pursuant to a written contract made by the town board of the town of Altainont with the relator in October, 1899. The claim was rejected on the ground that the contract was unauthorized and invalid, and, therefore, not binding upon the town. John P. Badger, for the relator. John P. Bellas, for the respondents. [MAJORITY — Kellogg, J.] Kellogg, J. For authority to create a water supply district and to contract for •a water supply the town board of the town of Altamont seems to have resorted to a provision of the so-called Transportation Corporations Law (Laws of 1890, chap. 566, § 81, as amd. by Laws of 1896, chap. 678) which reads as follows: “The town board of any town may establish a water supply district in such town outside of a city or incorporated village therein by filing a certificate describing the bounds thereof in the office of the town clerk; and may •contract in the name of the town for the delivery by a corporation, subject to the provisions of this article, of a supply of water for fire, ■sanitary or other public purposes, to such districts, and the whole town shall be bound by such contract, but the rental or expense thereof shall annually, in the same manner as other expenses of the town are raised, be assessed, levied upon and collected only from the taxable property within such water supply district. * * * Ho such contract shall be made for a longer period than five years, nor for an annual expense exceeding three mills upon each dollar of the taxable property within such water supply district.” On the 7th day of October, 1899, the town board filed with the town clerk a certificate: “We, * * * constituting the town board Of the town of Altainont, Franklin county, N. Y., pursuant to statute do hereby establish, by this certificate, a water supply district in said town of Altamont, Franklin county, N. Y., and do establish the .following bounds, to wit: Said water supply district shall have the same boundaries as the said town of Altamont,. Franklin county, N. Y.,” and on the same day the town board entered into the written contract in question. The record shows that the town of ■ Altamont is eighteen miles long and six miles wide. Much the greater portion of the town is wild unoccupied forestland and some portions mountainous. Eighty per cent of the inhabitants'of the town reside in two villages: Tapper Lake village, having about 2,000 inhabitants, and Tupper Lake Junction, having about 250, the two villages being about two miles apart that the assessed valuation of the whole town is $538,543 ; that of' this amount $209,534 is the assessed valuation of the property of the villages and $329,009 is. the assessed valuation of the town outside the two villages; that the contract provides for a water supply for the two villages and the street between the two villages. The streets in which the pipe line was to fun are named in the contract, and there is nothing obligatory upon the relator to lay lines of pipe elsewhere. It is plain that the object of the law authorizing the designation of a water supply district is solely for the purpose of making a contract with some corporation for a supply of water. The town is not here authorized to create a water supply or lay pipe or erect hydrants. The contract, therefore, and the district" designated must correspond in area. The district established cannot properly be greater than the district to be supplied under the corn tract, A large district cannot be designated for the purpose of taxation to pay for a water supply to a part only of such district. That is not the intention of the act. The meaning of the act is plain. The area to be designated as a-water supply district must be just the area which the authorized contract is to supply with water “ for fire, sanitary or other public purposes.” The district here established' is the whole town of Altamont, eighteen miles long and six miles wide, or one hundred and eight square miles of territory, and the contract calls for a supply of water to less than one square mile." It is .needless to say that here is a clear attempt to pervert the law, both in its letter and spirit, an attempt to make those who are not benefited pay for benefits enjoyed by others. This the law neither authorizes nor permits. The contracting corporation was bound to know the law and bound to know that all the authority the town board possessed was derived from this statute. The fact that water has been supplied under the contract-creates no claim against the town of Altamont in law or equity. The claim was, therefore, properly rejected. Judgment is directed against the relator and in favor of defendants for fifty dollars costs and disbursements. Determination of the board of town auditors unanimously confirmed, with fifty dollars costs and disbursements against the relator.