Risley v. City of Utica

• Decision Date: 01 April 1909
• Citation: 168 F. 737
• Parties: RISLEY v. CITY OF UTICA et al.
• Court: U.S. District Court — Northern District of New York

168 F. 737

RISLEY v. CITY OF UTICA et al.

United States Circuit Court, N.D. New York.

April 1, 1909

[Copyrighted Material Omitted]

Risley & Love, for complainant.

Lynch &amp Willis (C. E. Snyder, of counsel), for defendant Consolidated Water Co. of Utica.

RAY District Judge.

The parties to this suit are all citizens and residents of the state of New York, where the property taxed is situated, and there is no jurisdiction in this court unless a question is fairly presented arising under the Constitution or laws of the United States. The complainant brings the action for the benefit of himself and all others similarly situated, of whom there are quite a number.

The city of Utica is a municipal corporation existing under an act of the Legislature of the state of New York entitled 'An act to revise the charter of the city of Utica,' passed February 28, 1862 (Laws 1862, p. 28, c. 18), and the several acts supplementary thereto and amendatory thereof. The city, under its charter, has a mayor and 15 aldermen, who constitute the common council of said city. The common council is thereby authorized to regulate public wells aqueducts, and reservoirs for the convenience of the inhabitants of the city and for protection against fire and to prevent the waste of water. The city does not own or operate any water system in said city, or any part of same, for the convenience of its inhabitants or protection against fire. The city and its inhabitants are dependent upon the Consolidated Water Company of Utica for their water supply for fire purposes and domestic use. Ordinances and resolutions of the common council may be vetoed by the mayor, but by a two-thirds vote it may be passed and become a law notwithstanding such veto. The said common council has authority under the charter to raise by tax upon the taxable property of the city certain sums of money to defray the general expenses of the city government, street lighting, parks, etc.

The Utica Waterworks Company was a domestic corporation organized to supply water to the city of Utica and the inhabitants thereof. It consolidated with the Trenton Falls Waterworks Company, and the consolidated companies became the Consolidated Water Company of Utica, and is now supplying water to said city for its use, and that of certain of its inhabitants for domestic use and fire purposes. The water so supplied is conducted through pipes laid in certain of its streets by the authority and with the consent of the common council, and these pipes are connected with the source of supply. There are more than 115 miles in length of public streets in said city, but the total number of miles of pipe laid in said streets is less than 95.

The complainant now is, and for more than 25 years last past has been, the owner and occupant by his tenant of a farm of some 29 1/2 acres of land located in the Thirteenth ward of said city.

Upon this farm there is a 12-room dwelling house, horse barn, cow and hay barn, milkhouse, and other buildings of value used upon and in connection with said farm, and which have been used as a part of and in connection with said farm for many years last past. On said farm are three wells, two of which become dry in dry season, and the third is adjacent to the barn, and the water thereof is not suitable for domestic purposes. The supply of water upon said farm is wholly inadequate to protect the buildings thereon in case of fire. This farm is located on what is commonly known as the 'Welshbush Road' in said city, and there is no water main or other pipe connecting with any pipe, hydrant, or water supply furnished by the city of Utica or the said Consolidated Water Company or its predecessor on said road or farm or adjacent thereto, and the nearest water main to the said farm and farm buildings is one mile substantially distant therefrom and three-fourths of a mile distant from any part of the farm. The result is that neither the city nor the said water company provide or furnish any means whatever for the protection of the buildings of the complainant situated on said farm, and such buildings are utterly without protection in case of fire.

The complainant in due form has urged and requested the city more than once to extend or cause to be extended to some point upon said farm or said Welshbush road or near said buildings a water main or pipe so as to furnish protection to complainant's said buildings on said farm against fire, but the city and its common council have neglected, failed, and refused finally so to do. At one time the common council duly adopted a resolution or ordinance to extend a water main to and upon said road and near to or by the said buildings of complainant; but the mayor vetoed the ordinance, and since that time the city and its authorities have failed to take further action, although requested so to do.

The city by its common council has extended water mains in other streets, and contracted to pay large sums for laying water pipes in other streets and sections, and levies and assesses the expense of furnishing water to various parts of the city for fire purposes upon all the taxable property of said city, including the said farm and farm property of the complainant and others in that vicinity similarly situated. These taxes have been laid, assessed, and collected for some years, and taxes for such purposes are now assessed, levied, and threatened to be collected of the complainant by levy upon and a sale of his said property. When the city refused to extend protection against fire to the buildings and property of the complainant on request of the complainant, he gave notice that he would not pay taxes for such purposes, and that the taxes assessed and levied for such purposes were illegal and in violation of his rights under the Constitution of the United States, and, upon his refusal to pay such taxes levied for such purposes, the city, by authority of its common council, levied upon and threatened to sell the said property of the complainant.

By chapter 393, p. 937, Laws of 1867, the Legislature of the state of New York passed an act entitled 'An act to authorize the Utica Water Works Company to increase its capital stock and to contract with the common council of the city of Utica for a supply of water in said city for the extinguishment of fires.'

Section 1 of that act reads as follows:

'The common council of the city of Utica are hereby authorized and empowered to make a contract with the Utica Water Works Co. and to fix and agree upon the sum to be paid annually therefor, for a supply of water for the extinguishment of fires in said city; and said Utica Water Works Co. shall, when such contract is made, furnish water to the city of Utica for the purposes of extinguishing fires, and shall lay and extend its pipes and conduits in such streets as the common council shall designate, and provide suitable reservoirs to constantly supply said city with sufficient water for the extinguishment of fires. Said sum fixed as the annual sum to be paid to said Utica Water Works Co. for a supply of water for the purpose of extinguishing fires, shall be added in each year to the tax authorized to be raised by the 47th section of the city charter of said city of Utica and shall be collected therewith, and by the same power and authority.'

Section 2 authorized an increase of the capital stock of said company to a sum not exceeding $200,000, to be fixed by the directors thereof. April 7, 1870 (Laws 1870, p. 415, c. 143), this act was amended authorizing an increase of the capital stock to $400,000, and May 17, 1887 (Laws 1887, p. 443, c. 359), the act was further amended authorizing an increase of the capital stock to $600,000.

May 19, 1868, under and pursuant to the authority conferred by said act, a contract was entered into between the said city and the said water company, which reads as follows:

'In pursuance of chapter 393 of the Laws of 1867 it is agreed by and between the Utica Water Works Company and the city of Utica as follows, to wit:

'The said company agrees to furnish water for the said city for the extinguishment of fires; and to lay and extend its pipes and conduits in the streets designated upon a map and plan presented to the common council of said city by a committee of the directors of said company on the 20th day of April, 1868, duplicate of which is on file in the office of the city clerk and is certified by Theodore S. Sayre on behalf of the city committee as a map and plan here referred to and to provide suitable reservoirs to constantly supply said city with sufficient water for the extinguishment of fires, provided said city shall pay therefor the compensation hereinafter mentioned and also upon the condition that the said company shall be able on or before the 15th day of November next by a sale of new stock or otherwise to raise sufficient money to complete the works contemplated by this contract.

'And the city of Utica agrees that when the said company shall have furnished by the said reservoirs and by the said pipes and conduits a supply of water in manner and for the purpose aforesaid and so long as they shall continue to supply sufficient water for said purpose it will pay therefor to the said company the sum of ten thousand dollars ($10,000.00) annually, to wit: On the 15th day of November in each and every year and will also pay and discharge one-half of all taxes aforesaid upon said company or its works or property within the limits of said city and taxes thereon in excess of the sum of one thousand dollars. The amount of the first payment to be determined by reckoning from the time a supply of water is provided in the pipes and conduits in manner aforesaid to the 15th day of November next thereafter, and if it

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