Hill, P. J.
Under the provisions of article 78 of the Civil Practice Act the city of Syracuse brings up for review an order dated August 20, 1936, made by the Water Power and Control Commission which directs the city to “ permit the Village of Jordan to draw water from the city conduits in amounts not in excess of sixty-nine (69) million gallons in any one calendar year. * * * For all water actually so drawn the Village of Jordan shall pay to the City of Syracuse at the rate of two (2) cents per hundred cubic feet, measured by a meter, which meter shall be read and payments be billed and become due in accordance with the established procedure of the City of Syracuse.” This is the last of three inter-related orders, made by the Commission, the first, September 22, 1931; the second, March 19, 1935.
Skaneateles lake is the source of the Syracuse water supply system. The waters are conveyed about twenty miles to the city in two conduits (with a third partially completed) from a single intake in the lake. The capacity is substantially forty million gallons per day. The water main of the village of Elbridge taps the city conduit about six miles from the lake, and the village takes water therefrom for municipal uses. The 1936 order contemplates that the village of Jordan will attach its mains to those which now serve the village of Elbridge.
The city has expended in excess of twelve million dollars in condemning and purchasing real property and in construction costs. It proceeded under numerous legislative grants, beginning in 1888 (Chap. 532). In 1889 (Chap. 291) the “ Syracuse Water Board ” was created, which was “ authorized and directed for and in the name of the city of Syracuse to acquire, construct, maintain, control and operate a system of water works to furnish the city of Syracuse and its inhabitants with water from Skaneateles lake.” In 1889 the lake was a source and feeder for the Erie canal. The statute of that year permitted Syracuse “ by and with the consent of the Canal Board * * * to appropriate so much of the waters of Skaneateles lake as may be necessary to supply the city of Syracuse and its inhabitants with water;” the only reservation was that the [407]*407city furnish water for the use of the Erie canal. By numerous later statutes the rights of the city to take, use and sell waters from the lake were amplified, explained and re-enacted. The city urges that these grants entitle its local authorities to use and operate the system without interference, and that the Water Power and Control Commission has no jurisdiction. When the city desired, in 1931, to install an additional conduit, application was made to the Commission for approval of plans therefor. The Commission qualifiedly granted the application, its order reciting that the inhabitants of certain areas, including Jordan, “ have a right so to be supplied superior to the rights of the city of Syracuse and applicant may draw from this lake only water which is in excess of the reasonable needs of these inhabitants,” and it directed the city to permit the necessary connections to be made to its conduits and to furnish water to these areas “ subject to such terms and conditions as may be specified by tins Commission in its decision approving and authorizing such taking.” Proceedings looking to the review of this order by certiorari were instituted by the city, but later abandoned. In 1935 the Commission directed that the village of Jordan be permitted to take water from the city conduits. The order recited: “ The city of Syracuse, the village of Elbridge and the applicant [village of Jordan] have agreed as to the terms and conditions "under which Jordan may obtain this water from Syracuse.”
The authority and jurisdiction of the Commission is found in the Conservation Law (§ 523). The portion thereof which seems to apply reads: “ The Commission shall determine whether the plans proposed are justified by public necessity, * * * and whether such plans are just and equitable to the other municipalities and civil divisions of the State affected thereby and to the inhabitants thereof, particular consideration being given to their present and future necessities for sources of water * * *. The Commission shall * * * either approve such application, maps and plans as presented or with such modifications in the application, maps and plans submitted as it may determine to be necessary * * * to bring into cooperation all municipal corporations, or other civil divisions oh the State, which may be affected thereby; * * * or it may reject the application.”
The impounding and distribution of potable waters are rights held in trust by the State for the benefit of all its inhabitants. A State may not by grant or contract divest itself of control of rights and properties held for the benefit of all the people, for in so doing it would divest itself of an incident of sovereignty and of powers vital to the public welfare. (Matter of City of Rochester v. Holden, [408]*408224 N. Y. 386; Matter of City of Buffalo, 68 id. 167; Beer Co. v. Massachusetts, 97 U. S. 25; Cincinnati v. Louisville & Nashville R. R. Co., 223 id. 390; Pennsylvania Hospital v. Philadelphia, 245 id. 20; Georgia v. Chattanooga, 264 id. 472.) While the legislative grants to the city were unlimited and the city acting thereunder has expended millions of dollars, the city’s title is subject to the sovereign power to control the just and equitable distribution of potable waters. I am unable to adopt the statements in the 1931 decision of the Commission that the inhabitants of certain towns have rights superior to those of the city of Syracuse in the waters of the lake. The entire public has an equal right to potable water. The Commission is to exercise just and fair supervision to the end that supplies which are more available for use by one community are not absorbed by another.
The Commission has exercised its jurisdiction over the distribution of the waters of the lake and has assumed control over twelve million dollars of property of the city and fixed rates at which the water flowing through the city conduits may be sold. The “ Commission might, perhaps, have power to couple its consent with any direction which it would have independent power to make.” (People ex rel. Iroquois Gas Corp. v. Public Service Comm., 264 N. Y. 17, 19.) In Matter of Quinby v. Public Service Comm. (223 N. Y. 244, 263) the court was dealing with a statute which gave to the Public Service Commission the same power which the Legislature had to regulate rates of fare, but the opinion states: “ It is impossible to find a word in the statutes which discloses the legislative intent to deal with the matter of rates fixed by agreement with local authorities. As it has often been held in connections other than that of legislative power over them that such agreements are valid, it may well be inferred that the Legislature excluded them from consideration by failure to mention them and that it has made no attempt to turn them over to the Public Service Commission for revision.” “ The power of the * * * Commission is extensive, and the act creating the Commission should be construed in the same spirit in which it was enacted. Still, when a particular power is exercised by the Commission or is claimed for it, that power should have its basis in the language of the statute or should be necessarily implied therefrom.” (People ex rel. N. Y. R. Co. v.
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Hill, P. J.
Under the provisions of article 78 of the Civil Practice Act the city of Syracuse brings up for review an order dated August 20, 1936, made by the Water Power and Control Commission which directs the city to “ permit the Village of Jordan to draw water from the city conduits in amounts not in excess of sixty-nine (69) million gallons in any one calendar year. * * * For all water actually so drawn the Village of Jordan shall pay to the City of Syracuse at the rate of two (2) cents per hundred cubic feet, measured by a meter, which meter shall be read and payments be billed and become due in accordance with the established procedure of the City of Syracuse.” This is the last of three inter-related orders, made by the Commission, the first, September 22, 1931; the second, March 19, 1935.
Skaneateles lake is the source of the Syracuse water supply system. The waters are conveyed about twenty miles to the city in two conduits (with a third partially completed) from a single intake in the lake. The capacity is substantially forty million gallons per day. The water main of the village of Elbridge taps the city conduit about six miles from the lake, and the village takes water therefrom for municipal uses. The 1936 order contemplates that the village of Jordan will attach its mains to those which now serve the village of Elbridge.
The city has expended in excess of twelve million dollars in condemning and purchasing real property and in construction costs. It proceeded under numerous legislative grants, beginning in 1888 (Chap. 532). In 1889 (Chap. 291) the “ Syracuse Water Board ” was created, which was “ authorized and directed for and in the name of the city of Syracuse to acquire, construct, maintain, control and operate a system of water works to furnish the city of Syracuse and its inhabitants with water from Skaneateles lake.” In 1889 the lake was a source and feeder for the Erie canal. The statute of that year permitted Syracuse “ by and with the consent of the Canal Board * * * to appropriate so much of the waters of Skaneateles lake as may be necessary to supply the city of Syracuse and its inhabitants with water;” the only reservation was that the [407]*407city furnish water for the use of the Erie canal. By numerous later statutes the rights of the city to take, use and sell waters from the lake were amplified, explained and re-enacted. The city urges that these grants entitle its local authorities to use and operate the system without interference, and that the Water Power and Control Commission has no jurisdiction. When the city desired, in 1931, to install an additional conduit, application was made to the Commission for approval of plans therefor. The Commission qualifiedly granted the application, its order reciting that the inhabitants of certain areas, including Jordan, “ have a right so to be supplied superior to the rights of the city of Syracuse and applicant may draw from this lake only water which is in excess of the reasonable needs of these inhabitants,” and it directed the city to permit the necessary connections to be made to its conduits and to furnish water to these areas “ subject to such terms and conditions as may be specified by tins Commission in its decision approving and authorizing such taking.” Proceedings looking to the review of this order by certiorari were instituted by the city, but later abandoned. In 1935 the Commission directed that the village of Jordan be permitted to take water from the city conduits. The order recited: “ The city of Syracuse, the village of Elbridge and the applicant [village of Jordan] have agreed as to the terms and conditions "under which Jordan may obtain this water from Syracuse.”
The authority and jurisdiction of the Commission is found in the Conservation Law (§ 523). The portion thereof which seems to apply reads: “ The Commission shall determine whether the plans proposed are justified by public necessity, * * * and whether such plans are just and equitable to the other municipalities and civil divisions of the State affected thereby and to the inhabitants thereof, particular consideration being given to their present and future necessities for sources of water * * *. The Commission shall * * * either approve such application, maps and plans as presented or with such modifications in the application, maps and plans submitted as it may determine to be necessary * * * to bring into cooperation all municipal corporations, or other civil divisions oh the State, which may be affected thereby; * * * or it may reject the application.”
The impounding and distribution of potable waters are rights held in trust by the State for the benefit of all its inhabitants. A State may not by grant or contract divest itself of control of rights and properties held for the benefit of all the people, for in so doing it would divest itself of an incident of sovereignty and of powers vital to the public welfare. (Matter of City of Rochester v. Holden, [408]*408224 N. Y. 386; Matter of City of Buffalo, 68 id. 167; Beer Co. v. Massachusetts, 97 U. S. 25; Cincinnati v. Louisville & Nashville R. R. Co., 223 id. 390; Pennsylvania Hospital v. Philadelphia, 245 id. 20; Georgia v. Chattanooga, 264 id. 472.) While the legislative grants to the city were unlimited and the city acting thereunder has expended millions of dollars, the city’s title is subject to the sovereign power to control the just and equitable distribution of potable waters. I am unable to adopt the statements in the 1931 decision of the Commission that the inhabitants of certain towns have rights superior to those of the city of Syracuse in the waters of the lake. The entire public has an equal right to potable water. The Commission is to exercise just and fair supervision to the end that supplies which are more available for use by one community are not absorbed by another.
The Commission has exercised its jurisdiction over the distribution of the waters of the lake and has assumed control over twelve million dollars of property of the city and fixed rates at which the water flowing through the city conduits may be sold. The “ Commission might, perhaps, have power to couple its consent with any direction which it would have independent power to make.” (People ex rel. Iroquois Gas Corp. v. Public Service Comm., 264 N. Y. 17, 19.) In Matter of Quinby v. Public Service Comm. (223 N. Y. 244, 263) the court was dealing with a statute which gave to the Public Service Commission the same power which the Legislature had to regulate rates of fare, but the opinion states: “ It is impossible to find a word in the statutes which discloses the legislative intent to deal with the matter of rates fixed by agreement with local authorities. As it has often been held in connections other than that of legislative power over them that such agreements are valid, it may well be inferred that the Legislature excluded them from consideration by failure to mention them and that it has made no attempt to turn them over to the Public Service Commission for revision.” “ The power of the * * * Commission is extensive, and the act creating the Commission should be construed in the same spirit in which it was enacted. Still, when a particular power is exercised by the Commission or is claimed for it, that power should have its basis in the language of the statute or should be necessarily implied therefrom.” (People ex rel. N. Y. R. Co. v. Public Service Commission, 223 N. Y. 373, 378.) Matter of City of Niagara Falls v. P. S. Commission (229 N. Y. 333) reaffirmed the doctrine of the Quinby case. “ The Commission can exercise only such powers as have been specially conferred by statute, together with those incidental powers which may be requisite to effectually carry out those actually granted.” (People ex rel. Municipal Gas Co. v. P. S. Commission, 224 N. Y. 156, 165.)
[409]*409The Commission was empowered to determine whether the 1931 plans of the city were just and equitable to the village of Jordan and to bring into co-operation that village and any other municipal corporations affected. (§ 523, supra.) No basis permitting the fixing of a rate is found in the language of the section; neither is such a power necessarily implied. The Commission would have power to direct that the village place its intake alongside that of the city, and if, as asserted in one of the orders, the right of the village in that particular lake was superior to the city, it might be permitted to draw the lake to a lower level than the city, and possibly, as an alternative, the village might have been permitted by agreement to use the mains of the city, the value of that user to be fixed by a forum having jurisdiction.
The city’s intake and the conduits, with the appurtenant real estate, is property devoted to a public use, which the Legislature has power to devote to another public use, and this power may be delegated to public officers or bodies, but such a delegation of power must be found in express terms in the statute or must necessarily arise by implication. (Matter of Boston & Albany R. R. Co., 53 N. Y. 574; Matter of City of Buffalo, supra; People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 id. 570; People v. Adirondack R. Co., 160 id. 225.) There is no language granting to the Commission power to exercise acts of ownership and dominion over the conduits and intake owned by the city. That attempt, like the fixing of rates, was ultra vires. The fact that the Legislature, by express language, granted power to fix rates in connection with the New York city water supply and omitted to do so in the State at large is significant. The greater city is continually reaching out for sources more than a hundred miles from its borders. The use of these waters takes away from numerous small as well as large municipalities their natural source of supply. To prevent numerous court proceedings in the great and populous area drained by New York, the Legislature authorized the special rate-fixing procedure. It used language intended to effectuate that purpose in that one region, but omitted it in other parts of the State.
The issues discussed are raised by this review of the 1936 order. The earlier order of September, 1931, indicated an intent by the Commission to assume unauthorized powers, but nothing overt interfering with the rights of the city was directed, and the order of March, 1935, contained a recital that the city had agreed and consented to the use of its mains by the village of Jordan.
I believe with my associate that had the Commission the power to fix the rate to be charged, the amount fixed was so inadequate ns to be arbitrary and capricious, but I do not agree that the-[410]*410Commission had jurisdiction to fix a rate and to require the city to permit the village to use its facilities.
I favor an annulment of the order under review.
Crapser, Schenck and Foster, JJ., concur; Heffernan, J., dissents in part in an opinion, and concurs for annulment on the sole ground that the matter should be remitted to the Water Power and Control Commission' for the purpose of fixing a proper rate.