The opinion of the court was delivered by
Whelpley, J.
The plaintiffs have brought an action of covenant against the defendants, the corporation of the city of Hudson, upon a sealed agreement., dated September 12th, 1857, to which the plaintiffs are parties of the first part, and the water commissioners of the city of Hudson of the second part.
The agreement is sealed with the seals of the plaintiffs and that of the water commissioners, and subscribed by [366]*366the plaintiffs, and Thomas Andrews, president of the board of water commissioners.
In the first pount of their declaration, the plaintiffs have counted upon the agreement, as made by the defendants by the water commissioners of the city of Hudson, and sealed with the seal of the water commissioners of the city of Hudson : all the covenants are between the plaintiffs and. the water commissioners; its stipulations are for building works to distribute water into the city of Hudson, and to pay for them according to the terms of the agreement. The action is for work done in performance of the agreement.
The other count, so far as the demurrers are concerned, is substantially the same.
A general demurrer has been filed to both counts. Two reasons have been assigned in support of the demurrer.
First. That an action of covenant will not lie upon this agreement against the defendants, the city corporation, because it is not their deed, nor are they parties to it.
The plaintiffs’ counsel frankly admitted that at common law the action will not lie. This is well settled, both upon principle and authority. Angell & Ames on Corp., c. 9, § 2; Randall v. Van Vechten, 19 Johns. 60; Dubois v. Delaware and. Hudson Canal Co., 4 Wend. 285.
It is claimed that the common law rule is altered by statute, by the acts regulating the proceedings of the water commissioners.
A careful examination of the several legislative provivisions on this subject is necessary to a solution of this question.
The city was incorporated by an act passed April ll'th, 1855. Acts of 1855,.p. 765.
By the 63d section of this act, the mayor and common council for the time being are vested with all the powers, rights, and privileges, and subject to all the restrictions, obligations, duties, and liabilities of the mayor and commoxi .council of Jersey City, by virtue of an act to author[367]*367izo the construction of' works for supplying Jersey City with water.
By an act passed March 20th, 1857, {Ads of 1857, p. 604,) certain persons, together with the president of the board of aldermen for the time being, are constituted the board of water commissioners of the city of Hudson, and empowered to contract with the water commissioners of Jersey City for a supply of water, and to make such contracts as may be deemed expedient for the purchase of materials and lands, the doing of work, the employment of engineers, clerks, and agents to carry out the purposes of the act. They are also authorized to issue Hudson City water scrip, in the name of the city, not exceeding sixty thousand dollars; to be in the name of the city, and under the corporate seal. All the lands and goods a tul chattels within the city limits are made liable for the payment of the scrip. The mayor and common council are authorized to raise, by tax, money to pay the principal and interest of the scrip. All such parts of the act incorporating the city as are inconsistent with this act are repealed.
That this contract is within the powers of the water commissioners, as defined by the act of 1852, p. 419, is not denied. The second section of that act declares that all the powers granted by it shall be exercised exclusively by and through a board of water commissioners; the ninth, that contracts for the performance of any work and labor shall be made with the water commissioners; the nineteenth, that all contracts and engagements, acts and deeds, of the said commissioners, within the scope of their authority, shall be obligatory upon, and be in law considered as done by the mayor and common council of Jersey City (Hudson City); and the said mayor and common council, and all real estate within Jersey City (Hudson City), and all goods and chattels within said city, belonging to residents thereof, shall bo liable for the payment of the principal and interest that may become due [368]*368on the scrip or bonds to be issued. Section 20th declares that the said commissioners may prosecute or defend any action or process, at law or in equity, by the name of “th!e Water Commissioners of Jersey City” (Hudson City), against any person or persons, for money due for the use of the water, for breach of any contract, express or implied, touching the execution or management of the works or the distribution of the .water, or of any promise or contract made to or with them ; and also for any injury or trespass, or nuisance- done or suffered to the water, watercourses, pipes, machinery, or any apparatus belonging to or connected with any part -of the works, or for any improper use or waste of the water; and any vacancy, or the filling of any vacancy, in the board of commissioners, either before or after any cause of action arises or suit is commenced, shall not change the right of said commissioners to commence or maintain such action or process at law or in equity, but in all such cases they shall be considered, from the time of the organization of the board, .as a corporarion.
These provisions of the act .of 1852 are to be considered as •adopted mutatis mutandis in that of 1855, incorporating Hudson City, and are still in force, unless inconsistent with the act of 1857/which repeals so much of the act of 1852 as is thus inconsistent.
After a careful consideration, I have not perceived that the act of 1857 in any wise changes the act of 1852, so as to affect the question now before the court. Both acts have one object—clearly apparent on their face—to place the whole subject' of supplying the city" with water, and all operations • and contracts for the building, management, and control ,of the necessary works, under the exclusive control of a' body specially created for the purpose, distinct from the, regular officers and agents of the corporation ; to- invest that body with all the powers necessary for independent action; to furnish them with the necessary funds,, by the power given to issue scrip to the [369]*369amount of sixty thousand dollars in the name of the city, under its corporate seal, signed by the mayor, and countersigned by the commissioners.
The bonds are to be in the name of the city, for the purpose of giving them the credit due to a corporate obligation. All other contracts are to be in the name of the commissioners, with the single further exception of deeds for land, which are to be to the city, by its corporate name.
All moneys are to be disbursed by the commissioners directly, and not through the intervention of the city authorities. They are to have their own treasury, separate from that of the city ; into that the revenues of the work are to be paid, to be applied as the act directs.
The law requires of them an account of their receipts and expenditures twice in every year, at stated times, to be rendered to the common council.
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The opinion of the court was delivered by
Whelpley, J.
The plaintiffs have brought an action of covenant against the defendants, the corporation of the city of Hudson, upon a sealed agreement., dated September 12th, 1857, to which the plaintiffs are parties of the first part, and the water commissioners of the city of Hudson of the second part.
The agreement is sealed with the seals of the plaintiffs and that of the water commissioners, and subscribed by [366]*366the plaintiffs, and Thomas Andrews, president of the board of water commissioners.
In the first pount of their declaration, the plaintiffs have counted upon the agreement, as made by the defendants by the water commissioners of the city of Hudson, and sealed with the seal of the water commissioners of the city of Hudson : all the covenants are between the plaintiffs and. the water commissioners; its stipulations are for building works to distribute water into the city of Hudson, and to pay for them according to the terms of the agreement. The action is for work done in performance of the agreement.
The other count, so far as the demurrers are concerned, is substantially the same.
A general demurrer has been filed to both counts. Two reasons have been assigned in support of the demurrer.
First. That an action of covenant will not lie upon this agreement against the defendants, the city corporation, because it is not their deed, nor are they parties to it.
The plaintiffs’ counsel frankly admitted that at common law the action will not lie. This is well settled, both upon principle and authority. Angell & Ames on Corp., c. 9, § 2; Randall v. Van Vechten, 19 Johns. 60; Dubois v. Delaware and. Hudson Canal Co., 4 Wend. 285.
It is claimed that the common law rule is altered by statute, by the acts regulating the proceedings of the water commissioners.
A careful examination of the several legislative provivisions on this subject is necessary to a solution of this question.
The city was incorporated by an act passed April ll'th, 1855. Acts of 1855,.p. 765.
By the 63d section of this act, the mayor and common council for the time being are vested with all the powers, rights, and privileges, and subject to all the restrictions, obligations, duties, and liabilities of the mayor and commoxi .council of Jersey City, by virtue of an act to author[367]*367izo the construction of' works for supplying Jersey City with water.
By an act passed March 20th, 1857, {Ads of 1857, p. 604,) certain persons, together with the president of the board of aldermen for the time being, are constituted the board of water commissioners of the city of Hudson, and empowered to contract with the water commissioners of Jersey City for a supply of water, and to make such contracts as may be deemed expedient for the purchase of materials and lands, the doing of work, the employment of engineers, clerks, and agents to carry out the purposes of the act. They are also authorized to issue Hudson City water scrip, in the name of the city, not exceeding sixty thousand dollars; to be in the name of the city, and under the corporate seal. All the lands and goods a tul chattels within the city limits are made liable for the payment of the scrip. The mayor and common council are authorized to raise, by tax, money to pay the principal and interest of the scrip. All such parts of the act incorporating the city as are inconsistent with this act are repealed.
That this contract is within the powers of the water commissioners, as defined by the act of 1852, p. 419, is not denied. The second section of that act declares that all the powers granted by it shall be exercised exclusively by and through a board of water commissioners; the ninth, that contracts for the performance of any work and labor shall be made with the water commissioners; the nineteenth, that all contracts and engagements, acts and deeds, of the said commissioners, within the scope of their authority, shall be obligatory upon, and be in law considered as done by the mayor and common council of Jersey City (Hudson City); and the said mayor and common council, and all real estate within Jersey City (Hudson City), and all goods and chattels within said city, belonging to residents thereof, shall bo liable for the payment of the principal and interest that may become due [368]*368on the scrip or bonds to be issued. Section 20th declares that the said commissioners may prosecute or defend any action or process, at law or in equity, by the name of “th!e Water Commissioners of Jersey City” (Hudson City), against any person or persons, for money due for the use of the water, for breach of any contract, express or implied, touching the execution or management of the works or the distribution of the .water, or of any promise or contract made to or with them ; and also for any injury or trespass, or nuisance- done or suffered to the water, watercourses, pipes, machinery, or any apparatus belonging to or connected with any part -of the works, or for any improper use or waste of the water; and any vacancy, or the filling of any vacancy, in the board of commissioners, either before or after any cause of action arises or suit is commenced, shall not change the right of said commissioners to commence or maintain such action or process at law or in equity, but in all such cases they shall be considered, from the time of the organization of the board, .as a corporarion.
These provisions of the act .of 1852 are to be considered as •adopted mutatis mutandis in that of 1855, incorporating Hudson City, and are still in force, unless inconsistent with the act of 1857/which repeals so much of the act of 1852 as is thus inconsistent.
After a careful consideration, I have not perceived that the act of 1857 in any wise changes the act of 1852, so as to affect the question now before the court. Both acts have one object—clearly apparent on their face—to place the whole subject' of supplying the city" with water, and all operations • and contracts for the building, management, and control ,of the necessary works, under the exclusive control of a' body specially created for the purpose, distinct from the, regular officers and agents of the corporation ; to- invest that body with all the powers necessary for independent action; to furnish them with the necessary funds,, by the power given to issue scrip to the [369]*369amount of sixty thousand dollars in the name of the city, under its corporate seal, signed by the mayor, and countersigned by the commissioners.
The bonds are to be in the name of the city, for the purpose of giving them the credit due to a corporate obligation. All other contracts are to be in the name of the commissioners, with the single further exception of deeds for land, which are to be to the city, by its corporate name.
All moneys are to be disbursed by the commissioners directly, and not through the intervention of the city authorities. They are to have their own treasury, separate from that of the city ; into that the revenues of the work are to be paid, to be applied as the act directs.
The law requires of them an account of their receipts and expenditures twice in every year, at stated times, to be rendered to the common council.
They are, by express words, a corporation, with power to sue and be sued for breach of any contract, express or implied, touching the execution or management of the works, or the distribution of the water, or of any promise or contract made to or with them.
iTo authority is anywhere given by the act to sue the city upon any contract made by the commissioners or with them; if if exists at all it must be by implication and not by expression.
The plaintiffs seek to infer a right of action against the city from the declaration of the 19th section of the act of 1852, that all contracts and engagements of the said commissioners, within the scope of their duty or authority, shall be obligatory upon, and be in law considered as done by the mayor and common council of Jersey City (Hudson City.)
The argument is in this form: That the agreement declared on is obligatory upon, and considered as done by the mayor and common council of Hudson City; that if [370]*370this agreement had been mad'e by the city, the city might have been sued upon it.
This is a non sequitur. Examine the argument. Considered as done by the mayor and common council, &o. In what sense? For what purpose? Was it to designate the party to the record—to name the defendant in actions upon the contract? That was done very clearly in the next section, devoted entirely to that question. That section enumerates with absolute precision the different causes of action upon which the water commissioners may sue and be sued in their corporate capacity.
The act having provided a mode in which actions may be brought, that is a responsible defendant, for causes of action arising out of the execution and management of the work committed to the commissioners, is it fair, from the words of a section, which may well have a totally different office and meaning, to infer a legislative design entirely and radically to change the common law prescribing the forms of action and the parties?
The plaintiffs have entirely misconceived the object and scope of the 19th section. That was not to prescribe a new form of action upon a contract under seal, or modify the rules applicable to one already existing; it was to enable the commissioners to pledge the faith of the city for the fulfillment of every contract made by them within the scope of their authority, and this, although the contract was in the name of the commissioners, not in that of the city.
The remainder of the section declares all the property in the city liable for the payment of the bonds; the property of every resident is made liable, but how? in what manner? Does this by implication authorize a suit against any resident upon the bonds? If the argument of plaintiffs’counsel be correct, that the city is liable, therefore the suit must bo against the city, it follows that to reach the property of residents the suit must be against them.
Enough has been said to show that a suit on a sealed [371]*371contract executed by the water commissioners must be against them as a corporation. On a judgment against them, the city property, either directly or indirectly, would be bound as well as by a judgment against the city corporation.
A judgment against the water commissioners upon a contract within the scope of their authority may fairly be considered the contract and engagement, act and deed, of the mayor and common council, and therefore obligatory upon the city. This interpretation harmonizes the two sections, gives to each its appropriate effect, and avoids the necessity of a construction giving a double right of action both against the city and the commissioners. It enables the creditor to reach the city and its property.
Giving the defence of all actions upon water contracts to the commissioners, by making them defendants, carries out the whole policy of the act. They have all the information necessary to enable them to defend such actions discreetly and with effect. The experience of some of our large cities has demonstrated the necessity of looking to the fitness and prudence of those on whom is devolved the defence of actions involving the property and credit of the city.
There must be judgment for the defendants on the demurrer.