owner of real estate in the village, which, with all other property situate there, is subject to taxation for general village purposes. Although the waterworks system was paid for out of the proceeds of the sale of bonds, yet the bonds some day will have to be paid, and it may be necessary, when they become due, to levy a general tax for their payment, in which case the relator's land will be taxed with the rest. It likewise appears that certain moneys have, from time to time, been actually appropriated from the general village fund and devoted to the payment of expenses of the waterworks system, of which money relator has paid his proportionate share, indirectly, if not directly. The liability of the relator for the expenses of the waterworks system, both establishment and upkeep, has been and will be the same as that of any other landowner in the village, and this in spite of the fact that relator has never yet had an opportunity of enjoying the benefits of the waterworks system. At first blush it may seem that a sum of money between $260 and $300 is rather large for the board of water commissioners to expend for the relator's sole benefit; but, when the facts are inquired into in detail, it seems it is not so far out of proportion. The system cost $20,000 for 150 to 200 residences and business places. The original expense was therefore about $125 each, on the average. When this system is extended beyond the relator's residence to his neighbor, the expense for extending to these two properties will not far exceed the sum of $150 for each. While equitable considerations alone are not sufficient to support this application, yet in the construction of this or any other statute the courts will not be blind to a construction which makes for fairness and common justice.

The defendants contend in their brief:

"The village, in availing itself of the permissive authority to construct and maintain a system of waterworks, conferred on all villages by the general act, is, in the exercise of such grant, acting in its municipal, public, and political character, exercising only a governmental function purely, and sustains no contractual relation with the inhabitants within its boundaries, and all governmental functions are solely discretionary. Such municipality, in the exercise of such function, is not liable in any manner for nonuser or a misuser of its powers."

I think it is incorrect to state, as an arbitrary rule for the determination of whether mandamus will lie, that the courts will not compel the performance of a governmental function, but may compel the performance of a nongovernmental or ministerial function. On the contrary, the distinction lies in this, whether it is discretionary with the party sought to be compelled to do or not to do the act, the performance of which is demanded. In other words, the court will not put its discretion in the place of the discretion of the defendants in mandamus proceedings. But where the Legislature has left no option with the defendant, but has specifically enjoined the performance of a particular duty, the court may, in their discretion compel the performance of that duty, whether it be a so-called "governmental function" or not. In Springfield Ins. Co. v. Keeseville, 148 N. Y. 46, 53, 42 N. E. 405, 406, 30 L. R. A. 660, 51 Am. St. Rep. 667, the court held that the supplying of water is a governmental function. But the

"The investiture of municipal corporations by the Legislature with administrative power may be of two kinds. It may confer powers and enjoin their performance on the corporation as a duty, or it may create new powers to be exercised as governmental adjuncts and make their assumption optional with the corporation. But where a duty specifically enjoined on a corporation as such has been wholly neglected by its agent, and an injury to an individual arises in consequence of the neglect, the corporation will be held responsible."

The case at bar is not one where it is sought to charge the defendants or the village with damages for the misuser or nonuser of a governmental function; but it is sought here to compel these defendants to perform a duty, be it governmental or not, which, it is claimed, the Legislature has specifically enjoined on these defendants to perform. Conceding that supplying water is a so-called governmental function (Springfield Ins. Co. v. Keeseville, supra), nevertheless the courts may, in their discretion, interfere by mandamus to compel the performance of a governmental function, where the Legislature has directed how that function shall be performed. If, therefore, section 224 of the village law requires the interpretation that it was the legislative intent to direct the times at which water mains or distributing pipes should be extended, although this be, in the abstract, a governmental function, then the rule I have just noticed applies, and mandamus may lie. The section provides that the water board shall keep the waterworks system in repair, "and may, from time to time, extend the mains or distributing pipes within the village, if the expense thereof, in any year, in a village of the fourth class, shall not exceed five hundred dollars." Then, after dealing with villages of other classes than the fourth, and with cases where the estimate of expense exceeds that amount, it provides:

"A board may, in lieu of extending the mains or distributing pipes, use the amount above specified or a part thereof, in improving, perfecting or bettering the existing system, such as mains, reservoir, pumping station, filter and land."

The term "may" in statutes has frequently been construed by the courts as mandatory. Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 101, 113, 9 Am. Dec. 274; Mayor v. Furze, 3 Hill, 612, 614; People v. Supervisors, 51 N. Y. 401, 406; Phelps v. Hawley, 52 N. Y. 23, 27; People ex rel. Conway v. Supervisors, 68 N. Y. 115; Hagadorn v. Raux, 72 N. Y. 583; People ex rel. Lockport v. Supervisors, 49 Hun, 32, 1 N. Y. Supp. 460. In Newburgh Turnpike Co. v. Miller, supra, the rule was stated as follows:

"But the principle to be deduced from the cases is that, whenever an act to be done under a statute is to be done by a public officer and concerns the public interest, or the rights of third persons, then it becomes the duty of the officer to do it."

In Mayor v. Furze, supra, the court said:

"This statute is one of public concern, relating exclusively to the public welfare; and, though permissive merely in its terms, it must be regarded, upon well-settled rules of construction, as imperative and peremptory on the corporation. When the public interest calls for the execution of a power that is conferred, the defendants are not at liberty arbitrarily to withhold it. The exercise of the power becomes then a duty which the corporation is bound to fulfill. The inferences deducible from the various cases on this subject seem to be that, where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the right of third

persons, the execution of the power may be insisted upon as a duty, though the phraseology of the statute be permissive only, and not mandatory."

In People v. Supervisors, supra, the court said:

"The words 'authorized and empowered' are usually words of permission merely, and generally have that sense when used in contracts and private affairs; but when used in statutes they are frequently mandatory and imperative. In Dwarris, p. 604, the rule is laid down, as follows: 'Words of permission shall in certain cases be obligatory. Where a statute directs the doing of a thing for the sake of justice, the word "may" means the same thing as the word "shall."'"

Considering the injustice a water board might perpetrate on a bare minority of property holders in a village, considering that all property in the village is liable for the expense of the construction and maintenance of the system, and considering that the cost of extensions is not usually violently out of proportion to the pro rata cost of original installation, I believe that the true construction of the statute is that, when a village avails itself of the privilege to establish a waterworks system, it must, as long as any property owner asks it, extend the mains of the waterworks system to supply such unsupplied properties, provided, however, that in villages of the fourth class, as Forestville is, such extensions can be made in any one year at a cost not to exceed $500. It was the intent of the Legislature to make this kind of an extension compulsory on the village, and if any village establishes a waterworks system it may not rest when it has supplied a chosen few. This view is fortified with other provisions of the statute. The amount of money to be expended for such extensions, unless a special election authorizes more, is limited to $500 in villages of the fourth class, $1,000 in those of the third, $1,500 in those of the second, and $2,000 in those of the first class. Here is found a legislative rule which, in effect, proportions the expense of extensions generally according to the original cost of the installation of the system; for it must be, from the nature of things, that the initial cost of a system in a village of the first class would be more than that in a village of the second, and in a village of the second more than that in a village of the third, and so on down. I think that the word "may," used in the last sentence of the section, where it is provided that "a board may, in lieu of extending the mains or distributing pipes, use the amount above specified * * in improving, bettering or perfecting the existing system, is permissive, and the fact that a permissive "may" is found in this sentence makes for the interpretation of the section as a whole which I have adopted. The fact that the section provides that "a board may, in lieu of extending the mains," improve the existing system, seems to indicate that the board is bound to make extensions, always provided, of course, they are demanded. The section amply protects the village and its property owners against reckless extensions; for, in villages of the fourth class, extensions costing more than $500 cannot be made except "when authorized by a proposition adopted at a special election." This interpretation of the section does not deprive the board of water commissioners of all discretion, for it still lies with the board to determine who shall be the recipient of extensions, where property own

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respective properties; and it still lies with the board to determine from what point the extension shall be made, where the new pipe shall be laid, what size pipe shall be used, etc. When such conditions appear, the court may do no more than direct that extensions be made, leaving it to the discretion of the board to determine in what direction and how they shall be made. In the case at bar, however, there are but four unsupplied residences in the village. Of these the relator owns one, and he demands the extension of his premises. It affirmatively appears by the affidavit read for the defendants that his neighbor, Kramer, another of the four, does not demand extension to his premises, and the defendants have not made it appear that either of the other two property owners have been or are demanding extension in their direction. It was also stated on the argument that the relator was the only property owner demanding an extension.

My own research has disclosed a sentence by Farnham, in the first volume of his Waters & Water Rights, at page 689, as follows:

"Even when authority has been obtained from the Legislature to procure a water supply, it is a mere privilege, and a municipality cannot be compelled to act upon it, and therefore no citizen has a right of action for failure of the municipality to furnish the water or extend the mains so as to supply his property."

If Mr. Farnham had omitted the last clause from this sentence, his statement of the law would not have been at fault, for it is doubtless true that the mere obtaining by a municipality of authority to procure a water supply does not vest in a citizen a right of action to compel the installation of a waterworks system; but this is a long way from saying that, where a waterworks system has been actually established, pursuant to authority obtained from the Legislature, a citizen has no right of action for failure of the municipality to extend its mains so as to supply his property. After all is said, the determination of the question here, or of a similar question, must always depend upon the construction of the statute, which authorizes, permits, or enjoins the extension of mains. We have such a statute applying to this case.

The defendants likewise contend that, inasmuch as they have no funds available for the purpose of this extension, the court will not compel them to make expenditures, even if it be proper to compel them to act in a specific way. Although the water board has no power to raise money by taxation, yet the board of village trustees has that power, and is obliged to raise money to pay the expenses of the village, including water supply, and including the proper and legitimate disbursements and expenses of the water board. Village Law (Laws 1897, pp. 400, 404, 437, c. 414) §§ 101, 110, 235. The important provisions of these sections are as follows:

(2) The water

"Sec. 101. Village funds are classified as follows: fund, composed of all moneys received from taxation or otherwise." "Sec. 110. * * The board of trustees shall levy the tax for the current fiscal year, which must include the following items: * * (2) The total amount of the indebtedness of the village lawfully contracted, which will become due and payable during the current fiscal year. (4) Such additional sums as shall be deemed necessary to meet all other expenditures of the village for the current fiscal year."

"Sec. 235. Between the first and fourth day of March in each year the board of water commissioners shall file with the village clerk a statement of the

following facts: (3) The outstanding indebtedness of the department, either bonded or otherwise, separately stated. (4) The estimated deficiency in the amount necessary to pay principal or interest, or the expenses of the department during the next fiscal year. * * * (5) The improvements and extensions made during such preceding year and the general condition of the waterworks."

From the above section it appears that the village trustees must include in their annual tax levy such sums of money as the water board requires for its lawful indebtedness. If, therefore, acting under this section, these defendants made the extension asked for by the relator, and had insufficient rents to pay for it, such extension would have to be paid for by general tax. It is hardly necessary to cite cases holding that, if the village trustees should refuse to include such item in the tax levy, mandamus would lie to compel them to do so.

My conclusion is that, in the exercise of its discretion, the court should direct the issuance of a peremptory writ as asked, and that the defendants should pay the relator $30 costs of these proceedings.

(64 Misc. Rep. 185.)

MORRELL v. SKENE.

(Supreme Court, Special Term, New York County. July, 1909.) HIGHWAYS (§ 165*)-CONTROL-STATE ENGINEER.

Motor Vehicle Law (Laws 1904, p. 1314, c. 538) § 3, subd. 1, limits the speed, as therein prescribed, of motor vehicles; subdivision 2 provides that upon approaching a bridge, etc., a person operating a motor vehicle shall have it under control and shall not operate it at a greater speed than that fixed; and subdivision 6 authorizes the local authorities, notwithstanding the other provisions of the section, to set aside for a given time a public highway for speed tests to be conducted under proper restrictions for the safety of the public. Laws 1898, p. 221, c. 115, § 12, as amended by Laws 1907, p. 1666, c. 717, § 11, empowers the state engineer to make necessary rules for the protection of any highway, and punishes disobedience thereto by a fine to be recovered by the engineer. The state engineer promulgated rules, one of which was taken substantially from section 3, subd. 1, another from section 3, subd. 2, and a third, which required that, where the local authorities' consent had been obtained and the speed law suspended, there should be deposited with the state engineer $200 a mile for each mile of the highway to be raced over, to be used in repairing damage done, and which forbade any race until such deposit had been made. Held, that the power to grant or withhold the necessary consent to the use of a highway for a speed test or race is given to the local authorities alone, and there is no authority for the promulgation of such rules by the state engineer, and that, permission from the local authorities having been obtained, the state engineer could not forbid a race unless such deposit was made.

[Ed. Note. For other cases, see Highways, Cent. Dig. § 457; Dec. Dig. § 165.*]

Action by Robert L. Morrell against Frederick Skene. Demurrer to complaint sustained, with leave to amend.

Job E. Hedges, for plaintiff.

Edward R. O'Malley, Atty. Gen., for defendant.

TRUAX, J. The complainant sets forth a cause of action for money had and received. The defendant, in his first answer, admits all