This is a proceeding instituted by petitioner, City of Syracuse, to review by certiorari, pursuant to article 78 of the Civil Practice Act, the decision of respondent the Water Power and Control Commission, in Water Supply Application No. 1049, permitting the village of Jordan, in the town of Elbridge, Onondaga county, to draw a supply of water from the conduits of the city and fixing the price which the village should pay therefor.
Two questions are presented for decision: The jurisdiction of the Commission to make the determination and the reasonableness of the rate which it fixed. To determine whether the Commission had jurisdiction in the present application recourse must be had to the statutes dealing with the Syracuse water system and the Water Power and Control Commission.
By chapter 532 of the Laws of 1888 the Legislature authorized the city of Syracuse to determine a proper source of water supply for public, mechanical and domestic purposes. Skaneateles lake, located about eighteen miles from the city, was selected as the source of supply. In 1889, by chapter 291 of the Laws of that year, the Legislature authorized the creation of the “ Syracuse Water Board ” and conferred authority upon it to acquire, construct, control and operate a system of water works to furnish the city and its inhabitants with water from Skaneateles lake. The city was empowered to issue its bonds for the installation of the water system and to fix the water rates to be charged to consumers. It would serve no useful purpose to review all the subsequent legislation dealing with the Syracuse water system. Suffice it to say that by virtue of various legislative acts the city constructed a water supply plant, including conduits from Skaneateles lake, to supply its inhabitants water from that lake at a cost of approximately $12,000,000.
By chapter 723 of the Laws of 1905 the Legislature created the State Water Supply Commission, from which respondent derives its authority under the present provisions of article XI of the Conservation Law.
The act of 1905 provided, in substance, that no municipal corporation could take land for new or additional sources of water *411supply until the proposed plans and maps had been submitted to and had been approved by the Commission. The matters to be considered by the Commission in passing upon an application were whether the plans were justified by public necessity and whether they were just and equitable to the other municipalities and civil divisions of the State affected thereby.
It is quite clear that after the enactment of this statute Syracuse was subject to the jurisdiction of the Commission.
By chapter 631 of the Laws of 1906 the Legislature again dealt with the Syracuse water supply. By this act the city was authorized to “ acquire, construct, extend, maintain, control and operate a complete system of water-works to furnish said city and its inhabitants with water from Skaneateles lake.”
Counsel for the city asserts that by the language quoted above the Legislature has given the municipality paramount regulation and control of its water supply. We think this contention is not well founded. There is no inconsistency between the grant of these powers to the city and a holding that their exercise is subject to the requirement that the Commission’s consent should be obtained in order to acquire lands for a new or additional source of water supply. There is nothing in the 1906 statute which exempts Syracuse from the provisions of the 1905 statute which enunciated a State-wide rule. It seems to us that it is both logical and reasonable to conclude that after the enactment of the 1906 statute the city still had to apply to the Commission if it needed land for a new or additional source of water supply. Unquestionably, under the 1905 statute, the city could take additional water from Skaneateles lake without the consent of the Commission.
However, in 1911 (Laws of 1911, chap. 647) the Legislature enacted the Conservation Law, and the 1905 act at the same time became article 9 thereof, providing: “ No municipal corporation * * * shall * * * have any power to acquire, or to take a water supply or an additional water supply, or to take or condemn lands for any new or additional sources of water supply * * * until the Commission shall have approved * *
Thus the limitations upon municipalities were considerably extended. The Commission’s consent was necessary not only to take lands for new sources of supply but also to take a new or additional supply itself.
This construction of the 1911 act is not weakened by the fact that in 1906 the Legislature had authorized the city to take from Skaneateles lake as much water as was needed for its people. The legal effect of such a grant merely operated as a license to the city to take water from the lake and conduct it to the city subject to the *412paramount right of the State to resume it at any time. Not only has the State the power but it its duty to control and conserve its water resources for the benefit of the public, (Sweet v. City of Syracuse, 129 N. Y. 316; Matter of County of Suffolk v. Water Power & Control Commission, 245 App. Div. 62; modfd. and affd., 269 N. Y. 158.) -
Evidently the city acquiesced in this construction of the statutes, because in 1931 it applied to the Commission in Water Supply Application No. 609 for permission to take an additional supply of water from the lake and to make certain constructions. The Commission approved the application. In its decision, however, the Commission reserved the right to determine the amount of water that other sections of the State might take from Skaneateles lake; declared the right of several neighboring towns, including the village of Jordan, to be supplied from Skaneateles lake superior to the rights of Syracuse; and determined that any municipality in the towns named might apply to the Commission for permission to tap into the lines and conduits of the city.
The city obtained an order of certiorari to r.eview this decision and, significantly enough, later consented to its dismissal. The city had the right, of course, to reject the Commission’s decision by not accepting the benefits it bestowed. However, it did neither. It did not review and it did not reject. Instead it availed itself of the beneficial provisions of the decision. It is now too late to question the authority for, or the propriety of, the conditions imposed in Application No. 609.
Even if it be assumed that the city is not foreclosed to question that determination we are convinced that section 523 of the Conservation Law furnishes ample authority to justify the conditions which the Commission imposed. The pertinent provisions of that section are: “ The Commission shall determine whether the 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 supply * * *. The Commission shall within ninety days after the final hearing and with all convenient speed 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 protect * * * the water supply and interests of any other municipal corporation, or other civil division of the State, or the inhabitants thereof * * * or to bring into cooperation all municipal corporations, or other civil divisions of the State, which may be affected thereby * *
*413For some years, by contract with the city, the village of Elbridge has been obtaining water from the conduits of the city of Syracuse. That village taps into the city conduits about six miles from Skaneateles gatehouse.
Pursuant to the reservations and provisions of the Commission’s decision in Application No. 609 the village of Jordan on January 29, 1935, applied to the Commission for permission to obtain a supply of water from the supply mains of the city of Syracuse through the mains of the village of Elbridge. That application was approved. That decision was not reviewed and the time in which to do so has now expired. Later the village sought the Commission’s approval of the works which it constructed and for the issuance of a permit for operation. That application was likewise granted. The village and the city endeavored without success to agree upon the terms of a contract for water. The village then applied to the Commission to fix the quantity of water and the price to be paid. On August 20, 1936, the Commission made a decision requiring the city to permit the village to draw water from the city conduits in amounts not in excess of 69,000,000 gallons in any one calendar year, and directing the village to pay to the city for water drawn at the rate of two cents per hundred cubic feet.
For the reasons already stated we think the Commission has jurisdiction to make the determination. The quantity of water which the village is permitted to withdraw does not appear to us to be excessive in view of the proof on the subject.
We think the city is justly aggrieved, however, by that portion of the decision fixing the rate to be paid by the village. So far as the record discloses there is no proof whatever to warrant a finding that the rate fixed by the Commission is reasonable.
The formula which the Commission employed in determining the rate in the instant case is essentially the one which the Legislature formulated for the city of New York. Thera is no evidence in this record as to New York city water, or its rates or the methods adopted in the fixation of such rates.
The consumers of water in the city are charged at the rate of twelve cents per one hundred cubic feet. The city is authorized to sell surplus water not required for its needs to any water district in the county of Onondaga at reasonable rates. The rate paid by outsiders is eighteen cents per one hundred cubic feet. The villages of Elbridge and Nedrow are paying at the eighteen-cent rate under contracts voluntarily made. The Legislature has authorized the city to charge almshouses, schools and hospitals the same rate. The evidence shows that the estimated cost to the village of Jordan to provide its own system of conveying water from Skaneateles lake to the village would be approximately $237,000, and if the village *414built and maintained its own intake and conduit line that the service cost of water on a basis of 100,000 gallons of water per day would amount to approximately twenty-seven cents per one hundred cubic feet.
By the Commission’s decision the city is only permitted to receive a rate based on rental on the cost of a small portion of a very large circulatory system. The decision of the Commission fixing the rate is clearly arbitrary and unreasonable. It is without support in the evidence.
But, respondent argues, we may not overrule the determination on that ground and presses upon us Matter of Niagara Falls Power Co. v. Water Power & Control Commission (267 N. Y. 265) in support of its contention. No longer can there be any doubt as to our authority to examine the evidence in order to ascertain whether or not it supports the conclusion of the Commission. (Matter of Ballston Town Highway 251 App. Div. 642; affd., 281 N. Y. 322.) Unquestionably we may pass upon the evidence. (Civ. Prac. Act, § 1296, subds. 6, 7.)
The decision should, therefore, be annulled on the law and facts, with fifty dollars costs and disbursements to petitioner, and the matter remitted to the Commission for the purpose of fixing a proper rate.
Decision annulled on the law and facts, with fifty dollars costs to the petitioner, and the matter remitted to the Water Power and Control Commission for action in accordance with the opinion.