(concurring):—The right of the plaintiffs to recover in this action depends upon the question whether the defendant corporation, through the agency of its Board of Water Commissioners, has the power to purchase the lands in question, and to pay for the same from the income, rents and receipts of the water works of said corporation in the hands of said board. The solution of this question depends upon the construction to be given to the act entitled, “ An Act to establish a Board of Water Commissioners for the City of Wilmington, and for other purposes,” passed April 18, 1883, being Chapter 205 of Vol. 17, Laws of Delaware, as amended.
In the construction of said act little aid is to be obtained from the history of the water works of the city, or from former legislation upon the subject.
Prior to the passage of said act the water works of the city had been under the control of the City Council, and said act transferred said control to the said board, but it is not material for the purposes of this case what may have been the former powers of the corporation, or of the City Council, in respect to the acquisition of land to be used in the supply and distribution of water.
Since said last act took effect the City Council has had no power whatever as to the water supply of the city, and the powers of the corporation in this respect, whatever they may be, can be exercised only through the agency of said board, and said board has no powers except those conferred upon it by said act.
The act creating the Board of Directors of the Street and Sewer Department, passed April 20,1887, Chapter 188 of 18 Laws of Delaware, expressly gave to the corporation, through the agency of said board, the rights and powers in respect to streets, sewers, etc., which were theretofore held and exercised by the Council of the city, but we do not find in the said act establishing the Board of *490Water Commissioners, or in any other act, a similar transfer of the rights and powers theretofore held and exercised by the Council in respect to the water supply of the city.
The contract sued upon, while made in the name of the corporation, the Mayor and Council of Wilmington, was so made by and through the agency of said Board of Water Commissioners, and, so far as appears, without the approval or consent of the City Council, or any other department or agency of the corporation. If the said board had the power to make said contract, the plaintiffs may recover thereon, otherwise they cannot, and the power of said board to make said contract, if it exist, must be found within said act of April 18, 1883, as amended.
By Section 1 of said act the city is authorized, through the agency of a Board of Water Commissioners, thereby created, “ to take, convey into and throughout said city the water of the Brandywine river, from any point on said river or other wholesome water, and . may also acquire and hold lands, real 'estate or personal property necessary for constructing aqueducts, laying pipe, constructing reservoirs, erecting buildings and machinery proper for the said works, and for purifying, conducting, storing and distributing such water, and to purchase take and hold lands and water-rights for supplying the citizens with good and wholesome water.”
Here we have conferred upon said city, by the agency of said board,, the fullest power to acquire, hold and use real and personal property for the supply of water to the citizens of said city, and if this power is not limited or qualified by any other provision of said act, or by some other act, the said board had full power to make, the contract sued upon.
It is'contended on behalf of the defendant that such limitations or qualifications are to be found in Sections 7., 12 and 14 of the said act.
Said Section 7 is as follows:
“ The said Board shall, with all despatch, prepare and resolve. *491upon a plan for the permanent water works best suited to the circumstances of the City of Wilmington, capable of affording an ample daily supply for the inhabitants of the city, and may acquire for the City of Wilmington, by contract or otherwise, as hereinafter provided, all such real estate as may be needed for the construction of such extended water works, the title of any real estate so purchased to be vested in the Mayor and Council of Wilmington.”
The material parts of said Section 12 are:
“ For the purpose of defraying all the cost of acquiring real estate for reservoirs, laying pipe, purchasing and establishing engines, constructing all the works contemplated by this act and purchasing water rights, the City of Wilmington, on the requisition of said Board of Water Commissioners, shall issue bonds ” * * * “ to an amount not exceeding one hundred and twenty thousand dollars ” * * * “ the said sum of one hundred and twenty thousand dollars shall be in addition to, and exclusive of, the sum of sixty thousand dollars authorized to be borrowed for the purchase of water rights for said city.”
The material parts of said Section 14 are:
“ The water rates shall be fixed by the said Board of Water Commissioners at prices that shall produce revenue sufficient, at least, to pay the interest on the water bonds and the running expenses of the water works,” * * * “ and the whole net income, rente and receipts of said water works, in excess of what may be necessary for completing, constructing, operating and repairing the water works, for extending the water pipes and for interest on water, bonds, shall be paid by said Board, at the end of its fiscal year, to the Council of the City of Wilmington.”
Section 7 imposed upon said Board the duty of preparing and executing, with all despatch, a plan for permanent water works, capable of affording an ample supply of water; but there is here no indication that when said duty had been performed, the powers of the Board in respect to the enlargement and extension, of said water *492works should cease, or that it could not thereafter make such changes and additions to said water works as the growing needs of the city might require.
The provision giving to said Board the power to acquire, as thereinafter provided, real estate for water works, evidently refers to the mode of payment for the same, but there is no reason to limit such payment to a particular fund, unless such limitation is found in some subsequent provision of the statute.
The manifest purpose of Section 12, was to authorize an increase of the city debt in excess of the limit imposed by the act of February 25, 1843, Chapter 488-9, Laws of Delaware, and the several amendments thereof, and to direct the purposes to which the money realized from the loan should be applied. It could not have been the purpose of said section to prohibit the application of the ordinary net income of the Department to the objects to which the proceeds of said loan were devoted, as this would not only prevent the expenditure of such income for "acquiring real estate for reservoirs,” but would also prevent its expenditure for laying pipe, purchasing and establishing engines, constructing the works contemplated by said act, and purchasing water rights.
It is unreasonable to suppose that the Legislature intended that after the money arising from said loan had been expended for the purposes specified in said Section 12, the said Board should have no power to expend any more money for the same purposes, however necessary said expenditure might be and however large might be the sum of money in their hands from water rents in excess of the amount required to pay the interest on the water bonds and the running expenses of the water works.
Under the provisions of Section 14, until the amounts necessary for completing, constructing, operating and repairing the water works, extending water pipes and paying the interest on the water bonds have-been deducted, there can be no excess of income ■ to be paid to the City Council. ■
*493The power given to said board by said Section to apply the income of the water works to completing and constructing the water works, carries with it the power to apply such income to the acquisition of such real estate as may be necessary for completing and constructing said water works.
By the case stated it is agreed that the said tract of land is intended to be used by said board for the construction of a new reservoir for said city; that there is in the hands of the board more than sufficient money for the payment of the amount claimed in this action, received by the board as income from the water works of the city; and that the purchase of said land is, in the judgment of the board, necessary for the purpose of supplying the citizens of said city with an ample daily supply of good and whole- ■ some water.
Whatever may be our impressions as to the expediency of the purchase at this time of so large a tract of land for water purposes, or as to the price proposed to be paid for the same, we have not before us the facts upon which could be formed a definite opinion on the subject. But in addition to this, if the Legislature has committed to said board the discretion as to the purchase of real estate for water purposes, and if, as is admitted, there has been a bona fide exercise of that discretion by said board, we have no right to interfere. The only question before us is as to the power of the board in the premises.
Finding no limitation or qualification of the ample power to purchase real estate necessary for constructing reservoirs, etc., conferred upon said board by said Section 1, and nothing to prevent the payment for such real estate out of the income of the water works in the hands of the board, I am of the opinion that judgment should be rendered in favor of the plaintiffs for the amount payable to them upon the execution and delivery of said contract.