(dissenting):
The case stated sets out substantially that the Board of Water *494Commissioners of the City of Wilmington have agreed, in a paper writing dated November 20, 1901, to purchase of Thomas T. Weldin and wife 88 acres of land in Brandywine hundred, to be used by the said Board of Water Commissioners “for the construction of a new reservoir for the City of Wilmington.” That the purchase of the said land is in the judgment of the said hoard of Water Commissioners necessary for the purpose of supplying the citizens of the city with an ample supply of good and wholesome water.
The consideration for the said land is $42,000; $10,000 of which was to be paid on the date of the above agreement, November 20, 1901; the remaining $32,000 on or before March 25th, 1902. That on November 20; 1901, the said board had in hand upwards of $10,000, received by them as income, rents and receipts from the water works of the city.
The question submitted to the Court is, whether “the said' Board of Water Commissioners had power to purchase the said land1 for the purpose aforesaid, and to pay therefor from the income, receipts and rents of the water works” in the hands of the said board.
The three commissioners having decided in their own minds that 88 acres of land in Brandywine Hundred are necessary for a new reservoir, and having resolved to purchase the same, the question baldly is, have they the right to make such purchase and pay for it out of the income of the city water works.
The question is clean-cut, and its solution must be had within the four corners of the act of' April, 1883, creating the Board of Water Commissioners ; which act, it was conceded in the argument on both sidtes, is the source and measure of all the powers of the Board!
No learned display of water-works history; no application of judicial pigment can aid in reaching a correct conclusion; however interesting and soothing they may be as matters of history and comity.
*495Let us group together the express provisions of the statute relating to the purchase and payment of land.
Section 1 provides that the Board “ 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 said works, and for purifying, conducting, storing and distributing such water, and to purchase and take and hold lands and water rights for supplying the citizens with good and wholesome water.”
“ Section 7. The said Board shall, with all dispatch, prepare and resolve upon 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.”
“Section 12. For the purpose of defraying all the costs 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 was authorized to borrow money on bonds to the extent of $120,000, in addition to $60,000 on hand under a former act.
While Section 12 is manifestly a limitation upon the debt of the city, it is also equally a mode of paying for all lands for water works, and the only mode expressed in the act.
Compactly, then, Section 1 clothes the Board of Water Commissioners generally with power to acquire, purchase, take and hold lands and real estate for water works.
Section 7 provides that “ all such real estate as may be needed for the construction of such extended water works, may be acquired *496by contract or otherwise, as hereinafter provided.” It is therein-after provided as follows:
“Section 12. For the purpose of defraying all the costs of acquiring real estate for reservoirs,” etc., bonds shall issue.
These being the only express provisions of the statute relating to the acquisition of land, the power would seem not to be in the Board to acquire land in any other manner than as so expressed; unless there is within the terms of the statute some other implied mode.
The manner of payment when expressed in the power to acquire land is an indispensable element of such power; and the power cannot be exercised without complying with such manner of payment.
It is broadly claimed by the plaintiff that the power to purchase land implies the power to pay for it. As a naked proposition this is true; but when the mode of acquiring and the mode of paying therefor are specifically set out in the instrument giving the power that mode must be followed, as it limits the right to purchase.
Thus it will be seen that the power to. pay for the land out of the income receipts and rents of the water works is nowhere contained in the express terms of the statute, but on the contrary is negatived by them.
But if there was a doubt upon this point, under the express provisions of the statute heretofore cited, the disposition of such income by the express terms of the act itself would be conclusive.
It is provided by Section 14 as follows :
“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 water bonds and the ramming expenses of the water works; provided, that in no case shall a dwelling house, having one hydrant in the yard or kitchen, or both, be charged more than five dollars, and the whole net income, rents and receipts of said water works in excess of what may be necessary for com*497pleting, 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,” for the payment of the bonded debt of the city.
Here is an express designation of all the purposes for which the income, rents and receipts of the water works may be used, viz:
First, for “ completing, constructing, operating and repairing the water works.”
Second, “ for extending the water pipes.”
Third, “ for interest on water bonds.” ■
Fourth, for payment of city bonded debt.
The words “completing, constructing, operating and repairing the water works” manifestly refer to the superstructure; that which is placed in or upon the land; that is, the building or plant; the water works proper, as distinguished in Section 1 of the act, and for the completion and construction of which the Board is authorized to acquire and hold land.
It would seem to be juggling with words to hold that the power to buy land and to pay for it, can be reasonably extracted or implied from any one of these express purposes. They are fitly grouped together and designated earlier in the Section as “running expenses of the water works.”
We see, therefore, that the mode of acquiring land and paying for it is not only expressly provided for in the sections of the act heretofore quoted; but that Section 14 expressly excludes such purchase from the purposes for which the income of the water works may be used.
If the power so to buy and pay for the land is not vested *498in the Board under the statute, no inconvenience resulting therefrom may confer such power.
But no embarrassment in fact appears, for Section 14 seems to remove all the restrictions of Section 12, and to confer upon the Board all needed powers other than that to purchase and pay for land.
In the dose stated no such embarrassment is even suggested.
It should be noted also that it does not appear that the proposed reservoir is “in pursuance of a plan for the permanent water works” which the board was required to prepare and resolve upon with all dispatch by Section 7 of the act. It is simply * and baldly stated that the reservoir is necessary in the judgment of the Board, and that they have resolved to purchase the land.
These further considerations occur, as bearing upon the case.
The act of April 18, 1883, now over eighteen years ago, took the control of the water works, which then consisted of the pumping stations and water rights on the Brandywine, the land and reservoirs at Eighth and Clayton streets, and the ample grounds of the Cool Spring Reservoir and park, containing nearly four squares of ground, from the City Council, because of incompetent management and abuse, and vested it in a Board of Water Commissioners, consisting of three members.
By Section 12 of tlie act there was provided a fund of $180,000, any or all of which might have been used to purchase and. pay for land, in the discretion of the Board. But so ample seems to have been the supply of land, that it was admitted in the argument of this case that no part of this amount was actually used for the purchase of land. This condition was doubtless known to the Legislature. Within the land already possessed, and such as might be bought with the $180,000 above named, the act has manifestly confined the “ completing, constructing, operating and repairing the water works” by the Board; presumably *499also the plan for permanent water works prescribed by Section 7 of the act, early in these eighteen years was prepared, and has been carried into execution therein.
Now, a new departure is projected. A farm of eighty-eight acres in Brandywine Hundred for a new reservoir is now bargained for, and a new system is to be commenced, which may reasonably run into a million dollars of expense if the contemplated works to be erected on the land so bargained for shall bear a reasonable proportion to the acreage of the land. It is urged that this purchase may be made, in the discretion of the board, upon their judgment of its necessity without any application to the Legislature, so that the measure may be ventilated and the citizens of Wilmington be given an opportunity to be heard.
It appears that the Legislature has carefully guarded the citizens by limiting in Section 12 the amount of debt that may be incurred by bonding the city for the water works. On the other hand, from the plaintiffs’ contention it would appear that the Legislature had thrown wide open the door of taxation of such citizens as pay water rent in permitting the board to buy lands in their discretion, and to levy water rents in their discretion, however onerous—saving only houses having one hydrant—and to apply such water rents to pay for such land.- It seems improbable that the Legislature would vest any such arbitrary and unlimited power in any board of commissioners, however excellent they might be.
Moreover, if such power is given to the board, then Section 12 of the act is entirely unnecessary, as under that power the board might levy and collect by water rents all the money that they might want to build reservoirs in their discretion without borrowing at all.
But manifestly the Legislature in Section 14 have directed the board to pay all the excess over running expenses proper and interest on the bonds back again into the city treasury for the payment of the city debt, and does not permit them to invest such water rents in the purchase of land.
*500This purchase of land is a broad departure from the policy indicated by the statute, and is fraught with great danger. The act indicates that in entering into a new and large purchase of real estate that the board should apply to the Legislature, so that the necessity for such new departure might be freely and fully discussed and understood by the citizens. Manifestly such power is not left simply to the judgment and resolution of any three men who for the time being may be members of the Board of Water Commissioners.
After the most careful consideration of the exceedingly able and exhaustive arguments of the counsel on both sides, and a thorough examination of the statute, I have been able to reach no other conclusion than that the power to buy this land and pay for it out of the income, rents and receipts of the water works is not vested in the Board of Water Commissioners, and that in this case judgment should be entered for the defendant for costs.