pressly sanctioned by that court in Georgia v. Tennessee Copper Co., 206 U. S. 230, and under the principles enunciated in that decision and in the case of Missouri v. Illinois, 180 U. S. 208, it seems clear that such a bill would lie under the facts found by the Commissioner of Health in the present case. In that proceeding, however, it would be impossible to join the domestic corporations since the original jurisdiction of the United States Supreme Court does not extend to a controversy between a State and defendants including both its own citizens and citizens of another State.

California v. Southern Pacific Co., 157 U. S. 229.

If, therefore, it is found impossible to bring the foreign corporations within the jurisdiction of the courts of this State so as to make them amenable to a judgment in personam against them, it will, in my opinion, be necessary to maintain two separate actions to abate this nuisance.

I have not discussed in this opinion the power of the courts in this State, under section 953 of the Code of Criminal Procedure, to compel an abatement of the nuisance as part of the penalty on conviction in criminal proceedings. Although there is some doubt as to the application of this section to a nuisance of the character of that here existing (Syracuse Plank Road Co. v. People, 66 Barb. 25, 33), it would certainly do no harm to have criminal proceedings instituted against such of these corporations as can be brought within the jurisdiction of this State by the district attorney of Richmond county.

Under section 6 of the Public Health Law the statute under which, presumably, the present investigation is made you are given the right to file the report of the Commissioner of Health, with your approval, in the office of the Secretary of State, and to declare the matters public nuisances found and certified in such report to be nuisances, and you "may order them to be changed, abated or removed" as you may direct. It is also provided that such order shall be presumptive evidence of the existence of such nuisance.

In my opinion, the report, if it meets with your approval, should be so filed and an order issued so that in any proceedings instituted in this State the benefit of this presumption may be claimed.

It is possible that in addition to the foregoing remedies an action would lie by the Federal authorities because of the obstruction of navigation upon the Kill von Kull. This, however, is without the jurisdiction of the officers of this State.

Very respectfully yours,

EDWARD R. O'MALLEY,

Attorney-General.

OPINIONS RENDERED THE LIEUTENANT-GOVERNOR.

Agricultural Law, Section 140-State Fair Commission. Supply of water by city of Syracuse to State Fair grounds. Whether Commission may execute agreement acquiring right of way, also agreement with railroad companies for construction of water mains, etc.

(See opinion March 1, 1907, p. 276 Rep.)

STATE OF NEW YORK,

ATTORNEY-GENERAL'S OFFICE,

ALBANY, February 2, 1909.

Hon. HORACE WHITE, Lieutenant-Governor, Albany, N. Y.: Dear Sir. I am in receipt of your letter of the 22d ult., enclosing numerous agreements which you ask me to examine and advise whether the State Fair Commission has the power to execute them. I have carefully examined these agreements and submit herewith my opinion as follows:

All the agreements collectively seem designed to accomplish the object of securing a connection by water main between the

State Fair grounds and the water system of the city of Syracuse. The first agreement is with the Syracuse Suburban Water Company. By the terms of this contract the water company agrees to construct a water main connecting the water supply system of the city of Syracuse with the water supply system of the State Fair upon its grounds in the town of Geddes, New York. The specifications for this connecting main are set forth in the contract and it is provided that the State Fair Commission shall acquire the right of way for the same at its expense. The contract then provides that upon the completion of the construction of the said pipe line the State Fair Commission will grant to the water company a full and unconditional release of the duties and obligations imposed upon the Onondaga County Suburban Water Company by section 5 of chapter 371 of the Laws of 1907. It is recited in the agreement that the Syracuse Suburban Water Company is the successor of the Onondaga County Company.

An examination of this statute discloses that section 5, referred to in the contract, is the consideration for a grant of certain privileges by the State to the Onondaga County Suburban Water Company, and that it obligates this company, its successors and assigns, to construct and maintain the necessary mains and conduits and convey from the main water conduit maintained by it and deliver upon the State Fair grounds such supply of water as said commission shall reasonably require for the use of the State Fair buildings and grounds. This supply is to be furnished without charge and under such regulations as shall be prescribed by the commission. The obligation on the part of the water company is expressly stated to be in consideration of the rights and privileges granted by the same statute. The contract further provides that upon the completion of the pipe line the complete ownership and control and all rights and interest therein shall vest in the State Fair Commission.

The other agreements enclosed in your letter are with various railroad companies and provide revocable licenses to construct a water main under their rights of way. These are apparently designed to furnish part of the right of way which under its contract with the water company the Commission is required to supply.

Under section 140 of the Agricultural Law the powers of the State Fair Commission are defined as follows:

"Such property and any other other property hereafter acquired by the State for State Fair purposes shall be under the management and control of the State Fair Commission as hereinafter provided, and it may from time to time make rules and provide for the care, preservation and improvement thereof."

This is the only provision of the statute prescribing and defining the powers of the Commission in respect to real property. You will observe that it contains no grant of the power to hold title to real property or to acquire any real property on behalf of the State. In fact its language, in speaking of "other property hereafter acquired by the State," clearly shows that any future acquisitions are to be by the State itself, rather than by the Commission. In my opinion, therefore, the Commission has no power to purchase or otherwise acquire any additional rights in real property other than those accepted by the Legislature in this section. It would follow from this that it has no right to secure rights of way which are essentially interests in realty. Likewise it would have no power to take title to such rights of way when secured, or to any pipe line laid under the surface of the ground which by its situation would be realty. I am, therefore, constrained to advise that the execution of these contracts is not within the powers of the Commission.

In connection with this subject I wish to point out to you the fact that, even assuming these contracts were legally entered into. and executed, there would still be the question of securing a contract with the city of Syracuse for the supply of water to the grounds, which question would involve both the rate of compensation which the city would exact for such service, and also the power of the city to make any such contract. There is no provision in the general law governing cities of the second class, under which Syracuse is governed, specifically authorizing the city to contract with corporations or individuals outside the city limits for a supply of water. Even did such a right exist in the city it is held by the Court of Appeals that it can apply only

to surplus water at the disposal of the city and not required for its own inhabitants. (Simpson v. Parker, 190 N. Y. 19.) Therefore, even assuming that the contracts were entered into and the city agreed to furnish water to the grounds at a satisfactory price, the entire arrangement would be in danger of being overturned at any time upon proof by a taxpayer that sufficient water was not being supplied to the city to warrant this outside contract.

One additional feature which may have some bearing upon the situation is that the licenses granted by the various railroad companies are all revocable by the companies at their option and, therefore, the water supply of the grounds would at all times rest upon the favor of these various corporations.

I return herewith the agreements which you forwarded me. Very respectfully yours,

EDWARD R. O'MALLEY,

Attorney-General.

State Fair Commission- State Fair, Syracuse. Appointment of Commission of A. E. Perren, as Superintendent of Grounds and Buildings, in addition to his office as member of Commission, and with additional salary, is illegal.

(See opinion January 22, 1909.)

STATE OF NEW YORK,

ATTORNEY-GENERAL'S OFFICE,

ALBANY, February 5, 1909.

Hon. HORACE WHITE, Lieutenant-Governor, Albany, N. Y.: Dear Sir. I am requested by your favor of January 22, for an expression of my opinion as to the right of Commissioner Perren to receive a salary of $2,000 as superintendent of grounds and buildings of the State fair at Syracuse, N. Y., in addition to his salary of $3,000 as a member of the State Fair Commission.