The People of the State of New York, Respondent, v. New York Carbonic Acid Gas Company, Appellant. The People of the State of New York, Respondent, v. The Geysers Natural Gas Company of Saratoga Springs, N. Y., Appellant. The People of the State of New York, Respondent, v. Lincoln Spring Company, Appellant. The People of the State of New York, Respondent, v. Natural Carbonic Gas Company, Appellant. The People of the State of New York, Respondent, v. Mary Augusta Patterson, Appellant. The People of the State of New York, Respondent, v. Harry M. Levengston, Appellant.
Third Department,
September 21, 1908.
Constitutional law — statute regulating use of mineral' springs — Legislature may authorize suit by People — security — injunction pendente lite denied.
Since the Legislature under its police powers may regulate the usé of natural mineral springs it may determine in what manner the regulation may be enforced, and hence may provide that an action for that purpose may be brought by the People.
The People suing to enjoin a use of mineral springs prohibited by statute cannot be required to give security on the issuance of a temporary injunction.
Where several suits for injunction have been brought by the People against owners of such mineral springs and the constitutionality of the law under wbicli the action is brought has not been established by the court of last resort, it is an abuse of discretion to enjoin the defendants from prosecuting their ordinary business pendente lite, the People not having given security.
Appeals in six separate actions by the respective defendants therein from respective orders of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 5th day of September, 1908, granting injunctions pendente lite restraining the several defendants from' accelerating the natural flow or producing an unnatural flow of certain mineral waters, in violation of chapter 429 of the Laws'of 1908.
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William S. Jackeson, Attorney-General, and Charles P. Williams, Deputy [C. C. Lester, J. Newton Fiero and Rockwood, Scott & McKelvey of counsel], for the respondent. .
Edgar T. Brackett, for the appellants the New York Carbonic Acid Gas Company, The Geysers Natural Gas Company and the Lincoln Spring Company.
Morris & Plante Edward W. Hatch and Frank B. Church of counsel], for the appellant Natural Carbonic Gas Company.
Charles M. Davison, for the appellant Mary Augusta Patterson.
W. P. Butler, for the appellant Harry M. Levengston.
Kellogg, J.:
In Hathorn v. Natural Carbonic Gas Co. (128 App. Div. 33), decided at this term of court, it was held, in substance, that some of the acts mentioned in the complaint in the above cases may be enjoined, and that chapter 429 of the Laws of 1908 made such acts unlawful, and in the respects indicated said statute was a proper exercise of the police power of the State.
If the conditions existing justified the regulation of the natural springs of the State, it would follow that the Legislature likewise would have power to determine in what manner such regulation should be enforced, and a determination as provided in the act that the People may maintain the action is not an unreasonable exercise of the police power. These actions are, therefore, properly brought in the name of the People as plaintiffs.
Ordinarily, a temporary injunction is only granted upon security to the party enjoined, so that in a manner both parties take some chances in the litigation. Here the various spring owners and taxpayers have the light to maintain actions and make application for temporary injunctions during the pendency thereof upon giving proper security. In these cases the People have not given security and cannot be required so to do.
Until the constitutionality of the law is established by the court of last resort it seems a hardship to enjoin the greater part of defendants’, business with no indemnity in case they are finally sue*44cessful. As a matter of discretion the defendants should not be enjoined in the prosecution of their ordinary business during the pendency of the action without security.
The orders appealed from are, therefore, reversed, without costs, and the injunctions vacated.
,A11 concurred; Cochrane, J., in result.
Orders reversed, without costs, and injunctions vacated.