274 Pa. 558 | Pa. | 1922
Lead Opinion
Opinion by
This suit in equity is for relief from alleged unjust and discriminatory water rates, and is a companion case to Barnes Laundry Co. v. Pittsburgh, 266 Pa. 24, where the facts and controlling legal principle will be found exhaustively stated in the opinion by the present Chief Justice. We may, however, properly recount that Pittsburgh is a city of the second class duly authorized by statute to supply its inhabitants with water. Pursuant to which it has established at an expense of thirty-two million dollars, and operates, a large and efficient plant, which furnishes, and has a monopoly in furnishing, water to nearly the entire city. At first it supplied all classes of customers at flat rates, but years ago, in the interest of conservation, a gradual change to a meter system was inaugurated and has been carried forward until in 1920, of the ninety-three thousand connections, thirty-five thousand were by meters. The city’s policy has been to first place its larger customers upon meters so that now all industrial users of city water take by that method, as do many thousands of domestic users. The plaintiff corporation is extensively engaged in the manufacture of ice and has five plants located in the city, all dependent upon the latter for water, of which a very large quantity is necessary. In 1915 the city placed and has since continued these plants upon meters. The city annually fixes
The city pumps about thirty billion gallons of water annually that reaches consumers; of this, about one billion gallons is free water, being for fire protection, street cleaning, etc., twelve billion gallons go to the metered users and the remaining seventeen billion gallons to the flat-rate users. Of the latter, four billion gallons is properly used and the balance (thirteen billion gallons) is wasted. The waste results from careless users, defective fixtures, all night sprinkling, keeping the water running to prevent freezing, etc. So, while the city derives a revenue of only six cents a thousand gallons on the average from its flat-rate customers, when they change to meters, and are prompted by self interest to use care, they save fifty-five per cent from their former flat-rate bills. The average amount received by the city from the meter customers is fourteen and one-half cents per thousand gallons.
In 1918, plaintiff filed this bill praying that the meter rates be decreed excessive and, as against the flat rates, discriminatory, and that the city be ordered to refund the excess amount plaintiff had been compelled to pay thereunder during the years 1916, 1917 and 1918. On demurrer the court below dismissed the bill, but its action therein was reversed by this court (see Barnes Laundry Case, supra) and the record remitted for a hearing upon the merits as to the year 1918, the complaint as to the earlier years being held barred by laches. Thereafter, the bill was amended so as to embrace the
In our opinion the decree is right. In the Barnes Laundry Case, supra, we held that, “Under the Act of June 16, 1836, P. L. 785, a court of equity has jurisdiction to entertain a bill by a citizen who complains that a municipality has unlawfully arrogated to itself the right to make and enforce unreasonable and discriminatory water rates to his prejudice,” and also (omitting the citations) that, “While, necessarily, a wide range of discretion is allowed municipal authorities in fixing public service rates, and classifications of users is permitted, yet a city operating a legalized monopoly, in the nature of a water plant, cannot give undue or unreasonable preference or advantage to, or make unfair discrimination among, customers, any more than a private corporation similarly situated.” The right of a second-class city to require its water customers to take by meter is undoubted (see section 5, Act of June 15,1915, P. L. 976, 981; Barnes Laundry Case, supra; Wagner v. City of Rock Island, 146 Ill. 139; Ladd v. Boston, 170 Mass. 332; 40 Cyc. 802) or part of them by meter and part by flat rate (Central I. & S. Co. v. Harrisburg, 271 Pa. 340), and that is more especially so during a period of transition. The city is presumed to have exercised a proper discretion in adjusting its water rates (Duquesne Light Co. et al. v. Public Service Commission et al., 273 Pa. 287) and the trial court finds the contrary is not established by the evidence.
The annual rates were fixed at the beginning of each year as nearly as practicable so as to supply water at actual cost, that being the policy of the city, and, as adjusted for the years in question, created only a reasonable surplus; hence, there is no ground for contention that the water rates, as a whole, produced too much revenue. The real gravamen of plaintiff’s complaint is
Plaintiff further contends that water can and should be furnished to the very large users, like itself, at less than the minimum rate of twelve cents per thousand gallons, and supports this contention by expert evidence;
There was no discrimination here between industrial and domestic users, as the meter rates were the same to both, so the trial judge’s suggestion of the right to make
■The decree is affirmed and appeal dismissed at the costs of appellant.
Concurrence Opinion
Concurring Opinion by
I concur in affirming the decree of the court below for the following reasons:
It appears a change was being made in water service in this municipality from flat to metered rates; during this transition period, council cannot be held to a too rigid enforcement of its discretionary power in adopting rates for flat and metered rate consumers, — this fact, to my mind, really controls the present case.
If a flat rate is to be measured by a per thousand gallon charge, and it is a permanent rate, as distinguished from what we have just discussed, then a rate of six cents, as against fourteen cents per thousand gallons for metered rates, might well be accounted discriminatory, and could not be justified under any allocation of cost in this case, or on other economic basis.
Flat rate is not in any sense measured by gallons, except as shall be hereafter explained. As I understand the statutes, a flat rate is arrived at' by considering the facilities used, size of the branch water line or individual service pipe, number of spigots, bathrooms, toilets and other water facilities in the house or on the lawn; to all of which may be applied a graduated scale as to probable
The fact that water is wasted by flat customers proves nothing; they do not have the right to waste it, and waste cannot enter properly as a factor in making up the flat rate. Customers pay for a normal use, dependent on the rule above expressed, without waste. If the latter occurs, it is a violation of an implied condition attaching to flat-rate users.
In my opinion, the gift of water to charities cannot be supported legally unless municipalities have the power to contribute money or property donations; no act is called to our attention giving them this power. This, however, does not condemn the rates as being unreasonable or discriminatory, any more than the omission of a taxpayer’s property from assessment shows lack of uniformity. The right to collect from these institutions exists as before, and the officers whose duty it is to so collect are responsible in proper proceedings.