Central Iron & Steel Co. v. City of Harrisburg

• Decision Date: 01 July 1921
• Docket Number: 8
• Citation: 114 A. 258,271 Pa. 340
• Parties: Central Iron & Steel Co., Appellant, v. Harrisburg
• Court: Pennsylvania Supreme Court

114 A. 258

271 Pa. 340

Central Iron & Steel Co., Appellant, v. Harrisburg

No. 8

Supreme Court of Pennsylvania

July 1, 1921

Argued May 23, 1921

Appeal, No. 8, May T., 1921, by plaintiff, from judgment of C.P. DauphinCo., Jan. T., 1920, No. 727, for defendant on case-stated in suit of Central Iron & Steel Co. v Harrisburg.Affirmed.

Assumpsit to recover amount of certain payments for water.Before HARGEST, P.J.

The opinion of the Supreme Court states the facts.

Judgment for defendant on the case-stated.Plaintiff appealed.

Errors assigned appear from the opinion of the Supreme Court.

The judgment is affirmed.

C. H Bergner, for appellant.-- A contract or license to furnish water by a municipality to its residents may not be withdrawn arbitrarily or from mere caprice: Girard Life Ins. Co. v. Phila.,88 Pa. 393;Kohler v. Reitz,46 Pa.Super. 350;Jolly v. Boro.,216 Pa. 349;Penn Iron Co., Ltd., v. Lancaster,25 Pa.Super. 478;Wheeler v. Phila.,77 Pa. 338;White v. Meadville,177 Pa. 643;Baily v. Phila., 184 Pa. 594.

John R. Geyer, for appellee, cited: Com. v. Elbert,244 Pa. 535;Smith v. Phila.,81 Pa. 38;Girard Life Ins. v. Phila.,88 Pa. 393;Coffin v. Landis,46 Pa. 426;McCullough-Dalzell Crucible Co. v. Phila.,223 Pa. 336;P. & R.R.R. v. R.R.,168 Pa. 357;Com. v. Tel. Co., 243 Pa. 586.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Harrisburg, a city of the third class, established a system of water supply.By the Act of May 23, 1889, P.L. 277, the control of such a municipal undertaking was placed in a separate department, managed by a board appointed by councils.It was given in charge the regulation of the works, and was clothed with the power to make reasonable rules and regulations governing the use of the water furnished, fixing the charges to be paid by the customers.Section 9 of article XII provided for an annual adjustment of rates in March, which, after approval by councils, could not be changed for and during the water year.In 1913(ActJune 27, 1913, P.L. 568), a general plan for the government of cities of the third class was adopted, by which the board of water commissioners was abolished, and the municipal water business was placed directly in control of the city council.A new system was provided, and all former inconsistent legislation was expressly repealed: Com. v. Elbert,244 Pa. 535.Even had such provision not appeared, it would be held the subsequent affirmative statute, -- introducing a new rule upon the subject, and revising the whole subject-matter of the former, and evidently intended as a substitute therefor, -- would impliedly repeal the former one concerning the same matter.Water rates are no longer to be fixed by a board, under the authority, subject to limitations as to permissible changes, given it by section 9, article XII, of the Act of 1889, but such regulations are left to the control of city council.

In 1917, an ordinance was passed classifying the kinds of service rendered, and designating the price to be charged to consumers for each.For water furnished by meters, bills were to be rendered monthly; as to others, the amounts became due annually in advance.Section 6 provided "that the water year shall commence on the first day of January in each year, and all bills for the use of water, except for water metered, or at special rates for less than one year, shall be due and payable on said date."The plaintiff was supplied by meter at a fixed rate per 1,000 gallons.In 1918, a second ordinance was put in force as of April 1st, the attempt to make it relate back to the previous January not having been insisted upon.By its terms, new charges were made, the meter bills being based on 1,000 cubic feet, and a ready-to-serve charge made to this class of consumer.The result was to largely increase the cost to plaintiff, which excess amount from April to the following January was paid under protest.This suit was brought to recover the alleged overcharge.There is no dispute as to the facts, which are set forth in the case-stated filed.The learned court below entered judgment for defendant.

The claim of the plaintiff to recover rests upon the contention that the ordinance of 1917 created a water year, during which period the council was without authority to alter the rates fixed for consumers.It is insisted that the requirement of section 9, article XII, of the Act of 1889, already referred to, was in effect embodied in this municipal act, and, even if not, a city of the third class is still bound by the prohibition made therein against such change.We are of the opinion that the limitation upon the power of the board of water commissioners to determine rates, fell with the abolition of that body, and the entire matter of regulation is now lodged with the city council.The plaintiff would not be aided if we assume, as strenuously insisted by its learned counsel, that the repeal was only as to the board of control, and that the provisions as to regulation of rates were unaffected.Then the requirement that the water year be from April to April must for like reason be held to be in force, for the Act of 1913 makes no change in it, though it does as to the fiscal year.The new ordinance here complained of became effective on April 1st, and if section 9 was operative, except as to the managers, the new rates were fixed at the appropriate time.The user of the previous year, who had the right to terminate at will, could not insist that the same arrangement be continued for another annual period (Com. v. Central Dist. Tel. Co.,243 Pa. 586); but, as heretofore stated, we are of the opinion that the whole section was repealed.

Unless therefore, there can be found some contract, express or implied, by which the term of service at a fixed sum was determined upon, it was for the council to designate the rates to be charged, subject to the limitation of reasonableness: Barnes Laundry Co. v. Pittsburgh,266 Pa. 24;Rieker v. Lancaster, 7 Pa. Superior Ct. 149;Ladd v. City of Boston,170 Mass. 332.In furnishing a supply of water, the municipality acts in the same capacity as a private corporation, and not by reason of obligations imposed upon it by law: Baily v. Phila.,184 Pa. 594;Jolly v. Monaca Borough,216 Pa. 345;Girard Life Ins. Co. v....