Girard Life Ins. Co. v. Philadelphia

• Citation: 88 Pa. 393
• Parties: Girard Life Insurance Co., <I>versus</I> City of Philadelphia.
• Decision Date: 07 May 1879
• Court: United States State Supreme Court of Pennsylvania

88 Pa. 393

Girard Life Insurance Co., versus City of Philadelphia.

Supreme Court of Pennsylvania.

January 17, 1879.

May 7, 1879.

January 17th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 213. In Equity.

John J. Ridgway, Jr., for appellants.—Under the provisions of the ordinance of March 22d 1862, it is made the imperative duty of the officials of the water department, in case of the non-payment of water-rent due for any year on the first day of September, to immediately detach the ferrules from the delinquent premises. These arrears would have had no existence if these officials had done their duty.

C. E. Morgan, Jr., Assistant City Solicitor, and W. N. West, City Solicitor for the city.—If the city officials are delinquent, their superior authorities may call them to account, but their failure to do their duty furnishes a tenant with no ground of complaint.

Mr. Justice PAXSON delivered the opinion of the court, May 7th 1879.

This was a bill in equity, filed by the Girard Life Insurance Annuity and Trust Company, against the City of Philadelphia and the Chief Engineer of its Water Department, praying for an injunction to restrain the defendants from cutting off the water supply to certain premises which said company had purchased at sheriff's sale in the year 1876. The bill sets forth that the complainants had tendered the water-rent for one year upon each of the said premises respectively, which was declined, and they were informed by the water department, that water-rent for three years was due on each, together with a penalty of fifteen per centum, and that unless said arrears, with the penalty were paid, the water supply would be stopped under the authority given by the ordinance of March 22d 1862. The complainants refused to pay, and filed this bill for the purpose of preventing the city from stopping off the water. The defendants demurred to the bill, but subsequently withdrew the first six causes of demurrer, whereupon it was agreed that the bill and demurrer should stand as a case stated.

This is a very inartificial mode of stating a case, and is not to be commended. A case stated should consist of a clear statement of the facts upon which the court is asked to pronounce judgment. The forms of equity pleading are not appropriate, and were not intended for such purposes as this.

The complainants concede the complete power of the city to make any conditions precedent to supplying the citizens with water. The supplying of water and gas to a city is not a municipal duty. Hence, when the city undertakes to do so, it acts, not by virtue of any rights of sovereignty, but exercises merely the functions of a private corporation: Western Saving Fund Society v. The City, 7 Casey 175; Wheeler v. The City, 27 P. F. Smith 338. The introduction of water by the city into private houses is not on the footing of a contract, but of a license which is paid for: Smith v. The City, 31 P. F. Smith 38. It may very well be that when a license has been given by the city to the owner of a house to use the water, such license may not be withdrawn arbitrarily, or from mere caprice. But it is equally clear that the city may adopt such rules in regard to the use of the water and the payment therefor, as the municipal authorities shall deem expedient. All this is admitted by the complainants. Their contention is, that while councils may so legislate, they have not done so, and that the ordinance of March 22d 1862, does not authorize the water department to demand from them more than the water-rent for one year as a condition of supplying their premises with water.

The ordinance referred to is as follows: "That all water-rents shall be payable to the Register of Water-rents at his office annually in advance on the second Monday of January; and upon all water-rents unpaid upon the 1st day of May in any year there shall be charged the sum of five per centum, and upon all rents unpaid on the 1st day of July in any year, there shall be charged an additional sum of ten per centum; and if such rent, with the said additional charges, shall remain unpaid on the 1st day of September in any year, the said register shall notify the chief engineer...