Penn Galvanizing Co. v. Philadelphia , 388 Pa. 370 ( 1957 )

Dissenting Opinion by

Mr. Justice Bell:

I dissent.

The lower Court properly considered the appellant’s complaint as alternatively constituting a taxpayer’s bill. The ordinance provided, inter alia, that rebates and refunds were to be restricted to those cases in which the claim concerned water consumed prior to January 1, 1952, hut only where the bills therefor were originally issued in 1955. The ordinance makes the right to a rebate and/or refund dependent not on the period during which the water was used, hut on the date when the hill was rendered — promptly or negligently by a city clerk.

This favored class — with no reasonable or justifiable basis for their classification — were thus to receive their water free. In the analogous case of American Aniline Products, Inc. v. Lock Haven, 288 Pa. 420, 135 A. 726, this Court said (page 425-426) : “The agreement of a city to supply water free of charge is discrimination against other users and void as against public policy. There is no difference in this respect between a municipality dealing in a commodity of a public interest, and a public service company dealing in a commodity of a similar nature. The discriminatory engagements of both are prohibited as matters of public policy for reasons so frequently stated, we need not repeat them here. The gift is of a commodity, the cost of the production of which is a continuing charge borne directly by the taxpayers. It increases the burden on the part of the public to their prejudice to defray the expense necessary to its production.

“A city has a wide range of discretion in classifying the service, but the classification must be a reasonable one, based on considerations as to quantity, time of use or manner of service, or other matters which present a substantial difference as ground for distinction. A classification based on a particular business or use for a special purpose will not, without more, justify classification or discriminatory rates. We do not intimate in Barnes Laundry Co. v. Pittsburgh, supra, that a classification can be made whereby one of the classes receives water free of cost. On the contrary, we state that 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;’ to give water away¹ to a manufacturing plant is a discrimination.”

If this ordinance is sustained, certain special water consumers will escape liability, not because of the quantity of water consumed or the time of use, or matters of service, but simply because a clerk in the City’s Avater department neglected or failed to bill them prior to 1955 for the water they consumed prior to 1952.

It is clear that such a classification is arbitrary, unreasonably discriminatory, and therefore unconstitutional. American Aniline Products, Inc. v. Lock Haven, 288 Pa., supra; cf. also Lord Appeal, 368 Pa. 121, 81 A. 2d 533; Allentown School District Mercantile Tax, 370 Pa. 161, 87 A. 2d 480; Commonwealth v. Budd Co. and Commonwealth v. Westinghouse Electric Corp., 379 Pa. 159, 108 A. 2d 563.