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according to the said tariff and schedule of words, that its charges generally are excesrates of the respondent.""

The respondent also avers that free service is rendered to the City of York for all the water that may be used by the three hundred and seventeen fire hydrants; that no charge whatsoever is made for the water supplied to the city hall, fire engine houses, drinking and ornamental fountains, and for flushing the streets of the city, and that "it also furnishes free of charge" two million gallons of water per annum to the public parks.

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sive. As to the first of these two propositions we are ready to go on. As to the second we are not, for this reason: We gave notice to the York Water Company to produce certain books and papers bearing upon its capitalization, expenditures, property and so forth; they declined to furnish that information. We are still without it and we are here now asking for a subpoena duces tecum to require them to produce these books and papers. On that branch of the case we are not prepared." The bearing was proceeded with and from the statement of counsel and evidence presented then and at subsequent meetings the following facts appear:

1. The York Water Company was organized in 1816, from which time it has been serving the people resident within the City of York.

Averment is further made by the respondent that its "water service is divided generally into two classes, viz, that charged by 'meter rates' and that charged by 'flat rates;' the former being confined to manufacturers, pub ic buildings, mercantile purposes and other large consumers; being chiefly for business purposes but in no manner extending to the service referred to in the petition 2. Its charter provides, inter alia: "That in this matter; that the rates the said president and managers shall, in charged against the petitioners * are such streets or parts of the borough where under the division of flat rates known as pipes shall be required, erect hydrants to be 'Domestic (annual rates); flat rates for used solely for extinguishing fires; and they domestic service having been charged by the shall have liberty at all times, where the respondent since its organization "trunks shall be laid in and through any of that "these flat rates are strictly in accord- the streets and alleys in said borough, to ance with the obligations of the charter of suffer individuals to be supplied with water the respondent in that they have 'regard to for domestic or manufacturing use for such the probable quantity of water which appli- reasonable compensation as shall from time cans are likely to consume,'" and "that to to time be agreed on by the company and depart from the long established custom of such individuals, according to certain unithe respondent in serving its domestic custo- form rates which the president and managers mers with water under flat rates, whereby shall hereafter adopt, having regard to the the consumer would no longer enjoy the probable quantity of water which applicants unlim ted use of water, would be detrimental are likely to consume." to the interests and health of the consumer and to the inhabitants of the territory served by respondent."

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To the answer of the water company, the complainants filed their replication and issue was thereupon joined.

SUMMARY OF EVIDENCE.

3. During all the period since its incorporation the respondent has supplied its domestic consumers by the flat rate system— that is, making a charge based upon the number of water outlets or connections in each building.

4.

That the tariff or schedule filed with the Commission prior to January 1, 1914, and now operative contains substantially the rates in force since 1906, and that under them all consumers are divided into two classes: (A), Those on meter rates, such as business, industrial and manufacturing; (B), Those upon flat rates, which include all domestic consumers.

At the first meeting for the purpose of taking testimony, counsel for the complainants declared: "There are two questions involved in this inquiry. One is the refusal of the York Water Company to install meters for determining the quantity of water consumed by the consumers and which we say is a violation of their charter duty. The 5. The total number of customers of the other question is a question as to whether or respondent company is 11,397, of whom not the York Water Company is not reap-only 342 come under the division receiving ing a greater reward for the amount of its measured service. Of the 11,055 who are investment than it is entitled to. In other charged flat rates, 5,701 pay five dollars

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($5.00) or less for an unlimited service; 3.812 of them pay between five dollars ($5.00) and fifteen dollars ($15.00) for unlimited service: 1,266 of them pay between fifteen dollars ($15.00) and twentytwo dollars ($22.00) for unlimited service, and 276 pay various sums from nine dollars ($9.00) to eighty-six dollars fifty cents ($86.50), one paying the latter amount.

6. The 342 users upon metered service paid during the year 1915 various sums, the lowest being two dollars eighty-nine cents ($2.89), and the highest five thousand nine hundred eighty-one dollars seventy cents ($5,981.70).

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8. No testimony was presented relating to the financial condition of the company, the value of its plant or that the charges made by it to its domestic consumers are in any wise unjust, unreasonable, or excessive. Since the first meeting references have been made to the charges collected by the respondent and an attempt was made by the issuance of a subpoena to compel the production of books, papers and reports of the company running back to the year 1880. The company offered to permit an investigation by a public accountant of all its affairs but the offer was never accepted so far as the record discloses, and no inquiry was made in relation thereto nor has any evidence been presented of the receipts or expenditures of the company nor any proof whatsoever presented that any return the company may enjoy is excessive.

QUESTIONS TO BE DECIDED.

Three questions are presented to the Commission.

First.

7. In the summer of 1914 the City of York laid 10,031 cubic yards of concrete pavement, and for the water used in this work the York Water Company charged nine hundred two dollars and sixty-two cents ($902.62), or at the rate of nine cents As to the charge for the water used in (9c.) per cubic yard. With knowledge of the mixing of concrete used in street paving. the charge, the city agreed to make payment The city has never paid the bill presented therefor, but it has refused so to do, and de- by the water company, and there is therefore clares the charge to be "unjust, unreason- no demand for an order of reparation. able and grossly disproportionate." On There has been no attempt by the water behalf of the city evidence was presented company to refuse a continuance of its supthat in the doing of similar work at a sub-ply to the city because of the non-failure to sequent time there was only used an average pay. It is doubtful whether the subject of thirty-five gallons for each cubic yard of could come before this Commission for adconcrete paving laid and that at the highest judication but, by assent of the parties and price asked by the water company from because of their desire that we should fix a of its metered industrial customers the charge fair amount, consideration is given to it. should be at the rate of two cents (2c.) per The company seeks to justify the charge by eubic yard. The testimony of the experts the agreement of the city to pay the sum; called on behalf of the city showed that by the payment hitherto of like amounts; by there was no uniformity of price for this comparison with the charges in other cities; character of service throughout Pennsylva- by the needs for inspection; and by the nia, the charge varying from two cents (2c.) per cubic yard in Harrisburg to an amount greater than that charged in York. On behalf of the company it was testified that the charge in Altoona was ten cents (10c.) per cubic yard, in Bradford eight cents (8c.), Charleroi ten cents (10c.), Greensburg from six cents (6c.) to fifteen cents (15c.), Huntingdon ten cents (10c.), Steelton twelve cents (12c.), Wilkinsburg six cents (6c.); although it was also admitted that in many portions of the state the charge was as low as Harrisburg's and ranged generally from two cents (2c.) to nine cents (9c.), the sum in dispute.

great waste which the company claims follows the use of a hose in the mixing of concrete in the public streets. As hereinbefore stated the testimony shows wide variance in the charges in different sections of Pennsylvania, but with ordinary care thirty-five to forty-five gallons of water to one cubic yard of paving seems to be the amont required. Giving due consideration to the probability that waste is considerable we think that the sum of four cents (4c.) per cubic yard would be adequate, and in accordance with the suggestion made that we fix a fair price for water so used by the City of York, we name four cents (4c.) per cubic yard as the

price that should be paid for that which is now in dispute and for that which may hereafter be used.

Second.

nections or outlets-but such method of charge is not uncommon.

The complainants assert that such a basis of computation does not meet the requirements of the charter of the company and

As to the installation of meters for that the spigots or outlets charge is not the domestic consumers.

fixing of a rate "having regard to the probOut of the more than 11,000 customers able quantity of water which applicants are of the York Water Company but two ap- likely to consume.' They aver that the use pear as complainants, and it is in evidence of a meter is the only method by which the that during ten years not more than four- "probable quantity of water" can be deterteen persons have ever requested the instal-mined and that these quoted words demand lation of meters. their installation. It is undoubted that when

The complainants declare that the small the charter of the York Water Company number making demand is accounted for by was granted meters were unknown, so that the fact that the City of York through its these devices could not then have been in lawfully constituted authorities expressed the legislative mind, and it seems to the the wish of the people for metered service Commission that the fixing of a rate for the in passing an ordinance on February 27, "probable quantity of water which appli1914, under the provisions of which the cants are likely to consume" can be deterwater company was required to install and mined with sufficient accuracy under the maintain at its expense meters for all cust-century-old methods prevailing in the City tomers so requesting whose annual charges of York by the number of spigots in a exceeded five dollars. The enforcement of building.

this ordinance was restrained by the Su- The words of the charter indicate that preme Court on May 26, 1915, see York the rates should be fixed in advance because Water Co. v. City of York, 250 Pa. 115, it requires that the president and managers it therein being held: "The Public Service shall supply the water for such reasonable Company Law was intended to provide a compensation as shall from time to time be complete system for the supervision and agreed on, having regard to the probable regulation of public service corporations * quantity of water which the applicants are ** The purpose of the ordinance in likely to consume. The quantity that apquestion here was to prevent what was de- plicants are "likely to consume" could only clared to be the exaction of unjust and ex- (certainly before the invention of meters) orbitant charges from a certain class of con- be "likely" told from the facilities that these sumers, but this is a subject clearly within applicants might provide for their possible the powers of the Public Service Commission use. It is reasonable to assume that the There can be no reasonable more bath tubs in a house the more likely doubt that the legislative intention was to these are to be used, as neither money would make the Public Service Act the supreme be expended for their costly installation nor law of the State in the regulation and sup- room taken up in the building for them, ervision of Public Service Corporations." unless they were intended for employment, Following this decision the subject was and it seems to the Commission that there presented to this Commission. is entire consonance with the letter and

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The actual number of those paying defin- spirit of the Act of Assembly giving life to ite sums for the water supplied them has the York Water Company when the combeen herein before set forth and in view of pany bases its charges for an unlimited supthe charges made by other water companies ply of water upon the number and character in our Commonwealth it cannot be asserted of the fixtures and spigots installed in a with truth that there is any excessive sum dwelling, which fixtures and spigots may be collected or improper amounts demanded turned on and used at any time. It is unfrom the patrons of the York Water Com-doubtedly in line with the modern trend to pany. The supply given to them is unlimited. The charge therefor, it is true, is based upon the number of the water con

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require water companies to install meters and make charges for the water actually used. In the case before us, however, the people of York are in the enjoyment of a Copious supply of water against which no complaint has been made as to purity or

Judge Stewart: We have, as to three questions.

The Chairman: What three questions? Judge Stewart: The question of the amount charged for water used in making concrete. We have also estab

lished a prima facie case with regard to the That is two ques

tions in one, because we contend that it is the duty of the company under its charter to furnish the meters. These two questions we have already covered.

clarity and which they receive in unlimited far enough so that the complainants have quantities pumped, piped, stored and filtered, made out a prima facie case. Have you at a charge as low as that enjoyed in proba- made out a prima facie case? bly any community in the state. To compel the water company to put in meters to all their more than 11,000 customers would be to entail needless expense upon the company which would be reflected in increased charges necessarily, and to require them to supply some of their patrons with meters would be to create another class of con-installation of meters. sumers with the possibility of unjust discrimination. Under existing conditions the people of York are divided into two general classes-(a), the industrial and (b), the domestic. The industrial embraces not only manufacturing establishments but semi- or quasi-public buildings. These latter number but three hundred and forty-two. All of the other 11,055 embracing the domestic service, receive an unlimited supply and we The Chairman: Have you proved any cannot find any reasonable cause in the tes-feature of it? Have you put in any evitimony presented for interfering with the dence, whatever? management and operation of the company and ordering a further subdivision of the domestic service into metered and non-metered classes.

Third.

As to the unjust rates.

The Chairman: What have you done with respect to rates?

Judge Stewart: We have been trying to get the information called for, but have been unable to get it.

Judge Stewart: No.

Commissioner Pennypacker: This information would not throw any light on the question of the propriety of putting in

meters.

Judge Stewart: On, no, it is a separate question altogether. It is a question of rate making.

At the first hearing of this case it was brought to the attention of the Commission. Mr. Munson: May I at this point that a subpoena duces tecum had been served repeat what I said before, that these upon the water company calling upon it to gentlemen in order to ascertain the proper produce its books and records covering a rate must of course ascertain what is a period of thirty-five years. To the bring- proper valuation. Now the books and proping of its books the company objected, and erty of that company are open to their suggested that in lieu thereof a statement proper inspection. The inspection of a should be given it of the special information company should be done by a proper acrequired and that such would be furnished.countant. I suggested at the other meeting At the second hearing counsel for complain and I now reiterate that these gentlemen, or ants detailed the efforts made to secure the information required and the answer of the water company giving a partial reply but - setting forth that "whenever the Public Service Commission shall decide to go into the question of rates the York Water Company will promptly furnish the remaining information called for

the Commission, may name any responsible chartered accountant who will have complete and full access to the books and property of this company--not only complete access but every assistance that we may properly give that chartered accountant will be furnished him *

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The chairman: It has not been the polCounsel for the complainants then asked icy of the Commission to throw open the that the water company should be compelled books of a utility company generally unless to furnish the information, and after dis- it became evident from the progress of the cussion by counsel for complainants and case that it was necessary to have that evirespondent, the record discloses the follow-dence to settle the issue involved, but not in ing: the first instance. "The Chairman: At the risk of break- Mr. Munson: But I say we consent to ing your line of thought, I want to inter-it, only we maintain that we should not be rupt and ask you if the case has proceeded put to the expense of it.

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The Chairman: How does the informa-mitted by the parties, and the Commission tion which you seek aid the Commission after full investigation having made and in determining the value of this property filed of record a report containing its findfor rate making purposes? ings of fact and conclusions thereon, which report is hereby approved and made a part

Judge Stewart: As I stated a moment ago, I do not know that we want to go into that question of valuation. If these gentlemen would furnish the information asked for

hereof:

The York Water Company is hereby ordered to file, post and publish an amendment or supplement to its tariffs and sched

The Chairman: How would that en- ules of rates, fixing a rate to be charged for able you to determine?

Judge Stewart: That will enable us to determine whether we want to thresh out that question

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water used in the mixing of concrete for street paving purposes of four cents (4c) per cubic yard of concrete so used, said rate of four cents (4c) per cubic yard of concrete so used in street paving to be the legal price that should be paid by the City of York for water so used and which is now in dispute and unpaid; said amendment or supplement to the existing tariffs and schedule of rates to be made efiective by the water company on or before June 15th, 1917, upon one Judge Stewart: I do not want to go in- day's notice to the public and this Commission; and to that question at all. *

Commissioner Pennypacker: What is your objection to accepting the offer of the other side to appoint a suitable expert and examine their books and see whet you have a case?

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Judge Stewart: The reason I stated awhile ago that I do not know that we would pursue this question of excessive rates after we got the information."

The application to compel the company. to furnish the information demanded was never granted and no evidence of any kind or character was ever presented in relation to the value of the company's plant, the cost of management, the nature of its resources, the rate of return upon its investment or any proof that any dividend declared upon its stock was unfair or excessive, and there is nothing in the case which would warrant any interference with the rates filed by the company with this Commission and in force

between it and its customers.

After a careful examination of all the evidence presented during the year and a half required for the holding of meetings, and giving careful consideration to the arguments of the learned counsel engaged in this cause, we are of the opinion that excepting for the fixing of the rate at four cents (4c) per cubic yard of water used in the mixing of concrete for street paving purposes, the complaint should be dismissed.

This matter being before The Public Service Commission of the Commonwealth of Pennsylvania upon complaint and answer on file, and having been duly heard and sub

It is further ordered that upon compliance with this order by the water company the complaint in this case be, and the same hereby is, dismissed.

Abstracts of Recent Decisions.

(Cases not otherwise designated are Supreme Court Cases.)

Non-suit-Statute of Limitations—Substitution of Plaintiff.-Where an accident occurred, and the party injured brought suit for damages, and subsequently died, and an administratrix in another state was

substituted as plaintiff on the record, upon the trial of the case it is proper to enter a non suit on the ground that there is no proper plaintiff of record; but where the foreign administratrix subsequently was appointed administratrix in this county, and applies to the substituted as plaintiff, it is proper to take off the non-suit, and to allow the substitution. As the suit was instituted by the decedent, his right of action is an asset of his estate, and no new party is introduced by the substitution of a proper administratrix, even though more than two years has elapsed since the accident,-Kelly . Werner Co., (Northampton C. P.) 16 Northampton Co. Reporter 45.

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