
    BERKS COUNTY VS. READING.
    Where water is supplied to a County Prison, against whioh no lien can be filed, a recovery may be had against the county in a common law action-
    Where a remedy provided by statute is inapplicable, a common law action will- lie.
    Error to Common Pleas of Lehigh Comity, No. 203 Januaiy Term, 1882.
    This case was certified to Lehigh Comity, and was there tried by the Court without a jury. The following statement of facts found and opinion thereon was filed by
    Albright, P. J.:
    FACTS FOUND.
    1. That on March 1st, 1865, all the property, powers and franchises of the Reading Water Company became vested in the city of Reading.
    2. That by special Act of Assembly of March 21st, 1865, being a supplement to the Revised Charter of said City, the Commissioners of Water were given the sole power to fix the water rates, and the quantity to be used, subject to the approval of Councils.
    
      3rd. That on April 29th, 1865, the Commissioners of Water fixed rates for that year as follows :
    Hydrant at private dwellings, per year, - - - $5.00
    “ “ public buildings, “ “ - - 5.00
    Water Closet “ “ “ “ 3.00
    Urinal, “ “ “ “ - 3.00
    Basin or Sink, “ “ “ “ - - - 3.00
    Pave Wash, “ “ “ “ - 3.00
    Manufactories and all others not enumerated, per 100 galls .05
    That said rates about the date, last aforesaid, were approved by Councils, and that the rates were regularly approved by Councils from 1865 to 1870, inclusive.
    4. That the plaintiff supplied, and the defendant used, by means of connections with the water mains of the plaintiff, the water as follows : Here follows statement amounting to $602.02.
    6. That before this suit was brought the plaintiff demanded ■of the defendant payments for the amounts claimed in this action. The same was not paid, nor any warrant therefor issued. The date of demand does not appear.
    7. The allegation of the defendant that there was a contract entered into with the Reading Water Company, of which the plaintiff is the grantee and successor, that water was to be furnished at the Court House and Jail without charge, is not sustained. There is no evidence from which it can be found that any agreement was ever concluded.
    From the foregoing facts I arrive at the following conclusions of law :
    I. That the Commissioners of the County, by connecting the pipes in the public buildings with the mains of the plaintiff, and by making use of the water thus obtained, (and for purposes necessary for the proper arrangement of the affairs of the County,) made the County liable to psu* for the use of the water at the rates fixed by the city authorities. The County thus became indebted to the plaintiff prior to the bringing of this suit in the sum of $602.02. To this sum is to be added interest, from the date of suit (January 13th, 1871) making a. total indebtedness of $993.32.
    II. That inasmuch as the remedies provided by the Act of Assembly of 1865 for the enforcing of the claim, 'could not be pursued and made effective against the County, as there could be no distress by the collector, nor lien obtained by a filing of the unpaid claim in the Prothonotary’s office, and conse" quently no proceeding upon such registered claim, therefore the plaintiff is entitled to recover in this action. There must be judgment for the plaintiff for $993.32.
    OPINION.
    The Act of April 22d, 1874, P. Laws 109, relating to trials by the Court without a jury provides that the decision of the Court shall be in writing, stating separately and distinctly the facts found, the answers to points and the conclusions of law. While I do not believe that said Act imposes upon the Judge any further duties, I will, without attempt at elaboration, state some of the reasons which led to the conclusions arrived at.
    That the County is liable for the expense of a proper supply of water at the Court House and prison scarcely needs demonstration. It is as necessary as fuel to warm, and gas or oil to light said buildings. In truth, so far as relates to the Prison, which in this case is a large institution on the penitentiary plan, a supply of water is indispensible ; that all efforts to obtain an adequate supply by means of surface springs, drifts and reservoirs were unavailing is shown by the testimony— it having been shown that the water was in fact supplied by the plaintiff, that the rates demanded were fixed as required by law, and it having been admitted that a demand had been made before suit was brought against the County, it is only necessary to examine the question upon which the defence is mainly based, to wit: Can there be a recovery in this action, the claim not having been registered in the Prothonotary’s office as provided by the special Acts of Assembly, relating to the city of Reading ?
    The Act of 21st of March, 18G5, supplemental to the Revised Charter of said city, declares that all water rates shall be charged to the owners of the real estate on which said water is used, and if the same shall not be paid for, liens shall be filed in the Prothonotary’s office ; said rates to be collected in the same manner and under the same restrictions as are provided for by the City Charter for the collection of city taxes on real estate. (See § § 9 and 10.) The Act of April 26th, 1864, known as the Revised Charter of said city, provides that the duplicates for city taxes shall be placed in the hands of the Treasurer, who shall receive taxes until the first day of October in each year, after which date the same shall bo given to collectors, to be appointed by Councils, the collectors to have the power to distrain or convey the delinquent to prison. After the first day of January the taxes then still unpaid shall, by the City Solicitor, be caused to be registered in the office of the Prothonotary of Berks County, and all taxes so registered shall be liens on the real estate upon which they have been assessed for the term of five years. Recoveiy for registered taxes may be had in the Court of Common Pleas of said County of Berks, by action of debt to recover a general judgment against the debtor or by scire facias, as in the case of mechanics’ liens, and the claim so registered shall be prima facie evidence of the amount thereof, and of the same being due and owing, and judgment shall be entered by default therefor, unless the defendant shall file his affidavit of defence. It is-provided that there may be an apportionment of the claim where the property has been divided, but with a further proviso that such apportionment shall not affect the personal liability of the owner at the time of the assessment. There is also a penalty of five per centum in case of delay of payment. (§ § 41, 42 and 43.)
    Could any of these remedies have been made effective against the County of Berks? In Wilson vs. the Commissioners of Huntingdon, 7 W. & S. 197; it was decided that the Court House, Jail, etc., of a county are not such buildings as come within the meaning of the Acts giving mechanics and material-men liens. The inconvenience of a different construction is pointed out, and also the fact that under the /let of 15th of April, 1884, a judgment against a County shall be enforced by a mandamus commanding the Commissioners to pay, and not otherwise.
    In Foster vs. Fowler, 60 Pa. 27, the question presented was: whether a mechanic’s lien could be filed against the property of a company chartered to supply water to a town, and it was argued that the Court should consider the question of lien without reference to its possible enforcement. Because the company was a public corporation it was held that the remedy by lien did not apply. As to the question of lien without regard to its enforcement, the Supreme Court said: “This would be too abstract and impractical; for the lien, abstractly, is nothing ; its consequences and results everything. * * We cannot, therefore, look to the question of lien without reference to the legal consequences of it; and if they would contravene settled principles it is evident that such an effect should not be given and was not intended by the law, and if it was incapable of the practical results assigned by law to it, it is inoperative ; it is no lien.” The conclusion arrived at was, that a mechanic’s lien is the foundation for process for sale, and that “where there could be no execution there could be no action,” quoting from Williams vs. The Controllers, 18 Pa. 275.
    In the special Acts under consideration, the effect of‘the filing of the claim in the Prothonotary’s office is to create a lien, for five years and a foundation for an action. It is plain that for neither purpose would a registry of the claim against the County be available. And the claim against the County could not be enforced by means of the warrant in the hands of the collector. The conclusion, therefore, is ineyitable that the special provisions of the statute do not apply to an indebtedness of the County for water used in the public buildings, and, that as there is an obligation to pay, the remedy must be by a common law action. That the claim should have been-filed for the purpose of using it as evidence, requires no refutation. As the Act is inapplicable in its material provisions — lien and remedy — it also must be held inapplicable as to the incidental and secondary provisions, of its being prime facie evidence for the plaintiff of its claims.
    Where a remedy is given by statute it must be followed.— This is the rule of the common law, and the mandate of the Act of 1806. But here the claim is against a party where the statute remedy given to the City of Reading for the enforcement of its claim for the use of water does not apply. Therefore we hold that this action lies.
    The plaintiff may recover in this form of action. Overseers ■of South Whitehall vs. North Whitehall, 3 S. & R., 117. See .also Turnpike Co., vs. Rutter, 4 S. & R., 6; where the language of Justice Story in Bank of Columbia vs. Patterson, 7 ■Cranch, 299, is given; “when a corporation is acting within the scope of the legitimate purpose of its institution, all parol .contracts made by its authorized agents are express promises of the corporation, and all duties imposed on them by law, and all benfits conferred, at their request, raise implied promises for which an action lies.”
    By the City Charter every one making use of the water is obliged to pay according to the rates established by ordinance, where owners of real estate upon streets where the mains were laid, made no use of the water, they were exempt from any <|emand where it appeared that they were supplied from other ¡sources, and that no water was used belonging to the City; § 10, Act of 1865. The County accepted, and made use of the water, which at fixed rates was offered to all. By so doing the Commissioners did not exceed the authority vested in them by law.
    This is not, as has been contended an exercise of the taxing •■power; it is not.the case of the municipality as such imposing ■a tax upon the County of Berks. While a City may engage in supplying gas and water, yet it is not bound to do so; when the City undertakes to do so it acts not by virtue of any right ■of sovereignty, but exercises merely the functions of a private •corporation; Girard Life Ins. Co., vs- Philadelphia, 7 W. N., 69., Western Savings Fund vs. City 7 Cas., 175; Wheeler vs. City, 77 Pa. 338.
    The plaintiff claims interest from the time the several sums fell clue. I am of the opinion that this cannot be allowed.— The plaintiff deemed it necessary to a recovery to show that demand had been made before the bringing of suit. This was a pre-requisite to the maintenance of the action; Luzerne Co., vs. Day, 23 Pa. 141.
    The same reason which.makes.it intolerable that a County should be liable to suit upon the multifarious claims against it without demand, is decisive against the claim for interest. In my opinion, on a claim of this character interest can be recovered from the date of demand and refusal of a warrant on the treasurer. It is admitted in this case, that there was a demand before suit. But when it was made does not appear. Therefore, interest will be allowed from the date of suit.
    I will add that there is no narr in this case. It has been said that the pleadings had been lost long before the cause was removed to Lehigh County. It seems that none of the counsel who originally appeared have now any connection with the case. What the narr was, I do not know. It is safe to assume that it set forth the plaintiff’s cause of action, as developed at the trial.
    Berks County then took this Writ of Error, alleging that the Court erred in holding that plaintiff below could bring suit, and was not confined to the statutory remedy of filing a lien against the property to which the water was supplied.
    E. Harvey and F. R. Schell, Esqs., for plaintiff in error,
    argued that by Act of March 21st, 1865, P. Laws 459, Sect. 9, a mode of procedure for collecting unpaid water rates by filing a lien in the Prothonotary’s office was specially provided. And this mode of procedure must be followed, Act March 21, 1806, 4 Sm. Laws 332; Commonwealth vs. Garrigues, 28 Pa. 9; Commonwealth vs. Leech, 44 Pa. 332; Turnpike Co. vs. Brown, 2 Penrose & W. 462; Koch vs. Williamsport Water Co., 65 Pa. 288; Cumberland Valley R. R. Co. vs. McLanahan, 59 Pa. 23; McKinney vs. Monongahela Nav. Co., 14 Pa. 65. The water rate is not a debt, but a tax; Mills on Eminent Domain 3 ; Cooley on Taxation 416; Dillon on Municipal Corporations Sect. 755; Schenley vs. Allegheny, 36 Pa. 63; Hammett vs. Philadelphia, 65 Pa. 146; Washington Avenue, 69 Pa. Pa. 352; Seely vs. Pittsburg, 82 Pa. 360; Craig vs. Philadelphia, 89 Pa. 265; Allentown vs. Henry, 73 Pa. 404. Taxes collected by action at law, only where there is an Act of Assembly giving such power; Weber vs. Reinhard, 73 Pa. 370; Hayes vs. Grier, 4 Binn 84; McCracken vs. Elder, 34 Pa. 241.
    B. F. Dettra, R. E. Wright, Jr., and G. F. Baer, Esqs.,
    contra, argued that by Act April 26, 1864, P. Laws 598, Sect. 38, the franchises of the Water Company were vested in. the city. The supplying of water is exercising 'the power of a private corporation; Western Saving Fund vs. Philadelphia, 31 Pa. 189; Wheeler vs. Philadelphia, 77 Pa. 354; Girard Life Insurance vs. City, 88 Pa. 393; Pray vs. Northern Liberties, 31 Pa. 69; Where a statute gives a remedy in affirmation of a matter actionable at common law, the statutory remedy may be waived ; Rees vs. Emerick, 6 S. & R. 288 ; Smith vs. Shuler, 12 S. & R. 242; Wike vs. Lightner, 1 Rawle 290, The Act of 1806 only applies where there is on efficacious remedy provided ; Rhines vs. Clark, 51 Pa. 100. Remedy by lien against public buildings is illegal and useless; Wilson vs. Huntingdon County 7 W. & S. 197; Williams vs. Controllers, 18 Pa. 275; Foster vs. Fowler, 60 Pa. 31.
   The Supreme Court affirmed the judgment of the Common Pleas on March 21, 1882, in the following opinion:

Per Curiam.

By the 7th Section of the Act of March 21, 1865, P. Laws, 459; the City Councils of Reading were empowered to provide for the collection of all. water rates, “said rates shall be collected in the same manner and under the same restrictions as are now provided for by the Charter of the City of Reading for the collection of city taxes on real estate.” By the Act of April 26, 1¿64, P. Laws 600 : “An act revising the charter of the Municipal Corporation of the City of Reading,” Sect. 42; recovery may be had on claims for taxes, “by action of debt to recover a general judgment against the debtor.” To have registered the water rate as a lien against the jail and Court house, would have been a vain and useless thing, which the law will never compel. No proceedings could reach and sell ■the property against which the lien was entered. There was no ground of objection to the proceeding.

Judgment affirmed.  