Concurring Opinion by
Mr. Justice Kephart :I concur in affirming the decree of the court below for the following reasons:
It appears a change was being made in water service in this municipality from flat to metered rates; during this transition period, council cannot be held to a too rigid enforcement of its discretionary power in adopting rates for flat and metered rate consumers, — this fact, to my mind, really controls the present case.
If a flat rate is to be measured by a per thousand gallon charge, and it is a permanent rate, as distinguished from what we have just discussed, then a rate of six cents, as against fourteen cents per thousand gallons for metered rates, might well be accounted discriminatory, and could not be justified under any allocation of cost in this case, or on other economic basis.
Flat rate is not in any sense measured by gallons, except as shall be hereafter explained. As I understand the statutes, a flat rate is arrived at' by considering the facilities used, size of the branch water line or individual service pipe, number of spigots, bathrooms, toilets and other water facilities in the house or on the lawn; to all of which may be applied a graduated scale as to probable *566individual consumption. This individual consumption feature is lost sight of where there is a free flowing distribution system, that is, by gravity, with unlimited supply, as some water companies in our State possess. In the present case, there was not sufficient evidence to show that this measure for flat rate discriminated against the metered rate. In many instances the flat-rate customers, through absence or other cause, pay a much higher rate than they would on a meter, and, while there may have been carelessness in the use, the enormous difference between the metered consumption and non-metered may be accounted for in many ways not attributable to actual flat-rate consumption. At all events, the evidence is too unsatisfactory to hold that, on a cost per gallon basis, there was discrimination; for the price of the latter, on the basis argued, is at best a guess.
The fact that water is wasted by flat customers proves nothing; they do not have the right to waste it, and waste cannot enter properly as a factor in making up the flat rate. Customers pay for a normal use, dependent on the rule above expressed, without waste. If the latter occurs, it is a violation of an implied condition attaching to flat-rate users.
In my opinion, the gift of water to charities cannot be supported legally unless municipalities have the power to contribute money or property donations; no act is called to our attention giving them this power. This, however, does not condemn the rates as being unreasonable or discriminatory, any more than the omission of a taxpayer’s property from assessment shows lack of uniformity. The right to collect from these institutions exists as before, and the officers whose duty it is to so collect are responsible in proper proceedings.