199 A. 485 | Pa. | 1938
This appeal turns on the meaning of part of the Act1 of June 25, 1919, P. L. 581,
The record shows that by December 15, 1937, no financial program for the year 1938 had been adopted. It also appears that "before the beginning of the ensuing year" (to use the words of the statute) the required *429 appropriations had not been made. On December 16th this proceeding was begun in the name of the Commonwealth, at the relation of the District Attorney, praying for a peremptory writ of mandamus requiring respondents to comply with the statute. An alternative writ was issued and a return was filed to which petitioner demurred. The learned court below, after hearing on the demurrer, dismissed the petition on the ground that the provisions of the statute were not mandatory. Immediately after the argument of the appeal, on January 24, 1938, we filed an order containing the following: "It is ordered and decreed that a writ of peremptory mandamus shall issue forthwith, commanding City Council on or before January 31,2 1938, to adopt a budget and a financial program as required by law; writ returnable to this Court February 1, 1938."
The record, then, shows that the year 1937 ended without the adoption of a financial program for 1938. This failure to adopt such a program was in clear violation of the law. The Act required the mayor, the city controller and council to comply with its provisions during 1937 so that obligations maturing on and after January 1, 1938, would be provided for. The legislature not only did not intend that the city should begin the ensuing year without provision having been made for the cost of the municipal government from January 1st on, but, in addition, had taken care to provide that if the tax rate was not fixed by December 15th on property then subject to taxation, the old tax rate should remain in effect. This mandamus proceeding called the attention of the learned court below to the default of the municipal authorities, and, as the statute clearly provided that no money could be expended after the first of January for running expenses, the learned court should have immediately granted the peremptory writ in order *430 that the municipal government from and after January, 1938, would have been provided for. The deplorable consequences likely to result from the failure to comply with the law might readily be imagined, but in this case it is unnecessary to deal with conjecture; the result of the default appears in the city controller's petition. On January 28, 1938, the city controller, who, in default of the enactment of a budget before the end of 1937, was left without authority to countersign warrants for the payment of running expenses of the city government from and after January 1st, filed his petition in this court, asking leave to intervene and to be made a party in this case, and for an order authorizing him to approve the payment of expenses3 necessary to maintain the city government from and after January 1st. His petition contained, among others, the following averments:
"3. The failure of the City and County of Philadelphia to meet the payrolls of its various employees has given rise to great emergency by reason of the fact that the patrolmen, city firemen and others in vitally important positions have been unpaid since January 1, 1938.
"4. By reason of said situation there is grave danger of a breakdown in the functioning of the agencies of the City and County government; that such breakdown, if it happens, will threaten and jeopardize the enforcement of law and order and the lives and property of the two million citizens of the City and County of Philadelphia. *431
"5. That the Treasurer of the City and County of Philadelphia presently has on hand money sufficiently available to meet these payrolls.
"6. That the petitioner is prepared to direct immediate payment of said payrolls if authority is given by your honorable Court so to do.
"7. That in compliance with the order of your honorable Court in the above stated case to complete enactment of the budget on or before January 31, 1938, the City Council has proceeded to do so and such a budget for the year 1938 is now in the course of preparation and enactment."
An order was made as prayed for. On February 15th the controller filed a second petition for leave to make payments accrued since February 1, 1938, and, in the emergency, leave was granted.
On February 1st, the return day of the peremptory writ issued by this court, respondents filed a return averring compliance with it and asking to be dismissed. The return was deemed insufficient; we directed that the writ be "continued in full force and effect until defendants comply therewith by adopting a budget and a financial program according to law as heretofore ordered." On May 2d a return was filed alleging compliance with the order and on May 6th a reply was filed by petitioner admitting the averments of the return; the appeal may therefore now be finally disposed of.
It is contended, on behalf of the relator, that the statute imposes certain mandatory duties on the mayor, the city controller and the council, requiring them to do certain things necessary for the city government during the ensuing year and that the appeal presents no problem of statutory construction; that the words of the Act, in their common and generally understood sense, are mandatory, and that the officers — the mayor, the controller and council — have no option but to comply with the mandate. On the other hand, the learned city solicitor contends that the provisions are not mandatory *432 but are merely directory or discretionary, and that the officers, or any of them, at pleasure may disregard the time specified by the legislature for the performance of the duties imposed on them. Construction is necessary only if the expressions used will bear two or more meanings. In applying a statute, it is first necessary to ascertain the meaning of the words used by the legislature; that meaning is matter of fact; having ascertained the meaning, the next step is to determine what the legislature intended should be their legal effect. The words used in the Charter Act have a commonly accepted meaning, about which difference of view seems impossible; if the words are given that meaning, there is no doubt they are mandatory: "the mayor shall furnish";4 "the estimates of receipts and liabilities shall be furnished to the mayor by the city controller;5 he shall also furnish to the mayor. . . ." (Section 1.) "Immediately after the receipt of such statement [by the mayor] the council shall consider . . . and the councilshall, in one ordinance, on or before the fifteenth day of December following, adopt a financial program for the ensuing year. . . ." (Section 2.) "On or before the same date, the council shall levy and fix a tax rate for the ensuing year. . . ." (Section 3.) ". . . and the city controller shall not countersign any warrants (except for payment of interest and for sinking-fund) pertaining to any of the appropriations until the said council shall have first passed all appropriations necessary for the expenses for the current year of each department, officer, board, commission, trust, committee, or other agency whose financial requirements are to be met out of the proceeds of taxes levied by the council or out of any other funds over which the council has control, *433 nor shall said officer countersign any warrants, except as aforesaid, until the total of all appropriations and all lawful obligations (other than as aforesaid) as estimated by the city controller, shall have been brought within the sum of the estimated receipts from taxes and from other sources except loan funds." (Section 4.) This fourth section contains other provisions of the same peremptory character.
As the words, in fact, are mandatory, the next step in the inquiry suggested by respondents, is whether the legislature intended the words to be given their usual meaning, that is, a mandatory sense. Appellant says that was the intention; appellees deny it, and say the word "shall", so frequently used in the Act, was not intended to be used in its ordinary sense, but in the extraordinary sense of "may", and that the common meaning of the words should be disregarded, and instead, the word may should be substituted for the word shall.
Questions of this kind have so often appeared for consideration, that variously expressed rules or aids to construction have become recognized in dealing with them. Before particularly referring to these rules, attention must be directed to section 13 of the Act of March 21, 1806, 4 Sm. L. at page 332,
The subject matter of the statute is the local government of Philadelphia. As has been said, the particular sections for consideration appear in Article XVII, which is entitled, Finance.6 It contains the commonwealth's delegation of the power to tax for municipal purposes and the restrictions on the municipal spending power. It is elementary that delegated taxing power *434
is subject to strict construction: compare Wilson v. Phila.School District,
We all agree that mandatory duties are imposed on the officers mentioned, taking the words of the statute in their common meaning, and that there is no necessity to resort to rules of construction. But as the learned court below was of opinion, and respondents' argument is to the same effect, that the legislature, while using mandatory words, intended to vest power exercisable at discretion, we shall briefly examine the contention. It is said in respondents' brief, that "the mere fixing of a time for the doing of a particular act, unless negative language is employed or unless an alternative consequence is provided for, is merely directory as to the time limit. . . ." Now, as has been noted, the legislature not only used mandatory words, but in addition used the equivalent of "negative language" and also provided an "alternative consequence". What could be more negative in effect or more completely "an alternative consequence" than declaring that for default in fixing a rate by December 15th, the old rate should apply for the new year and carry with it corresponding restrictions on expenditures? In addition, we must keep in mind that we are applying a statute providing for municipal government from year to year *435
without interruption and that every duty imposed was intended to be performed so that the municipal government might proceed from day to day without interruption. A headnote to the report of Bladen v. Philadelphia,
It must not be overlooked that the legislature did not vest in council alone the duty of determining the revenue to be raised by taxation; it ordered that the mayor should furnish certain information on or before October 15th and also required, in order that the mayor might be properly informed, that the controller should supply him with certain information, known to him, in virtue of his office as the city's chief bookkeeper. The controller, therefore, must perform a particular duty to enable the mayor to do his duty in order that council may complete the work of all three by adopting the next year's financial program whether based on the old or on a new tax rate for the ensuing year; it is the joint product of the mayor, the controller and the council; the financial program must be adopted before the controller can authorize payment of expenses accruing on and after January 1st of the ensuing year.
The third and fourth paragraphs of the relator's petition for the writ of mandamus averred that on October 14, 1937, the city controller certified to the mayor a statement of estimated receipts and liabilities for the ensuing year in accordance with section 1 and that, on the same day, the mayor furnished a statement of estimated receipts and expenses for the ensuing year, and *437 that between October 14th and November 22d the mayor submitted several revised statements of estimated receipts and expenses, and that on or about November 22d he submitted a complete and final statement of the estimated receipts and expenses for the ensuing calendar year. The return denied these averments and asserted that "No positive or certain certificate of estimated receipts and disbursements was . . . submitted . . . [to respondents on the dates mentioned] or at any other time, . . . by the City Controller to the Mayor or transmitted to the Council." Respondents alleged that the statements submitted to them were uncertain and provisional and not as required by the statute. They aver "There was appended thereto a recital in substance and effect that the sum of $4,215,000 of possible revenue from the Municipal Gas Works was in abeyance and that 'as soon as a different plan of operation is adopted, the Controller will be glad to certify to City Council the revenue that could be expected to be received from such a plan.' Such a plan of operation is now pending and the early adoption of a plan is expected and until its adoption the final estimate of the City Controller will not be available." In support of the inadequacy of the statement submitted by the mayor, they also averred that the sinking fund commissioners, in their certificate to council, specifically stated that it was not final and that another certificate would be supplied but that it had not been done.
It is not now important to distribute among the officers responsible, the blame for the failure to comply with the statute, nor does the appeal require it. The necessity for the continuity of local government is so obvious that the form of the statute will tolerate no excuse for nonperformance of the duty imposed; no alleged justification for default can be accepted. A municipal officer who omits to perform a governmental duty imposed on him by statute, assumes grave responsibility and by his failure may render himself liable to *438
indictment, prosecution, and on conviction, to removal from office: Com. v. Coyle,
The general equity jurisdiction is also available in a proper case: the Act of June 16, 1836, P. L. 784, section 13, 17 PS section 282, conferred jurisdiction ". . . so far as relates to . . . V. The prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals." Compare Wilson v. Philadelphia School District,
As it appears by their return, that respondents have complied with the peremptory writ issued by this court, it will be sufficient now, for the reasons stated, to order only that the decree of the learned court below be reversed, costs to be paid by respondents.
