82 Pa. Super. 26 | Pa. Super. Ct. | 1923
Lead Opinion
LINN, J., dissents, PORTER and TREXLER, JJ., concurring. *27
Reargued March 14, 1923.
The plaintiff's action was brought to recover the amount paid by it to the city on a municipal lien for *28
street paving in excess of the amount which the municipality was authorized to charge against the plaintiff's property. The assessment was made February 6, 1914. On March 10th, the plaintiff paid to the city 10% of the amount, and on July 10th of the same year a lien was filed to secure the balance of the assessment. In the following November, the plaintiff, having entered into a contract for the sale of the property free of liens, paid the amount of the municipal charge to enable it to execute the conveyance according to the terms of the contract. On the opposite side of the street from the plaintiff's property was a public park and the question having arisen as to the liability of the property fronting on the street opposite the park to a charge for the whole of the cost of the improvement, in an action brought in the Court of Common Pleas of Dauphin County it was decided on April 22, 1916, that the city was liable for the cost of paving and curbing the western half of the street opposite the property located on the east side of the street between Maclay and Division streets. The decision was based on the finding by the trial judge that the ordinance authorizing the improvement only charged the abutting property owners with one-half of the cost of the paving in front of their respective properties — the other half being assumed by the city, for the payment of which provision was made in the ordinance for the sale of municipal bonds. The effect of this decision was that the plaintiff's property was only subject to a charge for the cost of one-half of the pavement in front of its lot. The judgment in this case went against the plaintiff on the ground that its payment of the lien was voluntary; that no duress or restraint was exercised; and that there was no protest of the amount due. The trial judge considered the decisions in Shenango F. Co. v. Fairfield Twp.,
It is suggested in the brief of the appellee that if the act have the effect claimed for it by the plaintiff, it is unconstitutional because the title gives no notice of the purpose of the legislation. The proposition is not discussed at length and we are not convinced that the objection *35 is valid. It is an act authorizing the refunding of money by cities to property owners who have paid charges for which they were not liable and the legislation follows that description and is less comprehensive than the title.
It follows from the foregoing discussion that the learned trial judge reached an erroneous conclusion in entering judgment non obstante veredicto. The judgment is reversed and the record remitted to the court below with direction to enter judgment on the verdict.
Dissenting Opinion
What does the statute mean? In terms, it authorizes and empowers cities to refund money paid in specified circumstances. In 1919 (P.L. 20) its provisions were extended to boroughs and incorporated towns.
While neither mandatory nor retroactive in words, the court holds that it is both, by supposing the legislature so intended. Whether statutes shall be deemed permissive or mandatory, regardless of phraseology, has been much discussed; some of the cases are considered in 25 R.C.L. pp. 766 to 772, in 36 Cyc. 1157, and in a note to Gallup v. Smith (
Applying that rule, it will first be observed that the statute deals with government; the State confers a power on a subordinate governmental agency; whether legislative action was necessary is immaterial in this discussion, *36 for there is evidence that there was in fact doubt about it, as appears by the litigation in Rubinsky v. City of Pottsville, infra. Being governmental in character, and for its exercise requiring the raising of money by municipal legislation, perhaps by loan, and, conceivably even, in circumstances where a municipality's borrowing capacity is exhausted or insufficient, it differs in scope and character from the statutes under discussion in the cases cited in the opinion of this court.
The opinion concedes, that to reverse the judgment, the words of the statute must be interpreted in a sense different from their ordinary meaning. The court says, "to give effect to the statute, however, it is necessary to place a different construction on the language used. The intent is to be judged by the purpose of the statute and we think it cannot be supposed that the legislature intended to leave compliance with the provisions of the act of 1917 optional." The departure from the applicable rule of interpretation would seem to be in that speculation. Though one agree "the intent is to be judged by the purpose of the statute," the question still remains what was the purpose. There is nothing in the statute itself indicating an intention other than that clearly expressed; nor does the court specify where it appears aliunde that the legislative intention was to make the statute mandatory and applicable to transactions long past and forgotten.
What was the situation prior to the enactment? Long before 1917, in Peebles v. Pittsburgh,
How did the statute affect that situation? This court now holds that the legislature in 1917 intended to furnish to Peebles and other parties who had made such payments many years before 1917, or even to one who went about and became assignee of such parties, with a right of action to recover back such payments; that, notwithstanding the financial condition of a city that long before had received such payments, it was nevertheless bound on demand to raise the money and make payment, — the only apparent restriction being that afforded by the period of limitations, on the theory that it began to run from the creation of this statutory right.
The power of the legislature to impose such mandatory obligation to repay is conceded, (see Kennedy v. Meyer,
As it appears, then, that municipal officers in good faith doubted their authority to refund, despite the ordinance authorizing them to do so, is it not obvious that a rational purpose is attributed to the legislature by holding the statute to be permissive, to remove the doubt existing, as it did, among municipal officers at about the time of the legislation? It would seem to be more reasonable than attributing to the legislature an intention of conferring a right of action on parties who theretofore without limit of time, had paid such uncollectible claims.
The statute would seem to call for the application of the following well settled rules of interpretation: "The legislature must have intended to mean what it has plainly expressed, and consequently there is no room for construction. It is, therefore, only in the construction of statutes whose terms give rise to some ambiguity, or whose grammatical construction is doubtful, that courts *39
can exercise the power of controlling the language in order to give effect to what they suppose to have been the real intention of the law makers": Endlich on Interpretation of Statutes, p. 6. "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms. [Citing precedents.] Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion: Hamilton v. Rathbone,
When the legislature in 1917 wished to pass a mandatory act requiring the payment for work and labor furnished in circumstances where there was no right to recover therefor, it used appropriate language; in the Act of April 20, 1917, P.L. 91, it provided "and such county is hereby authorized and directed to ascertain and pay for all work done and materials furnished......": Kennedy v. Meyer,
Moreover, it is significant that in another respect the form of the legislation seems against the interpretation adopted by the court. If the purpose had been to require cities to repay, it would seem that the legislature would have directly conferred a right of action upon the parties intended to be benefited (see, for example, acts like that of March 6, 1903, P.L. 18) exercisable on the refusal or *40 failure of a city to make the payment ordered, instead of leaving the right of action to be implied.
The Pennsylvania decisions cited in the opinion furnish no real support for the interpretation adopted. The first one, Com. ex rel. v. Councils of Pittsburgh,
As the court holds that the reversal of the judgment can be sustained only by interpreting the act as requiring cities to make such repayment with liability to suit for refusal, it has been considered immaterial for present purposes, whether the city intended the claim to be filed for paving the entire width of the street or for only half of it, or whether the city proposed to pay half the cost with the proceeds of a loan; the single matter now for discussion being whether the interpretation of the statute adopted by the court results in what the legislature intended to accomplish.
It would also seem clear that the act is prospective in scope and not retroactive, but, in view of the difference of opinion already considered, it may be sufficient on this phase of the question merely to quote the rule thus stated *42
in Com. v. Bessemer Co.,
(NOTE. — The Superior Court of its own motion certified this case to the Supreme Court.)