LINN, J., dissents, PORTER and TREXLER, JJ., concurring. *Page 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 *Page 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.,229 Pa. 357, and De la Cuesta v. Insurance Co., 136 Pa. 62, decisive of the question. On the facts disclosed by the evidence it is not clear however that the case rests on the doctrine of voluntary payment. It *Page 29 is true that the lien as recorded was discharged by the plaintiff for the amount appearing to be due, but it would seem that it must have been entered inadvertently for the amount charged therein, as the ordinance authorizing the improvement leaves no room for doubt that the charge against the abutting properties was only to be one-half of the cost of the whole improvement on the street. There is support for the argument therefore that there was a mutual mistake of fact as to the terms of the ordinance in which case an action would lie to recover the amount paid in excess of the lawful charge. A discussion of the subject may be found in 2 Pomeroy's Equity, 2d ed., section 849, and the cases there cited. If the municipal authorities and the plaintiff acted on the mistaken supposition that the charge was properly entered for the whole cost of the improvement in front of the plaintiff's property when the fact was otherwise, that could properly be said to be a mistake of fact and not a mistake of any legal principle or rule of law. Passing that question, however, we are brought to a consideration of the effect of the Act of July 5, 1917, P.L. 682, on which the plaintiff relies to sustain the action. This statute is entitled an act authorizing cities to refund money paid by property owners into their treasuries when a court of competent jurisdiction shall have determined that there was no liability for such payment when made. It is provided in the first section that whenever any city within this Commonwealth shall have, under existing laws, paved, curbed and guttered, or otherwise improved its highways, or any of them ...... at the expense in whole or in part of the owners of property bounding and abutting thereon, and such owners or any number of them shall have paid the assessments levied against them by such cities or by viewers for such improvement into the respective treasury, the said cities are hereby authorized and empowered to refund to the said owners of property, or their heirs or assigns, the amount of the assessment thus paid by them, if it shall have been decided in any proceeding at *Page 30 law or in equity by a court of competent jurisdiction that the owners of property bounding or abutting on said highway or highways were not liable for the payment of such improvement at the time it was ordered by the council of said cities to be made. The purpose of this statute is manifest. The legislature seems to have had in view the decisions with respect to the voluntary payment of municipal claims and undertook by this legislation to give a remedy to the person so unlawfully charged. As charges of this kind have not the quality of a contract and are not infrequently imposed against the will of the property owners and the amount paid is not the result of a compromise of a disputed claim, the purpose of the statute is commendable in permitting the municipality to correct a mistake either of fact or law, and unless there is an insurmountable obstacle, that purpose should be given effect. To give it effect in this case is but permitting the city to carry out the provisions of its own ordinance. That the payment was made as claimed by the plaintiff, and that by a proceeding at law in the Court of Common Pleas of Dauphin County, a court of competent jurisdiction, it was decided that the city was only entitled to collect one-half the cost of the improvement from the property on the east side of the street, is conceded. Nor is it disputed that provision was made by the city for a fund with which to pay the share of the cost chargeable to the municipality under the terms of the ordinance. Nor can it be controverted that a municipality can only impose a valid municipal lien for street improvements when they are made in pursuance of law and the mode pointed out by the city ordinance is strictly followed: Scranton Sewer, 213 Pa. 4. It is not the case of a payment of tax for general municipal administration on the strength of which municipal plans were based, for the claim against the defendant was not a tax in that sense. It was a specific charge for a specific improvement. The amount paid was appropriated by law to the discharge of the claim against the land. Such a fund is not available *Page 31 for general municipal expenses. Nor is the claim a derangement of municipal finances where provision has otherwise been made for the discharge of the liability imposed on the city in completing the work. There was a moral obligation to refund that part of the defendant's money which was unwarrantably collected, and the councils of a municipality may recognize a moral obligation as a good consideration for the payment of public money: Bailey v. Phila., 167 Pa. 569. In Wolfe v. Edgewood Boro., 58 Pa. Super. 38, an action was sustained where a municipal claim appeared to be due on an assessment made which assessment was afterward reduced on an appeal by some of the parties affected. It is objected on the part of the defendant that the statute authorizing the return of money so paid is merely permissive. The cities are "authorized and empowered" to refund and these words are said to invest a discretion or option to be exercised or not as may be deemed advisable by the municipal authorities. 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 right of the individual is involved; a lien was entered and payment thereof exacted by the city for double the amount which could have been lawfully charged against the property. If we concede that on the doctrine of voluntary payment an owner so paying was without redress, there can be no doubt of the power of the legislature to provide a remedy. There was a taking from the owner of that which the city could not legally have demanded, and there was propriety therefore in providing a method by which that injury could be rectified. The intention having been indicated then of providing a remedy in such circumstances, the language of the statute should be so construed as to give effect to it. There are numerous authorities which hold that statutes which are permissive or directory *Page 32 merely are to be construed as mandatory where they concerned public interests or the rights of third persons. We held in Carbaugh v. Sanders, 13 Pa. Super. 361, that "a direction contained in a statute, though couched in merely permissive language, will not be construed as leaving compliance optional, where the good sense of the entire enactment requires its provisions to be deemed compulsory." In Mason et al. v. Ferson,50 U.S. 258, it is held that whenever it is provided that a corporation or office "may" act in a certain way, or "it shall be lawful" for them to act in a certain way, it may be insisted on as a duty for them so to act if the matter is devolved on public officers, and relates to the public or third person, and the distinction is pointed out between such language as employed in laws and that found in contracts. A statute of the State of New York provided that it shall be lawful for the mayor, alderman and commonalty of the city to construct sewers, drains, etc.; the contention there was that the statute was directory merely, but the court held that the word "may" should have the significance of the word "shall" and that the inference deducible from the various cases on the subject is that where a public body or officer has been clothed by statute with authority to do an act which concerned the public interest or the rights of third persons, the execution of the power may be insisted on as a duty although the phraseology of the statute be permissive merely and not peremptory: The Mayor, etc., of the City of New York v. Furze, 3 Hill 612. By a statute of Minnesota the city council was "authorized and empowered" to order payment and to pay the amount of certain claims. The court considered the question whether the language of the act was directory or mandatory and adopted the rule expressed by Lord Penzance in Howard v. Bodington, 2 Prob. Div. 203, who said that it was necessary to look to the subject-matter, consider the importance of the provision and the relation of it to the general object to be secured by the act, and on a review of the cases it was *Page 33 held that the language of the statute was mandatory: Bowen v. City of Minneapolis, 47 Minn. 115. An act of the legislature of New York "authorized and empowered" the board of supervisors to cause taxes illegally assessed and paid to the county to be repaid, it was held to be the duty of the supervisors to comply with the statute: 36 Howard Pr. 1. An Illinois statute authorized the board of supervisors of townships if deemed advisable to levy a special tax to be assessed and collected in the same manner and at the same time as other county taxes. The question arose whether this authority was permissible or mandatory and the court held the conclusion to be deduced from the authorities is that where power is given to public officers in the language of this act or in equivalent language, whenever the public interest or individual rights calls for its exercise, the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person, the law requires shall be done. The power is given not for their benefit, but for his. It is placed with the depository to meet the demands of right and to prevent a failure of justice. It is given as a remedy to those who are entitled to invoke its aid and who would otherwise be remediless. In all such cases it is held that the intent of the legislature, which is the test, is not to devolve a mere discretion, but to impose a positive and absolute duty: Supervisors v. U.S., 71 U.S. 435. In People v. The Board of Supervisors of Livingston County, 68 N.Y. 114, the court held that where public interest or private right requires that the thing shall be done then the word "may" is generally construed as "shall." The subject was considered in Commonwealth ex rel. v. The Select and Common Councils, 34 Pa. 496, and the conclusion reached that the words "shall have power" to levy a tax imposed a duty. "The Supreme Court of the United States similarly laid it down that what public officers are empowered to do for a third person, the law requires shall be done whenever the public interest or individual rights call for the exercise of *Page 34 the power; since the latter is given not for their benefit, but for his, and is placed with the depositary to meet the demands of right, and prevent the failure of justice. In all such cases, the court observed, the intent of the legislature, which is the test, is, not to devolve a mere discretion, but to impose a positive and absolute duty": Endlich on the Interpretations of Statutes, section 310, quoted with approval in McMullen v. Commonwealth Title, Insurance and Trust Co., 261 Pa. 574. These authorities support the plaintiff's contention that the statute in question was intended to vest in one who had been charged with more than he was lawfully bound to pay for a municipal improvement, a right to a return of the amount so paid. The statute should be construed to impose a duty on the municipality to do that which theretofore it was not bound to do however just might be the demand. The city is not entitled to more than the law allows it for municipal improvements. The owner of property is bound to pay that which is lawfully chargeable. More than this should not be exacted, and if paid through mistake or inadvertence or misapprehension, justice requires that it be returned if the law provide a remedy. This the Act of 1917 undertakes to do, and in using a permissive phrase the intent should be inferred that the legislature meant to enjoin a duty. It would be an imputation on the intelligence of the legislative body to suppose its intention was to adopt any system of discretion or favoritism by the application of which money might be refunded to A and refused to B, or applied to property owners on one side of the street and denied to those on the other. The only reasonable interpretation is that it was intended to establish a method by which justice could be done.
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 *Page 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.