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 (59 Conn. 354) in 12 L.R.A. 353. It is frequently said that no universal rule of interpretation can be stated, specifying when an enactment mandatory in form shall be considered to be permissive only, or when a statute permissive in form shall be considered mandatory; but is agreed in the words of one of the opinions quoted by the court that "It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered": (Lord Penzance in Howard v. Bodington, 2 Pro. Div. 203, 1877).
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, *Page 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, 101 Pa. 304 (1882), it was held that money paid to satisfy a lien for street improvements, could not be recovered back, even though at the time it was paid, the city solicitor agreed that if there was no legal liability to pay, the money could be recovered. The claim had been filed pursuant to legislation enacted in 1870 and 1872, in part held unconstitutional in Seely v. Pittsburgh, 82 Pa. 360. It is matter of legal history that the legislation there questioned provided for street improvements over a large area, and that *Page 37 much money was paid to the city to satisfy liens filed to recover the cost of those improvements; the subject was therefore important, and, as the opinion in Peebles' case indicates, it received thorough consideration; the result of the decision was that no landowner, paying as Peebles had, could get his money back.
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, 259 Pa. 306, and cases there cited), but, considering the many governmental subdivisions in the Commonwealth affected by the legislation, with their widely varying financial conditions, it seems unlikely, without more precise and explicit language, that the legislature intended to subject them to the expense and trouble of defending suits to determine that liens which had been satisfied were lawfully ordained, and, if the suits were lost to add to existing financial burdens, the duty of raising additional money to pay. It would seem more rational to conclude that the legislative purpose was limited to removing all doubt about the power of a city to repay such sums; and especially so, since about the time the law was passed, the power to refund was doubted. This confusion was disclosed by Rubinsky v. Pottsville,81 Pa. Super. 105. Unlawful paving assessments had been collected by the City of Pottsville. Desiring to refund, the city, in 1920, passed an ordinance (in its preamble referring *Page 38 to Pottsville v. Jones, 63 Pa. Super. 180, decided in 1916) authorizing and directing the city to refund that and similar assessments which had been paid. While there is no basis for the conjecture here, it may be that the decision in Pottsville v. Jones led to the passing of the statute under consideration. Notwithstanding the ordinance and the statute, payment was refused. Rubinsky then sued to recover back what he had paid, and joined with the city in a case-stated. The point for decision was whether the city had authority to repay, it being suggested that the Act of 1917 and the amendment of 1919 were unconstitutional as special and local legislation. The opinion of this court sustaining a judgment for the plaintiff, was written by Judge HENDERSON, who said: "The question is one of the authority of the city to do the thing proposed and that depends on the effectiveness of the legislation. The Act of 1919 confers such authority; it is immaterial that it was supposed when the ordinance was adopted that it was the Act of 1917 [which alone had been mentioned in a preamble in the ordinance] under which it was proceeding."
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 *Page 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, 175 U.S. 414, 421. There is no ambiguity in the terms of this act": Caminetti v. U.S., 242 U.S. 470, at 485. In Dame's App., 62 Pa. 417, 422, Judge SHARSWOOD said: "The moment we depart from the plain words of the statute according to their ordinary and grammatical meaning, in a hunt for some intention founded on the general policy of the law, we find ourselves involved in a `sea of troubles.' Difficulties and contradictions meet us at every turn." See also Com. v. Foundry Co., 203 Pa. 302, 305-7.
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, 259 Pa. 306.
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 *Page 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, 34 Pa. 496, was a mandamus proceeding in the Supreme Court, brought to require the councils of Pittsburgh to assess and levy a tax to provide for the payment of interest on bonds issued by the city in payment of its subscription to the stock of a railroad company. While the statute authorizing the city to subscribe and take stock was permissive, having once taken it, the city was of course bound to pay its obligations incurred therefor, so that what was said by the court concerning the interpretation of statutes must be considered in that connection; having exercised the power, the city of course could not escape payment of its obligation by interposing legislative discretion. The next case, Carbaugh v. Sanders, 13 Pa. Super. 361, arose on a motion to quash an appeal from a judgment of a justice of the peace. The statute questioned was the Act of June 24, 1885, "relative to costs in suits before aldermen and justices of the peace, and the collection of the same," providing "that in all cases of appeal from the judgment of an alderman or justice of the peace, the said alderman or justice shall be entitled to demand and receive, from the appellant, the costs in the case, before the making and delivery of the transcripts for said appeal." Appellant paid all the costs except $4.26, which were the costs of certain witnesses for the plaintiff. In the common pleas, plaintiff moved to quash the appeal because defendant had not paid all the costs. The court held he had not perfected the appeal; that the "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......" The third case is Wolfe v. Edgewood Borough, 58 Pa. Super. 38, in *Page 41 which it appeared that in opening a street, the benefits assessed by the viewers equaled the damages awarded, whereupon plaintiff paid her assessment. Thereafter some of the parties affected appealed, and the damages awarded by the viewers were reduced. This left the borough in possession of the benefits paid in an amount exceeding the damages finally paid. The statute provided: "The total assessment for benefits shall not exceed the total damages awarded or agreed upon." It was held that the expressed legislative purpose was to limit the amount which might be collected as benefits to what was paid as damages, and that, accordingly, the borough was required by the statute to refund what it was prohibited from retaining. The last one, McMullin Guardian, v. Trust Co., 261 Pa. 574, held that the court had improperly exercised its discretion under the Act of April 13, 1868, P.L. 94, authorizing a representative of a nonresident lunatic to apply to the courts of this State for an order for the removal of property therefrom, and in that connection referred to the rule quoted. It would seem obvious that the statutory interpretations in those cases are not inconsistent with what is suggested as the proper interpretation of the Act of 1917.
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 *Page 42 in Com. v. Bessemer Co., 207 Pa. 306: "`Nothing short of the most indubitable phraseology is to convince us that the legislature meant their enactment to have any other than a prospective operation': Dewart v. Purdy, 29 Pa. 113. `There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the legislature: Neff's App., 9 Harris 243; Fisher v. Farley, 11 Id. 501; Becker's App., 3 Casey 52. Lord Bacon expressed concisely the same rule: Neque enim placet Janus in legibus. Retrospective laws generally if not universally work injustice, and ought to be so construed only when the mandate of the legislature is imperative': Taylor v. Mitchell, 57 Pa. 209. `Unless such intent is clearly manifest, it will not be presumed that the legislature intended any other than a prospective operation': Peoples' Fire Ins. Co. v. Hartshorne,84 Pa. 453."
(NOTE. — The Superior Court of its own motion certified this case to the Supreme Court.)