This case calls for the construction of Gen. Sts., c. 196, ss. 1, 14, authorizing police courts in towns. In construing statutes, the court should ascertain the intention of the law-making power, and give it effect in every legitimate way. This requires not only an examination of sections 1 and 14, but of antecedent statutes on the same subject-matter.
Police courts in towns were first established in 1852. Laws of 1852, c. 1282, s. 1, provided that there should be, in each town in this state in which the act may be in force, a police court, consisting of one person commissioned by the governor, pursuant to the constitution. Section 7 provided that "said justice shall account for and pay over to such town all the fees by him received, or which now accrue to justices of the peace in civil actions and criminal prosecutions, and such towns shall pay annually to said justice of said court the sum of not less than one hundred dollars, to be fixed from time to time by such town, at a meeting thereof duly called for that purpose, in full compensation for all services assigned to him by the provisions of this act." Section 12 provided that the act should be in force in any town which, at a legal meeting, should adopt the same, and that the town-clerk should file in the office of the secretary of state a copy of the vote within thirty days after its adoption, which should be the evidence on which the appointment of a police justice should be made. The town, under this act, by adopting it, authorized the appointment of a police justice by the governor, and obligated themselves to pay him a salary of not less than one hundred dollars, and he was to account for all fees to the town.
Laws of 1854, c. 1534, authorized any town, that had or should thereafter adopt c. 1282, Laws of 1852, to rescind the vote adopting it, when it should cease to be in force, and the town should cease to be liable for the salary. This act gave no authority to towns to refuse to pay the salary unless they abolished the court. These statutory provisions continued till the revision of 1867, when it was enacted in Gen. Sts., c. 196, s. 1, that any town may by vote provide suitable compensation, not less than one hundred dollars per annum, for the justice of a police court therein; and upon a certificate made by the town-clerk to the governor of such vote, and the article in the warrant for the town-meeting under which it was passed authorizing the same, a justice may be appointed, and the court thereby established. This section contains the substance of ss. 1, 7, and 12, c. 1282, Laws of 1852; that is, it provides for the establishment of a police court and the liability of the town for the salary in one vote. It contains no new legislation, but consolidates the legislation of 1852 regardless of c. 1534 of 1854.
General Statutes, c. 196, s. 14, provide that "any town may rescind their vote establishing an annual salary for a police justice, and shall be no longer liable therefor; in which case the justice *Page 83 and special justice of said court may receive and hold all fees accruing to them to their own use." This section is, in part, the act of 1854, with the authority of a town to rescind the vote adopting the law of 1852, changed to an authority to rescind the vote to pay a salary of not less than one hundred dollars, and in part, new legislation, making the fees that accrue to the office the salary. The inquiry now is, What was the effect of reenacting ss. 1 and 14 in this modified form, in the same chapter, in the revision of 1867? Prior to this, towns having police courts were obliged to pay a salary of not less than one hundred dollars and take the fees of the office, and had no relief, except by abolishing the court, under the act of 1854. In condensing and consolidating the provisions of the local option law and making it general, the substance of ss. 1, 7, and 12 was brought together in s. 1 of the revision without an essential change of meaning. This restored the law as it was before the act of 1854; and if s. 14 had been omitted, towns would have had no power to abolish the court or the salary. It appears that s. 14 changed the effect of s. 1, so that the salary of not less than one hundred dollars could be abolished by the town and make the fees accruing to the office the salary, and have the court continue with the same jurisdiction and powers as before. This in legal effect left it optional as to all existing courts for the town to say whether the court should receive the pay of a fixed salary of not less than one hundred dollars and the town take the fees, or allow the justices to take the fees accruing by law to the office. Is it not plain that the legislature intended s. 14 to modify and change s. 1 to this extent? And if it is, was it the intention of the legislature, in the enactment of s. 14, to make it optional with towns whether they paid a salary of not less than one hundred dollars, or the fees that accrued to the office, and at the same time require towns in the establishment of every new court to perform the idle ceremony of voting a salary as a prerequisite to the establishment of a court, which requirement the town could at once call a meeting and dispense with, and the court would continue to exist with the same powers as before? It would seem that such a construction is so void of practical sense that no court can well say that the legislature intended to establish such a rule for the creation of police courts. Then, considering ss. 1 and 14 together, what is their meaning, and what was the purpose of the legislature in enacting them? Is it not the combined meaning of both sections that towns have the authority to say whether they will pay the police justices by salary, or by the fees of the office, and that the establishment and continued existence of the court do not depend upon the vote of the town to pay in the one way rather than in the other; that it may vote to establish a court and pay it a salary of not less than one hundred dollars, or it may vote to establish a court, saying nothing about a salary, in which case it would be the fees accruing to the justices, or, which *Page 84 would be the same thing, a vote to establish a court, giving it the fees of the office in lieu of the salary?
The town of Pittsfield having voted to establish a police court, and to give it the fees accruing to the office in lieu of an annual salary of one hundred dollars, and the justice having been duly appointed by the governor, the police court in that town is a de jure court under c. 196, Gen. Sts., and the justice is entitled to the fees voted by the town, and no other salary. The result in State v. Varrell, 58 N.H. 148, was right, but the decision should have been placed upon a different ground.
Judgment for the defendants.
CARPENTER, J., did not sit the others concurred.