i. city martoppk ' —I. The claim for fees for service of orders and notices was disallowed, and on this the plaintiff assigns error, The claim was disallowed upon the ground that under a certain ordinance of the city such fees were not allowable. The ordinance provided in substance that the marshal should receive as full compensation a salary of seventy-five dollars per month, and legal fees in State cases. The authority to pass the ordinance is predicated upon section 524 of the Code, which provides that the officers of cities shall receive such compensation and fees for their services as the council shall by ordinance prescribe. Marshals’ fees are, however, specifically provided for by a different statute (Code, § 536), and the plaintiff’s claim is that while the council can add to the statutory fees a compensation by way of salary, it has no power to deprive him of such fees. The plaintiff’s position is plausible, but it is abundantly evident that the salary was graduated with reference to the provision contained in the same ordinance by which the salary is given, limiting the marshal’s fees to fees in State cases. The salary was given in part instead of the fees in question. Such being the fact, we think that the plaintiff should not be allowed to accept the grant and ignore the restriction. In claiming the benefit of the ordinance we think he has estopped himself from claiming it otherwise than on the terms and conditions of the ordinance. In disallowing the plaintiff’s claim for fees for service of notices and orders, we think there was no error; and if we are correct there was no error in disallowing the plaintiff’s claim for fees for service of process in city eases.
*592a-; repealing statute. *591II. In the State cases the court allowed constables’ fees. *592The plaintiff complains because the court did not allow sheriffs’ fees, and the defendant complains because it allowed any fees at all. The defendant's-complaint demands first consideration. The defendant relies upon an ordinance passed after the commencement of the plaintiff’s term of office, abolishing fees and giving a salary of sixty-six and two-thirds dollars per month, which amount-had been paid. The right to pass such ordinance is predicated upon chapter 56 of the Laws of the Seventeenth General Assembly. The right to pass the ordinance the plaintiff does not deny, but he denies its applicability to him on the-ground that it would contravene section 491 of the Code,, which provides in substance that the marshal’s salary cannot be diminished during his term of office. This position, we have to say; we think is well taken. This must be so unless section 491 is repealed. If it is repealed, it is by reason of section 3 of the said act of the Seventeenth General Assembly. That section provides for the repeal of all acts in conflict with that act. Now, while that act provides that cities of the first class may provide that all city officers shall receive a fixed salary in lieu of fees, we are not disposed to-give the word all the force of including incumbents. It may have a proper force without such meaning. The intent of the act is to allow cities of the first class to change the compensation of officers from fees to salaries. We think this is all. Section 491 has a purpose entirely distinct. Its wisdom is in no way impeached by conceding the wisdom of the change which the act in question was designed to provide. Indeed, so manifest is the wisdom of the provision contained in section 491 of the Code, we should be unwilling to hold that it is repealed, if there is any reasonable way of escaping the conclusion, and we think there is. It appears to us, then, that the plaintiff is not affected by the act, nor by the ordinance passed in pursuance of it giving a salary in lieu of all fees, and it follows that the court did not err in allowing fees in State cases.
*593g ^ We come now to consider the plaintiff’s complaint that the court erred in allowing only such fees as the statute gives to constables. The difficulty arises upon the construction of section 536 of the Code. It provides that city marshals shall receive the same fees as sheriffs and constables in similar cases. But sheriffs and constables do not always receive the same fees. If, in such cases, the marshal received the higher fee, he might be said to receive the same as both, because the higher includes the lower. But this thought, as a ground of construction, does not arise naturally enough to justify us in concluding that it was the thought of the Legislature. We are forced to say that the statute is not susceptible of a satisfactory construction. The plaintiff can recover only what the statute gives him. It cannot give the same fees as are given to sheriffs and constables, where sheriffs’ and constables’ fees differ. Strictly, therefore, in such cases the statute gives the marshal nothing. But it was evidently designed to give him something in all cases. We are not to adopt so strict a construction as to make the statute nugatory, if such construction can be avoided. Considering, then, that the plaintiff must recover something, and can only recover what the statute gives him, we arrive at the conclusion that where sheriffs’ and constables’ fees differ, he can recover only the lower. Constables’ fees are the lower, and, in allowing them, we think the court did not err.
The court allowed the balance of salary as claimed under the old ordinance. In our opinion, as we have already indicated, the old ordinance and not the new one must govern, so far as the plaintiff is concerned. We see, then, no error, and the judgment of the Circuit Court must, upon both appeals, be
Affirmed.