(dissenting.) This action was brought to recover from defendant moneys of the state which had come to *36his hands by reason of his official position as secretary of state. The declaration contains a count for money had and received, and the common counts. The bill of particulars contains the state’s claim for various sums alleged to have been received by defendant for the state, and retained and converted to his own use in the years 1876 to 1880, inclusive, and other sums received in like manner, and also retained and converted to his own use under a claim for compensation for services or fees, for which services and fees, it is alleged, he was not entitled to compensation. The plea is the general issue. The issue thus made has been tried before the Supreme Court at bar upon a case stated, setting out certain facts, admitted.
From the facts thus appearing and the law in reference to moneys of the state received by the secretary of state in his official capacity, it would seem that it was his duty to have paid such moneys into the treasury, and to have claimed compensation for any services rendered by him, or fees due to him, in the ordinary way. The question, however, which would thus arise has been properly waived on behalf of the state. The larger part of the moneys in question were retained by defendant and were claimed by him for fees alleged to be due him for furnishing copies of the laws of this state to newspapers for publication, under an act entitled “ An act relative to the publication of the laws of this state in the newspapers,” approved April 21st, 1876. Pamph. L., p. 383. By a concurrent resolution passed by both houses of the legj islature in the year 1881, the attorney-general waá directed to {proceed against the defendant for the recovery of the moneys so retained, and the proceedings were directed to be so instituted and conducted as to present for adjudication, among other things, the question whether the services actually performed by defendant under said act have been such as to entitle him to the compensation claimed by him therefor. To raise that question, the right of the state to require these moneys to be paid into the treasury, and to insist that defendant’s claim for compensation should be made in the way *37pointed out by law, was necessarily waived. The matter is only now mentioned that it may not seem to be admitted that any official may be justified in retaining public moneys in his hands upon a claim for compensation for services in any. case except where the law permits and sanctions such retention for that purpose.
As the cause has been presented, the claims of the defendant to the state’s money, which is admittedly in his hands, are of two kinds :
1. He claims the right to $6715.44 thereof for fees for filing in his office fifty-five thousand nine hundred and sixty-two returns of births, deaths and marriages during the year 1879, under the provisions of the act entitled “ A supplement to an act entitled £ An act concerning the registry and returns of marriages, births and deaths,’ approved April 5th, 1878;” approved March 12th, 1879. Pamph, L.} p. 117.
2. He claims the right to $37,258.68 thereof for fees for ■furnishing copies of laws for publication in newspapers, pursuant to the act of 1876, above referred to, in the years 1876 •to 1880, inclusive.
With respect to the first of these claims, I have arrived at the conclusion expressed in the opinion of the Chief Justice in the case; and I entirely agree with the reasons for that conclusion therein set forth.
With respect to the second class of the defendant’s claims, my examination of the case has compelled me to a conclusion •different from that arrived at by the majority of the court. It seems proper that I should express the reasons that have forced me to dissent from the other members of the court who sat in this case.
The duties of the secretary of state respecting the- publication of the laws in newspapers, during the period covered by this suit, were defined and imposed by the act entitled ££ An act relative to the publication of the laws of this state in the newspapers,” approved April 21st, 1876. In 1875 the policy •of such publication, which had been adopted in this state in a limited mode as early as 1819, and which had been extended *38in 1854 to certain newspapers in each county and afterward to most of the newspapers in the state, was abandoned by a repeal of all acts respecting such publication. Pamph. L., 1875, p. 27. The act of 1876, supra, provided for the designation of certain newspapers in each county by the governor and comptroller. Such newspapers were to be deemed the legal newspapers of the state for the year in which they were so selected, and were to be authorized to publish the general public laws and such special public laws as were applicable only in the respective counties in which they were published. Compensation for the newspapers was expressly fixed to be paid by the state, and the mode in which it was to be drawn from the treasury was prescribed. The duties of the secretary of state were imposed by the following clause of the third section: “And it shall be the duty of the secretary of state to furnish to the said newspapers copies of the laws herein required to be published.” This clause is followed by a proviso, not germane to it, but evidently applicable to the former part of the section which made the newspapers designated the legal newspapers of the state. This proviso, in my judgment, is interjected into the body of the section. It is in these words: “ Provided, that nothing in this act shall be so construed as to render illegal any public notices or advertisements whatever, and shall only apply to the publication of the laws.” The language is ungrammatical and obscure, but it is quite apparent that it was intended to relate to the then existing requirements of the statute respecting the sale of lands and the advertisements therein prescribed. Then follows, as part of the body of the act: “ And the secretary of state shall receive for his services under this act the rates now allowed bylaw.” This is designed to fix the compensation for the services of the secretary of state, and is evidently disconnected from the previous proviso, which is to be read as if placed in brackets or parentheses. But the last-quoted clause is itself followed by a proviso intended to limit the compensation so allowed the secretary of state. It is in these words: “ Provided the sum shall not exceed one thousand' dollars in any one year.” Read in this *39way, the phrase last quoted is not a proviso to a proviso, as was insisted on in the argument, but a proviso to a clause in the body of the act limiting and restraining its force.
If this act is valid and operative, it prescribes the compensation of the secretary of state for the services thereby imposed upon him.
The questions arising thereon are: 1st. Is the act of 1876 valid and operative as to the defendant? 2d. What compensation, if any, is thereby allowed to defendant for his services ?
With respect to the first of these questions, the insistment of the defendant is, that the act in question, so far as its provisions tend to limit his compensation to $1000 per year, is repugnant to the constitution as lately amended. The particular clause to which he appeals to establish this repugnancy is that part of paragraph 11 of section 7 in article IV., which provides that the legislature shall not pass private, local or special laws * * * “ creating, increasing or decreasing the percentage or allowance of public officers during the term for which said officers were elected or appointed.” His contention is that prior to the passage of the act of 1876 he, as secretary of state, was entitled by law to an “ allowance ” for the services required of him by that act, and that the limitation of that act decreased that allowance during the term for which he had been appointed. It appears that defendant was appointed and commissioned as secretary of state on April 6 th, 1876, for a term of five years. The act in question was passed fifteen days later, viz., on April 21st, 1876. The solution of this question involves, therefore, the preliminary inquiry whether, prior to April 21st, 1876, there existed any law requiring the state to pay to the secretary of state an allowance or fee for the duties imposed on him by the act of that date.
With respect to the second question, viz., What compensation, if any, was prescribed by the act of 1876 ? it is plain that it involves a preliminary inquiry as to what was meant by the phrase used in that act, “ rates now allowed by law.” *40If at that time there were rates fixed by law to be paid by the state for such services as were directed to be performed by the secretary of state, then such rates were undoubtedly those intended by the act. If there were no such rates fixed by law to be paid by the state, the meaning of the phrase, “ rates now allowed by law,” must be sought elsewhere.
It is apparent, then, that we must first determine whether, at the passage of that act, there were rates allowed by law to the secretary of state, and required to be paid by the state, for copies of laws if furnished to the newspapers for publication.
The research of the able counsel of defendant and the most careful examination of the court have disclosed but two acts then in force capable of being claimed to establish the affirmative of this proposition. One is the act entitled “ An act to regulate fees,” approved April 15th, 1846, {Rev., p. 399); the other, the act entitled “ An act relative to the office of secretary of state and register of the Prerogative Court,” approved April 17th, 1846. Rev., p. 1093. Let us examine these acts consecutively.
I. Does the “ act to regulate fees,” commonly called the fee bill, fix an allowance to be paid by the state for copies of laws made by the secretary of state ?
In the paragraph of that act relating to the officer in question occurs the following language:
“ For entering writings on the record, tor each sheet, 8 cents.
“ Eor every copy of the same and other papers in his office, for each sheet............................... 8 cents.”
The language, “ copies of * * * papers in' his office,” is broad enough to include copies of laws which are in the secretary of state’s office, unless its generality is otherwise restrained. My examination convinces me that this language is, by other legislation, so restrained and limited as to be incapable of a construction including “ laws ” among the “ papers,” copies of which the secretary of state may make a charge for.
*41The fee bill in question makes part of the Revision of 1846. Reo. Stat., p. 455. As it there appears, it was taken from the act of the same title, passed June 13th, 1799. Rev. L.,p. 481; Pat. L. 418. Similar acts before that time had contained similar provisions, but it is sufficient for the present inquiry to state that the clause above quoted respecting copies of “ papers in his office ” was contained in identical words in the act of 1799, and has formed part of the act from that time to this. It thus ante-dates the legislation which authorizes the secretary of state to make and authenticate copies of laws. That legislation commenced with the act entitled “An act for securing the laws and relative to the office of the Prerogative Court,” passed November 25th, 1808. Bloomfield 202. Whether, before that act, the secretary of state had been the legal custodian of the laws of the state or not, seems to be questionable. The act indicates that he had in his custody some of the laws previously passed. It expressly requires the clerical officers of the legislature to file with him in the future all bills which passed into laws, which the secretary of state is directed to file and preserve. Before this time the laws had been published in pamphlet form, and such pamphlets were afterward made evidence. Bloomfield 221. But by this act the secretary of state was required to give copies of such laws “ to such persons as may make application for the same;” which copies, when duly certified by him, were made admissible in evidence. For this service the act enacted that “ the secretary of state shall be entitled to receive, for a certified copy of each law, from the person or persons making application for the same, six cents per sheet, and for filing each law and marking each bundle, ten cents, to be paid by the treasurer of the state.”
The act of 1808 was amended by a supplement passed February 17th, 1813, (Pamph L., p. 44,) which provided that the secretary of state should make a copy of every law for the printer of the pamphlet laws, aud imposed on the secretary the duty'of comparing the proof-sheets with the original laws. For this service the secretary of state was to re*42ceive a certain compensation, expressly required to be paid by the treasurer.
An act entitled “ An act relative to fees of the secretary of state and register of the Prerogative Court,” passed February 6th, 1817, (Pamph. L., p. 22,) gave power to the secretary of state to receive, among other things, “ for copies of laws, instruments of writing or records, when applied for by the governor or treasurer of the state for public purposes, the same fees as are directed by law to be paid by private persons, to be paid by the treasurer,” &c.
The above-mentioned act of 1808, its supplement of 1813 and the above-mentioned act of 1817, were incorporated in an act entitled “ An act for securing the laws and relative to the office of the Prerogative Court,” passed May 27th, 1820. Rev. L., p. 727.
The last-mentioned act was incorporated in an act entitled “ An act relative to the office of secretary of state and register of the Prerogative Court,” approved April 17th, 1846, (Rev. Stat., p. 808 ; Rev., p. 1093,) which act is yet in force.
This resumé shows that from 1808 to the present time acts have stood upon the statute-book, side by side with the fee bill, giving to the secretary of state the only power he possesses with respect to making copies of laws, and expressly fixing the allowance or fee to be paid him for such copies. So far as these acts give fees to the secretary of state, they are in pari materia with the fee bill, and they must be read together. Thus read, the fee bill gives a fee generally for copies of “ papers in his office.” The other acts give a fee expressly for copies of laws. The express allowance of a fee in the latter case excludes the notion that “laws” were included among the “papers in his office” for which the fee bill allowed a fee.
My conclusion, therefore, is, that for the fees to be allowed to the secretary of state for copies of laws furnished to any person, we must look to the legislation above referred to, commencing with the act of 1808, and not to the fee bill. The latter, in my judgment, never was capable of being construed *43as applicable to such fees. Whether it could be so construed was not even a doubtful question when the other legislation is considered, as it necessarily must be, in construing such an act.
If I had arrived at a different conclusion, a question would still remain to be considered. If the fee bill is capable of being construed as applicable to copies of laws, it would be necessary to inquire whether the fees so allowed to the secretary of state are imposed on the state when it requires such service of its officer. To such a claim it may well be urged, first, that the state is neither expressly, nor by any necessary implication, included within the legislation, and, therefore, that such a burden is not thereby imposed on it; and second, that by the provisions of that act, and of other acts cognate thereto and in pari materia, the legislative intent to impose the burden on the state of making compensation to officers, including the secretary of state, for certain services, is expressly made known, and that, therefore, in other instances not so expressed, the burden is not imposed. I do not propose to pursue this inquiry, because I shall hereafter deal with similar matters respecting the other acts in question, and because the. conclusion I have above indicated renders such inquiry superfluous.
II. Do the acts comprised in the series above referred to, commencing with the act of 1808, and continued in the various revisions to the present time, fix a rate or allowance to be paid by the state for copies of the laws furnished by the secretary of state ?
By the act of 1808, supra, the fee was given by this language: “For which service the secretary of state shall be entitled to receive, for a certified copy of each law, from the person or persons making application for the same, six cents per sheet.” By the revised act of 1820 the following language was used: “ For which service the secretary of state shall be entitled to receive from the person making application for the same, six cents per sheet for each and every copy furnished.” The same language was used in the act of 1846, (which is yet in force,) except that the fee is increased *44to eight cents per sheet. Does this general language include the state when it requires the secretary of state to furnish copies of laws ?
The state is not expressly required to pay such fees. There is nothing in the acts justifying any implication that the state was intended to be included in the legislation, or that any burden was thereby imposed upon the state. It is scarcely necessary to appeal to authority to justify the assertion that under such circumstances, the state is not affected by the legislation. Acts of parliament did not bind the king unless named therein. “ The most- general words that can be devised, (any person or persons, bodies politic or corporate, &c.,) affect not him in the least if they may tend to restrain or diminish any of his rights or interests.” 1 JBlaek. Com. *261. It is also a general rule in the interpretation of statutes limiting rights and interests not to construe them to embrace the sovereign power or government, unless the same be expressly named therein or intended by a necessary implication. 1 Kent’s Com. 460; Den, Van Kleek, v. O’Hanlon, 1 Zab. 582, 588. When the government is not expressly or by necessary implication included, it ought to be clear, from the nature of the mischiefs to be reached, or the language used, that the government itself was in contemplation of the legislature before a court of law would be authorized to put a construction on a statute which would affect its rights. United States v. Hoar, 2 Mason 314; adopted by the Court of Errors in Trustees, &c., v. Trenton, 3 Stew. 667.
Nor is there any unfairness in applying this rule either to services required of public officers by the state in general, or to those required of the secretary of state in particular. The policy of compensating public officers by fees was early adopted in this state, and in almost every case some service was required to be done for the state for which no compensation was directly provided. The compensation was supposed to be incidentally received in the fees he was authorized by the state’s authority to impose on others. But in this particular case no such difficulty occurs, because by the act of 1846, *45above referred to, it was expressly provided that for all other services required of the secretary of state by law, and not otherwise compensated, he shall receive from the treasurer of the state an annual salary.
These acts, however,' are subject to a rule of construction which renders it certain that the particular services of the secretary of state in question in this case were not intended to be paid for by the state, although rendered on its requirement. That rule is expressed in the maxim, “ expressum facit cessare taciturn” or, as it is otherwise put, “expressio unius ex-clusio alterius.” Prom’s Leg. Max. *505. It is a rule well applied to the construction of statutes. Smith’s Com., § 508. Mr. Dwarris thus comments on it: “ Thus, when certain specific things are taxed or subjected to any charge, it seems probable that it was intended to exclude everything else, even of a similar nature, and, a fortiori, all things different in genus and description from those which are enumerated.” Potter’s Dwar. on Stat. 221. Now, applying this rule to the statutes in question, it excludes the notion that the legislature designed to impose on the state the duty of paying for copies of laws required for publication in the newspapers. The original act of 1808, while providing for compensation for copies of laws from persons applying for the same, expressly required the secretary’s service in filing and marking the laws to be paid by the state. The supplement of 1813 expressly gave compensation to the secretary of state, for services in connection with the printing of the pamphlet laws, to be paid by the treasurer of the state, and the act of 1817, fixing fees for this officer, expressly gave him a fee for copies of laws when applied for by the governor or treasurer of the state for public purposes. All these provisions were included in the act of May 27th, 1820, and afterwards in the revised act of April 17th, 1846, which is still in force. Pev., p. 1093. They are express directions to the state officers to pay to the secretary of state, out of the state treasury, certain fees for certain services in connection with the safe-keeping of the laws and their authentication by copies. They specify in what *46instances the secretary of state is to receive compensation for copies of laws furnished for public purposes, viz., when ordered by certain specified officers. The expression of such, duties on the part of the state, in respect to certain services, is an exclusion of the notion that such duties were designed to be imposed in respect to other services.
Upon this point the language of the act of 1817 seems specially significant. That language has been substantially continued in the acts of 1820 and 1846. Rev., p. 1093. The eleventh section of the last-named act provides that the secretary of state should be entitled to receive for the services hereinafter mentioned the following fees, * * * “and for copies of laws, * * * when applied for by the governor, attorney-general or treasurer for public purposes, the same fees as are directed bylaw to be paid by private persons.” By the clause in italics the legislature plainly declares that the allowance of fees for copies of laws, whether contained in the fee bill or in the other acts above referred to, was applicable only to private persons, and therefore not applicable to the state.
My conclusion, therefore, is, that the acts now under consideration do not fix any rate or allowance to be paid by the state to the secretary of state for copies of laws.' Upon the face of these acts, under admitted rules of construction, the secretary of state is not authorized to require payment of any fees from the state for such copies. In my judgment, there is nothing in any of the acts permitting the opposite conclusion.
It is sufficient here to say that the acts providing for the publication of laws in newspapers, prior to the repealer of 1875, did not, in terms, provide for any compensation to the secretary of state for copies furnished.
At this point it becomes necessary to consider the contention on the part of the defendant, that the acts above discussed have been so construed by the accounting and disbursing officers of the state as to require this court to adopt the construction thus disclosed, even though it is variant from the meaning *47plainly to be attributed to the acts from the language in which they are expressed.
The contemporaneous exposition given to statutes, whether by the writings of men learned in the law or by the practice of those whose duty it is to execute and enforce the-’ statutes in question, has doubtless much weight when such statutes are brought before a judicial tribunal for consideration. Such a practical construction is not controlling nor binding on judicial tribunals. At the most, it is to be considered by them, and is'perhaps decisive in cases of doubt. Union Ins. Co. v. Hoge, 21 How. 60, 66; Story, J., in United States v. Dickson, 15 Pet. 141, 160.
But contemporaneous exposition is inapplicable when the law, on the face of it, is free from doubt and ambiguity. It is when the words of a, statute are obscure that resort may be had to this kind of exposition. Smith’s Com. 739; Sedgwick on Const. 212. It is thus expressed by a late writer “ When the language of an act is doubtful in its meaning and cannot be made plain by the help of any other part of the same statute, or of any act in pan materia which may be read with it, or of the course of the common law up to the time of its passing, the court may consider what was the construction put upon the act when it first came into operation.” Wilberforce on Stat. L., 142; Ford, J., in Taylor v. Griswold, 2 Green 222, 242; Walworth, C., in Coutant v. People, 11 Wend. 513; Story on Const., § 406; Edwards’ Lessee v. Darby, 12 Wheat. 207; United States v. Dickson, supra. Manifestly, a practice in opposition to the plain meaning of the law cannot be admitted to control and alter such meaning. If so, repeated violations of a law would establish it as justifying, rather than prohibiting, such violation. As was said in Sheppard v. Gosnold, Vaughn 159, 170 : “If usage has been against the obvious meaning of an act of parliament, by the vulgar and common acceptation of the words, then it is ráther an oppression of those concerned than an exposition of the act.”
So plain are the acts in question in this case, and so unmis*48takable is the meaning to be attributed to them, that I doubt whether a practice in direct opposition to that plain meaning can rightly be resorted to or considered by this court, much less relied on to enforce a construction at variance with such meaning. «
But I do not propose to rest my opinion upon the rejection of the alleged contemporaneous exposition of these acts as inapplicable. Perhaps the true rule is that suggested by Pollock, C. B., in the argument of Pochen v. Duncombe, 1 H. & N. 482, 856, thus: “The rule amounts to no more than this —that if the act be susceptible of the interpretation which has been put upon it by long usage, the courts will not disturb that construction.” Looked at in that view, it may possibly be said that such a construction as that contended for on the part of defendant might be put on the statutes in question. It would be a forced and unnatural construction, at variance with the language of the acts as expounded by the ordinary and admitted rules of construction. Waiving, however, any further inquiry in this direction, let us assume that the contemporaneous practice in reference to these acts-may be resorted to, in order to ascertain what practical construction has been put upon them.
Such practice, to be effective as an exposition of the statutes in question, must possess certain characteristics. It must be contemporaneous, that is, it must commence at or about the time the statutes went into operation. The ground for the admission of this light upon a statute was thus expressed by Lord Coke: “ Great regard ought, in construing a statute, to be paid to the construction which the sages of the law, who lived about the time or soon after it was made, put upon it, because they were best able to judge of the intention of the makers at the time the law was made.” Mr. Wilberforce says that while the best evidence of the construction adopted at the time of the passage of a statute will be found in the decisions of the courts, or the works of writers of authority, yet a very strong inference may also be drawn from long uninterrupted usage, which is presumed to have commenced with the passing *49of the act in the absence of proof to the contrary. Wilberforce on Stat. L. 143.
. The practice, moreover, ought to be such as to clearly evince that it was adopted under a construction of the statutes in question. If there is nothing to show that the officials establishing and continuing the practice did it upon a deliberate construction, adopted by them in view of the statutes, their conduct can be of no service to the judicial tribunal which is to determine the true construction of the statutes. A practice referable to no statute at all, or plainly not referable to the statutes in question, cannot be of weight.
And the practice ought to be substantially uniform and unvaried. “ The extent of this doctrine,” says Mr. Smith, “ to be deduced from all the authorities, is that a practical exposition, in order to be of much force or entitled to be of much weight, must be one where there has been an unbroken chain of practice or precedent commensurate with the adoption of the constitution or particular statute, [to be construed,] and acquiesced in and acted upon since that time.” Smith’s Com. 744. See Stuart v. Laird, 1 Cranch 299; Wilberforce on Stat. L. 146; R. v. Hogg, 1 T. R. 728.
The question, therefore, is whether there has been a practice, adopted at or about the time the acts to be construed became operative upon the matters in question, plainly referable to those acts and intended as a construction thereof, and continued with uniformity since. If such practice indicates a construction variant from the plain, ordinary meaning of the acts, it is manifest it devolves on him who sets it up to establish it by his proof.
Upon examination of the practice on this subject as developed by the proofs before the court, there will be found to be two lines of conduct on the part of the disbursing officers of the state, one of which is applicable, and the other is not applicable to the question before us. This arises from the fact that there formerly existed two series of independent acts respecting publication of laws in newspapers, the distinction between which it is necessary to keep in mind when applying *50this practice. One series of acts commenced in 1819; the other in 1854. Both continued in force until 1875, when both were repealed by the act approved March 16th, 1875. Pamph. L., p. 27. The act of 1876 re-established the system in force under the latter, and not that under the former series of these acts.
The first series of these acts relates entirely to publication of the laws in the newspapers of Trenton. It was inaugurated by an act entitled “ An act to provide for publishing the public laws of this state,” passed February 15th, 1819, which made it the duty of the secretary of state to cause the public laws to be published immediately after their passage in one or more of the public newspapers in the city of Trenton. It did not expressly direct copies to be made for that purpose nor allow any pay therefor. This act was repealed by an act entitled “ An act to provide for the publication and distribution of the laws and proceedings of the legislature of this state and the distribution of the laws of the United States,” passed June 7th, 1820, (Rev. L., p. 752,) the first section of which, however, re-enacted the law of 1819 in identical terms. The remainder of the act of 1820 related to the pamphlet laws. A supplement to the last-mentioned act was passed February 8th, 1828. The first section required the publication in the Trenton newspapers to be made within two weeks, instead of immediately after the passage of the laws, and it expressly prohibited the secretary of state from suffering an original law to be taken out of his office, but directed him to keep and preserve the same safe and undefaced. Considering the fact that by other laws then in force, particularly the act of February 17th, 1813, (Pamph. L.,p. 44,) and the revised act of May 27th, 1820, (Rev. L., p. 727,) a like prohibition was imposed, the renewal thereof in this act is significant. It is a plain inference that the above-mentioned acts of 1819 and 1820, having directed immediate publication and not having required copies to be made, the secretary of state had construed them as permitting him to allow the newspaper publishers to use the original acts. This was forbidden by the *51supplement of 1828, and two weeks’ time was allowed for the publication, manifestly so as to enable the proper copies to be made, which were impliedly required. Uo compensation, however, was expressly allowed for such copies. Other duties were by the same supplement imposed on the secretary of state, for which an express allowance was made. But the seventh section of this supplement authorized and required the treasurer to audit and adjust any accounts presented to him for services done or performed by the secretary of state, and to certify the same to be true and due by the law. All these provisions were included in the act entitled “ An act relative to the laws of this state, the proceedings of the legislature and the distribution thereof and of the laws of the United States,” approved April 16th, 1846. Rev. Stat, p. 710; Nix. Dig. 776. The last-mentioned act is still in force, except as affected by the repealer of 1875. Rev., p. 1122.
It is not necessary to settle whether the section allowing the treasurer to audit the secretary’s claim for services would warrant an allowaneo for copies for the Trenton newspapers. It is sufficient that the language is capable of such a construction.
How, the practice under the above-mentioned acts may be illustrative, but cannot afford any real light on the question in this case, which relates to copies furnished under a different law and in a different manner.
Looking at the practice under these acts from 1828, when the making of copies was first required, I find no sufficient proof that there was any uniform charge and allowance at any rate per folio, while, on the contrary, the allowances were frequently at a round sum until 1851, and that, except in three instances, there is no reference to any law authorizing the charges. Thus, there is a charge at the rate of eight cents per folio in 1830, but none other that can be recognized at that rate until 1846. Another such charge occurs in 1849, and from 1851 the charge is uniformly at that rate. During the same period the charge is frequently without reference to any rate, as in 1835, $20; in 1836, $31; in 1837, (seven thousand six hundred and *52twenty-one folios,) $61; in 1840, (three hundred folios,) in one newspaper, $31, in another newspaper, $15.50. In only three instances is any appeal made to authority for such a charge. The first is in 1852, when the appeal is to the act of April 17th, 1846, (Rev. Stat, p. 810,) an act which allows fees for copies of laws applied for by the governor, attorney-general and treasurer for public purposes. The second is in 1853, when the appeal is to the act of April 16th, 1846, (Rev. Stat.,p. 710,) which is the act allowing the treasurer to audit and adjust the claim of the secretary of state for services under the act authorizing the publication in Trenton newpapers. The third is in 1854, when the appeal is to the same act last mentioned. All these were made by the same secretary of state and allowed by the same treasurer. In each case his allowance is couched in these words : “ I do hereby certify that I have audited and adjusted the foregoing account and that the same is true and due by law,” which is the formula prescribed by the seventh section of the supplement of 1828, authorizing the auditing of the claims of the secretary of state.
I think this is sufficient to show that this practice is not an exposition of the fee bill nor of the acts prescribing fees for copies of laws.' It is an exposition of the act allowing an audit of the claim of the secretary of state for services in furnishing copies for publication in Trenton newspapers. It expounds that law as justifying the treasurer in allowing the secretary of state for such services a reasonable sum. If it may be claimed to fix any uniform rate for those services, it is manifestly by way of analogy to the acts which allowed that rate for copies made for private persons.
The other series of laws above referred to commenced with the act entitled “ An act to provide for the publication of the public laws of the state,” approved February 16th, 1854. Nix. Dig. 914. By this act it was made the duty of the governor to designate two newspapers in each county town in which the public laws were to be published annually. It imposed on the secretary of state the duty of furnishing correct copies for that purpose. While it expressly provided for pay*53rnent to the newspapers, it provided no compensation to the secretary of state. Why it did not is very manifest. The laws requiring publication in the Trenton newspapers were still in force and continued in force. They had been construed in practice as allowing the secretary of state a fair compensation for the copy furnished to those papers. It was perfectly obvious that the other newspapers- throughout the state would be furnished with printed copies at no expense or trouble except that of procuring and transmitting such printed slips. And the legislature no doubt took into consideration the fact that by the act of April 16th, 1846, then and still in force, {Nix. Dig. 882; Rev., p. 1093,) the secretary of state was expressly given a small salary “for all other services required of him by law and not otherwise compensated.”
The practice under this law is in point and applicable to this case. The law continued in force from 1854 to 1875. What was the contemporaneous practice under it ?
I shall first direct attention to the twelve years from 1854 to 1866. These are the years immediately following its passage. That I may be the better understood, I insert the exact •charges in the first eight years. It is to be noticed that during the whole period now under consideration, the practice of charging and allowing for the service of furnishing copies for the Trenton newspapers was continued.
Mr. Allison charged and was allowed as follows:
“ 1854. For copies made for thirty papers of various public laws, under law of February 16th, 1854.............................................. $120 00”
This allowance was evidently not at any rate per folio; nor is there anything to show an intention to expound or construe .any law in making this allowance.
“ 1855. Sixteen hundred folios, copy for the different papers.......................................... $128 00 ”
This allowance was at the rate of eight cents a folio; but it *54was for only one copy, and no reference was made to any law in vindication of the charge.
“1856. For copies to thirty-five weekly newspapers, public laws................................... $120 00
“ 1857. Copies of public laws for thirty-three county papers......................................... 50 00
“ 1858. Copies to thirty-five county papers of public laws............................................ 150 00
“ 1859. Copies furnished to thirty-eight newspapers, public laws........... 150 00
“ 1860. Copies of public laws furnished to fifty-four newspapers by appointment of the governor..................................................... 150 00
“ 1861. For transmitting and preparing copy of public laws for thirty-eight county papers...... 150 00 ”
Mr. Johnson charged and was allowed for the extra session of 1861 as follows :
“ For transmitting to county newspapers............. 49 00 ”
His charges for 1862-65 are so mingled with other charges that no practice can be discerned from them, but we may assume that the practice before inaugurated was continued until there is proof of a change.
For the first twelve years following the act in question the practice does not evince that a compensation was allowed the secretary of state under the fee bill or under the acts authorizing him to make copies of laws. On the contrary, the practice shows that those acts were not considered or acted upon. For in that case the officer would have been entitled to eight cents a folio for each copy for each newspaper. Instead, he is allowed at a lump sum for the whole service, which sum is not varied by the number of papers, but is evidently based on the amount of real service supposed to be rendered. It surely cannot be claimed that because there was no other act capable of justifying any charges, therefore the accounting officers must have had in view those acts authorizing a much *55larger compensation. To say they acted under these acts and yet refused to apply them, seems to impute to them ignorance or unfairness toward the secretary of state. It is far more likely that they inferred that the secretary of state was entitled to some compensation under or by analogy to the act authorizing the audit of his claim for compensation for copies furnished the Trenton newspapers. Be that how it may, their conduct, in my opinion, fails to show, in the remotest degree, any application of the laws in question. On the contrary, it directly proves that those laws were construed as not applicable to this service.
It is true that in the year 1866 a practice was commenced allowing the secretary of state eight cents a folio for each copy furnished to each newspaper. It was continued unbroken from that date till 1874. No law was appealed to as justifying the allowance, and there is nothing to show that the’practice was claimed to be a construction of the fee bill or the acts allowing charges for copies of laws, except the rate charged. It may well be questioned whether such a practice, even if contemporaneous, would constitute such an exposition of these laws as would require this court to assent to it. But if it would have such effect, it is far from being contemporaneous. It was inaugurated long after the passage of the act in question. And manifestly, the nine years' practice, from 1866 to 1874, cannot outweigh the contrary practice, positively proved for the eight years from 1854 to 1861, and conclusively presumed for the following four years.
My conclusion, therefore, is, that no practice has been shown requiring the court to attribute to these laws a meaning not appearing from their language, much less a meaning directly opposed to their language when construed according to the admitted rules for the construction of statutes.
While coming to this conclusion, it is not improper to say that, when the act of 1876 was passed, it appears in the case that defendant was advised by the then attorney-general and by able and distinguished counsel that he, was entitled to charge the fees for which he makes his claim in this case. *56Although expressing a contrary judgment upon the defendant’s claim, as matter of law, I think the position of the defendant in respect thereto ought, in justice to him and his long service in his responsible office, to be stated and understood.
Having arrived at this conclusion, the question respecting the constitutionality of the limitation in the act of 1876 is substantially disposed of. For if there was no “ allowance ” then established by law for this officer, for this service, the act did not decrease his allowance within the meaning of the constitutional restriction in question, and the constitutional prohibition was not infringed. Upon this subject, however, I think it proper to say that I adhere to the views expressed by me in the case of Skinner v. Collector, 13 Vroom 407, and which were adopted by the majority of the Court of Errors in the same case. When legislation relates to public officers, who are, in respect to their official characteristics, so distinct as reasonably to form, (as regards the subject legislated upon,) a class by themselves, such legislation is not objectionable because the class is small, or even because the class is composed of but a single person. Such, I think, is the correct view, and the fact that the clause contained in paragraph 1 of section 2 of article "VII. of the constitution, providing that the compensation of certain officials should not be decreased during the term of their appointments, was retained in the amended constitution, in which was inserted the restriction now appealed to, is a convincing indication that the restriction was not considered to prohibit such legislation where it affected a small class or even a single person.
If,'then, at the passage of the act of 1876, there were no rates fixed to be paid by the state to the secretary of state for copies of laws, what was the meaning of the phrase, “ rates now allowed by law,” as contained in that act? Looking at the acts then existing, we find that there were rates fixed to be paid him for copies furnished on the application of private persons, and in certain cases on the application of certain officers of the state. Some meaning must be attributed to the *57phrase in question, and taking into view the fact that rates were allowed by law for such similar services, the plain and obvious meaning is that the secretary of state was now to be allowed from the state the rates which the law at that time allowed him for copies of laws in those specified cases. The limitation of the proviso was designed to restrict him to a fair but liberal compensation for the real service. So much, it appears, he was entitled to in each of the years in question in this case. This view disposes, in my judgment, of the insistment that the phrase, “ rates now allowed by law,” was a legislative construction of the statutes. • Nor have I been able to perceive that the concurrent resolution under which this suit has been brought jias recognized the right of the secretary of state to the fees received by him prior to the year 1875. That suit for such fees was not directed to be brought may be attributed to other reasons than to an acknowledgment of his right to them. It may have been properly considered that those fees had been taken after a previous practice had been established by his predecessor in office, and that there was a manifest distinction between fees so taken and those taken in direct conflict with the express terms of the act of 1876. The object of the suit was evidently to procure a judicial construction of the latter act. For that purpose it was sufficient to bring this suit.
Upon this part of the case, therefore, I am of the opinion that the state is entitled to recover of defendant all of its claims except the sum of $5000, which is the compensation manifestly intended to be allowed him for this service under the act of 1876.