FROM HILLSBOROUGH CIRCUIT COURT. This is a claim made by the late judge of the police court in Manchester for fees in cases prosecuted by the city upon the complaints of city officers, in which no costs were paid by the respondents; and concerning which the charter of the city, before its amendment, provided that such costs should be "made up, taxed, certified, and allowed, and paid and satisfied in like manner as provided by law in cases of justices of the peace," that is, paid to the police judge by the city, unless the prosecution had been directed by the counsel for the state, or allowed by the court of common pleas. Rev. Stats., ch. 222, sec. 21; Gen. Stats., ch. 250, sec. 13. The contention here is concerning the effect of subsequent amendments upon this provision of the original charter. These amendments are found in the Laws of 1851, ch. 1105, sec. 2; the Laws of 1855, ch. 1683, sec. 4; and the Laws of 1867, ch. 7.
The law of 1851 constituted the judge of the police court of Manchester, clerk, also, of that tribunal, and in consequence of the increase of his compensation, by thus conferring upon him the emoluments of that position, diminished, from $500 to $300 per annum, his salary as judge. This salary was declared to be in full for all services performed by him for the said city, "and of all fees in actions and prosecutions prosecuted by said city, or the officers thereof, for which the said city would otherwise be responsible." Laws of 1851, ch. 1105, sec. 2.
If there had been no judicial construction of this portion of the act of 1851, I should say that its purpose and intention to deny and disallow such a claim as the plaintiff now prefers are quite manifest.
Before the passage of the act of 1851, the police judge was entitled to tax his statutory fees in certain cases, and have them paid and satisfied by the complainant, that is, the city.
By the terms of the amendment, after giving him new emoluments as clerk, and apparently in consideration thereof, his new salary as *Page 71 judge is declared to be, not merely as provided in the charter, "in full compensation for all services assigned to him by the provisions of this act," but, more specifically, "in full for all services performed by him for the said city, and of all fees in actions and prosecutions prosecuted by said city, or the officers thereof, for which the said city would otherwise be responsible.
What can be plainer than this language, as indicating that he was no longer to have the fees "provided by law in cases of justices of the peace," to be taxed against complainants, in cases not paid by respondents — such being the only kind of fees and costs for which, under the the charter, before its amendment, the city were held responsible? For it will be observed that the original charter (sec. 16) requires him to pay over to the city all other costs and fees by him received in civil or criminal actions or prosecutions.
And in the respect under consideration, the law is not changed by the amendment of 1855. The salary is restored to its original amount — $500 — and declared to be "in full compensation for all services performed by him in behalf of said city, for all charges against the city as clerk of said court, and for all fees in actions for which the city would otherwise be responsible."
The act of 1867 is in the precise language of the act of 1855, except that the salary is fixed at $1000 instead of $500.
There would seem to be no uncertainty about the language or intention of the legislatures of 1851, 1855, or 1867, with regard to this matter. Their language would seem to require no judicial interpretation.
As the plaintiffs claim, here, is to recover fees accruing between the years 1868 and 1873 inclusive, reference would not be required to any act prior to that of 1867, were it not that former acts, which are said to be, and which indeed are, practically identical with the act of 1867, have received a judicial construction by a former court, which we are now called upon to revise.
Three cases in our reports are referred to as having expressed an interpretation of the acts of 1851 and 1855. They are Potter v. Norris,26 N.H. 330, Manchester v. Potter, 30 N.H. 409, and Hillsborough County v. Manchester, 49 N.H. 57.
The first and the last of these cases did not raise the point now in issue, nor was it considered in any such way as to make them authority in the present discussion. Moreover, I do not see how the first could properly have furnished any grounds for the decision of the second, nor how the third depends upon the first or the second for its support.
The second case, then — Manchester v. Potter — stands by itself, and it is said by the plaintiff to be conclusive authority for his right of recovery in this action; while, upon the other hand, the defendants contend that, if the decision in that case be predicated upon and applicable to the state of facts here presented, it ought to be overruled.
I think it is applicable, and that if its authority is to be sustained the plaintiff must recover.
As to the general principles laid down by the reporters and in the *Page 72 text books upon constitutional, statutory, and municipal law and concerning which the learning and industry of counsel upon both sides of this case have been exercised, there seems to be no conflict of sufficient importance to call for our interference. Indeed, the general principles that a substantial revision of the entire body of a statute is a repeal of previous inconsistent provisions, and that the legislature may prescribe, and increase or diminish, the salaries of officers appointed by its authority, may be considered as thoroughly settled and established.
Turning our attention, then, to the case of Manchester v. Potter, the court recite that portion of the 16th section of the charter of Manchester, which provides that "All fines and forfeitures, and all costs in criminal prosecutions, which shall be received by or paid into the hands of the justice of said court [the police court], shall be by him accounted for and paid over to the city of Manchester, in the same manner and under the same penalties for neglect as are by law prescribed in the case of justices of the peace; and all costs in such prosecutions, not thus received, shall be made up, taxed, certified and allowed, and shall be paid and satisfied in like manner as provided by law in cases of justices of the peace."
And, then, assuming that the proper construction of this provision is, that "all the costs in criminal prosecutions received, as well as, the fines and forfeitures, are to be paid over to the city by the police justices" they go on to assume that a fair construction (an inevitable construction) of the latter clause of the same branch of the section allows "quite clear, that in those prosecutions where the costs are not collected the city should pay them."
The court then go on to recite a further provision of the same section of the original charter: "The justice of said court shall account for and pay over to the city of Manchester all fees by him received, or which now accrue to justices of the peace in civil actions and criminal prosecutions," c., and the learned judge delivering the opinion of the court concludes that probably by this was intended no more than to repeat what had been said in the former clause, and then to provide that the "costs in civil suits which should be received by the police justice should be paid to the city." The result is, that the costs in all criminal prosecutions not received "are not regarded by the act as of that legitimate character which are required to be performed by the police justice without special compensation therefor."
All this seems to be plain enough, and a rational conclusion, even without the extended judicial argument adduced in support of it.
But the court then proceed to recite the amendatory act of 1851, and they reach the conclusion that, as to the retaining by the police justice to his own use "the fees by him received or receivable, there seems to be no change." The court say, — "This item of the defendant's set-off was for costs not paid, and which, in the words of the section, `shall be made up, taxed, certified, and allowed, and shall be paid and satisfied in like manner as provided by law in cases of justices of the peace;' and we think it must be allowed." *Page 73
This is the non sequiter which I cannot follow. I think the defendants' claim in that case should not have been allowed.
The item in dispute was a charge, by way of set-off, for costs in criminal prosecutions, like the plaintiff's claim in the case at bar.
The judgment of the court in Manchester v. Potter is based upon its construction of the latter clause of the second section of the act of 1851, which is as follows: "The said justice shall account for and pay over to the city treasurer, as now provided by law, all fines and fees by him received in actions and prosecutions by or in behalf of the city as aforesaid [What are these? A reference to the original charter shows them to be "all fees by him received, or which now accrue to justices of the peace in civil actions and criminal prosecutions;" and the preceding clause of the amendatory act provides that his salary shall be "in full for all services performed by him for the said city, and of all fees in actions and prosecutions prosecuted by said city, for which the said city would otherwise be responsible"], and shall be entitled to retain to his own use the fees by him received or receivable in all other cases."
What must he pay over to the city, then, in consideration of and as covered by his annual salary? and what may he retain to his own use, or recover in this action?
He must pay over "all fees by him received, or which now accrue to justices of the peace in civil actions and criminal prosecutions," and, since his annual salary is expressed to be in full for — therefore he must not retain nor claim of the city any of the fees in actions and prosecutions prosecuted by said city, for which the said city would otherwise be responsible, — that is to say, the fees in actions prosecuted by said city or the officers thereof, which are provided by law in cases of justices of the peace, to be taxed against complainants in cases not paid by respondents; and he may retain "the fees by him received or receivable in all other cases" — that is to say, in all civil actions not prosecuted by the city, and in all criminal prosecutions except those prosecuted by the city or its officers. See the compilation of the Charter and Ordinances of the City of Manchester (ed. of 1870), page 17, note d.
I am therefore unable to agree to the conclusion adopted by the court in Manchester v. Potter. The case was not carefully considered, for the reason that the court were not furnished with "the aid to be derived from the arguments of counsel, and the particular views entertained by the parties [were not] stated by the court." 30 N.H. 417. If the case is to be regarded as in conflict with the views which I have expressed (a conclusion not to be derived from the head note), I am prepared to say it should be overruled.
It seems to be conceded that the act of 1855 made no change in the law, material to the present consideration.
We come then to the question, How does the plaintiff's claim stand in view of the act of 1867? — for this must govern it. "The justice of the police court * * * shall annually receive a salary of one *Page 74 thousand dollars * * * which all be in full compensation for all services performed by him in behalf of said city, * * * and for all fees in actions for which the city would otherwise be responsible;" and, for the reasons which I have expressed I am of the opinion that the city ought not to be charged in the present action.