63 N.J.L. 325 | N.J. | 1899
The opinion of the court was delivered by
The city of Camden, a municipal corporation,, sued to recover alleged overpayments of fees by its treasurer to its clerk. The defence was first, that the fees were paid upon a lawful exaction, and second, that their payment was voluntary through the order of the city council, with full knowledge of the facts and without fraud on either side. The trial judge directed a verdict in favor of the plaintiff.
It was decided by the unanimous judgment of this court in Demarest v. Inhabitants of New Barbadoes, 11 Vroom 604,. that a township committee dealing with a collector of taxes are agents only so far as they act within express provisions of law, and that payments made or sanctioned by them not authorized by legislative enactment are ultra vires, outside of their agency, and cannot bind their principals — the people. It was further adjudged that unauthorized payments made by the committee to the collector might be recovered as money wrongfully had and received. The doctrine of acquiescence and voluntary payment, insisted on there as here, was held to have no place because the payments were not by the township nor with its sanction or approval. This decision controls in the present ease for it is entirely parallel. The right to any fees resting entirely on statute, the knowledge of the clerk of the limit of the council’s authority must be presumed. ~We inquire, therefore, into the legality of the exaction.
The fees were demanded and paid for services relating to the vital statistics of the city. By “An act concerning marriages, births and deaths ” (Revision), approved March 27th, 1874 {Rev., p. 631; Gen. Stat., p. 2003), the clerk of every city in the state was required to keep a record of marriages, births and deaths, and to send a copy annually to the secretary of state. For these services the city clerk was entitled to receive from the city treasurer ten cents for the record of each marriage, birth or
The section was amended in 1892 (Pamph. L., p. 351; Gen. Stat., p. 2011), but not with regard to the duties or fees of city clerks.
It is too plain to need argument that this statute superseded that of 1879. Its comprehensive title and clear provisions forbid any other conclusion. Even although the provisions of unrepealed legislation may not be inconsistent with those of a new enactment, still where it is plain that it is the legislative intent to embrace the whole subject, it is well settled that what is not included in the later statute must be held to .have been discarded. Roche v. Jersey City, 11 Vroom 257, approved in this court; Haynes v. Cape May, 23 Id. 180; De Ginther v. New Jersey Home, 29 Id. 354.
Notwithstanding this statute, the city clerk of Camden besides receiving his lawful fee of ten cents for each marriage, birth and death returned to the secretary of state, has also continuously received ten cents a name for his so-called “ indexed registry.” This was entirely unwarranted. If the. conditions of the act of 1888 were fulfilled (as to which the case is silent), he was entitled to three cents per name for the record therein authorized, and that much the trial judge allowed him to retain.
The judgment under review recovers only the excess received during the six years preceding the beginning of the action. It must be affirmed.
For reversal — None.