150 N.W. 876 | N.D. | 1915
This is an action to recover from the defendant, as county judge, certain fees collected by him and for which he has not accounted. A jury was waived and the facts stipulated, from which it appears that defendant collected $25 for making certified copies of his records, and $100 for issuing marriage licenses, no part of which he has paid'
But two questions are presented. First, do the fees of the county judge for issuing and recording marriage licenses belong to him?
Second, must the county judge account for moneys received by him for making certified copies of records ?
An affirmative answer must, we think, be made to the first, and a negative answer to the second question, and we will briefly state our réasons for this holding.
At the outset it may be stated that we do not in the least disagree with appellant’s counsel with reference to the fundamental rules and principles invoked by him pertaining to the compensation of public officers and the construction of laws fixing such compensation; Such rules and principles are stated in State v. Stockwell, 23 N. D. 70, 134 N. W. 767, and in the more recent case of State ex rel. Braatelien v. Drakeley, 26 N. D. 87, 143 N. W. 768, as well as in other kindred cases decided by this court, and it is unnecessary to repeat them here.
With these principles in mind we approach a consideration of the case at bar.
By chapter 91, Laws of 1890, the duty was placed on the county judge to issue marriage licenses and record marriages; and § 10 of such act provides: “* * * and for each license and the record herein required he shall be entitled to a fee of $1, to be paid by the party applying for the same.” This language is plain. It clearly means that the county judge, as compensation for the imposition of such newly added duties, which were foreign to the ordinary duties of his office prior thereto, shall be entitled to the fee prescribed, and such intent must be given effect by us. Appellant’s counsel tacitly admit the force of this, if the above statute is still in effect, but they assert that it is inconsistent with, and hence impliedly repealed by, chapter 68, Laws of 1899 (Rev. Codes 1905, § 2586). Such contention is without merit. It is apparently predicated upon the assumption that the county judges were, in 1899, for the first time placed upon a salary in lieu of a fee basis. This assumption is unwarranted, for the same legislature which enacted chapter 91, supra, also enacted chapter
This rule of statutory construction also has the support of our highest judicial tribunal, and it is very clearly stated by Mr. Justice Matthews in his opinion in Ex parte Crow Dog (Ex parte Kang-Gi-Shun-Ca) 109 U. S. 556, 27 L. ed. 1030, 3 Sup. Ct. Rep. 396, from which we quote: “Implied repeals are not favored. The implication must be necessary. There must be a positive repugnancy between the provisions of the new laws and those of the old. Wood v. United States, 16 Pet. 342, 10 L. ed. 987; Daviess v. Fairbairn, 3 How. 636, 11 L. ed. 760; United States v. Tynen, 11 Wall. 88, 20 L. ed. 153; South
Applying the above rule to the case at bar, we have reached tbe conclusion, which we think is inevitable, that tbe fees for issuing and recording marriage licenses belong to tbe county judge, and not to tbe county.
We are equally clear that amounts charged and collected by such officer for furnishing certified copies of records in bis office may also be retained by him. It is not contended that there is any statute requiring such county judge to make and certify copies of such records, nor is there any statute prescribing any fee for such service. This being true, tbe act of furnishing such certified copies is not an official act exacted of him by law, but is a mere voluntary labor performed outside of bis official duties and for tbe accommodation merely of persons desiring such copies. In other words, in furnishing such copies be acts in bis individual rather than in bis official capacity. It is true be makes tbe certificate by virtue of bis official position, but be does nothing more than any other official might do who has power to certify to tbe correctness of copies made by him. We think respondent’s counsel is entirely correct in their contention that tbe making and furnishing of such copies of records not being any part of bis legal duties for which bis salary is bis compensation, be was at liberty to make any contract be saw fit in tbe way of compensation for such service, to be paid by tbe person employing him, and that such compensation belongs
The judgment of the District Court is affirmed.