141 Mass. 479 | Mass. | 1886
The plaintiff was city clerk of the defendant city for a series of years, and brings this action of contract to
It has always been the official duty of town and city clerks to record deaths and marriages. The records are town or city records, and are evidence in legal proceedings of the facts recorded, and the certificate of the clerk is evidence of the record. The specified fees are to be paid to the clerk by the town or city, with the proviso, that “a city or town containing more than ten thousand inhabitants may limit the aggregate compensation allowed to their clerk.” Pub. Sts. o. 32, §§ 11, 12. St. 1795, c. 69. Fees received for these services are received in an official capacity, and form part of the aggregate compensation which may be limited under the statute.
The contention of the plaintiff,, that the statute intends that the aggregate of fees only shall be limited, cannot be sustained. The statute clearly authorizes a fixed salary which shall include official fees which the town or city is required by the statute to pay.
The defendant has filed a declaration in set-off to recover the amount retained by the plaintiff from moneys paid for licenses for dogs. The statute requires that every dog shall be annually registered and licensed in the office of the clerk of the city or town where it is kept, and a fee paid therefor. The clerks of cities and towns are required to issue licenses, and receive the money therefor, and pay the same into the treasury of the county, “retaining to their own use twenty cents for each license.” Pub. Sts. e. 102, §§ 80-84. The plaintiff issued many licenses, and has not accounted to the defendant for his fees retained.
The licenses were not granted by the city, and the license fees belonged to the county, and the plaintiff, in- collecting and paying them over, acted for the county rather than for the defendant. The city clerk was designated, eo nomine, to perform certain public duties created by the statute, which did not concern the city, and which did not intrinsically or historically pertain to the office of city clerk. We think that the compensation
Both parties have assumed that the appeal opened the whole case, and we have considered all the questions argued by counsel. But it would seem that the appeal by the defendant did not bring before us for revision those counts upon which the judgment was in its favor. Vinal v. Spofford, 139 Mass. 126. Smith v. Dickinson, 140 Mass. 171.
Judgment affirmed.