O'Brien v. City of Manchester

• Decision Date: 02 December 1930
• Citation: 152 A. 720
• Parties: O'BRIEN v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

152 A. 720

O'BRIEN

v. CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

Dec. 2, 1930.

Transferred from Superior Court, Hillsborough County; Matthews, Judge.

Assumpsit by William J. O'Brien against the City of Manchester. Case transferred to the Supreme Court.

Judgment for the defendant.

Assumpsit for services rendered the defendant by the plaintiff while city clerk in issuing automobile permits. Trial was had and the facts found by the court. Questions of law arising thereon are reserved and transferred by Matthews, J., without ruling. If, on such facts, the plaintiff is entitled to recover, judgment in his favor is ordered for $1,500 or $6,250, according as the statute of limitation does or does not apply. Otherwise there is to be judgment for the defendant The facts and issues appear in the opinion.

Timothy F. O'Connor and Myer Saidel, both of Manchester, for plaintiff.

Omer H. Amyot, City Sol., of Manchester, for defendant.

SNOW, J.

As a condition to registration of motor vehicles', owners thereof are] required by Laws 1919, c. 55, §§ 1, 5 (see P. L. c. 100, §§ 10, 14), to obtain from the city or town of their residence a permit, and to pay therefor a fee computed upon the maker's price. Such fees are in the nature of a tax for the use of such city or town. The collection and accounting of such fees and the remuneration therefor are prescribed by the statute: "The treasurer of each city, or such other person as the city government may designate, and the town clerk of each town shall collect fees for such permits. * * *" Id., § 5. "Each designated city official and each town clerk shall keep an accurate account of the money received by him for said permits and deposit the same in the city or town treasury. * * Town clerks shall be paid on orders drawn on the town treasurer by the selectmen twenty-five cents for each permit issued." Id. § 6. A later statute authorizing the issue of permits by county treasurers to persons residing in unincorporated places provides that: "Such permit fees shall be for the use of the county in which such unincorporated place is situate, except that the county treas- urer shall be entitled to receive therefrom twenty-five cents for each permit issued." Laws 1923, c. 38, § 1; P. L. c. 100, § 17.

Manchester authorized its "City Clerk" to issue such permits and to collect the fees by vote of its board of mayor and aldermen, on November 18, 1919. The plaintiff was then its city clerk, and was re-elected to that office for 1920 and 1921. The statute of 1919 became effective on January 1, 1920. During 1920 and 1921 he delivered 25,000 permits, of which 19,000 were issued after August 5, 1921. The plaintiff rendered a bill to the board of mayor and aldermen August 3, 1927, for his services at twenty-five cents for each permit issued by him, and on August 5 brought this suit to recover the same. The defendant pleaded the general issue, and the statute of limitations as to the items prior to August 5, 1921.

It is the plaintiff's contention that the words "town clerks" in the last sentence of section 6, Laws 1919, was intended to include city officials designated under section 5, and in support thereof he relies primarily upon P. S. c. 46, § 2 (P. L. c. 50, § 2), which provides that "all provisions of statutes, now made or hereafter enacted relating to towns, shall be understood to apply to cities; and all prpvisions relating to the selectmen and town clerks of towns shall be construed to apply to the mayor and aldermen and clerks of cities, respectively, unless a different intention appears." The defendant denies the application of the latter statute, and claims that the plaintiff's services in issuing the permits were a part of his official duties for which he was remunerated by salary.

The mandate of the Legislature as to the definition of terms and the construction of language is to be followed. Piper v. Railroad, 75 N. H. 435, 442, 75 A. 1041; Jones v. Surprise, 64 N. H. 243, 245, 9 A. 384. But the legislative direction here (P. S. c. 46, § 2), namely, that provisions relating to town clerks shall be construed to apply to city clerks, is subject to the express limitation "unless a different intention appears." It has no application if the statute to be construed contains within itself competent and sufficient evidence of the meaning of its terms. Ordinarily, a general construction act is not intended to dispense with the usual rules of interpretation, and is controlling only when upon their application the legislative intention is not plain. 25 R. C. L. "Statutes," § 275, p. 1049; City National Bank v. Nelson, 218 Ala. 90, 117 So. 681, 61 A. L. R. 938.

The use here of the terms "each designated city official and each town clerk" in directing an accounting, followed in the next sentence of the same paragraph by provision for the remuneration of "town clerks" only, is competent and persuasive evidence of an intention to distinguish between the two officials in respect to compensation. Otherwise there would have been no occasion to mention "city official" in the first sentence. While the maxim "expressio unius est exclusio alterius," as a rule of construction, is of limited usefulness, its application is well recognized "when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment." Taft, C. J., in Ford v. United States, 273...