Sargent Cnty. v. Sweetman

• Decision Date: 09 January 1915
• Citation: 150 N.W. 876,29 N.D. 256
• Parties: SARGENT COUNTY v. SWEETMAN.
• Court: North Dakota Supreme Court

29 N.D. 256

150 N.W. 876

SARGENT COUNTY

v.SWEETMAN.

Supreme Court of North Dakota.

Jan. 9, 1915.

Syllabus by the Court.

Section 10, c. 91, Laws of 1890 (section 4039, R. C. 1905), requires the county judge to keep a marriage record book containing a correct copy of all marriage licenses issued by him, and also a record of all marriage certificates returned to his office, and then provides: “And for each license and the record herein required he shall be entitled to a fee of one dollar to be paid by the party applying for the same.”

Held, that the legislative intent was to authorize such official to collect and retain this fee as compensation for such newly added duties.

Appellant's contention that section 10, c. 91, Laws of 1890, was impliedly repealed by chapter 68, Laws of 1899 (section 2586, R. C. 1905), held untenable. Chapter 68, while not purporting on its face to be an amendatory statute, in effect merely amends chapter 50, Laws of 1890, fixing a salary for county judges, and it merely adopts the assessed valuation in lieu of the population of the county as the basis for computing the salary, and also reduces the maximum salary. This law, as well as chapter 50, Laws of 1890, is general, and relates to the salary of the county judge, and it is held that it was not the legislative intent by the enactment of chapter 68 to amend or repeal section 10 of chapter 91, Laws of 1890, which latter statute makes special provision covering a special and particular subject.

Implied repeals are not favored. There must be a clear repugnancy between the provisions of the new and those of the old statute to such an extent that the necessary implication arises that it must have been the legislative intent in the enactment of the later statute to repeal the former.

There being no statute making it the duty of the county judge to furnish certified copies of his records when required, and fixing a fee therefor, it is held, for reasons stated in the opinion, that it is not incumbent upon him to account to the county for sums collected for such service.

Appeal from District Court, Sargent County; Frank P. Allen, Judge.

Action by the County of Sargent against S. A. Sweetman. From judgment for defendant, plaintiff appeals. Affirmed.

E. W. Bowen, State's Atty., of Forman, and Wolfe & Schneller, of Wahpeton, for appellant. Engerud, Holt & Frame, of Fargo, for respondent.

FISK, J.

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 over to the county. The trial court's conclusions of law were favorable to the defendant, holding that he was entitled to retain such fees in addition to his salary as fixed by article 3, c. 29, of the Political Code of 1905.

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 reasons for this holding.

[1][2][3] 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 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 section 10 of such act provides:

“* * * And for each license and the record herein required he shall be entitled to a fee of $1.00 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 (section 2586, R. C. 1905). 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 50, Laws of 1890, fixing a salary for such judges. The latter became a law prior to the former, and, of course, if any inconsistency exists between them, the last enactment must control. Chapter 68, Laws of 1899, aforesaid, merely adopts the assessed valuation in lieu of the population of the county as the basis for computing the salary, and it also reduces the maximum salary. The only object of this act, no doubt, was to make these two changes in chapter 50 of the 1890 Laws. It does not purport to supplant such prior act, but, in effect, it merely amends certain portions, leaving the remainder in force. Repeals by implication are not favored, and, unless there is an unavoidable repugnancy between the later law and the former one, no repeal by implication is effected. As we view it, there is no inconsistency between chapter 68, Laws of 1899, and section 10, c. 91, Laws of 1890. The provision in the latter which we have above quoted is a special provision which entitles the county judge to a fee of $1 for the marriage license and the record thereof. Being a special provision covering a special and particular subject, it must be deemed to have been the legislative intent in the enactment of chapter 68 of the Laws of 1899, to except the same from the general provisions in the latter act. O'Gorman v. Mayor, 67 N. Y. 486;Min. Co. v. Co., 2 S. D. 546, 51 N. W. 342, 344;Finch v. Armstrong, 9 S. D. 255, 68 N. W. 740, 741;La Grange v. Cutler, 6 Ind. 354;Banks v. Yolo Co., 104 Cal. 258, 37 Pac. 900;Rice v. Goodwin, 2 Colo. App. 267, 30 Pac. 330;...