State v. Kelsey

Beasley, C. J.

This suit is in form in assumpsit, its object being to recover from the defendant certain sums of money which he has retained in his hands, claiming them as perquisites of his office of secretary of state. The sums in question are admitted by the defendant to have been received by him, the only question in litigation being with respect to the legality of his claim to retain them.

The controversy thus presented relates to two several classes of claims, the one pertaining to the right which the defendant asserts he possessed, as secretary of state, to charge the state the sum of eight cents per folio of a hundred words for copying the public laws for publication in the newspapers; the other, to his charge of twelve cents for filing among the archives of his office each return of births, deaths and marriages. These questions are distinct in their origin, depending on different statutes, and, consequently, require a separate investigation.

It is proper to premise that the court is dispensed, by the agreement of the parties, from considering either the question whether the secretary of state can legally withhold from the public treasury moneys received by him officially, exercising a species of retainer, to pay himself his own fees out of the public moneys coming into his possession; or whether, after the auditing by the comptroller of the secretary’s accounts, and after the acquiescence of the state in such adjustment, such stated account can, under ordinary circumstances, be opened. These are obviously matters of interest, but, for the reason stated, will not be examined or decided.

Attention will be first directed to the subject of the defend *14 ant’s alleged right to charge the state for fees in making copies of the public laws to be printed in the newspapers.

On the 6th of April, 1876, the defendant was re-appointed, and duly confirmed and commissioned, as secretary of state, for the term of five years. At the time of such re-appointment, there was no law requiring the secretary of state to furnish copies of the laws for the newspapers, the act of March 16th, 1875, having repealed “all acts and parts of acts in any wise authorizing or directing the laws of each session of the legislature to be printed in the newspapers of this state.” But within fifteen days after such re-appointment, that is to say, on the 21st of April, 1876, another act was passed reviving the system of publishing certain of the laws in the newspapers, and requiring “ the secretary of state to furnish to the said newspapers copies of the laws herein required to be published.” The third section of this act contains á proviso the last clause of which is in these words: “ And the secretary of state shall receive for his services under this act the rates now allowed by law, provided the sum shall not exceed one thousand dollars in any one year.” In disregard of the restriction of his right to emolument thus imposed, the defendant, for furnishing copies under the directions of this statute, has charged the state at the rate of eight cents per folio for all the work done by him, the difference between the amounts so charged and the sums authorized by this act being the sum of $32,258.68; and it is for this difference that, with reference to this aspect of the case, this suit is brought.

It is admitted in the state of the case that the defendant has made annually but one manuscript copy of the laws in question, and that he sent such copy to the publisher of one of the newspapers in which such laws were to be published, and that he procured from such publisher “sufficient copies,” from the several issues of such newspaper, to send to the other newspapers throughout the state, and that for all the copies so furnished he charged eight cents per folio.

From this statement of the situation, it is obvious that the defendant’s position is, that he was authorized to execute this *15 law and, at the same time, to repudiate the clause that in terms limited his compensation. This attitude he justifies in this way: he insists that the restriction of his charges to the sum of $1000, contained in the proviso of the act of the 21st of April, 1876, is void, on the ground that when he went into office, upon his re-appointment, he was entitled, by force of the laws then existing, to charge the sum of eight cents per folio for all copies of laws or other writings made by him officially, and that, in view of the constitution of the state, that measure of compensation could not be curtailed by special legislation during his term of office. The constitutional provision thus invoked is the eleventh clause of section 7 of article TV., which is to the effect that the legislature shall not pass “ private, local or special laws,” “ creating, increasing or decreasing the percentage or allowance of public officers during the term for which said officers were elected or appointed; ” it being contended that the law in question is special so far forth as relates to the defendant.

It will be observed, therefore, that the primary proposition of this contention of the defendant is, that the laws in force at the time he took office authorized the charge in question, and it is that point that I propose, in the first place, to examine.

The inquiry, then, is this: Was there any legislative act, at the period in question, which gave authority to the secretary of state to charge eight cents a folio, or any other sum, for the copy of any paper on file in his office, when directed by an act of the legislature to make such copy ?

With the view to sustain the affirmative of this proposition, the counsel of the defendant rely on two statutes, the former of these being the act constituting the general fee bill, which appears in the Revision on page 399. In this law is a schedule of fees to which the secretary of state is entitled. The items are few in number, the second and third explaining the claim of the defendant. One of these reads thus : “ Entering writings on the record, for each sheet, eight cents; ” the second is in these words: “ For every copy of the same, and other papers in his office, for each sheet, eight cents.”

*16 It is obvious, at the most cursory glance, that this language is so general in its scope that it is capable of supporting the contention that this officer is entitled to charge at the prescribed rate for every official copy of any paper on file in his office which he can be called upon to make. The words are in no respect ambiguous or uncertain. He is to have a fixed sum for “ every copy ” of a paper in his office. The phraseology, intrinsically considered, will not bear the interpretation that he is to have this fee only when he furnishes a copy of a paper of this sort for an individual, and not when he furnishes it on the demand of the legislature. If he is to provide gratuitously a copy for the use of the public, then it is clear he is not to have his fee for “ every copy,” and to throw into the terms of the statute the limitation contended for, such terms must be qualified by some extraneous consideration.

On the part of the state, in the very elaborate and forcible argument of the attorney-general, it is contended that, in this same schedule which confers the alleged right to these fees on the secretary of state, there is an indication that these terms are not intended to bear this universal signification which, inherently and according to common usage, they possess. The indication thus pointed to is this: Among other items contained in the schedule, a fee is provided for the issuing of certain designated commissions, as to a sheriff, a surrogate, a clerk, an attorney, &c., and then follows this clause: “ For every other commission, to be paid by the treasurer of this state, twenty-five cents.” From this, it was said “ that when the secretary was to be paid from the treasury, it was expressly stated; it was not left to inference.” But a little consideration will show that, in reality, there is no force in this suggestion; for the clause adverted to is necessary, even though the version of the defendant, with respect to the main point of this act, be correct. If this law is to be read in the sense that the state will pay for every copy of a paper made under its own order, the provision that when such copy should be ordered by an individual, it should be charged to the state, would still be indispensable, if it was the design to exempt *17 such individual from such expense. And such clearly is the design in this instance. This act says to each of the persons enumerated—to the surrogate, to the clerk, to the attorney— “You must pay a certain fee for your commission;” and it says to the applicants for commissions for offices of little or no pecuniary value, “ You may have the fee for yours charged to the public.” And such an exemption, in these instances, can reflect no light on the inquiry whether the state, by the antecedent terms of this law, has imposed upon itself the obligation of paying these fees, when, by its own act, in the form of legislation, it orders a copy of a file of this office. The provision of the statute referred to will harmonize equally well with the theory of the state or the theory of the defence on this subject, and such provision, therefore, cannot be summoned as a witness to support either one or the other of these contentions. As an instrument of interpretation, the clause invoked is utterly inefficacious. There is nothing observed in the contents of this statute that will serve to restrict the generality of the terms thus used.

Uor is there the least irrationality in this provision, construing it in the sense claimed by the defence, for there is no reason why this officer should not, under ordinary circumstances, be paid the same fee for labor done for the state as individuals are required to pay for the like labor. And it is here to be borne in mind that if, under any unusual posture of affairs, such a fee should have become excessive, the legislature, at the time this act was passed, had the remedy in its own hands; for, in any case, it could, then, at will, lessen or annul such charge. Possessed of such a power, it was not unreasonable for the public authority to provide that itself would pay for these copies at the rate made chargeable against private persons, unless, in the legislative order for such copies, a new rate should be established or the work should be required to be done gratuitously. The language, then, in question is broad enough to impose this charge upon the state, and there is no improbability against such an interpretation, arising from the nature of such charge.

*18 ■ But there is still another ground urged against such a construction. That ground is that, upon legal principles, the •state cannot be brought under a burthen, unless such Dur•then be imposed by a law which is not susceptible of any other rational signification. The legal rule, it is insisted, is that the state cannot be made chargeable, nor held to have waived its prerogative of requiring gratuitous service from its officers, except when such liability or such waiver has been manifested either by explicit legislative declaration or by an implication little short of such a certification. This argument seems to me the weightiest that has been pressed on this topic, in behalf of the state. The doctrine thus appealed to is a salutary one, and indeed indispensable for the protection of the public rights and interests. The law wisely forbids any one to claim that the state has given up any portion of its property or prerogatives, without showing a grant plainly worded to that effect. I am opposed to the slightest infringement of this principle, which is as firmly rooted in the judicial decisions in this state as it is in those of any other jurisdiction. If the act in question, therefore, were of recent origin, and were now for the first time to be expounded, I should not be prepared to give these terms so wide a meaning as to cast these liabilities upon the state. But this statute is an ancient one, and I think it is clear that it has been understood and applied in this latitudinary sense for a long series of years. I have examined the public archives on this subject, and I am satisfied that for over half a century such has been the understanding, with respect to this law, of all the departments of this government whose duty it has been to act under its provisions. The history of this act, and the practice founded on it, plainly exhibit the propriety of this conclusion. The original fee bill- as, in substance, it at present exists, was passed on the 13th of June, 1799, and has continued unmodified in any particular important to this inquiry, from that date to the present. On the 6th of February, 1817, another act came in force, which enacted that the secretary of state should have (in its own language) for “filing every *19 bond or. other instrument of writing of a public nature, twelve cents, and for recording deeds and other instruments of writing belonging to the state, and for copies of laws, instruments of writing, or records, when applied for by the governor or treasurer of the state, for public purposes, the same fees as are directed by law to be paid by private persons, to be paid by the treasurer, upon a certificate signed by the governor.”

This being the condition of the legislation in this state, on the 15th of February, 1819, the first act was passed relative to the publication of the laws in the public prints. Its language is : “ That it shall be the duty of the secretary of state to cause the public laws passed at the present and every subsequent session of the legislature, to be published immediately after the passing thereof, in one or more of the public newspapers in the city of Trenton.” ' This law, it will be observed, makes no allusion to any payment to the secretary for the labor thus imposed upon him, and, consequently, he was entitled to none, unless, by force of the general fee bill or the subsequent act just mentioned, he was authorized to charge for such services.

Although the accounts of the secretaries of state who were in office at the time of the passage of the act just quoted, and shortly afterwards, do not exist in the treasurer’s office in anything like a state of completion, yet enough appears to show conclusively that in a short time after the date of this enactment, the practice obtained of charging the state at the statutory rate per folio for the copies of the laws thus directed to be furnished to the newspapers. Daniel Coleman was secretary from 1821 to 1831, and although, from the generality of his charges, and from the fact that his accounts are in the treasurer’s office in a very imperfect condition, I have not been able to discover the precise time he began to make demand upon the state in consequence of the services in question, still, in an account now before me, it appears that he charged the state for making a copy of a legislative resolution, and that such charge was ordered paid by Governor William *20 son, as is manifested by his order, under his signature, upon such bill, and that as early as the 20th of March, 1830, he made an explicit charge of the nature now in question. That latter charge is in these words : “ Daniel Coleman, for copying the laws of the legislature for the newspapers, $25.26; ” and it is evident from the amount so charged, that the rate was by the folio, as prescribed by the legislation above referred to. At that period, money could not be drawn from the treasury except upon a bill audited by the treasurer and under the warrant of the governor; so that the account containing this item must have had the sanction of Charles Parker, as treasurer, and of Governor Vroom, who was then in office.

The succeeding secretary was James D. Westcott, and I have before me a bill of his dated the 22d of October, 1832, which contained the following item: “ Copies of public acts and resolutions of 1831-2 for publication in the newspapers, $23.40,” and which bill is certified to by Charles Parker, as treasurer, and is endorsed for payment by Governor Vroom. Other bills of this same secretary are in my hands, containing similar charges, there being among these bills some which give the number of folios embraced in the copies furnished, and which number, multiplied by the statutory rate, produces the amount charged, thus showing conclusively that such charges were claimed to be authorized by the legislation in question.

The successor of Mr. Westcott was Charles G. McChesney, whose accounts exemplify the practice of making charges of the same character against the state;- and these accounts were audited by the cotemporary treasurer, and some of them were ordered to be paid by Governor Stratton and others by Governor Haines. And from that time to the present, whenever these services have been performed, I do not find that there has been any interval of time during which these charges, at the rate specified, have not been made against and paid by the state; so that it is not disputable that this practice has been in existence, without intermission, for this long series of years. Such a course of usage has no other foundation than *21 this legislation, and the consequence is that we have in it a cotemporaneous and uninterrupted exposition of such legislation. And, as already intimated, this interpretation, during all these successive years, has received the sanction, in the formal discharge of public duty, of all the highest officers of the state, whose province it was to be conversant with the subject; for such interpretation has been acted on during this whole period, not only by secretaries of state, treasurers and governors, but by every successive legislature; for it is to be remembered that these charges have annually been approved ■of by selected committees of that body.

Nor am I willing to entertain for an instant the suggestion that these charges were allowances made by these successive treasurers, in auditing these accounts, with a knowledge that they had no legal foundation, but in a spirit of justice. 1 am not willing to bring this long train of high officials within such an imputation. These charges were either supposed to be legal charges, or they were known to be illegal in their ■character; and if they were the latter, to make them, and to audit them, and to order them paid, were delinquencies and •crimes. There is nothing in the history of these matters that warrants such an accusation. For my part, I am satisfied that when these bills were officially presented and officially ■sanctioned, it was in the belief that the fees in question were legally, and therefore justly, due; and if that position is granted, then, beyond all doubt, their validity was acknowledged in consequence of the legislation above cited. .

Under this condition of affairs, as this case is to be tried by the court upon the merits as well as the law, this court is ■obliged to find, and does find, as a matter of fact, that the legislation in question has received a practical construction to the effect stated for a period of time in excess of fifty years.

Therefore, to consider the question as to the proper meaning of that legislation as an open one, would, in my opinion, be utterly opposed to public policy, precedent and the admitted principles of law.

*22 The legal rule is succinctly expressed in the maxim of the civil law, “ cotemporanea expositio est fortissimo,.” The doctrine has such prevalence that it is applicable not only in the exposition of statutes, but in the interpretation of constitutions of government. Its antiquity with respect to the English law is evidenced by the comment of Lord Coke, who says: “ Great regard ought, in construing a statute, to- be paid to the construction which the sages of the law who lived about the time, or soon after, it was made, put upon it, because they were best able to judge of the intention of the makers at the time the law was made.” An exemplification of this rule is conspicuous in Rogers v. Godwin, 2 Mass. 477. The case presented these features: By an early statute authority was given to the freemen of every town to dispose of their lands, &o., and by the preamble of a subsequent act it was recited that the proprietors of lands lying in common have power “ to manage, dispose and divide the same ” in the way that a majority of those interested should agree upon. The point in uncertainty was whether this power to dispose of lands included the power to sell and convey the common lands. It seems quite clear that by the force and signification of the statutory terms no such power had been conferred, but nevertheless the court said: “ And although if it were now res integra it might be very difficult to maintain such construction, yet at this day the argumentum ab inconvenienti applies with great weight. We cannot shake a principle which in practice has so long and extensively prevailed. If the' practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is, that long and continued usage furnishes a cotemporaneous construction which must prevail over the mere technical import of the words.” Indeed, this principle has been carried so far that when a question was raised in the Supreme Court of the-United States with respect to the authority of the judges of that court to hold Circuits without having special commissions for that purpose, the objection was met with the peremptory answer *23 that practice and acquiescence under the act for the period of several years had irresistibly fixed the construction, and the court declared, to use its own language, that it was “ a contemporary interpretation of the most forcible nature. The practical exposition is too strong and obstinate to be shaken or controlled.” Nor is the rule without illustration in our own state, as will appear by reference to the following cases: Board v. Cronk, 1 Halst. 120; Calame v. Calame, 10 C. E. Green 547.

In the light, then, of such a principle of law as this, and of such judicial applications of it, it appears to me entirely out of the question for the -court to pass upon the present statute as though it were the creature of yesterday. Such a course would be greatly unjust.

The defendant, when he accepted this office, had a right to rely on the interpretation which nearly two generations of men had put upon this law, .and in which all the appropriate heads of the government had coincided. I think it must be held that the meaning of this law has been thus conclusively -settled, and according to such settled meaning the defendant, if none of the other objections which have been interposed are to prevail, had the legal right to make these contested charges.

But before turning aside from this branch of the subject relating to the legal efficacy of the fee bill, considered in its relation to the legislature, it is important that attention'should for a moment be drawn, with a view to the elucidation of this same point, to the statute and legislative resolution by force of which the present suit has been brought; for I cannot but think that in this action of the law-makers there is to be found a very clear recognition that the defendant would have been legally justified by force of the fee bill in making these charges which are now objected to, if it were not for the limitation on such right imposed by the act of April 21st, 1876. It will be remembered that this is the act that revises the policy of publishing the laws in the newspapers, and which, in its proviso, contains the clause that “ the secretary of state shall *24 receive for his services under this act the rates now allowed by law, provided the sum shall not exceed one thousand dollars in any one year.”

Now, I can see no reasonable ground to doubt that the expression, “ the rates now allowed by law,” meant the rates allowed by law for making copies of the laws for the newspapers by the order of the legislature. Eor years, then, recently past, the legislature had been assenting to the payment of large sums of money to the secretary of state for such services as these, and it is not súpposable that this had been done without the recognition of any rate established by law for that purpose, and it is to such rates that .the expression in this statute is, as it seems to me, necessarily to be referred. It is argued for the state that this phrase makes allusion to the rates which the law prescribes to be paid for copies of papers from this office, to be paid when furnished to an individual, or to the governor or other state official. But such a theory is a very forced one. The subject of this act is the publication of the laws in the newspapers, and the expression, “ the rates now allowed by law,” is connected with that subject. Although the legisla^ ture says explicitly that the secretary shall receive for his services under this act the rates allowed by law, the contention now is that for his services under that act there were no rates allowed by law. To my mind this statute itself, by this recognition of the efficaciousness of the fee bill, falls little short of an answer to the argument against the defendant’s right to charge these fees if the question were to be regarded irrespectively of the limitation in the act of 1876.

Nor does the resolution under which this suit has been brought, and which is a part of the printed case, leave any doubt as to what was the understanding of the legislature on this subject. No one can read this document, as it appears to me, without perceiving that the legislature, when they passed the resolution, did not entertain the slightest doubt that the defendant, but for the restriction in the act of 1876, would have been entitled to eight cents per folio for every copy made by him by virtue of that law. This resolution recites that *25 by the act of March 16th, 1875, all the acts relative to the publication of the laws in the newspapers were repealed, and that Mr. Kelsey had been subsequently re-appointed; that in violation of the restriction in the act of 1876 he had charged large sums in excess of the annual sum of $1000, and it then concludes by directing the attorney-general to bring suit for such overcharges.

This resolution has this meaning: That the legislature disputed the right of the defendant to charge at the rate of eight cents per folio for all these copies which had been furnished by him after the act of 1876, putting a limitation upon him. What they insisted on was, that this law was binding upon him, but there is no hint in this resolution that, except for such law, they denied the state’s liability by force of the fee bill. Prior to the passage of this law the defendant had withheld from the state many thousands of dollars, which he claimed to have earned for making copies of the laws for the newspapers, and if the legislature supposed; as the attorney-general now argues, that such charges had been made without any warrant of law, why were not such moneys included in the present action ? The exclusion of such moneys from this present demand is in complete harmony with the legislative history upon this subject, which on its every page admits the legality of such charges; but it is pointedly incompatible with the theory, for the first time, as far as appears, broached in the argument before this court, that the right to make such charges never existed. The legislation in question must, under these circumstances, be accepted by the court in the sense which this inveterate practice and exposition have given to it.

But there is a second ground on which the legality of these charges is challenged in behalf of the state. It is insisted that even admitting that the laws of the state gave to the secretary a fee for every copy of a law made by him for the state, still, he has not the right to charge at the same rate for the printed copies so furnished. When the legislation calling for publication in the newspapers was broadened so as to take *26 in a large portion of the newspapers of the state, it was the natural and easy device to procure such laws to be published in a single paper, and at the same time to have the requisite number of copies, struck off so as to supply with copies the other papers, and in this way, it cannot be questioned, the price for the service became very greatly disproportioned to the outlay of money or labor. The facility, and consequent economy, with which these copies were multiplied appears to have induced the secretaries who were in office when, and for some time after, the act of 1850 was passed, and which act directed the public laws to be published in two newspapers in each county town, not to charge at the full statutory rate for the additional copies so made requisite. Accordingly, on looking through the accounts of this class of secretaries we find them charging at the statutory rate for one, two or three copies, and at a merely nominal sum for the residue—usually $150. Why this was done is left to conjecture. It may have been the prudential consideration that if the full rates were exacted the legislature would take the matter in hand, as it then had the unfettered right to do; but whatever the motive, these mitigated charges ceased, and the charges were then made at the full rates authorized by the fee bill. The bills of the immediate predecessor of the defendant, commencing in the year 1866, are full and explicit on this subject, as they give a detailed statement of the number of folios sent to every newspaper, charging at the rate of eight cents per folio for each of such copies.

It follows, therefore, that for ten years preceding the reappointment of this defendant to his present office, these charges in controversy had been made openly and in detail; they had been passed upon annually by every successive legislature, and had been audited and paid, and, so far as appears, no voice had been raised questioning their legality. Such a course of practice for ,such a length of time, thus signally sanctioned, would of itself, in my opinion, present an irreversible exposition of the laws now under consideration.

The legality of such a charge is indisputable if the premise *27 is conceded that the fee bill warrants any charge whatever for this class of copies of the laws. Such premise I have declared to be established, and therefore, at this stage of this discussion, must assume its existence, and its assumption, in my opinion, necessarily explodes this second objection. If, by force of this legislation, the state becomes liable to pay this fee if it orders one copy, how can it escape liability to similar fees if it orders fifty copies ? If this fee bill is addressed to the state at all, it says to the state, as it says to individuals, that every copy is to be paid for at a certain rate. It is undeniable that each secretary was entitled to eight cents per folio for these copies if he was entitled to anything; if he chose to take less he was at liberty, but he could not be compelled, to do so. Uor can the fact that, in consequence of the expansion of the system of publishing the laws in the public prints, the fees in question have become greatly disproportionate to the value of the services rendered, affect in the slightest degree the solution of this legal question. The law under considération declares that this officer is entitled to a certain fee “ for every copy,” and it is impossible for the court to say that the expression, “ every copy,” means only every “ manuscript copy.” When the will of the law-maker has been plainly expressed, as in this case, by this-language, a court has no control over the matter; the clear judicial duty is to enforce such will, no matter what the expense to the public may be.

The results, therefore, so far reached are these: That the state was liable to the charges of the fee bill, and that the verbal problem, whether a printed transcript of a law is a copy within the sense of such fee bill, must be decided in the affirmative.

But a single other question on this branch of the case is left for discussion. That question relates to the effect of tifie defendant’s enforcement of the act of April 21st, 1876, and to the restrictive clause contained in the proviso of this same act.

As has been stated, the purpose of this statute was to restore the policy of publishing the laws in the newspapers, which *28 had been discontinued by a law of the previous year. Its provisions are, in substance, these: That thereafter the public laws of the state passed at each session of the legislature should be published in certain of the newspapers of the several counties, such papers to be selected under prescribed regulations, by the governor and comptroller, such papers being declared to be the “ legal newspapers of the state for that year.” I have stated the details of this law so that the conditions of the case might be before us during the examination of the objections to the position taken by the defendant with respect to this act. That position is that the limitation contained in it of his right to charge for his services in furnishing copies of the laws under it is void, and that, after having put it in execution, it is competent for him to repudiate such limitation. To this the state, by the attorney-general, has replied that as the defendant has put the law in force, he is bound by all its provisions; that if the limitation in the proviso was void, the act itself was void, and the defendant was not bound to execute it.

This point is not to be considered on the assumption that in carrying this law into effect the defendant left the legislature in the belief that he did so intending to claim no higher remuneration than the act itself gave him. Not the least suspicion of mala jides in this respect can be laid to him, for the facts are not consistent with such en imputation. This act was passed in April, 1876, and on tha 5th of April, 1877, the defendant presented his account, containing a number of these charges, to the comptroller. This was a public declaration of his position in this matter and a plain repudiation of the restraining clause in this proviso, as such charges exceeded the limit denoted in such act. With the knowledge, then, of this attitude of the secretary of state, the legislature permitted the statute to stand and these services to be performed under it, so that the question at issue must rest, not upon any equitable consideration, but strictly upon its legal merits.

The examination which I have given this subject has led to the conviction that it was the duty of' this officer to execute *29 this law, even on the assumption that the proviso, so far as it related to his own interests, was void. The illegality of such an incidental passage of the act would not, in my opinion, invalidate the entire law. It has been repeatedly decided in the courts of this state, and is the universally admitted doctrine, that it does not inevitably follow that because one part of a statute is unconstitutional, that the whole of it is thereby illegalized. The judicial effort always is to uphold every act passed by the legislature, and if the entire act cannot be sustained, to execute such parts of it as can be reasonably put in force. Whenever an unconstitutionality is apparent in a statute the inquiry arises, how closely such infirmity is connected with those essential provisions upon which the general legislative scheme is made to depend, and if such infirmity and such provisions are separable, and after the elimination of such illegality the law can be substantially executed, the body of the act will not be held to be invalid. In such affairs it becomes a question whether it. was the legislative design to make the constituent found to be illegal a necessary part of the enactment. The legal rule is clearly expressed by Chief Justice Shaw, in Warren et al. v. Mayor, &c., of Charlestown, reported in 2 Gray 84, 97, his language being as follows: “ If the main objects and purposes of the act are constitutional, they may be carried into effect, although there may be isolated clauses, or separate or independent enactments, obnoxious to the charge of being in violation of the constitution.”

This is the uncontested rule applicable to this topic, and in view of it, in my opinion, it is altogether unreasonable to maintain that it would have been proper for this defendant to refuse to give effect to the law under consideration. That law embraced an object which had constituted a part of the public policy of the state for over fifty years; it was a measure that was of such moment in the opinion of legislators during all that period that they had been led to spare no expense in its accomplishment, and admitting this view to be correct, it was of interest to every citizen of the state. This general purpose *30 of the act was plainly constitutional, -the illegality, if it existed at all, being present only in the provision limiting the secretary’s compensation. By striking out that limitation, and remitting him to the fee bill for the measure of his dues, the law was unobjectionable. With a statute thus conditioned, how would this officer have been justified in concluding that this favored scheme of statesmanship had been made dependent on the amount of his own fees ? In other words, that if he was to be paid in accordance with the directions of this act, the inhabitants of the state were to enjoy its benefits, but if his services were to be rated by the fee bill, they were to be deprived of such privilege. Statutes aré not avoidable even by judicial decision except upon very satisfactory grounds; and nothing short of almost absolute certainty with respect to the entire invalidity of an act would afford an excuse to an officer for his refusal to execute it. Any less stringent rule of official conduct in such a respect would be a public evil of very great magnitude. For a financial agent of the government to refrain from putting into operation a legislative policy, plainly evidenced by a formal enactment, acting on his own judgment, unassisted by any judicial tribunal, would, unless in an instance of such clear illegality that the flaw would be at once admitted by every enlightened mind, be inconsistent with every dictate of law and public policy. In my opinion it was the plain duty of this defendant to have the laws in question published, whether this incidental clause in the proviso were constitutional or unconstitutional.

I pass, then, to a consideration of the legal quality of the clause itself.

Had the legislature the legal capacity, by the present act, to take from the defendant for making these copies, any portion of the remuneration given to him by the fee bill ?

It has already been found as one of the conclusions above stated, that this fee bill operated upon the state, and that, consequently, for every copy of a law furnished to the public the defendant had the right to charge at the rate of eight cents per folio. This was the state of the law at the date of his re *31 appointment; the admitted effect of the clause in question is to decrease such allowance. Inasmuch, therefore, as the amendment of the constitution already quoted forbids such a result to be effected by any act which is “ private, special or local,” the only point here presented for inquiry is whether this law falls within any of these three specified categories.

As this is a statute affecting the emoluments of a state official whose functions are co-extensive with the territorial limits of the state, I think it is plain that it is neither a private nor a local law; but I am equally clear that it is a special law so far as it affects the interests of this defendant. No one can doubt the purposes of this constitutional prohibition; the design was, first, to protect the individual officer against legislative intimidation or oppression; and second, to guard the legislature against the gainful schemes of officials. It is argued that the prohibition cannot be intended to apply to an officer who stands single, without an associate or co-ordinate, inasmuch as in such an instance a classification is not possible, and therefore the legislature cannot execute its purpose by means of a general law. But admitting both this premise and conclusion, the result would be that many of the most important officers of the state would be beyond the pale of either the protection or the restraint of this constitutional provision ; it would neither protect nor restrain the attorney-general, the treasurer, the secretary of state, the comptroller and other officers of high grade, and yet these are the agents of the government to whom, no one can deny, the provision should be pre-eminently applicable. Such a construction put upon this amendatory clause would indeed leave it in existence, but the reason for its existence it would be difficult to discover. But I do not admit either the above premise or the conclusion deduced from it, for it seems to me there is no insurmountable obstacle in the way of classifying these several officers for every legitimate legislative purpose, and that if they cannot be. classified, the prohibition against raising or lowering their salaries by specific enactment is too distinct to be overridden by construction. The court cannot yield to an interpretation *32 which, for most practical purposes, puts the clause iu question out of existence. The cases cited do not seem to me in point, as they certainly do not establish any principle which will lead to the result now contended for in behalf of the state.

My conclusion on this part of the case is, that the limitation in question is unconstitutional, and that, consequently, the charges contained in these accounts in this respect are legally due the defendant.

The remaining branch of this controversy undisposed of relates to the defendant’s charges for filing in his office the returns of marriages, births and deaths.

By an act passed on the 6th of February, 1817, entitled “ An act relative to the fees of the secretary of state and register of the Prerogative Court,” among other things, it is enacted that such officers shall be entitled to receive u for filing every bond or other instrument of writing of a public nature, .twelve cents.” This law has in no wise been altered, and in its original form it at present stands in the statute-book. Rev., p. 1095, pi. 10. The same clause also directs that such fee is to be paid by the state treasurer upon a certificate signed by the governor. That the state treasury is liable for these fees, if the services performed are within the scope of the act, is not open to question.

The inquiry, therefore, is restricted to the proposition whether these returns of marriages, births and deaths are of such a character as to fall within the specifications of the statutory terms.

The statute in question has not heretofore received any interpretation on this subject, either by continued usage or otherwise. The principle of construction applicable on such occasions has been already stated, and it is this: That such fees cannot be claimed unless a clear and manifest intent to that purpose is expressed on the face of the enactment under which they are said to accrue ; nor does it follow that because a new service is required of an official that from that circumstance any implication will arise that he is to have a re *33 turn from the public for his work. It is always held that the incumbent of a public office takes it cum onere, that is, with a liability of having new labors imposed upon him without any countervailing addition to his salary. The inquiry then is, do the terms of this act clearly embrace, when they declare that a fee shall be paid “ for filing every bond or instrument of writing of a public nature,” the statistical returns now in question ? What is the meaning of the phrase, “ instrument of writing,” in this connection? The phrase is associated here, it will be perceived, with the legal document known as a bond, and in the next clause of the same section the same term is twice repeated with other affinities, the passage reading thus: “ And for recording deeds and other instruments of writing ” belonging to the state, and for “ copies of laws, instruments of writing or records, when applied for by the governor,” &c. Hence it appears that the textual associates of the term “ instrument of writing,” are bonds, deeds, records and laws, and the proposition therefore is, does this expression, in view of its intrinsic signification and of its relationship in this sentence, have so wide a scope as to embrace every possible paper-writing that may be directed by the legislature to be put among the files of this office ? Unless the expression, “ instruments of writing,” has this very extensive import, it will not take in the returns in question, for such returns have no legal character or force, being mere statistical collections deposited in this public office for the purposes of economic science. The information contained in these papers is, in part, obtained by certain designated officers, who are directed, by “ actual inquiry or otherwise,” to ascertain “ all the marriages, births and deaths ” which have happened in their respective townships during the year. ' Such statements thus made up have no legal value whatever • they neither, by way of evidence, record nor attest any fact. How can they, then, correspond in any reasonable sense to the descriptive phrase, “ instruments in writing ? ”

I cannot construe this, language in this broad sense. In my apprehension it has a restrictive connotation from being *34 associated with such things as bonds, laws, deeds and records ; and independently of such surroundings and connections, the expression, standing by itself, would not comprehend all written papers, but only written papers of a class. Abbott, in his law dictionary, defines the word instrument as “ something reduced to writing as a means of evidence,” and Webster describes it as a writing expressive of “ some act, contract, process or proceeding, as a deed, contract, writ,” &c. It has just been shown that these returns do not embrace the contents of any of these definitions; they are not “ reduced to writing as a means of evidence,” nor are they expressive “ of some act, contract, process or proceeding, as a deed, contract, writ,” &c. The clause must be construed favorably for the state; the language, to warrant the charge, must be clear for that purpose. With such rules in mind, it seems to me quite impracticable to draw the conclusion that the papers in question are any of those designated by this statutory description. It is also to be remarked that the expression, “ other instruments of writing,” stands in striking contrast with the legislative phraseology, employed for a similar purpose, in the fee bill, which is an act obviously in pari materia, for in that act, after providing for fees in specified cases, it gives a fee for every copy of other papers “ in his office.” In this general fee bill, therefore, the whole class of filed papers is embraced; while in the act now before the court the terms are so plainly less comprehensive that they can embrace only a sub-class.

In consideration, then, of the narrow import of this statutory phrase, as well as of its grammatical relations, my conclusion is that this law gives no right to the secretary of state to charge the fees in question for putting these returns on file in his office.

Nor do I think, if these considerations should be waived, that this act would authorize, by a fair interpretation of it, a •charge to be made against the state of a fee for filing each of these returns as a separate paper. Such a right cannot be vindicated, construing it according to its spirit. The method of proceeding prescribed by the statute with respect *35 to these returns is this: they are directed to be forwarded to the office of the secretary of state, and without being filed are to be turned over to the medical superintendent, who, after preparing from them his annual report, is required to cause “ all returns of marriages, births and deaths for the year to which the report relates to be arranged and alphabetically indexed, keeping each class, of marriages, births' and deaths, distinct and separate.” Under this provision this officer puts into distinct packages, in alphabetical arrangement, the marriages returned from the several counties, and so with regard to the births and deaths; and it will be observed, therefore, that it is in the form of packages that these returns come to this office. It is the obvious design that the papers in question are to remain on file as arranged by the medical superintendent. The returns, then, are received as packages and are retained as packages—why should they not be filed as packages ? I can see no propriety in treating each paper in these packages as a distinct writing separately put on file, and charging for it accordingly. An interpretation of this law justifying such a course of practice as this would seem to me very unreasonable. Suppose the legislature should direct that after each election all the ballots cast at each voting precinct should be made into packages to be sent to the secretary of state, to be “ kept on file with the archives ” in his office, could, under such a provision, a charge be made for filing each separate ballot? No person, I think, would pretend that such a right would exist, and yet, so far as it touches legal principle, that is what has been done in this case.

My general conclusion, therefore, is that the fees charged for filing these returns are not warranted by any law, and, consequently, that the state must have judgment to that extent.

Scudeer, J., concurred.