Eastman, J.
The controversy in this case grows out of the defendant’s set-off; several items of which have been referred to this court for determination.
With regard to the first item, being the sum of $232,94, •the court have found some difficulty in arriving at a conclusion entirely satisfactory.
The act incorporating the city of Manchester was passed in 1846. In the sixteenth section of the act is the following provision : “All fines and forfeitures, and all costs in criminal prosecutions, which shall be received by or paid into the hands of the justice of said court, [the police court,] shall be by him accounted for and paid over to the city of Manchester, in the same manner and under the same penalties for neglect as are by law prescribed in the case of justices of the peace; and all costs in such prosecutions, not thus received, shall be made up, taxed, certified and allowed, and [413]*413shall be paid and satisfied in like manner as provided by law in cases of justices of the peace.”
A further provision of the same section is as follows: “ The justice- of said court shall account for and pay over to the city of Manchester all fees by him received, or which now accrue to justices of the peace in civil actions and criminal prosecutions, and the said city of Manchester shall pay annually the sum of five hundred dollars in full compensation for all services assigned to him by the provisions of this act.”
Were we to consider the first branch of the section cited, as an independent provision, we do not feel confident that the proper construction should not be that the costs in all criminal prosecutions should go to the police justice. By it he is required to pay over to the city all fines and forfeitures, and all costs by him received, “ in the same manner and under the same penalties for neglect as are by law prescribed in case of justices of the peace;” and in those prosecutions where the costs are not received by him, they are to be made up, taxed and allowed, and “ paid and satisfied ” in like manner as provided by law in cases of justices of the peace. Now there is no provision of statute requiring justices of the peace to pay over costs by them received in any instance. They are required to pay over all “ fines and forfeitures” by them received, to the town, county or person to whom the same is payable, and in default thereof they forfeit double the amount received. Rev. Stat. eh. 222, § 11. But there is nothing indicating in the remotest degree that the “costs” received by justices of the peace are to be paid over by them to any one. When, therefore, the police justice pays over “ in the same manner and under the same penalties,” it might well be argued that the statute is answered by paying “ the fines and forfeitures,” to the non-payment of which alone a penalty is attached. And in those prosecutions before justices of the peace where the costs are not received from the defendants, the same are paid by the complainants [414]*414or the county. Such is the general rule and practice in this State, and 'which in some instances is specially provided for. Rev. Stat. eh. 222, § 21.
But assuming that all the costs in criminal prosecutions received, as well as the fines and forfeitures, are to be paid over to the city by the police justice, still the latter clause of this branch of the section appears to show quite clearly that in those prosecutions where the costs are not collected the city should pay them. They are to be made up, taxed, certified, allowed, paid and satisfied in like manner as provided by law in cases of justices of the peace. In such prosecutions before justices of the peace, the costs are paid to the justices by the complainants or the county; and if in similar prosecutions before the police justice, the costs are to be paid “ in like manner,” then they must be paid to the police justice by the city, whose prosecutions they are, being made by their officers ; or they must be paid by the county. It would be unreasonable to require that the county should pay them, because the city and not the county receive not only the fines and forfeitures, but the costs also, in all successful prosecutions. The city, too, is emphatically the complainant, and should also be held to pay them on that ground, in the same manner as they would be obliged to do were the prosecutions brought before a justice of the peace.
The next clause cited provides that the police justice shall pay to the city all “ fees” by him received, “ or which now accrue to justices of the peace in civil actions or criminal prosecutions.” Whether it was intended to use the term “fees” here as distinguishable in some way.from the term “costs,” in the other clause, is not clear; and what was intended by the phrase “ or which now accrue to justices of the peace in civil actions and criminal prosecutions,” is equally uncertain. If we were to take the phrase in its literal sense, it would seem to indicate that the police justice should pay over all fees which would accrue to him in all prosecutions, both civil and criminal, whether the same were [415]*415received by him or not; but such a requirement would be unreasonable in the extreme, since it would make him surety for the fees in all the ill-advised and unfounded suits that might be instituted in the police court, and might more than absorb his whole- salary. • If by this clause of the section any thing more was intended than to repeat what had been said in the former clause, and then to provide that the costs in civil suits which should be received by the police justice should be paid to the city, we do not readily discover what it was.
Taking both branches of the section together, we think it must mean this, that the police justice was to do all the ordinary business of the city falling within his powers and jurisdiction, and that in all prosecutions, civil,and criminal, brought before him, he was to pay over to the city all the fines, forfeitures and costs that he might receive ; in consideration for which he was to be paid an annual salary of five hundred dollars; that as to those criminal prosecutions where the fines and forfeitures went to the city, and where the costs were not collected, they are not regarded by the act as of that legitimate character which are required to be performed by the police justice, without special compensation therefor; and hence the provision that “ all costs in such prosecutions not thus received, shall be made up, taxed, certified and allowed, and shall be paid and satisfied in like manner as provided by law in cases of justices of the peace.” Consequently, as we have already seen, the costs in such prosecutions should be paid by the city; and-this part of the charter would seem senseless, unless payment is made to the police justice, in prosecutions where the costs are not received.
These costs are not necessarily lost to the city. They may still collect them of the defendants, if they can; but when they are not paid to the police justice and received by him from the respondents, they are to be taxed, allowed and paid to him. Such prosecutions are treated by the act as [416]*416not falling within his legitimate duties, to be performed for his salary, and are such as he should receive compensation for.
This sixteenth section of the charter was probably taken in substance from the Massachusetts statute upon the subject of police courts, and an attempt was made to mould it so as to conform to our laws in regard to justices of the peace.
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Eastman, J.
The controversy in this case grows out of the defendant’s set-off; several items of which have been referred to this court for determination.
With regard to the first item, being the sum of $232,94, •the court have found some difficulty in arriving at a conclusion entirely satisfactory.
The act incorporating the city of Manchester was passed in 1846. In the sixteenth section of the act is the following provision : “All fines and forfeitures, and all costs in criminal prosecutions, which shall be received by or paid into the hands of the justice of said court, [the police court,] shall be by him accounted for and paid over to the city of Manchester, in the same manner and under the same penalties for neglect as are by law prescribed in the case of justices of the peace; and all costs in such prosecutions, not thus received, shall be made up, taxed, certified and allowed, and [413]*413shall be paid and satisfied in like manner as provided by law in cases of justices of the peace.”
A further provision of the same section is as follows: “ The justice- of said court shall account for and pay over to the city of Manchester all fees by him received, or which now accrue to justices of the peace in civil actions and criminal prosecutions, and the said city of Manchester shall pay annually the sum of five hundred dollars in full compensation for all services assigned to him by the provisions of this act.”
Were we to consider the first branch of the section cited, as an independent provision, we do not feel confident that the proper construction should not be that the costs in all criminal prosecutions should go to the police justice. By it he is required to pay over to the city all fines and forfeitures, and all costs by him received, “ in the same manner and under the same penalties for neglect as are by law prescribed in case of justices of the peace;” and in those prosecutions where the costs are not received by him, they are to be made up, taxed and allowed, and “ paid and satisfied ” in like manner as provided by law in cases of justices of the peace. Now there is no provision of statute requiring justices of the peace to pay over costs by them received in any instance. They are required to pay over all “ fines and forfeitures” by them received, to the town, county or person to whom the same is payable, and in default thereof they forfeit double the amount received. Rev. Stat. eh. 222, § 11. But there is nothing indicating in the remotest degree that the “costs” received by justices of the peace are to be paid over by them to any one. When, therefore, the police justice pays over “ in the same manner and under the same penalties,” it might well be argued that the statute is answered by paying “ the fines and forfeitures,” to the non-payment of which alone a penalty is attached. And in those prosecutions before justices of the peace where the costs are not received from the defendants, the same are paid by the complainants [414]*414or the county. Such is the general rule and practice in this State, and 'which in some instances is specially provided for. Rev. Stat. eh. 222, § 21.
But assuming that all the costs in criminal prosecutions received, as well as the fines and forfeitures, are to be paid over to the city by the police justice, still the latter clause of this branch of the section appears to show quite clearly that in those prosecutions where the costs are not collected the city should pay them. They are to be made up, taxed, certified, allowed, paid and satisfied in like manner as provided by law in cases of justices of the peace. In such prosecutions before justices of the peace, the costs are paid to the justices by the complainants or the county; and if in similar prosecutions before the police justice, the costs are to be paid “ in like manner,” then they must be paid to the police justice by the city, whose prosecutions they are, being made by their officers ; or they must be paid by the county. It would be unreasonable to require that the county should pay them, because the city and not the county receive not only the fines and forfeitures, but the costs also, in all successful prosecutions. The city, too, is emphatically the complainant, and should also be held to pay them on that ground, in the same manner as they would be obliged to do were the prosecutions brought before a justice of the peace.
The next clause cited provides that the police justice shall pay to the city all “ fees” by him received, “ or which now accrue to justices of the peace in civil actions or criminal prosecutions.” Whether it was intended to use the term “fees” here as distinguishable in some way.from the term “costs,” in the other clause, is not clear; and what was intended by the phrase “ or which now accrue to justices of the peace in civil actions and criminal prosecutions,” is equally uncertain. If we were to take the phrase in its literal sense, it would seem to indicate that the police justice should pay over all fees which would accrue to him in all prosecutions, both civil and criminal, whether the same were [415]*415received by him or not; but such a requirement would be unreasonable in the extreme, since it would make him surety for the fees in all the ill-advised and unfounded suits that might be instituted in the police court, and might more than absorb his whole- salary. • If by this clause of the section any thing more was intended than to repeat what had been said in the former clause, and then to provide that the costs in civil suits which should be received by the police justice should be paid to the city, we do not readily discover what it was.
Taking both branches of the section together, we think it must mean this, that the police justice was to do all the ordinary business of the city falling within his powers and jurisdiction, and that in all prosecutions, civil,and criminal, brought before him, he was to pay over to the city all the fines, forfeitures and costs that he might receive ; in consideration for which he was to be paid an annual salary of five hundred dollars; that as to those criminal prosecutions where the fines and forfeitures went to the city, and where the costs were not collected, they are not regarded by the act as of that legitimate character which are required to be performed by the police justice, without special compensation therefor; and hence the provision that “ all costs in such prosecutions not thus received, shall be made up, taxed, certified and allowed, and shall be paid and satisfied in like manner as provided by law in cases of justices of the peace.” Consequently, as we have already seen, the costs in such prosecutions should be paid by the city; and-this part of the charter would seem senseless, unless payment is made to the police justice, in prosecutions where the costs are not received.
These costs are not necessarily lost to the city. They may still collect them of the defendants, if they can; but when they are not paid to the police justice and received by him from the respondents, they are to be taxed, allowed and paid to him. Such prosecutions are treated by the act as [416]*416not falling within his legitimate duties, to be performed for his salary, and are such as he should receive compensation for.
This sixteenth section of the charter was probably taken in substance from the Massachusetts statute upon the subject of police courts, and an attempt was made to mould it so as to conform to our laws in regard to justices of the peace. Justices of the peace receive for their services in criminal prosecutions their legal fees, either from the defendants, if they are paid by them, or from the complainants or the county. The police justice is, in the main, the justice of the peace for the city. He receives a stated salary, instead of the costs that are paid by the defendants, and where the costs are not paid by the respondents, he receives them from the city, which is de facto complainant, and county also, to him, so far as his city duties are concerned.
The city council are authorized by their charter to make almost innumerable regulations appertaining to the city, and to impose fines and forfeitures for a breach thereof, and the act appears to contemplate that the salary of the police justice shall cover all prosecutions which can be enforced, and not those which are unadvisedly brought, or where nothing can be collected; and that for the latter he shall be paid in the same manner as justices of the peace are paid for similar services in their respective counties.
Thus stood the charter upon this question until June, 1851, if we have not overlooked any intermediate acts. On the 26th of June, 1851, an act was passed by which the police justice was authorized to hold the office and perform the duties of clerk of the police court. His salary was fixed at three hundred dollars, instead of five, as provided by the charter; and this provision was made: “The said justice shall account for and pay over to the city treasurer, as now provided by law, all fines and fees by him received in actions and prosecutions by or in behalf of said city as aforesaid, and shall be entitled to retain to his own use the fees by him received or receivable in all other cases.”
[417]*417A further act was passed in 1853, raising the salary of the police justice to five hundred dollars, and providing that all the fees, fines. &e., should be paid to the city marshal, instead of the police court. This act was made dependent upon the vote of the city ratifying the same, and was not to take effect until accepted by a majority of the voters of the city. By the general provision of law it would take effect on the 15th of September, 1853, but whether it has ever been accepted so as to be in force according to its provisions, we are not advised. Nor is it very material, so far as this case is concerned, whether it is in force or not, for this item of the defendant’s set-off accrued between January 7th, 1852, and September 29th, 1853, so that probably nearly all of it was for services rendered while the act of 1851 was in force; and in the absence of any suggestion to the contrary, we take it to be so.
The act of 1851 appears to have reduced the salary in consequence of making the police justice clerk of the police court, but so far as receiving and paying over the fines and costs are to be considered, or his retaining to his own use the fees by him received or receivable, there seems to be no change; the only alteration in the law in this respect being that the police justice should pay over to the city treasurer, instead of the city marshal, all fines, &e.
This item of the defendant’s set-off was for costs not paid, and which, in the words of the section, “ shall be made up, taxed, certified and allowed, and shall be paid and satisfied in like manner, as provided by law in cases of justices of the peaceand we think it must be allowed.
In considering the question, we have been without the aid to be derived from the arguments of counsel, and the particular views entertained by the parties have not been stated to the court. But we can discover no reasonable interpretation to be given to the section other than the one which we have adopted; and it appears to us that this clause of the section must be entirely rejected, unless we [418]*418give it the construction stated. If the Legislature had intended the salary to be in full of all official services whatsoever which should be done for the city, one short paragraph could have expressed the whole matter; arnd the reservations, exceptions, repetitions and circumlocutions which now appear in the acts wo.uld not only be unnecessary, but would not, in any ordinary legislation, be found at all.
We are aware of the decision in Potter v. Norris, 6 Foster’s Rep. 330. But that decision does not conflict with this. All that was decided by the court in that .case was, that the fees in civil cases and in prosecutions for military fines, which are quasi civil, belonged to the city, and might be collected in the name of the police justice. That decision did not affect the question of costs in criminal prosecutions. The case did not require it.
The two next items of the set-off cannot be allowed. They are for services rendered by Mr. Lane, the special justice, and there is no provision of law by which these costs belong to the police justice.
The item for the draft should be paid. They were for services rendered and moneys expended by the defendant for the city, and duly certified to by all the members of the school committee. There was no fixed salary for this committee. The amount which the defendant received, equally with the other members of the committee, would appear to be for services similar to those rendered by them. These drafts were for extra services performed by the defendant, and there is no suggestion that the services were not valuable, or that they were not performed, or that the money was not properly expended. Besides, the drafts were retained by the city clerk, without being paid when they were the property of the defendant, and undoubtedly an action of trover could have been maintained for the drafts themselves, if the defendant had seen fit to take that course instead of seeking to obtain compensation for his services by way of set-off to the claim of the city against him.
[419]*419The item for rent should also be allowed. It was the duty of the city to procure a suitable room for keeping the files and transacting the ordinary office business of the police court; and if they did not do it, but suffered the defendant to hire a room and occupy it for those purposes, and the room was thus used with their knowledge and consent, and the room in which the police court was held was not a convenient and proper one to keep the files in, all of which we infer from the finding of the auditor, we see no reason why the city should not pay this item. The fact that it was procured without direction from the city authorities does not change their liability, inasmuch as it was used with their knowledge and for the purposes of the city. If the authorities disapproved of the act of the defendant in this respect, they should have so informed him, instead of suffering the room to be thus used for their purposes.
Neither do we discover any good reason why the seal and press should not be paid for. The one which Emerson had was old and broken, and the defendant could not obtain it without a condition which he was not obliged to submit to. It is not suggested that the sum paid by the defendant was unreasonable. The seal was used for the business of the city, and was one of those matters incidental to courts which will occasionally become necessary to be procured for the transaction of business, and if purchased in good faith, and used for the court — and there is no suggestion in this case to the contrary — it should be paid for. The city have had the benefit of this seal. It has been used by its officers, and with its knowledge, and without objection, so far as the case shows, and for aught that appears, is now used for the same purposes.
The claim of the plaintiffs appears to have been properly allowed under the sections of the acts to which we have referred, and the accounts between the parties, so far as referred to us, will stand thus:
[420]*420Plaintiffs’ claim,..............................$993,10
Defendant’s set-off allowed by auditor,. .. .$589,00
Items of costs between January, 1852, and September, 1853,......................232,94
Items of drafts,.......................... 18,00
Pent,.................................. 87,50
Seal and press,................ 13,50 - 940,94
Leaving a balance of........ $52,16
For which sum the plaintiffs should have judgment, with interest from the date of the writ.