
    HEARD vs. BABER, Auditor of Public Accounts.
    The third section of the act of February 27, 1843, concerning the register of lands, providing, that “ the fee allowed the register of lands, upon the payment of taxes' upon lands or town lots, and all other fees, at the State treasury, shall he paid into the State treasury by the person paying taxes,” is not inconsistent with the 32(1 section of the act of Feh. 27, 1843, to “ provide for the sale of lands for the taxes,” allowing the register certain fees for every tract of land or town lot which he shall certify out for sale, &e. The former, act refers to those fees only which were allowed the register by the act of February 3, 1841, entitled, “An act to establish a register’s office; therefore, the register is entitled to the fees allowed him in said 32d section, and the auditor may draw his warrant in favor of the register for the fees allowed him under this section, as the services are rendered.— See Session Acts of 1840 ’41, p. 119; also, Session Acts of 1842 ’43, p. 105, 137.
    PETITION for a Writ of‘Mandamus.
   Tompkins, /.,

delivered the opinion of the Court.

John Heard, register 'of lands, filed at this term of the Court a petition, that a writ of mandamus might issue against Hiram H. Baber, auditor of public accounts, &c.

The petition states, “ that1 the. legislature of this State, at its last session, passed an act, entitled, ‘An act to provide for the sale of land for the taxes,’ approved 27th February, 1843; that, by the provisions of the said act, the register was required, as soon as the same could be done thereafter, to make out a full and perfect list of all lands and town lots which had been returned by the several collectors of this State to the proper office, for the non-payment of taxes for the year 1841, or any prior year, including all such lands and town lots as had been sold to the State for taxes, and all such lands as had been returned for the nonpayment of taxes for the year 1841, or any prior year, but not forfeited; that said, list was required to exhibit, in appropriate columns, the taxes due on each tract of land or town lot for each year, which list the register was required, by the said act, to record in a book to be provided for that purpose; that the register was also, by the said act, required, on or before the 10th day of August, 1843, to make out a fair copy of all the lands and town lots aforesaid, situated in each county, separately, which list was required to exhibit the amount of taxes due on each tract of land or town lot for each year, for State and county purposes, separately, &c.; that the said law provided also, that the register should send the said lists to the respective sheriffs of each county, and that the said register should be entitled to fees for his services rendered herein as follows, viz.: For every tract of land or town lot which he should certify out for sale in the year 1843, thirty-five cents; that said law further provided, that such fees should be paid by the State, on the presentation of a certificate of the secretary of state, that the number of tracts of land and town lots certified out by the register under said act was correctly stated in his account, as presented to the auditor.”

The petition further states, “ that the said register did, under the provisions of said law, certify out 3122 tracts of land and town lots, for which he was entitled to receive the sum of, &c., out of the State treasury; and that he presented his account to the secretary of state, and that the secretary of state did certify to the auditor that the petitioner had certified out the said number of 3122 tracts of land and town lots, &c.; and that the said register did afterwards, on, &c., present to the said auditor of public accounts his said account, certified by the secretary of state,&c.,as aforesaid, and requested the said auditorio allow the same, and draw a warrant on the treasurer of the State for the amount of his said account, and that the said auditor refused so to do, &c.”

For answer to the conditional mandamus issued on this petition, the auditor returns, that “the law entitled, ‘An act to provide for the sale of lands for taxes,’ under which the account of the register was made out, became a law, as appears by its approval, on the 27th day of February, 1843; that, on the same day, another law was passed, entitled, ‘An act amendatory of an act to establish a register’s office, approved 3d February, 1841;’ that the third section of this last-mentioned act, of the 27th of February, 1843, provides, that the fees allowed the register of lands upon the payment of taxes for lands and town lots, and all other fees at the State treasury, shall be paid into the State treasury by the person paying the taxes; and that it seems to said auditor this section conflicts with the provisions of the act under which this claim is set up; and further, that if the register be allowed the fee as charged, yet by the thirty-third section of the law under which he claims it, it is provided, that fees herein allowed the register shall be paid by the •State, but before the register shall be allowed any fees, he shall produce to the •auditor a certificate of the secretary of state, certifying the number of tracts of land and town lots certified out by the register under this act; that the account presented to the auditor does not contain all the lands certified out under the act, and, as he is informed, does not embrace more than one-fourth part of the number; and that, believing the register to be entitled to no compensation till all the services by the act required be performed, and until his account therefor be duly certified by the secretary of state, he has withheld his warrant on the treasury for the amount of the account presented: and he concludes by praying the opinion of the court, &c.”

The thirty-second section of the act under which the register claims is in these words: — “ The register of lands shall be entitled to fees for his services as follows: For every tract of land, or town lot, which he shad certify out for sale in the year 1843, thirty-five cents.”

“ Section 33: — The fees herein allowed to the register of lands shall be paid by the State.”

But, by an act of the same date as the last cited, entitled, “An act amendatory of an act entitled, An act to establish a register’s office, approved February 3d, 1841,’ ” it is provided —

“Section 1. That so much of the above-named act as provides that the register of lands shall receive a salary of five hundred dollars per year, be, and the same is hereby repealed.

“ Sec. 2. The register of lands shall, in future, receive a salary of twelve hundred and fifty dollars per year, to be paid quarterly, out of the State treasury, &e.

“ Sec. 3. The fees allowed the register of lands, upon the payment of taxes upon lands and town lots, and all other fees, at the State treasury, shall be paid into the State treasury by the person paying taxes.”

The fees allowed the register by the said act of 1841 were — ■

For services relative to the redemption of every tract of land, one dollar.

For making every deed for land sold for taxes, one dollar.

For services relative to the payment of taxes on every tract of land, twenty-five cents.

For copies of papers or records, ten cents for every hundred words.

There does not seem to be any difficulty in construing these two statutes that both of them may stand.

The act of the last session, which directs “fees allowed the register of lands upon the payment of taxes upon lands and town lots, and all other fees, at the State treasury, to be paid into the treasury by the person paying taxes,” refers to those fees only which were allowed by the act of 3d February, 1841, above-mentioned. Those fees are designated so plainly that we cannot he mistaken if we attend carefully to the language, for, says the act, they are to be paid into the State treasury by the person paying taxes.

The register asks for money out of the treasury, on the authority of the thirty-second section of the act to provide for the sale of land for taxes; and in the thirty-third section are tírese words: “The fees herein allowed the register of lands shall be paid by the State,” and the fees required by the act amendatory of the act to establish a register’s office to be paid into the treasury of the State, are to be paid by the person paying taxes.

The fee of thirty-live cents given by the thirty-second section of the act to provide for the sale of land for taxes, appears to have been considered a compensation for the extraordinary labor imposed by the act on the register. Accordingly, we find in the same thirty-second section, that after the year 1843, wh§n the labor will be less, the fee is reduced to twelve cents.

It is not perceived that any inconvenience can result from the first demand of the register, being made for the compensation allowed for five counties. The subject is fairly divisible, and the law does not provide that all the lands, &c., shall be certified out before he is entitled to his compensation, and it is easy enough to imagine it might be a matter of some importance to the officer to have his warrant at an earlier day.

Let the peremptory mandamus go. •  