18 Ala. 687 | Ala. | 1851
This suit was brought under the act of 1848, to recover the penalty of fifty .dollars of the defendant, who it is alleged, as clerk of the County Court of Tuscaloosa, charged the plaintiff excessive fees in a cause pending in said court, in which the State of Alabama was plaintiff and J. P. Mahany and others, defendants. The defendant demurred to the plaintiff’s statement filed in the County Court, which was sustained, and this is the only assignment of error. The first section of the act, under which this suit is brought, prescribes the fees to which the county judges shall be entitled; the third, the fees to which the.clerks of the respective County Courts are entitled for the performance of the duties and services required of them, and then declares that all other duties and services by them rendered shall be deemed and held as pertaining to their office, for which they shall receive no compensation, fee, or reward whatever. The 6th section of the act then provides that the judges of said courts shall not, nor shall any one employed by them in their offices, in any case pending in their respective courts, take any fee or reward for advice, or for rendering any aid or assistance, nor for preparing the accounts of any execu
It is contended, in support of the demurrer, that no other person, except an executor, administrator, or guardian, or some one who has paid more or greater fees than are allowed by law in the administration of estates, can recover the penalty; in other words, that unless the overcharge of fees is made in some matter relating to the administration of estates, the penalty given by the sixth section of this act is not incurred. But to this argument we cannot yield our assent. It is true that the penal statutes are to be strictly construed, and when general words follow an enumeration of words .of a particular and specific meaning, such general words are held to apply only to persons or things of the same kind, as those designated by the particular words. — D warns on Statutes, 69, 79. But this is but a rule of construction, by which courts are to ascertain the intention of the Legislature, and when that is apparent, we are bound by it and can no more disregard the intention in the exposition of a penal statute than any other. If we were to restrict the meaning of general words, when the framers of the law, by the use of them, intended to embrace other persons or things not embraced by the particular words, we should annul the law, instead of executing it. Whether then the act be penal or not, the intention of it is the rule by which we must be governed. — Pike v. Jenkins, 12 N. Hamp. 256; U. States v. Winn, 3 Sum. 209. Applying this rule of construction to the act of 1.848, we entertain no doubt but that the defendant has incurred the penalty given by the sixth section, if in fact he has charged excessive fees, although
As to the frame or form of the statement, we think it substantially good, and that the court erred in sustaining the demurrer.
Let the judgment be reversed, and the cause remanded.