In 1748, an Act of Assembly was pass'd in the province of No. Carolina, for regulating the several Officers' Fees within that province
The 2d Sect. runs in these words.—
“Be it enacted &c. That it shall be lawful for the several Officers within this province to take & receive in proclamn money or Bills of Credit such Fees only as is appointed by this Act for such service, to wit”
Then follows the enumeration of the particular Fees, of which the Fees of the public Registers are set down thus
£ s. d. “For registering every Birth, Burial or Marriage 0 0 7 For registering a Conveyance, or any other writing, or giving a Copy thereof 0 2 8 For every Certificate of Birth, Burial, or Marriage 0 0 7
The following Sect. relates to particulars Foreign to this Case
The 7th runs thus—
“That if any Officer shall demand, extort, exact or receive under Color of his Office any other or larger Fees than what is particularly mentioned in this Act, or shall refuse to do the particular Service in his Office for the Fees in this Act expressed, such Officer shall for every such offence or default, forfeit the Sum of five pounds,”
(which penalty by the 9th Sect, is declared recoverable in the same manner as other Debts, one half to the informer, the other to the Parish.)
Under the words, other writing, it had been long Customary among the Registers to charge 2 8 for each writing of receit or Certificate Indorsed on any Deed.
On an Indictmt in Hillsborough Supr Court of Justice for sd province in Septr last, Edmund Fanning, Regr of Orange Countyo. 13.
On the Tryal it was given in evidence, & declared from the Bench that the taking did not by any means appear to be a tortious taking, as the said Register had previous to his entering on the said Office, requested of the Justices of the County Court (the Supreme Jurisdictn of the County) to consider on the Fee Bill, who after so doing in open Court, instructed the said Register that he was legally intitled to 6s. and odd pence at least for every Deed whatever, with probate, Order for Registering & Registers Certificate of the due Registering, & in case of other Instrumts more, as by Bill drawn up by the Court & delivered to the sd Register. The Opinion of the late Atty Gen1 of No. Carolina was likewise taken on this matter, who declared that the Register was intitled to demand fees to the amount of 8 7 on any Deed.
On application sev1 other Registers furnished him with Bills under their hands, for Fees taken for the same Service for considerably more than 6s.
The sd Register however to be within the Law as he conceived demanded & took upon all Deeds 6s. only.
The questions upon which Mr Atty Genls Opinion is desired are
1st. What Fees may within the meaning & intentment of the expression in the Act pass'd in 1748, for regulating of Officers Fees be legally taken by the Register on the Deed No. 13 & 14 severally?
2dly. Whether an Indictment for Extortion will lie at Common Law for taking more or other Fees than allow'd by Act of Assembly, in the execution of an Office created by Act of Assembly, and if so, whether a heavier Sentence may be passed by the Court than the Penalty in the said Act prescribed for the Offence charged in such Indictmt?
3dly Whether a Register may be prosecuted by way of Indictmt for taking other or larger Fees than what are particularly mentioned in the aforesaid Act for regulating of Officers Fees? The 7th Sect of sd Act which relates to Regrs being not prohibitory, but only if he does, that then he shall be liable to a Forfeiture of five pounds, which in the 9th Sect of the same Act is sd to be recoverable as other Debts.
4thly. Whether a Regr may be Indicted & punished as an Extortioner for taking more by Colour of his Office than he is legally
1. I shd conceive that the meaning & purport of an Act of Assembly wd be better understood in the Province where it was made & adapted to their own modes of Proceeding, than in another country. However I think it was the probable meaning of the Law that the Registry of a Deed, with the Receipt for the consideration, & the oath of the Executor wou'd entitle the officer but to one Fee, the whole amounting but to one Deed. But I think the Registry of the Certificate of the Examination of a Feme Coverte is a distinct Instrument, tho' Indorsed upon the same parchment, & entitles the officer to a distinct Fee, as is also the Certificate of the persons examining, being Justices of the Peace.
2. The Rule is, that where a statute makes a Common Law offence penal, and prescribes a particular method of recovering the penalty, The party has his election to pursue the statutable method or proceed at Common Law by Inditement, In all cases where the offence is of a public nature: But if the statute constitutes a new offence, & directs a particular mode of Proceeding, that only can be followed.
3. I think a Register may be Indicted for taking such money, for the act declares what sums shall be taken, and taking any others criminally is extortion (for it is extortion to take by color of office money not due by Law) and such extortion is Indictable; the subsequent clause seems to be Independent of, & unconnected with the former, & to give an additional pecuniary Sanction.
4. There is no ground to say a man acts criminally who really acts by mistake. Whether it is really a mistake or not, must be subject to the opinion of the Judge or Jury who tries the charge. The usage of office wd not make the act legal but it might excuse the officer, especially when it was confirmed by the declaration of the Court at the Desire of the officer newly come into his office.
It would be better for the assembly to remove the doubts by passing an explanatory act.
Case for the opinion of Mr Atto Genl. Dispatch is prayed as the case is intended to be sent abroad as soon as received.