Sidebilder
PDF
ePub

(166 Ind. 593)

Ex parte BROWN. (No. 20,771.) (Supreme Court of Indiana. May 29, 1906.) 1. COURTS-CUSTODY AND CARE OF RECORDSJURISDICTION.

The Supreme Court has jurisdiction to act on a petition of its clerk for a construction of the law as to his right to furnish uncertified carbon copies of the opinions of the court at less than the statutory rate for copies thereof, and as to his rights and duties in permitting access by a publisher to the records in his office for the purpose of making copies.

[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 366.]

2. SAME-ACCESS TO RECORDS.

A publisher has not the unrestricted and unconditional right of access to the opinions and decisions of the Supreme Court to make copies for publication, the clerk having the right and duty to control by reasonable rules the inspection and handling of the records of his office.

[Ed. Note. For cases in point; see vol. 13, Cent. Dig. Courts, & 366; vol. 42, Cent. Dig. Records, §§ 13-16.]

3. CLERKS OF COURTS- FEES-STATUTORY PRO

VISIONS.

Burns' Ann. St. 1901, § 7798 (Rev. St. 1881, § 5831), authorizing the clerk of the Supreme Court to collect a fee of 10 cents per 100 words for every copy of record or other paper, applies only to certified copies.

4. COURTS-RECORDS-PUBLICATION OF OPIN

IONS.

The state has no such property interest in the opinions of the Supreme Court as to deprive its clerk of the right to furnish copies for publication in advance of the publication of the official reporter, notwithstanding Const. art. 7, § 6, providing that the General Assembly shall provide for the speedy publication of the decisions of the Supreme Court, but no judge shall be allowed to publish them.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, §§ 354-361; vol. 42, Cent. Dig. Reports. §§ 1, 4; vol. 11, Cent. Dig. Copyrights, §§ 12, 39.]

5. CLERKS OF COURTS-FEES- UNCERTIFIED COPIES OF RECORDS.

The clerk of the Supreme Court is, in his discretion, at liberty to furnish uncertified or unauthenticated carbon copies of its decisions at a less rate than 10 cents per 100 words, fixed by Burns' Ann. St. 1901, § 7798, as the fee for copies of records or papers.

Petition by Robert A. Brown, clerk of the Supreme Court. Petition sustained.

George H. Batchelor, for petitioner. Charles W. Miller, Atty. Gen., H. M. Dowling, C. C. Hadley, and W. C. Geake, for the State.

JORDAN, C. J. The petitioner, Robert A. Brown, clerk of the Supreme Court and ex officio clerk of the Appellate Court, comes in person and by counsel, and presents a petition for our consideration, whereby he invokes our judgment as a court relative to his control over the opinions and decisions of said court after the same have been handed down and filed in his office. He also requests to be advised whether, under the existing law, he is at liberty in his discretion to continue to furnish in the future, as he has been doing in the past, uncertified copies of said opinions and decisions to the West Publishing

Company for advance publication in what is known as the "Northeastern Reporter." He alleges and shows in his petition that he is the duly-elected, qualified and acting clerk of this court, and an officer thereof, and to an extent subject to the control of the court. The petition alleges that section 6423, Burns' Ann. St. 1901, provides that "it shall be the duty of the clerk of the Supreme Court to tax and keep an accurate account, on proper feebooks, of all fees and charges of his office, as is required by this act, or any other laws of the state for any and all services performed by him, or his deputies, clerks, or assistants, and on the first Monday in January, and the first Monday in July of each year he shall make and file in the office of the Treasurer of State a statement and report, subscribed and sworn to, showing the amount of such fees and charges collected and uncollected, and the names of parties liable therefor, and from whom received, and the balance due, and the whole amount of fees and charges collected by him shall be paid into the state treasury. That said section is a part of the general fee and salary law of 1895, and that said law of 1895 provided no schedule of fees to be charged by said clerk, and made no provision requiring him to collect fees, other than what might be contained in laws in force at the time of the passage of said act." That the only law at the time of the enactment by the Legislature of the provisions embraced in said section 6423, aside from the statute relative to docket fees, was section 7798, Burns' Ann. St. 1901, which is a part of the fee and salary act of 1879 and provides that the fees of the clerk of the Supreme Court shall be as follows: (Here the petition sets out in full the schedule of fees as set forth in said section.) It is further charged that the said fee and salary act of 1879 provided no salary or compensation for the clerk of the Supreme Court other than the fees therein prescribed, which were to compensate him for official services rendered. "That nothing in said act prohibited said clerk from charging a less amount than the sums therein designated, for any services rendered, or prevented him from performing said service without any compensation whatever, if he so desired to do. That the act of 1895 above mentioned, fixing a stated salary for said clerk, contained no provision requiring or compelling the clerk to collect the fees designated in said act of 1879, other than might be contained in said act of 1879 itself. But, on the other hand, the said act of 1895 does contain provisions requiring the Secretary of State, the Auditor of State, and county officers to collect and account for the fees allowed by law.

"That relying upon his belief that under said acts of 1879 and 1895 he was not required to make any specified charge for the service, and that such charge was a subject which could be properly agreed upon and determined by private arrangement,

subject to the requirement that any amount so received should be covered into the state treasury; and the further belief that such service could not have been contemplated by the said act of 1879, he did, on or about November 22, 1898, begin furnishing to the West Publishing Company, of St. Paul, Minn., for publication in the Northeastern Reporter, copies of all the opinions rendered by the Supreme and Appellate Courts, and continued to furnish said copies until the 1st day of January, 1906, at a less rate than 10 cents per 100 words, accounting to the Treasurer of State for the amounts received therefor under sections 6406 and 6423, Burns' Ann. St. 1901. That said Northeastern Reporter was not in existence at the time of the passage of the act of 1879; that the West Publishing Company was unknown, and that at said time there was no practice in vogue of furnishing copies of opinions for commercial purposes, or to legal publications. That by law it is made one of the duties of said clerk to certify a copy of every opinion to the clerk of the lower court from which the appeal was taken.

"That the copies furnished the West Publishing Company, as aforesaid, are not original copies, but are uncertified carbon copies, made upon a typewriting machine at the time the opinion is copied for certification, without any additional labor or expense to the office, except for the paper upon which they are made, and the carbon necessary to make them. That at the time of the passage of said act of 1879, typewriting machines were not in use, and carbon copies were unknown; that all copies were at that time made in longhand, and that a charge of 10 cents per 100 words was not unreasonable therefor; but he does say that such a charge for an uncertified carbon copy is unreasonable, not only because it is out of proportion to the labor and expense required to make it, but also because it is uncertified, and the copy from which the carbon copy is made is taxed to the losing party at the rate of 10 cents per 100 words, as part of the costs in the case.

"He further shows to the court that some doubt having been raised as to his right to enter into an agreement with said publishing company to furnish said copies at a less rate than 10 cents per 100 words, he notified said company that said copies would not be furnished for a less rate after January 1, 1906. That he is informed, and believes, that said company regards said rate as unreasonable and prohibitive, and that unless the said copies can be obtained in some other manner the publication of said opinions in the Northeastern Reporter will be suspended; the bench and bar of the state, and this honorable court, deprived of the use of the same, and the administration of justice greatly hampered. That in order to procure said opinions without paying a rate which it so alleges is unreasonable, extortionate and prohibitive, the

said company is asserting that said opinions are public records, to which any person has the right of access, and desiring so to do may copy without charge; and is threatening, and will, unless prevented from so doing, place in the office of said clerk a hired copyist to make copies of the opinions for it.

"That by law said clerk is made the custodian of the records of this court, and is required to preserve them, and hand them over to his successor. That the care of such records and their condition, as well as the entries therein made, are subject to the inspection and control of this honorable court under sections 1332 and 7796, Burns' Ann. St. 1901. That this honorable court also has

a direct interest in the conduct of the business of said clerk's office, to the end that its records be made up expeditiously and accurately, and its opinions preserved and recorded as rendered. That the placing of a copy. ist in his said office by said company for the purposes aforesaid, not only would result in great danger of the mutilation and loss of said records, but would seriously inconvenience, hinder, and delay the work of the office, and the proper making up of the records of this court.

"That if said company has the right it asserts to place its copyist in said office, to copy said opinions, the work must of necessity be done under the immediate eye and observation of the clerk or his deputies, else he would not be able to see to it that said records were safely preserved for transmission to his successor; that to so supervise said copyist and see that said records were preserved without mutilation, would require a great portion of the time of the clerk and his deputies, and greatly hinder and impede the work of the office, and even then the danger of the mutilation and loss of said opinions would be so great that it would be impossible to provide entirely against it, even with the closest scrutiny and care. That if your said clerk, in the exercise of his said duties of preserving safely the records of this court, is not compelled to personally supervise the work of said copyist, his constant presence in the office of said clerk would create an intolerable condition, as well by having in his possession opinions when they would be desired by others, or by the employés of said office, as by the confusion which would naturally result, and the menace to the safety and verity of said records. That if said copyist has the right of access to said records for the purpose of making copies thereof, then it might devolve upon the clerk to furnish him with all reasonable facilities for so doing, such as procuring the records for him, and furnishing proper tables, etc., upon which to do the work; and if said copyist has the right to bring pen and ink into the said clerk's office for such work, then it might follow, and would probably be claimed that he had the right to bring in a typewriting machine for such purpose.

"That if said right exists for said company it exists for all others, so that the time of all the force is subject to be so employed, the whole office so occupied and converted into a veritable bedlam of confusion, so that the business of the office would cease, or be transacted in an ill manner until the Legislature could provide more assistants and larger quarters, or this court relieve the situation by proper order. That said menace is a present one, and said clerk should be advised in advance as to his rights and duties in the premises, and his authority to forbid the said copyist access to the records, and to provide rules and regulations governing the examination of the same.

"That said publishing company has no special interest in any particular opinion, but that its only interest is to have copies of all opinions for commercial purposes, and to publish them in the said Northeastern Reporter. He further shows to the court that the said Northeastern Reporter has a large circulation among the bench and bar of this state, by reason of the fact that the decisions of the Supreme and Appellate Courts are published therein many months before they appear in the official state reports. That, in truth and in fact, said publication has become a legal necessity not only to the bench and bar of this state generally, but also to this honorable court, and that great hardships, inconvenience, and expense would be entailed upon the bench and bar of the state as well as upon this honorable court, if the opinions of the Supreme and Appellate Courts are not published therein.

"He further says that if he has the right so to do, or if this court can so order him, he would gladly, as an accommodation to the bench and bar of this state, furnish said copies to said publishing company at cost, or at such price as could be determined upon with said company, rather than be forced to submit to the danger, the inconvenience, and the confusion resulting from the handling of said opinions by said copyist. And that this honorable court, if not prevented from so doing by any statutes. has such an interest in the preservation of its records, and in the publication of said opinions in said Northeastern Reporter, that it should so direct him to do.

"That if the said clerk has the right to enter into an agreement with said company to furnish said opinions at a less rate than 10 cents per 100 words, the said company can be prevented thereby from placing a copyist in said office, and the condition aforesaid likely to arise avoided. But that said clerk is in doubt as to his rights in the premises, especially as to his right to make such an agreement and as to his right to prevent said copyist from making copies as aforesaid; and if he has no right to enter into such an agreement, or this court has no power to order said copies transcribed for the use and benefit of said company, and if he had no right to prevent said copyist from making said copies,

then he is in doubt as to his rights in furnishing facilities for said work, and his duties in supervising it.

"Wherefore, your petitioner, presenting said circumstances to the attention of this honorable court, doth pray for such direction as this court may deem fit to give."

The Attorney General has appeared to this proceeding and filed a brief in opposition thereto. With much earnestness he denies our right or power to entertain the petition herein, or to give any opinion upon any of the questions upon which the clerk thereby seeks to invoke our judgment. It is urged that we have no jurisdiction of the subject-matter; the contention being that this court's authority over its records does not extend to the direction of the clerk to sell or furnish copies of its opinions for publication at any particular price; neither is it invested with the power to direct its clerk in regard to contracts to be made by him with third parties for supplying them with copies of the court's opinions. As we view the petition, however, this is not its theory or purpose. It does not purport to invoke the exercise on the part of this court of any such power. Or in other words, the clerk does not in any manner seek or demand that we direct or require him to involuntarily do anything or that we in any way prescribe any official duty for his performance. The petition fully discloses that the purpose or object of the clerk in presenting it is to be advised by the court in a controversy which has arisen between him and the West Publishing Company, relative to the use of the opinions and decisions of this and the Appellate Court on file or of record in his office.

The principal question apparently upon which he seeks our advice or opinion, is: Is he, as the clerk of this court, under the law, at liberty to furnish to said company uncer tified copies of the opinions and decisions in question at a rate less than 10 cents per 100 words, as prescribed by section 7798, supra; and to be further advised as to his right under the circumstances, as shown, to prevent said company from placing in his office a copyist, and thereby exercise the right which it asserts of obtaining transcripts of the opinions and decisions in controversy. Or in other words, the clerk in his petition, in effect asks that we interpret, or construe, for his guidance the provisions of the statute of 1879 and determine whether he is controlled thereby in furnishing to said company the uncertified carbon copies of our opinions and decisions as he formerly did prior to January 1, 1906. The clerk of this court is an officer thereof, and in the discharge of his duties in the making up and safe keeping of our records he may be considered as an arm thereof. He is charged by law with the duty of entering and recording the proceedings of the court, and of safely keeping all the records and papers belonging to his office and he may, by rule of court, be required to perform such official

duties. In fact, in recording and making up the proceedings of the court he may be said to act as its amanuensis, subject to its control. 7 Cyc. pp. 219, 223. The records of this court, so far at least as necessary to the administration of justice, are subject to the control of the court. On this proposition see the admirable opinion of Justice Field, in Houston v. Williams, 13 Cal. 24, 73 Am. Dec. 565. The duty is enjoined upon our clerk of attending the terms of the court in person or by deputy; to issue all processes emanating from the court, and to attest the same with its seal. He is required to certify its opinions and decisions to the lower court from which the cause was appealed. Sections 7792 and 7795, Burns' Ann. St. 1901. The records of his office which, under the law, are committed to his custody, are all subject to our inspection. Section 7796, Burns' Ann. St. 1901, While the clerk of this court is a ministerial officer only and the functions which he performs are wholly of that character, still he is a ministerial officer of the judicial department, and it would certainly appear as a logical conclusion under all the circumstances that this court is the proper tribunal to which its clerk may apply for advice in matters pertaining to his office of the character of those herein involved.

The court's opinions and decisions, when filed in the office of its clerk, become records and papers therein and their safe keeping and proper control are certainly matters with which the court is concerned. In Ex parte Griffiths, 118 Ind. 83, 20 N. E. 513, 3 L. R. A. 398, 10 Am. St. Rep. 107, the official reporter of the decisions of this court, by his petition successfully invoked its judgment in relation to the validity of an act of the Legislature which imposed upon the court instead of the reporter the duty of preparing syllabi of the decisions reported. In the proceedings at bar, as we have previously shown, the clerk invokes our judgment, or opinion, as to the proper construction or interpretation of the provisions of the statute fixing, or prescribing, the fees to be charged for copies of the records, or papers, on file in his office. There certainly can be no substantial or reasonable distinction made between the case of Ex parte Griffiths, supra, and the one at bar to show that this court had the power to entertain and consider the petition in the former but it is not invested with such power in the latter case. In respect to our right to entertain the petition herein and consider the essential matters therein presented, we have no doubt. In doing so, however, we do not depend upon any right or power conferred by the legislative department, but rely upon and exercise only the power with which we as a court are inherently invested. Elliott's App. Procedure,

45. In so holding we believe that we are well within and fully sustained by the precedents of this court in Ex parte Griffiths, supra; Ex parte Sweeney, 131 Ind. 81, 30 N. E. 884; Ex parte Sweeney, 126 Ind. 583, 27

N. E. 127. See, also, the following authorities: In re Post, 3 Edw. Ch. (N. Y.) 365; United States v. McCandless, 147 U. S. 692, 13 Sup. Ct. 465, 37 L. Ed. 334; Board, etc., v. Stout, 136 Ind. 53, 35 N. E. 683, 22 L. R. A. 398; In re Janitor, 35 Wis. 410.

The unrestricted or unconditional right to make transcripts of our opinions and decisions which, as the petition shows, the West Publishing Company is asserting and threatening to exercise, cannot be recognized or sustained. The clerk of this court not only has the right but it is his duty to control by reasonable rules, to which all persons must yield obedience, the search, inspection, and handling of the records, papers, and documents of his office. This principle is fully recognized in State ex rel. v. King, 154 Ind. 621, 57 N. E. 535. Certainly no person unofficially can be accorded the unrestricted right or privilege of going into the office of the clerk and there according to his own volition copy the opinions and decisions of this court. Welling v. Merrill, 52 Ind. 350, 355.

It does not appear that the West Publishing Company is demanding that the clerk shall furnish it with certified copies of our opinions and decisions at a rate less than the maximum fixed by the statute, but it seemingly is content to continue to purchase for a reasonable compensation the uncertified carbon copies in controversy which it utilizes for advance publication. And it is only in the event that the clerk continues to exact of it for the uncertified copies in ques tion like fees as are charged for certified transcripts of the records and papers belonging to his office that it proposes to assert the right to make copies of our opinions and decisions by its own agent for publication. The petition, however, shows that the clerk is ready and willing to furnish uncertified carbon copies to said company as he formerly did for such a reasonable price or compensation as may be mutually agreed upon between him and the company and to account for and turn over to the State's Treasurer the money so received by him.

The cardinal question which confronts him, however, is: Must he be governed in charging for such uncertified copies by the schedule prescribed by the fee and salary law of 1879? There is no attempt or effort on the part of the clerk in this proceeding to have the court order or direct him to furnish to the said West Company the copies in controversy, but, as previously said, all that he requests is that we place an interpretation, for his guidance, in the matter, upon the provisions of the statute about which he is in doubt. Referring to section 15 (the one in question) of the fee and salary act passed by the Legislature in 1879, the same being section 7798, Burns' Ann. St. 1901 (section 5831, Rev. St. 1881), the provisions of which appear to have been continued in force, we find that it provides that "the fees of

[blocks in formation]

These are the only items in the schedule which require consideration. The fees therein fixed or prescribed were originally intended for the sole benefit of the clerk and afforded him a compensation for services performed in the discharge of his official duties. By the salary act of 1895 the clerk of this court was placed upon what may be termed a flat salary and the method of compensating him alone by fees was wholly abrogated, and he was required under the law to pay into the state treasury all fees and charges of his office. Section 6423, Burns' Ann. St. 1901. By the provisions of section 4 of each of the appropriation acts passed by the respective Legislatures of 1901, 1903 and 1905, it was made the duty of the clerk of the Supreme Court, and the other state officials therein mentioned, to report quarterly all amounts of money received for certified copies of official records, opinions, or papers, etc., and pay the money so received into the state treasury. By the change in the method of compensating the clerk of this court by a fixed salary instead of fees and requiring the latter when collected to be paid into the state treasury, the state has, in effect, been substituted for the clerk in respect to the ownership and right to the fees arising out of the official services performed by him or his deputies. Therefore, he no longer has the authority or right, as he did when the fees belonged to him, to tax or charge fees for his official services at a rate less than the maximum prescribed by the statute, hence it is essential to the proper administration of the affairs of his office that he be advised as to what duty the law exacts of him, if any, in furnishing the copies in question to the West Publishing Company. It appears that the copies which the clerk, prior to January 1, 1906, furnished to said company and those which he is ready and willing to continue to supply, are nothing more than uncertified carbon copies which are prepared at the same time and as a part of the same work of making copies of the court's opinions to be certified to the lower court from which the appeal in each particular case has been taken. For the copies certified down the maximum rate is taxed and charged for the benefit of the state, to which is added the fee prescribed for the certificate and attestation by the seal of the court. These carbon copies which are furnished to the West Publishing Company are in no manner authenticated by the certificate of the clerk under the seal of the court. They may possibly with propriety be termed a by-product or matter arising out of the typing of the copies certified to the lower courts.

It is argued by the Attorney General that the words in the schedule of fees, namely "for every copy of record and other paper, etc., 10 cents per 100 words," cannot be interpreted or held to mean or refer only to certified copies duly authenticated, but mean any copy, certified or otherwise. We cannot yield our concurrence to this view of the question, for, as it seems to us, such an interpretation or construction would be unreasonable and absurd. Section 466, Burns' Ann. St. 1901 provides that copies of records, etc., kept in any public office in this state shall be proved or admitted as legal evidence in any court or office in this state when attested by the keeper of such records, with the seal of his office annexed as a part of such attestation. By this section officers having the custody or charge of public records or papers are authorized to make certified copies thereof. In the performance of such official services the time when the records or papers in question came into existence, whether during the term of the officer certifying or prior thereto, is not material. Painter v. Hall, 75 Ind. 208; Midland, etc., Ry. Co. v. State, 11 Ind. App. 433, 38 N. E. 57.

It was held by this court in Donellan v. Hardy, 57 Ind. 393, 403, that the fact that a particular judgment or decision had been rendered by the Supreme Court could only be proven by a transcript thereof, authenticated by the certificate of its clerk and attested by the seal of the court, or by the record of such certified transcript if the same had been recorded in the order book of the lower court. It is evident and certainly beyond successful controversy that the Legislature, in authorizing the clerk of this court to charge a fee of 10 cents per 100 words for every copy of record or other paper, meant and intended a certified copy, one duly authenticated as required by law. It certainly did not intend or in any sense mean an unofficial or uncertified copy, a document or paper which could have no legal effect or standing whatever as legitimate evidence or proof of any fact. Such a copy, generally speaking, would be of no particular use or value. What the Legislature meant and intended was a duly authenticated copy, as required by the provisions of the law and the decisions of court to which we have referred. Vide 24 Am. & Eng. Enc. of Law, pp. 200 and 208. The words "copy of any record or paper on file" contained in the statute, as generally construed or interpreted, mean a certified copy. This interpretation the authorities fully sustain. In Muirhead v. United States, 13 Ct. Cl. 251, 256, the court, in construing a federal statute in regard to supervisors of election, said: "The words 'copy of any paper on file' mean a copy certified and issued by the supervisor as a copy." See, also, Sweet's Law Dictionary, p. 208.

As a general rule a statute is to be construed in reference to the condition of affairs.

« ForrigeFortsett »