Belt v. Prince George's County Abstract Co. , 10 L.R.A. 212 ( 1890 )

Robinson, J.,

delivered the opinion of the Court.

The appellee is an Abstract Title Company, chartered hy the Legislature of this State, and the question is whether its officers and employés have the legal right themselves to examine and make abstracts or copies of the public records in the office of the Clerk of the Circuit Court for Prince George’s County, without paying the fees which the law provides shall be paid to the Clerk for such services.

The broad contention is, that the public records are public property, and kept for the public benefit, and although their custody and safe-keeping are committed by law to the clerk, yet every one has the .right to examine them, and to make such copies as he may see fit, free of charge.

It is not pretended that this right is a common law right, and, if it exists, then it must be founded upon statutory law. What then are the provisions of the Code, upon the construction of which this question depends? Section lof Article IT, provides that “Every clerk shall have the custody of the hooks and papers pertaining to his office, and shall carefully keep and preserve the same, * * * and he shall give a copy of any paper or record in his office to any person applying for the same, upon beiüg paid the usual fees for transcribing such paper or record.”

Then section 12 of Article 36, prescribes the fees which shall be paid to the clerk for such copies, and for making searches in regard to “any matter above a year's standing * * if found.”

Section 44 of Article-17, further provides, as one of the conditions of his official bond, that he shall duly and carefully loóle after and preserve, and shall deliver to his successor, all papers' and records in good order and repair. There is no provision in the Code such as will be found in the statutes of the several States referred to at bar, “that all persons shall have free access to the public records of a county, and shall have the right to examine and make copies or abstracts from the same.” On the contrary, while our Code provides that every one shall be entitled to copies of the records, and to the right of such information as they may afford, yet it provides that such copies and searches shall be made by the clerk himself, and on the payment of such fees as the law prescribes. And the reason of this is obvious. Upon the safe-keeping and preservation of the matters of record' in the clerk's office, the most important and valuable public and private rights depend. Here all deeds, mortgages, decrees, judgments, and liens are recorded. Here, too, are to be found all papers, proceedings, and docket entries in every suit at law, and in equity. And if every one, whether known or unknown to the clerk, whether trustworthy or untrustworthy, has the right to demand of the clerk that these records and papers shall be delivered to him, and that he himself shall examine and make abstracts from the samej then the law affords every facility to designing and interested persons to mutilate and to impair the integrity of such records. Every one knows that the mere dash of the pen, the addition or alteration of a word, may change entirely the legal effect and operation of the papers, matters of record; and if the appellee's contention he sound, then the law in requiring that the clerk shall safely keep and preserve such records, has imposed upon him a duty which it is impossible for him to perform. We have no hesitation in saying that nothing less than the plain and explicit terms of the statute, could justify a construction so fraught with danger to the highest public interest. There is nothing certainly in our Code which sustains such a construction. On the contrary, as we construe the several sections hearing upon the question, it would, in our opinion, he a breach of duty, bn the part of the clerk, to permit any one to examine and make searches of the records in his office, unless it he under the supervision of himself, or one of his deputies. And such being the case, we cannot suppose for a moment, that the Legislature meant to confer upon the appellee a privilege in this respect which is denied to the public. The appellee is a company chartered solely for its own private purposes, and the examination and copies of the records, which it proposes to make, are to he used by it in its business of guaranteeing titles to property, upon compensation to he paid for such services. And though its business may he a legitimate one, though it may he entitled under its charter to copies of the public records, and to the information they furnish, yet such copies and information must be obtained through the clerk, and upon the payment of the fees prescribed by law. The Constitution of this State provides that the salary or compensation of the clerks of the Circuit Courts, their £ £ assistants, and office expenses, shall always he paid out of the fees or receipts of the offices respectively.” And in requiring the several clerks to furnish to the appellee transcripts of the records, and to make an examination of the same, we cannot suppose the Legislature meant that these services should he rendered without the payment of such fees as the law prescribes for such services. We find nothing in the Code, or in the charter of the appellee, to support such a construction.

And here we might rest our decision, hut in the ahle argument at bar, it was pressed that such a construction would be in direct conflict with the decisions of other States upon statutes, which did not differ substantially with the provisions of our Code. These decisions, we have carefully examined, and with the exception of the one in New Jersey, they do not, it seems to us, support this contention. Now, in Burton vs. Tuite, 78 Mich., 363, the statute provided that the officers having the custody of records should furnish proper and reasonable facilities for their inspection, for the purpose of making transcripts therefrom, “to all persons having occasion to make an examination of them for any lawful purpose,” provided, however, that such persons should not use pen and ink in making such transcripts or notes. And in construing this statute, the Court held, overruling a former decision, Webber vs. Townley, 43 Michigan, 534, delivered by Marston, O. J., and concurred in by Cooley, Campbell and Graves, J. that a person engaged in the abstract title business was a person within the meaning of the statute, although the transcripts and examination were made by him, to he used in his business for his own profit.

And so the Court decided in Hanson vs. Eichstaedt, 69 Wisconsin, 538, under a statute of that State, which provided that the clerk of the Circuit Court should “ open to the examination of any person all books,” etc., “required to be kept in his office,” and should “permit any person so examining to take notes and cogoies of such boohs, records, or papers.”

In Lum vs. McCarty, 39 N. J. Law, 287, the statute provided that all deeds, etc., should be recorded in books to be furnished by the clerks, “to lohich boohs every person shall have access at proper seasons, and may search the same, paying the fees allowed by law.’ And the Court overruling a former decision, Fleming vs. Clerk of Hudson County, 30 N. J. Law, 280, held that an attorney had the right, himself, to examine the records free of charge, and that the clerk was not entitled to compensation, unless the examination was made by him, or his deputy. The Court make a distinction between searches and transcripts of records, and, for the latter, they hold, the clerk was entitled to compensation. It is not ,for us to review the decisions of that Court upon the construction of the statutes of that State, and it is sufficient to say we cannot accept this case as an authority in the construction of our statute.

In Buck & Spencer vs. Collins, 51 Georgia, 391, however, under a statute which provided “that all books kept by any public officer shall be subject to the inspection of all citizens;” and which further provided a table of fees for inspection and abstracts, the Court held that a person was not entitled to inspect and make abstracts of title to be used by him in his business for his own profit. “It was,” say the Court, “an unnecessary flaunting of private matters before the public gaze.” And, referring to the statute which required the clerk to “keep all books, papers, and dockets belonging to his office with care and security,” they further say, “he cannot do this, if any person may handle or inspect them, otherwise than under his own eye. Eo person has a right to examine or inspect the records of his office, except in his, the clerk’s, presence and under his observation.” Again in Cormack vs. Wolcott, 37 Kansas, 391, where the question was whether a person in the abstract and title business had the right to examine and make abstracts of the public records, under a statute which provided that all books and papers required to be kept by the county officers shall be open to the inspection add examination of any person, the Court held that “the right of inspection should be exercised only by persons who have an interest in the record, or by some one for them, for the purpose of information, and was not intended to give a right to parties to engage in private speculation in connection with the information there received. ”

(Decided 12th December, 1890.)

In Brewer vs. Watson, 71 Ala., 299, and Bean vs. The People, ex rel. Uppercu, et al., 7 Col., 200, the same construction' was given to statutes of like import. So in all these cases, except the New Jersey case, the question was whether a person engaged in the abstract title business, had the right to inspect and make abstracts of titles, to be used by him in his own business, and for his own profit. And in regard to this question, the decisions are conflicting. But that is not the question in this case. The appellee has the right, under its charter, to require the clerk to furnish to it transcripts of title and other matters of record, and the right to make searches; but the construction is that the appellee has the right, through its officers and employes themselves, to make searches and abstracts of titles, and to do this, without paying the fees prescribed by law. There is nothing in the Code or in the charter of the appellee, to support this contention.

So, whatever may be the decision of other States upon the construction of their own statutes, it is sufficient to say we rest our decision upon our own construction of our statutes, a construction which not only the plain terms of the statute, but the safety and integrity of the public records, demand.

As to the answer of the appellant, it is, it seems to us, fully responsive to every allegation in the bill, and the exceptions thereto ought, therefore, to have been overruled.

Order reversed, injunction dissolved, and hill dismissed..