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(166 Ind. 593)

Conipany for advance publication in what is Dx parte BROWN. (No. 20,771.)

known as the “Northeastern Reporter." He (Supreme Court of Indiana. May 29, 1906.) alleges and shows in his petition that he is 1. COURTS—CUSTODY AND CARE OF RECORDS

the duly-elected, qualified and acting clerk JURISDICTION.

of this court, and an officer thereof, and to The Supreme Court has jurisdiction to act

an extent subject to the control of the court. on a petition of its clerk for a construction of

The petition alleges that section 6423, Burns' the law as to his right to furnish uncertified carbon copies of the opinions of the court at Ann. St. 1901, provides that “it shall be the less than the statutory rate for copies thereof, duty of the clerk of the Supreme Court to and as to his rights and duties in permitting tax and keep an accurate account, on proper access by a publisher to the records in his office for the purpose of making copies.

feebooks, of all fees and charges of his [Ed. Note.—For cases in point, see vol. 13, office, as is required by this act, or any other Cent. Dig. Courts, $ 366.]

laws of the state for any and all services 2. SAME-ACCESS TO RECORDS.

performed by him, or his deputies, clerks, or A publisher has not the unrestricted and assistants, and on the first Monday in Janunconditional right of access to the opinions

uary, and the first Monday in July of each and decisions of the Supreme Court to make copies for publication, the clerk having the

year he shall make and file in the office of right and duty to control by reasonable rules

the Treasurer of State a statement and rethe inspection and handling of the records of port, subscribed and sworn to, showing the his office.

amount of such fees and charges collected [Ed. Note.-For cases in point; see vol. 13, and uncollected, and the names of parties Cent. Dig. Courts, § 366; vol. 42, Cent. Dig. Records, 88 13-16.)

liable therefor, and from whom received, and

the balance due, and the whole amount of 3. CLERKS OF COURTS- FEES-STATUTORY PROVISIONS.

fees and charges collected by him shall be Burns' Ann. St. 1901, § 7798 (Rev. St. paid into the state treasury. That said 1881, § 5831), authorizing the clerk of the Su

section is a part of the general fee and salary preme Court to collect a fee of 10 cents per

law of 1895, and that said law of 1895 pro100 words for every copy of record or other paper, applies only to certified copies.

vided no schedule of fees to be charged by 4. COURTS-RECORDS-PUBLICATION OF OPIN

said clerk, and made no provision requiring IONS.

him to collect fees, other than what might be The state has no such property interest in

contained in laws in force at the time of the the opinions of the Supreme Court as to deprive its clerk of the right to furnish copies

passage of said act." That the only law at for publication in advance of the publication

the time of the enactment by the Legislature of the official reporter, notwithstanding Const. of the provisions embraced in said section art. 7, § 6, providing that the General Assembly 6423, aside from the statute relative to dockshall provide for the speedy publication of the decisions of the Supreme Court, but no judge

et fees, was section 7798, Burns' Ann. St. shall be allowed to publish them.

1901, which is a part of the fee and salary act [Ed. Note.--For cases in point, see vol. 13, of 1879 and provides that the fees of the Cent. Dig. Courts, $8 354–361; vol. 42, Cent. clerk of the Supreme Court shall be as folDig. Reports. 88 1, 4; vol. 11, Cent. Dig. Copyrights, $8 12, 39.j

lows: (Here the petition sets out in full the

schedule of fees as set forth in said section.) 5. CLERKS OF COURTS - FEES - UNCERTIFIED COPIES OF RECORDS.

It is further charged that the said fee and The clerk of the Supreme Court is, in his salary act of 1879 provided no salary or comdiscretion, at liberty to furnish uncertified or pensation for the clerk of the Supreme Court unauthenticated carbon copies of its decisions

other than the fees therein

therein prescribed, at a less rate than 10 cents per 100 words, fixed by Burns' Ann. St. 1901, § 7798, as the fee for

which were to compensate him for official copies of records or papers.

services rendered. "That nothing in said act

prohibited said clerk from charging a less Petition by Robert A. Brown, clerk of the

amount than the sums therein designated, Supreme Court. Petition sustained.

for any services rendered, or prevented him George H. Batchelor, for petitioner. from performing said service without any Charles W. Miller, Atty. Gen., H. M. Dowling, compensation whatever, if he so desired to C. O. Hadley, and W. C. Geake, for the State. do. That the act of 1895 above mentioned,

fixing a stated salary for said clerk, containJORDAN, C. J. The petitioner, Robert A. ed no provision requiring or compelling the Brown, clerk of the Supreme Court and ex clerk to collect the fees designated in said officio clerk of the Appellate Court, comes in act of 1879, other than might be contained person and by counsel, and presents a peti- in said act of 1879 itself. But, on the other tion for our consideration, whereby he invokes hand, the said act of 1895 does contain provi. our judgment as a court relative to his con- sions requiring the Secretary of State, the trol over the opinions and decisions of said Auditor of State, and county officers to colcourt after the same have been handed down lect and account for the fees allowed by law. and filed in his office. He also requests to “That relying upon his belief that under be advised whether, under the existing law, said acts of 1879 and 1895 he was not rehe is at liberty in his discretion to continuequired to

quired to make any specified charge for to furnish in the future, as he has been doing the service, and that such charge was a in the past, uncertified copies of said opin- subject which could be properly agreed upions and decisions to the West Publishing on and determined by private arrangement, subject to the requirement that any amount said company is asserting that said opinions are so received should be covered into the state | public records, to which any person has the treasury; and the further belief that such right of access, and desiring so to do may service could not have been contemplated by copy without charge; and is threatening, the said act of 1879, he did, on or about No- and will, unless prevented from so doing, vember 22, 1898, begin furnishing to the West place in the office of said clerk a hired copyPublishing Company, of St. Paul, Minn., for ist to make copies of the opinions for it. publication in the Northeastern Reporter, “That by law said clerk is made the cuscopies of all the opinions rendered by the todian of the records of this court, and is reSupreme and Appellate Courts, and con- quired to preserve them, and hand them tinued to furnish said copies until the 1st over to his successor. That the care of such day of January, 1906, at a less rate than 10 records and their condition, as well as the cents per 100 words, accounting to the Treas- entries therein made, are subject to the inurer of State for the amounts received there- spection and control of this honorable court for under sections 6406 and 6423, Burns' Ann. under sections 1332 and 7796, Burns' Ann. St. St. 1901. That said Northeastern Reporter 1901. That this honorable court also has was not in existence at the time of the a direct interest in the conduct of the busipassage of the act of 1879; that the West ness of said clerk's office, to the end that its Publishing Company was unknown, and that records be made up expeditiously and accuat said time there was no practice in vogue rately, and its opinions preserved and recordof furnishing copies of opinions for commer- ed as rendered. That the placing of a copy. cial purposes, or to legal publications. That ist in his said office by said company for by law it is made one of the duties of said

the purposes aforesaid, not only would result clerk to certify a copy of every opinion to the in great danger of the mutilation and loss of clerk of the lower court from which the said records, but would seriously inconvenappeal was taken.

ience, hinder, and delay the work of the “That the copies furnished the West Pub- office, and the proper making up of the lishing Company, as aforesaid, are not origi- | records of this court. nal copies, but are uncertified carbon copies, “That if said company has the right it made upon a typewriting machine at the asserts to place its copyist in said office, to time the opinion is copied for certification, copy said opinions, the work must of neceswithout any additional labor or expense to sity be done under the immediate eye and the office, except for the paper upon which observation of the clerk or his deputies, else they are made, and the carbon necessary to he would not be able to see to it that said make them. That at the time of the passage records were safely preserved for transmisof said act of 1879, typewriting machines sion to his successor; that to so supervise were not in use, and carbon copies were un- said copyist and see that said records were known; that all copies were at that time preserved without mutilation, would require made in longhand, and that a charge of 10 a great portion of the time of the clerk and cents per 100 words was not unreasonable his deputies, and greatly hinder and impede therefor; but he does say that such a charge the work of the office, and even then the for an uncertified carbon copy is unreason- danger of the mutilation and loss of said able, not only because it is out of proportion opinions would be so great that it would be to the labor and expense required to make impossible to provide entirely against it, even it, but also because it is uncertified, and the with the closest scrutiny and care. copy from which the carbon copy is made is That if your said clerk, in the exercise of taxed to the losing party at the rate of 10 his said duties of preserving safely the reccents per 100 words, as part of the costs in ords of this court, is not compelled to personthe case.

ally supervise the work of said copyist, his "He further shows to the court that some constant presence in the office of said clerk doubt having been raised as to his right to would create an intolerable condition, as well enter into an agreement with said publishing by having in his possession opinions when company to furnish said copies at a less rate they would be desired by others, or by the than 10 cents per 100 words, he notified said employés of said office, as by the confusion company that said copies would not be furn- which would naturally result, and the menished for a less rate after January 1, 1906. ace to the safety and verity of said records. That he is informed, and believes, that said That if said copyist has the right of access company regards said rate as unreasonable to said records for the purpose of making and prohibitive, and that unless the said copies thereof, then it might devolve upon copies can be obtained in some other manner the clerk to furnish him with all reasonable the publication of said opinions in the North- facilities for so doing, such as procuring the eastern Reporter will be suspended; the records for him, and furnishing proper tables, bench and bar of the state, and this honor- etc., upon which to do the work; and if able court, deprived of the use of the same, said copyist has the right to bring pen and and the administration of justice greatly ink into the said clerk's office for such work, bampered. That in order to procure said opin- then it might follow, and would probably be ions without paying a rate which it so alleges is claimed that he had the right to bring in a unreasonable, extortionate and prohibitive, the typewriting machine for such purpose.

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"That if said right exists for said company then he is in doubt as to his rights in furnishit exists for all others, so that the time of all ing facilities for said work, and his duties in the force is subject to be so employed, the supervising it. whole office so occupied and converted into “Wherefore, your petitioner, presenting a veritable bedlam of confusion, so that the said circumstances to the attention of this business of the office would cease, or be trans- honorable court, doth pray for such direction acted in an ill manner until the Legislature as this court may deem fit to give." could provide more assistants and larger The Attorney General has appeared to this quarters, or this court relieve the situation by proceeding and filed a brief in opposition proper order. That said menace is a pres- thereto. With much earnestness he denies ent one, and said clerk should be advised our right or power to entertain the petition in advance as to his rights and duties in the herein, or to give any opinion upon any of the premises, and his authority to forbid the said questions upon which the clerk thereby seeks copyist access to the records, and to provide to invoke our judgment. It is urged that we rules and regulations governing the examina- have no jurisdiction of the subject-matter; tion of the same.

the contention being that this court's author“That said publishing company has no spec- ity over its records does not extend to the ial interest in any particular opinion, but that direction of the clerk to sell or furnish copies its only interest is to have copies of all opin- of its opinions for publication at any particions for commercial purposes, and to publish ular price; neither is it invested with the them in the said Northeastern Reporter. He power to direct its clerk in regard to contracts further shows to the court that the said to be made by him with third parties for supNortheastern Reporter has a large circula- plying them with copies of the court's opintion among the bench and bar of this state, by ions. As we view the petition, however, this reason of the fact that the decisions of the is not its theory or purpose. It does not purSupreme and Appellate Courts are published port to invoke the exercise on the part of therein many months before they appear in this court of any such power. Or in other the official state reports. That, in truth and words, the clerk does not in any manner seek in fact, said publication has become a legal or demand that we direct or require him to necessity not only to the bench and bar of

involuntarily do anything or that we in any this state generally, but also to this honorable way prescribe any official duty for his percourt, and that great hardships, inconven- formance. The petition fully discloses that ience, and expense would be entailed upon the purpose or object of the clerk in presentthe bench and bar of the state as well as up- ing it is to be advised by the court in a conon this honorable court, if the opinions of the troversy which has arisen between him and Supreme and Appellate Courts are not pub- the West Publishing Company, relative to the lished therein.

use of the opinions and decisions of this and "He further says that if he has the right

the Appellate Court on file or of record in so to do, or if this court can so order him, he his office. would gladly, as an accommodation to the The principal question apparently upon bench and bar of this state, furnish said cop- which he seeks our advice or opinion, is: Is ies to said publishing company at cost, or at he, as the clerk of this court, under the law,

at liberty to furnish to said company uncersaid company, rather than be forced to sub- tified copies of the opinions and decisions in mit to the danger, the inconvenience, and the question at a rate less than 10 cents per 100 confusion resulting from the handling of said words, as prescribed by section 7798, supra; opinions by said copyist. And that this and to be further advised as to his right unhonorable court, if not prevented from so do- der the circumstances, as shown, to prevent ing by any statutes, has such an interest in

said company from placing in his office a the preservation of its records, and in the pub- copyist, and thereby exercise the right which lication of said opinions in said Northeastern it asserts of obtaining transcripts of the opinReporter, that it should so direct him to do. ions and decisions in controversy. Or in other

“That if the said clerk has the right to en- words, the clerk in his petition, in effect asks ter into an agreement with said company to that we interpret, or construe, for his guidfurnish said opinions at a less rate than 10 ance the provisions of the statute of 1870 and cents per 100 words, the said company can be determine whether he is controlled thereby in prevented thereby from placing a copyist in furnishing to said company the uncertified said office, and the condition aforesaid likely carbon copies of our opinions and decisions to arise avoided. But that said clerk is in as he formerly did prior to January 1, 1906. doubt as to his rights in the premises, es- The clerk of this court is an officer thereof, pecially as to his right to make such an agree- and in the discharge of his duties in the makment and as to his right to prevent said copy- ing up and safe keeping of our records he may ist from making copies as aforesaid; and be considered as an arm thereof. He is he has no right to enter into such an agree- charged by law with the duty of entering and ment, or this court has no power to order said recording the proceedings of the court, and copies transcribed for the use and benefit of of safely keeping all the records and papers said company, and if he had no right to pre- belonging to his office and he may, by rule vent said copyist from making said copies, of court, be required to perform such official duties. In fact, in recording and making up N. E. 127. See, also, the following authorthe proceedings of the court he may be said ities: In re Post, 3 Edw. Ch. (N. Y.) 365; to act as its amanuensis, subject to its con- United States v. McCandless, 147 U. S. 692, trol. 7 Cyc. pp. 219, 223. The records of this 13 Sup. Ct. 465, 37 L Ed. 334; Board, etc., court, so far at least as necessary to the ad- V. Stout, 136 Ind. 53, 35 N. E. 683, 22 L. R. ministration of justice, are subject to the con- A. 398; In re Janitor, 35 Wis. 410. trol of the court. On this proposition see the The unrestricted or unconditional right admirable opinion of Justice Field, in Hous- to make transcripts of our opinions and deton v. Williams, 13 Cal. 24, 73 Am. Dec. 565. cisions which, as the petition shows, the The duty is enjoined upon our clerk of at- West Publishing Company is asserting and tending the terms of the court in person or threatening to exercise, cannot be recognized by deputy; to issue all processes emanating or sustained. The clerk of this court not from the court, and to attest the same with only has the right but it is his duty to its seal. He is required to certify its opinions control by reasonable rules, to which all perand decisions to the lower court from which sons must yield obedience, the search, inthe cause was appealed. Sections 7792 and spection, and handling of the records, papers, 7795, Burns' Ann, St. 1901. The records of and documents of his ofice. This principle his office which, under the law, are committed is fully recognized in State ex rel. v. King, to his custody, are all subject to our inspec- 154 Ind. 621, 57 N. E. 535. Certainly no tion. Section 7796, Burns' Ann. St. 1901, person unofficially can be accorded the unWhile the clerk of this court is a ministerial restricted right or privilege of going into officer only and the functions which he per- the office of the clerk and there according forms are wholly of that character, still he to his own volition copy the opinions and is a ministerial officer of the judicial depart- decisions of this court. Welling v. Merrill, ment, and it would certainly appear as a 52 Ind. 350, 355. logical conclusion under all the circumstances It does not appear that the West Publishthat this court is the proper tribunal to which ing Company is demanding that the clerk its clerk may apply for advice in matters shall furnish it with certified copies of our pertaining to his office of the character of opinions and decisions at a rate less than those herein involved.

the maximum fixed by the statute, but it The court's opinions and decisions, when seemingly is content to continue to purchase filed in the office of its clerk, become records for a reasonable compensation the uncertiand papers therein and their safe keeping fied carbon copies in controversy which it and proper control are certainly matters with utilizes for advance publication. And it is which the court is concerned. In Ex parte only in the event that the clerk continues to Griffiths, 118 Ind. 83, 20 N. E. 513, 3 L. R. A. exact of it for the uncertified copies in ques 398, 10 Am. St. Rep. 107, the official reporter

tion like fees as are charged for certified of the decisions of this court, by his petition transcripts of the records and papers be successfully invoked its judgment in relation longing to his office that it proposes to to the validity of an act of the Legislature assert the right to make copies of our opinwhich imposed upon the court instead of the ions and decisions by its own agent for reporter the duty of preparing syllabi of the publication. The petition, however, shows decisions reported. In the proceedings at that the clerk is ready and willing to furnish bar, as we have previously shown, the clerk uncertified carbon copies to said company as invokes our judgment, or opinion, as to the he formerly did for such a reasonable price proper construction or interpretation of the or compensation as may be mutually agreed provisions of the statute fixing, or prescrib- upon between him and the company and to ing, the fees to be charged for copies of the account for and turn over to the State's records, or papers, on file in his office. There Treasurer the money so received by him. certainly can be no substantial or reasonable The cardinal question which confronts him, distinction made between the case of Ex parte however, is: Must he be governed in charGriffiths, supra, and the one at bar to show ging for such uncertified copies by the schedthat this court had the power to entertain and ule prescribed by the fee and salary law consider the petition in the former but it is of 1879? There is no attempt or effort on not invested with such power in the latter the part of the clerk in this proceeding to case. In respect to our right to entertain the have the court order or direct him to furnish petition herein and consider the essential to the said West Company the copies in matters therein presented, we have no doubt, controversy, but, as previously said, all that In doing so, however, we do not depend upon he requests is that we place an interpretaany right or power conferred by the legisla- tion, for his guidance, in the matter, upon tive department, but rely upon and exercise the provisions of the statute about which only the power with which we as a court are he is in doubt. Referring to section 15 (the Inherently invested. Elliott's App. Procedure, one in question) of the fee and salary act § 45. In so holding we believe that we are passed by the Legislature in 1879, the same well within and fully sustained by the prece

being section 7798, Burns' Ann. St. 1901 (secdents of this court in Ex parte Griffiths, tion 5831, Rev. St. 1881), the provisions of supra; Ex parte Sweeney, 131 Ind. 81, 30 N. which appear to have been continued in force. E. 884; Ex parte Sweeney, 126 Ind. 583, 27 we find that it provides that “the fees of

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the clerk of the Supreme Court shall be as It is argued by the Attorney General that follows:

For every copy of record the words in the schedule of fees, namely or other paper per one hundred words (four "for every copy of record and other paper, figures counting as one word), or if the etc., 10 cents per 100 words,” cannot be inwhole number of words in such copy be less terpreted or held to mean or refer only to than one hundred, ten cents.

For certified copies duly authenticated, but mean certificate and seal forty cents."

any copy, certified or otherwise. We canThese are the only items in the schedule not yield our concurrence to this view of the which require consideration. The fees there

,

question, for, as it seems to us, such an inin fixed or prescribed were originally in- terpretation or construction would be untended for the sole benefit of the clerk and reasonable and absurd. Section 466, Burns' afforded him a compensation for services Ann. St. 1901 provides that copies of records, performed in the discharge of his official etc., kept in any public office in this state duties. By the salary act of 1895 the clerk shall be proved or admitted as legal evidence of this court was placed upon what may be in any court or office in this state when termed a flat salary and the inethod of attested by the keeper of such records, with compensating him alone by fees was wholly the seal of his office annexed as a part of abrogated, and he was required under the such attestation. By this section officers law to pay into the state treasury all fees having the custody or charge of public recand charges of his office. Section 6423,

ords or papers are authorized to make certiBurns' Ann. St. 1901. By the provisions of fied copies thereof. In the perforinance of section 4 of each of the appropriation acts such official services the time when the recpassed by the respective Legislatures of 1901, ords or papers in question came into exist1903 and 1905, it was made the duty of the ence, whether during the term of the officer clerk of the Supreme Court, and the other certifying or prior thereto, is not material. state officials therein mentioned, to report Painter v. Hall, 75 Ind. 208; Midland, etc., quarterly all amounts of money received for Ry. Co. v. State, 11 Ind. App. 433, 38 certified copies of official records, opinions, or N. E. 57. papers, etc., and pay the money so received It was held by this court in Donellan v. into the state treasury. By the change in Hardy. 57 Ind. 393, 403, that the fact that a the method of compensating the clerk of this particular judgment or decision had been court by a fixed salary instead of fees and rendered by the Supreme Court could only requiring the latter when collected to be paid be proven by a transcript thereof, authentiinto the state treasury, the state has, in cated by the certificate of its clerk and ateffect, been substituted for the clerk in re- tested by the seal of the court, or by the spect to the ownership and right to the fees record of such certified transcript if the same arising out of the official services performed had been recorded in the order book of the by him or his deputies. Therefore, he no lower court. It is evident and certainly belonger has the authority or right, as he did yond successful controversy that the Legiswhen the fees belonged to him, to tax or lature, in authorizing the clerk of this court charge fees for his official services at a rate to charge a fee of 10 cents per 100 words less than the maximum prescribed by the for every copy of record or other paper, statute, hence it is essential to the proper meant and intended a certified copy, one administration of the affairs of his office duly authenticated as required by law. It that he be advised as to what duty the law certainly did not intend or in any sense exacts of him, if any, in furnishing the mean an unofficial or uncertified copy, a copies in question to the West Publishing document or paper which could have no legal Company. It appears that the copies which effect or standing whatever as legitimate the clerk, prior to January 1, 1906, furnished evidence or proof of any fact. Such a copy, to said company and those which he is ready generally speaking, would be of no particular and willing to continue to supply, are noth- use or value. What the Legislature meant ing more than uncertified carbon copies and intended was a duly authenticated copy, which are prepared at the same time and as required by the provisions of the law as a part of the same work of making copies and the decisions of court to which we of the court's opinions to be certified to the have referred. Vide 24 Am. & Eng. Enc. lower court from which the appeal in each of Law, pp. 200 and 208. The words "copy particular case has been taken. For the of any record or paper on file contained in copies certified down the maximum rate is the statute, as generally construed or intertaxed and charged for the benefit of the preted, mean a certified copy. This interstate, to which is added the fee prescribed pretation the authorities fully sustain. In for the certificate and attestation by the seal Muirhead v. United States, 13 Ct. Cl. 251, of the court. These carbon copies which are 256, the court, in construing a federal statfurnished to the West Publishing Company ute in regard to supervisors of election, are in no manner authenticated by the certifi- said: "The words 'copy of any paper on cate of the clerk under the seal of the court. file' mean a copy certified and issued by the They may possibly with propriety be termed supervisor as a copy." See, also, Sweet's a by-product or matter arising out of the Law Dictionary, p. 208. typing of the copies certified to the lower As a general rule a statute is to be concourts.

strued in reference to the condition of affairs,

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