37 Kan. 391 | Kan. | 1887
Opinion by
The defendant’s motion to quash must be treated as a demurrer to the petition, and the only question is, Was the plaintiff entitled to an examination of the records and papers in the office of the register of deeds of Russell county, for the purpose of making a set of abstract
“Every county officer shall keep his office at the seat of justice of his county, and in the office provided by the county, if any such has been provided; and if there be none established, then at such place as shall be fixed by special provisions of law; or if there be no such provisions, then at such place as the board of county commissioners shall direct; and they shall each keep the same open during the usual business hours of each day (Sundays excepted); and all books and papers required to be in their offices shall be open for the examination of any person.” (Comp. Laws of 1885, ch. 25, § 211, p. 299.)
The statute also defines the duty of the register of deeds :
“The register of deeds shall have custody of, and safely keep and preserve all the books, records, deeds, maps and papers deposited or kept in his office.” (Comp. Laws of 1885, ch. 25, § 90, p. 281.)
Before the plaintiff can maintain his claim in an action of this kind, he must show affirmatively that the right claimed, and which is denied by the defendant, is a clear legal right, and one of which there can be no doubts or exceptions. The writ of mandamus lies only for this kind of a right. A public officer can be compelled to do such acts as the law requires to be performed, and none other. The plaintiff claims that the records in the office of the register of deeds are public records, which every person has a right to inspect, examine, and copy, at all reasonable times, and in a proper way; that the register cannot deny access to his office or books, for such purpose, to any person coming there at a proper time, and in an orderly manner; and that the register must transact the business of the office, and allow persons reasonable facilities to exercise this right iu that office. On the other hand, the defendant insists that while the records are public records, and that all persons have a right to examine the records and books of that office at all reasonable times, yet this right is controlled to some extent, by the objects for which the examination is made, or the use to be made of such information; and that,
The question is an embarrassing one, and we are not free from doubt. At common law, parties had no vested rights in the examination of a record of title, or other public records, save by some interest in the land, or subject of record. So no authorities at common law can throw any light upon this question — the practice of making abstract records being of more recent date. In some states, the right has been recognized and regulated by law; in others, abstracts are made by permission of the register of deeds; but in this state, no action of the legislature has been had. Then, under the provisions of the statute above quoted, the right of the plaintiff must be found, if at all.
The primary purpose of making and keeping a record of the titles to land is that the title and its history may be preserved and protected, so that the information there contained may be obtained by those who seek it. Without these records there would soon be such uncertainty in the title to real estate as would render it almost valueless, or involve its owners in endless litigation to protect it. Necessity then requires that these records shall be correctly made, and when so made, to be safely and securely kept. The law has imposed this duty upon the register of deeds, and when any persons desire to inspect the same, that inspection must be under the immediate eye and observation of the register of deeds, or his deputy. Otherwise, that provision of the law that requires him to “safely keep,” would impose a duty without the power to perform it. Then the right to inspect must of necessity have some restrictions, and must be exercised under such rules as the register may fairly impose, that will tend to the safety and
“But no person has a right to examine or inspect the records of his office, except in his, the clerk’s presence, and under his observation. If he may do this for a minute, the clerk is not ‘keeping them safely and securely.’ A blot or a scratch may be made in a minute that may alter a record; a leaf may be abstracted in a minute, and if one man may of right take a record book and ‘abstract’ its contents — work a week upon it, any other man may do it. If a good, honest man has a right to do this, a bad man has the same right; and if this may be done, except under the clerk’s immediate inspection, no record can be safely kept. If the complainant has the right to do what he claims, he has the right to keep the clerk’s attention from minute to minute, and from day to day, until his book is finished. He has the right to the services of the public officer for months together without pay; for not only the law but every principle of propriety requires that no person shall inspect the books, except under the Watchful observation of the clerk.”
The supreme court of Colorado, under a law that is identical with that of this State, has decided that the right of a person to examine the records is not open for all. The court in Bean v. The People, ex rel., 7 Col. 202, says:
“We are of opinion that the statute in question was not designed to allow individuals who wish to abstract the entire records for future profit in their private business, the privilege of using continuously the public property, and of monopolizing from day to day, for months and years, a portion of the time and attention of a public officer against his will and without recompense.”
The supreme court of Michigan has also decided this question, founded upon a statute much broader than ours. The court says:
“The right once conceded, there is no limit to it until every public office is exhausted. The inconveniences which such a system would ingraft upon public officers: the dangers, both of a public and private nature, from abuses which would inevitably follow in the carrying out of such a right, are conclusive against the existence thereof. . . . The language of the act referred to does not, in clear and unmistakable terms, include a case like the present, and such an one should*397 not be conferred by construction. The object of the act was to enable persons having occasion to make examination of the records for any lawful purpose, ... to have suitable facilities therefor.” (Webber v. Townley, 43 Mich. 534.)
Our statute nowhere intends to give the right to permit the taking of copies of the records. The language is to “ make an examination.” That examination was intended for persons who desire some information that can be readily gained by personal inspection of the records. The duty of granting this right is imposed upon the register, but it was never intended that the inspection would give the right to make entire copies of the records, and consume his time in watching and protecting the records during the time required to take an abstract of the titles of land in any county. This 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. The statute provides how copies of all records may be obtained, and prescribes fees to the various officers for furnishing such copies. Those desiring to engage in the abstract business can procure the information or copies as the law provides; and if upon examination the statute does not clearly provide for that class of information, or for copies, then the duty will be upon the legislature to provide it, and not upon the court.
The plaintiff cites but two authorities in support of the right claimed by him. The first case cited is The People v. Richards, Register of Deeds, 99 N. Y. 620. In that case there is a remarkable distinction from the one at bar. In that case the relator was a corporation created by a special act of the legislature of New York, and under that statute and charter the company was empowered and authorized to make, and cause to be made, and to procure and pay for such researches, abstracts, including maps and copies of records, as its trustees may deem necessary; and yet under this broad power granted to this company the court refused to grant the right where the
The next case was brought by McLean, in the circuit court of the United States for the southern district of Ohio, asking the court for an order giving the right to the inspection of certain fee books and the judgment docket of that court. The court refused the order, but afterward granted an order giving the right to inspection of certain records in accordance with the fourth rule of the supreme court of the United States, which rule provided for the right of inspecting certain records of the courts of the United States; the court laying down the rule that at common law the right to inspect records and judgments of courts in the United States existed only to the parties to the record, and those having an interest therein. (8 Reporter, 813.) Neither of these decisions can be relied upon as sustaining the right claimed by the petitioner.
It is recommended that a peremptory writ of mandamus be denied.
By the Court: It is so ordered.