PEDERALREPOIt'ttR,' vol. 44.
remove on other grounds, by amending the original petition for removal some montbs after itbad',beentiled::Tbe application 'was made too late, and the motion to remand must be sustained. It is 80 ordered. ,',!. i
Inre CHAMBERS
al. ",'
(Oircuit Oourt, D. Nebraska. January, ,: 111,.1891.) ': :
.
&Bdoims' OP
( Aug. 12, in the of the oircuit ,and d,istrict 'ilf .Statt;lsconta,ining d()cket the jU?gmen1l8 or'decrees of said courts IthQli, 'durmg o1'fice hOurs, be opllnto the inspectIOn of &J!J desiring,tp ex,amine the salIle without any ':feeor charge therefor. Act :Feb; 26,1858, allows the, clerk a certain fee for searching' the recorus for 'melltsor deorees. Act Aug. 'l,'l888;'prov.ides that the indiCies and l-ecdrds of Judgthat is 1>1, tjlat llot be opelJ, to the , inspect,ion and examinatiOn of the public., Held, that these provaslons secure to the eititens the Fight to examinE! tbesereco1ils free of charge, and the clerk is entitled ito only when he j.a ; <) j r _ ' ' ·
OP'EXA!.IINATION.
!
"',
1890. ' ,!" ,! .. MOTiON. .no\'t' tbe undersfgnediand, on' .behalfof 'the said: J. M. Chambers, whosenaqleis, subscribed' "to' the: ,atfidavtt, accompanying this' motion,. and moves that tbJ\ i!1structed:ac! to the right of the public. and sa14 ,to mitke inspeqtion and examina.tion of the indtces and authorized and ot the act of congress a:pproved Arigtlst, A. D; 1888, and accompanYing this motion, andsuppott the same, bytbei petitionlindl1ffidavit hereto attached. and made a part of this,motion.' ' J . H . ' MACOMBER, :Atty. at Law.'" ,,, ,i', " .'
, day 1890: ..I,. th8(}wfhdt l (Jo7.l.1'lof tM Unf:t6dSta,tea tn' Nebtaska. NO'Dembw Term.
;At,
,
",fetHion
fo,
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to e;l;\JIl,me,pourt
.,' " " ' ' . ,', " Pi' , . , ' PET;n'JO;r'l'.; ,,: ,,',. , "To the Honorable 0/ tlte Federal Oourts of.Omaha. theundtitsigned. bein,g'interested in the rig-hUo exaluine the indices for Juugmentsin"thedistrict, and circuit courts of the: Uhited States for the trict of Nebraska."would· res1l6ctfulty ask the judges otsaid courts to instruct the ,clerks ofsaidconrts as'to,tberright of the public' to inspect tlie same free of "J. M. CHAMBERS. Abstrap,tQr. York Life :aIQg. "JOHN l'ALMYUIT, ·. 913 New Yor/i "JOHN P. BREEN;A.tty; .' "DEXTER L. THOMAS. Atty. I have been refused the right to examine . sho:wn orl1eJ;fro.ql '"CHAS;' A.. AttY.;at Law. ,,' ' . :'. .' "C; F. I;l'A'RItlSON. ".
as follows: , ',,'
The
,i
,,'., ,
.",
m.ade p:u;t,of tbe-motion are
. '
'
; '
.,.
.. '"
We.
"GBO;
,,;
Ui. ·RJIl CHAMBERS.
'187
"C. K. COLLIERS, Secy. Home Investment Co. "J. W. WEST. "FRANK HELLER. "T. J.TOOLlllY. "OMAHA ABSTRACT CoMPANY, by HERBERT H. NEALE, Secy. "H. E. HAND. "F. E. ALEXANDER. ' "CHAS. C. KNEESLY. Secy. Provident Savings Loan and BUilding Aua. "R. S. ERON, Atty_ .
"F. L.
..A. BRANTLY. OIL. S. SKINNER.
RICE.
"H. IvEY. Loan and !teal Estate Broker. "JNO. W; ROBBINS. of Hartman and Robbins. (Real Estate.) "SECURITY ABSTRACT COMPANY. by E. F. SEAVER, Secy· .. OMAHA TITLE INDEMNITY & TRUST Co·· by J. W. H AR·IWl. Secr_ ' "S.8cHLESINGER. ..w. E. GRATTON. "Omaha. Nebraska. Dec. 4. 1890." " AFFIDAVI'!'.
"R.W. RICHARDSON, Atty. at Law.
"State of Nebraska, DouglaB8 Oowntll. "'I· .T.lI. Chambers. being duly sworn, depose and say that, t am an abstractor of titles. haVing an office, in Omaha, Neb. That I have constant 0ccasion to inspect and examine the indices arid records of the court;s of the United States, prepared and authorized by the act of congress approved August I. entitled ·An act to regUlate the liens of jUdgments and decrees of the United States.' That I understand, and believe that the provision of said act in section 2 thereof authorizes and allows that ·such indices 311u'r,eeords shall at ,all timps be open, to the inspection and examination of the public.' That the clerks of the courts of the United lStates at Omaha require the payment of a fee from the public to allow said public to D1ake such inspection and examinaUonforthemselves. ' I further state that such fee is required and demanded by said clerks as a matter of right, but, as your atliant believes,· is witho\)t wllrrantQf la w. and contrary to said act approved Aup:ust I, Thatt,ho names attached to the petition accompanying this affidavit of persons. companies, and corporations situated and resident in Omaha. Tpat thisapplicatiltn is made in good faith, on my own behalf arid others. fOl the purpblles of the said pl'tition. That I am forbidden. without fee, to make inspection and examination of the said indices and records by tile said clerks. That I desire, in the utmost good faith, that the said clerks should po into the law and right of the matter. J. M. CHAMBERS. in my presence. aud sworn to before me, this 5th day ot Decembtlr. A .. D. 1890. [Seal.] "SILAB ROBBINS, Notary Public." CALDWELL, J. It will be observed that the petitioners do riot aeek an ordera,uthorizing the inspection and examination, by the public or all the records ,in the clerk's office, but only icallymentioned in the second section of the act of congress of August 1., 1$88, U. S. St. 357.J. They are the indices. and cross-indices to the judgment records of theeourt and the judgment records Taking them in their c1ironological order, the of congress which · ' . '. ' . '" .· I
FEDERAL REPOR1'ER.
vol. 44.
quire consideration in the determination of the question raised by this petition are as follows: Act of August 12, 1848. (9 U. S. St. c. 166, p. 292,) which provides"That all books in the offices of the clerks of the circuit and district courts of the United 8tates containing the docket 01' minute of the judgments or decre@8·of said courts shall, during office hours, be open to the inspection of any person desiring to examine the same, without any fee or charge therefor." The act of February 26, 1853, (10 U. S. St. c. 80, p. 163,) fixed the clerk's fees. Among its provisions were the following: "For every search for any particulal'mortgage, judgment, or otber lien, fifteen cenLs. ... ... ... For searching the records of the court for jUdgments, decrees, and other instruments constituting a general lien upon real estate, and certifying the result bfsuch search, fifteen cents for each person against whom lituch search is required to be made," All the foregoing provisions, with others. are embodied in section 828 of the Revised Statutes of the United States. The second sl:lction orihe act "To regulate the liens of judgments llnd decrees of the courts of the United States" (25 U. S·. St..0. 729, p.. 357) declaresof tlle several conrts of the United States shall and keep in theIr respective Qfflges complete and convenient indices and crossindices of· tllcfjudgment reC6tds of Said conrts, and such indices and records shall at all times be open to .the inspection and examination of the public;" The act of 1848, which now constitutes the last clause of section 828, Rev. St., declares the particular records in question "shall, during of· fice hours, be open to the iiiE'pectionof any person desiring to examine the same, without any fees charge therefor;" and the later act of 1888 declares that the indices and cross-indices of the Judgment records" shall at all times be open to the inspection and examination of the public." The language of these statutes is peremptory and authoritative. Their plain meaning and legal effect are in no manner limited, restricted, or affected by the provisions relating to the fees of the olerk for searches. Hthe citizen. "requires" the clerk.to make the sellrch, of makit for himself, the olerk is then entitled for his services to the fees fixed by the statute. He is only entitled to fees when he earns them. He cannot charge. the citizen fees for the privilege of doing for himself what the atatute in terms says he may do "without any fee or charge therefor." The fee does not attach to a search by whomsoever made, but only to a !learch made by the clerk. The statute fixes "the clerk's fees for searching the· records" at" fifteen cents for each person against whom such search is required to be made;" and it. is only when hl:l is "required" to make, and makes, the search that he is entitled to the fee. Il the clerk was entitled to the fee of 15 cents for each name searched fQ'iohy the then he would have the right to compel the citizen tc> disclose the nuniber of names 1;1e looked for, if not the names themselves. The law has not invested the clerk with anJ such inquisitorial powers. To compel the citizen to disclose such facts. might imperil important busineSs interests, or injuriously affect the credit of the persons named.
or
IN RE CHAMBERS.
789
Independently of the act of 1848, the act of 1888 confers on the petitioners the right they claim. That act deals with the liens of judgments in the United States courts. It takes cognizance of the great importance to the public of having complete and accurate indexes to the records of judgments in these courts, and of affording to the public free and ready access to the same. To that end it declares the clerk "shall prepare and keep" in his office these records, and that they "shall at all times be open to the inspection and examination of the public." The tprms of this statute are such as to preclude discussion or debate. It puts it out of the power of either the clerk or the COUl'tiO deny toacitizen the right, freely, and without charge, to inspect and examine the records mentioned. No toll can be levied on the citizen for that' privilege. It must not be forgotten. that these are public records, made by the authority and direction of the United States whose property they are, and that they are kept in a public office, by a public office!:" for public purposes. The law creating them was not a revenue measure, nor are they made and kept.as a source of revenue to the United States, nor for the private gain of the clerk. If the clerk is "required" by the citizen to search them, he is entitled to the prescribed fee for his services; but he cannot reap where he has bestowed no labor; The question raised by this petition was deciiled inRe McLean, 9 Cent. Law J., 425. In that case a corporation publishing.a newspaper petitioned the court to instruct the clerk to allow its reporter to inspect the fee-books and all other records of the court. The clerk demurred to the petition. In its ruling upon the demurrer the court expressed the opinion that the reporter was not entitled, as a matter of right, to inspe<lt all the records of. the court, but that he was legally entitled to inspect the records which the petitioners in this case claim the right to exaniine. The court said: . "The right to examine certain records and papers does exist. It exillts as to the books containing the docket or minute entries of the judgments and decrees of the ,court, and these the pi!titioners aJlege that they have been refused by an officer of this court. "
-And the demurrer to the petition was overruled on the ground that the petitioner had the right to examine these records. While it was said the right to inspect the other records of the court did not exist, the court was probably not very well satisfied on that point, for, on further consideration of the case, it decided to grant, ex gratia, the whole prayer of the petition, and gave the reporter leave to examine all the records. The right claimed by the petitioners is secured to them by statute, and it is not, therefore, material in this case to inquire what the common law was on the subject of the right of the public to examine the· court records. If. it was. material to inquire into the common law on the question, it would probably be found to shed very little light on the subject for several reaSOnS. At common law the court records were written in the "ancient and court-hand;" in a dead language, which few besides the officers· of the court· could: read; and this method of keeping. the records,whicq practically made them sealed books to the public, .
FEDER.A.LREPOBTER,: vol.
44.
\
continneddownto the reign ofGeorge II. , and at common lawjudgments were not lands, and thenece.Cl,$ity that for examining the.records' had no existencei then. But it is said that, while natural persons may have this right corporations .haye not; because they are neither" persons" nof any part of the "public," within the meaning of these words in the acts of congress Telatingto court pursnits of iillkinds are now largely conducted by corporations. They sell goods, lend money, furnish abstracts of title, and, clirry on many other pnrsllits,iwhich make it necessary [or them to be constantly advised of the contents of the judgment records in the courts. A corporation must act by its officers or agents, who are citizens. and no citizen loses any of his rights: as a citizen because he is a member of,or an agent for, a corporation jand he has a J'ight to search the record for his own information,or as agent for anotller, and with a view of imparting the informa.tion hea<,.quires to his principal, be that principal a natural person or a corporation. .· .'. The wear and tear of the recordllincident to the legitimate public use of them is no conoern of the clerk or the court. When worn (jut in anseto which they are dedicated by congress, that body will doubtless make provision for renewing them, as has often been done befote. Itis Said the public n13e ofthe records may result in their alteration or mutilation, but: this cannot be received as an argument against: such use, because it isa nee to which they are devoted by the act of congress. Besides,as they are mere indexes and abstracts of judgments, made up from the journal entries, no alteration or mutilation of them would affect the .integrity Qlthe original entries. It is due to the clerk to say that he has no pecuniary interest in this qnestion,becausethe receipts of his·office exceed the maximum compensation allowed him by law by a sum greater than the fees derived from Jiis actioQ..in this conformed to the opinion and instructions ,of Attorney General Garland t who, in a letter addressed to the clerk of< the distriot court of thili-district, bearing date November 10, 1888, says: . "For every jUdgment recOrd examined. 8f"ction 828 directs a charge of lifteen·.cents, whether thesearllh is made by the clerk or a private individual. Th(j fIle. attaches to the Qf a sean·h. The act of August I, only facilitates the method of search. Yoq wi,\1 cpntinue to collect the charge as
But the court holds the fee attaches, not to the fact of a search, but t9,the fact that such .search is made by the clerk on the requisition of another. It is a compensation 10rhis services in actually making the search. oJ TbeCQurt has been wito t;he copy of a hill and the decree in a cause ,in the circuit court oithe United States for the district of Indiana at, Indianapolis. .rrhe bill was filed in the name of the United States against a firm. alleged to be engaged in the abstract business, and averred .that it was ,1he ,duty of the clerk to make and certi(y all searches, and that the United States had an itlterest in having' the clerk do the
·maE ·CHAMBEks. .' ,,' 1', " ., " ,:. ' , " '. ·
791 ·\
work, and in preventing anyone else from domg it, because from th,e fees for searches the United States was enabled to pay in part the expenses of the clerk's office 'a1'ld,the com pensation of the clerk, and that the fees were, provided for that purpose; that thedefendanta had obtainedcopies of, the records' of the judgments and decrees, and the indexes to .the f.lame, and were, using the same "in their business of abstractt() real estate,» thereby "persons ing and certifying to the to procure searches to bemade of the records of said court without oPtaining the same from the clerk thereof, as they otherwise would be com" pelled to do," and prayed that the defendants be enjoined from using their copies of the records in their business of investigating and certifying to titles, and there was in accordance with the Prayer of the bilt ,The case is said to 'have been fully ltrgued; but no opinion wll,8 filed,and thedeeree recites that the cause wa.s heard upon "the billQf decree pro Cf)nfesso." No opinion having been fUed, the reasoning and authoritiestlpon which the court grounded itadecision CaD 'only be conjectured. In the abseiic'e of Clear and controlling authorities, the coutt is unable to yield its assent to the conclusion reached inthat case. rendered by confession cannot be accepted as settling the law foranyother case; but, CQncedillg the decree 'to hav$ beenrightly'rendered'ol1 the'law as it then stood,it has no bearing Qn the' case at bar,sinceit was rendered two ye!lrs befoftfthe passage' of the 'act of l888'. The theory of the bill apdthe decree is "thlJ,t the gove'rmnent fixed the :clerk's fee for searches'at 15' cents for each name all means of'revenue to nid, iIi' the support of the that it 'is' therefore £to 'llmonopoly of the' business, and tha:t persons who Ia obtain copies' of the jridgment.l'ecO'rde, and the indexes to'the same; cannot'use them in their business of abstracting and certifying to titles. but that every citizen of the state who desires anyiuformation with reference to judgments in a United States court must apply directly to the clerk of that cOlIrt, and pay hi.m for searching for the same. All monopolies are odious, and English history does not furnish ait example of one more odious in principle and vexatious in practice than that sought to be established by the bill in that case. Congress never contem:r1ated the establishment of any such monopoly in this business, either for fit of the governIllent or the clerk. The acts of 1848 and 1888 are antimonopoly acts, and took away from the gOvernment and the ,clerk all ,to the exclusive privilege of searching these records, and selling the information they contain. The monopoly of authority in business affairs is in f;lvi:)ry ipstance. an,d in. eyery d,egree, .evil wh,ich can only be established'byclaar and posi'tive legislation. It: will; be presumed nor inferred from a statute capable any tion. The decisions on the right of the citizen arid abstract:6oIirpanies to and copy the records of the, state courts, under the var,Ying of states, are, 'Somewhat' conflicting; but; it is belieyed'that there woUld have been n6 division of on the 'Subject if'thl3stlite statute$ilhadbeen as ctimpreheosiveand rnandat(ujin theii terins' as: the r
792
FEDERAL REPORTER,
statutes of $e United States. The statutes in Michigan, Wisconsin, New Jersey,.Minnesota,and New York are held to confer the right. Burton V. Tuite, 78 Mich. 363,44 N..W. Rep. 282, 29 Amer. Law Reg. (N. S.) 49, and note, (overruling Webber v. Townley, 43 Mich. 534, 5 N. W. Rep. 971;) Hamon v. Eichstaedt, 69 Wis. 538, 35 N. W. Rep. 30j Lum v. Mc(Jarty, 39 N: J. Law, 287, (overruling Flremming v. Clerk of Hudson 00., 30 N. J. Law, 280j) State V. Rachac, 37 Minn. 372,35 N. W. Rep. 7; People v. Richards, 99 N. Y. 620, 1 N. E. Rep. 258; People v. ReiUy, 38 Hun. 429; People v. Oornell, 47 Barb. 329. Under the statutes in thel;!tates of Kansas, Al:ibama, Georgia, Colorado, and Maryland the right is denied or qualified. Oormack v. Wolcott, 37 Kan. 391, 15 Pac. Boylan v. Warren, 39 Kan. 301, 18 Pac. Rep. 174; Randolph v; State, Ala. 527, 2. South. Rep. 714; Buck v. OoUins, 51 Ga. 391; Bean v. People, 7 Colo. 200, 2 Pac. Rep. 909j .Belt v. Abstract 00., (Ct. Apfl. ¥d. 1890,) 20 Atl.Rep. 982, 30 Amer. Law Reg. 56, and note. n to say that the co1.1rt has been at some pains to ascertain the views entertained and the practice that prevailed in this matter in other ciro.uits and districts. Inquiries for this purpose extended to four circuits. be13ides the eighth, and the replies showed a substantial consen,S11.8 ofopinion and practice in harmony with the views. here expressed. The clerks of the several circuit courts in this.circuit will conform, in the lj.dxninistration of their offices, to the views expressed in this opinion. For the proper practice and fees where the clerk is required to make tbe search, seeJn Re Woodbury, 7 F.ed. Rep. 705, 17 Blatcbf. 517. This court has no jurisdiction over the clerk of tbe district court, and so much of the petition as prays for an order on that officer is dismissed. Iftbe petitioners desire an:y relief against the practice that prevails in the offiqe of the clerk of that court, tbey must apply to that court.
EILLERT
et ala
11. CRAPS
et al.
(01lrcuU Oourt, D. South Oarolina. Janua.r;y 22, 18111.) 1'ESTIMON1' TAkEN BY COMMISSION-PUBLICATION.
Wherfl comIllainant's testimony bas all been taken by oommission, the evidence will be published before defendant opens his case, with proper precautions that he does not· deprive complainant of any advantage he may enjoy by reason of defend·. ant's laohes, so that defendant may know whether or not complainant has made out his whOlE! case in cbief.
Open Commissions Under Equity Rule 69. ,E. W. Irughes 1 for defendants. · :po ..4.. llagood,'for complainants.
