Bristol Cnty. v. Sec'y of Commonwealth

• Decision Date: 09 June 1949
• Citation: 324 Mass. 403,86 N.E.2d 911
• Parties: BRISTOL COUNTY et al. v. SECRETARY OF COMMONWEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 403

86 N.E.2d 911

BRISTOL COUNTY et al.

v.SECRETARY OF COMMONWEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 4, 1949.

Decided June 9, 1949.

Reservation and Report from Supreme Judicial Court, Suffolk County; James J. Ronan, Judge.

Mandamus by the County of Bristol and others against the Secretary of the Commonwealth and another to rescind an order requiring an additional photographic copy of deeds and other recorded instruments and to restrain respondents from enforcing such order.On reservation and report.

Petition dismissed.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

M. M. Horblit, M. H. Horblit and S. H. Kalish, Boston, for petitioners.

H. P. Fielding, Asst. Atty. Gen., for respondents.

RONAN, Justice.

This petition for a writ of mandamus by the county of Bristol and the county commissioners of said county is brought against the Secretary of the Commonwealth and the supervisor of public records, alleging that since March 1, 1947, the recording of deeds and other instruments at the three registries of deeds in said county has been done by the photographic method by which a photograph of an instrument, or a negative, so called, is made and bound with photographs of other instruments into a book which is open to public inspection; that this method has supplanted that of making and binding typewritten copies of recorded instruments; that the photographic process of recording is more accurate, speedier, and far less expensive than the typewritten method of recording; and that the respondents have notified the commissioners that ‘a positive record must be made from the negative for the use of the public.’Within two days after the filing of the petition the commissioners were notified that this previous order had been modified so that, in addition to the copy of the record used by the public, ‘there should be another copy made, either a positive or negative or microfilm, which second copy should be kept in safe storage at all times, so that if anything happens, either by fading or destruction of the public used record, another copy can be made.’We shall refer to this second copy as an additional photographic copy.The petitioners seek the writ to rescind such order and to restrain the respondents from enforcing it.

The parties have stipulated that the only issue is whether the respondents or either of them was authorized under G.L.(Ter.Ed.)c. 66, § 1, as amended bySt.1945, c. 580, § 7, to require the registers of deeds in said county, who now employ the photographic process of recording instruments, G.L.(Ter.Ed.)c. 66, § 3, as appearing in St.1941, c. 662, § 1, to make an additional copy.We take the case as presented by the parties and confine our discussion strictly to this issue.

The books containing the written, typed or photographic copies of the instruments which are required to be recorded at a registry of deeds and which are open to the inspection of the public, G.L.(Ter.Ed.)c. 66, § 10, are necessary and essential in our system of recording titles and interests in land.The parties agree that those books containing photographic copies are public records within the statutory definition, G.L.(Ter.Ed.)c. 4, § 7, Twenty-sixth, which expressly includes ‘public records made by photographic process as provided in section three of said chapter [66].’

The supervisor of public records ‘shall take necessary measures to put the records of the commonwealth, counties, cities or towns in the custody and condition required by law and to secure their preservation.’G.L.(Ter.Ed.)c. 66, § 1, as amendedby St.1945, c. 580, § 7.The records at the three registries of deeds in Bristol County are properly in the custody of the registers of deeds and kept in their respective registries in accordance with G.L.(Ter.Ed.)c. 36, § 11, as appearing in St.1947, c. 449, § 2.The records at these registries are made by the photographic method of materials approved by the supervisor of public records, by equipment so approved; and the photographic copies are of recognized standard quality, capable of producing true, exact and clear copies.It is not argued that the method employed in recording instruments at these registries is not in accordance with G.L. (Ter.Ed.)c. 66, § 3, as appearing in St.1941, c. 662, § 1; or that the records are not in the condition required by law.The whole controversy turns upon the question whether the authority conferred upon the supervisor to take necessary measures to secure the preservation of the records includes the power to require the making of an additional copy which is to be kept in some safe place of storage so that, if anything happens to the publicly used record, another copy may be supplied.

The petitioners point to various statutes dealing with the safe keeping of records in the custody of a State, county or municipal officer, G.L.(Ter.Ed.)c. 66, §§ 9, 11, 12, and contend that the authority conferred upon the supervisor in this respect extends no farther than to see that the provisions of these statutes are observed.Each of these statutes provides a means for the protection of public records, but they do not purport to cover this subject completely or exclusively, or preclude the adoption of other measures which may be deemed reasonably necessary for the preservation of the records for the promotion of the public welfare.A purchaser of real estate seldom has the original deeds in his chain of title but usually has only the deed of his grantor.The validity of the title of the latter having been shown by an examination of the records and relief upon by the purchaser in acquiring the land, the destruction of these records may leave the purchaser's title open to attack.The confusion and uncertainty which result from a destruction of the records are illustrated by the situation which prevailed after the great Chicago fire of 1871 and the San Francisco earthquake and fire of 1906.SeeAmerican Land Co. v. Zeiss, 219 U.S. 47, 31 S.Ct. 200, 55 L.Ed. 82;Title & Document Restoration Co. v. Kerrigan, 150 Cal. 289, 88 P. 356, 8 L.R.A.,N.S., 682, 119 Am.St.Rep. 199;Smith v. Stevens, 82 Ill. 554;Bertrand v. Taylor, 87 Ill. 235.

The petitioners also point to the fact that G.L. (Ter.Ed.)c. 66, § 3, as appearing in St.1941, c. 662, § 1,¹ speaks of ‘the photographic print’ and ‘a photographic * * * record,’ and argue that these words constitute legislative recognition of the established custom and general practice of making only one photographic copy in recording instruments and further indicate that not more than one copy is to be made.The quoted words do not support that conclusion.They are couched in the singular, as they...