Ex parte Brown

• Decision Date: 29 May 1906
• Docket Number: 20,771
• Parties: Ex Parte Robert A. Brown, Clerk of the Supreme Court
• Court: Indiana Supreme Court

78 N.E. 553

166 Ind. 593

Ex Parte Robert A. Brown, Clerk of the Supreme Court

No. 20,771

Supreme Court of Indiana

May 29, 1906

Original Petition by Robert A. Brown, as Clerk of the Supreme Court.

Petition sustained.

Robert A. Brown, pro se, and George H. Batchelor, for petitioner.

Charles W. Miller, Attorney-General, C. C. Hadley, H. M. Dowling and William C. Geake, contra.

OPINION

Jordan, C. J.

The petitioner, Robert A. Brown, Clerk of the Supreme Court and ex officio Clerk of the Appellate Court, comes in person and by counsel and presents a petition for our consideration, whereby he invokes our judgment as a court relative to his control over the opinions and decisions of said court after the same have been handed down and filed in his office. He also requests to be advised whether, under the existing law, he is at liberty, in his discretion, to continue to furnish in the future, as he has been doing in the past, uncertified copies of said opinions and decisions to the West Publishing Company for advance publication in what is known as the Northeastern Reporter. He alleges and shows in his petition that he is the duly elected, qualified and acting clerk of this court, and an officer thereof and to an extent subject to the control of the court. The petition alleges that § 6423 Burns 1901, Acts 1895, p. 319, § 19, provides that "it shall be the duty of the Clerk of the Supreme Court to tax and keep an accurate account on proper fee books, of all fees and charges of his office as is required by this act or any other laws of the State for any and all services performed by him or his deputies, clerks or assistants, and on the first Monday in January and the first Monday in July of each year, he shall make and file in the office of the Treasurer of State a statement and report, subscribed and sworn to, showing the amount of such fees and charges collected and uncollected and the names of parties liable therefor, and from whom received, and the balance due, and the whole amount of fees and charges collected by him shall be paid into the state treasury;" that said section is a part of the general fee and salary law of 1895, and that said law of 1895 provided no schedule of fees to be charged by said clerk, and made no provision requiring him to collect fees, other than what might be contained in laws in force at the time of the passage of said act; that the only law at the time of the enactment by the legislature of the provisions embraced in § 6423, supra, aside from the statute relative to docket fees, was § 7798 Burns 1901, § 5831 R. S 1881, which is a part of the fee and salary act of 1879 and provides that the fees of the Clerk of the Supreme Court shall be as follows: [here the petition sets out in full the schedule of fees as set forth in said section]. It is further alleged that said fee and salary act of 1879 provided no salary or compensation for the Clerk of the Supreme Court other than the fees therein prescribed, which were to compensate him for official services rendered; "that nothing in said act prohibited said clerk from charging a less amount than the sums therein designated, for any services rendered, or prevented him from performing said service without any compensation whatever, if he so desired to do; that the act of 1895 above mentioned, fixing a stated salary for said clerk, contained no provision requiring or compelling the clerk to collect the fees designated in said act of 1879, other than might be contained in said act of 1879 itself; but, on the other hand, said act of 1895 does contain provisions requiring the Secretary of State, the Auditor of State, and county officers to collect and account for the fees allowed by law; that relying upon his belief that under said acts of 1879 and 1895 he was not required to make any specified charge for the service, and that such charge was a subject which could be properly agreed upon and determined by private arrangement, subject to the requirement that any amount so received should be covered into the state treasury; and the further belief that such service could not have been contemplated by said act of 1879, he did, on or about November 22, 1898, begin furnishing to the West Publishing Company, of St. Paul, Minnesota, for publication in the Northeastern Reporter, copies of all the opinions rendered by the Supreme and Appellate Courts, and continued to furnish said copies until January 1, 1906, at a less rate than ten cents per one hundred words, accounting to the Treasurer of State for the amounts received therefor under §§ 6406a, 6423 Burns 1901, Acts 1901, p. 399, Acts 1895, p. 319, § 19; that said Northeastern Reporter was not in existence at the time of the passage of the act of 1879; that the West Publishing Company was unknown, and that at said time there was no practice in vogue of furnishing copies of opinion for commercial purposes or to legal publications; that by law it is made one of the duties of said clerk to certify a copy of every opinion to the clerk of the lower court from which the appeal was taken; that the copies furnished the West Publishing Company, as aforesaid, are not original copies, but are uncertified carbon copies, made upon a typewriting machine at the time the opinion is copied for certification, without any additional labor or expense to the office, except for the paper upon which they are made, and the carbon necessary to make them; that at the time of the passage of said act of 1879 typewriting machines were not in use, and carbon copies were unknown; that all copies were at that time made in longhand, and that a charge of ten cents per one hundred words was not unreasonable therefor; but he does say that such a charge for an uncertified carbon copy is unreasonable, not only because it is out of proportion to the labor and expense required to make it, but also because it is uncertified, and the copy from which the carbon copy is made is taxed to the losing party at the rate of ten cents per hundred words, as part of the costs in the case.

"He further shows to the court that some doubt having been raised as to his right to enter into an agreement with said publishing company to furnish said copies at a less rate than ten cents per one hundred words, he notified said company that said copies would not be furnished for a less rate after January 1, 1906; that he is informed and believes that said company regards said rate as unreasonable and prohibitive and that unless said copies can be obtained in some other manner the publication of said opinions in the Northeastern Reporter will be suspended, the bench and bar of the State and this honorable court deprived of the use of the same, and the administration of justice greatly hampered; that in order to procure said opinions without paying a rate which it so alleges is unreasonable, extortionate and prohibitive, said company is asserting that said opinions are public records to which any person has the right of access, and, desiring so to do, may copy without charge, and is threatening, and will, unless prevented from so doing, place in the office of said clerk a hired copyist to make copies of the opinions for it; that by law said clerk is made the custodian of the records of this court, and is required to preserve them and hand them over to his successor; that the care of such records and their condition, as well as the entries therein made, are subject to the inspection and control of this honorable court under §§ 1332, 7796 Burns 1901, §§ 1308, 5829 R. S. 1881; that this honorable court also has a direct interest in the conduct of the business of said clerk's office, to the end that its records be made up expeditiously and accurately, and its opinions preserved and recorded as rendered; that the placing of a copyist in his said office by said company for the purposes aforesaid, not only would result in great danger of the mutilation and loss of said records, but would seriously inconvenience, hinder and delay the work of the office, and the proper making up of the records of this court; that if said company has the right it asserts to place its copyist in said office, to copy said opinions, the work must of necessity be done under the immediate eye and observation of the clerk or his deputies, else he would not be able to see to it that said records were safely preserved for transmission to his successor; that so to supervise said copyist and see that said records were preserved without mutilation would require a great portion of the time of the clerk and his deputies, and greatly hinder and impede the work of the office, and even then the danger of the mutilation and loss of said opinions would be so great that it would be impossible to provide entirely against it, even with the closest scrutiny and care; * * * that if your said clerk, in the exercise of his said duties of preserving safely the records of this court, is not compelled personally to supervise the work of said copyist, his constant presence in the office of said clerk would create an intolerable condition, as well by having in his possession opinions when they would be desired by others, or by the employes of said office, as by the confusion which would naturally result, and the menace to the safety and verity of the records; that if said copyist has the right of access to said records for the purpose of making copies thereof, then it might devolve upon the clerk to furnish him with all reasonable facilities for so doing, such as procuring the records for him, and furnishing proper tables, etc., upon which to do the work; and if said copyist has the right to bring pen and ink into said clerk's office for such work, then it might follow, and would probably be claimed, that he had the right to bring...