Ex parte Fitzpatrick

• Decision Date: 12 January 1909
• Docket Number: No. 21,383.,21,383.
• Citation: 86 N.E. 964,171 Ind. 557
• Parties: Ex parte FITZPATRICK.
• Court: Indiana Supreme Court

171 Ind. 557

86 N.E. 964

Ex parte FITZPATRICK.

No. 21,383.

Supreme Court of Indiana.

Jan. 12, 1909.

Application by Edward V. Fitzpatrick, Clerk of the Supreme Court, for direction of the court as to whether boards or commissions appointed or created by the Legislature are entitled to unauthenticated carbon copies of the decisions of the Supreme and Appellate Courts without cost for official use. Clerk directed to require the statutory fee for all copies furnished any person, firm, or corporation unless a specific statute provides otherwise.James Bingham, Atty. Gen., W. H. Thompson, E. M. White, and A. G. Cairns, for petitioner.

MYERS, J.

This is an application by the clerk of the Supreme Court by verified petition, setting forth the fact that various boards or commissions appointed or created under legislative enactment, claim the right to have furnished them, gratis, on request, for official use, unauthenticated carbon copies of the decisions of the Supreme and Appellate Courts, upon the theory that, being agencies of the government, they have a right to demand them upon the ground that the state should pay no costs or fees in the absence of an express provision therefor, and praying the direction of this court in the matter. The statute governing the taxation of fees for copies of the opinions of the Supreme and Appellate Courts is section 9389, Burns' Ann. St. 1908. That section provides the fee to be charged to “any firm, person, or corporation” for unauthenticated carbon copies of the opinions of the Supreme and Appellate Courts. These fees, as well as all other fees taxed by the clerk, are the property of the state. Section 9389, Burns' Ann. St. 1908. The provisions of our statute with respect to actions brought on relation of the state require the costs to be taxed against the failing relators, except in cases when a state officer, or prosecuting attorney, by virtue of his office, is relator. Section 620, Burns' Ann. St. 1908. Prior to the amendment of 1885 (Acts 1885, p. 239, c. 102), a state officer as relator was primarily liable for costs, although by another statute, in actions directed by the Governor on official bonds, then and yet in force, whilst the relator was and is primarily liable for costs, such costs are to be paid by the state. Section 9186, Burns' Ann. St. 1908; Henderson v. State ex rel. Baldwin, Attorney General, 96 Ind. 437, 443. The policy of the law and the express provision of the statute are against the taxation of costs to the state. The provision in section 9389, supra, enables the copying of opinions of the two courts by the proprietors of newspapers, and the making of abstracts of the opinions for publication, so that it is clear that no question arises as to the rights of various boards or departments of the state government to take copies, but the question is: Is the clerk required to furnish them without charge?

It is quite clear that, if every agency of the state government can call upon the clerk for copies at his or its pleasure, for such copies an immense amount of labor may be imposed upon the office; and, whilst that duty might be imposed upon the office by the Legislature, the Legislature has not done so, and the way, once open, would lead to much confusion, for the establishment of a hard and fast rule upon the subject as to who should be served as agents of the state seems difficult, if not impossible, and cannot be imposed upon the clerk, or at least has not been. It might be expedient in many cases, and wholly unnecessary in others, and the difficulty of drawing the line of separation is at once apparent. For example, what is to deter the trial judges and prosecuting attorneys from demanding copies of all opinions, or township trustees, and road supervisors, as well? Even if it be said that the requirement that the agencies of...