Rock Cnty. v. Weirick

• Decision Date: 25 October 1910
• Parties: ROCK COUNTY v. WEIRICK.
• Court: Wisconsin Supreme Court

143 Wis. 500

128 N.W. 94

ROCK COUNTY

v.WEIRICK.

Supreme Court of Wisconsin.

Oct. 25, 1910.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Suit by Rock County against Charles H. Weirick. From a decree dismissing the complaint, complainant appeals. Affirmed.

This is an action in equity brought by the county to perpetually enjoin the defendant, who is the register of deeds of said county, from making copies of the abstract books owned by the county and kept in the register's office. In the year 1880 the county board of supervisors of Rock county, after considering for several months the question of installing a tract index in the register's office, decided to have made and placed in the register's office a complete title abstract of the real estate of the county, using Walton's patented system, and in pursuance of this conclusion of January 7, 1881, the county board authorized the county clerk to purchase the exclusive right and privilege to use Walton's system of title abstract to lands in Rock county, and to make a contract with one Valentine, who was then the register of deeds of the county, to make and complete said title abstract within two years from date, for which Valentine was to be paid the sum of $3,200 on acceptance of the books. It appears that the formal written contract was executed March 17, 1881. The abstract books were not completed until some time in the fall of 1885, and in November of that year they were accepted by the county, and in the following January the county board provided that the abstract books should be kept by the register of deeds, and that he should charge the sum of 25 cents per entry for making abstracts therefrom, that he should keep the abstract books written up and should receive for such labor and for making the abstracts one-half of all the fees received for abstracts, and pay over the other half every three months into the county treasury. The plan so adopted was carried out by successive registers of deeds until shortly before the commencement of this action. January 9, 1897, the county board instructed the then register of deeds to allow no one to make abstracts for sale from the county books. The defendant, Weirick, became register of deeds in January, 1903, and has remained in office ever since; his salary being fixed at $2,000 per year during the first two years and at $1,800 per year during the subsequent time. From the time he went into office up to the 1st of January, 1910, the defendant has regularly turned over one-half of the fees received by him for making abstracts of the county, but he did not turn over the amount received during the first quarter of the year 1910. In November, 1909, the defendant purchased 16 blank books belonging to the county through the purchasing committee of the county board, paying therefor $48, and immediately commenced copying the county abstract records into these books for the purpose of going into the abstract business at the end of his term of office. At the time of the commencement of this action he had expended about $900 in such work. In March, 1910, the county board notified him to “immediately cease copying the abstract books owned by Rock county and to remove from the office of the register of deeds for Rock county all persons under his personal employ.” During the same month the county board caused demand to be made upon the defendant for the return of the 16 books, and at the same time tendered to the defendant the sum of $48 which he had paid for them. The relief demanded by the complaint is not only to perpetually enjoin the defendant from copying the books, but also to compel the surrender back to the county of the books with all the entries in them, and to compel the defendant to account for and pay over to the county its share of the fees received for abstracts which has not already been accounted for. The circuit court decided that the abstract books were public records, and that the defendant was entitled to copy them, and entered judgment dismissing the complaint, from which the county appeals.

John L. Fisher (William Ruger, of counsel), for appellant.

F. C. Burpee and Jeffris, Monat, Smith & Avery, for respondent.

WINSLOW, C. J. (after stating the facts as above).

The important question in this case, to which all others are merely subsidiary, is whether the county abstract books of Rock county are a part of the public records of the register's office. If they are, any person has a right to copy them under the reasonable supervision of the register of deeds, even for the purpose of making a rival set of abstract books. St. 1898, § 700; Hanson v. Eichstaedt, 69 Wis. 538, 35 N. W. 30.

It is argued on behalf of the county that the abstract books were merely the literary property of the county, and not public records, and hence that the county could prevent the copying of the books, and thus protect itself from competition in the abstract business. This argument is based principally on the fact that in January, 1881, when the county board authorized the making of the contract with Valentine to compile the abstract books, there was no provision of law authorizing or requiring the county to keep any such books, and hence it is claimed that the status of the books as merely literary property was then irrevocably fixed, and could not be changed by any subsequent legislation, which recognized the right of the county to make and keep abstract books as part of the public records. We are unable to agree with this argument. It is true that there was no express provision of law in force in January, 1881, which authorized a county to establish a public abstract system. By chapter 352 of the Laws of 1864 any county had been authorized to purchase a “complete and reliable abstract of title” to the real estate of the county, providing the purchase should be made before June 1, 1864, and by chapter 39 of the Laws of 1867 this time limit had been extended to June, 1867, but it is evident that the powers thus granted had expired by limitation. These last-named acts, however, required the making and keeping up of tract indices in the discretion of the respective county boards, and these provisions passed into the Revised Statutes of 1878, and became section 762 of those statutes. Thus it appears that the condition of the law when the county board was considering the question of establishing a tract index system in 1880 was this: A tract index was authorized to be kept, but there was no express authority to establish abstract books, although a...