Upton v. Catlin

• Decision Date: 21 September 1892
• Citation: 31 P. 172,17 Colo. 546
• Parties: UPTON, Recorder, v. CATLIN.
• Court: Colorado Supreme Court

31 P. 172

17 Colo. 546

UPTON, Recorder, v. CATLIN.

Supreme Court of Colorado

September 21, 1892

Error to Montrose county court.

Action by F. D. Catlin against William Upton, county clerk and recorder of Montrose county, Colo. From a judgment for plaintiff, entered on a verdict of a jury, defendant appeals. Reversed.

The other facts fully appear in the following statement by HAYT C.J.:

This action was instituted by the defendant in error, F. D Catlin, to compel plaintiff in error, as county clerk and recorder of Montrose county, to permit the defendant in error and one employe or two employes to have access to the records and filings of the office of said county clerk and recorder. Defendant seeks to obtain access to the said office during all the business hours of each day, for the purpose of making memoranda, copies, and abstracts of said records and filings. The application was resisted by plaintiff in error upon several grounds; among others, that the room or office furnished by the county commissioners of said county for the use and accommodation of the clerk and recorder was too small to permit two extra men to occupy the same. To this answer a replication was filed, denying the new matter set up therein. The issues of fact were thereafter submitted to a jury for determination. The verdict of the jury is not altogether free from ambiguity, but, when considered in connection with the issues submitted to them, and the questions in response to which the verdict was rendered, it is sufficiently shown that, while the room furnished by the county commissioners was too small for the purpose for which it was intended, yet that it was of sufficient size to allow at least one abstracter to work therein, in addition to the regular force during all the working hours of the day, and that, for the purpose of making necessary comparison, the defendant in error should be entitled to have a second person in the room during one hour of the day, said hour to be selected by the county clerk and recorder. From this verdict the court entered judgment commanding the plaintiff in error to permit the defendant in error and one employe, during all hours while said office shall be kept open for public business, to inspect and make memoranda and copies of the records of said office, including papers filed but not recorded, and to permit defendant in error and one employe or two employes to compare his notes and memoranda with such records for the space of one hour during each day; the time of commencing and ending said hours to be designated by the defendant, if he shall so elect; otherwise to be designated by the plaintiff said time of commencing not to be changed oftener than once a week.

Goudy & Sherman and George Simmons, for plaintiff in error.

N. G. Clark, for defendant in error.

HAYT C.J., ( after stating the facts.)

The statute under which defendant in error claims the right to inspect and make memoranda of the contents of the official books, etc., in the office of the county clerk and recorder of Montrose county, was recently before this court for consideration in the case of Stockman v. Brooks, 17 Colo ----, 29 P. 746. In that case the statute was held valid as against certain constitutional objections which were then urged; and it was also held that if a clerk, upon demand, failed to comply with its terms, mandamus was a proper remedy to invoke to compel him to do so. It was also decided in that case that the county clerk and recorder had the right to make reasonable regulations concerning the use of the records by the public, and that those engaged in the abstract business could properly be made subject to such rules. In that case, however, no rules were pleaded, and the court assumed that none existed, or at least that the refusal was not based upon any failure to comply therewith. In the case now before the court we find that the plaintiff in error had promulgated carefully prepared rules for the government of parties in making abstracts of records; that such rules were reduced to writing, and posted in conspicuous places about said office. By rule No. 5, so prepared, it is provided that parties desiring to examine the records of the office for the purpose of making abstracts would be permitted to do so upon any day when the office was required to be kept open under the law, between the hours of 9 and 12 in the...