Under § 828, Rev.Stat., and section 2 of the Act of August 1,
1888, a corporation engaged in the business of insuring titles to
real estate has the right, during office hours, to inspect and
examine the indices and cross-indices of the judgment records kept
by the clerks of the circuit and district courts when such
inspection and examination relate to current and depending
transactions and are made at such times and under such
circumstances that they do not interfere with the clerk or his
assistant in the discharge of their duties or with the exercise of
the right of other persons to have access to such indices and
cross-indices.
By section 828, Rev.Stat., clerks of the circuit and district
courts are allowed certain fees for searching records for
judgments, decrees, etc., and certifying the results of such
searches. In the same section is this provision:
"All books in the offices of the clerks of the circuit and
district courts, containing the docket or minute of the judgments,
or decrees thereof, shall, during office hours, be open to the
inspection of any person desiring to examine the same, without any
fees or charge therefor."
Section 2 of the Act of August 1, 1888, 25 Stat. 357, reads:
"The clerks of the several courts of the United States shall
prepare and keep in their respective offices complete and
convenient indices and cross-indices of the judgment records of
said courts, and such indices and records shall at all times be
open to the inspection and examination of the public."
On December 28, 1896, the Commonwealth Title Insurance &
Trust Company commenced a suit in the Circuit Court of the United
States for the Eastern District of Pennsylvania against Samuel
Bell, clerk of that court. The company is engaged in the business
of insuring titles to real estate, making
Page 189 U. S. 132
searches for liens and encumbrances upon the same, and issuing
certificates in respect thereto, and sought a decree giving to it
access to the judgment indices and cross-indices kept by the clerk.
The case proceeded to a decree as follows:
"And now this sixteenth day of January, 1901, this case having
come on to be heard upon pleadings and proofs, and having been
argued by counsel, it is ordered, decreed, and adjudged that the
respondent shall permit the properly authorized representatives of
the complainant to inspect and examine the judgment indices and
cross-indices kept by the respondent, as Clerk of the Circuit Court
of the United States for the Eastern District of Pennsylvania, in
such way and manner as will enable the complainant to prosecute its
business as insurer of titles, but subject to the following
restrictions:"
"The inspection and examination must in each instance relate and
be confined to a transaction or transactions which at the time
being shall be current or depending, and such inspection and
examination shall be made only at such times and under such
circumstances as will not interfere with the respondent or his
assistants in the discharge of their duties, or with the exercise
of the right of other persons to have access to said indices and
cross-indices."
This decree was affirmed on September 27, 1901, by the circuit
court of appeals. 110 F. 828. On December 2 of the same year, the
case was brought here on certiorari. 183 U.S. 699.
MR. JUSTICE BREWER delivered the opinion of the Court.
The question presented is to what extent a company engaged in
the business of examining titles and certifying thereto may have
access to and use the indices and cross-indices of the
Page 189 U. S. 133
judgment records prepared by the clerks of United States courts.
The statute declares that they "shall at all times be open to the
inspection and examination of the public." This company as one of
the public has a right to this inspection and examination. It has
no monopoly therein, and cannot interfere with the clerk of his
assistants in the discharge of their duties, or with the equal
rights of other persons to such inspection and examination. But
this limitation is expressly provided for by the second of the two
restrictions imposed in the decree. Under this decree, the clerk,
as custodian, can make such reasonable regulations as will secure
to him and his assistants full use of all the books and records of
his office -- which, of course, is a primary matter to be
considered -- and also will guard against any tampering with or
injury to those books and records, and at the same time give to the
plaintiff and others access to the indices. From the testimony, it
is clear that there can be no difficulty on the score of time or
otherwise in affording to this company and all others interested
every proper facility for inspection and examination. Indeed, it is
not contended that there is any trouble in that direction.
But the contention is that the office of clerk is not a salaried
office; that he is paid by fees; that the fees for searches and
certificates thereof have amounted to a very considerable sum, and
in this office have resulted in a surplus above the maximum of
compensation allowed by law to the clerk, which has gone into the
Treasury of the United States, whereas, if this plaintiff and other
like companies situated in Philadelphia, which are monopolizing the
business of examinations of title, should be permitted to make
their own inspection and examination of these indices, a large part
of the fees hitherto received by the clerk will be lost, his
maximum of compensation will not be reached, and there will be no
surplus to be paid into the Treasury of the United States. It is
insisted that, although, by the terms of section 828, the judgment
records are open to the inspection of any person without any fee or
charge therefor, Congress, in directing the preparation of the
indices and cross-indices, and that they should be open to the
inspection and examination of the public, did not add thereto
"without any
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fee or charge therefor," and thus manifested its intent that
they should not be so used as to interfere with the fees
theretofore received by the clerk. We cannot so interpret the
statute. If these indices were intended merely for the convenience
of the clerk and to facilitate his work, the making of them would
undoubtedly have been left to his discretion. The convenience of
the public and assistance to those interested in the judgment were
obviously in the thought of Congress, for it declared that they
should be open to the inspection and examination of the public.
Very likely, at the time of the passage of the act, the
monopolizing of the business of examining titles by one or two
corporations was not contemplated. The work was scattered among the
separate members of the bar, each one for his own client examining
the title to property in which such client was interested. But if
Congress provided and intended to provide that one interested in
the title to real estate and desiring an examination of judgment
liens thereon should, either by himself or agent, have access to
these indices, that intent and that provision are not changed by
the fact that the business has passed from the many to a few. The
same right of inspection exists whether one is examining only the
title to a single piece of real estate or the titles to a hundred.
The inspection is an assistance to the examination of titles and
obviously Congress intended that these indices should be open to
the inspection of those rightfully making such examinations.
Whether parties have a right to make copies in full of these
indices is not a question before us, for the decree carefully
limits the right of inspection to a transaction or transactions at
the time current or depending. So that all that this plaintiff is
allowed by this decree is an inspection and examination of these
indices, so far as may be necessary to assist in the examination of
a title for which it is then employed.
We see no error in the decree, and it is
Affirmed.