Scribner v. Chase

McAllister, J. The transactions in question took place, and the bill in this case was brought, before the statutes concerning recorders and the inspection of records in the office of the former, approved respectively May 31 and June 16, 1887, were passed. (Sess. Laws, 1887, p. 256, 258.) Consequently, the provisions of those acts can have no application to this case,, and it must be decided upon the law as it stood at the time of bringing the suit. The question therefore is, were the complainants entitled, as a matter of legal right, to have access to the original instruments left in the custody of the recorder for the purpose of having them recorded, and to books of records in the office, and to handle, use and make abstracts of them, for the purposes of their business, without interference or hindrance on the part of the recorder of deeds? There is nothing in the statute relative to recdrders of deeds, as it then existed, which gives the least color to any such claim. By such statute, the oath for the faithful discharge of his duties, Sec. 22, requires him to give a bond with sufficient security in the penal sum of §20,000, and prescribes the condition of that bond, which shall be “ for the faithful discharge of his duties, and to deliver up all papers, books, records and other things appertaining to his office, whole, safe and undefaeed, when lawfully required so to do.” 2 Starr & C. Ill. Stat. p. 1984. That provision is a plain, indisputable, legislative recognition of the common law rules applicable to such officer and his duties, to the effect, that by virtue of his office he becomes the legal custodian of all papers, books and records appertaining to his office, and is responsible for their preservation from injury, alteration, mutilation, defacement or safekeeping. Mow, can it be maintained that the law is so unreasonable as to charge a public officer with such duties and responsibilities, but deny to him the power, control and discretion, as to the subject-matter, necessary to his protection? The question is not new in the courts of this country. It has arisen and been decided in various courts of the highest respectability, against the claim set up here, in cases that can not be distinguished from this case with regard to the reasons and principles governing tlicir decision. Webber v. Townly, 43 Mich. 534; Bean v. People, 7 Col. 200; Buck v.Collins, 51 Ga. 391; Cormack v. Wolcott, Register, 37 Kan. 391. The effect of the decree in this case is to divest the recorder of the power conferred upon him by the law, of exercising a reasonable discretion in the care, management and government of his office, and the preservation of original deeds, hooks and records, confided to his custody. The decree is, for that reason, unauthorized by law, and manifestly erroneous. The Title Guarantee Trust Co. v. Reilly, Register, 38 Hun, 429; The German-American Loan & Trust Co. v. Richards, Register, 99 N. Y. 620. The resolution of the board of county commissioners, embodied in the notice given by the recorder to complainants, and set out in our statement of the case, was, in our opinion, unauthorized and void. And it seems to us that the only-decree to which the complainants were entitled, would have been a decree declaring such resolution void and restraining defendants from attempting to carry it into effect. The decree of the court below will be reversed and the cause remanded, for further proceedings not inconsistent with this opinion. Reversed and remanded.