Opinion
No. 30650
Decided November 20, 1946.
Mandamus — Writ to issue commanding performance of act specially enjoined by law — Section 12283, General Code — Probate judge not compelled to permit examination and use of card-index system — Indexes specified by statute maintained by court and available to public — Section 10501-16, General Code — Card-index system not substitute for required statutory indexes — Court rule requiring service to public through court employee, valid — Right of abstracter or title insurer to inspect public record — Subject to reasonable rule and regulation.
IN MANDAMUS.
The relator, the Louisville Title Insurance Company, Inc., has invoked the original jurisdiction of this court for the purpose of obtaining a writ of mandamus to require the respondent, Nelson J. Brewer, Judge of the Court of Probate of Cuyahoga county, Ohio, to permit the relator and its employees to examine and use a certain card index of the court when necessary so to do in the course of the relator's business of examining and insuring titles to real estate.
In its petition the relator alleges that in his official capacity the respondent is required to keep records, dockets and indexes as provided by Sections 10501-15 and 10501-16, General Code; that in December, 1941, the respondent ceased to keep book indexes; that instead the respondent installed a card-index system; that this card index is the only general index of the records of that court; that this index is a public record maintained at public expense but is not available to the public except that information therefrom is furnished by court employees on request; that the relator has made a request to have its own employees examine this index in connection with its examination of real-estate titles but this request has been refused by the respondent; that the court employees, acting under the respondent's instructions, have refused to furnish information to the relator; and that such information is supplied to all other persons, including the relator's competitors.
In his answer the respondent alleges that at all times he has kept and maintained the records, dockets and indexes required by Sections 10501-15 and 10501-16, General Code; that these indexes at all times have been available to the public, including the relator; that in order to facilitate the tremendous volume of court business the respondent installed a card index; that this index is not required by law but is in addition to that specified by the provisions of Sections 10501-15 and 10501-16, General Code; that the card-index system involves the use of a code and can be operated by only such persons as are trained and skilled in the use thereof; that any interference by anyone not so trained and skilled would render impossible the operation of the system; and that the services of the respondent's trained, skilled employees have been available to the public at all times without discrimination and in such manner as not to interfere with the necessary operations, of the court.
The relator has filed a reply denying the defensive allegations contained in the respondent's answer.
The evidence is in the form of depositions offered by each party.
Mr. Watson P. Newton, for relator.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul Danaceau, for respondent.
Is the relator entitled to a writ of mandamus to compel the respondent judge to permit the relator and its employees to examine and use the card index of the court in the course of the relator's business of examining and insuring titles to real estate?
As defined by the provisions of Section 12283, General Code, "Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."
Wherein has the respondent failed or refused to perform an act which the law specially enjoins as a duty resulting from his office of judge of the Court of Probate?
The relator is confronted with two difficulties.
In the first place it is not even contended that the respondent has failed or refused to maintain the indexes specified by the provisions of Section 10501-16, General Code, or that these indexes are not available to the public including the relator. Furthermore, the uncontradicted evidence is affirmatively to the contrary. Hence, there is nothing to indicate that the respondent has failed or refused to perform an act which the law specially enjoins.
The relator's second difficulty arises from the fact that the record is devoid of evidence tending to show that the respondent was guilty of discrimination with respect to the use of the card index. It is conceded that the maintenance of this additional index is not a duty enjoined by law. It is not a substitute for the required statutory indexes, and the respondent is free to discontinue it at any time. But the relator contends that inasmuch as the respondent has seen fit to maintain the additional and unrequired card index, he must make it available for the inspection and use of the relator and its employees. With this view this court finds itself unable to agree. The evidence discloses that for one day an employee of the relator was permitted to try to operate the card-index system. The result was that that employee was in the way of the respondent's employees and interfered with the performance of their duties. The respondent then promulgated a rule requiring that this service should be rendered to the public through the court employees. Since that date this has been done without discrimination, and more than half of all the service performed has been for the relator. If, as contended by the relator, the unrequired card index nevertheless has become a public record, the public use thereof is subject to the limitation that it must not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer charged with custody of the same. 35 Ohio Jurisprudence, 45, Section 41. And, conceding the general rule as to the right of an abstracter or insurer of titles to have access to the office of a clerk or register for the purpose of inspecting or copying the public records, the exercise of such right is, nevertheless, subject to any reasonable rule and regulation which the clerk or register may make with respect to the use and occupancy of his office. 35 Ohio Jurisprudence, 95, Section 108; 80 A. L. R., 777. There is nothing in the record to indicate that the respondent's rule is arbitrary or not reasonably necessary for the efficient conduct of the voluminous business of the court.
Since the evidence discloses no failure or refusal of the respondent to perform an act which the law specially enjoins, the requested writ of mandamus must be denied.
Writ denied.
WEYGANDT, C.J., BELL, TURNER, MATTHIAS and HART, JJ., concur.
ZIMMERMAN, J., not participating.