The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-12-24
THE COUNTY CLERKS BOOKS.
Judge Davis Clear Definition Of the
Right to Examine Them.
TRIUMPH OF THE BAR ASSOCIATION.
Books and Records To Be Open to the III
spectiOn Of All Citizens.

Thus far the committee of the Bar Association
appointed to investigate the mode of doing business
in the County Clerks Office particularly in the mat
ter of exactng fees have been successful in the
posed raid on Mr.. Gumbleton's office records. On
that branch of the subject involving the question Of
the scope of the statute under which the examina-
ton is sought to be made decision given yeser
day by judge Davis. On the merits Of the main
question at issue there is to DO argument before
him in Supreme Court. Chambers, next Thursday.
The leading points in his opinion yesterday are given
below.
PUBLIC RECORD OF FEES
The several statutes, Judge Davis says. and the
act of 1S47 chapter 423 which requires the clerk to
keep the public record of his fees, in par mate
ria, and simply declarations OF an established
policy for the protection Of the public. which tic
Legislature intended should rest upon and be hedged
around by plain injunctons of law and kept i'll vgor
activity by the constantly reiterated charges OF
courts to al grand jnres by general statutes the
keep accounts to make reports to the Secretary Of
the State of all fees charged and received by them.
q II. S., ed 902, POI Laws of 1S47 chap. 47O,
sec 37 But the Clerk Of the city and county Of New
York is specifically required by section chapter 49,
of the Laws Of ls47 above quoted q +. s., 8 ed 92o.
book or books, to be provided for that
purpose" ' "of all fees. perquisitess
and emouments actually received" in his official
capacity by virtue any law of this State and Of all
fees Prerequisites and emouments which such
clerk shall be entitled to demand and receive for any
service rendered in his official capacity, and it is
thereby declared that 'such books shall show when
and for whom such service shall have been performed
its nature and the fees chargeable therefor and shall
ut ali times during Office hours be open to the nspec
ton, without any fee charge therefor, of all per-
sons desiring to examine the same and they shall be
deemed part of the records Of the Office in which
they shall be kept and shall be preserved therein
other works OF record are"
PRIVATE RECORDS AT ALL.
tsIt will be difficult to find language to expregS
more clearly the duty OF the clerk. The book or
books required to be kept public and not private
records They not the property OF the individual
who happens to be clerk but Of the people Of the
city and county, for whose use and benefit he is to
make and keep them their official servant And the
command is imperative that such books shall at all
times during Office hours be open to the inspection,
or ul s s hors u M
that the book is III use. The use is not imperative
at the time the inspection is sought but the right Of
inspection and least OF all is it to say
the book is locked up In the private safe Of the
clerk for that is place in which to keep the pub
lie records of the Office and especially such
are by law, required to be at the time. during office
hours open to the inspection OF all persons desiring
to examine the same
MOTIVES FOR EXAMINATION.
But it is argued that the clerk may refuse inspec-
ton to all persons whose motives he suspects; or,
in other words that the ''an persons mentioned in
the statute only such come with friendly in
tent toward the clerk It is vain to seek for such
idea in the statute ITSELF and it's Interpolation would
leave the imperative injunction OF the law to the
mercy of the clerks suspicious The inspection
would wholly rest in his discretion and thus the OBJ
ject of the statute whether it be to prevent the city
from being defrauded of the amounts payable into
the treasury or to show to the people the value
Of the Office or to afford means by which the
extortion, could easily be defeated. In either
case the clerk has only to say MY discretion
say your object is to get evidence to lay before the
Grand Jury and cause to be indicted. and there
fore the books are not open TO YOU. On such .
ground IL we'll founded, he close all the public
records of his office to all examination. The
is that the Court cannot presume that the books
tain any evidence Of crime. On the contrary. the
presumption is that they contain only what the law
requires, record Of fees charged received "by
virtue OF law But il they do contain entries OF UNI
lawful fees they nevertheless official and public
records and not private or personal memoranda and
cannot be closed against any inspection to which the
mens of the statute and the policy OF the laws
not be defeated by public officials who commit
offences and then close the books which record them
through latent fears of detection.
Again, it is objected that the REALTORS came not i'll
their private capacity, but a committee repre-
senting the Bar Association. Even such repre-
sentaves they do not to be persons and to fall
within the words al persons, used in the statute
They did not claim any authority to make the exam
nation desired from tho Bar Association. They
claimed all the authority under the statute and read
the to the Clerk evidence of their right. Il
OF consequence who caused or deputed them
to come. They were there asking. in respectful
and proper manner, to exercise right which the
statute conferred upon all persons and Of which the
fact of their appointment as committee OF the Bar
or any other body of citizens did not divest them.
THE EXAMINATION OPEN TO ALL.
But there is no law or principle OF public policy
setting on foot investigation OF any alleged of
fences against the law. On the contrary IL is
mendable, both in morals and lay, that common
efforts should be made in all legitimate modes to pre-
serve the laws from violation and 1t that all
officials whose duty it is to administer execute the
laws shall at least respect and obey them. There Is
nothing in the suggestion that it does not appear
that the books were provided lat the expense OF the
sumed If it is Important but it is not important for
the OF the books is legitimate charge to the city,
1t not disputed that the Clerk keeps and had when
the REALTORS called upon him, such books the stat
ute requires and the right to inspect them does not
depend whether the city has paid for their pur-
chase. The only remaining question is whether
mandamus issue in such q The right Of the
realtors to inspect the books is plainly given by stat
ute. 1t is one common to oil citizens. The law
give remedy In its place. except where there III
pecuniary, personal interest III making the exami-
nation The statute does not require the exist
Of such interest. 1t makes the right
to all persons because by doing the
policy of the. law to restrain public SER
wants from abusing their trusts by the
be preserved For courts to refuse the writ of man.
damus to compel obedience to the law in such
would be TO ignore that policy and treat the matter
affecting mere private interests All officers
have power protect themselves against the tempta
ton to commit extortion other crimes in Office by
resignation. That right IL fully secured to them by
statute If they be not willing to discharge the duties
of the Office for the compensation given by law.
But the people have no power to recall the trust
except for offences actually committed, and they
should not be restricted in using all the means Of
detection and prevention which the laws and statutes
leave in their hands. The is within tho we'll
settled rule clearly announced by Judge Fullerton
In The People Halsey fj7 N. Y, BAL AL the OBJ
jecons OF the respondent are therefore overruleds
and he IL required to make further answer upon the
merits at the opening Of the Thursday. the
Goth inst.