Atlanta Title & Trust Co. v. Tidwell , 173 Ga. 499 ( 1931 )

Atkinson, J.

“Where the question is one of public and not mere private right, and the object of mandamus is to enforce performance of a public duty, the relator need not show that he has any legal or special interest in the result; it being sufficient that he is interested in having the law executed and the duty enforced.” Board of Commissioners of Manchester v. Montgomery, 170 Ga. 361 (2) (153 S. E. 34); Plainfield Consolidated School District v. Cook, 173 Ga. 447 (160 S. E. 617). In the instant case the several questions were as to public, and not mere private right, except the question relating to notations by the Atlanta Title and Trust Company on original instruments lodged with the clerk of the superior court for record, as alleged in paragraph 9 of the petition. That question related to a private right affecting only the owner of the paper lodged for record. The petition did not allege the making of a notation on a paper lodged by the petitioner with the clerk to be recorded.

In paragraph 7 of the petition it is alleged: “Among the duties of the clerk of Eulton superior court are the following: (a) To receive, file, and record deeds, contracts, bills of sale, and other legal instruments required by the law of Georgia to be registered, and for such registration to collect from the person filing said instruments such fees as are- required by law to be paid for such registration, (b) To provide, at the expense of said county, a duplex index-book, wherein shall be indexed the names of grantor and grantee of every instrument in his office, the character of the instrument, date of the instrument, book where recorded, and the date of the record, (c) Under the law as set forth in section 5995, Code of Georgia, it is the duty of the clerk of Eulton. superior court to charge a fee for the examination of any record in the sum of 25 cents when the aid of said clerk is required, (d) Under the law as set forth in section 5995, Code of Georgia, it is the duty of the clerk of Eulton superior court to collect a fee of $1.50 for every examination made of the record and abstract of result made. (e) It is the duty of the clerk of Eulton superior court to receive and collect such fees for the sole use of the County of Eulton, and to-account for and pay the same over to the treasurer of said county. (f) To keep all the books, papers, dockets, and records belonging to their office with care and security, and the papers filed, arranged, numbered, and labeled, so as to be of easy reference.” In the eighteenth paragraph of the petition it is alleged: “Petitioner brings this his petition for the purpose of having this court compel said defendant to perform the duties of his office as set forth in the Code of Georgia.” It was held by this court that: “While mandamus will lie to compel performance of specific acts, where the duty to discharge them is clear, it is not an appropriate remedy to compel a general course of official conduct for a long series of continuous acts to be performed under varying conditions.” Jackson v. Cochran, 134 Ga. 396 (67 S. E. 825, 20 Ann. Cas. 219); Bahnsen v. Young, 159 Ga. 256 (125 S. E. 459). Under application of the principle above stated, the writ of mandamus will not lie to -compel the clerk of the superior court to perform a general course of duties as are above specified.

It is provided in the Civil Code, § 5440: "All.official duties should be faithfully fulfilled; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific legal remedy for the legal rights.” In Patterson v. Taylor, 98 Ga. 646 (25 S. E. 771), it was held that the remedy by mandamus is to "compel performance of specific acts” in instances "where the dirty . . is clear and well defined, and when no element of discretion is involved in the performance.” The remedy of mandamus is essentially to compel performance. Jackson v. Cochran, and Bahnsen v. Young, supra. It is not to prevent specific acts. This court has never held it to be a remedy for such purpose. On the other hand it has been uniformly held that injunction is the remedy where the relief sought is the prevention of acts. It is stated in 38 C. J. 545, § 12: “Mandamus is strictly a legal remedy . . to compel action, while injunction is a remedy to prevent action. . , It is very generally held that mandamus is not the proper remedy where the relator does not ask that defendant be compelled to do an act, but demands on the contrary that he be forbidden to do certain acts.” Among the citations by the author is Southern Leasing Co. v. Williams, 160 N. Y. Supp. 440 (96 Misc. 358). In that case the judge, in a taxpayer’s suit, considered the question whether injunction or mandamus was the appropriate remedy against an officer to prevent permission to private persons to maintain an electric illuminating sign. In announcing and applying the above principle the judge said: “Mandamus against the defendant commissioner will not lie, since the purpose of the proceeding was not to compel him to do something that he ought to do, but to prevent him from doing something that he ought not to do.” The case of State v. Conners ville Natural Gas Co., 163 Ind. 563 (71 N. E. 483), was a suit for mandamus to compel the company “to cease taking up and removing its pipe-line on the relator’s farm, and to replace any part of the line taken up at the commencement of this suit,” etc. It was held that the complaint was insufficient, because mandamus is not the proper remedy to compel such company “to cease taking up and removing the pipes.”

Among the allegations of the petition in the instant case are the following: “(9) The said Atlanta Title & Trust Company, for several years prior to January 1st, 1925, have been permitted and is now permitted by the defendant to examine and abstract all records in the defendant’s office in the following manner: (a) When any person files an instrument required to be recorded and which affects the title to real property with said defendant, the said instrument is first indexed by said clerk and is then by him delivered into the possession of an employee of the Atlanta Title & Trust Company, and is by said employee removed from that portion of the court-house occupied by said clerk to that portion of the courthouse occupied by said Title Company, whose employee first causes a serial number used by said Atlanta Title &-Trust Company to be stamped on said instrument. A full abstract of said instrument is then made by said Title Company. After said abstract has been made, the possession of said instrument is surrendered back to said clerk, who causes said instrument to be recorded in a record-book, and the private serial number of said Title Company is recorded in said book by the clerk of the superior court, and said serial number is made a part of the permanent record of said instrument. After such recording the said Title Company is permitted, before the record is completed on the clerk’s indexes, to obtain from the face of the original instrument the book and page number of its recordation in the clerk’s record, (b)- After Atlanta Title & Trust Company has examined and made an abstract of each instrument filed affecting the title to or creating a lien upon real estate in Fulton County, in the manner above set forth, from the original instrument turned over to it, one of its employees takes its abstract of such instrument and compares such abstract with the 'record of such instrument in the permanent books of records as written-therein by the clerk or his deputy or employee, an inspection of such instrument as so entered in the permanent books of record being made of every instrument filed with the clerk. For this purpose such books of record are by the employees of Atlanta Title & Trust Company removed from their places in the office of the clerk, and are inspected, compared, and cheeked by said Title Company for long periods of time. Three employees of said Title Company give large portions of their time to such inspecting, comparing, and checking of the records contained in such permanent books of records kept by the clerk, as required by law. . . (13) The defendant, in the space set aside to him in his capacity as clerk in Fulton County court-house, is permitting Atlanta Title & Trust Company to occupy a large space for its exclusive use, where said Title Company maintains a private office, which has in it ten or more desks, private lockers, a private telephone, and wherein said Title Company carries on its private business and has in said space and in said clerk’s office twelve or more employees who have complete access to all offices in the defendant’s office. The employees of said Title Company are given the combination of the vault by which the record-room is locked, and have keys to the clerk’s offices, and are permitted to enter said record-room and offices at any and all hours of the day and night. . . (15) By reason of the facts set forth above, the said Title Company has been permitted to use the public property of Fulton County of the rental value of $125.00 per month since January 1st, 1925, without paying anything to said county for its use. (16) The defendant, in his capacity as clerk as aforesaid, and his predecessors in office, has permitted and is illegally permitting said Title Company, a private corporation, to occupy said space in said court-' house, in that neither defendant nor any one else has right to permit any private individual or corporation to occupy space in said courthouse.” It is plainly manifest that these several paragraphs relate to practices of the clerk of the superior court, which the petition seeks to prevent. Prevention of such practices is essentially injunctive in character; and mandamus, the office of which is to compel specific acts, is not an appropriate remedy.

In so far as relates to the matters alleged in paragraph's 9, 13, 15, and 16 of the petition (which need not again be set forth), the decision in this case may be left as controlled by the ruling in the preceding division; but if mandamus would generally lie to prevent commission of specific acts, alleged contemplated acts that would not injure the complaining petitioner would not furnish the petitioner ground of complaint. The practice of allowing the Atlanta Title and Trust Company to stamp a private serial number on original papers filed with the clerk for record, as alleged in paragraph 9(a) of the petition, affects only the owner of the paper. If the owner would suffer substantial injury and might have mandamus in lieu of injunction to prevent such injury, the plaintiff in the instant case, suing as a citizen, taxpayer, and member of the bar, and not alleging the making of a serial number on his private paper, would not allege a cause of action for such relief.

If under any circumstances mandamus would be an available remedy to prevent the clerk of the superior court from permitting examinations of documents filed for record, and of his records, and making abstracts therefrom, there is no ground for such relief in the instant case, because the clerk has authority, in proper administration of his office, to permit the making of such examinations, and abstracts. The examinations and abstracts which are complained of in this case relate to original documents on file for record, and records made by the clerk of titles and liens on property. The records in the clerk’s office relating to these matters result from statutes making it the duty of the clerk to keep books and record therein deeds, mortgages, and other instruments as prescribed by the statutes. The records so made are essentially public, intended to charge constructive notice of their contents to the general public, and correspondingly to afford opportunity to the general public to learn the facts which such records disclose. This may also be said of original documents prior to actual record, which are filed in the office of the clerk of the superior court to be recorded, because as against the interest of third parties acting in good faith and without notice, who have acquired a lien or transfer binding the stale property, they take effect from the time they are filed for record in the clerk’s office. Civil Code, § 3320. It is not stated in any statute that the clerk shall not permit examinations and abstracts as above indicated to be made by any member of the general public, or that he shall not permit such examinations and abstracts to be made by a “private corporation organized for pecuniary gain and engaged in the business of examining titles, abstracting titles, and insuring titles to real property.” The public records are made for the benefit and protection of such corporations as well as for any other person or member of the general public. It would require a new statute to deny them such benefits and protection. It is declared in the Civil Code, § 5995: “The clerks of the superior courts of this State shall be entitled to charge and collect the following fees for official duties performed by them, to wit: . . For inspection of books, when their aid is required, .25. . . For examination of record and abstract of result, 1.50.” The first of these provisions relates to inspection of the books by a member of the public who requires the aid of the clerk in making the .inspection, while the second relates to examination of the records and making abstract of the result whgre the clerk renders the entire service. These do not deny the right o£ individual members of the public to make examinations and abstracts of' the results of such examinations, but only impose charges or fees for services which the clerk may render in making such examinations and abstracts. In the Civil Code, § 14, it is declared: “All books kept by any public officer under the laws of this State shall be subject to the inspection of all the citizens of this State, within office hours, every day except Sundays and holidays.” This law does not specifically name the clerk of the superior court, but applies to him as a public officer and the books in his office. It does not exclude corporations operating for private gain, as referred to above, from the benefits and protection of the recording-acts, but extends to “all the citizens of this State.” It does not declare that the clerk shall have a discretion to deny the right of inspection, but makes it mandatory that he shall afford such right to all applying therefor within his office hours, except Sundays and holidays. It manifests a legislative policy to extend the benefits and protection of the recording acts to the public, rather than take them away. This seems to be the only limit upon the discretion of the clerk as to how he shall administer his office in regard to examinations of records, and it favors the public. So when the clerk in the exercise of his discretion permits the Atlanta Title and Trust Company to examine the original documents filed in his office for record, and his books of record, and to make abstracts thereof, as alleged in the petition, he acts within his authority. The foregoing principle was invoked and applied in the case of Buck v. Collins, 51 Ga. 391 (21 Am. R. 236), which was followed in the case of Land Title Warranty &c. Co. v. Tanner, 99 Ga. 470 (27 S. E. 727), but in each of the cases a different result was reached, based on the difference in the facts of those cases and the instant case, the effort in those cases being to compel the clerk, against his will, to grant the privilege of examining and abstracting his records without the payment of the prescribed fees, while in the instant case the clerk has exercised his discretion in granting the privileges, and the suit is brought to prevent him from doing so. In Bucle v. Collins, supra, the opinion pronounces views that do not accord with what has been said above; but in so far as they differ they are not controlling as a precedent, because the decision could be no broader than its facts, and the facts were different from the instant case, as pointed out above. Since the adoption of the Code of 1910, the act approved August 13, 1924 (Ga. L. 1924, p. 87), has been passed, placing the clerk of the superior court of Fulton County on a salary, and requiring the fees that under prior law were payable to the clerk to be paid into the county treasury; but this act did not affect the discretion of the clerk as dealt with above.

The fees of the clerk are expressly provided for by law. There are no fees except those that are so provided. As stated in the preceding division, the fee of $1.50, prescribed for making examination of records and abstract of the result, refers to such examinations and abstracts as are made by the clerk. There is no provision for a fee where a member of the public makes the examination and abstract without the aid of the clerk.

If mandamus would lie to prevent the clerk from permitting the Atlanta Title and Trust Company to occupy space and do the other things as alleged in paragraphs 13, 15, and 16 of the petition, which need not be again repeated, the allegations do not show ground for complaint. Ail those things relate to matters of convenience and expediency in the conduct of his office by the clerk.

There is no provision in the constitution or in the statutes which expressly denies authority of the clerk, in the administration of his office, to do any of the several things above referred to as being within his discretion. The constitution declares that “The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties.” Civil Code, § 6548. In Dyer v. Martin, 132 Ga. 445, 447 (64 S. E. 475), it was said: “When the administration of county affairs in a particular county is lodged with commissioners, the power over county matters usually exercised by the ordinary devolves upon them, and they may discharge such functions, with reference to county matters as are conferred on them by the act of their creation, which theretofore have been performed by the ordinary. Town of Decatur v. DeKalb County, 130 Ga. 483 [61 S. E. 23].” It is declared in the Civil Code, § 387: “Whenever it becomes necessary to build or repair any court-house, . . in any county in this State, the officer having charge of the roads and revenues and public buildings of such county shall cause the same to be built or repaired by letting out the contract therefor to the lowest bidder, at public outcry, before the court-house door, after having advertised the letting of said contract 'as hereinafter provided.” In § 388 it is declared that notice of the contract shall be published as therein specified, and that the “notice and advertisement shall embrace such details and specifications as will enable the public to know the extent and character of the work to be done, and the terms and time of payment.” By § 396 it is provided: “The ordinary has the control of all property belonging to the county.” And by § 400: “It is the duty of the ordinaries to erect or repair, when necessary, their respective court-houses, . ■ . to furnish each with all the furniture necessary for the different rooms,” and “offices.” It appears from the foregoing that authority over planning, constructing, and equipping court-houses is imposed on the ordinaries, except in those counties where authority over county matters has been transferred to county commissioners, as provided in the constitution. It also appears that there is no attempt to specify in detail how the authority shall be exercised, or any particular plans for the court-house or of what its equipment shall consist. All those are left to the sound discretion of the officers in whom the authority is vested. That discretion is very broad, and must be exercised with the view of serving the public interest and convenience in relation to the uses for which court-houses are to be employed. It has generally been held that county administrative officers in charge of county affairs have a broad discretion, “and the reviewing power of the judge of the superior court should be exercised with caution,.and no interference had unless it be manifest that the county authorities are abusing the discretion with' which they are vested.” Anderson v. Newton, 123 Ga. 512 (3) (51 S. E. 508); Gaines v. Dyer, 128 Ga. 585 (58 S. E. 175); Dyer v. Martin, supra. In the exercise of their discretion in building and equipping the court-house: “ Such ordinaries shall designate the rooms in the court-house to be occupied by each of the county officers, and enter the same on their minutes, which they may change from time to time as convenience may require.” Civil Code, § 401.

The act approved December 3, 1880 (Ga. D. 1880-81, p. 508), establishing the Board of Commissioners of Eulton County, conferred exclusive jurisdiction upon the board of commissioners “in directing and controlling all the property of the county, as they may deem expedient, according to law.” The amendatory act of September 29, 1881 (Ga. D. 1880-81, p. 546), enlarged the power of the board of commissioners so as to extend ‘’“’over all special acts heretofore passed, and of force, relative to county matters applicable to Fulton County.” Dnder these laws, the clerk of the superior court being one of the county officers, it is the duty of the commissioners of Fulton County to provide “ rooms in the courthouse to be occupied by” the clerk. No limitations or restrictions are expressed as to the number and character or plan of the rooms or their equipment to be supplied to the clerk. Relatively to these matters, the county commissioners in the exercise of their broad discretion will make provision as will serve the public interest and convenience. The clerk shall use the space and equipment for all the purposes necessary to proper administration of his office. No limitations or restrictions are expressed stating how he shall use the space or particularly what he shall do to carry out these purposes. These are matters that must be met by the clerk, who has given bond, under various and varying conditions as they may exist or shall arise in the practical administration of his office, and will greatly depend upon the character and amount of business coming into the office, the amount and character of work necessary to be performed, and the interest and convenience of the public, who are to be served in an orderly manner. As to such matters the clerk necessarily .has a broad discretion; one that is commensurate with the objects to be attained. A partial list of the duties of the clerk of the superior court is set forth in the Civil Code, §§ 4891, 4901 (8). Some of these are specific, and others in general terms refer to duties elsewhere stated in the Code. The general character and magnitude of. these are indicated in § 5995, prescribing fees which' the clerks of the superior courts are authorized to charge. One of the most important features of the office of the clerk of the superior court of Fulton County, due to its large population, commercial standing, and volume of transactions in real estate, is provision for examinations of records of titles in his office. How the clerk shall afford this right of examination becomes a practical question which the legislature has not undertaken to control. It is essentially a matter left to his discretion. In affording this opportunity to one he necessarily allows the use of space in his quarters. He may reasonably allow the temporary use of a table and a chair, thus involving the exclusive use of space while the person is so engaged. Or he may temporarily, or subject to his will, allow a number of persons such use of space at the same time. Or he may so allow one person such space where his examination of titles involves many titles or transactions. In all such instances those using the space have only a privilege, and will comply with all reasonable rules and requirements with reference thereto which the clerk shall impose. 1 R. C. L. 97, 98, § 9; Shelby County v. Memphis Abstract Co., 140 Tenn. 74 (203 S. W. 339, L. R. A. 1918E, 539). In view of what has been said, the allegations as to the act of the clerk in allocating the space to the Atlanta Title and Trust Company do not show abuse of discretion or absence of a right to make such allocations of space.

In paragraphs 11 and 12 of the petition it is alleged: “Since the year 1925 said Atlanta Title & Trust Company has abstracted, in the manner hereinbefore set forth, approximately 312,000 legal instruments required to be recorded, which affect the titles to real estate in Fulton County, Georgia, for which said Title Company should have paid to the clerk of Fulton superior court $78,000 or more. . . Defendant and his predecessors in office have failed and refused to collect said fees and pay the same into the treasury of Fulton County, Georgia, as required by law.” The language, “in the manner hereinbefore set forth,” refers to the allegations in paragraph 9(a) of the petition. An examination of those allegations will disclose that they do not allege that the Atlanta Title and Trust Company examined the records with the assistance of the clerk, for which a fee of is prescribed, or that the clerk made any examination of the records and an abstract of the result, for which a fee of $1.50 is prescribed. In these circumstances there is no ground to support the allegation .in paragraph 11 that the Title Company should have paid to the clerk of the Fulton superior court “$78,000 or more.” In paragraph 15 it is alleged that the Title Company should have paid to the County of Fulton $125.00 per month since January 1, 1925, as rental value of the space which that company had been permitted to use. As to this charge no authority is given to the clerk for making the charge for rent of space in his office. It was his duty to treat the Atlanta Title and Trust Company as he would any other company or individual under similar circumstances. In all instances as indicated above, it is a part of the administrative duty of his office to afford to all members of the public such conveniences as the circumstances may require for making examinations and abstracts of the records in his office, and no provision is made for a separate charge for such conveniences. There is no allegation' that the clerk has failed to provide similar conveniences to those extended to the Atlanta Title and Trust Company to other companies or individuals, or that any company or person has been inconvenienced or injured by the privileges extended to the Atlanta Title and Trust Company. The allegations fail to show any ground for making the alleged charge for fees or rent, or for ouster of the Atlanta Title and Trust Company from the office of the clerk. If the allegations were sufficient for any such purpose and it was necessary to institute a suit, the right of action therefor yrould be in the commissioners of Fulton County, and not in the clerk of the superior court.

It follows from what has been said that the judge erred in overruling the general demurrer to the petition.

Judgment reversed.

All the Justices concur, except Russell, G. J., and Hines, J., who dissent.