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law. There was a judgment of conviction not prejudicial to the defendant, and that below from which he has appealed in error. under the act of 1911 (Laws 1911, c. 32), [1] The indictment charged an unlawful there should be no reversal of the case.

We act committed in the month of September. cannot agree to this contention. The error Evidence introduced by the state tended to committed immediately touched constitutionshow the commission of three such acts, one al rights of the defendant, and he is therein June, one in September, and one in Decem- fore entitled to a new trial. ber. Proof as to these other acts was compe- Reversed and remanded. tent under Sykes v. State, 112 Tenn. 572, 82 S. W. 185, 105 Am. St. Rep. 972. [2, 3] After all the evidence was in and

(140 Tenn. 74) the opening argument had been made for the

SHELBY COUNTY V. MEMPHIS AB

STRACT CO. state, counsel for the defendant below moved that the state be required to elect for (Supreme Court of Tennessee. May 18, 1918.) which of said acts it would seek a conviction. 1. RECORDS Om 15 - RIGHT TO SEARCH - ABThe trial judge overruled this motion for

STRACT COMPANIES.

Agents and employés of an abstract company the reason, as he said, that it came too late. are entitled to examine and copy any records in We think this was error.

the office of a register of deeds, subject only to A defendant charged with a particular of- such reasonable regulations as that officer may

prescribe. fense of this character against whom other

2. COUNTIES 107 INTRUDERS IN COURTsuch offenses are proved is entitled to have

HOUSE-POWER AND DUTIES OF SHERIFF. the state make an election and advise him If agents or employés of an abstract comupon which offense it will seek a conviction. pany do not comply with reasonable regulations Jamison v. State, 117 Tenn. 58, 94 S. W. 675; prescribed by the register of deeds in whose ofHolt v. State, 107 Tenn. 539, 64 S. W. 473.

fice they are working, they can be excluded by

the sheriff, under Thomp. Shan. Code, $ 505, The reasons given in our cases for requir- making the sheriff custodian of the courthouse ing an election by the state are that the issue in the absence of appointment of some other permay be individualized in the event a second son for the purpose, and giving him power to prosecution is brought against the defend- prevent trespassing and to exclude intruders.

3. COUNTIES Om 106-ABSTRACT COMPANIESant; that the jury may intelligently con

OCCUPYING SPACE IN OFFICE/RENTAL. sider and make a lawful finding upon some If a register of deeds is content to have emone of the charges against the defendant; ployés of an abstract company work in his office and that the defendant may be apprised as county court and other authorities have no pow

without payment of rent for space occupied, the to which charge the state will press against er to require payment. him and conduct his defense accordingly.

4. COUNTIES 47--COUNTY COURT-POWERS. The defendant may demand this election The county court has only such powers as at the close of the state's evidence in chief. are conferred by statute. He may demand it before his counsel ad- 5. COUNTIES Ow110—COURTHOUSE-RENTING

SPACE FOR PRIVATE PURPOSES. dresses the jury or he may demand the elec

In the absence of statutory authority, no tion before the case is submitted to the jury. part of the rooms in current use by county

So far as the jury is concerned, it is suffi- officers in the courthouse can be rented for pricient if the election is made before they take vate purposes, and hence part of the office of the the case.

They will then know for which register of deeds cannot be rented or leased to

They will then know for which an abstract company as a place where its emoffense the state seeks a conviction, and will ployés may work while copying records. all vote upon guilt or innocence of that par

Certiorari to Court of Civil Appeals. ticular offense.

Bill by the County of Shelby against the The defendant is entitled to require the Memphis Abstract Company. Decree for deelection before he introduces any proof so fendant, and plaintiff brings certiorari. that he can meet by his proof the evidence

Writ denied. upon which the state relies. And as said in Holt v. State, supra, since defendant's coun

R. L. Bartels, of Memphis, for appellant. sel is put to inconvenience if he does not J. S. Allen, of Memphis, for appellee. know prior to his argument which charge the state will urge, counsel is entitled to this

WILLIAMS, J. The bill of complaint was information before he speaks. The defend- filed by the county of Shelby to recover of ant does not waive his right to require an the defendant company a sum claimed to be election by delaying his demand up to the due for the use and occupation by the latter time the case goes to the jury. The state of working space in the registry of deeds of can make a voluntary election as soon as its that county.

, thus be relieved of any embarrassment and peals have denied the county relief, and it enabled to concentrate his efforts.

here seeks a review of the decree of the We accordingly think that defendant's latter court. counsel in this case made the demand for an election in due season and the trial judge poration organized under the laws of this improperly denied his motion.

state for the purpose indicated by its name, [4] It is urged here that this error was, and it pays an occupation tax to the state of

proof is in, and the prosecuting attorney will The chancellor and the Court of Civil Ap

an The Memphis Abstract Company is a cor

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Tennessee for the privilege of doing an ab- The theory of the county is that the destract business. It maintains its general fendant has no legal right to so occupy space and regular office in the business center of in the registry for the preparation of data the city of Memphis where all of its records for abstracts except where the abstracts are kept.

are to serve a present demand therefor; The defendant company keeps in the office further, that the preparation of abstract of the register of deeds two of its employés books for prospective uses is not legitimate, engaged in the taking from the records of and being for the profit of a private corporanotes for the preparation of abstracts to tion, the latter must pay the county a reameet current demands, as well as data for a sonable sum for the facilities afforded. set of abstract books from which abstracts According to the rules of the common law may be made for patrons in the future. as administered in England there was no These employés occupy two desks and about general or public right of inspection of pubone-sixteenth of the floor space of one of the lic records, that right being confined to those two rooms of the registry; they usually are who had a personal interest in the property there in service from 8 a. m. to 5 p. m, of affected by the records. The greater portion each business day; during dark days or of the real property in England was held by hours they avail themselves of the county's the nobility and the aristocracy in large lighting system. The abstract company has estates, and the system that prevailed looked installed a telephone which connects the reg- to the descent of realty to the oldest son and istry of deeds with its general office by a other heirs, often by entail, and this resulted private wire, but this was done under the in few transfers. direction of a county commissioner with the In America different ideals have prevailed, consent of the register of deeds. The deputy and these brought, as a necessary conseregister testifies that this private telephone quence, a decided change. Small holdings in line is a great convenience to the public and fee have resulted from the American concept to the register of deeds, due to the liberal and principle of equality as between heirs, accommodations afforded by the company in and activity of sales and freedom of transfer procuring over the line from the city office have been encouraged by the policy of our of the company of references to the records laws. where the registry index system may fail The earlier common-law decisions are, to give information. For such use no charge therefore, not applicable to the changed conis made by the abstract company. The same ditions, and should have little influence in witness shows that employés of the company the molding of precedents respecting the otherwise are of considerable aid to the reg- right to inspect and make use of registries ister in checking up errors made by his of titles. If subsequent purchasers and inclerical force.

cumbrancers are to be charged with notice The abstract company does not claim or of all that appears of record affecting the make as of right exclusive use of the table particular real estate, it is but sheer jusor chairs; the space occupied by its employ- tice that the law, should be liberalized so as és is not in any way partitioned or divided not only to extend the right of inspection from the balance of the room. These em-to members of the public who may be interployés in the above and all other 'respects ested in the title, but so as to expand the have conformed to the demands and requests opportunity for notice to all who may be of the register in the use made of the office, injured should they act or deal without noequipment, and records.

tice. Sound policy would give to the conThe county Court of Shelby county con- tents of the registries of deeds, mortgages, ceived that the defendant company should and liens the widest possible publicity, and pay to it a rental for the use of the space, in the form that is the most reliable and retables, chairs, and facilities, and by resolu- assuring. Whatever adds to the vendibility tion ordered the bringing of the present suit, of real property at its full value augments after compliance with a demand that the de- the wealth of the state. fendant become, and pay rent as, lessee was While the title examiner or abstracter has refused.

followed his profession ever since a system It is made clearly to appear that the pres- of registration was adopted, there has come ence and work of the two employés of the ab- in modern times the creation and developstract company do not interfere with the ment of the abstract company, which in turn work of the register or with the public in has paved the way for and made possible its use of the registry. Eight other desks the title guaranty company. The constantly are maintained in the same room where increasing complication of land titles, espethese employés work, and they are generally cially in populous centers, has made each of unoccupied. It is shown that the register these not only a utility, but a necessity, as of deeds makes no objection, but on the con- aids in the ascertainment and assurance of trary is pleased to have the force of the de- rights based upon titles to realty. fendant company carry forward its work as It is interesting to note the persistence of described, because of the indicated incidental the influence of early common-law decisions

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to the rights of abstracters and abstract | guage, we are strongly inclined to think that companies to inspect and make use of public the original statute gave to every person a right records in order that they may perform their to inspect and examine, at all reasonable

times, legitimate and necessary service to the pub- office of the register of deeds, whether he had lic. Several courts in announcing the rule any interest in them or not, subject, of course, applicable in such cases have conformed as to such reasonable rules as might be necessary nearly as might be to the common-law prin- it was done in such a way, as not to interfere

to secure the safety of the records, and provided ciple of restrictive inspection State ex rel. with the proper performance of the official duv. Grimes, 29 Nev. 50, 84 Pac. 1061, 5 L, R. ties of the register of deeds.

* These A. (N. S.) 545, 124 Am. St. Rep. 883, and cases great public convenience, because for well-known

, cited therein and in the notes.

reasons they are usually the only place where The doctrine of this line of cases is that abstracts of title can be convenientỉy obtained. the right of an abstract company to an in- It is essential to the convenient and proper spection of the records and taking data in it provide themselves with these tract in

transaction of the business that those engaging therefrom exists only as to current or pend- dexes. This can only be done by examination ing transactions in which the company is of the records in the register's office, and making authorized or employed to make search or do this had been usually exercised and conceded

copies or abstracts of the same. The right to furnish particular abstracts; and the priv- do this had been usually exercised and conceded

. ilege of copying from the records for the right had been denied, and disputes and even purpose of compiling abstract books in or- litigation over the matter had arisen between

the registers and the abstract men. der that the company may be able to supply The original statute gave to every one demand

* * * for profit abstracts to all persons who may in ing it the right to 'inspect these records."" the future desire them is denied.

These decisions have been criticized, justly See, also, Clay v. Ballard, 87 Va. 787, 13 as we think, by other courts.

S. E. 262; Burton v. Tuite, 78 Mich. 363, 44 In Hanson v. Eichstaedt, 69 Wis. 539, 35 N. W. 282, 7 L. R. A. 73; State v. McMilN. W. 31, a suit similar to the present ac- lan, 49 Fla. 243, 38 South. 666, 6 Ann. Cas. tion, except that it was instituted by the 537. register, it was said:

Warville in his work on Abstracts, page Complainant "contends that the right to in- 71, on a review of the conflicting authorities spect and copy public records is confined to expresses the view that free and unhindered those having some interest in the particular rec- inspection of public records should be accordord sought to be * * * copied, and does not extend to one seeking to do so for mere curiosity, ed abstracters as a matter of public interor for his own private gain. Such seems to be est, if not as a matter of private right. substantially the rule at common law.”

[1] The true right of an abstract company After reviewing authorities construing in this regard is not an unrestricted one. Its similar statutes of various states, the court agents and employés must exercise the privisaid:

lege by complying with such reasonable reg"In so far as the Alabama and Michigan ulations as the law and the register, as custocourts may have indicated thąt a statute giving dian of the records, may prescribe, "such as a certain enumerated rights respecting records to ‘any person' is a mere confirmation of a rule at limitation on the number of employés that an common law, giving similar rights to only a par- abstracter may put at work on the records, at ticular class of persons, we must decline to fol- one time, decent and orderly behavior of such low them. On the contrary, we must hold that

, our statute in question extends such right of employés,” etc. 1 R. C. L. p. 98, and cases examination, etc., to 'any person' applying to cited. such custodian of public records in a proper [2] By section 505 of Thomp. Shan. Code manner, subject, however, to the payment of the sheriff of the county is given charge of fees when allowed, and such reasonable supervision and control by such officer as are essential the courthouse, unless some other person is to the convenient performance of his duties, and specially appointed by the court for the purthe current business of the public."

pose, and he is given power to prevent tresIn State of Minnesota ex rel. Cole v. passing and to exclude intruders. The counRachac, 37 Minn. 373, 35 N. W. 7, the relator ty register is custodian of the records in his was an abstracter, and the defendant was office, and in event the employés of defendant the register. The court wrote:

company should prove to be intruders by re“Counsel for appellant [the register] plants fusing to obey reasonable rules or demands himself squarely upon the broad proposition that respondents are not entitled to any such of the register, or should unduly interfere privileges, beca ase they have no interest in the with other members of the public in their use records which they desire to examine. His con- of the registry; the sheriff would have autention may be briefly stated thus: (1) At com- thority to exclude them. mon law no person had a right to copy or examine the records in a public office, in which he

[3] The decisions above discussed, it is to had no interest, present or prospective. (2) be observed, involved the claim of right of That the statute does not extend this right to registers to make charges against abstracters others, but merely regulates its exercise by those who already possess it at common law. Conced- or abstract companies. In the instant case, ing that the rule at common law was as stated, this feature is not presented. On the contrathe question is, how far has this been changed ry, the county register is content with the by General Statutes of 1878,

as amended by laws of 1885 * *

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working place and methods of the abstract "In view of its very strong and general lan- | company, and satisfied with the aid he re

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ceives from data collected by it to which he / 2. TELEGRAPHS AND TELEPHONES 78(1)—
may resort for needed information.

RATES AND SERVICE-PENALTIES.
This being true, we think it manifest that late the service or rates of telephone companies,

If a county court is without power to regu-
the other county authorities, here asserting it is equally without power to impose a penalty
right of control, have no power to require the for bad service or extortionate rates.
payment of a rental by the abstract company

Appeal from Chancery Court, Shelby Counfor the use of office space or facilities.

ty; F. H. Heiskell, Chancellor. [4] The powers intrusted to county courts emanate from the Legislature alone; hence land Telephone & Telegraph Company. Bill

Bill by Shelby County against the Cumber. the measure and limit of those powers are to dismissed, and plaintiff appeals. Affirmed. be found in the statutes, and when a power claimed for them is not conferred by some

R. Lee Bartels, of Memphis, for appellant. statute it must be held not to exist. Railway Hunt Chipley, of Atlanta, Ga., Wright, Miles, Co. v. Wilson County, 89 Tenn. 597, 15 S. w. Waring & Walker, of Memphis, and Thomp446.

son, Williams & Thompson, of Chattanooga [5] We fail to find any statutory power (W. H. Biggs, of Jackson, of counsel), for apgranted to the quarterly county court or to pellee. the county commissioners of Shelby county to lease any part of the space in the offices des

GREEN, J. The bill in this case was filed ignated for the use of county officials, and by Shelby county to collect from the Cumberwe think it is clear that no such authority land Telephone & Telegraph Company a pole exists. The power, if existent, on exercise rental of $1 per annum each for all the poles would give the lessee the right to control the of the telephone company placed in the roads space leased to him or it to the exclusion of of Shelby county. The bill, was dismissed by other members of the public, and the leases the chancellor, and the county of Shelby has could be multiplied, resulting in the serious appealed to this court. embarrassment of others whose rights to use

The lines of the telephone company are lothe registry rooms and equipment cannot be cated in Shelby county and it poles there denied.

erected by virtue of chapter 66 of the Acts of In the absence of statutory authority no 1885, granting to such corporations the right part of the rooms in current use as a registry to string their wires and plant polesof deeds and as part of a courthouse may be of the cities and towns of this state, or across

"along and over the public highways and streets leased to be used for a period of months or and under the waters, and over any lands or years for private purposes. County buildings public works belonging to this state, and on and and their equipment are public property held over the lands of private individuals, and upon,

along, and parallel to any of the railroads or by the county, but in trust for the public use. turnpikes of this state, and on and over the 7 R. C. L. p. 948; State v. Hart, 144 Ind. 107, bridges, and trestles or structures of said rail43 N. E. 7, 33 L. R. A. 118, and note; Decatur road; provided, that the ordinary use of such v. De Kalb County, 130 Ga. 488, 61 S. E. 23.

public highways, streets, works,

bridg

es, structures, and turnpikes be not thereby obAny rule other than the one we declare structed * by reason of the occupation would lead to entanglements and abuses of said land, railroads, and turnpikes, by said against which the public should be protected telegraph or telephone corporations.” Section 1. as a matter of public policy. As pointed out In addition to this legislative sanction the by the Court of Civil Appeals, the moment county court of Shelby county, by resolution rent is charged and collected, special privi- passed on July 9, 1883, conferred a similar leges arise, and, too, in a place where equal authority upon, the defendant telephone comprivilege must prevail.

pany in the following language: Content as we are with the judgment of "It is hereby ordered by the county court of that court, the petition for writ of certiorari Shelby county, Tenn., that the Cumberland to review it is denied.

Telephone & Telegraph Company be and is hereby permitted to put up its poles, wires, appurtenances, and appliances on and along any and all of the public roads of the county of

Shelby, in order to operate its telephones and (140 Tenn. 86]

telegraphs along the same, when the said comSHELBY COUNTY v. CUMBERLAND pany shall desire to do so. But in no event and TELEPHONE & TELE

in no manner to interfere with travel on any of GRAPH CO.

the said roads, or to obstruct the same in any

manner, and so as to not interfere with any (Supreme Court of Tennessee. May 18, 1918.) private rights of citizens along the line or

lines.” 1. TELEGRAPHS AND TELEPHONES Eww10(9)-

By a resolution passed July 15, 1907, the POLE RENT.

Conceding that a county can, under the po- county court of Shelby county undertook to lice power, require a telephone company to pay revoke the right of the telephone company to a pole rent to defray expenses of supervision occupy the roads and highways of that counand inspection, an order of the county court making payment necessary only on failure to ty except upon certain conditions appearing comply with certain requirements could not be in the resolution, which resolution will be considered such an exercise of the police power. hereinafter set out.

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By the same resolution of July 15, 1907, the of counsel the county is without authority to Shelby county court undertook to levy a require a removal of the company's poles and charge upon the telephone company of $1 per wires from the roads and highways of Shelby annum for each one of its poles. This suit is county; that it is without power to regulate predicated upon the resolution of the county the rates of the telephone company; and that court of July 15, 1907.

it has no legislative authority to exact any A number of defenses are interposed by the pole rental of the telephone company nor to telephone company and many questions made levy any such tax upon the company for reveby it. The scope of our investigation has nue. been very much limited and this controversy Therefore all that can be claimed for the confined to a narrow compass by concessions county is that it has police power over its of learned counsel for Shelby county.

roads and highways, and in the exercise of On the brief of counsel for Shelby county it that power and in the interest of the public is said:

safety it may demand a pole rental in the "There is no insistence on the part of the nature of a fee for meeting the expense of county that it could compel a removal of the inspection and supervision of the lines of poles from the highways-its only claim is the right to exact compensation for the use of the the telephone company. highways by the poles. Unquestionably the stat- Bearing in mind these conditions, we now ute gave the telephone company a right of way; consider the resolution of the county court but it is the contention of the county that that of Shelby county passed July 15, 1907: is given, subject to the county's right in the exercise of its power to regulate and control its "Be it resolved, that as the right was given roads, to exact compensation for the occupation the Cumberland and Memphis Telephone Comthereof by poles planted therein."

panies to place their poles along the side of the

county, roads, provided they did not interfere It is furthermore conceded on the brief of with the roads, their use, or with the working counsel for the county that the county has no of the same, and as the purpose of this was not right to regulate rates to be charged by the to benefit the telephone companies or of giving

to them free of charge the use of the public telephone company, and it must be conceded roads, but to secure to the rural residents of the that the county has no right to levy any tax county an efficient telephone service at reasonaupon the telephone company except as the ble rates; and whereas the service of the telecounty may be authorized by the Legislature. phone, companies has become exceedingly bad,

and the rates have been increased in many loIt is urged on behalf of the county that the calities, and in some have been placed at an act of 1885 and the resolution of the county amount that prevents the use of the phone, and court of July 9, 1883, merely gave to the tele- especially is so on the part of the Cumberland

Telephone & Telegraph Company, and as it apphone company a license to occupy the roads pears that a great number of the poles of both and highways of Shelby county, and that this companies have been placed among the side license does not preclude the county in the ex- ditches of the turnpikes and roads, thus greatly ercise of its police power from making a the roads; and that the companies fail to con

interfering with the working and managing of charge against the company in the nature of sult the proper county officials as to the locaa pole rental by way of compensation to the tion of their poles, or obeying them when said county for the cost of supervision and inspec- officials direct them where to locate the same: tion of the company's poles and wires.

Now, therefore, be it resolved, that the permis

sion heretofore given the said companies to use The telephone company insists that it has the county roads and turnpikes for their poles fixed or contract rights to occupy the roads and wires is hereby revoked; and that said and highways of Shelby county by reason of companies shall at once remove their poles and the act of the Legislature and the resolution tober term of the court they enter into the fol

wires from the county roads, unless by the Ocof the county court of 1883. It is agreed that lowing agreement with the county of Shelby, it has spent many thousands of dollars in to wit: extending and improving its property in Shel- ditches and traveled parts of the roads and turn

"First. That they remove all poles from the by county upon the faith of said act and said pikes and place them where the county officials resolution. The telephone company, also de- direct. nies that Shelby county has been intrusted

"Second. That they place no new poles until with police power that would authorize it to tions from the county turnpike secretary as to

they have received definite and specific instrucmake any charge of this nature against poles the turnpikes, and from the new road superinof the company.

tendent as to the dirt roads. Without deciding these questions, it may be of the poles or wires in the erection and placing

“Third. That in no way either by the location conceded for the purposes of this case that of the same shall they in any way obstruct the the county would have a right, in the exer- roads or turnpikes, or interfere with the travelcise of its police power, to exact a pole rental ing public; and if, at any time, by accident,

storm, or otherwise, any of their poles, wires, for the purpose of supervision and inspec- or other property obstruct the highway or intertion, and it may be conceded that the tele- fere with its use, that they are at once to remphone company has no rights in the roads edy and remove the same. and highways of Shelby county that would

"Fourth. That they furnish all persons in the

county telephones with proper and adequate exempt it from such a charge; nevertheless, service of the same at not more than $7.50 net the county's suit must fail.

per quarter for residences, payable in advance, This results from the character of the reso- or $3.00 per month, payable monthly; and

$15.00 net per quarter for business phones, or lution upon which this suit is predicated.

$5.50 per month, payable monthly. It is to be remembered that by concessions "Fifth. That when and as long as the above

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