We 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. act committed in the month of September. Evidence introduced by the state tended to show the commission of three such acts, one in June, one in September, and one in December. Proof as to these other acts was competent 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 the opening argument had been made for the state, counsel for the defendant below moved that the state be required to elect for which of said acts it would seek a conviction. The trial judge overruled this motion for the reason, as he said, that it came too late. We think this was error. A defendant charged with a particular of fense of this character against whom other such offenses are proved is entitled to have the state make an election and advise him upon which offense it will seek a conviction. Jamison v. State, 117 Tenn. 58, 94 S. W. 675; Holt v. State, 107 Tenn. 539, 64 S. W. 473. The reasons given in our cases for requiring an election by the state are that the issue may be individualized in the event a second prosecution is brought against the defendant; that the jury may intelligently consider and make a lawful finding upon some one of the charges against the defendant: and that the defendant may be apprised as to which charge the state will press against him and conduct his defense accordingly. The defendant may demand this election at the close of the state's evidence in chief. He may demand it before his counsel addresses the jury or he may demand the election before the case is submitted to the jury. So far as the jury is concerned, it is sufficient if the election is made before they take the case. They will then know for which They will then know for which offense the state seeks a conviction, and will all vote upon guilt or innocence of that particular offense. The defendant is entitled to require the election before he introduces any proof so that he can meet by his proof the evidence upon which the state relies. And as said in Holt v. State, supra, since defendant's counsel is put to inconvenience if he does not know prior to his argument which charge the state will urge, counsel is entitled to this information before he speaks. The defendant does not waive his right to require an election by delaying his demand up to the time the case goes to the jury. The state can make a voluntary election as soon as its proof is in, and the prosecuting attorney will thus be relieved of any embarrassment and enabled to concentrate his efforts. We accordingly think that defendant's counsel in this case made the demand for an election in due season and the trial judge improperly denied his motion. cannot agree to this contention. The error committed immediately touched constitutional rights of the defendant, and he is therefore entitled to a new trial. Reversed and remanded. (140 Tenn. 74) 2. COUNTIES 107 INTRUDERS IN COURTHOUSE-POWER AND DUTIES OF SHERIFF. If agents or employés of an abstract company do not comply with reasonable regulations prescribed by the register of deeds in whose office they are working, they can be excluded by the sheriff, under Thomp. Shan. Code, § 505, making the sheriff custodian of the courthouse in the absence of appointment of some other person for the purpose, and giving him power to prevent trespassing and to exclude intruders. 3. COUNTIES 106-ABSTRACT COMPANIESOCCUPYING SPACE IN OFFICE-RENTAL. If a register of deeds is content to have employés of an abstract company work in his office county court and other authorities have no powwithout payment of rent for space occupied, the er to require payment. 4. COUNTIES 47-COUNTY COURT-POWERS. The county court has only such powers as are conferred by statute. 5. COUNTIES 110-COURTHOUSE-RENTING SPACE FOR PRIVATE PURPOSES. In the absence of statutory authority, no part of the rooms in current use by county officers in the courthouse can be rented for private purposes, and hence part of the office of the an abstract company as a place where its emregister of deeds cannot be rented or leased to ployés may work while copying records. Certiorari to Court of Civil Appeals. Bill by the County of Shelby against the Memphis Abstract Company. Decree for defendant, and plaintiff brings certiorari. Writ denied. R. L. Bartels, of Memphis, for appellant. J. S. Allen, of Memphis, for appellee. WILLIAMS, J. The bill of complaint was filed by the county of Shelby to recover of the defendant company a sum claimed to be due for the use and occupation by the latter of working space in the registry of deeds of that county. The chancellor and the Court of Civil Appeals have denied the county relief, and it here seeks a review of the decree of the latter court. The Memphis Abstract Company is a corporation organized under the laws of this 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Tennessee for the privilege of doing an abstract business. It maintains its general and regular office in the business center of the city of Memphis where all of its records are kept. The defendant company keeps in the office of the register of deeds two of its employés engaged in the taking from the records of notes for the preparation of abstracts to meet current demands, as well as data for a set of abstract books from which abstracts may be made for patrons in the future. These employés occupy two desks and about one-sixteenth of the floor space of one of the two rooms of the registry; they usually are there in service from 8 a. m. to 5 p. m. of each business day; during dark days or hours they avail themselves of the county's lighting system. The abstract company has installed a telephone which connects the registry of deeds with its general office by a private wire, but this was done under the direction of a county commissioner with the consent of the register of deeds. The deputy register testifies that this private telephone line is a great convenience to the public and to the register of deeds, due to the liberal accommodations afforded by the company in procuring over the line from the city office of the company of references to the records where the registry index system may fail to give information. For such use no charge is made by the abstract company. The same witness shows that employés of the company otherwise are of considerable aid to the register in checking up errors made by his clerical force. The abstract company does not claim or make as of right exclusive use of the table or chairs; the space occupied by its employés is not in any way partitioned or divided from the balance of the room. These employés in the above and all other 'respects have conformed to the demands and requests of the register in the use made of the office, equipment, and records. The county court of Shelby county conceived that the defendant company should pay to it a rental for the use of the space, tables, chairs, and facilities, and by resolution ordered the bringing of the present suit, after compliance with a demand that the defendant become, and pay rent as, lessee was refused. It is made clearly to appear that the presence and work of the two employés of the abstract company do not interfere with the work of the register or with the public in its use of the registry. Eight other desks are maintained in the same room where these employés work, and they are generally unoccupied. It is shown that the register of deeds makes no objection, but on the contrary is pleased to have the force of the defendant company carry forward its work as described, because of the indicated incidental The theory of the county is that the defendant has no legal right to so occupy space in the registry for the preparation of data for abstracts except where the abstracts are to serve a present demand therefor; further, that the preparation of abstract books for prospective uses is not legitimate, and being for the profit of a private corporation, the latter must pay the county a reasonable sum for the facilities afforded. According to the rules of the common law as administered in England there was no general or public right of inspection of public records, that right being confined to those who had a personal interest in the property affected by the records. The greater portion of the real property in England was held by the nobility and the aristocracy in large estates, and the system that prevailed looked to the descent of realty to the oldest son and other heirs, often by entail, and this resulted in few transfers. In America different ideals have prevailed, and these brought, as a necessary consequence, a decided change. Small holdings in fee have resulted from the American concept and principle of equality as between heirs, and activity of sales and freedom of transfer have been encouraged by the policy of our laws. The earlier common-law decisions are, therefore, not applicable to the changed conditions, and should have little influence in the molding of precedents respecting the right to inspect and make use of registries of titles. If subsequent purchasers and incumbrancers are to be charged with notice of all that appears of record affecting the particular real estate, it is but sheer justice that the law should be liberalized so as not only to extend the right of inspection to members of the public who may be interested in the title, but so as to expand the opportunity for notice to all who may be injured should they act or deal without notice. Sound policy would give to the contents of the registries of deeds, mortgages, and liens the widest possible publicity, and in the form that is the most reliable and reassuring. Whatever adds to the vendibility of real property at its full value augments the wealth of the state. While the title examiner or abstracter has followed his profession ever since a system of registration was adopted, there has come in modern times the creation and development of the abstract company, which in turn has paved the way for and made possible the title guaranty company. The constantly increasing complication of land titles, especially in populous centers, has made each of these not only a utility, but a necessity, as aids in the ascertainment and assurance of rights based upon titles to realty. It is interesting to note the persistence of the influence of early common-law decisions to the rights of abstracters and abstract companies to inspect and make use of public records in order that they may perform their legitimate and necessary service to the public. Several courts in announcing the rule applicable in such cases have conformed as nearly as might be to the common-law principle of restrictive inspection. State ex rel. v. Grimes, 29 Nev. 50, 84 Pac. 1061, 5 L. R. A. (N. S.) 545, 124 Am. St. Rep. 883, and cases cited therein and in the notes. The doctrine of this line of cases is that the right of an abstract company to an inspection of the records and taking data therefrom exists only as to current or pending transactions in which the company is authorized or employed to make search or furnish particular abstracts; and the privilege of copying from the records for the purpose of compiling abstract books in order that the company may be able to supply for profit abstracts to all persons who may in the future desire them is denied. These decisions have been criticized, justly as we think, by other courts. In Hanson v. Eichstaedt, 69 Wis. 539, 35 N. W. 31, a suit similar to the present action, except that it was instituted by the register, it was said: guage, we are strongly inclined to think that *** See, also, Clay v. Ballard, 87 Va. 787, 13 S. E. 262; Burton v. Tuite, 78 Mich. 363, 44 N. W. 282, 7 L. R. A. 73; State v. McMillan, 49 Fla. 243, 38 South. 666, 6 Ann. Cas. 537. 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." After reviewing authorities construing similar statutes of various states, the court said: "In so far as the Alabama and Michigan courts may have indicated that a statute giving certain enumerated rights respecting records to 'any person' is a mere confirmation of a rule at common law, giving similar rights to only a particular class of persons, we must decline to follow them. On the contrary, we must hold that our statute in question extends such right of examination, etc., to 'any person' applying to such custodian of public records in a proper manner, subject, however, to the payment of fees when allowed, and such reasonable supervision and control by such officer as are essential to the convenient performance of his duties, and the current business of the public." In State of Minnesota ex rel. Cole v. Rachac, 37 Minn. 373, 35 N. W. 7, the relator was an abstracter, and the defendant was the register. The court wrote: [1] The true right of an abstract company in this regard is not an unrestricted one. Its agents and employés must exercise the privilege by complying with such reasonable regulations as the law and the register, as custodian of the records, may prescribe, "such as a limitation on the number of employés that an abstracter may put at work on the records, at one time, decent and orderly behavior of such employés," etc. 1 R. C. L. p. 98, and cases cited. [2] By section 505 of Thomp. Shan. Code the sheriff of the county is given charge of the courthouse, unless some other person is specially appointed by the court for the purpose, and he is given power to prevent trespassing and to exclude intruders. The county register is custodian of the records in his office, and in event the employés of defendant company should prove to be intruders by refusing to obey reasonable rules or demands of the register, or should unduly interfere with other members of the public in their use of the registry; the sheriff would have authority to exclude them. "Counsel for appellant [the register] plants himself squarely upon the broad proposition that respondents are not entitled to any such privileges, because they have no interest in the records which they desire to examine. His contention may be briefly stated thus: (1) At common 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, * amended by laws of 1885 * working place and methods of the abstract "In view of its very strong and general lan- company, and satisfied with the aid he re * *? as ceives from data collected by it to which he [2. TELEGRAPHS AND TELEPHONES may resort for needed information. This being true, we think it manifest that the other county authorities, here asserting right of control, have no power to require the payment of a rental by the abstract company for the use of office space or facilities. [4] The powers intrusted to county courts emanate from the Legislature alone; hence the measure and limit of those powers are to be found in the statutes, and when a power claimed for them is not conferred by some statute it must be held not to exist. Railway Co. v. Wilson County, 89 Tenn. 597, 15 S. W. 446. [5] We fail to find any statutory power granted to the quarterly county court or to the county commissioners of Shelby county to lease any part of the space in the offices designated for the use of county officials, and we think it is clear that no such authority exists. The power, if existent, on exercise would give the lessee the right to control the space leased to him or it to the exclusion of other members of the public, and the leases could be multiplied, resulting in the serious embarrassment of others whose rights to use the registry rooms and equipment cannot be denied. In the absence of statutory authority no part of the rooms in current use as a registry of deeds and as part of a courthouse may be leased to be used for a period of months or years for private purposes. County buildings and their equipment are public property held by the county, but in trust for the public use. 7 R. C. L. p. 948; State v. Hart, 144 Ind. 107, 43 N. E. 7, 33 L. R. A. 118, and note; Decatur v. De Kalb County, 130 Ga. 488, 61 S. E. 23. Any rule other than the one we declare would lead to entanglements and abuses against which the public should be protected as a matter of public policy. As pointed out by the Court of Civil Appeals, the moment rent is charged and collected, special privileges arise, and, too, in a place where equal privilege must prevail. Content as we are with the judgment of that court, the petition for writ of certiorari to review it is denied. (140 Tenn. 86] RATES AND SERVICE-PENALTIES. 78(1) late the service or rates of telephone companies, If a county court is without power to reguit is equally without power to impose a penalty for bad service or extortionate rates. Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor. Bill by Shelby County against the Cumber. land Telephone & Telegraph Company. Bill dismissed, and plaintiff appeals. Affirmed. R. Lee Bartels, of Memphis, for appellant. Hunt Chipley, of Atlanta, Ga., Wright, Miles, Waring & Walker, of Memphis, and Thompson, Williams & Thompson, of Chattanooga (W. H. Biggs, of Jackson, of counsel), for appellee. GREEN, J. The bill in this case was filed by Shelby county to collect from the Cumberrental of $1 per annum each for all the poles land Telephone & Telegraph Company a pole of the telephone company placed in the roads of Shelby county. The bill. was dismissed by the chancellor, and the county of Shelby has appealed to this court. The lines of the telephone company are loerected by virtue of chapter 66 of the Acts of cated in Shelby county and it poles there 1885, granting to such corporations the right to string their wires and plant poles"along and over the public highways and streets of the cities and towns of this state, or across and under the waters, and over any lands or public works belonging to this state, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads or turnpikes of this state, and on and over the bridges, and trestles or structures of said railroad; provided, that the ordinary use of such public highways, streets, works, *bridges, structures, and turnpikes be not thereby obstructed * * by reason of the occupation of said land, railroads, and turnpikes, by said telegraph or telephone corporations." Section 1. * ** In addition to this legislative sanction the county court of Shelby county, by resolution passed on July 9, 1883, conferred a similar authority upon, the defendant telephone company in the following language: "It is hereby ordered by the county court of Shelby county, Tenn., that the Cumberland 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 telegraphs along the same, when the said company shall desire to do so. But in no event and in no manner to interfere with travel on any of 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 1. TELEGRAPHS AND TELEPHONES 10(9)— By a resolution passed July 15, 1907, the SHELBY COUNTY v. CUMBERLAND POLE RENT. Conceding that a county can, under the police power, require a telephone company to pay a pole rent to defray expenses of supervision and inspection, an order of the county court making payment necessary only on failure to comply with certain requirements could not be considered such an exercise of the police power. lines." county court of Shelby county undertook to revoke the right of the telephone company to occupy the roads and highways of that county except upon certain conditions appearing in the resolution, which resolution will be hereinafter set out. 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 pole rental of the telephone company nor to levy any such tax upon the company for revenue. A number of defenses are interposed by the telephone company and many questions made by it. The scope of our investigation has been very much limited and this controversy confined to a narrow compass by concessions of learned counsel for Shelby county. On the brief of counsel for Shelby county it that power and in the interest of the public is said: "There is no insistence on the part of the county that it could compel a removal of the poles from the highways-its only claim is the right to exact compensation for the use of the highways by the poles. Unquestionably the statute gave the telephone company a right of way; but it is the contention of the county that that is given, subject to the county's right in the exercise of its power to regulate and control its roads, to exact compensation for the occupation thereof by poles planted therein." It is furthermore conceded on the brief of counsel for the county that the county has no right to regulate rates to be charged by the telephone company, and it must be conceded that the county has no right to levy any tax upon the telephone company except as the county may be authorized by the Legislature. It is urged on behalf of the county that the act of 1885 and the resolution of the county court of July 9, 1883, merely gave to the telephone company a license to occupy the roads and highways of Shelby county, and that this license does not preclude the county in the exercise of its police power from making a charge against the company in the nature of a pole rental by way of compensation to the county for the cost of supervision and inspection of the company's poles and wires. The telephone company insists that it has fixed or contract rights to occupy the roads and highways of Shelby county by reason of the act of the Legislature and the resolution of the county court of 1883. It is agreed that it has spent many thousands of dollars in extending and improving its property in Shelby county upon the faith of said act and said resolution. The telephone company also denies that Shelby county has been intrusted with police power that would authorize it to make any charge of this nature against poles of the company. Without deciding these questions, it may be conceded for the purposes of this case that the county would have a right, in the exercise of its police power, to exact a pole rental for the purpose of supervision and inspection, and it may be conceded that the telephone company has no rights in the roads and highways of Shelby county that would exempt it from such a charge; nevertheless, the county's suit must fail. This results from the character of the resolution upon which this suit is predicated. It is to be remembered that by concessions Therefore all that can be claimed for the county is that it has police power over its roads and highways, and in the exercise of safety it may demand a pole rental in the nature of a fee for meeting the expense of inspection and supervision of the lines of the telephone company. Bearing in mind these conditions, we now consider the resolution of the county court of Shelby county passed July 15, 1907: "Be it resolved, that as the right was given the Cumberland and Memphis Telephone Companies to place their poles along the side of the county roads, provided they did not interfere with the roads, their use, or with the working of the same, and as the purpose of this was not to benefit the telephone companies or of giving to them free of charge the use of the public roads, but to secure to the rural residents of the county an efficient telephone service at reasonable rates; and whereas the service of the telephone companies has become exceedingly bad, and the rates have been increased in many localities, and in some have been placed at an amount that prevents the use of the phone, and especially is so on the part of the Cumberland Telephone & Telegraph Company; and as it appears that a great number of the poles of both companies have been placed among the side ditches of the turnpikes and roads, thus greatly the roads; and that the companies fail to coninterfering with the working and managing of sult the proper county officials as to the location of their poles, or obeying them when said officials direct them where to locate the same: Now, therefore, be it resolved, that the permission heretofore given the said companies to use the county roads and turnpikes for their poles and wires is hereby revoked; and that said companies shall at once remove their poles and tober term of the court they enter into the folwires from the county roads, unless by the Oclowing agreement with the county of Shelby, to wit: "First. That they remove all poles from the ditches and traveled parts of the roads and turnpikes and place them where the county officials direct. "Second. That they place no new poles until they have received definite and specific instructions from the county turnpike secretary as to the turnpikes, and from the new road superintendent as to the dirt roads. of the poles or wires in the erection and placing "Third. That in no way either by the location of the same shall they in any way obstruct the roads or turnpikes, or interfere with the traveling public; and if, at any time, by accident, storm, or otherwise, any of their poles, wires, or other property obstruct the highway or interfere with its use, that they are at once to remedy and remove the same. "Fourth. That they furnish all persons in the county telephones with proper and adequate service of the same at not more than $7.50 net per quarter for residences, payable in advance, $15.00 net per quarter for business phones, or or $3.00 per month, payable monthly; and $5.50 per month, payable monthly. "Fifth. That when and as long as the above |