B-152756, NOV. 15, 1963

B-152756, NOV. 15, 1963

TO MISS EVELYN B. DAVIS, OFFICE OF MANAGEMENT SERVICES, DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 24, 1963, ENCLOSING A RECLAIM VOUCHER, AND PERTINENT PAPERS, IN FAVOR OF MR. ERIC J. CURTIS, SUITE 600 BLACKSTONE BUILDING, 112 MARKET STREET, HARRISBURG, PENNSYLVANIA, AND REQUESTING OUR DECISION AS TO WHETHER IT MAY BE CERTIFIED FOR PAYMENT.

THE VOUCHER IN THE AMOUNT OF $15 IS FOR REIMBURSEMENT OF PAYMENT MADE TO THE TOWN CLERK, WOODFORD, VERMONT FOR:

"* * * CHARGE MADE BY MRS. HAGER AT $1.00 PER HOUR FOR TIME SPENT IN OCCUPYING HER LIVING ROOM AND OFFICE IN SEARCHING TOWN LAND RECORDS AND FOR HER ASSISTANCE AND GUIDANCE IN THE USE OF THE CONFUSED AND ILLEGIBLE RECORDS SYSTEM.--- 15 HOURS.--- 11/5, 7 AND 8. * * *"

SECTION 1165, TITLE 24, VERMONT STATUTES ANNOTATED, PROVIDES AS FOLLOWS:

"THE FILES AND RECORDS IN THE OFFICE OF THE (TOWN) CLERK SHALL BE AVAILABLE FOR INSPECTION UPON PROPER REQUEST AT ALL REASONABLE HOURS.'

SECTION 1671, TITLE 32, V.S.A., PROVIDES AS FOLLOWS:

"THE FEES OF TOWN CLERKS SHALL BE AS FOLLOWS:

"/9) FOR EXAMINATION OF TOWN RECORDS AT ANY TIME BY THE TOWN CLERK SEVENTY-FIVE CENTS, AND IF THE TIME EXCEEDS HALF AN HOUR, AT THE RATE OF $1.00 AN HOUR * * *.'

YOU BELIEVE THAT UNDER 24 V.S.A. SEC. 1165, THE TOWN CLERK IS REQUIRED TO MAKE THE RECORDS AVAILABLE AT ALL REASONABLE HOURS, AND UNDER 32 V.S.A. SEC. 1671 (9) TO RECEIVE A FEE OF $0.75, AND IF THE TIME EXCEEDS HALF AN HOUR, AT THE RATE OF $1 PER HOUR, PROVIDED THE RECORDS ARE EXAMINED BY THE TOWN CLERK.

YOU SAY THAT IN THIS CASE, AND IN SIMILAR CASES, THE EXAMINATION IS MADE BY YOUR OWN ATTORNEYS IN THE RESIDENCES OF THE TOWN CLERKS; MAKING IT NECESSARY TO USE THEIR LIVING ROOMS, DINING ROOM TABLES OR WHATEVER OTHER SPACE IS AVAILABLE, AND THAT THE TOWN CLERKS REMAIN AVAILABLE DURING THE EXAMINATION OF THE RECORDS AND FURNISH CONSIDERABLE VALUABLE INFORMATION WITH RESPECT TO THE MARITAL STATUS OF PARTIES, LOCATION OF LAND, AND MANY OTHER QUESTIONS THAT MAY ARISE DURING THE EXAMINATION.

IT IS FURTHER STATED THAT THE TOWN CLERKS CONSIDER THAT THEY ARE RESPONSIBLE FOR THE RECORDS AND THIS YOU CANNOT DISPUTE AND THAT WITH THIS RESPONSIBILITY, THEY CONTEND THAT THEY ARE ENTITLED TO THE FEE SINCE AFTER THEY MAKE THE RECORDS AVAILABLE, THEY MUST BE PRESENT TO SEE THAT THE RECORDS ARE PROPERLY USED AND TO ANSWER QUESTIONS THAT MAY ARISE CONCERNING THEM.

IN THE ABSENCE OF A STATUTE, AUTHORIZING A RECORDING OFFICER TO CHARGE FEES FOR INSPECTION OF RECORDS IN HIS OFFICE OR REQUIRING PAYMENT OF SUCH FEES, PERSONS ENTITLED TO INSPECTION OF SUCH RECORDS MAY INSPECT THEM AND MAY MAKE MEMORANDA OR COPIES THEREOF WITHOUT PAYING A FEE FOR THE PRIVILEGE, EXCEPT WHERE INDEPENDENT COPYING, OR SEARCH, OR OTHER ASSISTANCE IS REQUIRED OF, AND RENDERED BY, THE RECORDING OFFICER OR HIS ASSISTANTS. ATLANTA TITLE AND TRUST CO. V. TIDWELL, 160, S.E. 620 (1931); STATE V. AYERS, 171 N.E. 2D 508 (1960); DISABLED POLICE VETERANS CLUB V. LONG, 279 S.W. 2D 220 (1955); 76 C.J.S. RECORDS SEC. 38. WHERE INSPECTION AND EXTRACTING OR ABSTRACTING ARE DONE BY THE PARTIES THEMSELVES OR BY THEIR AGENTS OR ASSISTANTS WITHOUT ANY SERVICE OR ASSISTANCE FROM THE RECORDER OR HIS DEPUTIES IN CONNECTION THEREWITH OTHER THAN GENERAL SUPERVISION AND WATCHFULNESS OVER THE RECORDS, THE RECORDER IS IN GENERAL NOT ENTITLED TO ANY FEES OR COMPENSATION. BELL V. COMMONWEALTH TITLE INS. CO., 189 U.S. 131 (1903); STATE V. MCMCILLAN, 38 SO. 666 (1905); BURTON V. TUITE, 44 N.W. 282 (1889); 45 AM.JUR., RECORDS AND RECORDING LAWS, SEC. 178.

IT THUS APPEARS THAT UNDER 24 V.S.A. SEC. 1165, THE TOWN CLERK IS NOT ENTITLED TO A FEE OR OTHER COMPENSATION FOR TIME SPENT BY AN OUTSIDE EXAMINER IN OCCUPYING HER LIVING ROOM AND OFFICE OR FOR HER GENERAL SUPERVISION AND WATCHFULNESS OVER THE RECORDS. FURTHER, 32 V.S.A. SEC. 1671 (9) IS NOT FOR APPLICATION HERE, SINCE THE EXAMINATION IN QUESTION WAS NOT MADE BY THE TOWN CLERK.

THE RECORD HOWEVER, DISCLOSES THAT THE TOWN CLERK DID IN FACT RENDER VALUABLE ASSISTANCE TO YOUR ATTORNEY. IN THIS CONNECTION ATTENTION IS INVITED TO SECTION 1751, TITLE 32, V.S.A., WHICH PROVIDES AS FOLLOWS:

"OFFICERS AND PERSONS WHOSE DUTY IT IS TO RECORD DEEDS, PROCEEDINGS, DEPOSITIONS, OR MAKE COPIES OF RECORDS; PROCEEDINGS, DOCKET ENTRIES, OR MINUTES IN THEIR OFFICES, WHEN NO OTHER PROVISION IS MADE, SHALL BE ALLOWED:

"/3) FOR OTHER SERVICES SUCH SUM AS IN PROPORTION TO THE FEES ESTABLISHED BY LAW.'

UNDER SUCH STATUTE, THE TOWN CLERK, FOR SERVICES RENDERED, IS ENTITLED TO SUCH COMPENSATION AS IS IN PROPORTION TO THE FEES SPECIFICALLY ESTABLISHED BY VERMONT STATUTES. INASMUCH AS UNDER 32 V.S.A. SEC. 1671 (9) THE COMPENSATION FOR A CLERK'S EXAMINATION OF RECORDS IS BASED ON THE TIME SPENT IN SUCH ENDEAVOR, IT WOULD BE ONLY REASONABLE TO CONCLUDE IN THIS CASE THAT UNDER 32 V.S.A. 1751 COMPENSATION SHOULD LIKEWISE BE BASED ON THE TIME ACTUALLY SPENT IN RENDERING THE ASSISTANCE IN QUESTION. THIS OBVIOUSLY WOULD NOT COVER THE ENTIRE 15-HOUR PERIOD.

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.