Peck v. Hooker

Counsel

E. Peck, appellant, pro se. 1. It seems necessary first to consider the authority of the case of Gould v. Banks, 53 Conn., 415 . In that case the judges informally considered, and refused, an application by certain foreign publishers for copies of the opinions. The prevailing brief and the opinion of the court rely upon two facts: — 1st., the statute of 1882, and the state's copyright taken in accordance therewith; and 2d., the contract made by the comptroller with Banks Brothers for the publication of the volumes. Neither of these controlling facts exists in the case at bar. The court say: — "The judges and the reporter are paid by the state and the product of their mental labor is the property of the state, and the state, as it might Lawfully do, has taken to itself the copyright." But this fundamental support of their conclusion has been entirely removed by the Supreme Court of the United States in Banks v. Manchester, 128 U. S. R., 244 . By that decision the supposed copyright in the state has ceased to exist. Its effect is not that of a contrary authority on a point of law. It determines and establishes the fact of the non-existence of copyright in judicial opinions under the federal law, and so makes a change of the facts as radical as if Congress had repealed the copyright law itself. So much of the General Statutes as provides for the taking of a copyright has also become ineffectual, so far as it concerns the opinions, and although the comptroller may still properly copyright the reports, which include much reporter's work, the opinions have become free from any legal monopoly — free to all the world to read, copy and publish. And the contract with Banks Brothers, so much relied on in Gould v. Banks, is not an issue in this case. Even if the present facts and the issues made permitted Gould v. Banks to be cited as an existing precedent, we should confidently ask the court to reconsider it, in view of the later adjudications, which have unanimously denied its correctness, and by which Connecticut has been left in the unenviable position of being the only state of the Union which permits a monopoly, for a publisher's profit, of the knowledge of the law. Only three months after that decision the Supreme Court of Massachusetts decided the other way on exactly similar facts, though that case was relied upon as an authority. Nash v. Lathrop, 142 Mass., 29 . A month later Justice BREWER, in the U. S. Circuit Court for the district of Minnesota, declined to follow Gould v. Banks. Banks v. West Pub. Co., 27 Fed. Rep., 50. The Supreme Court of Iowa also refused to sustain a monopoly in the opinions of their judges, though the statute and contract made thereunder gave the exclusive rights claimed in the strongest terms. No opinion was rendered, and the case is not reported. In 1888 the Circuit Court of this district refused to enjoin Gould Co. from publishing the Connecticut opinions in defiance of Gould v. Banks. Judge WALLACE'S opinion very clearly shows his disapproval of that case, and the decision was a practical nullification of it. State of Connecticut v. Gould, 34 Fed. Rep., 319. See also Banks v. Manchester, 23 Fed. Rep., 143; S. C. , 128 U. S. R., 244 ; Davidson v. Wheelock, 27 Fed. Rep., 61; Little v. Gould, 2 Blatchf., 165; Chase v. Sanborn, 4 Cliff., 306; Myers v. Callaghan, 5 Fed. Rep., 733; S. C., 20 id., 442; S. C., 128 U. S. R., 617 . 2. Is there any right of first publication in the state "whose servant the defendant is?" Such a right is in derogation of the common right of the citizen and should be clearly made out. "The decisions and opinions of the justices are the authorized expositions and interpretations of the laws, which are binding upon all citizens. They declare the unwritten law, and construe and declare the meaning of the statutes. Every citizen is presumed to know the law thus declared, and it takes no argument to show that justice requires that all should have free access to the opinions; and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices. Such opinions stand, upon principle, on substantially the same footing as the statutes enacted by the legislature." Nash v. Lathrop, 142 Mass., 29 . See also Banks v. Manchester, 128 U. S. R., 244; Banks v. West Pub. Co., 27 Fed. Rep., 50; Connecticut v. Gould, 34 id., 339. Our legislature carefully provides that the statutes passed by them shall not take effect till there has been time for the printed pamphlets to circulate throughout the state. It is no less a violation of public right that the opinions of this court, filed to-day, and immediately becoming the established law of the state, should be refused publication till the slow processes of official publication are completed. Monopoly of a material commodity is abhorrent to the Anglo-Saxon mind; how much more monopoly of the law, which every citizen is bound at his peril to know. I repeat, then, the existence of this right of prior publication, the prohibition of publication until after the state has officially published, should be clearly made out by positive provisions of law. No such provision exists unless in § 333 of the General Statutes, which is as follows: — "The reports of the cases hereafter argued and determined in the Supreme Court of Errors shall, when prepared by the reporter of judicial decisions and ready for publication, be published under the supervision of the comptroller, who shall cause the several volumes to be stereotyped and to be copyrighted in the name of the secretary for the benefit of the people of this state." The reports so "prepared and published" are the reports provided for by § 825, which by long practice include tables of cases, syllabi, statements of fact, condensed briefs, and indexes, all the work of the reporter, and the judicial opinions. The provision for copyright having ceased to apply to the opinions, can the court now construe these acts as providing for a copyright of the reporter's work, and a right of first publication of opinions? Because the copyright which the legislature intended to create has ceased to exist, can a less monopoly, that the legislature did not intend to create, be supplied by implication? The real situation is that stated in Callaghan v. Myers, 128 U. S. R., 617 ; the copyright still exists as to the reporter's work, the book of reports as a whole is to be published by the state, and placed in every town clerk's office for the public use; but the opinions, from the moment of their filing, are free to all the world to inspect, to study, and to publish. The statute fixing the reporter's salary contains the following clause: "and at the rate of twenty-five cents a page for any copy, to be paid by the party requiring it." Gen. Statutes, § 3709. Any party who requires it has therefore a right to a copy on payment of the prescribed fee. If it were not the official duty of the reporter to furnish copies, would the statute have defined the fee to which he should be limited, and declared that fee to be a part of his official compensation? If it is not his duty, but a voluntary service, to furnish copies, he has the right to charge whatever he will for the performance of that service. 3. As to the dictum in Gould v. Banks, that "the courts and their records are open to all; the reasons given by the Supreme Court of Errors for its determination in a given case constitute no part of the record therein; the judgment stands independently of these." The plaintiff contends t hat if not a record of the case in a strict technical sense, the opinion is a public document, prepared by public officials in the discharge of their public duty, for the information of the public, which is in the custody of the defendant as a public officer, and a knowledge of which deeply concerns the plaintiff. It is conceded that the plaintiff has a right, in common with every citizen, to inspect the records of the courts; that is, the respective allegations and claims, and the judgment of the court, in any cause now pending or adjudged. How much more vital it is to his interest, and to his rights as a citizen, to see the judicial opinion, which establishes the law for himself, and which is required by law to be prepared for the public information. The former have no interest, except in the way of curiosity, to any but the parties to the cause; the latter belong to, and concern, every citizen as much as the litigants. C. E. Gross, for the appellees.