
    W. B. McCommon, Appt., v. Lemuel R. Spong.
    Under the act of March 29, 1827, a court of common pleas has authority to appoint a competent person to index the records in the office of the register of wills for the county, and to compel the register to permit the person so appointed to have access to or possession of such records and books as may be necessary.
    As no appeal lies from an order of the common pleas in such a matter, only the record as brought up by certiorari can be considered by the supreme court.
    Note. — The act of May 3, 1878 (P. L. 43), authorizing the re-indexing of certain records, was held unconstitutional in Be Beaver County Indexes, 6 Pa. Co. Ct. 525.
    (Argued April 26, 1888.
    Decided May 14, 1888.)
    January Term, 1888, No. 246, E. D.,
    before Gordon, Ch. J., Paxson, Sterrett, Green, Clark, and Williams, JJ.
    Certiorari sur appeal to review an order of tbe court of Common Pleas of Cumberland County directing the register of wills of that county to deliver possession of certain records to a person appointed by the court to index the same.
    Affirmed.
    On July 11, 1887, while Lemuel B. Spong, the present appellee, was register of wills for Cumberland county, the court of common pleas of that county made the following order, on the petition of certain members of the bar:
    In the matter of indexing the records and transactions of the register’s office.
    And now, to wit, July 12, 1887, the register of the county is hereby authorized and directed to procure four books, to be used as indices, of the size and with the headings and columns recommended by the committee, except that there shall be added one column, headed “Collateral Inheritance Taxbut he is hereby directed hereafter to index the records and transactions of his office in accordance with this plan.
    He is also authorized to index in like manner the past records in said office from January 1, 1870, provided he is willing to do so at a compensation of 17 cents per line or name, and he is authorized to purchase the requisite seratchers for this purpose.
    The Hutter system recommended by the committee is adopted.
    
      The request to index prior to 1870 is held under advisement.
    Thereafter, the following supplemental order was made by the court:
    “And now, to wit, October 11, 1887, the register is hereby authorized to procure thirteen books for the purpose of indexing records in his office, instead of four as provided in order of July 13, 1887, said indexing to begin with records of year 1870, the matter of indexing earlier records held under advisement.”
    On November 5, 1887, W. B. MeCommon was elected register of wills for the county, as successor to said Spong, and on January 2, 1888, he was duly commissioned, and took possession of the office, and of the books and records therein, having given the requisite official bond, which provided among other things that he should “deliver the books, seals, records, writings, and papers belonging to the said office, safe and undefaced, to his successor therein.”
    On December 17, 1887, the court made the following order:
    And now, to wit, December 17, 1887, as it has been made to appear to the satisfaction of the court since making the order of October 11, 1887, that ten books will be a sufficient number of books in which to index the records of the register, the order made on that day is modified so that he is directed to procure ten instead of thirteen books for that purpose. And it is further ordered, after due consideration of the recommendation of the committee and the petition of the bar, that the entire records of the register’s office from the institution of the county in 1750 to the present date, be indexed, the compensation to be paid to be $2,000, $1,000 payable in the year 1888, and the remaining $1,000 be payable in the year 1889 — the work to be done by L. B. Spong, the present register of the county.
    MeCommon having, after entering upon the office of register, refused to let Spong take the books and records for indexing, the court, Sadler, P. J., on petition of Spong, made the following order, accompanied by the following opinion:
    And now, January 11, 1888, it is hereby ordered that W. B. MeCommon shall deliver to L. R. Spong, Esq., upon the application of the latter, such portions of the records of the register’s office, in this county, now in his charge, as may, in the opinion of said Spong, be needed by him for examination in completing the indices which he was directed to make under the order of December 17, 1887. The said Spong will receipt for the records and papers intrusted to him, and it is expected that he will, by using as few at any one time as possible, and for the shortest period necessary for him to have them in his possession, in order that as little inconvenience may be caused to said W. B. McCommon, in attending to the duties of his office as register, as can be under the circumstances.
    The rule granted upon the said W. B. McCommon is thus made absolute, and he is directed to pay the cost of these proceedings.
    Per Curiam:
    On the 26th day of March, 1886, a petition was presented to us signed by the bar of the county, setting forth the great need of an index of the records, etc., in the register’s office, and praying that indices of the same be directed to be made. A committee, consisting of Hon. M. C. Herman, A. B. Sharpe, and John Hays, Esqs., three of the most reputable, experienced, and competent members of the bar, was appointed for the purpose of inquiring into the various systems of indexing, and make report of the plan deemed by them the most desirable and also to accompany their report with an estimate of the cost of making the proper indexes.
    This report was made June 7, 1887, and subsequently the entire bar, with but very few exceptions, again petitioned that the system recommended by them be adopted, and that the work upon the indexes be commenced at once, and L. B. Spong, the then register, be employed for the purpose.
    This was afterward done and proper order made.
    The work was then undertaken and had progressed to a considerable extent, when on the second day of January, 1888, W. B. McCommon, the person elected as register at the last general election, took charge of his office. He refused to allow Spong to proceed with the work in his office, or permit the records, as required for indexing, to be taken to a room on the opposite side of the hall way in lower story of the court house.
    Application was then made to us for an order directing the said McCommon to permit Spong to have access to and the use of the records of the register’s office, for the purpose of indexing the same, as he had been authorized and directed to do by tbe order of December 17, 1887, and previous orders.
    This application was resisted by McCommon, on tbe ground that be was by law tbe custodian of tbe papers and books contained in tbe register’s office; that be bad given bond to band them over to bis successor in office, and was entitled to all tbe fees, profits, and emoluments of tbe office.
    That tbe court bad full power to direct tbe making of tbe indices will not be contradicted. Tbe act of March 29, 1827, so provides in its fourth section. Tbe authority to have tbe books of records of tbe several offices, including that of register of wills, bound anew, indicates that their removal was contemplated and might be authorized under certain circumstances. Tbe law establishes no fees for indexing tbe records when directed by tbe court under tbe act aforesaid. Tbe amount to be paid is not an emolument to which tbe incumbent of tbe office has any legal right.
    When tbe law imposed upon tbe courts tbe power and duty of directing tbe making of full and complete indexes, it certainly contemplated that they should have tbe power to intrust tbe labor to competent persons- — to persons wbo bad such knowledge of tbe records to be indexed as would enable them to undertake tbe work intelligently, and such skill in penmanship as would insure a neat and legible execution of tbe duty. It could not have been intended by the legislature that tbe courts were compelled to commit it only to tbe person wbo happened to be tbe incumbent in tbe office, however inexperienced as to tbe labor to be performed, ignorant of tbe records which tbe office contained, or illegible bis chirography.
    Mr. Spong was well qualified to index tbe records. He bad had about three years of experience in tbe office; bad become familiar with its contents and tbe matters required to be entered in tbe indices it was proposed to make. He bad, as a clerk, for many years before bis election, tbe training which fitted him to examine papers and entries critically, while bis style of penmanship added another special qualification for tbe task. Tbe new incumbent, on the other band, was without any knowledge of tbe contents of or wants of the office. His former occupation bad in no manner tended to fit him for tbe sort of work tbe indexing of tbe records imposed, while bis penmanship would be a decided objection to committing matter to him. In no respect would we have deemed him properly qualified to make the indices, nor would we have made an order directing him to do so.
    The room in which Mr. Spong proposes to do the work, since he has been excluded by the register from the office where the records are contained, is fire proof and but a few feet distant. He will' not require a large amount of the books or papers at any one time and very little inconvenience will be caused, nor will any risk be incurred by the register, if his (Spong’s) petition be granted.
    We will therefore [direct that the said L. R. Spong shall have such access to and use of the records in the register’s office as will enable him to complete the indexes, which he was directed to make and which have been undertaken by him under the order of this court]
    Thereupon McCommon appealed, assigning as error: (1, 2, 3) The said orders of December 17, 1887, and January 11, 1888; (4) the portion of the opinion inclosed in brackets; and (5) “The learned court below based its order of December 17, 1887, on § 4 of the act of March 29, 1827. Section 6 of said act provides that no register shall receive from the county any pay for any indexes made by him of any matters recorded in his office after the passage of this act All the work therefore ordered between March 29,1827, and December 17, 1887, a period of more than sixty years, is contrary to the plain provisions of the law.”
    
      Theodore Gornman and F. E. Belizhoover for appellant
    
      8. Hepburn, Jr., for appellee.
   Per Curiam:

As no appeal lies in a case of this kind, we can consider nothing but the record which has been brought up by the certiorari, and as in that nothing appears which is irregular, or which is unwarranted by the act of assembly under which the court acted, we must affirm the judgment of the common pleas.

The judgment is affirmed.  