District of Columbia v. Bakersmith , 18 App. D.C. 574 ( 1901 )

Mr. Chief Justice Alvey

delivered the opinion of the court.

There is no doubt of the right, under proper circumstances, and conditions, of the plaintiff in an action against a municipal corporation, to inspect such records, documents and papers as may be of a public nature, and which may be pertinent and material to the tidal of the issue involved in the cause. Such records and documents are public, and should be open to the inspection of every one who has an interest in them. The custodians of such records and documents are charged with the duty of their safe preservation,, and are liable for any want of care in their safekeeping. It is not the right of any and every one to have surrendered to him the use and control of such records and documents, whenever demanded. The public right is paramount to that of any individual right, and the public right must be preserved, though always with proper respect to the individual right. The latter right must, therefore, be exercised under proper conditions and restrictions, always with a view, however, to the general public right and protection, in the preservation of the corporate records and documents.

In this aspect of the case, and having due regard to the public rights in the matter, the question is, whether the court, was right in passing the peremptory order upon the motion of the plaintiff, without a rule upon the defendants to show cause against such application by answer. This was certainly contrary to the established practice upon the subject. Mr. Dillon, in his work on Municipal Corporations, .Sec. 303, says: “ When the corporator’s application to inspect is founded on his general right he has a mandamus, but when it is founded on a suit pending, he obtains a rule. In an action by one corporation against another, rules were madé absolute for each corporation to inspect so much of the books and records as related to the subject-matter in dispute. The motion for the rule to inspect and to have copies should be supported by affidavits showing the foundation of the claim, the application, the proper officer, and his refusal. The rule will require the expenses attending obedience to be borne by the applicant, and will, in proper cases, allow the officer a remuneration for his trouble. If the officer disobey, without sufficient reason, the rule to allow an inspection or to give ■copy of, or to produce corporate documents, the court will .grant an attachment against him.”

But, apart from the form and mode of proceeding, the .application and order thereon would be seen to be too general and indefinite, both as to the subject-matter desired to be inspected, and as to the person charged with the duty of making exhibition of the redords, documents and papers for inspection. The order is made against the defendant, the municipal corporation of the District of Columbia. It is not shown what officer of the municipal government of the District is the custodian of the records and documents required to be inspected, and it is not shown that the demand for inspection was made upon the proper or legal custodian of such records and documents. We know judicially, that while the Commissioners are .the executive head of the corporation, and are authorized to sue and be sued in respect to corporate rights and duties, there are various departments of the municipal government of the District; and the order of the court below would seem to recognize the sewer department as the proper place of deposit of the records and documents desired to be inspected. As said by Mr. Dillon, the application for the rule should specify the particular record or document to be produced for inspection, and designate the officer having control thereof. Otherwise the rule could not be enforced; for it is well settled, that an attachment for contempt for disobedience of the rule will not issue against a municipal corporation^ as such, but only against such of its officers and agents as may have offended against the process of the court. City of London v. Lynn, 1 H. Blacks. 207, 200.

The case of the Corporation of Barnstable v. Lathey, 3 T. Rep. 303, is closely analogous to the present. In that case a rule was obtained by the defendant against the plaintiff corporation for the inspection of all public deeds, records, charters, and writings belonging to the corporation and in its custody, relating to certain tolls. Upon objection to the rule upon the ground that it was too general and indefinite, the counsel who appeared to support the rule, admitted that the rule was drawn in terms too large, but contended that it might be granted as to such deeds as respected the question of tolls. " But the court doubted how any rule of that sort could be served upon the corporation, as such, in the terms of the proposed rule; but they asked the defendant’s counsel whether he would be content to take a rule upon the town clerk, to give on oath an inspection of all such parts of the deeds, etc., as respected the question of toll; to which the defendant’s counsel assenting, a rule was granted absolutely in the first instance.

The cases upon the subject are brought together in 6 Ency. PL & Prae., at pages 800-809, to which we refer, and where the principle is stated to be, that the books, documents or papers, of which inspection is sought, should be described with sufficient certainty to enable the party upon whom the rule is made to know what books or documents he is required to produce for inspection. A mere fishing inquiry will not be directed by the court.

The general principle of the cases, and what is required in practice, is succinctly but clearly stated by Mr. Greenleaf in his work on Evidence, under title “ Public Documents,” Avhere he says: “ The motion for a rule to inspect and take copies of books and writings, when an action is pending, may be made at any stage of the cause, and is founded on an affidavit, stating the circumstances under which the inspection is claimed, and that an application therefor has been made to the proper quarter, and refused. But when no action is pending, the proper course is to move for a rule to show cause why a mandamus should not issue, commanding the officer having custody of the books to permit the applicant to inspect them, and take copies. The application in this case should state some specific object sought by the inspection, and be supported by an affidavit, as in the case preceding ; ” that is to say, as in the case where an action is pending. 1 Greenl. Ev., Secs. 477, 478. The motion for a rule in a pending action is authorized as a summary substitute for the mandamus, but, of course, the party must be allowed his right of showing cause against the making of the rule absolute. Tidd, in his work on Practice (1 vol., pp. 595,. 596), shows that the proper course of proceeding is to apply by motion for rule to show cause why the inspection should, not be allowed) and not by peremptory order, such as was made in this case.

The act of Congress of May 13, 1892, referred to and relied upon by the appellee, while it recognizes the general principle, that it is the right of any citizen or member of the community, if he have an interest in so doing, to inspect the public records by its terms has reference only to such public records as relate to real and personal property in the District of Columbia. It is a provision incorporated in a tax law, and would seem to- be in the interest and for the protection of taxpayers; the right to inspect the records being given free of charge. The application of the present case, therefore, must be founded upon the general practice that now prevails in the common-law courts of the country, adopted, as matter of convenience and to save expense, from the practice that prevails in the courts of chancery. Mayor of Lynn v. Denton, 1 T. Rep. 689.

It follows from what we have said, that the order appealed from, granted in the mode and form adopted, was improvidently granted, and must, therefore, be reversed and vacated. But the plaintiff, if she be refused the right to inspect any record or document in the custody of any of the officials or agents of the defendant corporation, containing matter pertinent and material to the pending action, may apply by motion for a rule to show cause why such right of inspection should not be allowed, and if the rule be made absolute and be disobeyed, the right may be enforced by attachment. Order reversed and cause remanded.