State Ex Rel. Wogan v. Clements , 194 La. 812 ( 1940 )

George T. Wogan and C. Layton Merritt, for themselves and others, filed this suit on August 28, 1939, against the Honorable Ernest S. Clements, Commissioner of Conservation of Louisiana, alleging that they were registered voters and taxpayers and that they had, on August 23 and again on August 24, 1939, gone to the office of the Department of Conservation in New Orleans during regular office hours and demanded of the defendant, the Honorable Ernest S. Clements, Commissioner of Conservation, the privilege of examining the books and records of the department; that on August 25, following, they had written the Commissioner, making a similar demand, and that, although it was his ministerial duty to grant to them the privilege which they demanded, he had failed and refused to present to them the books and records of his office for their inspection and had not appointed a time for the examination.

They prayed that an alternative writ of mandamus issue, directed to Commissioner Clements, "commanding him to permit relators to examine and copy the books and records of the Department of Conservation in his custody or under his control as such Commissioner of Conservation, and particularly all pay rolls and records pertaining to the employees of said Department, or to show cause to the contrary on such day and hour as the Court may designate".

The alternative writ was issued by the court, as prayed for, and was made returnable on September 5, 1939. Commissioner Clements in his answer to the rule to show cause set out two "main contentions" as his reasons why the demands of the relators should be rejected.

It is not necessary to review in detail the answer which he filed, for the reason that his contentions were concisely stated by the trial judge in his written opinion, which opinion is quoted with approval by counsel for Commissioner Clements in their brief filed in this court. We quote them here as they are printed in the brief at page 3:

"(1) That at the time relators made their application to him for an examination of the books, that they did not show the fact that they are qualified electors, and proof of that should be made in the manner and form provided by the Constitution and laws of this State.

"(2) That at the time this application was made, that the books, papers, payrolls, and accounts, were in the hands of the Supervisor of Public Funds, and that this act does not apply to any record, paper, book, or document in the custody and control of the Supervisor of Public Funds."

Testimony was adduced at the trial of the case in the district court. There was judgment rejecting the demands of relators at their cost. They appealed to the Court of Appeal, Parish of Orleans. That court reversed the judgment of the lower court and rendered judgment in favor of relators. Its opinion was handed down on November 13, 1939, and is published in 192 So. 126. Rehearing was applied for on November 27 and was refused on December 11, 1939. Commissioner Clements filed his application for writs in this court on January 9, 1940, and the writs were granted in due course by this court on February 12, 1940.

On February 23, 1940, after the case was ordered up for review, counsel for relators filed a motion in this court, suggesting that, inasmuch as the questions of law involved in the case were of vital interest to the public, they should be permitted to argue the case orally, and requested that they be permitted to do so. To this request counsel for Commissioner Clements gave formal assent. We could not grant this request without departing from Section 4 of our Rule XI (see 191 Louisiana Reports xliv), which provides that oral arguments will not be allowed in any case coming before the court on a writ of review or under the court's supervisory jurisdiction.

We refused this request on March 1. Two days later, counsel for relators filed a brief in which they say, in sum, that the relief for which they pray should be granted for the reasons stated by the Court of Appeal. Four days later, on March 4, counsel for Commissioner Clements filed their brief in this court. In their brief they do not refer to the first of their two main original contentions, which, in substance, was that, at the time relators made their application to view and examine the books, they did not show that they were qualified electors and taxpayers, as required by the Constitution and laws of the state. That point seems to have been abandoned at the trial of the case in the district court.

The point which they stress before us now is that, when and so long as the books of the Department of Conservation are being audited by the Supervisor of Public Funds, the books are under the supervision and control of the Supervisor, and for that reason electors and taxpayers have no right under the law to inspect and examine them.

The Court of Appeal in its opinion (192 So. 126, 131) cited and reviewed all the statutory law applicable to the issue involved. It stated clearly the contentions and arguments made by counsel for relators in support of their prayer for relief, and with equal care and precision stated the arguments advanced by counsel for Commissioner Clements as to why the relief prayed for by relators should not be granted. The court cited and quoted those sections and portions of sections of the statutes relied upon by counsel for both sides, and stated clearly the reasons on which its conclusions were based.

On further consideration of the case, our opinion is that the ruling of the Court of Appeal is correct and that the reasons assigned for its ruling are sound. Because we have reached this conclusion, it is unnecessary that we burden this opinion with a review of the law and the arguments made by counsel. That is unnecessary because it is not now contended that the Court of Appeal incorrectly stated the views held by counsel, nor is it suggested that the court failed to consider those statutes and specific parts thereof relied on by counsel. The controversy now revolves around the question whether or not the conclusions reached by the Court of Appeal are supported by the law which it construed. We think they are.

The Court of Appeal, after an exhaustive discussion of all the points raised and the laws applicable, said:

"It must be conceded, of course, that where there is a right to examine public records, those members of the public who wish to make the examination must do so in such a way and at such a time as will interfere as little as possible with the work of the official whose records are being inspected and as little as possible with the work of any other public official who may have the right to also inspect or audit those records. But, on the other hand, it is the definite public policy of the State that any qualified person may make such an examination, and it necessarily follows that the public official must lend all possible reasonable cooperation to make the examination convenient. These principles were recognized in Marsh v. Sanders,110 La. 726, 34 So. 752. In fact, it is provided in the Act itself, in section 10, that the inspection to which the public is entitled shall not disorder, hinder, or disarrange the work or function for which the said record is intended."

The court stated its conclusions in the following language:

"We have reached the conclusion that the books and records which the relators seek to examine are in the custody and control of the Commissioner and not in the custody and control of the Supervisor and that, therefore, because of the provisions of the pertinent statute, No. 242 of 1912 [as amended], it is the clear ministerial duty of the Commissioner to permit relators to make the examination under the conditions set forth in the statute."

The judgment of the court reads as follows:

"For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and it is now ordered, adjudged and decreed that peremptory writs of mandamus issue directed to Ernest S. Clements, Commissioner of Conservation of the State of Louisiana, directing and commanding that he grant to relators, or to any of them, subject to the provisions of Act 242 of 1912, the right of examining, copying, photographing and taking memoranda of any of the records or books of his office, as Commissioner of Conservation of the State of Louisiana in charge of the Department of Conservation. Respondent to pay all costs."

The judgment of the Court of Appeal is affirmed.