Brewer v. Watson

71 Ala. 299 | Ala. | 1882

BBICBELL, C. J.

We regard it as settled, that the book kept by the auditor, in obedience to the requirement of the statute, in which he enters the accounts of the tax collectors with the State, is a public writing or record, subject to the inspection of any citizen having a legitimate interest, which an inspection will subserve. It is also settled, that an attorney-at-law, employed by a tax collector whose office has expired, to collect a balance due from the State, or claimed to be due, has an interest which entitles him to an inspection of the accounts of his client.- Brewer v. Watson, 61 Ala. 310. It is not the unqualified right of every citizen to demand access to, and inspection of the books or documents of a public office, though they ai-e the property of the public, and preserved' for public uses and purposes. The right is subject to the same limitations and restrictions, as is the right to an inspection of the books of a corporation, which strangers can not claim, and which is allowed only to the corporators, when a necessity for it is shown, and the purpose does not appear to be improper.-1 Greenl. Ev. § 414; Ang. & Ames on Cor. §§ 681-2. And the individual who claims access to public records and documents (not judicial records, of which, by statute and unvarying usage, the custodian, upon the payment of the fee allowed by law, is bound to furnish copies), can properly be required to show that he has an interest in 'the document which is sought, and that the inspection is for a legitimate purpose.-1 Whart. on Ev. § 745; 1 Greenl. on Ev. 475; 1 Tidd’s Prac. 593; Gres. Eq. Ev. 115.

In the present case, the inspection was demanded by the ap-pellee as an attorney for several tax collectors An individual interest in the accounts he sought to examine, was not claimed; the right was asserted wholly in a representative capacity. The usual office and duty of an attorney-at-law is the representation of parties in courts of justice. It is for this purpose that he is licensed under the authority of the State. When lie ap- • pears in a court of the State granting the license, the appearance is presumed to be authorized. Against an unauthorized appearance the court can afford protection to its suitors, and the attorney making it could be summarily punished for contempt. The court, of its own motion, or the opposite party may require that the attorney produce evidence of his authority.-Whart. on Agency, § 563; Code of 1876, § 798. When the attorney is not appearing for a party in a court of justice; when his representation is for the transaction of business elsewhere, and business which would lie in the scope af an ordinary agency which any person is capable of transacting, the presumption of authority' obtaining in court, arising from his license, and because he is an officer of the court, can not be. claimed. Strangers can not safely deal with him on the faith of such representation, and have the right to démand from him some reasonable and satisfactory evidence of his authority — other evidence than his mere assertion. If the Auditor had accepted and acted upon the bare representation of the appellee, that he was the attorney of the several tax collectors whose accounts he proposed to examine, the representation would have been disputaable by the collector, and each of them, if it was untrue, could the next hour or the next day have demanded the same inspection from the Auditor. Any agent or attorney, proposing to transact business of any kind for his principal with others, can be required to furnish some satisfactory evidence of his authority. It is neither just nor reasonable to demand that those with whom he proposes to deal should accept and act upon his mere assertion of authority; and if he refuses to furnish such evidence, the transaction of business with him may be properly refused. We are, therefore, of opinion that the Circuit Court erred in its refusal of the first instruction to the jury requested by the appellant.

It was not, however, permissible for the appellant, or. witness Whitman, his clerk,to state the belief either may have had as to the employment of the appellee, or as to his authority to represent Boyles, or other tax collectors. The question has been often considered in this court, and such evidence has been uniformly pronounced inadmissible. Whether the appellant believed the appellee had the authority asserted, if a material fact, is an inference to be drawn by the jury from the circumstances which may be in evidence.-Whetstone v. Bank at Montgomery, 9 Ala. 874.

The individual demanding access to, and inspection of public writings must not only have an interest in the matters to which they relate, a direct, tangible interest, but the inspection must be sought for some specific and legitimate purpose. The gratification of mere curiosity, or motives merely speculative will not entitle him to demand an examination of such writings. 1 Whart. on Ev. § 745; King v. Merchant Tailors' Co., 2 Barn. & Ad. 115; King v. Justices Staffordshire, 6 Ad. & Ell. 84; Ex parte Briggs, 1 Ell. & Ell. 881 (102 Com. Law, 879); People v. Walker, 9 Mich. 328.

The office of Auditor is by the constitution declared a part or a branch of the executive department of the State. The dirties he is required to perform relate almost exclusively to the fiscal affairs of the State, of which he has a general superintendence. Among other duties he is required to perform, is the audit and adjustment of the accounts of all public officers, and the keeping of a regular account with every person in the State charged with authority to receive any part of the public revenue. The book in which these accounts are entered is obviously of the highest public value and importance, and is of value and importance to each individual whose account is therein entered. It would be idle to expose it to the impertinent intrusion of any and every person who might claim access to it; audit would be inexcusably wrong to withhold it from the examination of such persons as proved that they had some' specific, direct, tangible interest, an inspection would subserve. For the public, and for persons showing such interest, the Auditor should, as should every custodian of public writings, regard himself as a trustee — preserving them for the public against all impertinent intrusion, allowing ready access to those who have interest, and elaíñi access for the purpose of promoting or protecting it. Even to such persons access may be withheld, if the disclosure sought would prove detrimental to the public interests. As a witness, in such a contingency, the custodian of writings would be privileged from testifying to facts shown by them, or information obtained from them.

The evidence offered in various forms for the purpose of showing that access to the accounts of his-clients was withheld from the appellant, because negotiations were pending between the Auditor and tax collectors and judges of probate, for a ¡settlement of balances claimed to be due from them to the ■State, and that such negotiations had been broken off by the interference of the appellee, was excluded. It was not shown, or offered to be shown, that these negotiations were being conducted with either of the clients of the appellee, whose accounts it was proposed to inspect. It was the right of the •client to inspect his accounts with the State as kept by the Auditor, and which, if kept in the regular course of official ■duty, were prima faeie evidence for and against, the client, the appellee asserted, and not his individual right. If the ap-pellee had demanded a general inspection of the books or writings in the office, or of a particular book, in all the entries of which a direct interest was not shown, the generality of the demand would have justified its refusal. But that he had availed himself of his knowledge of the contents of the books, however derived, to interfere with negotiations the Auditor was conducting with others, could not deprive his principals of the right, or deprive him of the right, as their representative, to examine into their accounts. The inspection of public writings may not be denied, because the party applying for it has been guilty of some past impropriety of conduct as to matters to which such writings may refer, or because it is apprehended that the information obtained will be employed in litigation with the State.-People v. Throop, 12 Wend. 183. If the evidence tended to show that the purpose of the appellee was not really an ascertainment of the state of the accounts of his principals, but was the annoyance of the appellant, or of his clerks, or that the purpose was fishing and speculative, the hope of finding material for contingent litigation, a different question would arise, and the refusal of the Auditor to allow the inspection would probably be justified. ,

But, although the evidence may not have been relevant as establishing a justification, it had a direct bearing upon the inquiry into the motive and good faith of the refusal. These were directly involved, for tbe averment of tbe complaint is, that the refusal was malicious and with the intent to injure the appellee. When malice is imputed and is an element of recovery, whatever circumstances have a fair and reasonable tendency to show that the party to whom it is imputed acted from a good motive and in good faith, ought to be received.-Barron v. Mason, 31 Vt. 189; 2 Greenl. on Ev. § 454; Burns v. Campbell, ante p. 271. The information of the interference of the appellee with the negotiations for settlements with tax collectors and judges of probate, may have been derived from, correspondence or verbal communication with them. The specific fact to be shown was-not the truth of the information, but the fact of its communication to the appellant, and that upon it he acted in denying the appellee access to the books of his office. Hearsay evidence, the unsworn statements of others, whether verbal or written, is not competent evidence of a specific fact. That species of evidence is easily distinguished from evidence of information on which a party acts, when the inquiry is not into the truth of the information, but into the fact of its communication and his good faith in acting upon it. 1 Greenl. on Ev. §§ 100-101. To repel the imputation of malice, the evidence was admissible. The second instruction requested, in this view, ought to have been given.

The third instruction requested was properly refused. The good faith of the appellant in refusing the inspection may relieve him from the imputation of malice, and acquit him of liability for vindictive or exemplary damages, but it can not relieve him of liability for actual or compensatory damages, if it be shown the refusal was wrongful.-Brewer v. Watson, 65 Ala. 88.

The fifth instruction is involved and ambiguous. It had a tendency to mislead and confuse the jury, and for this reason was properly refused.

For the errors pointed out, let the judgment be reversed and the cause remanded.