No. 24766. | Miss. | Mar 23, 1925
The petition alleged that the appellant is a public ginner operating public gins at a large number of different named points set forth in the petition, and that the appellee had members with whom it had contracts as aforesaid in the communities where these gins were located. It is then alleged that the petitioner would further show that it is interested in knowing the amount of cotton so ginned by its members during the time aforesaid at said gins operated by the defendant so that it may determine and know whether or not its various and sundry members are delivering the cotton to it ginned and baled at said gins, as required by their contract with petitioner, and, if not, the number of bales which its members have failed to deliver, so that it may properly enforce its contract with its said members. The petition contained no allegation that any particular member of appellee's co-operative association had not complied with his or her contract, nor does it contain any allegation that it has good reason to believe that a particular *616 customer or customers or members, situated in some particular community where any particular gin plant is operated, had ginned cotton at such gin and had not delivered to the petitioner all of the cotton so ginned. There was no allegation that any bale of cotton raised by any member of the cotton association, appellee, had been ginned at any particular one of the appellant's gin plants or at either of them.
The purpose of the petition was to examine the books and records of the appellant gin company, and to check such books and records against the books and records of the appellee cotton association to ascertain whether or not any cotton to which it was entitled had been ginned at the appellant's gin, and whether such cotton had been delivered to the appellee cotton association. It was alleged that the records of the appellant were public records under the law of the state of Mississippi, and that petitioner therefore is entitled to inspect the same, and it is also alleged that petitioner, cotton association, could not get such information elsewhere, and that it is without a plain, adequate, and speedy remedy in the ordinary course of law. Petitioner further alleged that it made demand for an inspection of the said records of the appellant gin company, which demand had been refused, and that all of the records of said gins were kept at the appellant's office in the city of Jackson, Miss., and petitioner prayed for mandamus to compel such inspection and examination.
Appellant first presented a petition for removal to the federal court, alleging that it was a corporation under the laws of the state of Delaware and a citizen of that state, gave bond and served notice under the removal statute, bond was approved, but the application for removal was denied. Appellant then demurred to the petition for mandamus. There are numbers of grounds of demurrer which it is not necessary to set forth with particularity. The demurrer was overruled, appellant declined to plead further, and judgment was *617 rendered in accordance with the prayer of the petition, from which judgment appeal is prosecuted to this court.
We do not think the cause was removable to the federal court, and the court below committed no error in refusing to remove the cause. The statute under which appellee sought its remedy is section 4750, Hemingway's Code (Laws 1908, chapter 132), which reads as follows:
"Every public ginner shall plainly mark or stamp upon each bale of cotton packed or baled by him, the number of the bale, his own initials, and the initials of the customer for whom the cotton is ginned and baled, and shall enter in a book or register the name of the customer, the date when each bale was ginned and baled, and a record of the marks placed by him upon each bale as above directed, and shall allow an inspection of such entries at any time by any person interested to make it. Any person violating any of the provisions of this section shall, upon conviction, be punished as for a misdemeanor, as provided in section 1527 of the Mississippi Code of 1906 section 1289, (this Code)."
It is first contended by the appellant that the petition does not show any title in or lien upon any cotton ginned at the appellant's gin, and that it has not such interest as would give it the right to an inspection of appellant's books required to be kept by this statute. It is contended that the appellee did not own any of the cotton which it had contracted to receive from its members and which its members had contracted to deliver to it; that such contracts were purely executory.
We think the contract which appellee cotton association had with its members gave the appellee a right to have the cotton so delivered to it in conformity to its contract; that, while it was not the owner of the legal title to or any lien upon the cotton, it had an enforceable right to secure the delivery of the cotton and that it had such interest as would, in a proper cause, constitute it a person interested to make the examination. We think, however, the petition filed does not present a case *618 entitling the petitioner to make the examination desired. The petition is entirely too general and uncertain.
It never was contemplated by the statute that any person should have a right to go upon a mere fishing expedition and make an examination to see whether or not he might discover some right or cause of action or something beneficial by such inspection. The party making such demand or request for inspection must make a reasonable demand, and it must be made upon a specific right or interest, or a number of such rights or interests, all of which must be presented with reasonable certainty, so that the gin company may know and appreciate the nature of the examination and the person or persons whose account or cotton is under inquiry or inspection. The statute contemplates that the petitioner should have some ground for believing that such records would show something that would affect his rights in particular persons or property. It is not permissible for a person to make demand for all the books that the company may have at its offices, or at any of its plants or gins, but such request should be limited to such persons or to such bales of cotton as petitioner or applicant has reason to believe have been ginned at the gin in question.
Of course a petitioner might have a number of such rights and might have one or more persons at each of the gin plants which would give it a right to examine the books and records of such gin so far as it would effect the particular right involved.
In the case of Federal Trade Commission v. American TobaccoCo.,
By section 9 of the act it was provided that for the purposes of this act, the commission shall, at all reasonable times, have access to, for the purposes of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against, and shall have power to require by subpoena the attendance and testimony of witnesses, and the production of all such documentary evidence relating to any matter under investigation. In case of disobedience an order may be obtained from a district court, and the district courts are given jurisdiction, upon the application of the attorney-general, to issue writs of mandamus to require compliance with the act, or any order of the commission made in pursuance thereof. A petition was filed under this clause of the statute and alleged that complaints have been filed with the commission charging the respondents severally with unfair competition by regulating the prices at which *620 their commodities should be resold, and set forth the Senate resolution and the resolutions of the commission to conduct an investigation under the act. The trade commission contended for unlimited rights of access to respondent's papers with reference to the possible existence of practices in violation of the act. The supreme court in its opinion said:
"The mere facts of carrying on a commerce not confined within state lines, and of being organized as a corporation, do not make men's affairs public, as those of a railroad company now may be.Smith v. Interstate Commerce Commission,
"The right of access given by the statute is to documentary evidence — not to all documents, but to such documents as are evidence. The analogies of the law do not allow the party wanting evidence to call for all documents in order to see if they do not contain it. Some ground must be shown for supposing that the documents called for do contain it. Formerly in equity the ground must be found in admissions in the answer. Wigram, Discovery (2d Ed.), section 293. We assume that the rule to be applied here is more liberal, but still a ground must be laid, and the ground and the demand must be reasonable. Essgee Co. v. United States,
It follows from this opinion that the demands of the petition are entirely too searching and indefinite, and it was error not to sustain the demurrer to the petition. The judgment, therefore, will be reversed, and the demurrer sustained, and the cause remanded.
Reversed and remanded.