People ex rel. Henry v. Cornell

32 How. Pr. 149 | N.Y. Sup. Ct. | 1866

Geo. G. Barnard, J.

The question presented in this matter, is this : Has a corporator of a municipal corporation a right to have a general inspection, and take copies, of the public documents and records of the corporation of which he is a member, under such rules and restrictions as will pte-. serve the safety of the records, .and prevent any serious interruption of the duties of the cusios ?

Upon, the argument, I was strongly of opinion that such corporator had such right, and subsequent reflection and investigation have confirmed- that opinion. It was claimed, and strongly urged, on the argument, that a corporator has a right to inspect such records only when he has some private interest, for the enforcement and protection of which, the inspection .of certain documents is necessary; and that even then, the inspection must be limited to those documents. And it was claimed that this rule was established by the English decisions. I have examined the English authorities referred to on the argument, and also such as I have been able to discover in the books, and think that none of them so restrict the right of inspection; while many of these distinctly uphold the right of a general inspection.

In Rogers v. Jones, (5 D. & R. 484,) it did not appear, on the moving papers, that any question was involved in the case which could justify an inspection of the court rolls; yet the mandamus applied for was ordered to issue. In King v. Shelley, (3 T. R. 142,) the respondent offered to show every thing connected with the demandant’s title, but the demandant claimed the right to general inspection, and a mandamus went, accordingly. In Herbert v. Ashburner, (1 Wils. 297,) a rule was made requiring the plaintiff to show cause why the defendant should not have liberty to inspect the books of the sessions of the corporation of Ken-dale, and it was objected that the party Was not entitled to see the books, unless he could show to the court, by affidavit, that they contained matters relating to the thing in question," which was, whether the parle lands were within the town or corporation of Kendale. Sed per curiam : u These are public books, which everv body has a right to see;” and the rule was made absolute, without hearing the other side.

Upon the facts appearing before the court, in the above cases, the decisions made therein could only be made upon the ground that a corporator, from the mere fact of being a corporator, had a right to a general inspection of the boobs and records of the municipal corporation of which he was a member. Consequently, the court must be regarded as having, in making these decisions, decided in favor of such right.

Thus, we see, an eminent writer on the subject of municipal corporations, (Glover on Municipal Corp. 262,) lays down the following text as being derived from the decisions : “Every corporator has a right to inspect all the records, books and other documents of the corporation, upon all proper occasions; and if, upon application, the officer who has the custody refuses to show them, the court will grant a mandamus to enforce his right.”

There are some cases which, at first blush, would appear to be authorities against the right of general inspection, but on close examination, they do not turn out to be so. Thus in King v. Babb, (3 T. R 580,) the court, while deciding that upon a rule for inspection, made in a suit, the party is restricted to an inspection of such documents as have a bearing on the subject matter of the litigation, yet do not undertake to decide that any such rule of restriction obtains where a corporator sues out a writ of mandamus founded solely on his right to inspect, as being a corporator. In King v. Allgood, (7 T. R. 746,) it was held that a rule for inspection could not be made, unless a suit was pending. This doctrine, however, was distinctly Overruled in King v. Lucas, (10 East, 235.) In the latter case it was held that the demand-ant had a private interest to subserve, in the inspection called for. This was undoubtedly good ground for making the order. But the bare placing, by a court, of its decision on one good ground, neither expressly nor impliedly decides that there are not other equally good grounds. The court, in King v. Lucas, does not undertake either to overrule the first three cases I have referred to, nor to deny the right of a corporator to a general inspection. A good ground, applicable to that particular case, existed for granting the order, and the court chose to, and did, put its decision on- that ground.

The English authority seems to be in favor of, and not against, the right of a corporator to a general inspection.

I see no principle upon which it can be held that a corporator of a municipal corporation has not a right to a general inspection of the public records. It is true that the whole body of the corporators, acting through their legally constituted representatives, as well perhaps as the legislature under which the corporation holds its charter, may make laws and ordinances restricting the right of general inspection; but unless there is some such restriction, I am'unable to see any principle upon which it can be held that a corporator has not a right to a general inspection of “ public records of the corporation.” In the language of the court in Herbert v. Ashburner, “ these are public books which every body has a right to see.”

I have been referred to no express enactment, either by the corporation or the legislature, restricting the right of inspection ; nor have I been furnished with any argument showing that any such restriction is necessarily implied from the framework of the charter of the corporation, and the acts of the legislature in reference thereto. If the learned counsel can not find any such express enactment, nor furnish any such argument, it would- be fair to assume that no such enactment exists, and that no such argument can be furnished.

I have been unable, myself tp find any such positive enactment, and am unable to see any implied restriction in the framework of the charter, or in the various legislative acts relative thereto. The citizens within the corporate limits constitute the corporation, while the mayor, aldermen, common council, street commissioner and others, are its officers or agents, to whom are confided, under certain restrictions, the care and management of the property, business and interests of the corporation. If from the bare facts that corporations can only act through officers of agents, and that therefore officers are.appointed to whom the care of the property, business and interests of the corporation are entrusted, and who are subject to removal -before the time for which they are appointed has expired, and who. are also subject, on the expiration of their terms, to be. replaced by others, at the will of the corporators, it results that immediately on the appointment of such officers the corporators have no longer any interest in the manner in which their property, business and interest is cared for, conducted, and looked after by their agents, then it also follows that the corporators would have no right to inspect the books and papers in the custody of the officers, relating to their official business. If, however, the corpora-tors, notwithstanding the appointment of such officers, still . retain an interest in the manner in which their property, business and interests is cared for, conducted and looked after, then it follows that they have a right to as full knowledge of all the official acts of their officers as the officers themselves have, so as to enable them to ascertain whether their officers have performed their duty in such manner as is acceptable to them, with a view to determine whether they will continue them in office or not.

It can not be seriously questioned that the corporators, notwithstanding the appointment of officers to conduct the business of the corporation, retain a very great interest in the mode and manner in which it may be conducted, and consequently, upon the above reasoning, have a right to full knowledge of all the official acts of their officers, and of course a right to all the means of knowledge which their officers possess in their official capacity.

I have come, therefore, to the conclusion that both on authority and principle, the relator is entitled to the inspection he asks, and also to make such copies of public documents as he desires.

There is one argument against granting the writ, remaining to be noticed. That argument is, that it would be very incon.venient to allow every citizen that chooses so to do, to come into the office and inspect -documents, and make copies of them; and it is suggested that if they be allowed so to do, larger accommodations, and a larger clerical force, would be required. I do not understand that there is any serious difficulty in procuring larger accommodations, and more clerical force, if that should he found necessary. But this is a mere anticipated difficulty, which I apprehend will not practically occur. If it should occur, I see no difficulty in providing means to remove it.

[New York Special Term, November 5, 1866.

Of course the street commissioner has the right and power to prescribe reasonable general rules as to the hours during which citizens may inspect the records of his office, and also such reasonable general rules as shall be necessary to preserve the records from loss or mutilation.

A mandamus must issue.

Geo. G. Barnard, Justice.]