D. C.]

DIST. OF COL. r. BAKERSMITH

Argument of Counsel.

577

government of the District, or officials or employees of said government, before the 15th of January, 1900.

It is from this order that the special appeal was allowed; and the first question is, whether the order was such as, under the circumstances, should have been passed?

Mr. Andrew B. Duvall, attorney for the District of Columbia, and Mr. Clarence A. Brandenburg, assistant attorney for the appellants:

1. Appellant has the right to decline to produce or allow the inspection of documents injurious to public interests; it is contrary to public policy to require such production or inspection. It is laid down by the authorities as a wellestablished principle of law that official transactions between the heads of the departments of the government and their subordinate officers are in general treated as secrets of State, and that, therefore, executive officers are not bound to produce papers or disclose information communicated to them, or in their possession, whenever, in their judgment, public considerations make it inexpedient. Appeal of Hartranft et al., 85 Pa. St. 433; Worthington v. Scribner, 109 Mass. 487; Totten v. United States, 92 U. S. 105; Bradley v. McIntosh, 5 Ont. Rep. 227.

2. Determination of expediency to produce municipal records rests with the Commissioners. Thompson v. German Valley RR. Co., 22 N. J. Eq. 111; Appeal of Hartranft 85 Pa. St. 433, 449.

3. There is absolutely nothing in the petition for the inspection showing such interest as would entitle the appellee to such inspection, even if it were not detrimental to public interest or public policy. Brewer v. Watson, 61 Ala. 310; 76 id. 49. Nor is there in said petition any specification of any document or report in the appellant's custody.

Mr. Charles H. Merrilat and Mr. Charles F. Carusi for the appellee:

1. The records sought to be examined are public records. Some authorities hold that at common law there is a right of

Argument of Counsel.

[18 App. inspection in the public of such records irrespective of any special interest therein. People v. Cornell, 47 Bard (N. Y.) 329. All agree that the slightest interest in the records is sufficient. Appellee's interest appears from her declaration. 14 Ency. of Law (1st ed.), 171; Dill. on Mun. Corp. (4th ed.) Sec. 303; Grant on Corp. 311; State v. Williams, 41 N. J. L. 332-336; Diamond Match Co. v. Powers, 51 Mich. 145; People v. Walker, 9 Mich. 328; People v. Mott, 1 How. Pr. 247; Cockburn v. Bank, 13 La. Ann. 289.

2. Appellee's right of inspection is because she has an interest in the municipal records. Whether that interest rests in tort or contract is immaterial. The municipal corporation and its agents have or should have no wish to injure one of its corporators by suppressing evidence that would establish the fact that the municipality owed her compensation for damage caused her by it or its servants. The contention made. in appellant's brief that cases such as this come under the doctrine of State secrets as to which public officials are vested with absolute authority to give or withhold information is absurd. No such autocracy has any place in our form of government. Carried to its logical conclusion public officers would be czars and public records but private personal memorials. The cases cited by appellant may be apropos of State secrets, but have no reference to the pending appeal. Moreover, the Commissioners of the District have nowhere in the record claimed the documents sought contained State secrets or matters affecting public policy. Payment of a few hundreds or thousand dollars on account of personal injuries caused by a defective highway does not involve public policy.

3. The act of Congress of May 13, 1892, opened the records sought to be inspected to the fullest extent. It provides: "And it is hereby declared that all public records which have any reference or in any way relate to real or personal property in said District shall be open to the public for inspection free of charge." This statute was not designed to limit the old common-law right of inspection, but to meet a specific evil arising out of efforts of authorities to conceal certain things for their own purposes. It is broad, plain, and

unambiguous. The purpose for which the inspection is de sired has nothing to with the right conferred by the statute. The order made by the court below is in every respect within its terms. The records are public records, and they relate to property in the District. Indeed, it was just such records as those appellee seeks to inspect that Congress probably had in mind in passing the law, for taxpayers are subject to special assessments on account of sewer improvements.

4. The grant of the order was not only proper, but the order is framed in appropriate terms. It limits inspection to public records which would be competent evidence at the trial. It is as specific as the nature of the case, and the fact that all access is denied by appellant to data which would enable the order to be made more specific and to identify documents more particularly, would permit. The rule of law is that in such orders it is sufficient to describe papers by their subject-matter, and with such degree of certainty only as is practicable considering all the circumstances of the case. United States v. Babcock, 3 Dill. (U. S.) 566-570; Bloede Co. v. Bancroft Co., 98 Fed. Rep. 175; United States v. Burr, 2 Burr's Trials; Vasse v. Mifflin, 4 Wash. C. C. (U. S.) 52; Jones v. Parker, 20 N. H. 32; Morris et al. v. Hannen and McKnight, 1 Car. & M. 23; Rogers v. Custance, 2 M. & Rod.

Moreover, appellant cannot object to the phraseology of the motion, since it neither put in a counter affidavit that it was unable to know what papers were wanted, nor objected to any specific part of the order, nor gave the slightest aid towards making a better or more specific order. In this respect it owed a duty analogous to that owed by one making a plea in abatement.

5. The course taken by appellee was proper practice. A suit being pending it was proper to compel inspection by a motion in the cause in the court having cognizance of the suit instead of proceeding by mandamus. See 14 Ency. Law

(1st ed.), 171; Dill. on Mun. Corp. (4th ed.), Sec. 303; Tidd's Pr. 595; People ex rel. Palmer and Tompkins v. Vail, 2 Cow. 623-625; Jacques v. Collins, 2 Blatchf. (U. S.) 23.

1

Opinion of the Court.

[18 App.

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 trial 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 made. 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 records, 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, 209.

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, char