pened, on the plea that he is not satisfied that [ writ of mandate, being the appeal S. F. No. it has happened. If the fact exists, and is es- 9842. tablished by sufficient proofs, it is his legal duty to be satisfied, and to act accordingly."

In Iglin v. Hoppin, 156 Cal. 484, 105 Pac. 582, a case quite similar in its facts to the one before us, it was there sought by mandamus to compel the supervisors of Yolo county to subscribe a specific order theretofore given

by them denying the application of petitioner to have certain lands in a reclamation district, set off into an independent district, and to enter an order granting the petition. A general demurrer was sustained on the ground that exclusive jurisdiction to deter mine the facts upon which the order was made was vested by the Legislature in the supervisors, and that their action could not be reviewed by mandamus proceedings. The opinion holds that upon the facts pleaded and taken as admitted on the demurrer the petitioners were entitled to relief by mandamus.

I think, however, that something more may properly be said on the question whether or not the Water Commission, in exercising the power conferred upon it by the sections of the statute particularly considered in the in a judicial capacity. It is obvious that, if opinion, may, under some circumstances, act it does so it will be taking property of one person and giving it to another; in other words, that it will be exercising powers which cannot be exercised except by courts authorized by the Constitution.

Section 1 of article 6 of the Constitution declares that

"The judicial power of the state shall be vested in the Senate, sitting as a court of impeachment, in a Supreme Court, District Courts courts as the Legislature may establish in any of Appeal, superior courts and such inferior incorporated city or town, township, county, or city and county."

In Puterbaugh v. Wadham, 162 Cal. 611, If the Water Commission is acting judicial123 Pac. 804, this court has said: ly, it is doing so because it is determining the "It is undoubtedly true that the writ of man-rights and titles of individuals to private damus is not a writ of error, and that, gen- real property, and in that capacity it would erally speaking, it is not available for the pur-be acting as a court as fully as a court of pose of altering or varying in any particular general jurisdiction would be acting when it the finding of a judicial or quasi judicial body or officer acting within its or his appropriate jurisdiction; but where the facts are not disputed, and the only matter to be determined is the duty of the body or officer under the law, the court will define such duty and enforce not only its performance, but the carrying out of the obligations of the respondent body or officer in a particular manner."

To the same effect is the decision in Harelson v. San Joaquin Irr. Dist., 20 Cal. App. 324, 128 Fac. 1010.

[5] These citations are at least sufficient authority for holding in the matter before us that the trial court was in error in sustaining the demurrer to the petition for writ of mandate. All the allegations of the petition must be taken as true on demurrer, and such petition alleged all the facts required to entitle the petitioners to the relief demanded.

The judgment is reversed as to the proceeding for writ of mandate, with direction to the trial court to overrule the demurrer and hear the cause on the merits.

As to the petition for writ of review. there being no judicial powers vested in the Water Commission, so far as applies to the matter before us, the judgment thereon is affirmed.

adjudicates the title to real property. Quinchard v. Board, 113 Cal. 669, 45 Pac. 856; People v. Board, 122 Cal. 424, 55 Pac. 131; Rhode Island v. Mass., 37 U. S. (11 Pet.) 718, 9 L. Ed. 697; Prentis v. Atlantic, etc., Co., 211 U. S. 226, 29 Sup. Ct. 67, 53 L. Ed. 150; Marin, etc., Co. v. R. R. Comm., 171 Cal. 712, 154 Pac. 864, Ann. Cas. 1917C, 114.

The effect of section 1, art. 6, aforesaid, is to vest in the courts therein mentioned the entire judicial power of the state. It is not within the power of the Legislature to vest in any other body any general judicial power to establish and declare the right and title to private property. The Water Commission is not one of the superior courts of the state and could not be made such court or be given the powers thereof, and it is not an inferior court with jurisdiction limited to incorporated cities, or towns, townships, counties, or cities and counties. On the contrary, its jurisdiction is state-wide. Consequently it is not a court which comes within the purview of said section 1 and it is not within the power of the Legislature to give that Commission such judicial power. Western, etc., Co. v. Pillsbury, 172 Cal. 413, 156 l'ac. 491, Ann. Cas. 1917E, 390; Pacific, etc., Co. v Pillsbury, 171 Cal. 322, 153 Pac. 24. There is no other section of the Constitution which pur

WILBUR, J.; LENNON, J.; ports to confer power upon the Legislature

We concur: SHURTLEFF, J.

SHAW C. J. (concurring). I concur in the opinion of Mr. Justice SLOANE, so far as it deals with the question of the appeal from the judgment of the court below denying a

to invest such commissions with judicial powers of this nature. Certain judicial powers may be invested in the Industrial Accident Commission and in the Railroad Commission, but, with these exceptions, all the general judicial power of the state must be

(202 P.)

vested in the courts named in the Constitution and in such inferior courts of local jurisdiction as may be established under said section 1.

For this reason I am of the opinion that the act confers no judicial power upon the Water Commission, and, if it purported to do and so far as it may purport to do so, it would be and is without effect. The consequence is that any award is assumed to make in the exercise of such purported judicial power would be absolutely void, and that certiorari would not lie to review its action in that regard.

(187 Cal. 510)
COLDWELL V. BOARD OF PUBLIC
WORKS OF CITY AND COUNTY OF
SAN FRANCISCO et al. (S. F. 9694.)
(Supreme Court of California. Dec. 9, 1921.)

In Bank.

Appeals from Superior Court, City and County of San Francisco; George E. Crothers, Judge.

Petition for writ of mandamus by Colbert Coldwell against the Board of Public Works of the City and County of San Francisco and others. From judgment granting petition with certain exceptions, the defendants appeal, and from such judgment, and also from order denying his motion to vacate and set aside the judgment entered and to amend the conclusions of law contained in the court's findings, the petitioner appeals. Affirmed as modified.

Robert B. Gaylord, of San Francisco, for appellant.

George Lull, City Atty., Robert M. Searls, Special Atty., both of San Francisco, for respondents.

1. Records 14-Estimates, plans, etc., preLAWLOR, J. This is an appeal by both pared by subordinates of city engineer, open petitioner, Colbert Coldwell, and defendants, to inspection as "other matters in the office the board of public works of the city and of any officer," but not as "public records." county of San Francisco, the individual memEstimates, plans, drawings, maps, and other bers thereof, and M. M. O'Shaughnessy, the data prepared by the assistants and subordi- city engineer, from a judgment granting, nates of the city engineer of the city and county with certain exceptions, a petition to the of San Francisco, to be submitted to him for his superior court of the city and county of San approval, in connection with the construction Francisco for a writ of mandate to compel of a municipal water supply system of which the engineer had charge as an officer of the the defendants to allow petitioner to view board of public works, are not, before such ap- and take copies of certain documents and proval by the engineer, "public records" open data in the office of the city engineer of the to inspection by any citizen of the state, under city and county of San Francisco, and by the Code Civ. Proc. §§ 1888, 1892, 1893, 1894, and petitioner from an order of the court denyPol. Code, § 1032, and Charter of the City and ing petitioner's motion to vacate and set County of San Francisco, art. 6, § 6, and arti- aside the judgment entered and to amend ele 16, § 16, but may be inspected as "other the conclusions of law contained in the matters in the office of any officer," within Pol. Code, § 1032, notwithstanding tentative court's findings. As the same questions are involved in both appeals, they may be considered together.

character thereof.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Record.]

2. Records 14 That city engineer had communicated matters to city attorney did not affect citizen's right of inspection.

Under Pol. Code, § 1032, the public had a right to inspect public records or other matters in the office of the city engineer, though city engineer had communicated them to the city attorney, notwithstanding Code Civ. Proc. 1881, subds. 2 and 5, relating to confidential

communications.

3. Records 14-Data in city engineer's office, having once been inspected by some citizens, could not be withheld from inspection of others as confidential matters.

Where data prepared by city engineer's office in connection with construction of city waterworks system had been inspected by some citizens, the right of another citizen to inspect it could not be denied on the ground that it was confidential; the matter having lost its confidential character by the previous inspection.

The petition alleged that the city and county of San Francisco was engaged in the acquisition and construction of a municipal water supply with engineering works at Hetch Hetchy, in the state of California; that in connection with the Hetch Hetchy project the board of public works and M. M. O'Shaughnessy as city engineer had done a large amount of work; that the board of public works had in its possession a large number of plans, specifications, reports, contracts, estimates, certificates, receipts, surveys, field notes, maps, plats, profiles, and other papers relating to the Hetch Hetchy project, which included records of certain specified structures, drill borings, and a proposed section of the dam; that petitioner, a citizen of the city and county of San Francisco, desired to inform himself and others with regard to the work; that he desired to investigate the records of the Hetch Hetchy project, including both those generally described and those specifically described; that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

he had made demand on the defendants [the people and citizens of the city and counthat he be given access to and inspection of ty of San Francisco if such data should be the records mentioned, which demand had given publicity"; and that in refusing inbeen refused; and petitioner prayed that spection of the data asked by petitioner, dedefendants be ordered to allow petitioner fendant city engineer was acting under auto inspect all the records mentioned, with thority and instruction from the board of the privilege of taking notes, copies and oth-supervisors of the city and county of San er data therefrom. Francisco.

In their answer, the defendants alleged that

The court found that all the allegations of the petition were true, except those of para"There are in the office of the city engineer graph X, which concerned the making of a a large number of incompleted and unapproved demand for inspection by petitioner, his maps, plans, estimates, studies, reports, and agents and representatives. In that conmemoranda relating more or less directly to nection the court found in detail that petithe Hetch Hetchy project, some of which have tioner had demanded of defendants that he, been prepared or are in the course of prepara- his agents and representatives, be given action by the city engineer's assistants, some of cess to and inspection of all the records which have been left there by employees of pre- mentioned, with the privilege of taking copvious administrations, but none of which have been finally approved by the city engineer or ies, notes, and data therefrom, but that the filed with the board of public works or made defendants had refused such demand, except a part of any public or official transaction. As that petitioner had been accorded the right to the last-described maps, plans, estimates, to inspect the detailed specifications of the studies, reports and memoranda, defendants tunnel aqueduct between Early Intake and allege that the city engineer has not had the Moccasin creek, including the record of ceropportunity of passing on such data either in tain drill borings and the city engineer's esthe way of approval or disapproval; that as timate thereon, and other records which deat present constituted, said data is of the kind fendants admitted constituted public records. and type which may be modified, corrected or destroyed at the will of the city engineer or the It was also found that the purpose of the assistant in charge of the same; that they petitioner was not to mislead or prejudice have not been made the basis of and are not the public mind against the Hetch Hetchy records of any public or official acts or transac-project, and that it was not the petitioner's tions; that they are not public records, public motive to find in the records to which access books, public writings, public documents or was sought a basis for unfair or sinister critpublic matters; that the interests of the public icism of the Hetch Hetchy project; that there and the Hetch Hetchy project require that said data be kept and withheld from inspection by was data consisting of confidential reports, the petitioner or his agents"; that defendants estimates, and data prepared for use in deny that "until the city engineer completes, approves, and files said data or other matter with the board of public works, that the same passes into the possession, custody, or control of the board of public works, or becomes a part of any public record whatever. Defendants deny that they, or either or any of them, have ever refused or still refuse to petitioner or his representatives or agents access to that portion of the hereinabove described data which is a matter of public record, and allege that all such data or matter which constitutes part of the public records of the city and county of San Francisco has at all times been, and is still open to said petitioner."

pending litigation, which it would be detrimental to the interests of the people of the city and county of San Francisco to disclose prior to the time at which it would become necessary to use it in connection with the litigation; that the city engineer had permitted all of the records and other matters mentioned in the petition to be examined by an investigating committee from the Civic League of Improvement Clubs, and that they had been examined by such committee; that the board of supervisors had instructed the city engineer to refuse inspection to petitioner, as alleged in the answer.

Then followed certain allegations that it The conclusions of law were to the effect was necessary to keep private the informa- that petitioner was entitled to a writ of tion concerning the work on the Hetch mandate as prayed, "except that such writ Hetchy project until the plans for it had shall not decree to said petitioner the right been approved, and impugning the motives of to inspect or take copies, notes or data from petitioner in seeking the information he any of the confidential reports, estimates or wanted, and that "part of the data in the data, collected or compiled by assistants or city engineer's office to which access is other engineers employed for that purpose sought by petitioner consist of confidential reports, estimates and data collected and compiled by assistants and other engineers employed for that purpose, and held for use in pending litigation and investigations affecting the Hetch Hetchy project; that it would be extremely detrimental to the interests of said project and the interests of

for the use of the city attorney of the city and county of San Francisco, or other attorney at law acting for said city and county, in advising the defendants in respect to their official rights and action or for use by said attorneys or either of them in legal proceedings *** to which proceedings the defendants or any of them in their official capacity,

(202 P.)

or the city and county of San Francisco are or may be parties litigant; except further from said writ any advice given in reference to such privileged data by the city attorney or other attorney in the course of his professional employment as attorney for said city and county of San Francisco, or for said defendants in their official capacities."

Defendants state:

"We may summarize the description of this data by saying that it consists of maps, plans, estimates and studies in the possession and control of the city engineer and his assistants upon which no official judgment or action had been taken at the date of the petition. It was and is defendants' contention that a public record is not made every time a public employee puts his pencil on paper; that it must be a record of some official act and not merely a tentative study or design concerning which no official action has been taken either in the way of approval or rejection;" that "the data to which access is sought is not required by law to be kept, has not been approved by the city engineer, has not been filed with the board of public works, has not been made a part or basis of any public transaction. For the most part it consists of preliminary maps lacking detailed drawings and working plans necessary to make it available for use even if officially approved and filed. The line of demarcation between public records and documents and data or memoranda in the course of preparation must, of course, be drawn somewhere," and that "the tentative conclusion of an assistant may or may not be correct, and until the city engineer finally passes upon it, it does not become a record of the opinion of his office."

Petitioner's contention is:

a document prepared by a public official or his subordinate in the course of duty and at public expense, is a public document and every citizen has the right to inspect it."

Section 1888, Code of Civil Procedure, is as follows:

"Public writings are: (1) The written acts or records of acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial, and executive. (2) Public records, kept in this state, of private writings."

Section 1892 provides that

"Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute."

And section 1893 that

"Every public officer having the custody of a public writing, which a citizen has a right to inspect, is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor."

Section 1894 provides in part that

"Public writings are divided into four classes: * * * (3) Other official documents; (4) public records, kept in this state, of private writings."

Section 1032 of the Political Code provides that—

"The public records and other matters in the office of any officer are at all times, during office hours, open to the inspection of any citizen of this state."

Section 6 of article 6 of the charter of the city and county of San Francisco is as follows:

"The board [of public works] shall keep and preserve a record of all its proceedings, and copies of all plans, specifications, reports, contracts, estimates, certificates, receipts, surveys, field notes, maps, plats, profiles, and of all papers pertaining to the transactions of the board."

Section 13 of article 16 provides that"All books and records of every office and department shall be open to the inspection of any citizen at any time during business hours, * * but the records of the police department shall not be subject to such inspection except permission be given by the police commissioner or by the chief of police."

That "the fundamental issue on this appeal is not the right of these petitioners to inspect the Hetch Hetchy records. The question is whether the citizens of San Francisco, in their capacity as citizens and distinguished from their corporate entity, have a right to see these records, whether they have a right to go behind the conclusions of the city engineer and whether they have the right to see the work for which their money was paid." That "we believe that any document prepared in a public office within the scope of the duties of that office, for the purpose of conducting public business and the expense of which is borne by the municipality, belongs to the municipality That it is a matter of public interest and that the citizens of the municipality by virtue of their citizenship are entitled to inspect that docuIment and draw from it such conclusions as they choose. We submit that it is immaterial whether one branch of a particular department has transmitted the document to another or not, and that it is immaterial whether in the course of days or months or years, the head of the subordinate department has, or has not, is eliminated here. seen fit to stamp it with his mental approval. It makes no difference whether it is a correct or erroneous document; it is a document which all documents to which access is sought are belongs to the public, and if it belongs to the public records or "other matters" which the public, the citizens have the right to inspect Public is entitled to inspect, such a finding it," and that "the real rule, however, is that is to be implied from the conclusion of law

202 P.-56

On appeal the defendants waived the objection they made in the court below on the score of petitioner's motives, so even if the motives of a citizen have any place in the consideration of such a question, the point

Although there is no express finding that

In Egan v. Board of Water Supply of the City of New York, 205 N. Y. 147, 98 N. E. 467, 41 L. R. A. (N. S.) 280, Ann. Cas. 1913E, 56, petitioner asked for and was allowed inspection of certain correspondence which would tend to show why the board had failed to grant a contract to the lowest bidder. The court said in part:

that petitioner is entitled to inspect all of whether or not it falls within the statutory them, with the exception of those which definition. were prepared for the use of the city attorney in litigation. An examination of the authorities shows that there is no single test which can be applied to determine what are and what are not "public records." In Barrickman v. Lyman, 155 Ky. 710, 160 S. W. 267, the distinction was held to rest on whether or not the documents were required by law to be kept. In the case of Kyburg v. Perkins, 6 Cal. 674, cited by petitioner, it was said that

"To entitle a book to the character of an official register it is not necessary that it be required by an express statute to be kept."

are

"It may not be denied that there are papers concerning governmental matters which properly treated as secret and confidential, such for example as diplomatic correspondence and letters and dispatches in the detective police service."

And as pointed out, petitioner insists [1] In the case at bar the record shows that all documents, prepared by public offi- that the city engineer, as an officer of the cials at public expense, are public docu- board of public works, is in charge of the ments. Hetch Hetchy project, and that he is asIn Mushet v. Department of Public Serv-sisted by a large number of assistants and ice of the City of Los Angeles, 35 Cal. App. subordinates. These assistants prepare data 630, 170 Pac. 653, petitioner, a taxpayer, connected with the project, which consists brought an action to compel the defendant of estimates, plans, drawings, maps, or the department of public service to allow him like. This data is all submitted to the city to inspect certain books of account, records, engineer for his approval, unless a subordipapers, and documents connected with an nate is formally appointed to take charge electric heat, light, and power system which of a particular branch of the work, in which the city was operating. The inspection was case the subordinate's approval of such allowed over the objection of defendants work is final. When an estimate of the that the documents were not public records. plan, which is considered acceptable, is comIn that case it was said: pleted it is approved by the city engineer, and usually is at once forwarded to the board of public works. Defendants concede that after such approval the documents are public records. Until finally approved by the city engineer, with the exception noted, all the data is but tentative, and is liable to change, and much of it is destroyed when it is refused approval. It is this preliminary matter which defendants, as stated above, contend should not be submitted to public inspection. Defendants do not contend that surveys and maps, complete in themselves, of the territory which the project will occupy are not open to public inspection. The data referred to here, consisting of preliminary estimates, plans and the like, are computations based on such sur

"The appellants, it is true, are by the charter of Los Angeles made officers of the municipality; but the books and papers which respondent seeks to examine are not made official documents merely because they are kept under the direction of city officials. Their character is fixed by the considerations which we have already advanced."

The considerations advanced to determine whether or not the documents were public

records were as follows:

"Returning to the language of sections 1894 and 1888 of the Code, it is plain that the books and papers mentioned in the petition are not described in either subdivisions 1, 2 or 4 of section 1894, or subdivision 2 of section 1888. If the sections cover them at all they must fall within the language of the one remaining veys. subdivision of each; in other words, consoli- We are of the opinion that the prelimidating the language of those subdivisions, they must answer this description: They must be 'official documents' other than laws or judicial records, and must be the 'written acts or records of the acts * of official bodies' or 'tribunals' or of public officers this state.""

*

nary estimates and details which form this incompleted data are not of such a character as would constitute them public records. Until they receive some official approval the of documents cannot be considered the act or the record of an act of the city engineer or the board of public works. They cannot be In that case it was held that the docu- considered the official acts of the city enments were public records, although the city gineer because compiled in his office, for he in operating the electric system was engag- testified that "I don't allow anything to go ing in a private enterprise as a proprietor. out of my office except it has my final, defiIt appears from that case that the only nite approval." Before approved they have means of deciding whether or not a docu- not attained the character and dignity of ment is a public writing is by determining completed acts or documents of any kind.