Burton v. Tuite

• Decision Date: 28 December 1889
• Citation: 44 N.W. 282,78 Mich. 363
• Court: Michigan Supreme Court
• Parties: BURTON v. TUITE, City Treasurer of Detroit.

44 N.W. 282

78 Mich. 363

BURTON v. TUITE, City Treasurer of Detroit.

Supreme Court of Michigan

December 28, 1889

Henry A. Chaney, for relator. John W McGrath, for respondent.

MORSE J.

The relator asks for the writ of mandamus to compel the respondent to permit him to inspect and examine the records and files in the city treasurer's office at Detroit, and to furnish proper and reasonable facilities for such inspection and examination, and for making memoranda and transcripts from such files and records, in compliance with Act No. 205, Pub. Acts 1889. The actin question reads as follows: "That the officers having the custody of any county, city, or town records in this state shall furnish proper and reasonable facilities for the inspection and examination of the records and files in their respective offices, and for making memoranda or transcripts therefrom during the usual business hours, to all persons having occasion to make examination of them for any lawful purpose: provided, that the custodian of said records and files may make such reasonable rules and regulations with reference to the inspection and examination of them as shall be necessary for the protection of said records and files and to prevent the interference with the regular discharge of the duties of such officer: and provided, further, that such officer shall prohibit the use of pen and ink in making copies or notes of records and files." Pub. Acts 1889 p. 286

Relator shows in his petition that he is engaged in the abstract business in the city of Detroit, and has invested a large sum of money in said business. That his business requires that he should know what taxes, levied by the city of Detroit, are liens upon property of which he is furnishing abstracts, and by whom such liens, if any, are held. That when lands are sold for unpaid taxes the sale is conducted by the receiver of taxes. A statement of such sales in book form is made by the receiver, and turned over to the city treasurer, in whose custody it thereafter remains. When sales are redeemed or city bids sold, such redemption is minuted in this book. That it is necessary in said relator's business to frequently consult this book. If proper facilities were granted him, he would not need to consult the same more than 10 minutes in any one day. That the prevailing rule and custom is, in all the city and county offices, to permit all persons to have free access to the records therein, and he, himself, has ordinarily been allowed this privilege without obstruction or restraint, except in the case of the respondent, who is city treasurer of the city of Detroit. That said respondent has frequently refused to permit your relator to inspect the sales-book above referred to, as have also his subordinates; and, if at times an inspection of such records has been granted, it has always been accompanied with insulting language, implying that relator was taking time which belonged to the public, and that he must hurry, or that the books would be taken from him; and this, too, although no other parties were present to be waited upon or attended to, and though much more time was consumed by said treasurer in making such complaints than would be necessary for relator to inspect and make such memoranda as he needed if he could have access to the records without unreasonable interruption. A clerk would be detailed to see that the relator did not mutilate the records, with instructions not to permit relator to take the books. But more frequently relator has been told by said city treasurer and his subordinates that he could not see the records. Respondent has followed this obstructive course for a long time, to the great annoyance and discomfort of relator, and in face of the fact that there was posted in his office a notice to the effect that all information desired by the public would be promptly and cheerfully furnished. That respondent at one time informed relator that it was a matter of money with him and that, if relator would pay him $25 per month, relator could have what access he pleased to the records in said treasurer's office. July 2, 1889, relator called at the treasurer's office, at about 11 o'clock A. M., and requested the privilege of inspecting some of the sales-books. Respondent asked if the information wanted was for relator's private business. Relator replied that Richard M. Coon was the owner of lot 24, in Wessons' section of the Thompson farm, in the city of Detroit, and that he had employed relator to see if certain tax-sales which had been previously made were still held by the city or disposed of, and, if disposed of, to whom. Respondent requested relator to write out what he wanted on a piece of paper, which he did. The paper was handed to a clerk, who was called by respondent to wait on relator. The parcel of land had been sold for six successive years, and it became necessary to inspect six different sales-books. That the statement which relator had made for the clerk, a copy of which he retained, informed the clerk the number of the book required, the page of the book, and the line on the page which he desired to inspect. That said clerk produced four of the books required, and they were hastily inspected by relator, but he was not permitted to handle them. During the examination, which could hardly have occupied 10 minutes, respondent himself sat by, discussing the general subject of relator's rights, and apparently in no wise hurried by the pressure of official duties. That, after relator had inspected the fourth volume, said clerk-taking his cue from the language and actions of his employer, said respondent-abruptly, violently, and unreasonably refused to produce the other two books requested, and left the room. That relator then asked the city treasurer himself to produce the two books asked for, but said treasurer refused. Relator then told respondent that he would get the books himself if he (respondent) would permit him (relator) to go into the room where said books were, for that purpose. Respondent told him he could not go into that room, and absolutely refused to permit him to see the books he desired. Relator offered respondent $10 per month to be accorded such treatment as accorded to the public. Respondent refused the offer. Relator then formally demanded the right to inspect the two books he had asked for before, and reminded respondent of the statute. Relator said that if he could not see the books he should ask for a mandamus. Respondent told relator to "mandam" if he wanted to; that the books were in the vault, and relator could not see them; and that nothing but an order from the common council would make him remove them. He told relator to leave a written memorandum of what he wanted, and relator refused to do this, as he had already furnished respondent with one statement of what he required. Respondent became vociferous, declared that he had disposed of the subject, refused to hear anything further, and left the room. Relator then, under advice of counsel, made a new memorandum of what he wanted, and offered it to the deputy treasurer, who said he had no time to attend to it. Relator told him he need not attend to it then, as he would send his clerk for it; laid the memorandum on the table, and placed a paper-weight upon it. Respondent came in about then, in a high temper, and with some profanity ordered the relator out of the office, which order relator obeyed. During the whole time of this interview there was no other person in the office on business, unless he was secluded in the private office of respondent.

The respondent in his answer denies that the books referred to by relator are public records, or that they are made so by charter, ordinance, or law, or that they are required by law to be kept, or that relator, or any person except respondent is entitled to the possession of said books or entitled to take them out of the custody of respondent, or to make extracts from them, except under the immediate supervision of respondent. He denies that it is the universal practice in city offices to permit all persons desiring to inspect the said books to have free access to them, or that such is the usage, or that such usage has become so well established as to have the force of a common-law custom. He denies that relator has been ordinarily allowed to inspect such books without obstruction or restraint, if by obstruction or restraint is meant a denial of the right of access to said books without the supervision of the city treasurer. He denies the right which relator seeks to establish is recognized or confirmed by any act of the legislature. He denies that at any time this respondent, or, by this respondent's direction or authority, any deputy or clerk in respondent's office, has accompanied any inspection of the books which relator has been allowed to make with insulting language. He denies that relator has been told by respondent that he (the relator) could not see the records. He denies that respondent has been guilty of obstructing relator. He denies that respondent derives an income from abstracts amounting to $1,000 per annum, or any such sum. He denies that this respondent has ever said that if relator would pay respondent $25 per month during his term of office the relator could have whatever access he desired to the books in respondent's office. He denies that he made use of the expression found on page 9 of relator's petition, viz., "God damn quick, too." Respondent also sets forth in his answer that relator is seeking the information from the books as a matter of merchandise to sell to others. That up to July 2, 1884, abstracts could only be procured of the city treasurer, and that the treasurer, whose office expired in 1884, realized from $1,500 to...