Nowack v. Fuller

• Decision Date: 06 June 1928
• Docket Number: No. 79.,79.
• Citation: 219 N.W. 749,243 Mich. 200
• Parties: NOWACK v. FULLER, Auditor General.
• Court: Michigan Supreme Court

243 Mich. 200

219 N.W. 749

NOWACK

v.FULLER, AuditorGeneral. ^*

No. 79.

Supreme Court of Michigan.

June 6, 1928.

Petition for mandamus by Ed. A. Nowack against Oramel B. Fuller, Auditor General of the State of Michigan.Writ ordered issued, if necessary.

Argued before the entire bench, except POTTER, J.

James A. Greene, of Lansing, for relator.

William W. Potter, Atty. Gen., and M. M. Larmonth, Asst. Atty. Gen., for respondent.

McDONALD, J.

The plaintiff seeks a writ of mandamus to compel the defendant to permit him to inspect certain public records in the office of the auditor general pertaining to the expenditure of public money, authorized by Act 84 of the Public Acts of 1927.The act in question empowered the state administrative board to pay out of the general fund a sum of money not to exceed $25,000 to defray the expenses incident to the entertainment of the 1927 annual conference of the Governors of the several states at Mackinac Island, Michigan.

The petition shows that the plaintiff is a citizen of the United States and a resident and taxpayer in the state of Michigan; that he is the editor and publisher of a newspaper known as the Michigan Digest; that in good faith and for a public purpose he desires to inspect the records in question and publish in his paper a true and fair statement of the expenditure of public money by the state administrative board in defraying the expenses of the Governors' Conference; that defendant has denied him access to the records, and that his action in so doing has greatly hampered and injured plaintiff in his business.The defendant excuses his refusal to permit the plaintiff to inspect the records in his office on the ground that there is no public interest in them, and that the plaintiff has no special interest and is not in law entitled to their inspection.

The plaintiff bases his right to inspection on both the common-law rule and statutory grant.In Michigan there is no statute providing for the inspection of state public records.The statute relied on by the plaintiff is section 3448, C. L. 1915, which reads in part as follows:

‘The officers having the custody of any county, city, township, town, village, school district or other public records in this state shall furnish proper and reasonable facilities for the inspection and examination of the records and files in their respective offices,’ etc.

It is entitled:

‘An act to facilitate the inspection of the records and files in the offices of county, city and township officers in this state.’

In specifically enumerating the various official records to which it is to apply, the statute must be construed as excluding from its effect all not expressly mentioned, except those of the same general character.In Brooks v. Cook, 44 Mich. 617, 7 N. W. 216,38 Am. Rep. 282, it is said:

‘But it is a sensible and well-understood rule of construction that when after an enumeration, the statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named.’

In the title of the act in question the operation of the statute is restricted to the public records of certain specified offices.The body of the act contains the same restriction, but is followed by the words ‘other public records.’Applying the rule of construction announced in Brooks v. Cook, supra, the term ‘other public records' refers to other public records in the offices specifically enumerated.This rule of construction excludes state public records from the operation of the statute.

In the absence of any statutory grant of inspection, the question in issue must be determined by a consideration of the general common-law principles relative to the right of citizens to inspect public documents and records.If there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions.Ours is a government of the people.Every citizen rules.In Michigan the people elect by popular vote an auditor general.They prescribe his duties and pay his salary.He is required to keep a true account of the expenditure of all public moneys, and is answerable to the people for the faithful discharge of his duties.He is their servant.His official books and records are theirs.Undoubtedly it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books, for the purpose of seeing how their money was being expended and how their business was being conducted.There is no such law and never was either in this country or in England.Mr. Justice Morse was right in saying:

‘I do not think that any common law ever obtained in this free government that would deny to the people thereof the right of free access to, and public inspection of, public records.’Burton v. Tuite, 78 Mich. 374, 44 N. W. 285, 7 L. R. A. 73.

There is no question as to the common-law right of the people at large to inspect public documents and records.The right is based on the interest which citizens necessarily have in the matter to which the records relate.

There remains to be considered the common-law right of the individual citizen to inspect public records, in which he has an interest in addition to his interest as a member of the general public.In the elaborate note to State ex rel. Wellford v. Williams, 64 L. R. A. 419, where the English cases are discussed, it is said:

‘In England, by the common law, the right of inspection is very guardedly granted by the courts after a consideration of the purpose for which it is desired.Thus it has been denied when the inspection was desired for private, rather than public, purposes.’

It will be noted by reference to the English cases that the courts were seldom called upon to enforce a private individual's right to inspect public documents and records, except where the inspection was desired to secure evidence in a pending or prospective suit.Accordingly there was formulated the following common-law doctrine:

‘At common law, every person is entitled to the inspection, either personally or by his agent, of public records, including legislative, executive, and judicial records, provided he has an interest therein which is such that would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information.23 R. C. L. 160;34 Cyc. 592.

When the procedure which was used for the enforcement of the citizen's right to inspect public records is recalled, it will appear that the doctrine above quoted is not so much a denial of the right to inspect as it is a declaration of the interest which a private individual must have to avail himself of the remedy for the enforcement of his right.At common law, the individual citizen as a member of the public had a right to inspect; but, if inspection was refused, he could only enforce his right by mandamus proceedings instituted in his behalf by the Attorney General.He could not sue out the writ in his own name.Originally the writ of mandamus was a prerogative writ, supposed to proceed from the king himself, who sat in his Court of King's Bench; and it was formerly allowed only in cases‘affecting the sovereign, or the interests of the public at large.’In time, the right to the writ was extended to the private individual.

But mandamus is based on interest, and...