Payne v. Staunton.

• Decision Date: 01 March 1904
• Court: West Virginia Supreme Court
• Parties: Payne v. Staunton.

55 W.Va. 202

Payne

v.Staunton.

Supreme Court of Appeals of West Virginia.

Submitted November 16, 1903.

Decided March 1; 1904.

1. Elections Poll Books County Clerk.

Poll-books of a special election under a special act of the Legislature deposited in the office of the clerk of a county court are public papers or documents under sections 3 and 5 of chapter 117. Code, and the clerk is under duty to allow inspection of them under proper circumstances to a person interested in them, though such special act be unconstitutional, (p. 204).

2. County Clerk Public Records Mandamus.

Several persons who make common application to a clerk of a county court for inspection of public records, and are refused it, if entitled to such inspection, may unite in mandamus to compel such inspection, (p. 208).

3. County Clerk Records.

A clerk of a county court has such interest as entitles him to refuse an inspection of records in his office when such inspection is not called for by law. (p. 209).

4. Ministerial Officer Unconstitutional Act.

Ministerial Officer. Can he refuse to perform an act required by an unconstitutional statute before it has been judicially declared invalid? (p. 210).

5. Mandamus Interested Persons.

A pecuniary interest in an individual in the act sought to be compelled by mandamus must exist to maintain it. (p. 210).

6. Mandamus Common Interest.

One or more individuals may maintain mandamus to compel the doing of an act, in which the public at large, including them, have a common interest, (p. 211).

7. Public Records.

Inspection of records and papers in a county clerk's office is not a right vested in every person or under all circumstances. The person asking it must have an interest in the record or paper of which inspection is sought and the inspection must be for legitimate purpose, (p. 212).

Mandamus Public Records Interested Persons. Mandamus will not lie to compel inspection of records by a private individual for the sole purpose of learning evidence for the institution of criminal prosecution, (p. 214).

Error to Circuit Court, Kanawha County. Action by J. M. Payne and others against E. "W. Staunton, county clerk. Judgment for defendant. Plaintiffs bring error.

Affirmed.

Linn, Byrne & Cato, P. G. Walker, and A. Burlew, for plaintiffs in error.

Mollohan, McClintic & Mathews, for defendant in error.

Brannon, Judge:

The Legislature of 1903 passed chapter 59 "to authorize the county court of Kanawha county to fund the indebtedness of said county by issuing its bonds, and to authorize a special election for that purpose." Under that act an election was held upon the question whether bonds should be issued, and the returns of the election were made and canvassed, and the result ascertained, and the poll books and ballots were returned to the office of the clerk of the county court. J. M. Payne and others applied to E. W. Staunton, clerk of the county court, to be allowed to inspect the poll books of said election for all the precincts of the county but he refused to do so.

Then they demanded that said clerk made them certified copies of certain ones of said poll books, offering to pay for them, but said clerk refused to make such copies. Then said Payne and others applied to the circuit court of the county by petition for a mandamus to compel the clerk to allow them to inspect said poll books, and to make such copies as they should require. An alternative mandamus was awarded, and upon its return Staunton demurred to it and moved to quash the alternative mandamus, and the court gave judgment sustaining the demurrer to the petition, and quashing the alternative mandamus, and from this judgment the plaintiffs sued out a writ of error.

One defense made by Staunton is, that the poll-books are not records or papers contemplated and provided for in section 5, chapter 117, Code, providing that "the records and papers of every court shall be open to the inspection of any person, and the clerk shall, when required, furnish copies thereof." The reason given for such denial of the public character of these poll-books is, that the act of the Legislature under which the election was held violates Art. 6, section 39, of the constitution prohibiting special or local legislation in certain cases. Staunton claims that these poll-books are not more than waste paper in his office, and that no duty rests upon him to allow inspection or make copies of them, because of the unconstitutionality of the act. We will not pass upon the validity of the act, because we do not find it imperative upon us to do so. In deference to the Legislature, it is everywhere held by the courts that courts will not pass upon this question, unless a decision upon that very point is necessary to the determination of the case. Edgell v. Conaway, 24 W. Va. 747. Even if we say that the act is open to such objections, still we hold that these poll books are public papers on file in a public office subject to inspection, for the purpose of this case; they are such pro hac vice. It is of primary import that public records and papers shall be of ready access to the public, and we must be reluctant to declare that a custodian of them can. restrict this right incorporated in the cited provision of the Code. We must be slow to announce that a clerk, whose duties as to their inspection and making copies of them, are purely ministerial, not discretionary, can assume the dangerous power to hold an act of the Legislature invalid and for that reason deny to citizens the right to inspect papers deposited in his office and custody only for preservation and public inspection and use because merely they originated under such a statute. We do not say that any and every paper happening to be in the clerk's office is official, or that any but legally public ones give the right to inspection; but that is not the case in this instance. These election papers have higher character. The election was held, the returns made, the result canvassed and declared and the poll-books put in the keeping of the clerk in the public office under color of law; they were actually in the office. Section 3, chapter 117, Code, says, "all papers returned to, or filed in the clerk's office shall be preserved therein until legally delivered out." This only requires that they be "returned to or tiled in" the office. It does not draw the refined distinction that those filed under valid law are to b'e preserved, while those filed under an act turning out to be unconstitutional, though, filed under color of law, are simply re- fuse or waste in the office. Could they be thrown in the street, or altered or burned by the clerk with impunity? If citizens favorable to or against the bonds, believing a recount would sustain or defeat the proposition, should ask inspection prior to demand of recount, could they not lawfully do so?

A question of great practical importance comes up in this case. Can a clerk asked to do a ministerial act refuse on the ground that the statute under which he is asked to do that act is unconstitutional? Can he say that the Legislature has violated the constitution before the statute has been judicially declared void? Merrill on Mandamus, section 65 says: "But the courts will not consider the constitutionality of a law in a mandamus proceeding at the instance of a ministerial officer. If he should be allowed to question the law of the land, the operations of the government would be thwarted and great confusion would result. If the law is void, the parties can appeal to the courts for further protection. A mandamus will not be issued to compel the granting of a license under a law for a reason which, if valid, shows the law itself to be unconstitutional." Not much consistency or clear guidance is there in that section. Merrill cites Smyth v. Fitcomo, 31 Me. 272, holding that a ministerial officer, collecting and disbursing revenue, has no right to withhold performance of ministerial acts, prescribed by law, merely because possibly the law may be unconstitutional." He cites People v. Solomon, 54 111. 39. In it an assessor refused to assess certain taxes on the ground that the law was invalid. The law was held valid; but the court broadly states the law to be that a ministerial officer cannot be allowed to decide upon the validity. "It is the duty of a ministerial officer to obey an act of the Legislature directing his action, not to question or decide upon its validity," the court said. The fully considered case of State ex rel. v. Auditor, 47 La. Ann. 1679, holds, even against the State Auditor and Treasurer refusing to pay money under a statute allowing it, that "Executive officers of the State government have no authority to decline performance of purely ministerial duties imposed upon them by a law, on the ground that it contravenes the constitution. Laws are presumed to be and must be treated and acted upon by subordinate executive officers as constitutional and legal until their unconstitutionality has been judicially established." For the double purpose of showing that these poll-books are, for the matter involved, public papers properly in the office, and also the holding that a ministerial officer cannot refuse to file them because in his opinion, the act under which an election is held is unconstitutional, I refer to Franklin Co, v. State, 20 Am. & Eng. Corp. Cases, 60, (24 Fla. 55). The syllabus says: "A statute which requires inspectors to canvass votes of an election and make return to the county commissioners imposes upon such commissioners the duty of receiving and keeping the returns in their official custody, as records. Neither the constitutionality of such statute nor the legality of the election held thereunder can be considered by the commissioners officially; nor can the same be raised by them as ground for not performing such duty in a mandamus brought to compel its performance," In State v. Commissioners, 18 Nebraska 506, a mandamus issued to compel commissioners to...