State Ex Rel. Clark v. Long

• Decision Date: 10 December 1892
• Citation: 16 S.E. 578,37 W.Va. 266
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. CLARK v. LONG et al.

16 S.E. 578

37 W.Va. 266

STATE ex rel. CLARK

v.LONG et al.

Supreme Court of Appeals of West Virginia.

Dec. 10, 1892.

Mandamus—Practice —Alternative Writ—Office of Clerk of County Court — Right to Inspect Records.

1. The practice in this state, in mandamus, is generally to issue the alternative writ on filing the petition, without any rule to show cause why it should not issue. Immediately on the filing of the petition, if a prima facie case is thereby made out, an alternative writ of mandamus may be issued.

2. The alternative writ should run in the name of the state, and, properly speaking, the case should be entitled. The state at the relation of [the petitioner] against (the respondent;!" but the practice prevails in this state of entitling the cause in the name of the relator as plaintiff against the respondent as defendant.

3. If the relator has embraced too many persons in his alternative writ, there is no error in permitting him, before the trial, to enter a discontinuance as to one or more, and to proceed against the remainder.

4. The clerk of the county court cannot refuse to permit any person to have access to and inspect the public papers and records in his custody and office as clerk on the ground that no fee has been paid him for such inspection. Neither can he charge any fee, unless he makes a search for a matter of over one year's standing, or is required to make out a copy.

5. The records and papers of every countycourt clerk's office in this state are open to the inspection of any person; and the clerk cannot charge a fee for such inspection, and can only charge for searches made by himself at request, as above specified. (Syllabus by the Court.)

Error to circuit court, Harrison county; J. M. Hagans, Judge.

Mandamus proceedings by Arthur H. Clark against P. M. Long, clerk, and the county court of Harrison county, to compel them to permit the petitioner to have access to the records and papers in the clerk's office. A peremptory writ of mandamus was issued, and defendant P. M. Long brings error. Affirmed.

Edwin Maxwell, for plaintiff in error.

W. Scott, for defendant in error.

Lucas, P. Arthur H. Clark petitioned the judge of the circuit court of Harrison county for a writ of mandamus against the county court of Harrison and P. M. Long, clerk thereof, to compel them to permit the petitioner to have access to the records and papers of said clerk's office, and to see and inspect the same. In pursuance of the petition a rule was awarded against the respondents, commanding them to appear before the judge at the courthouse in Morgantown on the 25th February, 1891, in vacation. This so-called rule is as follows: "State of West Virginia, Harrison county—ss. In vacation. In the office of the clerk of the circuit court for the county aforesaid. Monday, February 23, 1891. Order. In the circuit court of Harrison county. Arthur H. Clark v. The County Court of Harrison County and P. M. Long, Clerk of the County Court of Harrison County. Upon an application for a writ of mandamus. The plaintiff, Arthur H. Clark, having this day applied to the judge of the circuit court of Harrison county, in vacation, for a writ of mandamus to compel the defendants to show cause, if any they can, why the said Arthur H. Clark, as a person, and as a commissioner of accounts of said county, and as a citizen of said county, shall not be permitted to see and inspect, and have access to, the records of said county, now in the custody of the said county court, through its clerk, and in the office of the clerk of said County court, it is ordered that said county court and said P. M. Long, clerk thereof as aforesaid, do appear before the judge of this court at the courthouse of Alonongalia county, in Morgantown, W. Va., on the 26th day of February, 1891, in vacation, and show cause, if any they can, why said Arthur H. Clark shall not be permitted to inspect said records and papers, and have access to the same, and why a peremptory writ of mandamus shall not issue, commanding them to permit said Clark to see and inspect and have access to said records and papers as aforesaid, and that each of said defendants be served with a copy of this order. Done in vacation, February 23, 1891. J. M. Hagans, Judge Circuit Court of Harrison County, W. Va. To Henry Haymond, Esq., clerk circuit court, Harrison county, W. Va. Attest: Henry Haymond, Clerk." P. M.Long answered the rule, and the answer narrowed the issue down to this point: Had the clerk, as the officer having legal custody of said records and papers, a right to demand payment of his fees, or any fees, for permitting the petitioner to have access to and inspect said public papers and records in his office? This question the circuit court answered in the negative, overruled the respondents' motion to quash the writ to show cause, and upon a final hearing sustained the relator's demurrer to the respondents' answer or return, and issued a peremptory mandamus. So far as the county court was concerned, the petitioner abandoned the proceeding, and it was abated as to said county court, and proceeded in against the clerk alone. The language of the final order is as follows: "It further appearing to the court that while the said P. M. Long, clerk as aforesaid, has not denied complainant access to the records and papers of said county court, under the supervision of said Long, as clerk aforesaid, as custodian of said records and papers, yet it further appearing to the court that said Long, as clerk aforesaid and custodian aforesaid, did refuse to permit said complainant to inspect said records, unless said complainant paid said Long, as clerk aforesaid, his legal fees for said inspection, and the court being of opinion that...