State ex rel. Colescott v. King

• Decision Date: 29 May 1900
• Citation: 57 N.E. 535,154 Ind. 621
• Parties: STATE ex rel. COLESCOTT v. KING, Auditor.
• Court: Indiana Supreme Court

154 Ind. 621

57 N.E. 535

STATE ex rel.COLESCOTT

v.KING, Auditor.^*

Supreme Court of Indiana.

May 29, 1900.

Appeal from circuit court, Union county; Noah A. Given, Special Judge.

Mandamus by the state, on the relation of John A. Colescott, against George R. King, auditor of Franklin county, to compel permission to inspect records. From a judgment sustaining a demurrer to his petition, relator appeals. Reversed.Florea & Broaddus, for appellant. Francis M. Alexander and Samuel A. Harrell, for appellee.

JORDAN, J.

This is an appeal by the relator from a judgment on demurrer, for insufficiency of facts, to his petition for a writ of mandamus against appellee, the auditor of Franklin county, to compel him to allow the relator an inspection of the public records and papers of the auditor's office of said county. The action was originally instituted in the Franklin circuit court, but was subsequently venued to the Union circuit court. A single question is presented: Did the court err in sustaining the demurrer of the appellee to the petition?

An epitome of the facts alleged in the petition may be said to be as follows: The relator, John A. Colescott, is a citizen and resident of Franklin county, Ind., and a taxpayer therein, and had been a resident and taxpayer of that county for over 10 years prior to the beginning of this action. He avers in his petition that he prosecutes this suit on his own behalf, and on behalf of all other citizens and taxpayers of said county who are aggrieved by the wrongs set out in the petition. On March 18, 1898, appellee, George B. King, was the auditor of said county, and was, as such officer, legally in the possession of the books, records, and papers belonging to his said office. On that day the relator went to the auditor's office, in the town of Brookville, to inspect and examine the public records, books, papers, and files of said office, for the purpose of ascertaining whether said books and records, etc., were legally and properly kept, and especially for the purpose of discovering whether the money and property of the county had been duly accounted for by the persons and officers charged with the collection and disbursement of the same, and to ascertain whether any money was due to said county from any person or persons. The petitioner further shows that he desires such inspection, and the information to be obtained thereby, as a citizen and taxpayer, for the purpose of pursuing, if necessary, the proper legal remedies to enforce the collection of any moneys or demands that may be due the county, and to require the proper authorities to enforce such demands, and that he is not prompted in his desire for the inspection in question by any motives of idle curiosity, and that he does not intend in any way or manner to interfere with or interrupt the orderly administration of the affairs of said office, in the said inspection or examination. He alleged that he requested and demanded of appellee, as such auditor, that he allow him, in connection with two competent accountants, as his assistants, to have access to the public books, records, and papers of said auditor's office, and that he, together with said accountants, be by said auditor permitted to inspect and examine such books, records, and papers of the office as related to or pertained to the fiscal accounts of said county, for the purposes as aforesaid mentioned, and that he be permitted to make such extracts and copies of said records and papers as may be necessary and pertinent to said examination, and that he be allowed to continue the inspection of said books and records from day to day in said auditor's office in the presence of the appellee, if the latter so desired to be present, until said inspection or examination is completed. It is disclosed by the petition that, for a long time prior to the making of said demand for the inspection in question, the relator and many other citizens and taxpayers of said Franklin county believed that there had been an unlawful conversion and use of the public funds thereof; and they desired that the public records of the auditor's and treasurer's offices be examined, in order to ascertain or discover the true condition of the administration of the fiscal affairs of said county. The relator, as it is disclosed, was a member of a committee appointed by numerous taxpayers of the county to secure the inspection of the public records. The petition further shows that the defendant, as such auditor, refused, and still refuses, to allow the relator to have an examination of the records and papers of his said office. It is also alleged that a more particular description of the books, records, and documents which the relator desires to examine cannot be given, for the reason that they are in the possession of the defendant. The petition closes with a prayer for a writ of mandamus awarding to the relator, together with his two agents or assistants, the right to inspect or examine the records and papers of said auditor's office for the purposes stated, and for all other and proper relief. The defendant appeared to this action, and waived the issuing of the alternative writ, and demurred to the petition, with the result as hereinbefore stated.

Counsel for appellee insist: First. That, even though the relator can be held to be entitled to the right which he demands, such right cannot be enforced by mandamus. Second. That under section 7830, Burns' Rev. St. 1894 (section 5745, Rev. St. 1881; section 5745, Horner's Rev. St.), the legislature has invested the board of commissioners of the county with the duty and power to audit the accounts of all officers and have the care, management, collection, and disbursement of public money, and that under section 7995, Burns' Rev. St. 1894 (section 5917, Rev. St. 1881; section 5917, Horner's Rev. St.), it is provided that the county treasurer shall at all times keep his books and office subject to the inspection of such board of commissioners. Hence it is contended that under these statutory provisions the right and duty of the county commissioners to inspect and examine the records must be held to be an exclusive one, and impliedly deprives any citizen or taxpayer of that right, when he seeks to exercise it for the purpose which the relator alleges he has in view. It is further contended that the examination sought to be obtained herein is incompatible with public policy, inasmuch as it might subject the public records to loss and mutilation, and also seriously interfere with the duties of the office, and will consume the time of public officials without compensation.

Section 7831, Burns' Rev. St. 1894 (section 5746, Rev. St. 1881; section 5746, Horner's Rev. St.), provides that “all the books, accounts, vouchers, papers and documents touching the business or property of the county shall be carefully kept by the auditor and open to the inspection of any person.” There can be no doubt but what the legislature, under this statutory provision, has expressly recognized the right of any person to inspect the public records, books, files, papers, and documents belonging to or kept in the office of the county auditor. The legislative command under this section is plain and emphatic, and may be easily interpreted. Of course, this right of inspection is not to be viewed as one wholly unqualified or free from all restrictions, but must be accepted and exercised by the...