State Ex Rel. Cummer v. Pace

• Decision Date: 27 February 1935
• Citation: 159 So. 679,118 Fla. 496
• Court: Florida Supreme Court
• Parties: STATE ex rel. CUMMER v. PACE, City Auditor, et al.

159 So. 679

118 Fla. 496

STATE ex rel. CUMMER v. PACE, City Auditor, et al.

Florida Supreme Court

February 27, 1935

En Banc.

Original proceeding in mandamus by the State, on the relation of Arthur G. Cummer, against J. E. Pace, as City Auditor, and others, as City Commissioners, of the City of Jacksonville to compel respondents to permit relator to inspect records of the city. On demurrers to the return.

Demurrers sustained with leave to amend.

COUNSEL

George M. Powell, of Jacksonville, for relator.

Austin Miller and Gov Hutchinson, both of Jacksonville, for respondents.

OPINION

DAVIS Justice.

This is an original proceeding in mandamus brought on the relation of Arthur G. Cummer, a citizen of the city of Jacksonville, for the purpose of coercing the respondents as officials of said city to observe the provisions of section 490, C. G. L section 424, R. G. S., by permitting the said relator, Arthur G. Cummer, in person and by his authorized agent, Paul R Smoak, to make inspections from time to time, during regular office hours, of any and all the municipal records and books of account of the city of Jacksonville, Fla., as they may desire to so inspect in accordance with the statute hereinbefore referred to.

The respondents have filed their return to the writ in which they have set up as a special defense in the nature of confession and avoidance the following facts, which they assert are sufficient to preclude and bar the award of a peremptory writ: That the relator, Arthur G. Cummer, is the president of Commodores Point Terminal Corporation, which corporation is engaged in a similar and competitive business to that carried on by the city of Jacksonville through its municipal docks and terminals, which are being operated by said municipality in its proprietary capacity under the authority, terms, and provisions of chapter 6415, Acts of 1912 (Sp. Sess.), Laws of Florida; that respondents have always permitted all citizens, including the relator, to have free access to the books and records of the city, and have permitted any and all audits desired by them, except that part of the records of the city of Jacksonville relating to its municipal docks and terminals which relate to the nature, kind, quantity, destination, consignee, or routing of property tendered or delivered to it for interstate transportation, the disclosure of which information respondents assert would be violative of paragraphs 11 and 12 of section 15 of the Interstate Commerce Act of the United States (49 USCA § 15, pars. 11 and 12, pp. 437 and 438).

The paragraphs and section of the Interstate Commerce Act so relied on read as follows:

'(11) Disclosure or solicitation of information concerning shipments unlawful; exceptions. It shall be unlawful for any common carrier subject to the provisions of this chapter, or any officer, agent, or employee of such common carrier, or for any other person or corporation lawfully authorized by such common carrier to receive information therefrom, knowingly to disclose to or permit to be acquired by any person or corporation other than the shipper or consignee, without the consent of such shipper or consignee, any information concerning the nature, kind, quantity, destination, consignee, or routing of any property tendered or delivered to such common carrier for interstate transportation, which information may be used to the detriment or prejudice of such shipper or consignee, or which may improperly disclose his business transactions to a competitor; and it shall also be unlawful for any person or corporation to solicit or knowingly receive any such information which may be so used: Provided, That nothing in this chapter shall be construed to prevent the giving of such information in response to any legal process issued under the authority of any State or Federal court, or to any officer or agent of the Government of the United States, or of any State or Territory, in the exercise of his powers, or to any officer or other duly authorized person seeking such information for the prosecution of persons charged with or suspected of crime; or information given by a common carrier to another carrier or its duly authorized agent, for the purpose of adjusting mutual traffic accounts in the ordinary course of business of such carriers.

'(12) Penalty for violation of preceding provisions. Any person, corporation, or association violating any of the provisions of the next preceding paragraph of this section shall be deemed guilty of a misdemeanor, and for each offense, on conviction, shall pay to the United States a penalty of not more than $1,000.'

It is further averred in defense against the commands of the alternative writ that relator's attempt to have the relief granted to him which is sought in this proceeding is not in good faith for the purpose of obtaining any legitimate information to which the relator may be entitled under the statutes of Florida upon which he relies, but is upon the contrary brought by the relator as a subterfuge in order to obtain for Commodores Point Terminal Corporation, in which corporation relator has an interest, information the disclosure of which would be a direct violation of the Interstate Commerce Act of the United States before mentioned, because it would reveal to the Commodores Point Terminal Corporation through relator, information relative to the customers of the municipal dock and terminals of the city of Jacksonville to which information neither relator nor said company is entitled under the law.

It is further averred that relator is prosecuting this proceeding under the statutes of Florida solely as a means of aiding the Commodores Point Terminal Corporation to obtain evidence from the books of the city for its use in certain litigation which has been instituted against the city of Jacksonville in the federal courts by Commodores Point Terminal Corporation as complainant.

The sufficiency of those paragraphs of the respondents' return which set up the special defense hereinbefore recited have been challenged by demurrers interposed by relator thereto, and the cause is now before this court for a ruling upon the sufficiency of paragraphs IX, X, XI, and XII of the return as against the relator's demurrer.

The fact that the city of Jacksonville owns and operates as a public utility its municipal docks and terminals in a proprietary, instead of a governmental, capacity, as provided by chapter 6415, Acts 1912 (Sp. Sess.), Laws of Florida, constitutes no sufficient cause to deny the relator, as a citizen of Jacksonville, his right under section 490, C. G. L., to examine the books and records of the city of Jacksonville, including those relating to and covering the details of its operation of its municipal docks and terminals. Section 490, C. G. L., is all inclusive and sweeping in its provisions and there is nothing in that statute to support the contention that, because particular records relate to the proprietary affairs of the municipality, they are not subject to the privilege that the statute accords without reservation as to 'all' municipal records. See Barrickman v. Lyman, 154 Ky. 630, 157 S.W. 924; Id., 155 Ky. 710, 160 S.W. 267; Mushet v. Dept. of Public Service of Los Angeles, 35 Cal.App. 630, 170 P. 653; 38 Corpus Juris, 740; 2 McQuillan, Municipal Corporations (2d Ed.) par. 660, at pages 513, 514.

The...