State Ex Rel. Davidson v. Couch

• Citation: 156 So. 297,116 Fla. 120
• Parties: STATE ex rel. DAVIDSON v. COUCH, City Manager, et al.
• Decision Date: 06 August 1934
• Court: Florida Supreme Court

156 So. 297

116 Fla. 120

STATE ex rel. DAVIDSON v. COUCH, City Manager, et al.

Florida Supreme Court, Division A.

August 6, 1934

Application by the State, on the relation of Herbert M. Davidson, for a writ of mandamus to be directed to M. S. Couch, as City Manager, and Francis Mills, as City Clerk and Collector, of the City of Daytona Beach, Volusia County, wherein the relator demurred to and moved to strike respondents' return.

Demurrer and motion to strike overruled, and motion for peremptory writ denied, with leave to relator to reply to averments contained in respondents' return.

COUNSEL

Green & West, of Daytona Beach, and W. J. Oven, of Tallahassee, for relator.

Millard B. Conklin, Leon J. C. Harton, and H. B. Hodgden, all of Daytona Beach, for respondents.

OPINION

ELLIS Justice.

An alternative writ of mandamus was issued by this court upon the petition of Herbert M. Davidson, a citizen of the city of Daytona Beach, Fla., against M. S Couch, as city manager, and Francis Mills, as city clerk and collector, of the city, and individually, commanding the latter to permit Davidson, the relator, in person and by his duly authorized attorney or attorneys, agent, or agents representative, or representatives, to make such inspection and inspections from time to time of any and all the municipal records and books of account of the city as he (the relator) may so desire to inspect within the terms and provisions of the law.

Subsequently the writ was amended narrowing the command to afford the privilege to Davidson in person and his duly authorized agent, J. L. Robertson, and the time for such inspection to regular office hours.

The respondents demurred to the writ and moved to quash it. The point is made that the writ was amended informally and not by the court. Leave was granted by the court to amend the writ in accordance with the relator's suggestion filed May 28 1934.

The alternative writ takes the place of a declaration at law. See State ex rel. Sunday v. Richards, 50 Fla. 284, 39 So. 152; Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383.

The practice has been followed for many years that the alternative writ having issued may by order of the court be amended by relator in the manner and form as his motion suggests without the issuing of another writ. See State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 So. 213, 13 L. R. A. (N. S.) 320, 12 Ann. Cas. 359.

A motion to strike the amended portions of the writ was denied on June 19th, and respondents were allowed until June 25th to file a return.

There appears to be no order upon the demurrers to the alternative writ, but as no demurrer seems to have been interposed to the alternative writ as amended and as a return was made on June 25th, we regard the writ as amended as sufficiently stating a case requiring a return by the respondents.

In the decision filed by this court in the case on May 26, 1934, State ex rel. Davidson v. Couch, 155 So. 153, 154, it was held merely that the command of the alternative writ was broader than the demand insisted upon and broader than the statute itself contemplates as an enforceable duty; that the right to make an inspection of the public records by a citizen includes the right on his part of making such inspection accompanied by a certified public accountant who is likewise a citizen of Florida entitled to make a personal inspection in his own right.

So the amended alternative writ commands Couch, as city manager, and Francis Mills, as city clerk and collector, and each of them, 'individually and/or in your official capacity,' to permit Herbert M. Davidson in person and by J. L. Robertson, his duly authorized agent or representative, to make such inspection and inspections from time to time during regular office hours of any and all the municipal records and books of account' of the city of Daytona Beach 'as he, the said Herbert M. Davidson, may so desire to inspect within the terms and provisions of the law.'

The relator moved for a peremptory writ subject to the court's order on relator's demurrer to the return and the motion to strike certain portions of it.

The return in paragraph 1 denied that Davidson is a citizen of Daytona Beach as contemplated by the statute, and avers that he is not a taxpayer of the city and has never paid any taxes during the four-year period he alleges that he has been a citizen, nor did his name appear on the tax rolls of the city as of the date of the institution of the action. Relator moved to strike that paragraph.

This court decided that point against the respondents when the case was before us when the alternative writ was quashed with leave to amend. The view expressed was that the provisions of section 490, C. G. L. 1927 (section 424, R. G. S. 1920), are mandatory and render the municipal books in possession of the respondents, subject to inspection by citizens of Florida. The court said the duty is 'mandatorily imposed by section 490, C. G. L., supra, upon 'those in charge of such records,' not to deny the statutory privilege to any citizens of Florida seeking to inspect same as the statute provides.'

The statute is as follows: 'Public records open to examination by citizens.--All State, county and municipal records shall at all times be open for a personal inspection of any citizen of Florida, and those in charge of such records shall not refuse this privilege to any citizen.'

The alternative writ alleges that Davidson is a citizen of Daytona Beach, Volusia county, Fla., and continuously has been for more than four years last past, and, while the return specifically denies that allegation, the denial is coupled with the averment seemingly by way of explanation of such denial that Davidson is not a taxpayer of the city, never has paid taxes during the four years that he alleges to have resided in the city, and that his name has not appeared on the tax rolls of the city as of the date of the beginning of the action. Thus by way of argument, which is not good form in pleading, the point is sought to be presented that for the purposes of a writ of mandamus to compel the persons in charge of the city records to permit one to inspect the municipal records, the person seeking such privilege must be a taxpayer of the city or his name must appear as such on the tax rolls of the city. In short, he must have a justiciable interest, which the same argument assumes in such cases must be that of a taxpayer or of one whose name appears on the tax rolls of the city as such.

The major premise of such argument is unsound. The language of the statute refutes it, which accords the privilege of personal inspection of municipal records to 'any citizen of Florida.'

The power to enact such a law exists in the Legislature. The language of the act is plain. There is no ambguity in it, no occasion for interpretation of words, nor for construction of phrases or sentences. The privilege is accorded to 'any citizen of Florida.' It would be a work of supererogation and wholly useless to undertake to point out the reason for such a statute, because whatever reason may have operated upon the collective mind of the legislative body, the power was exerted by it in the enactment of the law.

A government for the people and of the people is one which the public accounts of revenue collected and expended should show such receipts and expenditures truthfully and that the duties in such matters have been honestly and efficiently discharged. To this end any citizen of the state may inquire at the only source of information and be aided in his inquiries by the use of the records in which the transactions are supposed to be recorded. It is not a question of what the citizen intends to do with the information when he obtains it. He may if he desires disseminate the information among the people by means of the press in public address, pamphlets, or by the writing of a book by way of favorable or unfavorable criticism of the methods and practices of the people's servants in their positions of trust. It is a matter of history that famous writers in England and France notably, and perhaps in other countries, have been the means of affecting salutary reforms by their novelistic criticisms of abuses of public powers.

The motion as to the first paragraph of the answer therefore was well...