State ex rel. Douglas v. Tune
| Decision Date | 07 May 1918 |
| Citation | 203 S.W. 465,199 Mo.App. 404 |
| Parties | STATE OF MISSOURI, ex rel. SAMUEL J. DOUGLAS, Relator, v. LEWIS T. TUNE, MERRELL P. WALBRIDGE, MAURICE J. CASSIDY and EDWARD C. MARSH, Respondents |
| Court | Missouri Court of Appeals |
Argued and Submitted March 20, 1918
ALTERNATIVE WRIT QUASHED, AND PERMANENT WRIT DENIED.
Douglas W. Robert for relator.
(1) The Complaint Board has no right to refuse the relator the right to inspect and copy the letter. It contained false charges against him. It is against public policy to make this Board a repository for libelonus letters. (2) (a) The question of privilege is for the defendants in the libel suit, not for the Board of Complaint. (b) In any event such letter is but conditionally privileged. Finley v. Steele, 159 Mo 305; Newell Lib. and Slan. (2 Ed.), 475; 1 Cooley Torts (3 Ed.), 434. (3) (a) Production of papers under order of court does not constitute an unreasonable search or seizure. In re Dunn, 9 Mo.App. 225. (b) Even if this is a search or seizure, it is not unreasonable, as all the requirements of the Constitution have been complied with. Article 2, section 11. (c) Public records are always open to inspection by parties having an interest Burton v. Tinte, 78 Mich. 363; Boylan v. Warren, 39 Kan. 301; Brewer v. Watson, 61 Ala. 310; State v. Elsworth, 61 Neb. 444; State v. Williams, 110 Tenn. 549. (4) The relator has no adequate remedy at law. Remmers v. Remmers 217 Mo. 561.
Charles H. Daues and Everett Paul Griffin for respondent.
(1) The letter as described in relator's petition, charging relator with misconduct and with offences against the city ordinances and the State laws, is on the grounds of public policy, a privileged communication for the information of the Complaint Board, and cannot be furnished to outsiders unless it is deemed advisable by the Board and the persons writing the letter consent thereto. Furthermore, as the letter charges offenses against the city and State laws, and as it is the duty of the Complaint Board, after investigating a letter of the character described herein, to make recommendations to the city of State authorities, the Complaint Board has no authority to disclose the names of people giving it this information, nor to disclose the channels through which the information was obtained. Gray v. Pentland, 2 Serg. & Rawle (Penna.) 23; Yotur v. Sanno, 6 Watts Rep. 164, 166; Worthington v. Scribner, 109 Mass. 487; Rex v. Hardy, 24 Howell's St. Tr. 808-815; Boske v. Comingore, 177 U.S. 459; 4 Jones' Commentaries on Evidence, sec. 762; 4 Jones' Commentaries on Evidence, sec. 762, p. 480. (2) Even where a positive law requires public records to be kept and to be open to the inspection of the public, such records, if privileged, cannot be used in a trial between outside litigants, nor can they be examined or copies of them made, to be used as evidence in litigation. This has been held in the case of hospital records in Missouri and records of the Insane Asylum in Michigan. Smart v. Kansas City, 208 Mo. 162; Massachusetts Mutual Life Ins. Co. et al. v. Board of Trustees of the Michigan Asylum for the Insane, 144 N.W. 538. (3) This is not a proper case for mandamus because the Complaint Board acts in a quasijudicial capacity. There is no law, charter provision, ordinance or otherwise, requiring the Complaint Board to allow the public generally, or any person outside the Complaint Board, to inspect a letter complaining about a city employee, or to allow such person to make a copy of the same. The Complaint Board is not charged with that legal duty. Mandamus will lie only where it is the clear legal duty of a person to perform a particular act. Even then mandamus is a discretionary writ. Ex parte Roland, 104 U.S. 604, 612, 617; State ex inf. v. Kansas City Gas Company, 254 Mo. 515, 531; State ex rel. v. St. Louis, 251 Mo. 274, 276; State ex rel. v. Appling, 191 Mo.App. 589, 592; State ex rel. v. Drury, 182 Mo.App. 100; State ex rel. v. Bank, 174 Mo.App. 589, 593. (4) This proceeding is an effort to determine questions by mandamus which should be determined on appeal or writ of error, and the effect of the court's decision, if against respondents, would be to determine the competency of evidence to be introduced on the trial of the libel suit in the Circuit Court. If the relator's position is correct and this alleged letter is competent evidence, he may obtain the same by a subpoena duces tecum in the circuit court on the trial of the case. His remedy in the circuit court, therefore, is adequate for his purposes. (5) The alleged letter, being a confidential communication to the Complaint Board, is not a public record, such as the record of a deed, but of a private and confidential nature, and to compel the respondents to produce said letter would be to violate the terms of the Constitution securing the people in their persons, papers, homes and effects from unreasonable searches and seizures. State ex rel. v. Trimble, 163 S.W. 860; Constitution of Missouri, sec. 11, art. 2.
MANDAMUS. ORIGINAL PROCEEDING.
It is set out in the petition for a writ of mandamus now before us, that by section 2, of article 14, of the Charter of the city of St. Louis, a Complaint Board, consisting of three members, was created, with power in that board to employ a secretary. Setting out the section, it is averred that the respondents Tune, Wallbridge and Cassidy, are such board, and the respondent Marsh, its secretary, and that relator is an employee of the city of St. Louis in its streets and sewers department, and that one Lawence McDaniel and one George E. Thomas, on November 29, 1916, wrote a certain letter, addressed to the Complaint Board, and filed the same with that board, and that thereby that letter became a public document and part of the records of the city of St. Louis. Averring that the relator could not set forth accurately the language of the letter, relator sets out what he avers is the substance of it. It is further averred that the relator, on December 29, 1916, filed in the circuit court of the city of St. Louis, his action for libel against McDaniel and Thomas, in which he charged that the letter was written by them and that by reason of the writing of the letter, the Complaint Board, or some one acting for it, or under it, or pursuant to its direction, caused a police officer to arrest the plaintiff and he was taken to the City Dispensary by a police officer and thence to the City Hospital, in the city of St. Louis, where he was confined for a period of three days, to his damage, as he says, in the sum of $ 50,000. It is further averred that in that action it was necessary for the relator, as plaintiff therein, to accurately set forth the language used in the letter, which he contends is libelous; that through his attorney he called upon the defendants, as members of the Complaint Board, and demanded that he be permitted to inspect and make a copy of the letter; that the Complaint Board, not only by its several officers, but also acting at a meeting thereof, refused to permit the relator to make or have a copy of the letter; that thereupon the relator, plaintiff in the above-mentioned action against McDaniel and Thomas, gave due notice of his intention to take depositions, and applied to the division of the circuit court of the city of St. Louis, in which the cause was pending, for a subpoena duces tecum, commanding said Marsh, as secretary of the board, to appear at the taking of these depositions and bring with him the letter referred to; that Marsh duly appeared before the commissioner theretofore appointed to take depositions in the case but refused to produce the letter; that thereupon the commissioner duly reported to the court the refusal of the witness and asked that he be held in contempt until the letter was produced; that Marsh, by his attorney, acting under the direction of the Complaint Board, filed a motion to quash the subpoena on the ground that the circuit court had no authority to issue the same, which motion the circuit court sustained, as it is said in the petition, "on the authority of State ex rel. McCulloch v. Taylor, 187 S.W. 1181," (268 Mo. 312). Averring that a copy of the letter is necessary for the relator in the preparation of his action against McDaniel and Thomas, and will be necessary evidence at the trial of the case, and that there is liability that the letter may be lost between this time and the time the cause is set for trial, and that in that letter, the relator, an employee of the city of St. Louis, is charged with certain offenses, and for that reason is entitled to have an inspection and copy of the letter, and that the letter is a part of the public records of the city of St. Louis and for that reason the relator is entitled to have an inspection and make a copy, and that without a copy of the letter and the letter itself at the proper time, relator cannot prepare or try his action against McDaniel and Thomas, and that the relator is remediless in the premises by or through ordinary process or proceedings, he prays our court to award its writ of mandamus against respondents Tune, Walbridge, Cassidy and Marsh, commanding them to permit him, his agent, or attorney, to inspect or make a copy of the letter.
On presentation of this petition, an alternative writ of mandamus was issued.
Respondents, in their return, after admitting the allegations as to proceedings in the circuit court to obtain the production or inspection of the letter referred to, and averring that the Complaint Board was created by the terms and provisions of the Charter of the city of St. Louis in the interests of the city of St. Louis and for the betterment and...
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