State ex rel. Hansen v. Schall

• Decision Date: 16 April 1940
• Citation: 12 A.2d 767,126 Conn. 536
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. HANSEN v. SCHALL et al.

12 A.2d 767

126 Conn. 536

STATE ex rel. HANSEN v. SCHALL et al.

Supreme Court of Errors of Connecticut.

April 16, 1940

Appeal from Superior Court, New Haven County; Patrick B O'Sullivan, Judge.

Action by the State of Connecticut, on the relation of Julius Hansen, against Charles F. Schall and others, for writ of mandamus ordering defendants to permit plaintiff or his agent to inspect certain books, papers, and documents, brought to superior court and tried to the court. From a judgment for plaintiff, defendants appeal.

No error.

William L. Hadden and Walton E. Cronan, both of New Haven (Clarence A. Hadden, of New Haven, on the brief), for appellants (defendants).

Joseph Shelnitz, of New Haven, for appellee (plaintiff).

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

BROWN Judge.

The plaintiff is and long has been an inhabitant, elector, and taxpayer of West Haven. The defendant Scranton is clerk of its board of selectmen and of its board of finance. The other defendants are members of one or both of those boards. Number 189 of the Special Laws of 1917 makes the clerk custodian of the books, papers, and documents of both boards, and provides that these shall be open to the inspection of any inhabitant of the town at any reasonable time. On April 12, 1939, the plaintiff by letter requested the boards to permit him and Murphy & Company of New Haven as his agent, to inspect their books, papers, and documents kept for them by the defendant Scranton as clerk. Murphy & Company, the agent mentioned, is owned by a man who was not an inhabitant of West Haven. Permission to inspect was granted to the plaintiff himself but was denied as to his designated agent. Thereafter, pursuant to the plaintiff's complaint setting forth these facts, the court on May 25, 1939, issued an alternative writ of mandamus against the defendants enjoining them on or before May 29, 1939, to ‘ permit Julius Hansen, or the agency of his choice to inspect the books, papers and documents * * * or show cause to the contrary * * *.’ The defendants filed their return, and after hearing, the court filed its memorandum of decision on June 28, 1939, concluding with these words: ‘ Therefore, the relator is entitled to the relief he seeks. Unfortunately, the alternative writ is somewhat uncertain in its terms and, in my judgment, should be amended. If counsel will arrange to be present in court on any day within the week, an opportunity to amend will be granted. In the meantime, no further action will be taken as to the entering of judgment.’ Pursuant to this suggestion, on July 5, 1939, the plaintiff's petition to amend his complaint was granted, and the court made a corresponding amendment to be retroactively operative, of the alternative writ, by changing the words above quoted to read ‘ permit Julius Hansen, and the firm of Frank J. Murphy & Co. of New Haven, Connecticut, as the agent of Julius Hansen, to inspect the books, papers and documents,’ etc. The same day judgment was entered for the plaintiff, finding that a peremptory writ of mandamus should issue, and ordering the defendants in the words last quoted, to permit the plaintiff and his agent to inspect the records.

The defendants contend that the words of the alternative writ as originally issued requiring them to ‘ permit Julius Hansen, or the agency of his choice to inspect the books,’ allowed them to choose to permit the plaintiff himself to make the inspection, that they did so choose, and therefore since they thus obeyed the command, the judgment in mandamus should not have been entered against them. If the court was warranted in amending the alternative writ, no ground remains to support this argument. In this action the alternative writ stood in the place of the complaint in an ordinary civil action, and the return in place of an answer. Alcorn, State's Attorney, ex rel Standard Oil Co. v. New Britain, 111 Conn. 214, 218, 149 A. 677; In the Matter of Gilhuly's Petition, 124 Conn. 271, 282,119 A. 436. It thus appears that the amendment of the petition and of the alternative writ was in the nature of an amendment of the prayers for relief of a complaint. Very properly these stood undenied by the return. No issue of fact was raised thereby, and so no question of any right in the defendants to present further evidence is involved, as was the case in Alcorn, State's Attorney, ex rel Standard Oil Co. v. New Britain, supra, relied on by the defendants. The sole vital issue presented before, as well as after the amendment, was whether the plaintiff was entitled to an inspection of the books by one as his agent who was not an inhabitant of West Haven. As is evident from the finding, which is not attacked, it was shown at the trial that the Murphy Company named in the amendment was this agent and was the only agent proposed by the plaintiff from the time of his first request addressed to the defendants. Since it appears that the defendants were misled in no material respect by the omission in the alternative writ of the allegation which the amendment supplied, that they were not prejudiced in making their defense by the amendment made, and that no new issue was thereby presented, no change in the form of the action or of the ground on which relief was claimed being involved, the court in the exercise of its discretion did not err in permitting the plaintiff to amend the petition and in amending the writ as it did. Brainard v. Staub, 61 Conn. 570, 577, 24 A. 1040.

The defendants further claim that since No. 189 of the Special Laws of 1917, by virtue of a provision of which the court granted the plaintiff relief, makes the clerk of the boards of selectmen and finance the custodian of all their books papers and documents, judgment of mandamus cannot issue in the absence of an allegation in the alternative writ and of a finding by the court that the defendant Scranton as clerk was ever requested to permit any examination of the books in his charge, or ever refused such permission. The claim is also made that by reason of this provision, judgment cannot issue against any of the defendants other than Scranton, since the custody was not in them. The defendants cannot escape judgment upon any such technicality. By the terms of the special act it appears that while the clerk is designated custodian, the records are specifically referred to as belonging to the boards. The act further provides for the biennial appointment by the selectmen of the clerk of the board of finance who shall be also clerk of the board of selectmen; specifies various stated duties which he is to perform for both boards, and that ‘ he shall also perform...