State v. Reynolds

• Decision Date: 15 February 1919
• Docket Number: No. 21012.,21012.
• Parties: STATE ex rel. DOUGLAS v. REYNOLDS et al., Judges.
• Court: Missouri Supreme Court

209 S.W. 100

276 Mo. 688

STATE ex rel. DOUGLAS v. REYNOLDS et al., Judges.

No. 21012.

Supreme Court of Missouri, in Banc.

February 15, 1919.

Certiorari by the State of Missouri, on the relation of Samuel J. Douglas, against the Honorables George D. Reynolds and others, judges of the St. Louis Court of Appeals, to quash judgment entered in an original proceeding in the St. Louis Court of Appeals. Writ quashed to the end that the record of Court of Appeals may stand.

Douglas W. Robert, of St. Louis, for relator.

Chas. H. Danes and Everett Paul Griffin, both of St. Louis, for respondents.

GRAVES, J.

Certiorari to the St. Louis Court of Appeals. The judgment sought to be quashed is one entered in an original proceeding in that court. Such judgment was in a mandamus proceeding, and the Court of Appeals has succinctly outlined the facts in an opinion filed thus (199 Mo. App. 404, 203 S. W. 465):

"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, Walbridge, and Cassidy are such board, and the respondent Marsh its secretary, and that relator is an employé of the city of St. Louis in its streets and sewers department, and that one Lawrence 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, 1910, 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 subpœna 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 subpœna 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, 268 Mo. 312, 187 S. W. 1181.' 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 employé 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 petitioner 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 [petitioner], 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 improvement of the public service in the various departments of the government of the city of St. Louis, and that it would be against public policy and against the public interests for the complaint board, or its members, to disclose the contents of a letter or letters of the character described in the relator's petition, or to disclose the name or names of the writer or writers thereof, because such disclosure would deter people from making complaints which might be beneficial to the public interests and the public service, set up with great particularity why they should not be required to permit relator or others to inspect or make copies of complaints filed with them, and denying the power of the court to make the order or grant the relief asked; also Claiming that, if relator is entitled to any order for the production of any letter, his remedy is in the circuit court.

"On this return being filed, relator moved for judgment, and the cause has been duly submitted and argued.

"This is the second time that this same case has been presented to us and writ prayed for as now. Considering it involved a matter beyond our jurisdiction—that is, construction of the Constitution of the state—and was ancillary to a suit for $50,000, which amount also placed the cause beyond our jurisdiction, we transferred it to the Supreme Court. See, under this same title, 191 S. W. 1078, a decision not to be officially reported. It seems that counsel for relator, to avoid delay, dismissed that case in the Supreme Court, and there commenced an original proceeding on the like petition. The Supreme Court issued its alternative writ, to which respondents made return, and, on the cause being presented, the court vacated the alternative writ and dismissed the cause, holding that there was nothing disclosed by the record why the proceeding should not be brought in our court, saying of our court, in an opinion filed ( 200 S. W. 1062), but not yet officially reported:

"`That court has, under section 12 of article 6 of the Constitution, the same authority to issue writs of mandamus that this court has under section 3 of the same article, unless otherwise limited by other provisions of the Constitution. That there is no such limitation in this case there can be no question, for the reason that neither the subject-matter of the libel suit mentioned nor the amount involved therein is involved in this case. This is a collateral proceeding to that action, merely involving the right of the relator to compel the board of complaint to produce the letter mentioned for his inspection and use as evidence in said libel suit.'

"Relator thereupon instituted the present proceeding in our court, we issuing an alternative writ of mandamus."

The Court of Appeals quashed their alternative writ, and it is this judgment that is here for consideration. It is urged that this opinion of the St. Louis Court of Appeals conflicts with our opinion in Finley v. Steele, 159 Mo. 299, 60 S. W. 108, 52 L. R. A. 852. The facts are few and simple, and the issues are really matters of law.

I. To separate wheat from chaff, it should be noted that the relator herein (the plaintiff in an alleged libel suit) does not aver in his application for mandamus to the St. Louis Court of Appeals that the letter which he seeks to see was maliciously written. So far as his petition for this mandamus is concerned such letter was presumably written in the utmost good faith and without malice, because the law presumes right action rather than wrong action upon the part of the citizen. So far as the record before us, which we are allowed to consider, is concerned there is no allegation stating that the letter was maliciously written. This may be material later upon the alleged question of such letter being beyond what is known as a qualified privilege communication. The fact should be borne in mind. The application for mandamus simply states that the relator herein has brought and has pending an action for libel, and that it is necessary to have a copy of this letter, to his mind a public document. He alleges the character of the board to which the letter was addressed, but does not allege that the letter was sent out of malice. In other words, so far as the petition before us for review is concerned, we must presume, under the law, that the letter was sent in good faith and without malice.

II. If we must say...