State v. Williams

• Decision Date: 29 June 1903
• Parties: STATE ex rel. WELLFORD v. WILLIAMS, Mayor.
• Court: Tennessee Supreme Court

75 S.W. 948

STATE ex rel. WELLFORD v. WILLIAMS, Mayor.

Supreme Court of Tennessee.

June 29, 1903.

Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor.

Mandamus by the state, on relation of W. L. Wellford, against J. J. Williams, as mayor of the city of Memphis. From a decree denying the writ, relator appeals. Reversed.

Carroll, McKellar & Bullington and Caruthers Ewing, for appellant. W. B. Henderson, for appellee.

NEIL, J.

This was a proceeding instituted in the chancery court of Shelby county for a mandamus upon the defendant, as mayor of the city of Memphis, to compel him to allow the relator to examine the corporation books of the said city of Memphis with an expert accountant. An alternative writ was issued by the chancellor, to which the defendant responded. Thereupon the relator demanded the peremptory writ on the pleadings as they then stood. The chancellor denied the relief sought, and complainant has appealed and assigned errors.

In order to fully understand the scope of the litigation, it will be necessary to set out the substance of the bill or petition, and of the defendant's response or answer to the alternative writ. Before doing this, in order to properly understand the legal effect of the allegations and averments in the pleadings referred to, it is necessary to state certain rules applicable thereto. In Harris v. State ex rel., 96 Tenn. 496-513, 34 S. W. 1017, it is said: "The power to issue mandamus, and the practice under it, is to some extent regulated in this state by statute. Code 1858, § 3567 et seq.; State v. Marks, 6 Lea, 12. By these provisions the return to the writ is made traversable, and the averments of the petition may be put in issue by a denial in the return or answer, in which event the case will be determined by the court, or tried by the jury on evidence. With these exceptions, the proceeding is one largely controlled by the rules of pleading established by the common law. Among these rules, we think the following are well established: (1) Whenever it appears that the return fails to answer the important facts alleged in the petition, every intendment will be made against it. High on Ex. Leg. Rem. § 461. (2) The allegations not denied, nor confessed and avoided, are taken to be true. Merrill on Mandamus, § 274. (3) If the relator moves for a peremptory writ upon the pleadings, this motion is equivalent to a demurrer to the return for not stating facts sufficient to constitute a defense. High on Ex. Leg. Rem. §§ 521, 523; State v. Marks, supra." With these principles in view, we shall now endeavor to ascertain the facts, as contained in the pleadings.

The petition contains the following allegations: That the relator is a resident citizen and taxpayer of the city of Memphis, and as such one of the incorporators of the city, which is a municipal corporation under and by virtue of chapter 11 of the Acts of 1879 and the acts amendatory thereof; that the defendant is the mayor and chief executive of the said municipality; that as such mayor and chief executive he has the custody of the books of the said city, on which are kept the receipts and expenditures of the funds of the said city; that in the said receipts and expenditures the relator, as a taxpayer and citizen, has a direct interest; that some time before the petition was filed the relator, uninvited, attended a meeting of 200 invited citizens, called by the mayor, for the purpose of devising ways and means to assist the city administration to pave, repair, and "round up," more or less, the streets of the city, and, being interested in the material prosperity of the city, he afterwards attended the meeting of a committee of 15 appointed at the aforesaid meeting of citizens; that the relator, having the interest of a corporator and taxpayer (the financial condition of the city showing the necessity for the providing of additional means for the purposes aforesaid and the tax rate being already very high and very burdensome), thought that business men, in the conduct of their own affairs, ought to know the sources of the revenue of the city and the items of expenditure of that revenue, and thereupon the relator proposed to the said committee to provide for an examination of the books of the city, for the sole purpose of ascertaining the exact financial condition of the city, the sources from which it was received, and for what it had been paid out; that afterwards a subcommittee of 5 was appointed from the said committee of 15; that this subcommittee undertook to make such investigation as was practicable of a superficial character, and, having called upon the defendant for such information as would enable the members thereof to have a conception of the amount of revenue received, the sources from which it had been received, and the accounts to which it had been appropriated, the defendant, as mayor, furnished the committee with certain figures, which are exhibited with the bill and marked "A"; that the proposition of the relator for the examination of the city books by experts resulted in a declination by the chairman of the committee of 200 before referred to; and that thereupon the relator demanded of defendant the right to make an examination of the books, records, papers, and vouchers in his possession, claiming, as a corporator and taxpayer in and of the city, the right to make a general inspection of the public records of the city, and to make copies of its public documents and records, under such rules and regulations as would insure their safety — the relator stating at the time that the books would be examined with the least possible inconvenience to the mayor and to the other officers of the city government, and that he trusted that the examination might be made without any hard feelings between any officers of the city government and himself, but that this demand was ignored and refused, and treated with contempt and derision.

The petition then proceeds: "The relator is advised by counsel that the books of the city of Memphis are public records, and that as a corporator and taxpayer of said city of Memphis he has the right to inspect them to make copies of them under such rules and restrictions as will preserve their safety; and he is entitled, to this end, to the benefit of agents and employés, and to the right of a general inspection. That the relator is informed and believes, and upon information of a public character avers the fact to be, that the refusal to grant him the right he claims by the defendant is not based upon any abuse or inconvenience likely to arise by inspection, examination, and making note of the records, or any damage or loss that is likely to ensue by reason of such examination of the records, but is predicated wholly upon the assumed and unwarranted claim of the defendant that the examination sought by the relator and demanded as of right is predicated of political animosity, which the relator says is ill-founded in fact; he claiming the right purely because of his interest as a corporator and taxpayer, and making the demands to the end that he may know that which he has the right to know — the exact status financially of the corporation of which he is a member, and what has become of its funds."

The prayer of the bill was for an alternative mandamus and for ultimate relief in accord with the substance thereof. An alternative writ was issued in accordance with the prayer of the petition or bill, and thereupon the defendant filed his answer.

The answer does not deny that the relator was, at the time the petition was filed, a resident citizen and taxpayer of the city of Memphis; that he attended the meeting of citizens mentioned in the petition; that this meeting was called for the purpose stated; that the relator also attended the meeting of the subcommittee of 15, and that he proposed to the committee to provide for an examination of the books; that the subcommittee of 5 was appointed as stated, and that the defendant furnished to that committee the figures mentioned in the petition; that the relator's request for an examination of the city's books by experts was declined by the chairman of the committee of 200; and that thereupon he demanded of the defendant the right to make an examination of the books, records, papers, and vouchers of the city, claiming as a corporator and taxpayer the right to make a general inspection of the public records of the city, and to make copies of its public documents, under such rules and regulations as would insure their safety, and that this demand was refused by him. These facts, therefore, must be treated as established.

In response to the allegation that he was the custodian of the books and papers referred to, the answer contains the following: "He denies that he is the custodian of the city's books as set forth in complainant's bill of complaint. His connection with or power over said books is controlled by ordinance, which provides as follows: `The mayor shall have power to inspect such of the books, papers, and records of the officers of the city as may, in his opinion, be necessary to enable him to discharge the duties imposed upon him, and may call upon all of the officers of the city to furnish him in writing with any information connected with the respective offices.'" Respondent states that under the legislative enactment creating the city of Memphis, and the acts amendatory thereof, the government of the said city is vested in a board of fire and police commissioners, a board of public works, and a legislative council. "The entire government of the city of Memphis, under and by virtue of the charter of the taxing district of Shelby county and the amendments thereto, is lodged in said two boards and legislative council and such agents as they and the mayor may appoint. The custody and the control of all of the property of the city, its books, and cash funds are under the control and supervision of said...