could not see the records. Respondent has followed this obstructive course for a long time, to the great annoyance and discomfort of relator, and in the face of the fact that there was posted in his office a notice to the effect that all information desired by the public would be cheerfully and promptly furnished. That respondent at one time informed relator that it was a matter of money with him, and that, if relator would pay him $25 per month, relator could have what access he pleased to the rec| ords in said treasurer's office.

to compel the respondent to permit him to in- | city treasurer and his subordinates that he spect and examine the records and files in the city treasurer's office at Detroit, and to furnish proper and reasonable facilities for such inspection and examination, and for making memoranda and transcripts from such files and records, in compliance with Act No. 205, Pub. Acts 1889. The Act in question reads as follows: "That the oflicers having the custody of any county, city or town records in this State shall furnish proper and reasonable facilities for the inspection and examination of the records and files in their respective offices, and for making memoranda or transcripts therefrom, July 2, 1889, relator called at the treasurer's during the usual business hours, to all persons office, at about 11 o'clock A. M., and requested having occasion to make examination of them the privilege of inspecting some of the salesfor any lawful purpose: provided, that the cus-books. Respondent asked if the information todian of said records and files may make such reasonable rules and regulations with reference to the inspection and examination of them as shall be necessary for the protection of said records and files, and to prevent the interference with the regular discharge of the duties of such officer: and provided, further, that such officer shall prohibit the use of pen and ink in making copies or notes of records and files." Pub. Acts 1889, p. 286.

wanted was for relator's private business. Relator replied that Richard M. Coon was the owner of lot 24, in Wesson's section of the Thompson Farm, in the City of Detroit, and that he had employed relator to see if certain tax-sales which had been previously made were still held by the city or disposed of, and, if disposed of, to whom. Respondent requested re lator to write out what he wanted on a piece of paper, which he did. The paper was handed Relator shows in his petition that he is en- to a clerk, who was called by the respondent to gaged in the abstract business in the City of wait on relator. The parcel of land had been Detroit, and has invested a large sum of money sold for six successive years, and it became in said business. That his business requires necessary to inspect six different sales books. that he should know what taxes, levied by the That the statement which relator had made for City of Detroit, are liens upon property of the clerk, a copy of which he retained, inwhich he is furnishing abstracts, and by whom formed the clerk the number of the book resuch liens, if any, are held. That when lands quired, the page of the book, and the line on are sold for unpaid taxes the sale is conducted the page which he desired to inspect. That by the receiver of taxes. A statement of such said clerk produced four of the books required, sales in book form is made by the receiver, and and they were hastily inspected by relator, but turned over to the city treasurer, in whose cus- he was not permitted to handle them. During tody it thereafter remains. When sales are re- the examination, which could hardly have ocdeemed or city bids sold, such redemption is cupied ten minutes, respondent himself sat by, minuted in this book. That it is necessary in discussing the general subject of relator's rights, said relator's business to frequently consult this and apparently in no wise hurried by pressure book. If proper facilities were granted him, of official duties. That, after relator had inhe would not need to consult the same more spected the fourth volume, said clerk-taking than ten minutes in any one day. That the his cue from the language and actions of his prevailing rule and custom is, in all the city employer, said respondent -abruptly, violently and county offices, to permit all persons to and unreasonably refused to produce the other have free access to the records therein, and he, two books requested, and left the room. That himself, has ordinarily been allowed this priv- relator then asked the city treasurer himself to ilege without obstruction or restraint, except produce the two books asked for, but said in the case of the respondent, who is city treas- treasurer refused. Relator then told respondurer of the City of Detroit. That said respon-ent that he would get the books himself if dent has frequently refused to permit relator to inspect the sales-book above referred to, as have also his subordinates; and, if at times an inspection of such record has been granted, it has always been accompanied with insulting language, implying that reiator was taking time which belonged to the public, and that he must hurry, or that the books would be taken from him; and this, too, although no other parties were present to be waited upon or attended to, and though much more time was consumed by said treasurer in making such complaints than would be necessary for relator to inspect and make such memoranda as he needed if he could have access to the records without unreasonable interruption. A clerk would be detailed to see that the relator did not mutilate the records, with instructions not to permit relator to take the books. But more frequently relator has been told by the said

he (respondent) would permit him (relator) to go into the room where said books were, for that purpose. Respondent told him he could not go into that room, and absolutely refused to permit him to see the books he desired. Relator offered respondent $10 per month to be accorded such treatment as was accorded to the public. Respondent refused the offer. Relator then formally demanded the right to inspect the two books he had asked for before, and reminded respondent of the Statute. Relator said that if he could not see the books he should ask for a mandamus. Respondent told him to "mandam" if he wanted to; that the books were in the vault, and relator could not see them; and that nothing but an order from the common council would make him remove them. He told relator to leave a written memorandum of what he wanted, and relator refused to do this, as he had already furnished respondent

with one statement of what he required. Re- to give any lot owner or citizen desiring it inspondent became vociferous, declared that he formation as to tax charges upon lands, and had disposed of the subject, refused to hear has always done so free of charge. Insists that anything further, and left the room. Relator he has the legal right to charge a small fee for then, under the advice of counsel, made a new making out abstracts, as there is no law rememorandum of what he wanted, and offered quiring him to make them otherwise. That it to the deputy treasurer, who said he had no the books in question have been kept for the time to attend to it. Relator told him he need information and convenience of the City of not attend to it then, as he would send his clerk Detroit, and are not required to be kept by the for it, laid the memorandum on the table, city charter or any law or ordinance. That and placed a paper-weight upon it. Respond- each year, after the receiver of taxes makes ent came in about then, in a high temper, and sale of lands for unpaid taxes, one of said with some profanity ordered the relator out of books is made up by such receiver, and entered the office, which order relator obeyed. During therein in the name of the owner, if known, a the whole time of this interview there was no description of such parcel of land, the amount other person in the office on business, unless he of the city tax, school tax, etc., the total tax, was secluded in the private office of respondent. the name of the person to whom sold, which is The respondent in his answer denies that the usually the City of Detroit; and said books books referred to by relator are public records, also contain blanks for entry of assignment or or that they are made so by charter, ordinance redemption. There are in all thirty-seven or law, or that they are required by law to be books, containing from 100 to 250 pages each. kept, or that relator, or any person except re- In addition, there are some sales-books, conspondent, is entitled to the possession of said taining memoranda of sales for unpaid special books or entitled to take them out of the cus- assessments. There are also sixteen (one for tody of respondent, or to make extracts from each ward), indexes to sales-books, each of them, except under the immediate supervision which contains a description of each parcel of of respondent. He denies that it is the univer- land in that ward, with a column for each year sal practice in city offices to permit all persons in which to enter, if sold, the number of the desiring to inspect the said books to have free page of the sales-book for that year containing access to them, or that such is the usage, or the memoranda of the sale. If a sale has been that such usage has become so well established canceled, a red-ink line is drawn through the as to have the force of a common-law custom. reference figures. That the books so kept are He denies that relator has been ordinarily al- easily subject to alteration or defacement. lowed to inspect such books without obstruc- That the books aforesaid are valuable, and the tion or restraint, if by obstruction or restraint loss of the same, or any of the same, would be is meant a denial of the right of access to said irreparable. That respondent is charged by books without the supervision of the city the city with the care and custody of the same. treasurer. He denies that the right which re- That a portion of respondent's office is kept for lator seeks to establish is recognized or con- the use of the public, and the public is necesfirmed by any Act of the Legislature. He de- sarily, by means of desks, railings and wirenies that at any time this respondent, or, by work partitions, excluded from the private or this respondent's direction or authority, any working department of the office, and from deputy or clerk in respondent's office, has ac- the part containing the moneys, books and companied any inspection of the books which papers in respondent's office. That relator, in relator has been allowed to make with insult-order to use the right which he here seeks to ing language. He denies that relator has been establish, must necessarily be admitted to that told by respondent that he (the relator) could portion of respondent's office from which the not see the records. He denies that respondent general public is excluded. That the books has been guilty of obstructing relator. He de- referred to are kept by respondent in a vault in nies that respondent derives an income from the city treasurer's office, and in the same abstracts amounting to $1,000 per annum, or vault are other valuable books and papers, toany such sum. He denies that this respondent | gether with large sums of the city moneys, has ever said that if relator would pay respond-varying in amount from $100 to $30,000. ent $25 per month during his term of office the relator could have whatever access he desired to the books in respondent's office. He denies that he made use of the expression found on page 9 of relator's petition, viz., "God damn quick, too."

Respondent also sets forth in his answer that relator is seeking the information from the books as a matter of merchandise to sell to others. That up to July 2, 1884, abstracts could only be procured of the city treasurer, and that the treasurer, whose office expired in 1884, realized from $1,500 to $2,000 annually from tax abstracts, aud that he is informed relator paid such officer for the privilege of making a copy of the books of said office, and did make and use the same for private gain. That for one year prior to July 1, 1888, relator paid $35 per month for this privilege. That respondent has always been ready and willing

That to produce said books, and a number of them, as is often required by relator, requires a large amount of time almost daily, and from ten to thirty minutes per day have often been consumed in so doing. That respondent insists that it is the duty of respondent, in order to protect himself and his bondsmen, to keep these books under the immediate care, custody and supervision of himself or one of his trusted employés. That during the month of July, relator's purpose is not so much to look after individual cases of sales, as it is to compare his minutes of sale with the office memoranda of the same.

Respondent submits that he is not obliged to produce the books of his office, and supervise the inspection of the same, to one who is collecting information for merchandise, and that, if he does do so, he is entitled to pay for it. He also submits that in other public offices,-in the

of all the real property in a county. The case is bare of information in regard to the true legal status of the relator, and as to whether it is other than a mere intruder in what it demands.' The petition of the relator alleged that it was incorporated under the laws of the State of Delaware; that it had become the purchaser of about 30,000 acres of pine land in the County of Ontonagon, had erected extensive saw-mills, and invested nearly $200,000, and was cutting large quantities of pine, and constantly purchasing more land; and, to provide against acquiring defective titles, desired to protect its rights and interest by providing for itself an abstract of all the lands in the county. The relator was permitted opportunity to examine and make abstracts, as far as its own ownership or interest was concerned, present or prospective; but the dispute was whether it had the right to go further, and insist on havall the records, to make an abstract of title to all the lands in the county. While the writer of the opinion, Chief Justice Graves, paused to make some practical suggestions of obstacles in the way of proper relief being afforded by mandamus, the ground of the denial of the writ was that the relator had failed to show any title to the right it claimed, because the authority given to it by the State by which it was created was not disclosed, and could not be assumed. See Diamond Match Co. v. Powers, 51 Mich. 147, 148.

office of the register of deeds, in the probate | business in which its petition alleges it to be court, and in the county clerk's office,-when engaged, or to apply itself to such an enterprise information is furnished which the law does as making a system of abstracts of all the titles not require to be furnished, charges are made, and legitimately, for such information. He also shows that he has given bond for the safe keeping of these records. That his total fees for abstracts for eleven months ending December 31, 1888, were but $243. And he finally submits that relator is not entitled to access to the books of respondent's office at his own pleasure; neither is he entitled to frequent or enter into that portion of respondent's office from which the general public is excluded. That respondent is entitled to supervise the examination of the books in his office, and that the relator, as a dealer in information, is not entitled to compel respondent to give his time to relator, at the pleasure of relator, for his gain, and without compensation to respondent. It is evident, from the petition and answer, that there is more or less of ill feeling between these parties, and it is also clear that the relator has been in fact denied free access to these sales-ing office accommodations, and the handling of books, and that the respondent does not propose to permit such access unless he is paid therefor; nor does he propose to furnish any facilities, reasonable or otherwise, to the relator to inspect and examine said books without pay. This right of relator, claimed under the Statute, is denied, first, on the ground that these books are not public records, because there is no express statutory provision anywhere that such books shall be kept. These books are made up in the first place by the receiver of taxes, and by him handed over to the city treasurer. They are therefore books used and In this view of the case above cited, I do not kept in two of the public offices in the City of think that it is any authority bearing against Detroit, and they must be considered public the relator's claim in this case. And I canuot records. The claim that they are private books agree with the opinion of this court, or the reaof account is absurd. They are neither the sons given for it, in Webber v. Townley, supra; private books of the receiver of taxes nor of nor do I anticipate that hardly any, if any, of the city treasurer, and the City of Detroit, a the results imagined by the writer of that opinpublic municipal corporation, can have no pri-ion would ever occur, if the holding were othvate books, not even of accounts, not open to erwise. If any of them should happen, the law the inspection of its citizens. Its doings, and is powerful enough to remedy them, and “sufthe doings of its officers, and the records and ficient unto the day is the evil thereof." I do files in their offices, must be open to the public; not think that any common law ever obtained nor can fees be charged for such inspection to in this free government that would deny to the those having the right to examine and inspect people thereof the right of free access to and such files and records. public inspection of public records. They have But the broad ground is also taken that the an interest always in such records, and I know relator has no lawful right to inspect these of no law, written or unwritten, that provides sales-books without recompense to the respond that, before an inspection or examination of a ent, because he is an abstract maker, and his public record is made, the citizen who wishes business may be, and is in most cases, to sell to make it must show some special interest in some person the information gained by such such record. I have a right, if I see fit, to exexamination; that he does not come under the amine the title of my neighbor's property, Statute, because he does not have "occasion to whether or not I have any interest in it, or inmake examinations of them for a lawful pur-tend ever to have. I also have the right to pose," and that this case is covered and against relator by two former decisions of this court: Webber. Townley, 43 Mich. 534; Diamond Match Co. v. Powers, 51 Mich. 145.

If I understand the latter case, the writ of mandamus was denied because the Diamond Match Company was not a citizen nor an inhabitant, nor even a domestic corporation. It did not show its charter, nor give any evidence of its powers or artificial capabilities. The court says: "We have no means of knowing that it has capacity to buy lands or hold them, or deal in titles anywhere, or to carry on the

examine any title that I see fit, recorded in the public offices, for purposes of selling such information, if I desire. No one has ever disputed the right of a lawyer to enter the register's office, and examine the title of his client to land as recorded, or the title of the opponent of his client, and to charge his client for the information so obtained. This is done for private gain, as a part of the lawyer's daily business, and by means of which, with other labors, be earns his bread. Upon what different footing can an abstractor-can Mr. Burton-be placed, within the law, without giving a privilege to one man

or class of men that is denied to another? The citizens, in the pursuit of a lawful business, to relator's business is that of making abstracts of make such examinations of the public records title, and furnishing the same to those wanting in public offices as the necessity of their busithem, for a compensation. In such a business it ness might require, subject to such rules and is necessary for him to consult and make mem-restrictions as are reasonable and proper under oranda of the contents of these books. His the circumstances. The respondent in this business is a lawful one, the same as is the lawyer's, and why has he not the right to inspect and examine public records in his business as well as any other person? If he is shut out because he uses his information for private gain, how will it be with the dealer in real estate, who examines the records before he buys or sells, and buys and sells for private gain? Any holding that shuts out Mr. Burton from the inspection of these records, for this reason also shuts out every other person except the buyer, seller or holder of a particular lot of lands, or one having a lien upon it, or an agent of one of them, acting as such agent without fee or reward. It cannot be inferred that the Legislature intended that this Statute should apply only to a particular class of persons, as, for instance, those only who are interested in a particular piece of land; any person means all persons.

I can see no danger of great abuses or inconveniences likely to arise from the right to inspect, examine or make notes of public records, even if such right be granted to those who get their living by selling the information thus gained. The inconvenience to the office is guarded against by the Statute, which authorizes the incumbent to make reasonable rules and regulations with reference to the inspection. And when abuses are shown there will no doubt be found by the Legislature or the courts a remedy for them. It is plain to me that the Legislature intended to assert the right of all

case is the lawful custodian of these sales-books, and is responsible for their safe keeping, and he may make and enforce proper regulations, consistent with the public right, for the use of them. "But they are public property, for public use, and he has no lawful authority to exclude any of the public from access to and examination and inspection thereof at proper seasons." It follows that he has no right to demand any fee or compensation for the privilege of access to the records, or for any exami nation thereof not made by himself or his clerks or deputies. He has no exclusive right to search the records against any other citizen. Lum v. McCarty, 39 N. J. L. 237; Boylan v. Warren, 39 Kan. 301; State v. Rachac, 37 Minn. 372; People v. Richards, 99 N. Y. 620; Hanson v. Eichstaedt, 69 Wis. 538.

It follows, in my opinion, that the prayer of the petitioner must be granted, and the writ issue as prayed, the relator asking in this writ no more than the Statute gives him.

Champlin, J., concurred.

Campbell, J.:

I think relator has such an interest as entitles him, under the Laws of 1889, to see the books in question, and confine my opinion to that point.

KENTUCKY COURT OF APPEALS.

PADUCAH LUMBER CO., Appt.,

v.

PADUCAH WATER SUPPLY CO.

(......Ky.......)

1. Where a city has power under its charter to enter into a contract with another for the construction and operation of waterworks therein, the right and duty attaches to it to make the contract for the personal benefit of inhabitants within its corporate limits.

2. If such city makes a contract for a water supply, for the benefit of its inhabitants, and the property of one of them is destroyed by fire because of the failure of the person agreeing to furnish such supply to comply with his contract, the property owner may sue in his own name for damages for breach of the contract, he being the "real party in interest" within the provision of Civ. Code, § 18, that every action

must be prosecuted in the name of such party; and the city is not a necessary party to the action. 3. One undertaking to furnish a water supply to a city for the benefit of its inhabitants under a contract which provides that he shall not be liable for damages occasioned by the temporary shutting off of the water for purposes of repair, etc., will, in the absence of such excuse, be 7 L. R. A

4.

liable for damages to property by fire resulting from his neglect to furnish the stipulated amount of water; and such liability will not be released by the insertion in the contract of provisions relieving the city from liability for rent for hydrants, and permitting rescission of the contract, in case it is not complied with.

The inquiry is, in an action to recover such damages, whether or not, under all the circumstances, the fire could and would have been prevented or extinguished before occasioning the damage, if defendant had performed his contract; and the question as to how or where the fire originated is immaterial provided it was not caused by plaintiff.

This is not an action ex delicto to recover | 50 feet of hose 100 feet high, all which works damages for a tort or tortious negligence, but were completed and put in operation in 1885; it is an action ex contractu, seeking to recover that appellee also agreed to have in the standfor a loss occasioned by or flowing out of a pipe and conducting pipes at all times a supply breach of an express and binding contract. of water sufficient to afford a head or pressure The maxim, causa proxima non remota spectan-requisite for all domestic, manufacturing and tur, is not applicable alike to the two cases fire-protection purposes, for all the inhabitants stated. and property of the city, and to increase the number and length of hydrants and pipes when necessary to meet demands of the city and citizens; that said contract was made with appellee by the City of Paducah for the use and benefit of all its property owners and inhabitants, and appellant's property was, from 1885 until destroyed by fire, in common with that of others, taxed at its full value to raise money with which to pay said hydrant rents.

Shinkle v. Covington, 1 Bush, 618; Webb v. Rome, W. & O. R. Co. 49 N. Y. 420; Pennsylvania R. Co. v. Hope, 80 Pa. 373; Milwaukee R. Co. v. Kellogg, 94 U. S. 474 (24 L. ed. 258). Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.

It is further stated that, under a contract directly between them, there had been erected, previous to the fire, on the same lot where the burned property was situated, two hydrants, one within 30, and the other 70, feet of the place where the fire originated, and connected Thompson, Neg. § 13; Hadley v. Barendale, by pipes with the water-main, to be used by 9 Exch. 341, 26 Eng. L. & Eq. 398; Griffin v. appellant to extinguish fires, and for steam purColver, 16 N. Y. 489; Leonard v. New York, pose, for which it had been paying rent to apA. & B. Teleg. Co. 41 N. Y. 544; Wharton, pellee, and that in consideration thereof appellee Neg. § 435 See also U. S. Teleg. Co. v. Wen-had agreed to furnish and have ready at all ger, 55 Pa. 262; Sedgw. Dam. 5th ed. pp. 410-times water sufficient to throw streams through 414, notes; Rittenhouse v. Independent Line 1elea. Co. 44 N. Y. 263.

Negligence may be the proximate cause of an injury of which it is not the sole or immediate cause.

hose kept by appellant in proper condition, to be connected with the two hydrants, the height provided for in said contract between appellee and the City of Paducah; that the fire origi nated in a wood building situated on the lot of Shearm. & Redf. Neg. § 10. appellant, and connected with its other propMessrs. Husbands & Husbands also for erty, though occupied at the time by another, appellant. but said fire occurred without any fault or neg Messrs. Burnett & Dallam for appellee.ligence of appellant or its servants, and it could

Lewis, Ch. J., delivered the opinion of the

court:

The buildings, machinery and other property of appellant, a corporation engaged in the lumber and planing mill business in the City of Paducah, having been, in 1887, destroyed by fire, it instituted this action to recover damages therefor of appellee, also a corporation; and the City of Paducah, having, as alleged, refused to join as plaintiff, was made likewise defendant to the action, though no recovery against it is sought.

In the petition it is stated, in substance, that in consideration of the grant by the City of Paducah to appellee, as assignee of one Jones, of the franchise and right to construct, maintain and operate for the term of forty years waterworks, including the laying of pipes and erection of hydrants in all the streets, avenues and public grounds of the city, and agreement to pay $40 annual rent for each of 150 hydrants, besides the privilege given to charge and collect of the inhabitants limited rates for private use of water, appellee agreed to erect upon a platform 50 feet high a stand-pipe, 22 feet in diameter, and 175 feet high, with which were to be connected the conducting pipes and hydrants mentioned, and also two pumping engines, each having capacity to force into the stand-pipe 2,000,000 gallons of water every twenty-four hours, and to keep a head of water sufficient to throw from any eight of the bydrants simultaneously, and for five consecutive hours at any one period of time, streams through

and would have been extinguished before doing damage to the property of appellant if there had been the stipulated quantity of water in the stand-pipe and conducting pipes, or the pumping machinery had been in readiness to operate, and the engineer and servants of appellee had been present to set it in motion; for immediately after the fire commenced, and before it had done any damage, or extended to the premises then occupied by appellant, hose pipes in good order were attached to the two private hydrants, and carried to within 5 or 6 feet of the fire, for the purpose of applying water to it.

There were besides four or five double-nozzle fire hydrants, one within 12 and two within 60 feet of the property burned, and all near enough to extinguish fire on any part of said lot; and experienced firemen employed by the City of Paducah were present on the ground within ten minutes or less after the fire started, and had hose, suitable and in good condition, attached to the hydrants. But that, notwithstanding it had since 1885 been receiving from the City of Paducah the agreed hydrant rent, and from numerous inhabitants thereof, appellant included, large sums of money for water furnished to them, appellee, in violation of said contract, and without excuse, refused and neglected to have, when said fire commenced, the stipulated quantity of water in the stand-pipe, and for more than one hour after the alarm was given, and the city firemen had arrived and attached hose to the hydrants, neglected to start. the pumping machinery, or to have its engineer