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§ 593. Custody.

The custody and making of all public records, documents and files and the record of the proceedings of public bodies may be given either to some designated officer 629 or, in the absence of a special statutory provision or regulation, to that officer legally or naturally charged with the responsibility of a certain department or function of government 630 by whom they should be delivered to their successors in office 631 and kept at the legally established seat

ficials in a political sense are considered as the agents of the people in managing and conducting the business of the county. These officials are commonly denominated, and properly so, 'public servants,' and are directly responsible to the people who select them for the honest and faithful discharge of the duties and powers with which, under the law, they are invested. Under such conditions and circumstances, as they exist under the peculiar structure or genius of our government, it would certainly be a harsh interpretation of our laws, and one which would be, in our opinion, adverse to sound reason, to deny any taxpayer or citizen the right, subject to the reasonable rules and regulations previously mentioned, to inspect or examine the public records of his county in order to discover or ascertain whether the public officers had properly administered the funds of the county to which such taxpayer had been required to contribute. In fact there can be no sound reason advanced for depriving a citizen of this right, for it is evident that the exercise thereof, for the purpose in view in this case, will serve as a check upon dishonest public officials; and will in many respects conduce to the betterment of the public service." State v. Hoblitzelle, 85 Mo. 620; Barber v. West

Jersey Title & G. Co., 53 N. J. Eq. 158; Com. v. Walton, 6 Pa. Dist. R. 287.

629 Johnson v. Wakulla Co., 9 Fla. 690, 9 So. 690. A clerk of the board of county commissioners is required by law to keep a record of the proceedings of the board.

Allen v. Hopkins, 62 Kan. 175, 61 Pac. 750; State v. Patton, 62 Minn. 388, 64 N. W. 922. All of the official papers in a county supervisor's office including plats with their notes and calculations should be transmitted by the present incumbent to his successor in office.

Howze v. State, 59 Miss. 230. The records and public property in the treasurers office must, under Miss. code 1871, § 262, be delivered to his successor in office. And § 2890 makes it a misdemeanor for one failing to perform this duty.

630 State v. Harwi, 36 Kan. 588. The county records must remain at the county seat. Phenix V. Clark, 2 Mich. 327; People v. State Treasurer, 24 Mich. 468. The custody of all public papers, records or documents belongs to the officer legally in charge of them by whom they are to be guarded. Town of Litchfield v. Parker, 64 N. H. 443, 14 Atl. 725; Conover v. City of New York, 25 Barb. (N. Y.) 513.

631 Thompson v. Holt, 52 Ala. 491; State v. Patton, 62 Minn. 388, 64 N. W. 922; Howze v. State, 59 Miss.

of government.632 However the right of custody may have been acquired, the custodian is legally charged with the responsibility of a safe care and keeping of public records and public property of a similar character.633 Where he is wrongfully deprived of his rights in this respect he can maintain an action to recover possession of the records properly in his care,684 and in proceedings to

230; Lincoln Land Co. v. Ackerman, 24 Neb. 46, 38 N. W. 25; Conover v. City of New York, 5 Abb. Pr. (N. Y.) 393.

632 Shaw V. Hill, 67 Ill. 455; State v. County Judge, 13 Iowa, 138; Way v. Fox, 109 Iowa, 340, 80 N. W. 405; State v. Harwi, 36 Kan. 588; State v. McKinney, 5 Nev. 194; Caruthers v. Harnett, 67 Tex. 127.

633 People v. State Treasurer, 24 Mich. 468. "There can be no doubt that when a person undertakes to hold in his official custody that which has been placed there under a claim that it should be lawfully deposited in his custody, he is bound to restore it on application of the proper party, if it does not belong to his custody. The public files and receptacles cannot be changed into private ones by any legal theories. Their custodian can never cease to be a public officer in regard to any of them. Having received them as an officer he is bound to keep them safely, until demanded by their owners and then he is equally bound to restore them. It is no defense to such a claim of restoration that the securities are not liable to be legally enforced. It is always possible that injury may be done to a person or municipality by being subjected to litigation and instruments which purport to be obligations, and are legally invalid may be compelled to be given up and can

celed in all cases where any possible danger can be anticipated where there is no rule of equity to the contrary. In these cases of municipal bonds, the townships cannot be made to suffer for the legally wrongful action of their officers and they have a right to recall the unauthorized securities. The duty of the treasurer is not discretionary. It is their absolute right to demand and his absolute duty to surrender what is held in the files of the office in their wrong. The duty is unconditional and it is clear."

634 Frisbie v. Fogg, 78 Ind. 269; State v. County Judge, 13 Iowa, 139; Way v. Fox, 109 Iowa, 340, 80 N. W. 105; State v. Dean, 49 Kan. 558, 31 Pac. 145; Phenix v. Clark, 2 Mich. 327; State v. Sherwood, 15 Minn, 221 (Gil. 172). A de facto officer is entitled to possession of the records and other books and papers pertaining to the office. State v. Patton, 62 Minn. 388; Flentge v. Priest, 53 Mo. 540; Conover's Case, 5 Abb. Pr. (N. Y.) 73; Devlin's Case, 5 Abb. Pr. (N. Y.) 281; Welch v. Cook, 7 How. Pr. (N. Y.) 282; In re Davis, 19 How. Pr. (N. Y.) 323; Conover v. Devlin, 24 Barb. (N. Y.) 587; In re Foley, 8 Misc. 196, 28 N. Y. Supp. 611; People v. Allen, 42 Barb. (N. Y.) 203; McGrory v. Henderson, 43 Hun (N. Y.) 438; In re Sells, 15 App. Div. 571, 44 N. Y. Supp. 570; In re Freeman, 23 Misc. 752, 53 N.

determine the title to public offices, the custody of public records is one of the objects sought to be secured and protected.635 personal liability may arise on the part of the custodian for a willful neglect of his duties. The character of the records kept by different public officers is a matter of common knowledge and their mutilation or destruction may, by statute, be made a crime or misdemeanor and punishable in the manner designated.630

$594. Amendment of public records.

The record of proceedings of legislative, administrative or ju dicial bodies, should show the facts as they actually occur upon a particular occasion, the conditions existing at a particular moment of time, with all that was said and done by those entitled to participate in such proceedings.637 The purpose of the records, then, being to establish a true account of official action, it follows that where the rights of third parties have not intervened, 638 amendments may be made by officers having them in their care or charged with the ministerial or clerical duty of making them.639

Y. Supp. 171; In re Whipper, 32 S. C. 5, 10 S. E. 579; McMillan v. Bullock, 53 S. C. 161, 31 S. E. 860. Where an officer has been indicted for embezzlement, the appointee is entitled to the immediate possession of the books and records belonging to the office. Verner v. Seibels, 60 S. C. 572, 39 S. E. 274.

635 Ex parte Scott, 47 Ala. 609; Thompson v. Holt, 52 Ala. 491; Hull v. Shasta County Sup. Ct. 63 Cal. 174; Desmond v. McCarthy, 17 Iowa, 525. The title to an office cannot be determined by an action of replevin for the books and records.

Eidolt v. Ter., 10 N. M. 141, 61 Pac. 105. The question of title to an office cannot be raised in a proceeding by one possessing a prima facie title to compel and deliver to himself the books, papers and records and other paper belongings to such office. In re Brenner, 67 App. Div. 375, 73 N. Y. Supp. 689. Code

Civ. Pro. § 2471a providing for summary proceedings to compel the delivery of books, papers, etc., to a public officer is not intended to be a substitute for a writ of quo warranto.

636 People v. Peck, 10 N. Y. Cr. Rep. 363; Whalley v. Tongue, 29 Or. 48; Zwietusch v. City of Milwaukee, 55 Wis. 369.

637 Boston Turnpike Co. v. Town of Pomfret, 20 Conn. 590; Samis v. King, 40 Conn. 305; Chamberlain v. Inhabitants of Dover, 13 Me. 466; Welles v. Battelle, 11 Mass. 477; Vaughn v. School Dist. No. 31, 27 Or. 57, 39 Pac. 393.

638 Ryder's Estate v. City of Alton, 175 Ill. 94, 51 N. E. 821; Jaquith v. Putney, 48 N. H. 138; Buehler's Heirs v. Buffington, 43 Pa. 278.

639 City of Anniston v. Davis, 98 Ala. 629, 13 So. 331. The minutes of a council when properly corrected at a subsequent meeting can

Such amendments may be made nunc pro tune as will show the true condition of affairs if material matters through a misapprehension of duty, carelessness or ignorance have been omitted.40 The amendments must be made, however, by the same officer or body through whose neglect or inadvertent act the mistake or omission occurred." 641

§ 595. Municipal records as evidence.

Public records are admissible in evidence to show the facts therein cited if material when properly identified 642 and competent, which latter condition includes the character of the of

not be collaterally impeached. Du Page County v. Martin, 39 Ill. App. 298; Allen v. Archer, 49 Me. 346; Inhabitants of Dresden v. Lincoln County Com'rs, 62 Me. 365; Sprague v. Bailey, 36 Mass. (19 Pick.) 436; Farmington River Water Power Co. v. Berkshire County Com'rs, 112 Mass. 206; Inhabitants of Gloucester v. Essex County Com'rs, 116 Mass. 579; Smith v, Messer, 17 N. H. 420; Bean v. Thompson, 19 N. H. 290; Leighton v. Ossipee School Dist., 66 N. H. 548, 31 Atl. 899; McClain v. McKisson, 15 Ohio Circ. R. 517. After the reading of the journal at a subsequent meeting and its approval by the council, the clerk has no further right to make amendments to the record as thus corrected.

640 City of Logansport v. Crockett, 64 Ind. 319.

641 Swamp Land Reclamation Dist. No. 407 v. Wilcox, (Cal.) 14 Pac. 843; Samis v. King, 40 Conn. 298. An amendment to the record of proceedings of the common council can only be made by the clerk at the time the original mistake was made. City of Covington v. Ludlow, 58 Ky. (1 Metc.) 295; Welles v. Battelle, 11 Mass. 477; Hartwell v. Inhabitants of Little

ton, 30 Mass. (13 Pick.) 229; Judd v. Thompson, 125 Mass. 553. An attempted amendment by a clerk is inoperative that to the best of his "recollection the vote was passed by two-thirds the legal voters present and voting thereon." Foster v. Boston Park Com'rs, 131 Mass. 225; Bishop v. Cone, 3 N. H. 513; Low v. Pettengill, 12 N. H. 337; Cass v. Bellows, 31 N. H. 501; Pierce v. Richardson, 37 N. H. 306; Mott v. Reynolds, 27 Vt. 206. But see Gibson v. Bailey, 9 N. H. 168.

642 South School Dist. v. Blakeslee, 13 Conn. 227; Ryder's Estate v. City of Alton, 175 Ill. 95, 51 N. E. 821. Official records when produced in court as such by the officer having them in charge can be attacked for fraud. Mosteller v. Mosteller, 40 Kan. 658, 20 Pac. 464; Lease v. Clark, 55 Kan. 621, 40 Pac. 1002; Thornton v. Campton, 18 N. H. 20. Books of account kept by the selectmen of the finances and expenses of a town are admissible in evidence.

Tompkins County Sup'rs v. Bristol, 15 Hun (N. Y.) 116. The county treasurer's report made and filed in accordance with statutory provisions admissible in evidence.

Pleasant Valley Coal Co. v Salt

ficer 643 and the manner in which made.644 Parol evidence of facts not recited is inadmissible where the records themselves are offered and purport to contain all the evidence.645 This rule will not apply where the records, as kept, are an abstract only of the proceedings of an official body; and in such a case, oral evidence is admissible to prove facts which occurred at a meeting of an official body and not otherwise reported or recorded.

Lake County Com'rs, 15 Utah, 97, 48 Pac. 1032. A court will take judicial notice of the records of public officials in passing upon the validity of their expenditures. Richardson V. Sheldon, 1 Pin. (Wis.) 625.

643 Hutchinson v. Pratt, 11 Vt. 402. A record kept by a clerk pro tem of a town meeting is competent and, therefore, admissible in evidence although the clerk pro tem may not have been sworn. "We think it was competent for Chandler to keep the minutes of the proceedings and record the same with the consent of the actual clerk and that his neglect to take the oath does not vitiate or avoid enther his doings or those of the village. It must from necessity be in the power of any corporation, whether public or private, to appoint a person as clerk pro tem for the purpose of making the entries of what was done by them. Such an appointment supposes the office to be filled but as the duties required of such temporary officer are only ministerial, he is empowered, for the time being, to perform them for and in behalf of the regular officer. Where there is a vacancy in the office, as in the case of a town clerk, the legislature have provided for the performance of the duties by other persons.* * * The appointment of Chandler as

clerk pro tem, was made in pursuance of authority obviously belonging to the corporation and conformable to the practice which has always prevailed in corporations of this nature, and it appears that he entered upon the duties of the office. Can it be objected to his proceedings or his records that he was not duly sworn? We think not because it is not made a prerequisite to his entering upon the duties of the office."

644 Williams v. School Dist. No. 1 in Lunenburg, 38 Mass. (21 Pick.) 75.

645 Swamp Land Reclamation Dist. No. 407 v. Wilcox (Cal.) 14 Pac. 843; City of Logansport v. Crockett, 64 Ind. 319; City of Cov ington v. Ludlow, 58 Ky. (1 Metc.) 295; Taylor v. Henry, 19 Mass. (2 Pick.) 397; Halleck v. Inhabitants of Boylston, 117 Mass. 469; Weston v. Moody, 37 Fla. 473; Town of Lemont v. Singer & T. Stone Co., 98 Ill. 94. Oral evidence is admissible in facts contained in a lost record book. Jordan v. Osceola County, 59 Iowa, 388; Rock Creek Tp. v. Codding, 42 Kan. 649, 22 Pac. 741; Ragoss v. Cuming County, 36 Neb. 375, 54 N. W. 683; State v. Gloyd, 14 Wash. 5; Chicago, K. & W. R. Co. v. Stafford County Com'rs, 36 Kan. 121, 12 Pac. 593.

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