The opinion
FOURNET, Justice
(concurring).
Under the express provisions of Act 242 of 1912, “ * * * any elector of the State of Louisiana or any taxpayer who has paid any tax collected by or under the authority of the State of Louisiana * * ” (Section 6) or “ * * * any person bearing a certificate of authority as the agent or attorney of fifty electors or of ten taxpayers who have paid any tax collected by or under the authority of the General Assembly of the State of Louisiana * * *” (Section 7)
is granted the privilege
of “ * * * examining, copying, photographing and taking memoranda of any public record, as defined and declared by Section One and
limited by Sections
Two,
Three,
Four and Five
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* * * ” (Section 8), provided they make application to the officer having custody and control of the records sought to be examined, in the manner contemplated by and provided for in the act. (Italics mine.)
The limitation placed upon this privilege by Section 3, as amended, is as follows:
“ * * *
the provisions of this Act
[granting to the citizens and taxpayers designated in Sections 6 and 7 the privilege of viewing the public records]
shall not apply to any records, writings, accounts, letters, letter books, photographs or copies or memoranda thereof in the custody or control of the Supervisor of Public Accounts *
* (Italics and brackets mine.)
Thus it may be seen from the foregoing that the lawmakers have, in most clear and unambiguous language, granted to the citizens and taxpayers of this state the privilege of examining, copying, photographing, and taking memoranda of any public records, and make it the mandatory duties of the officers in whose custody or control these records are placed to facilitate this privilege upon proper application, subject to the limitations placed thereon by Sections 2, 3 (as amended), 4, and 5 (as amended) of the act, the limitation placed by Section 3 (as amended), being when the records are in the custody and control of the Supervisor of Public Accounts.
That the lawmakers intended audits of public records should be made without interference is accentuated by their later act, No. 109 of 1918, defining the duties and powers of the Supervisor of Public Accounts (now Supervisor of Public Funds under the authority of Act 69 of 1936), for this act makes it his duty to examine and audit the books and accounts of all public boards and commissions and any department of the state government (Section 3) and makes it a misdemeanor (Section 9), subject to fine or imprisonment, or both, at the discretion of the court, if “ * * * any public officer, employee, or other person who wilfully neglects or fails, or who refuses, to furnish the Supervisor of Public Accounts with such papers, accounts, books or other documents as he has the right to inspect and examine under the terms of this Act, or
who *
* *
in any manner, shall obstruct or impede said Supervisor of Public Accounts in making the examination required by this Act *
* (Italics mine.)
It was never the intention of the lawmakers that the citizens and taxpayers of this state be denied the privilege of examining, copying, photographing and taking memoranda of public records under the pretense of an audit or by an unnecessary and unreasonable prolongation of such audit, and that, in this manner, the purpose of the act be frustrated. It necessarily follows, therefore, that when a public officer is ruled into court in a case such as this, and the same is pleaded, it is incumbent upon him to show that an audit of the books of the particular department was necessary, that such an audit was in progress at the time application was made.to view and examine the rec
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ords, that the work is being done with due diligence,. and that the audit is not unnecessarily delayed or an unreasonable time consumed in its completion.
A review of the record in this cáse shows that the relators, on August 23 and 24, 1939, made application to examine the records of the Department of Conservation. At that time the records were, according to the testimony of the Supervisor of Public Funds on the trial of the case, in his (the Supervisor of Public Funds’s) hands for auditing purposes. The officer in charge of the office, respondent, so informed the relators when their application was made, and he also informed them that their request would be granted when the audit was completed. Nevertheless, four days thereafter, on August 28, 1939, the relators filed this suit seeking a writ of mandamus to compel the respondent “ * * * to permit relators to examine and copy the books and records of the Department of Conservation in his custody or under his control as such Commissioner of Conservation, and
particularly all pay rolls and records pertaining to the employees of said Department
* * (Italics mine.) The respondent, in his defense, set up, substantially, the reasons he had given the relators as to why the records they sought to examine were not available to them at that time.
The relators have made no allegation in their petition, nor have they at any time during the entire course of these proceedings contended, that an audit of the books of the Department of Conservation was not actually being made at the time they applied to examine, copy, photograph, and take memoranda of these records; or that such an audit was unnecessary; or that it was being made for the purpose of withholding the records from the relators; or that an unreasonable time was being consumed in making the audit. The only issue presented by the pleadings in this case was whether or not the relators, by reason of the privilege granted them under Act 242 of 1912, were, on August 23 and 24, 1939, entitled to examine the records of the Department of Conservation, despite the fact that the books were, at that time, in the hands of the Supervisor of Public Accounts and being audited by his office. In other words, the sole question in this case is whether or not relators had a right to examine, copy, photograph, and take memoranda of the books and records of the Department of Conservation on August 23 and 24, 1939, under the facts and circumstances of the case on that date.
The trial judge in a well considered written opinion, handed down on September 12, 1939, ruled that under the provisions of Act 242 of 1912 the relators were not entitled to the relief sought while the records of the Department of Conservation were in the custody and under the control of the Supervisor of Public funds for the purpose of auditing same, and particularly in view of the fact that it was not pleaded that the time being consumed in the making of the audit was unreasonable. On the contrary, he found, as was disclosed by the uncontradicted evidence in the record, that the
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audit had only been recently begun; that it was being pursued with due diligence; and that to allow the examination, copying, photographing, and taking of memoranda of these records by anyone during the progress of the audit, would seriously hinder, hamper, interfere with, and impede the audit.
On appeal, the judges of the Court of Appeal for the Parish of Orleans, in an opinion handed down on November 13, 1939, reversed the trial judge and ruled, in effect, that the relators had a right to see the books of the Department of Conservation at any time, even when they were being audited by the Supervisor of Public Accounts. 192 So. 126 .
A writ of certiorari or review was applied for in this court on January 9, 1940, and allotted to a member of the court (the author of the majority opinion) in the usual manner, no application for a preference in the case having been made by either the relators or respondent. A report was made on the case by the member of the court to whom it had been assigned on the next regular conference day (the Friday before Monday, February 12, 1940, decision day), 'and, after a careful examination of the record by several members, the majority of the court, being of the opinion that the interpretation placed on the act by the Court of Appeal for the Parish of Orleans was erroneous, granted the writ. The case was regularly allotted and submitted on briefs on March 4, 1940.
I cannot agree with the interpretation the Court of Appeal, adopted by the majority opinion of this court, places on the provisions of Act 242 of 1912. The provisions of the act are unambiguous and, in my opinion, clearly reflect the intention of the lawmakers to limit the privilege it granted by the act to the citizens and taxpayers while the public records are under the supervision and in the control of the Supervisor of Public Funds for audit, obviously for the purpose of facilitatng such audit. It is a matter of common and practical knowledge that an auditor would be seriously handicapped and could not properly and efficiently perform his duties if the books, while being audited, were subjected to the unlimited and unrestricted inspection of and examination by the citizens and taxpayers of this state.
Now that six and a half months have elapsed since the application was made I would think that a reasonable time has elapsed for the completion of the audit of the particular records that relators were seeking to examine at the time their application was made and it is my opinion that they are entitled to view the records and should be permitted to do so and, for this reason, I concur in the results of the majority opinion.