McClatchy v. Matthews

VAN DYKE, J.

This was an application for a writ of

mandamus,

directed to the appellant, as secretary of the state board of health of the state of California, commanding him to permit the respondents to inspect and take copies of the written reports of Doctors Mauser and Ryfkogel of a bacteriological examination of an alleged ease of bubonic plague made for the state board of health.

The petition for. the writ was filed with the court below, and an alternative writ issued thereupon, on the third day of August, 1900. In the petition,—to wit, the affidavit of Herbert A. French,—it is stated that he is a reporter and employee of respondents, who are proprietors and publishers of the Evening Bee, a newspaper of general circulation, published in the city of Sacramento, and that on the second day of August he went to the office of the state board of health located in the state capítol building at Sacramento, and made application to appellant Matthews, being then a member and secretary of the state board of health, to inspect said reports,

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and to take copies thereof for the nse of his employers, the respondents, for the purpose of publishing the same, or so much as they might deem fit and proper, in the said Evening Bee. It is also alleged in said affidavit that on the second day of August, when the demand was made for inspection, said reports were then in the custody of the state board of health, and were public writings of the state, which affiant had a right to inspect. On the 7th of August, defendant (appellant here) filed a demurrer and also an answer to the petition. In his answer, the defendant, among other things, states that Governor Gage, together with the state board of health, had begun an investigation of the alleged existence of bubonic plague in this state, and especially in the city and county of San Francisco, and that the governor consulted and advised with the state board concerning the lines on which the investigation should be conducted, and directed the state board to make special official reports to him of such information as might be secured by said board concerning the said alleged existence of bubonic plague within the state; that in pursuance of said investigations Doctors Mauser and Byfkogel made the examinations referred to, in the city and county of San Francisco, on the sixth day of July, 1900; that each of said doctors prepared a separate statement in regard to the bacteriological examination so made by them, and presented the same to the board on the 28th of July thereafter; that said statements so presented to the board were desired and secured as evidence for its private information, to be used in connection with other evidence in determining what, if any, official action ought to be taken by the board in the premises, and for the purpose of making the special report to the governor, required by him as aforesaid; and it is further stated in said answer that on the second day of August, 1900, he (the defendant) transmitted said statements of said doctors to the governor, as aforesaid, as a special report from said board, as required by the governor, and that since said second day of August, 1900, the said statements have been and are now entirely without the care, custody, or control of said defendant. He also denies that the said statements of said doctors are either public records, public writings, or public matter,