alleged that he received a majority of the votes cast and was in fact duly elected; that be intended to contest the election with a view of establishing his right to the office; and that, for the purpose of preparing for such contest, he demanded of the defendant that he and his attorney be permitted to inspect the registration list and pollbooks used at the election, which defendant refused. It was held by an undivided court that the peremptory writ should issue. Sherwood, J., wrote a concurring opinion, with which Henry, C. J., agreed. Therein it is said that the right of citizenship alone confers the right of relatorship in case of this sort, and, "the records being public ones, records pertaining to the preservation of the evidence of the exercise of one of the highest and most sacred rights of a freeman, a right which constitutes the foundation stone of American liberty and national government, it is not too much to say that the right, within reasonable bounds, of inspecting such records, is no less broad than the right of citizenship on which it rests."

In a later case before the same court (State ex rel. Conran v. Williams, 96 Mo. 13, 8 S. W. 771) the right to take copies of these registration books and registration lists to be used by a voluntary political organization at a primary election to be held in the city of St. Louis under a primary election law was in question. The relators constituted the Democratic central committee of that city. It was held that the registration lists were public records, and as such were competent evidence at such elections, and that, since they were public records, the right to inspect carried with it the right to take copies.

By a provision in the charter of the town of Orange, in the state of New Jersey, no person should be allowed to sell ale, etc., within the city limits, unless he was first licensed by the collector of taxes, had paid a license fee, and had filed with the collector a letter of recommendation signed by six legal voters and freeholders, who had signed no other recommendation within a year, to the effect that the applicant for a license was of good moral character and of good repute for temperance. In Ferry v. Williams, 41 N. J. Law, 332, 32 Am. Rep. 219, the relator, a citizen of Orange, believing that the requirements of the law as to these letters of recommendation were not obeyed, and desiring, with other citizens, to secure a due observance of its provisions, applied to the collector of taxes for an inspection of the letters on which then existing licenses had been granted. This request was refused, and the relator sought a writ of mandamus to enforce his alleged right of inspection, the existence of which right the collector denied. There was no statute in the state on the subject; hence the case was determined on common-law principles. The relator asserted no interest to be subserved by the inspection desired, except that common interest which every citi

zen has in the enforcement of the laws. It was held that the relator was entitled to an inspection of the letters, and the writ was granted.

In State ex rel. Wellford v. Williams, 110 Tenn. 549, 75 S. W. 948, 64 L. R. A. 418, the relator, a resident citizen and taxpayer of the city of Memphis, alleged that the defendant was mayor and chief executive of the city, and as such had the custody of its books on which were kept the receipts and expenditures of the funds of the city; that in said receipts and expenditures he, as a citizen and taxpayer, had a direct interest; that, some time before the filing of the petition, he, uninvited, attended a meeting of 200 invited citizens, called by the mayor for the purpose of devising ways and means to assist the city 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 afterward attended a meeting of a committee of 15 appointed at the aforesaid meeting of citizens; that the relator, being interested as a corporator and taxpayer, the financial condition of the city showing necessity for the providing of additional means for the purpose aforesaid and the tax rate being very high and burdensome, he later demanded of the defendant the right to make an examination of the books, records, papers, and vouchers in his possession, claiming 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, which demand was refused. In disposing of the case in favor of the relator, upon an examination of many authorities, both English and American, the court said that under the circumstances it was natural that a citizen and taxpayer should desire to know the exact condition of the city's finances, and the plan of a thorough and exhaustive examination necessarily arose in the mind, and that the purpose which he professed was to ascertain the real condition of affairs-how much money had come in, and where it had gone to as a necessary preliminary to fiscal ameliorations; that it cannot be doubted, under a state of facts showing it to be important to the public interest that the general examination of the books of a municipality should be had, that the court should allow such examination at the suit of one who is a citizen and taxpayer of the corporation; that the right rests, not only on the ground that the books are public books, but also on the same principle that authorizes a taxpayer to enjoin the enforcement of illegal contracts entered into by the municipality, county, or state, for the protection of the applicant and all other taxpayers from illegal burdens; that it is obvious that in making and enforcing such application the taxpayer acts, in a very real sense, not only for himself, but for all other taxpayers, and acts, therefore, in the capacity, as it were, of a trustee for all; and

that it must be admitted also that the exercise of such power, if prudently and carefully guarded, cannot be otherwise than salutary, because the knowledge that it can be exercised by a citizen and taxpayer, and may be exercised when the public good shall seem, on sound reason, to demand it, cannot result otherwise than in producing an added sense of responsibility in those who administer the affairs of municipal corporations, and in inducing a greater carefulness in the discharge of the trusts imposed upon them by their fellow citizens under the sanction of law.

In State ex rel. Colscott v. King, 154 Ind. 621, 57 N. E. 535, the case was heard on demurrer to a petition for a writ of mandamus against the auditor of Franklin county to compel him to allow the relator an inspection of the public records and papers of the auditor's office. The relator was a citizen and taxpayer of the county, and averred in his petition that he prosecuted the suit on his own behalf and on behalf of all other citizens and taxpayers in the county who were aggrieved by the wrongs set out in the petition; that he desired such inspection for the purpose of ascertaining whether said books and records, etc., were legally and properly kept, and especially for the purpose of discovering whether the money and property of the county had been duly accounted for by the persons and officers charged with the collection and disbursement of the same, and to ascertain whether any money was due to the county from any person or persons; and that he desired such inspection and the information to be obtained thereby as a citizen and taxpayer, for the purpose of pursuing, if necessary, the proper legal remedies to enforce the collection of any money or demands that may be due the county, and to require the proper authorities to enforce such demands. On demand the auditor refused to allow such inspection. In that state there was a statute providing that "all the books, accounts, vouchers, papers and documents, touching the business or property of the county, shall be carefully kept by the auditor and open to the inspection of any person." No interest was asserted by the relator other than that which was common to all citizens and taxpayers of the county. It was held that, aside from the statute, the relator had shown by the facts presented such an interest in the matters to which the records and papers in question related as would entitle him to a general inspection thereof for the purpose which he had in view. Speaking of the rights of the people, the court said: "As taxpayers they contribute to the public revenue, and as voters they select the public officials who are to administer the county's affairs. Surely, under such circumstances, they retain or have a great interest in the proper management of the business and matters pertaining to their county, and therefore are entitled to know whether the public officials whom they have selected to

dis

represent them have properly used, bursed, and accounted for the public funds which, under the law, have been confided to their custody and administration."

The statute provides that the Auditor's biennial report shall be examined by the committee on claims of the General Assembly, in order to correct allowances which appear excessive, and that such committee shall examine his record of claims presented against the state, and his proceedings thereon, and make report to the General Assembly. V. S. 320. In 1904 this section was so amended that the committee, in making their examination of the record of claims presented against the state and the Auditor's proceedings thereon, may examine the vouchers, files, and papers of his office connected therewith, and that the meetings of such committee shall be open to the general public. Laws 1904, p. 25, No. 21. But the examination by the committee is not exclusive. It cannot be said that this statute either expressly or impliedly takes away any right of inspection which may exist at common law. There is nothing indicating that such was the intention of the Legislature. In State ex rel. Colscott v. King it was contended that the statutory right and duty of the county commissioners to inspect and examine the records must be held to be an exclusive one, and impliedly deprived any citizen or taxpayer of that right when he sought it for the purpose which the relator in that case had in view. But it was held that there was no force in this contention. And the case of State ex rel. Wellford v. Williams, supra, is to the same effect. See, also, King v. Justices of Leicester and Rex v. Guardians, etc., of Great Faringdon, before cited. Upon principle and authority we think the interest of the relator, as a citizen and taxpayer, in the matters and things to which the vouchers in question pertain, is sufficient to entitle him to an inspection of the vouchers for the purpose which he has stated.

We are asked in the exercise of discretion not to grant the relief sought. But it is clear that the relator has no other adequate remedy, and the fact that the allowance of such inspection by citizens and taxpayers will be an inconvenience to the office of Auditor of Accounts or to those legally in charge thereof affords no good reason for refusing it. The Auditor of Accounts is the lawful custodian of the public records and public documents in that office, and is responsible for their safekeeping; and he may make and enforce such reasonable rules and regulations regarding their inspection as may be necessary for their safety, and to prevent disproportional interference with the proper performance of the duties of the office, and consistent with the public right here declared.

Judgment that the prayer of the complaint is granted, and that a mandamus issue di

If the defense of staleness can be interposed by demurrer to a bill, it can only be done when the objection appears on the face of the bill.

[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, § 498.]

2. DESCENT AND DISTRIBUTION-ACTION BY HEIRS-Grounds.

The heirs of an intestate may sue to set aside mortgages executed by the intestate and to recover property fraudulently obtained from him, where the administrator refuses to sue. 3. EQUITY JURISDICTION INADEQUACY OF LEGAL REMEDY.

The probate court is without power to reach property which an intestate has been fraudulently induced to convey during her lifetime, or to create liens upon such property or enforce transfers thereof, and consequently equity has jurisdiction to grant appropriate relief on the ground of the inadequacy of the remedy at law.

4. EXECUTORS AND ADMINISTRATORS-SALESEFFECT.

The sale of an equity belonging to an intestate in mortgaged premises under a general license of the probate court does not establish the validity of the mortgages.

5. SAME-ACTION BY CREDITORS-COMPROMISE -EFFECT.

Under the statute authorizing an executor or administrator to compound with a debtor of the deceased for a debt due with the approbation of the probate court, a compromise by the administrator, with the approval of the probate court, of a suit brought by creditors of a decedent to set aside certain mortgages executed by the decedent, does not bar a subsequent suit by heirs of the decedent against the same defendant involving transfers of other property by the decedent.

Appeal in Chancery, Rutland County; George M. Powers, Chancellor.

Bill by Clarence R. Marsh and others against Edward S. Marsh and others. The bill was demurred to, a decree pro forma sustaining the demurrer and dismissing the bill was rendered, and the orators appeal. Reversed.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, WATSON, HASELTON, and POWERS, JJ.

Edward H. Deavitt and Harlan F. Stone, for appellants. Edward S. Marsh, for appellees.

MUNSON, J. This bill is brought to establish and secure certain rights in the estate

of Eliza E. Marsh, late of Brandon, Vt., who died intestate, leaving two sons and the two sons of a deceased daughter. The orators are Clarence R. Marsh, one of the sons, and the grandchildren. The defendants are Edward S. Marsh, the other son, E. J. Ormsbee, the administrator of Eliza Marsh's estate, and one Post, surviving partner of Post & Flagg, a firm which is alleged to have received large amounts of the property of the deceased through the instrumentality of Edward, some of which is stated to be still in the possession of the surviving partner. The bill alleges, in substance, that the deceased was a widow, whose immediate family consisted of herself and her son Edward; that for some time previous to her death she was mentally weak and susceptible to undue influence; that during this time Edward was her business, financial, and confidential legal adviser; that she formerly had property amounting to $100,000, and was free from debt; that during Edward's management of her affairs this property was so disposed of and incumbered that she died insolvent; that she executed to Post & Flagg mortgages of real estate securing notes of Edward amounting to $24,000 and conveyances, absolute or conditional, of other real estate, and also transferred to them stocks and bonds; that Edward procured this to be done by an exercise of improper influence and for the purpose of obtaining possession of her property; that said Post & Flagg were New York brokers, through whom Edward bought and sold stocks on speculation, that they were cognizant of Edward's fraudulent methods and purpose, and acted in collusion with him, and that the securities placed in their hands were treated as a fund upon which Edward might draw for his own uses. It appears from further allegations of the bill that Edward was otherwise indebted to the deceased in a large amount, and that he owns certain property described in the bill, but is insolvent; that defendant Ormsbee was appointed administrator de bonis non of the estate in March, 1899; that certain banks, for themselves and other creditors of the estate, had before this brought a bill in equity against Edward and the firm of Post & Flagg, alleging that the mortgages executed by Mrs. Marsh to Post & Flagg were fraudulent as to creditors, because obtained by the grantees through collusion with Edward, and by means of his undue influence over his mother, and because given for the purpose of placing the grantor's property beyond the reach of her creditors, that said Ormsbee as administrator and certain creditors intervened in said suit, and that Ormsbee was appointed receiver of the income of the mortgaged property; that in December, 1900, said Ormsbee, as administrator, applied to the probate court for permission to compromise said suit, and that it was compromised, with the approval of the court, upon terms by which Ormsbee paid to Post & Flagg the balance held by him as re

ceiver, and in his capacity as administrator received from Edward over $5,000, the greater part of which he has since paid out under the orders of the probate court; that the administrator had previously obtained a license to sell all the real estate for the purpose of paying the debts and charges of administration; that none of the heirs joined in the application therefor, or were notified of the hearing thereon otherwise than by publication; that by virtue of this license the administrator conveyed to Post & Flagg the estate's right of redemption in the property covered by said mortgages; that the administrator's account has since been approved, and a dividend declared and paid; and that the administrator has declined to proceed against the other defendants for the benefit of the orators. The bill prays for a disclosure in detail of all the business transactions had by deceased with said Post & Flagg, either directly or through the said Edward; that the mortgages executed by the deceased to Post & Flagg be decreed to be void; that the land described in certain of said mortgages be declared free of the incumbrance, or that Post be adjudged a trustee of the property for the benefit of the orators and directed to make proper transfer thereof; that defendants Post and Edward be decreed to deliver to the administrator all the property of the deceased in their possession or control; that defendant Edward account for whatever property has come into his possession from the said Eliza or from her estate, and that his property described in the bill be charged with liens to secure the payment of whatever may be found due; and for a writ of sequestration, and an injunction against tranfers by either of said defendants.

The bill is demurred to by defendant Edward, for the reasons that the orators have no interest in the subject-matter of the suit, and are not proper parties to bring suit; that a former suit based upon the same matters and brought by proper parties was settled; that the validity of the sale and transfer of the real estate under license of the probate court cannot be questioned; that the orators have been guilty of laches in bringing this bill; and that they have an adequate remedy at law. If the defense of staleness can be interposed by demurrer, it can be only when the objection appears on the face of the bill. For anything that appears here, the orators may have had reason to expect, until shortly before the bill was brought, that the administrator would take action in the matters complained of.

The allegations of the bill show a right in the orators to maintain it. The administrator has refused to sue, and is made a party defendant in his trust capacity. The creditors of the estate are thus represented and protected. All who are interested in what

The

may be left after the payment of the debts and charges are made parties. The right to proceed by suit when the administrator declines to act is not confined to creditors. right of an heir to maintain a bill in special circumstances is recognized in Mason v. Mason's Ex'rs, 76 Vt. 287, 56 Atl. 1011. Collusion on the part of the administrator has often been recognized as sufficient to sustain proceedings by an heir; and a refusal to act, from whatever cause, presents the same necessity. It cannot be said that the law affords a complete remedy in the circumstances disclosed by the bill. The alleged fraud has placed the property beyond the effective administration of the probate court. That court is without power to fasten upon the property, or to create liens or enforce transfers.

The sale of the equity in the mortgaged premises under the general license of the probate court did not establish the validity of the mortgages. It is clear that the orators could have some measure of relief as to the mortgaged property without touching the interest obtained from the administrator. Beyond this, it is not necessary to inquire. The statute provides that "an executor or administrator may compound with a debtor of the deceased for a debt due, with the approbation of the probate court. * The demurrant insists that the compromise of the suit brought by the banks, with the approval of the probate court, upon the payment of a sum by him to the administrator, is a bar to the maintenance of this bill by the heirs. We think the allegations of the bill are not sufficient to give the settlement the effect claimed. The exact allegation is that the administrator was to receive this sum "in compromise of said suit." When considered in connection with the subjectmatter of the former suit, this does not necessarily imply, and perhaps is inconsistent with, an understanding that the money was to be received in full discharge of Edward's liabilities to the estate. In that suit the allegations of undue influence and fraudulent purpose were applied only to the validity of the mortgages given to secure the notes of Edward. The procurement of other property by undue influence, and the liabilities arising therefrom, are involved in the present proceeding. The allegations are not sufficient to show that the payment was in discharge of all these matters. As this will require the overruling of the demurrer, we do not consider the effect of the settlement of the suit upon the defendants' rights as regards the mortgaged property, nor the conclusiveness upon heirs of settlements approved by the probate court.

Pro forma decree reversed, demurrer overruled, bill adjudged sufficient, and cause remanded.

(78 Conn. 666)

Appeal of PIERCE.

(Supreme Court of Errors of Connecticut. March 8, 1906.)

MUNICIPAL CORPORATIONS-POLICE DEPARTMENT-REMOVAL OF OFFICERS-POWER OF POLICE COMMISSIONERS-REVIEW BY COURT.

Sp. Laws 1901, p. 1168, and Sp. Laws 1893, p. 612 (city charter of Derby), create a police department under the control of a commissioner appointed by the mayor, and gives the commissioner power to appoint and remove members of the police department, and declares that a written notice of intention to remove a member shall be filed with the city clerk and the member furnished with a copy of the order of removal, with reasons for the removal. It is further provided that each member of the department shall hold his office until he shall resign or be removed for cause and that any person removed may appeal to a judge of the superior court, who shall hear the cause and render such judgment as the facts shall warrant. Held that, where the police commissioner assigns some cause for removal and informs the officer removed thereof, his action in removing a member of the police department is final and will be set aside on review by the courts only when some essential formality has been omitted or when the commissioner has acted arbitrarily, and allegations that the commissioner was mistaken in his conclusions state no ground for reviewing his action.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Application by Robert L. Pierce to the superior court, under Sp. Laws 1901, p. 1168, for review of the action of the police commissioner of the city of Derby in removing applicant from his position as a member of the police department. A demurrer to the application was sustained, and the application dismissed, and applicant appeals. Affirmed.

Charles S. Hamilton, for appellant. William S. Downs, for appellee.

HAMERSLEY, J. The charter of the city of Derby establishes for the administration of the city government a street department, a fire department, and a police department. It places each of these departments under the management and control of a commissioner appointed by and removable by the mayor. It gives to the police commissioner the power of appointment and removal of the members of the police department, and imposes upon him the duty of appointing suitable persons members of said department, and of suspending, removing, or expelling any member for cause, filing a written notice thereof with the city clerk within three days after said action is taken, and, upon deciding to suspend or remove any member, of filing with such member a copy of the order of suspension or removal, containing the commissioner's reasons for such action and the time when the same shall take effect. It gives him full power and imposes upon him the duty of prescribing the duties of the various members of the department, of fixing, subject to the approval of the board of aldermen, the compensation of each member. 63 A.-11

except the chief, and of making all needful rules for the government and control of said department. It provides that each member of said department shall hold his membership until he shall resign or be removed or expelled by said commissioner for cause. It provides for any person aggrieved by the action of the commissioner in removing, expelling, or suspending him as a member of said department an appeal or application to a judge of the superior court for a review of said case, and that "it shall be the duty of said judge to hear said cause and render such judgment therein as the facts shall warrant," provided, however, the person so aggrieved shall, within five days after receiving a copy of the order of suspension or removal, apply to a judge of the superior court for a review of such order as above provided. It provides that any one of certain acts of any member of the department in using his office for political purposes shall be an offense, and that any member convicted of such offense shall forfeit his membership. It also provides that the board of aldermen shall have power to pass ordinances "to provide the mode for removal of any officer for cause." Sp. Laws 1893, p. 612; Sp. Laws 1901, p. 1168.

It thus appears that the police commissioner is bound to select suitable persons as members of the department committed to his charge, and for this purpose he is given an absolute discretion in his selection. He is bound to prescribe the duties of the various members and to make all needful regulations for the government and control of the department, and for these purposes he is given full power. He is responsible for the efficiency of the department, for the fitness of the officers he appoints and the efficiency of those he permits to continue in office, and for failure to meet these responsibilities he is himself removable by the mayor. We think it clear that, in removing one of his appointees for cause, he is exercising a power incident to executive discretion, rather than one of a quasi judicial nature, and in a removal of this nature, limited by the necessity of assigning some cause and of informing . the officer removed of the cause of his removal (having given him an opportunity for explanation) and stating the ground of removal, the action of the removing officer complying with the limitation is final. State v. Kennelly, 75 Conn. 704, 707, 55 Atl. 555; People ex rel. Keech v. Thompson, 94 N. Y. 451; People ex rel. Gere v. Whitlock, 92 N. Y. 191, 197; State ex rel. Kennedy v. McGarry, 21 Wis. 502, 503; People v. Martin, 19 Colo. 565, 36 Pac. 543, 24 L. R. A. 201; State ex rel. Attorney General v. Hawkins, 44 Ohio St. 98, 115, 5 N. E. 228. The character of the removal authorized determines the nature of the appeal to a judge exercising the power of the superior court. The appeal is given for the purpose of providing a summary process by which the court may set aside the order