
    Morales v. Wilson et al.
    Application for a writ of mandamus.
    
    No. 135.
    Decided November 21, 1910.
    Mandamus — Party Defendant — Documents from the Archives of ti-ie Municipality. — The alcalde of a municipality cannot properly be made' the defendant in the application for a writ of mandamus seeking to compel the issuance of certified copies of certain documents on file in the archives of the municipality, inasmuch as the custody of such documents is entrusted to the municipal secretary.
    Id. — Demand Must First be Made on Defendant — I-Iis Refusal. — Tn order that an application for the writ of mandamus may be considered, it is necessary that, before the application is filed,' the defendant shall have been requested to perform the act which it is sought to compel him to execute and that he shall have refused so to do; and where, from the application, it appears that this course has not been followed, it will be deemed to be premature and must be denied.
    Tlie facts are stated in tlie opinion.
    
      Mr. Rafael Lopes Landrcm for petitioner.
    
      Mr. Jesús M. Rossy, fiscal, for defendants.
   Me. Justice MacLeary

delivered tlie opinion of tlie court-

On October 21, 1910, the plaintiff, Armando Morales Ril-dow, made application to this court for a writ of mandamusr directed to John A. Wilson, Commissioner of the Interior, and to Mariano Riera Palmer, mayor of Mayagiiez, requiring" them to place in his possession during business hours, in their respective offices, in order that he might examine them, ■the principal record and its accessories, and all other public documents which they may have in their subordinate departments, having reference to the reconstruction of the bridge known at various times as “Cartagena,” “Anguila,” or “Paris,” in the city of Mayagiiez; and in accordance with the ordinances that they should furnish the applicant copies, properly certified, such as he may designate, on payment of the corresponding fees.

The application alleges in separate paragraphs in substance the following:

1st. That applicant is an architect, etc.

2d. That he contracted to reconstruct the bridge, etc.

3d. That as such, he formulated a contract with the mayor, to whom he delivered the plan which was approved, making a 'beginning of the work on June 13, last.'

4th. That, in furtherance of the reconstruction, an administrative record {expediente) was made and followed, in which the Commissioner of the Interior set out an opinion or report of date July 11, last.

5th. That applicant has a legitimate interest in this record, which refers to the contract of reconstruction of the said bridge for the better use of his rights, etc.

6th. That applicant has made various efforts in the said departments to secure the inspection of this record and to fix the appropriate places to obtain the necessary certificates, and that aT his labors have been in vain, by reason of the refusals, delays, etc., of said departments.

7th. Applicant sets out the laws' which he contends are applicable to the case.

8th. He further alleges that it is the ministerial duty of the defendants to show the plaintiff this original record and to issue him the certificates.

9th. That applicant has no ordinary remedy at law in the premises, etc.

10th. Prayer is made as stated above.

On October 26 a rule to show cause was issued and set for-hearing on the 31st of same month. Both defendants were-duly cited. On October 31 defendants filed their answer, in< which:

1st. They accepted as facts the paragraphs of applicant’s-, complaint numbered 1, 2, 3, 4 and 5.

2d. They deny the allegations in paragraph 6 thereof, and say that no demand has been made on defendant, "Wilson, and' that no refusal has been made by defendant, Riera, to furnish the certificates mentioned. And allege that both defendants are ready to comply with all the duties imposed on them by the law.

3d. They accept the allegation made in paragraph 7 of the complaint..

4th. They deny the allegations in paragraph 8 of the complaint and say that the duties mentioned are not incumbent on the mayor, Riera Palmer, but on other persons.

5th. They deny the allegations in paragraph 9 of the complaint and say that applicant has an adequate remedy in the due course of the law, by applying to either of the defendants to show him the records in which he is interested, provided they are by law under their custody and in their respective .archives and asking that they may issue the certificates corresponding thereto; which they allege he has not done in the present case.

This answer was duly sworn to by both the defendants.

The case came on for hearing in due course, both parties having filed affidavits in support of their'pleadings.

This mandamus must be denied for several reasons.

I. The defendant, Riera, is not a proper party, because the documents sought to be inspected and of which certified •copies are desired are not, under the law, in his custody, but in that of the municipal secretary, who is not made a party. (Sess. Acts 190(5, p. 115); sec. 37; Law of Mandamus, sec. 1; Seas. Acts of .1903, p. 114.)

II. No proper demand has been made on defendant, Wilson, for such inspection and copies of the documents such as those, mentioned in the petition. (Negrón v. Supt. of Elections, 3 Dec. P. R., p. 501.)

III. Besides, neither of the defendants has ever refused to perform the duties which the plaintiff: alleges to lie incumbent on them; and this suit is prematurely brought. (Zavala et al. v. Executive Council, 2 Dec. P. R., p. 598.)

It is clear that under the law governing mandamus proceedings all these requisites must he complied with before this extraordinary writ can issue, and the facts laid before the court do not justify such action in the present case.

Application denied.

Chief Justice Hernández and Justices Wolf and del Toro concurred.

Mr. Justice Figueras did not take part in the decision of this case.  