Ex Parte Arnold

• Citation: 128 Mo. 256,30 S.W. 1036
• Parties: Ex parte ARNOLD.
• Decision Date: 25 May 1895
• Court: United States State Supreme Court of Missouri

30 S.W. 1036

128 Mo. 256

Ex parte ARNOLD.

Supreme Court of Missouri.

May 25, 1895.

Concurring opinion. For majority opinion, see 30 S. W. 768.

BARCLAY, J.

The record in this case shows that before the order made by the criminal court for production of the ballots before the grand jury, the recorder of voters, under the direction of the circuit court, had entered upon an examination or recount of the ballots cast at the last November election (which are the same indicated by the order of the criminal court), and that that examination was not then finished. Such examination is authorized by the constitution and laws of the state in election contests. Const. 1875, art. 8, § 3; Rev. St. 1889, §§ 4721-4723; State v. Slover (Mo. Sup.; 1895) 29 S. W. 718. While such an examination is in progress under the order of a competent court, it seems to me that the recorder of voters should not be compelled to produce before some other court the ballots required to complete that examination. There is no suggestion that the examination in the contested election case has been unreasonably prolonged; nor is there an intimation of any abuse of the circuit court's order to avoid a compliance with the order of the criminal court. There is nothing before us showing any bad faith on the recorder's part in reference to the execution of the order in the election case; and, indeed, the time which has elapsed since the beginning of the contest excludes any such inference. Under our positive law, the sufficiency of the facts upon which a court is proceeding to punish for contempt may be inquired into by means of the writ of habeas corpus. Rev. St. 1889, § 5378. Hence it is proper for us to consider whether the facts before the judge of the criminal court warranted the punishment of imprisonment for contempt which he imposed upon relator. In my opinion, they did not warrant such imprisonment, and hence the relator should be discharged from custody. It seems to me unnecessary, in the circumstances, to go into the general question of the secrecy of the ballot, or to ascertain the extent of the immunity of the ballot boxes or their contents from examination in judicial proceedings.