GRAVES
J. --
These
cases are now before us upon the following request filed
herein by the commissioner appointed by this court:
"Your
commissioner, Robulus E. Culver, heretofore appointed by your
Honorable Court, would respectfully show to the court that he
proceeded with the taking of testimony in the
above entitled causes as directed by the court's order
herein; that during the progress of the taking of said
testimony the contestants asked for a subpoena duces
tecum directed to the Board of Election Commissioners of
the city of St. Louis, Missouri, commanding said board to
produce the poll books of the election held in the city of
St. Louis on November 8, 1910, for the offices in contest,
and other State offices, and offered said poll books in
evidence for the purpose of showing the numbers set opposite
the names of the persons whose right to vote at said election
was challenged by said contestants for the reasons assigned
and set out in the report of the proceedings had before your
commissioner; that thereupon your commissioner ruled that
under the evidence so far introduced said poll books were
inadmissible, because immaterial and irrelevant to any issue
made by the pleadings or the evidence already taken, except
as to certain of the voting numbers appearing on said poll
books; that all of the facts in relation to said request and
ruling appear in the testimony taken and proceedings already
had, which are fully set out and have been by your
commissioner filed with the clerk of this Honorable Court;
that thereupon both the contestants and contestees objected
and excepted to the ruling of your commissioner on said
matters, and joined in a request that said ruling be
certified to your Honorable Court.
"Wherefore
your commissioner prays for instruction and direction as to
the correctness of his rulings in the respect
aforesaid."
There
are two questions sought to be propounded to this court in
this request. The contestants' counsel thus state them in
their brief:
"The
commissioner has asked directions from the court upon two
propositions that have arisen during the progress of the
hearing before him:
"The first arises upon the application of the
contestants for a subpoena duces tecum for the poll
books, in order that they may procure the voting number of
persons registered as aliens who do not affirmatively appear
by the registration books to be qualified voters.
"The
second question submitted by the commissioner is the right to
the poll books to show the voting numbers of electors who
have testified that they voted a straight Democratic ticket
and did not scratch Judge Gantt, and who have consented in
the record to have their ballots examined."
Counsel
for contestees, thus state the questions which they desire
answered by this court:
"(a)
Whether or not the failure of clerks of election to properly
enter on the registration books all the facts called for by
the blanks of the registration books is in itself evidence
sufficient to discredit the vote of the person whose
registration is not thus complete on the book, or, in other
words, does the mere failure by election clerks to enter upon
the registration books either the information required by the
statute or called for by the blanks on the registration books
prima facie disqualify from voting the man concerning whom
such failure is made, so that his vote is presumptively a
vote not to be counted?
"(b)
Is the statement made today by a man who says that he voted
in November, 1910, and voted a certain ticket in a certain
way, sufficient evidence to warrant the production of that
ballot (the voter not objecting) and the ascertainment of
what that ballot shows on its face to the end that if the
ballot appears differently from the testimony of the man, his
testimony (nothing else appearing) may contradict the ballot
and the ballot may be counted not as written, but as the
witness testifies he cast it last November, or, in other
words, is the statement of a voter, made several months after
the election, sufficient to change his vote as
it appears on its face, there being no other evidence to show
that the vote had been changed or altered except the
testimony of the witness as to the kind of vote that he cast
last November?"
These
questions arise from this state of facts. Contestants
proceeded to take evidence tending to show that the
registration books of the city of St. Louis showed a number
of persons of foreign birth had been left thereon as legal
voters, but said books
failed to show the fact that such person had been naturalized
or the court wherein naturalized. Upon this showing
contestants asked for a subpoena duces tecum for the
poll books, so as to get the name of the voter and compare it
with the ballot, to the end of showing an illegal ballot.
This request the commissioner refused, and contestants ask a
ruling upon that question. Later contestants put on certain
individuals who testified that they had not scratched the
name of James B. Gantt from the Democratic ticket, and the
contestants evidently being of the opinion that the ballots
showed such name scratched, asked for the poll books as to
such names, to the end that the voting number might be shown
and the name of the voter might be shown, and this when
compared with the ballot would tend to show that the ballots
had been changed after leaving the voter's hands. This
request was granted by our commissioner and a subpoena
duces tecum ordered, and upon this question the
contestees desire a ruling.
This
presents the matter sufficiently for what we shall have to
say.
I. But
for one reason we would recertify these questions to the
commissioner for him to answer upon his own responsibility
without an opinion from us. That reason we will disclose in
the succeeding paragraphs. Cases should not be heard and
determined by fractions or in piecemeal. The exact question
was up in State ex inf. v. Standard Oil Co.,
194 Mo. 124, 165, 91 S.W. 1062, and we then said:
"Certainly
it is not the practice in this State for a referee to be
required to report intermediate matters to the court
appointing him for instruction from the court, nor is it the
usual practice for a master in chancery, from time to time,
to refer matters to the court appointing him so that he may
be controlled in his rulings on evidence or other matters
within the warrant of his authority. All these things are
settled, by and large, upon his final report. If it then
appears that he has erred in the admission of evidence, that
evidence is excluded. If he has excluded proper evidence, the
case may be sent back to him to hear and consider such
evidence. If a witness decline to answer on the ground that
his answer would incriminate him and is committed by the
commissioner on the theory that the question is not
privileged because the statute had granted immunity, or for
other reasons, we see no reason why a witness should not take
the same chance a defendant does when he stands on a demurrer
to a petition and finds when too late, maybe, on appeal, that
the petition was good and the judgment final and impregnable.
At least, we are not willing to sanction any innovation by
inaugurating the practice of applying here for instructions
to a commissioner. He should be left free and uninfluenced by
us to exercise in the first instance his judicial judgment.
Nor does the importance of the case, or the fact that
distinguished counsel are employed, or the gravity of the
questions raised, demand that we should respond to anomalous
requests. If we make such rule in this case, then, by the
same token, it must be the rule of practice in every
submission to a special commissioner on an original
proceeding instituted here, and we will be compelled to
consider certifications on interlocutory matters, however
humble the case, however obscure the counsel
employed, or however simple the matter involved.
"The
matters certified to us are, therefore, recertified to our
special commissioner that he may proceed therewith and with
all matters pertinent to this hearing under the broad and
flexible power given him by his order of appointment."
That
case was before the Court in Banc as then constituted, and
the above doctrine enunciated by Lamm, J., was concurred in
by Brace, C. J., Gantt, Valliant and Marshall, JJ. The other
members of the court, Burgess and Fox, JJ., concurred in the
result, and as there were other questions in the case it is
left in doubt as to whether or not they endorsed all that was
then said upon the question of practice. But be that as it
may, that case settled the practice in this court, and we
think wisely settled it. Nor do we in this case intend to
depart from that rule. We shall not now undertake to
specifically answer the questions propounded, but leave those
matters to our commissioner after we have cleared the
atmosphere in regard to the order entered when the
commissioner was appointed.
II. We
take it that our order has been misconceived by both the
commissioner and the counsel in the case. A reading of the
order to recount the ballots as made by this court will show
that it is broader than some of the previous opinions of the
court. The commissioner and coun...
