In re Petition of Louis Oppenstein
| Decision Date | 22 July 1921 |
| Citation | 233 S.W. 440,289 Mo. 421 |
| Parties | In Re Petition of LOUIS OPPENSTEIN, EUGENE BLAKE, BIRD H. McGARVEY and W. H. MOORE |
| Court | Missouri Supreme Court |
Petitioners discharged.
Frank W. McAllister, Chas. M. Blackmar, Armwell L. Cooper and Edward J. Curtin for petitioners.
(1) Habeas corpus is the appropriate remedy to secure discharge from custody under a judgment or order exceeding the jurisdiction of the court or which is made in violation of positive law. Sec. 1909, R. S. 1919; Ex Parte Arnold, 128 Mo. 256; In re Heffron, 179 Mo.App 639. (2) Section 3 of Article VIII of the Constitution of Missouri is so clear and explicit that it would seem no controversy could arise as to its meaning and effect. It provides: (a) That all elections shall be by ballot; (b) That every ballot shall be numbered in the order in which it is received, and the number recorded on the list of voters opposite the name of the voter who presents it; (c) that the election officers shall not be permitted to disclose how any voter shall have voted, unless required to do so as witnesses in a judicial proceeding; (d) That in cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law. As a matter of fact so far as the proceedings here involved are concerned, there can be no real controversy. (3) There is no sort of basis for the contention that the ballot boxes may be opened, the ballots counted or examined and compared with the list of voters, except in one particular class of cases, i. e., "cases of contested elections." (4) It is true that under the third provision the election officers may be required, in a judicial proceeding, to disclose "how any voter shall have voted," but certainly there is no suggestion in this language that the ballot boxes may be opened and the ballots counted, examined or compared with the list of voters; and without the concluding proviso of the section, the conclusion would be inevitable that the ballot boxes could not be opened in any proceeding, not even in election contests. The proviso contains the only authority for opening the ballot boxes or counting or examining the ballots or comparing them with the list of voters, and the language is susceptible of no other construction than that this can only be done in cases of contested elections. (5) The Legislature was commanded to so safeguard and regulate the examination of the ballots, even in election contest cases, that their secrecy would not be thereby violated, and following this constitutional mandate, the General Assembly passed an Act in 1883 (Laws. 1883, p. 91), now Secs. 4911 to 4916, R. S. 1919, an examination of which will clearly disclose that the Legislature understood the Constitution to mean that even in election contest cases the contents of the ballot boxes could not be made public, but the count, examination and comparison with the list of voters provided for by the Constitution was required to be made under such circumstances that the secrecy of the ballot would not be disturbed, and, therefore, it is provided that only the parties directly interested in the contest may be present when the ballot boxes are opened and the contents examined, and they are sworn "not to disclose any fact discovered from such ballots, except such as may be contained in the clerk's certificate." The enactment of some such statute providing the "safeguards" required in Section 3 was a condition precedent to the exercise of the right to count and examine the ballots and compare with the list of voters, and until such "safeguards" had been prescribed, the right could not have been exercised. State ex rel. v. Francis, 88 Mo. 557; Ex parte Arnold, 128 Mo. 256. (5) The foregoing conclusion is fully supported and its correctness demonstrated beyond any doubt by the history of Section 3 of Article VIII of the Constitution in the Constitutional Convention, now made accessible by Volume I of "Journal Missouri Constitutional Convention, 1875." It appears that the chairman of the committee on elections and electors submitted a proposed article on elections, of which Section 3 was as follows: An amendment to Section 3 as reported was adopted as follows: "Amend Section three by adding the following: 'Provided, that in all cases of contested elections, the ballots cast may be counted, compared with the list of voters and received and such safeguards and regulations as may be provided by law.'" It will be noted that Section 3, with the above amendment, is the identical Section 3 of Article VIII of the Constitution. After the adoption of the above amendment, the following substitute for Section 3 as amended was offered: "Strike out Section three as amended and insert in lieu thereof the following: 'All elections by the people shall be by ballot, but all ballots shall be subject to inspection and examination, in all cases of contested elections and judicial proceedings, under such proceedings, regulations and safeguards as may be provided by law.'" The substitute was rejected by a vote of forty-two to twenty-three. A comparison of the substitute with Section 3, which was adopted, leaves no room for doubt as to the intention of the framers of the Constitution. It demonstrates that there was no thought of permitting the contents of the ballot boxes to be brought into open court as evidence in any sort of proceeding, and that they could only be opened and the ballots counted and examined and compared with the list of voters in election contest cases. (6) The contention that Sec. 5403, R. S. 1919, is valid as a legislative construction of Section 3, Article VIII, of the Constitution, is not tenable. It simply ignores the constitutional provision. It is clearly unconstitutional in its attempt to require the legal custodians of the ballot boxes to produce their contents before grand juries and in court proceedings other than election contests.
Cameron L. Orr, Prosecuting-Attorney, for Marshal of Jackson County.
In Banc.
Habeas Corpus.
Petitioners constitute the Board of Election Commissioners of Kansas City. They have sued out a writ of habeas corpus to obtain their release from custody upon a commitment for contempt because of their refusal to obey a subpoena duces tecum which commanded them to produce in the Criminal Court of Jackson County the original ballots, poll books, register and certificate of the result of the election in the Fifth Precinct of the Second Ward of Kansas City used, made and certified in that precinct at the municipal election in April, 1920.
The question presented by counsel is whether the Constitution of the State permits the ballots in question to be used in evidence in the manner in which it is attempted to use them in this case. An agreed statement of facts upon one phase of the case is referred to, as for as necessary, in the opinion.
I. In the cases of this kind it is usual for the argument to be made that unless this court holds that ballots, etc., may be freely used in evidence, frauds may go unproved and election crooks go unpunished. This case is no exception to the rule. In his brief counsel says:
The question the parties present in this case is whether the Constitution of the State permits the use in evidence of the ballots, and the like, used in an election to which the Constitution applies. Counsel does not deny, nor could it be denied, that the people have power, by constitutional provision, to prohibit their use in the manner in which counsel seeks to use them. Of course, if the people have not prohibited such use, the quoted argument has little application to the question in this case. It is, therefore, clear that what the argument in fact invites this court to do is that, if it shall find the Constitution does prohibit such use, it shall "fearlessly announce" that it will not "support the Constitution of the State" (Sec. 6, Art. XIV, Mo. Constitution) in so far as concerns Section 3 of Article VIII of that instrument. That counsel really intends that the court shall yield to this argument is beyond belief. It was doubtless but a slip of the pen which was, perhaps, induced by previous slips of other pens in like cases.
The question in this case is not what the people ought to have put into the Constitution. The question is, what does the provision mean which they did put into the Constitution?
II. When the Constitutional Convention came to the business of drafting the article on Suffrage and Elections, and the people came to the business of adopting the article the Convention had drafted, then the question of policy was for consideration, and then the arguments, pro and con, were made and heard. The Convention proposed the adoption of the policy...
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