State ex rel. Arena v. Barrett
| Decision Date | 01 March 1943 |
| Docket Number | 38256 |
| Citation | 168 S.W.2d 1042,350 Mo. 757 |
| Parties | State of Missouri ex rel. Joseph Arena and Vincent P. Dimurcurio, Relators, v. Jesse W. Barrett, William E. Buder, Alphonse G. Eberle and A. Sidney Johnston, as the Board of Election Commissioners of the City of St. Louis, Missouri |
| Court | Missouri Supreme Court |
Preliminary rule made permanent (with qualifications).
Alroy S. Phillips for relators.
(1) This court has jurisdiction to prohibit respondents from exceeding their authority. Mo. Const., Art. VI, Sec. 3; Thomas v. Mead, 36 Mo. 232; State ex rel. Bates v. Remmers, 325 Mo. 1175, 33 S.W.2d 609. (2) As citizens, electors and judges of election, relators are proper parties to sue out the writ of prohibition. State ex rel. Drainage Dist. v. Duncan, 334 Mo. 733, 68 S.W.2d 679; State ex rel. Darst v. Wurdeman, 304 Mo. 583; State ex rel. Ponath v. Hamilton, 240 S.W. 445; State ex rel. Feinstein v. Hartman, 231 S.W. 982; State ex rel. Dengel v. Hartman, 339 Mo. 200, 96 S.W.2d 329; State ex rel. Wear v. Francis, 95 Mo 44; State ex rel. Halliburton v. Roach, 230 Mo. 408. (3) Respondents had no statutory power to open the boxes and recount the ballots, except in case of fraud, misconduct or irregularities in the count or returns. Secs. 11608, 12243 12248, R. S. 1939. (4) Section 12248, R. S. 1939, is unconstitutional and void because it authorizes respondents to open the boxes and recount the ballots in a case not authorized by the Constitution. Laws 1937, pp. 235, 267-68 sec. 54; Laws 1921, pp. 330, 365-66, R. S. 1929, sec. 10264; R. S. 1939, sec. 12058; Mo. Const., Art. VIII, Secs. 3, 8; Mo. Const., Art. II, Sec. 9; State ex rel. Goldman v. Hiller, 278 S.W. 708; Laws 1921, pp. 329-30; State ex rel. Hollman v. McElhinney, 315 Mo. 731, 286 S.W. 951; Laws 1929, pp. 194-96; R. S. 1929, secs. 10293-97; State ex rel. Dorsey v. Sprague, 326 Mo. 654, 33 S.W.2d 102; State ex rel. Dengel v. Hartman, 339 Mo. 200, 96 S.W.2d 329; State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 S.W.2d 319; Mo. Const., Art. II, Secs. 9, 28; State ex rel. Frank v. Becker, 320 Mo. 1087, 9 S.W.2d 153; Mo. Const., Art. II, Sec. 30; Mo. Const., Art. IV, Sec. 46. (5) The General Assembly had no power to re-enact a statute previously held unconstitutional in toto by this court. Laws 1921, pp. 330, 365-66, Art. XVI, Sec. 61; Sec. 12248, R. S. 1939; State ex rel. Goldman v. Hiller, 278 S.W. 708; Mo. Const., Art. III; Mo. Const., Art. VI, Sec. 1; State ex rel. Mo. & North Arkansas R. Co. v. Johnston, 234 Mo. 338; 12 C. J. 775, 800-801; 16 C. J. S. 288; Lynch v. Murphy, 119 Mo. 163. (6) The absolute writ of prohibition should issue because respondents still have duties to perform and the questions involved are of great public importance. 50 C. J. 711; R. S. 1939, secs. 12248-49; State ex rel. Broadhead v. Berg, 76 Mo. 136; State ex rel. Reyburn v. Ringo, 42 Mo.App. 115; State ex rel. Steadley v. Stuckey, 78 Mo.App. 533; State ex rel. Averill v. Baird, 217 Mo.App. 362; State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 276; State ex rel. Rogers v. Rombauer, 105 Mo. 103; St. Louis, etc., Railroad Co. v. Wear, 135 Mo. 230; State ex rel. Jones v. Wurdeman, 309 Mo. 408; State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105.
Roy McKittrick, Attorney General, and Harry H. Kay, Assistant Attorney General, for respondents.
(1) Writ of prohibition is a discretionary writ and should not be issued unless it appears that the law sanctions it and sound judicial discretion commends it. State ex rel. v. Sevier, 345 Mo. 274, 132 S.W.2d 961; State ex rel. v. Henson, 217 S.W. 17. (2) Writ of prohibition is preventive and not corrective and should not be issued where no useful purpose will be served by it. State ex rel. v. Burney, 324 Mo. 363, 23 S.W.2d 117; Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644; Sec. 3, Art. VIII, Constitution of Missouri; State ex rel. v. Searcy, 347 Mo. 1052, 152 S.W.2d 8. (3) Relators cannot be heard to question the constitutionality of Section 12248, R. S. 1939, because their constitutional rights are not directly affected by said section. State v. Armour Pharmacy, 152 S.W. 67; 16 C. J. S., Const. Law, sec. 76; In re Tartar, 278 Mo. 356. (4) If previous rulings of this court on similar statutes are followed, then the provisions of Section 12248, R. S. Mo. 1939, as to opening the ballot boxes and recounting the ballots are unconstitutional. Laws 1921, pp. 329, 369; State ex rel. v. Hiller, 278 S.W. 708; State ex rel. v. McElhinney, 315 Mo. 731, 286 S.W. 951; State ex rel. v. Hartman, 339 Mo. 200, 96 S.W.2d 329; State ex rel. v. O'Malley, 342 Mo. 641, 117 S.W.2d 319.
Clark, J. All concur except Gantt, J., absent.
CLARK
On August 14, 1942, relators filed their petition in this court asking that a writ of prohibition be issued against respondents. Relators are residents, citizens, duly qualified electors and were judges of election of the fifth voting precinct of the fifth ward of the City of St. Louis at the election on August 4, 1942, and respondents were and are the members of the Board of Election Commissioners of that city. Relators and other judges and clerks conducted the election in said precinct, which election was for a bond issue and the State primary for nomination of candidates for federal, state and municipal offices, and canvassed the vote and made return thereof to respondents, with the ballots in a box, sealed as provided by statutes. It was the statutory duty of respondents, within eight days after the election, to canvass and tabulate the returns from all the voting precincts in the city, and up and declare the result and certify the same to the circuit court which issues certificates of election.
On August 10, 1942, before respondents had completed their canvass, numerous voters of the city, some of whom were candidates at the election, filed affidavits with respondents charging that fraud, misconduct and irregularities had been committed in the count of ballots in said precinct and in the returns thereof, and by unanimous vote respondents ordered a recount in said precinct. On August 12, 1942, at a public session, respondents opened the ballot box, recounted the ballots, publicly announced the result, replaced the ballots in the box and sealed the same. The recount showed that ballots had been miscounted and incorrectly returned in the precinct, but did not affect the result of the election. Respondents announced that they intended to present the evidence, which they had discovered by the recount, to the proper authorities in charge of the prosecution of violators of the relevant federal and state criminal laws.
Relators' petition alleges the facts above set forth and further alleges that respondents are proceeding under Section 12248, Revised Statutes Missouri, 1939; [Mo. R. S. A., sec. 12248, p. 489] and that said statute is void because in conflict with various provisions of the federal and state constitutions, particularly Section 3 of Article VIII of the Missouri Constitution.
Our preliminary rule in prohibition was issued and respondents made return admitting the allegations of relators' petition, except that the allegations in reference to said Section 12248 are neither expressly admitted nor denied. Then the return states that respondents had completed their canvass on August 12th, two days before relators filed their petition, and if any constitutional rights of relators were violated or injury done to them the same was done before the filing of the petition; and, therefore, the issues are moot and no purpose would be served by granting a peremptory writ of prohibition.
Relators then filed a motion for judgment on the pleadings.
Section 12248, supra, contains a proviso purporting to authorize the Board of Election Commissioners, upon affidavits of voters or candidates submitted to the Board before it completes its canvass, to open the boxes and recount the ballots and to submit any evidence of fraud or crime thus discovered to the prosecuting officers.
Section 3 of Article VIII of our State Constitution provides for secrecy of the ballot and contains the following proviso:
"Provided, that in cases of contested elections, grand jury investigations and in the trial of all civil or criminal cases in which the violation of any law relating to elections, . . . is under investigation or at issue, such officers may be required to testify and the ballots cast may be opened, examined, counted, compared with the list of voters and received as evidence".
This court has construed the above language to mean that ballot boxes cannot be lawfully reopened and a recount made under any other circumstances than the three mentioned in said Section 3, and has held unconstitutional and void statutes identical with, or similar to, the proviso in said Section 12248. [See: State ex rel. v. Hiller (Mo.), 278 S.W. 708; State ex rel. v. McElhinney, 315 Mo. 731, 286 S.W. 951; State ex rel. v. Hartmann, 339 Mo. 200, 96 S.W.2d 329; State ex rel. v. O'Malley, 342 Mo. 641, 117 S.W.2d 319.]
Respondents offer no reason why those cases should not be followed, and concede that if we do follow them we must hold the proviso to said Section 12248 unconstitutional and void in this case. But respondents say: first, that the petition is insufficient to show a violation of the constitutional rights of relators; and, second, if such rights were violated the same was done before the filing of the petition and the issue is therefore moot.
On the first proposition, as to whether the allegations of the petition are sufficient to show a violation of the constitutional rights of relators so as to afford them the right to maintain this action, respondents argue substantially as follows: the purpose of the constitutional provision is to preserve...
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