State ex rel. Barrett v. Sartorious

• Decision Date: 06 December 1943
• Docket Number: 38539
• Citation: 175 S.W.2d 787,351 Mo. 1237
• Parties: State ex rel. Jesse W. Barrett, Alphonse G. Eberle, A. Sidney Johnston and William J. Blesse, Constituting and Comprising the Board of Election Commissioners of the City of St. Louis, Relators, v. Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

175 S.W.2d 787

351 Mo. 1237

State ex rel. Jesse W. Barrett, Alphonse G. Eberle, A. Sidney Johnston and William J. Blesse, Constituting and Comprising the Board of Election Commissioners of the City of St. Louis, Relators, v. Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis

No. 38539

Supreme Court of Missouri

December 6, 1943

Record quashed.

Joseph F. Holland, City Counselor, and George L Stemmler, First Associate City Counselor, for relators.

(1) Certiorari is the remedy followed in the following late cases concerning judgments of the circuit court in matters of registration, reviewed by the Supreme Court of Missouri and the St. Louis Court of Appeals: State ex rel. Woodmansee v. Ridge, 343 Mo. 702, 123 S.W.2d 20; State ex rel Ellis v. Brown, 326 Mo. 627, 33 S.W.2d 104; State ex rel. Ellis v. Brown, 326 Mo. 637, 33 S.W.2d 109; State ex rel. Hay v. Flynn, 235 Mo.App. 1003, 147 S.W.2d 210. (2) Neither appeal nor writ of error will lie to review the judgment of the circuit court. The judgment of the circuit court is "final" in the sense that it is nonappealable and is not reviewable by writ of error. Sec 12221, R. S. 1939; State ex rel. Woodmansee v Ridge, 343 Mo. 702, 123 S.W.2d 20. (3) After a writ of certiorari has been issued and the record of the inferior court has been certified in response thereto, the discretionary stage has passed. It is then too late for the court to determine the question whether the writ should have been awarded, and it is the duty of the court to hear and determine the cause. Harris v. Barber, 129 U.S. 366, 32 L.Ed. 697; State ex rel. v. Guinotte, 156 Mo. 531; 10 Am. Jur. 531; 4 Houts Mo. Pl. & Pr. 689. A determination of the sole issue presented involves a construction of Section 2 of Article VIII of the Constitution of Missouri as to the meaning and scope of the term, "person convicted of felony." Therefore, the Supreme Court has exclusive jurisdiction. Constitution of Missouri, Art. VI, Sec. 12; Amendments to Constitution of 1884, Sec. 5; Rule No. 32, Supreme Court of Missouri. (4) A statute is to be construed as a part of a general and uniform system of jurisprudence, and its meaning and effect is to be determined in connection with the applicable portions of the Constitution. The term "person convicted of felony," as used in the statute, must be construed in connection with the meaning and effect of the term as used in the Constitution. Therefore, the construction of the Constitution is directly involved in this proceeding. 59 C. J. 1038; Hannibal Trust Co. v. Elzea, 315 Mo. 485, 502, 286 S.W. 371, 378. (5) While Section 12206, Revised Statutes of Missouri 1939, applies only to cities of 600,000 or more, and might be said to be a "local" or "special" law, its provisions, so far as pertinent to this case, are identical with the general statute, Section 11469, Revised Statutes of Missouri 1939. (6) Suffrage is a matter of privilege and not of right. The privilege of voting at "elections by the people" in Missouri is granted by the "people" of Missouri, i. e., that portion of the inhabitants of the state who are entrusted with political power. The "people," for political purposes, must be considered synonymous with "qualified voters of the state," and, so considered, are, for political purposes, synonymous with the "State." Blair v. Ridgely, 41 Mo. 63; Minor v. Happersett, 88 U.S. 162, 177, 22 Law Ed. 627. (7) It is the inherent sole and exclusive right of the "people" to determine what should constitute any inhabitant of the state a qualified voter, and there is no restraint over the "people's" power on this subject except in the few instances where discrimination is prohibited by the Federal Constitution. Blair v. Ridgely, 41 Mo. 63; United States v. Cruikshank, 92 U.S. 542, 23 Law. Ed. 588. (8) The Constitution and Laws of Missouri denying the right to suffrage to a "person convicted of felony" are designed to protect the public franchises and privileges from abuse by falling into unworthy and improper hands. They are in no sense to be considered as imposing punishment for offenses, in order to prevent their repetition. They are directed at the moral fitness of the person and solemnly declare that one who refuses to abide by the laws of the "people" is unworthy to participate in the making of the people's laws and in the other processes of democratic government. Blair v. Ridgely, 41 Mo. 63. (9) A person who has been convicted of a federal felony in a United States court and who has not been fully pardoned is not entitled to be registered or to vote at any election by the people in Missouri. State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377; Irby v. Day, 32 S.W.2d 157; State v. Irby, 81 S.W.2d 419; Cowan v. Prowse, 93 Ky. 156, 19 S.W. 407; Jones v. Board, 56 Miss. 766. (10) Section 12264, Revised Statutes of Missouri 1939, is a part of the same act as section 12206 (Laws 1937, p. 235). Section 12264 provides that a person shall be guilty of a felony who votes or offers to vote after he "shall have been convicted of . . . felony . . . under the laws of any state or of the United States. . . ." (Emphasis ours.) It must be presumed that all statutes are enacted by the Legislature with full knowledge of the existing conditions of the law and with reference to it. The scope of the word "felony" as used in section 12264 is a legislative construction of the word "felony" as used in Section 2 of Article VIII of the Constitution, and that construction must be adopted for the word "felony" as used in section 12206. 59 C. J. 1035, 1038, 1053; Hannibal Trust Co. v. Elzea, 315 Mo. 485, 286 S.W. 371. (11) And this is so, even though Section 12264 be held to be unconstitutional. 59 C. J. 1055; Board of Commissioners of Hamilton County v. State, 184 Md. 418, 111 N.E. 417.

Bryan Purteet for respondent.

(1) Qualifications of voters is controlled by the State Constitution. Electric Vacuum Cleaner Co. v. P. H. Greier Co., 118 F.2d l. c. 221; Minor v. Happersett, 88 U.S. 162; United States v. Cruikshank, 92 U.S. 542; United States v. Reese, 92 U.S. 214; Quinn v. United States, 238 U.S. 347. (2) The Constitution of Missouri does not deny the right of suffrage to persons convicted of felony in United States court. Constitution of 1875; Amendment of 1924; Anthony v. Kaiser, 169 S.W.2d 47; Presbury v. Hull, 34 Mo. 29; Fidelity & Deposit Co. of Maryland v. Boundy, 158 S.W.2d 243; Debates of Constitutional Convention of 1875; Section 941, Title 21, Oklahoma Statutes annotated; Secs. 4678, 4864, 9034, R. S. 1939. (3) The election commission is authorized to strike from the voters' list only such persons as have been "convicted of felony or crime connected with the exercise of suffrage" against the laws of Missouri in Missouri courts. Secs. 12206, 12223, 12264, R. S. 1939. (4) Section 12264, R. S. Missouri 1939, is unconstitutional because it constitutes local and special legislation, contrary to and in violation of Section 53, Article IV, of the Constitution of Missouri. Secs. 11469, 12206, 12223, 12264, R. S. 1939; Constitution of Missouri; State v. Anslinger, 171 Mo. 66; 12 C. J., sec. 168, p. 748; 6 R. C. L., sec. 117, p. 117; State ex rel. Miller v. O'Malley, 117 S.W.2d 324; State v. Siegel, 265 Mo. 239, 177 S.W. 353; Ex parte French, 315 Mo. 75, 285 S.W. 513. (5) The decisions of federal courts, the courts of many sister states, and the Missouri courts, both by preponderance in number and by weight of sound reasoning and logic, hold that a conviction in a foreign jurisdiction has no disqualifying effects beyond the territorial limits of the convicting state. Logan v. United States, 144 U.S. 263; Sec. 12206, R. S. 1939; Brown v. United States, 1917A, L. R. A. 1133; Opinion of the Attorney General, October 3, 1938; 1 Wigmore on Evidence (2d Ed.) sec. 522; Greenleaf on Evidence, sec. 376; Commonwealth v. Green, 17 Mass. 515; In re Ebbs, 150 N.C. 44, 63 S.W. 190, 19 L. R. A. (N.S.) 892, 17 Ann. Cas. 592; State ex rel. Mitchell v. McDonald, 164 Miss. 405, 145 So. 508, 86 A. L. R. 290; Presbury v. Hull, 34 Mo. 29; Fidelity & Deposit Co. of Maryland v. Boundy, 158 S.W.2d 243; Olson v. Langer, 65 N.D. 68, 256 N.W. 377; Irby v. Day, 81 S.W.2d 419; 2 University of Chicago Law Review, p. 334; State v. Landrum, 127 Mo.App. 635. (6) Election laws should be liberally construed in favor of the right of suffrage. 20 C. J. 62; Nance v. Kearsbey, 251 Mo. 374, 158 S.W. 629.

Hyde, J. Gantt, Tipton, JJ., Douglas, C. J., concur; Ellison, J., concurs in result only in separate opinion; Leedy, J., and Clark, J., concur in result only and in separate opinion of Ellison, J.

OPINION

HYDE

Certiorari to review the order of the Circuit Court of the City of St. Louis requiring relators (Board of Election Commissioners) to permit C. L. Owen to be registered as a qualified voter.

Owen appealed to the Circuit Court, from the action of the Board in striking his name from the list of registered voters, under the provisions of Sec. 12221 (R. S. 1939) Mo. R. S. Ann. The Board so acted because Owen had entered a plea of guilty to an indictment for attempting to evade payment of income taxes to the United States. (Title 26, Sec. 145b, U.S. Code.) 26 U.S.C. A., Int. Rev. Code, Sec. 145(b). This offense is admitted to be a felony under the laws of the United States. Owen contended that he is nevertheless a qualified voter, because he has never been convicted of a felony under the laws of Missouri, and the Circuit Court so held. This is the only question in the case.

Section 2 of Article 8 of our Constitution authorizes "all citizens of the United States . . . over the age of twenty-one years . . . (who have met prescribed residence requirements) . . . to vote at all elections"; but provides that "persons convicted of...