State ex rel. Miller v. O'Malley
| Decision Date | 21 May 1938 |
| Docket Number | No. 35637.,35637. |
| Citation | 117 S.W.2d 319 |
| Parties | STATE OF MISSOURI at the relation of FRANKLIN MILLER, Circuit Attorney of the City of St. Louis, Relator, v. FRANK C. O'MALLEY, Judge of the Circuit Court of the City of St. Louis. |
| Court | Missouri Supreme Court |
Franklin Miller, pro se, for relator; John L. Sullivan of counsel.
(1) Certiorari is the proper remedy. State ex rel. v. Staten, 268 Mo. 290; State ex rel. v. Westhues, 9 S.W. (2d) 614; State ex rel. v. Dawson, 284 Mo. 502; State ex rel. v. Stephens, 146 Mo. 680; State ex rel. v. Pfeffle, 220 Mo. App. 682; State ex rel. v. Quinotte, 156 Mo. 526; State ex rel. v. Wurdeman, 254 Mo. 569; State ex rel. v. Goodrich, 257 Mo. 48; State ex rel. v. Remmers, 101 S.W. (2d) 71; State ex rel. v. Skinker, 25 S.W. (2d) 474. (a) A ruling on application for subpoena duces tecum is judicial action and reviewable by certiorari. State ex rel. v. County Court, 237 Mo. 469; Saline County Subscription Case, 45 Mo. 53; State ex rel. v. Dawson, 284 Mo. 504. (b) The writ brings up only the record. Evidence not reviewable unless preserved in bill of exceptions. State ex rel. v. County Court, 136 Mo. 323. (c) There is no place for a bill of exceptions here. The facts for review are embodied in the application for the subpoena which, being verified, imports verity in an ex parte proceeding. Provisions of statutes for bills of exception have no application here. R.S. 1929, secs. 1008-1013, 3695. (d) The circuit attorney stands in position of the Attorney General in a case of this kind, arising within his local jurisdiction, and the writ "goes as matter of course and of right." State ex rel. v. Skinker, 25 S.W. (2d) 475; State ex rel. v. Dobson, 135 Mo. 19; State ex rel. v. Lamb, 237 Mo. 450; State ex rel. v. Harrison, 141 Mo. 18. (2) The respondent judge not only has the power, but is charged with the duty, to require production of these ballots before the grand jury, under the Constitution and the statutes. Mo. Const., Art. VIII, Sec. 3; R.S. 1929, secs. 1716, 3525, 10471. (3) The secrecy of the ballot is not involved. Mo. Const. Art. VIII, Sec. 3; State ex rel. Goldman v. Hiller, 278 S.W. 708; State ex rel. Dengel v. Hartman, 96 S.W. (2d) 329. (4) The bond issue election of September 10, 1935, was an "election by the people" and is protected as such by the constitutional provision against frauds. Mo. Const., Art. VIII, Sec. 3; Mo. Const., Art. X, Sec. 12; R.S. 1929, sec. 7217; Laws 1935, p. 193; Vrooman v. St. Louis, 88 S.W. (2d) 189; R.S. 1929, sec. 10651. (5) The ballots are available as evidence: (a) They are covered by the proviso of Section 10619, that they are not to be destroyed until the grand jury investigation, pending at end of twelve months after the election, is finally determined. R.S. 1929, sec. 10619. (b) Section 10619, just cited, and not Section 10315 () governs the case. Article XVII of the Election Chapter, which contains Section 10619, is not a special or local law in conflict with Article IV, Section 53, Subsection 32 of the Constitution. R.S. 1929, sec. 10566; State v. Keating, 202 Mo. 209; State v. McCann, 329 Mo. 758; Thomas v. Buchanan County, 330 Mo. 637; State ex rel. v. Knight, 323 Mo. 1249. (c) When documentary evidence, material to the issues, is in existence and available for production, the court will not look into the motives which may have prompted its possessors to preserve it. So, if it be granted that Section 10619 controls, but no investigation was pending at the end of the twelve-month period, still the ballots should be produced now, being in existence and available. State v. Sharpless, 212 Mo. 200; Plater v. Construction Co., 223 Mo. App. 668; 3 Wigmore on Evidence, p. 2955, sec. 2183; State v. Pomeroy, 130 Mo. 497; State v. Pope, 210 Mo. App. 564; 22 C.J., p. 192.
Walter N. Davis for respondent.
(1) Respondent had no power or authority to order the production of incompetent evidence. The documents called for must be competent. It must appear from the application for a subpoena duces tecum and from the body of the law that the documents called for were not protected by law from examination and seizure. Dancel v. Goodyear S.M. Co., 128 Fed. 753; 70 C.J. 52-53; United States v. Term. Railroad Assn., 154 Fed. 268; Ex parte Brown, 72 Mo. 83; Stevens v. Locke, 156 Miss. 182, 125 So. 529; State ex rel. v. Wurdeman, 176 Mo. App. 540, 158 S.W. 436; State ex inf. v. Continental Tob. Co., 177 Mo. 1, 75 S.W. 737. (a) The allegations in paragraph 4 of the subpoena duces tecum and in paragraph 7 thereof, that the June Term, 1936, grand jury, on or before September 10, 1936, undertook an investigation relative to criminal frauds in the September 10, 1935, special bond issue election, and that thereafter said investigation of said alleged criminal frauds in the said election of September 10, 1935, has been continuously kept alive by the circuit attorney, and has been and now is a pending investigation before the present grand jury, are mere conclusions of law. State ex rel. Page v. Terte, 324 Mo. 925, 25 S.W. (2d) 459. (b) Even if Section 10619, Revised Statutes 1929, is constitutional, which respondent denies, yet the report of the June Term, 1936, grand jury, as shown by paragraph 4 of said application, denies that said June Term, 1936, grand jury undertook an investigation of the special bond election of September 10, 1935, on or before September 10, 1936. (2) Section 10619, Revised Statutes 1929, is a special election law applicable to the registration and election in cities having 100,000 inhabitants or over, and is unconstitutional and void. Section 10315, Revised Statutes 1929, is a general election law and its provisions apply to all election precincts in this State. Where a general law can be made applicable no local special law can be enacted; and that is a judicial question. Mo. Const., Art. IV, Sec. 53; State v. Siegel, 265 Mo. 239, 177 S.W. 353; Ex parte French, 315 Mo. 75, 285 S.W. 513; Wooley v. Mears, 226 Mo. 41, 125 S.W. 1112; State v. Anslinger, 17 Mo. 600, 71 S.W. 1041; State v. Gregori, 2 S.W. (2d) 747, 318 Mo. 998; Newberry v. United States, 256 U.S. 232, 41 Sup. Ct. 469, 65 L. Ed. 913. (a) If Section 10619, Revised Statutes 1929, is constitutional, which we submit it is not, it operates as a special Statute of Limitation, and the application failing adequately to show that an investigation by the June Term, 1936, grand jury was undertaken on or before September 10, 1936, said application for a subpoena duces tecum was untimely. See authorities cited under (2) (a); State v. Wear, 145 Mo. 185, 46 S.W. 1099; State ex rel. Stevens v. Wurdeman, 246 S.W. 192, 295 Mo. 566. (b) However, we submit that Section 10315, Revised Statutes 1929, governs in this matter, and not Section 10619, which we submit is a local or special law and unconstitutional Section 10315 is a special Statute of Limitation, and the period, in which the grand jury could take lawful action to open the ballot boxes in the September 10, 1935, election, expired long before the April Term, 1937, grand jury became a legal body. See authorities cited under (2) (a); State v. Wear, 145 Mo. 185, 46 S.W. 1099; State ex rel. Stevens v. Wurdeman, 246 S.W. 189, l.c. 192, 295 Mo. 566.
Original proceeding in certiorari brought by the Honorable Franklin Miller, Circuit Attorney of the City of St. Louis, to review the record in a certain ex parte proceeding entitled In The Matter of The Grand Jury, pending in the circuit court of said city, Division No. 11, over which the respondent, Honorable Frank C. O'Malley, Circuit Judge, then was presiding. The proceeding was this. The relator, Judge Miller, filed a verified application in said court on April 16, 1937, for the issuance of a subpoena duces tecum directed to the Secretary of the Board of Election Commissioners of St. Louis, commanding him to produce before the grand jury six days later on April 20, all ballots cast, rejected and spoiled in the 1st Precinct of the Fifth Ward at a special bond election, commonly known as the "Jefferson Memorial Plaza Bond Issue Election" held in the city some nineteen months earlier on September 10, 1935. The respondent had therefore ordered the issuance of a subpoena duces tecum bringing in the talley sheets, return of the votes cast and certified statements of the result of the election; so that an examination of the ballots in connection with these would disclose how every voter had voted.
The application alleged that the grand jury had under investigation certain charges of criminal frauds alleged to have been committed in said voting precinct (and others) at said election; and that said ballots were necessary and material evidence in the investigation. It further alleged that said investigation was begun by a former grand jury on September 8, 1936, within twelve months after the election and thereafter "has been continuously kept alive by the Circuit Attorney, and has been and now is a pending investigation before the present grand jury." The respondent judge denied the application, for reasons stated in two memorandums filed, and this certiorari proceeding followed.
A number of legal questions are presented by the record: (1) is a certiorari the proper remedy under the facts? (2) was the special bond election such an election as comes within the proviso of Article VIII, Section 3 of the State Constitution preserving the secrecy of the ballot, but authorizing the opening, examination, counting and comparison of ballots in certain instances? (3) is the constitutional provision self-enforcing? (4) were the proceedings below governed by Section 10315, Revised Statutes 1929 (Mo. Stat. Ann., p. 3753), or Section 10619, Revised Statutes 1929 (Mo. Stat. Ann., p. 3903)? (5) are these two sections constitutional? (6) should the circuit court have ordered the issuance of the subpoena duces tecum for the ballots even...
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