State ex rel. Thomas v. Hoblitzelle

• Decision Date: 30 April 1885
• Citation: 85 Mo. 620
• Parties: THE STATE ex rel. THOMAS v. HOBLITZELLE, Recorder of Voters of St. Louis, Appellant.
• Court: Missouri Supreme Court

85 Mo. 620

THE STATE ex rel. THOMAS

v.HOBLITZELLE, Recorder of Voters of St. Louis, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from the Circuit Court of St. Louis City.--HON. A. M. THAYER, Judge.

AFFIRMED.

Leverett Bell for appellant.

(1) The jurisdiction of the courts to control by mandamus the action of a public officer is limited to cases where the officer refuses to perform a specific act, the performance of which is enjoined on him by the law governing his office. If the matter is one resting in the discretion of the officer, or if there is no provision of law directing the execution of the particular act, the writ must be refused. State, etc., v. County Court, 41 Mo. 221; State, etc., v. Garesche, 65 Mo. 480. (2) Under the terms of the act of March 31, 1883, the poll books and registration lists specified in the alternative writ are not public records and are not open to inspection, except at the official canvass following the election, or as evidence in a case of contested election. (3) The present proceeding is based on the statement that the relator intends to contest under the statute the election held in the city of St. Louis on April 7, 1885, of Martin Neiser to the office of city marshal of the city of St. Louis. The statute law of this state contains no provision vesting jurisdiction in any court in Missouri to hear and determine the case referred to, and the relator is, therefore, on his own theory, not entitled to an inspection of the poll books and registration lists containing the returns of said election.

A. R. Taylor, Dyer, Lee & Ellis, and G. D. Reynolds for respondent.

NORTON, J.

This case is before us on the appeal of defendant from the judgment of the circuit court of the city of St. Louis, awarding a peremptory writ of mandamus directing defendant to allow relator to inspect the registration lists, poll books, and lists used at an election held in said city on the seventh day of April, 1885, and on file in the office of the defendant as recorder of voters. At said election, relator was a candidate for the office of city marshal, and one Martin Neiser was also a candidate for the same office and received a certificate of election.

Relator in substance avers that he received a majority of the votes cast at said election, and was in fact duly elected, and intends to contest the election with a view to establish his right to the said office, and that for the purpose of enabling him to prepare his notice of contest, and state the grounds upon which it is based, he demanded of defendant that he and his attorneys be permitted to inspect the registration list and poll books used at said election, which defendant refused. Upon such refusal this proceeding by mandamus to compel defendant to allow such inspection was instituted, awarding a peremptory writ. While it was conceded by counsel in the argument before the court, that as a rule records required to be kept in the office of a public officer are public records and open to inspection under the supervision of the officer; and while it was admitted that the recorder of voters in the city of St. Louis was a public officer, and the registration lists and poll books, when filed in his office to be “securely kept” by him, were not private, but public records, it was insisted by counsel in an elaborate argument that the law of 1883 discloses a legislative intent that such registration lists and poll books should not be open to inspection, and that as to them the rule above stated was inoperative for that reason. In support of this position, it is argued that inasmuch as it is provided in said act of 1883 that when a person who had been appointed judge of an election fails or refuses to serve, the voters at the poll may elect one to serve in his place, subscribing “their names in witness of such election to a paper which shall be returned by the judges of the precinct to the recorder of voters, to be filed by him among the papers of his office, and be subject to inspection by any qualified voter;” that it follows under the operation of the rule, expressio unius, exclusio alterius, that the legislature intended that the registration lists and poll books should not be subject to inspection. In other words, the argument is, that as the legislature in section eighteen of the statute provided as to that class of papers subscribed by the voters at the poll, who elect a judge to serve in place of one who fails or refuses to serve, that they should be open to inspection, and in the same section as to another class of papers, viz.: registration lists and poll books, only provided that they should be “securely kept” by the recorder, that it, therefore, follows that inspection of the latter class of papers was intended to be denied.

We think the statute is susceptible of a more reasonable solution than the one contended for. It is this; inasmuch as the paper to be signed by the voters at the poll who elect a judge to fill the place of one appointed who fails or refuses to serve, does not emanate from any officer known to the election law, but from private persons, and inasmuch as doubts might arise in consequence of this fact as to whether such a paper when returned to the recorder would be such a record as under the general rule would be subjected to inspection, the general assembly, to make that plain, which would otherwise have been involved in doubt, expressly provided that such papers should be open to inpection. Besides this, it is provided by section twenty of said act, that the ballots after being counted shall be placed in the ballot boxes, which are to be sealed and delivered by two judges of each election precinct to the recorder of voters, who is required to keep them safely for twelve months, and not allow the same to be inspected or handled, unless in a case of contested election, or unless the same shall become necessary to be used in evidence, and then only on the order of a proper court. Now here is one class of papers required to be kept safely by the recorder, which it is declared shall not be inspected, except under the circumstances therein mentioned, and it would follow from this, under the rule invoked by counsel, that all other classes of papers in the recorder's office, the inspection of which is not forbidden, would be open to inspection.

By the act of 1883, there is only one thing on which the seal of secrecy is stamped, and that is the ballot cast by the voter, and to this the judges and clerks of the election are forbidden, under penalty, from disclosing how any voter voted, and the ballots when counted are securely sealed in the ballot boxes, returned to the recorder, and are not to be inspected by him or anybody else, until the seal is broken in case of...