State v. Hamilton

• Decision Date: 06 April 1922
• Docket Number: No. 22297.,22297.
• Citation: 240 S.W. 445
• Parties: STATE ex tel. PONATH v. HAMILTON et al.
• Court: Missouri Supreme Court

240 S.W. 445

STATE ex tel. PONATH v. HAMILTON et al.

No. 22297.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Original proceeding in prohibition by the State of Missouri, on relation of Edward F. Ponath, against Henry A. Hamilton and others. Preliminary writ of prohibition made permanent.

Henry Kortjohn, Jr., of St. Louis, for relator.

Henry S. Phillips and Oliver Blackinton, both of St. Louis, for respondents.

WALKER, J.

This is a proceeding in prohibition, instituted in this court by relator as a resident and qualified elector of the city of St. Louis against two certain judges of the circuit court and the board of election commissioners of said city. The purpose is to prevent said judges from enforcing an order in the nature of a subpœna duces tecum made by them for the production in court of certain ballots, pollbooks, and ballot boxes to be used in evidence by the relator in a proceeding by quo warranto pending before such judges wherein the state of Missouri, at the relation of Robert D. Claxton, is the relator, and I. Joel Wilson and the others named are the respondents. The others named are the members of the board of election commissioners.

At a primary election held in the city of St. Louis August 3, 1920, I. Joel Wilson and Robert D. Claxton were opposing candidates for the office of Republican city central committeeman for the Twenty-Sixth ward of said city. They were voted for as such candidates at said election; and on August 6, 1920, upon the votes for this office having been canvassed and counted by the board of election commissioners, it was found that Joel Wilson had received the greatest number of votes cast for the office, and a certificate of election was issued to him, and the result of the board's finding entered upon its records. Thereafter Robert D. Claxton brought a suit in the circuit court of said city to contest the right of I. Joel Wilson to hold said office. This suit was dismissed by the court, and an appeal was taken to the Supreme Court. This appeal was dismissed by the appellant Claxton, November 9, 1320.

Upon the receipt of the certificate of election, Wilson qualified, took charge of the office, and has since been discharging the duties of same. November 4, 1920, Claxton, with the leave of the circuit attorney of said city, filed the information in the nature of a proceeding in quo warranto; the facts alleged therein are the Bomb as those pleaded in the petition and notice in the contest Proceeding. After the overruling of dilatory pleas filed by the respondent to the sufficiency of the petition, the relator made application for the subpoena duces tecum referred to. The order therefor forms the basis of the writ prayed for in the instant case, and is as follows:

"The court having heard relator's application for a subpoena duces tecum heretofore filed in the above-entitled cause, and having duly considered the same, and the arguments of relator and defendant thereon, doth find that the said application is sufficient, and that John B. Edwards, James Y. Player, John H. Holliday, and Alexander E. Robbins, as members of the board of election commissioners of the city of St. Louis, Mo., and as custodians for this court under the impounding order issued herein on August 8, 1921, now have in their possession the registration books, ballot boxes, keys, ballots, tally sheets, pollbooks, returns of the judges and clerks of the election, and the official return of the board of election commissioners of the city of St. Louis of the canvass of said board of the returns of the votes cast for each candidate for the office of Republican committeeman of the Twenty-Sixth ward of the city of St. Louis, all for each and every one of the seventeen precincts of said Twenty-Sixth ward at the election held on August 3, 1920, and that it is necessary for relator to have the same for use in evidence at the trial of this cause, and that the same are material to the issues in this cause, and that relator has no way of obtaining the same without an order of subpoena duces tecum, as prayed in his petition:

"Now therefore the court doth grant the said application, and doth hereby order the said members of said board of election commissioners, and each of them, setting aside all manner of excuse and delay, to be and appear before our circuit court, division No. 14, at the courthouse in the city of St. Louis, on the day set for the trial of this cause, to wit, at 10 a. In., on October 4, 1921, then and there to testify, and the truth to speak, in the above-entitled cause, on the part of the relator, and to bring with them and then and there and produce and have in court the registration books, ballot boxes, keys, ballots, tally sheets, returns of the judges and clerks of election, and the official return of the board of election commissioners of the city of St. Louis of the canvass of said board of the returns of the vote cast for each candidate for the office of Republican committeeman of the Twenty-Sixth ward of the city of St. Louis, all for each and every one of the seventeen precincts of said Twenty-Sixth ward at the election held on August 3, 1920, and then and there to open said ballot boxes, and disclose the ballots in the trial of said cause; provided that the ballots in no way be used or any information disclosed that would tend toward showing who voted any ballot, and this the said members of said board shall in no wise omit.

"It is further ordered by the court that the said members of said board of election commissioners, and each of them, are hereby commanded not to open any of said ballot boxes or disclose any of said ballots, except in open court on the trial or this cause, and in the presence of the judge presiding at said trial, and when so opened they shall not display or otherwise make known any part of any ballot except the face of such ballot, concealing the number on the back thereof, nor shall they copy or permit any one else to copy the number on the back of any such ballot, or compare, or permit any other person to compare, the number on the back of any such ballot with the corresponding number in the pollbooks, nor shall they display or make known, or allow any person to examine, the pollbooks, except the part thereof containing a statement of the judges and clerks of election certifying the result thereof, under penalty of being adjudged in contempt of court.

"And it is further ordered by the court that, upon the trial of this cause, neither the attorneys for the state, or the relator, or defendant, nor the official stenographer of this court, nor any party to this cause, nor any witness in the cause, nor any other person, shall look at, examine, or copy any number appearing on the-back of any ballot referred to above, or offered in evidence, nor shall any of the persons enumerated above compare the number on the back of such ballot with the pollbooks, nor shall any of the persons enumerated above examine or take notes from said pollbooks except only that part thereof containing the statements of the result of said election which are signed by the judges of said election, under penalty of being adjudged in contempt of court.

"It is further ordered by the court that a copy of this order be served on each of said members of said board of election commissioners, and that the person or officer serving the same have the same at the time and place aforesaid, certifying thereon his return."

I. The general purpose of a primary election is to nominate candidates for office. Provision is made in the statute regulating these primaries (section 4848, R. S. 1919), however, for the election, at the time they are held, of committeemen to represent the respective political parties. The legislative purpose in the recognition of these administrative bodies was to prescribe their powers and define their limits that the action of the parties they represent might be simplified and rendered more uniform, and, as a not remote consequence, the rights of individual citizens thereby protected if not promoted. The unregulated activities of the governing committees of political parties with their consequent ills, theretofore existing, may have been one of the moving causes for this regulatory legislation.

The law specifies the terms and prescribes the powers of the committeemen. This exercise of power characterizes all statutes defining public officers. The nature of the duties committeemen are required to perform adds force to this conclusion. They are required to receive and disburse the filing fees required to be paid by candidates (sections 4828, 4991, R. S. 1919); they prepare and submit lists from which judges and clerks of election are to be appointed (sections 4779, 4851, 5120, 5121, R. S. 1919); they fill vacancies on the tickets and to that extent exercise the powers of electors (sections 4815, 4816, 4838, 5004, R. S. 1919); they nominate candidates for vacancies on the board of aldermen of the city of St. Louis (sections 21 and 22, R. O. St. L. 1914); they appoint challengers and watchers at elections (sections 4776, 4840, 4842, 5003, 5004, 5007, 5162, R. S. 1919); they elect their own officers, constitute the congressional committee, and elect the state committee (section 4848, R. S. 1919). These powers are all matters of public concern. We held, in effect, in State ex rel. Walker v. Bus, 135 Mo. loc. cit. 332, 36 S. W. 636, 33 L. R. A. 316, that one who receives his authority from the law and, in the performance of same, discharges some of the functions of government, may be regarded as a public officer. In the more recent case of State ex rel. Guion v. Miles, 210 Mo. loc. cit. 174, 109 S. W. 308, we said plainly, citing with approval a Kentucky case (Mason v. Byrley, 84 S. W. 767), that—

"`While those who constitute the membership of the governing authority of a political organization are not officers, in the technical meaning of that term, the duties required of...