JAMES T. BLAIR, J.
Relator seeks to prohibit respondent, a judge of the circuit court of the city of St. Louis, from enforcing a subpoena duces tecum he had previously issued which is directed to the members of the board of election commissioners of the city of St. Louis, and which, formal parts omitted, reads thus:
"You are hereby commanded that, setting aside all manner of excuse and delay, you be and appear before our grand inquest room, 215 Municipal Courts Building, in the city of St. Louis, on the fifteenth day of November, 1920, at 2 o'clock p. m., then and there to testify, and the truth to speak, in a certain cause pending before the grand jury, wherein the state of Missouri is plaintiff, and you are further commanded to bring with you, and then and there produce in evidence the ballot boxes and contents thereof, tally sheets, poll books and the official returns and statements made by the judges and clerks of election to the board of election commissioners used and made in connection with the primary election held in the city of St. Louis, Mo., on the 3rd day of August, 1920, in the following precincts of the following wards: Second of the first; fourth of the fifth; sixteenth of the twelfth; eighteenth of the fifteenth; fifth of the seventeenth; twelfth of the seventeenth; tenth of the twenty-fifth; twenty-fourth of the twenty-seventh. And this you shall in no wise omit. And the person or officer serving this writ is commanded to have the same at the time and place aforesaid, certifying thereon his return."
In view of some suggestions which concern the scope of admissions made, it is deemed advisable to set out the pleadings in the case. These are brief, and make the issues so clear
that they constitute a sufficient statement of the case. The application for the writ, caption and signatures omitted, is as follows:
"The state of Missouri comes now and brings this action at the relation and to the use of H. S. Feinstein, as relator, and thereupon shows to the honorable the Supreme Court of Missouri, that the respondent, the Honorable Moses Hartmann, is, and at all the times hereinafter mentioned was, one of the judges of the Eighth judicial circuit of Missouri, presiding in division No. 12 of the circuit court of the city of St. Louis, Mo.; that prior to the occurrence of the matters and things hereinafter complained of there was pending in the said division of the said circuit court an investigation before the grand jury for the purpose of having indictments preferred against certain judges and clerks of election who served as such at the primary election held in the city of St. Louis on August 3, 1920; that while said matters were being investigated then and there the circuit attorney of the city of St. Louis, and as such appearing for the state of Missouri, filed in the said division of said court a petition in writing, addressed to the respondent herein as circuit judge presiding in said division, praying the issuance of a writ of subpoena duces tecum directed to the chairman, secretary, and members of the board of election commissioners, commanding them to appear in said division of said court before the grand jury, and bring with them for inspection and use as evidence therein certain ballot boxes, ballots, poll books, returns and certificates used in the said primary election held in the said city of St. Louis in the month of August, 1920; that thereafter, to wit, on the 13th day of November, 1920, the respondent, having duly considered the same, gave judgment sustaining the said application, and thereupon caused to be entered upon the record of said division of said circuit court an order directing that such subpoena duces tecum should be issued, and on said 13th day of November, 1920, did issue a duces tecum, a copy of which is hereto attached, marked `Exhibit A,' and that the said respondent is threatening and is about to enforce the said order and compel compliance therewith, although he is wholly without jurisdiction, power, or authority so to do, and will carry out his said threat and enforce his said order, unless restrained by the order of this court to the great and irreparable prejudice and injury of the said relator. That the said order of the said respondent is wholly beyond his jurisdiction to make or enforce, and is coram non judice, and null and void, because it is in direct violation of the provisions of section 3 of article 8 of the Constitution of the state of Missouri, and of the statutes of the state of Missouri, and in conflict with the prior and controlling decision and opinion of this court.
"Relator says subpoena duces tecum has been duly served upon the aforesaid parties. The said members of the board of election commissioners of the said city of St. Louis and said officers will obey the said order, and will produce and exhibit the ballots, poll books, and other election records, as required by said order, unless the same be set aside and the enforcement thereof arrested as hereinafter prayed. That for the reasons aforesaid the said ballots are not competent evidence on behalf of the state of Missouri before said grand jury or in the prosecution of any indictment that may be returned.
"Your relator states that he is a qualified voter of the city of St. Louis, and has been such at all times mentioned herein; that he was one of the judges at the primary election held in the city of St. Louis on the 3d day of August, 1920; that he resides in precinct 16, ward 25, and that he cast his vote at said primary election in said ward 25 and precinct 16. Respondent, as the judge of the circuit court, made an order directing that the ballot box and key to the same, used at the aforesaid election in said precinct and ward, on the date aforesaid, and the contents thereof, to wit, ballots cast at said primary election, the poll books, and tally sheets, and all the records made by said election officers, be produced and delivered before the grand jury with the view and for the purpose of having the ballots cast at said primary election on said date examined and used in evidence, and said ballots made public; that the purpose for which this evidence is required is to establish the correctness or falsity of the count and return made by the election officers of the ballots cast at said primary election in said precinct and ward, and that the same is sought for this purpose, and no other. It is desired by the state to produce and offer in evidence the ballots found in said box, and to use all the said records in evidence, and thereby ascertain and make public how relator and other electors voted.
"And the said petitioner further states that the proceedings instituted and followed as aforesaid are a direct encroachment upon the authority and jurisdiction of this court, and are in contempt of this honorable court, its authority, and dignity; and under the Constitution and the laws it is made the care of this court that the said circuit court, as well as all other inferior courts, keep within the bounds and limits of the several jurisdictions prescribed to them by the laws of the state.
"Wherefore, the relator prays this court to issue its order directed to the respondent herein commanding him to show cause on a certain day, to be fixed therein, why he should not be absolutely prohibited from enforcing the aforesaid order by any means whatsoever, and from compelling or further attempting to compel the production, or exhibition, or other use of the said ballots or election records mentioned in said order and in said application for the writ of subpcena duces tecum before said grand jury, and enjoining him in the meantime and until the final disposition of this cause to refrain from enforcing or attempting to enforce his said order in any manner and to any extent whatsoever."
Attached to this was a copy of the subpoena duces tecum in question, which has been set out. Upon the filing of this application, after notice, a preliminary rule was issued as prayed. Respondents appeared and filed a return, which, caption and signatures omitted, reads thus:
"Now come Moses Hartmann, judge, and Lawrence McDaniel, circuit attorney, respondents herein, and for their joint and separate
return to the order to show cause heretofore issued herein state that at and prior to the times mentioned in relator's petition herein, the October term, 1920, grand jury in and for the city of St. Louis, Mo., was in session, having been duly impaneled and sworn, and had entered upon the discharge of its duties; that in the course of its deliberations the said grand jury was investigating frauds committed in the city of St. Louis at the primary election held on August 3, 1920, and had before it evidence tending to show that the judges and clerks of election in the several voting precincts of said city, and in particular in the sixteenth precinct of the twenty-fifth ward, had been guilty of fraud in the count and tally of the votes and ballots cast at said election, and of making a false return of said votes and ballots; and said grand jury, being desirous of establishing the correctness or falsity of the count and return made by the said election officers, and of voting indictments against election officers guilty of violations of law, if such violations were found, requested the production before them of the ballot boxes and other records mentioned in the subpoena duces tecum hereinafter...
