State v. Sartorious

• Decision Date: 06 December 1943
• Docket Number: No. 38539.,38539.
• Citation: 175 S.W.2d 787
• Parties: STATE ex rel. BARRETT et al., Board of Election Com'rs, v. SARTORIOUS, Judge.
• Court: Missouri Supreme Court

175 S.W.2d 787

STATE ex rel. BARRETT et al., Board of Election Com'rs, v. SARTORIOUS, Judge.

No. 38539.

Supreme Court of Missouri, en Banc.

December 6, 1943.

Certiorari proceeding by the State, on the relation of Jesse W. Barrett and others, constituting and comprising Board of Election Commissioners of the City of St. Louis, Missouri, against Eugene J. Sartorious, Judge of the Circuit Court of the City of St. Louis, Missouri, to review an order of the circuit court of the city of St. Louis, requiring relators to permit C. L. Owen to be registered as a qualified voter.

Record of the circuit court of the city of St. Louis quashed.

Joseph F. Holland, City Counselor, and George L. Stemmler, First Associate City Counselor, both of St. Louis, for relators.

Bryan Purteet, of St. Louis, for respondent.

HYDE, Judge.

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.A. 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. 26 U.S.C.A. Int.Rev.Code, § 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, Mo.R.S.A., 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 felony, or crime connected with the exercise of the right of suffrage may be excluded by law from the right of voting". (Adopted February 26, 1924.)

This is a broad grant of power in very general terms. There are no limitations in it which indicate an intention to require our General Assembly to restrict exclusion from the right of voting to those convicted of a felony under the laws of this state. Nor were there, in any previous Constitution authorizations, any such limitations upon the grant to the General Assembly of the power to exclude from the right of voting persons convicted of infamous crime. (The term "infamous crime" was used in all preceding constitutional provisions; see Sec. 10, Art. 8, Constitution of 1875; Sec. 26, Art. 2, Constitution of 1865; Sec. 14, Art. 3, Constitution of 1820.) The true purpose of such a disqualification is now generally conceded to be not merely additional punishment of the individual but to safeguard and preserve the purity of elections. 18 Am.Jur. 230, Sec. 20; 29 C.J.S., Elections, p. 58, § 33. In other words, such provisions are for the protection of the public by permitting only those who have lived up to certain minimum moral and legal standards (by not committing a crime classed as a felony) to exercise the hight privilege of participating in government by voting. The opening line of present Sec. 2 of Art. 8 recognizes and in fact requires that all Missouri voters must be citizens of the United States and of course subject to its laws. We, therefore, hold that the General Assembly has authority under our Constitution to exclude from the right of voting persons convicted of a felony under the laws of the United States.

It is interesting to note how the General Assembly has exercised this power throughout the history of this state. At first, when any such disqualification was provided, the offense, punishment and disqualification (which also included disqualification from office, from being a juror and in some instances from "giving evidence") were all included in the same section of the criminal code. R.S. 1825, Crimes and Misdemeanors, Chap. 1, Sec. 32 (stealing slaves), Sec. 33 (horse stealing), Sec. 46 (forgery), Sec. 47 (counterfeiting), Sec. 56 (perjury), Secs. 59, 60 (bribery), Sec. 62 (buying office), Sec. 76 (bigamy). Thus such disqualification seems to have been then considered more as a part of the punishment and it was clearly applied only to the particular crime specified in the section of which it was a part. Under those circumstances, of course, it applied only to such crimes when committed in this state. In 1835, much of our present criminal code was adopted in substantially its present form. R.S.1835, pp. 165-217. The last section, at the end of each article thereof, specified that any person convicted of any of the offenses described in that article, or in some instances (where the article covered misdemeanors) of certain specified offenses in that article, should "be forever disqualified from voting at any election" (also from holding office or serving as a juror), and these specific disqualifications still remain in our criminal code. [Offenses affecting lives and persons. R.S.1835, p. 172, Art. 2, Sec. 42, now Sec. 4427, R.S.1939, Mo. R.S.A.; Offenses against property, R.S. 1835, p. 182, Art. 3, Sec. 62, now Sec. 4561, R.S.1939, Mo.R.S.A.; Offenses against records, currency, etc. R.S.1835, p. 190, Art. 4, sec. 35, now Sec. 4601, R.S.1939, Mo. R.S.A.; Offenses against administration of justice, R.S.1835, p. 196, Art. 5, sec. 44, now Sec. 4322, R.S.1939, Mo.R.S.A.; Offenses by persons in office, R.S.1835, p. 200, Art. 6, sec. 18, see Sec. 4357, R.S.1939, Mo. R.S.A.; Other offenses R.S.1835, p. 210, Art. 8, sec. 40, now Sec. 4796, R.S.1939, Mo.R.S.A.] Thus, by these specific provisions, every felony described in the criminal code of this state (necessarily committed in this state) seems to have been made a ground of disqualification for voting, as were some crimes not felonies. [An infamous crime was defined as "every offence for which the offender * * * is declared to be disqualified * * * to vote," etc. R.S.1835, p. 216, Art. 9, sec. 37, now Sec. 4865, R.S.1939, Mo.R.S.A.] Therefore, if our legislature only intended disqualification for felonies committed in this state, no further statutes would seem to have been required.

However, another statute was enacted after the adoption of the Constitution of 1875: Our present statute on qualifications of voters [Sec. 11469, R.S.1939, Mo.R.S.A.; reenacted Laws 1939, p. 382] which uses the same broad language of the 1875 Constitutional grant of power to the General Assembly, namely: "Nor shall any person convicted of a felony * * * or of a misdemeanor connected with the exercise of the right of suffrage, be permitted to vote at any election unless he shall have been granted a full pardon." [This case is briefed mainly on the construction of Sec. 12206, R.S.1939, Mo.R.S.A. applicable to registration of voters in St. Louis, but it must be decided on the construction of Sec. 11469 applicable to the whole state.] This section first appears as Sec. 5492, R.S. 1879, following the language of the Constitution of 1875 (Sec. 10, Art. 8) which authorized the General Assembly to provide for such disqualification in substantially the same language as the present Sec. 2, Art. 8. (Art. 8 was rewritten by the 1923 Constitutional Convention because of the 19th amendment to the United States Constitution and the 1922 amendment to our Constitution requiring voters to be United States citizens and removing the disqualification of officers, soldiers and marines of the regular army or navy of the United States.) Other disqualifications of both the statute and the constitution are in the same broad terms, namely: "No idiot, no insane person [does this mean only those declared insane by a Missouri court?], and no person while kept in any poorhouse * * * or while confined in any public prison shall be entitled to vote." Would it be contended that an inmate of a federal prison in Missouri could vote?) Considering the purpose of the disqualification, the broad language of the constitutional authorization and the use of the same broad terms by the Legislature in enacting a general statute providing for such disqualification for felony, without limitation to exclude conviction for felony by a United States Court, after disqualifications had already existed in this state for almost half a century specifically covering crimes classed as felony under the laws of this state, it seems reasonable to believe that the Legislature did intend to include conviction for felony under United States laws in the disqualification.

The General Assembly has itself taken this view of the meaning of this disqualification, because it has in two separate statutes providing for registration in certain cities so construed it. Sec. 12073, R.S. 1939, Mo.R.S.A. making it a felony "If any person who shall have been convicted of bribery, felony, or other infamous crime, under the laws of any state, and who has never received a pardon for such offense from the officer entitled to grant such pardon, shall thereafter vote"; and Sec. 12264, R.S.1939, Mo.R.S.A. likewise making it a felony "If any person who shall have been convicted of bribery, felony or other infamous crime, under the laws of any state, or, of the United States, and who has never received a pardon for such offense from the officer entitled to grant such pardon, shall thereafter vote." While it is no doubt true, as respondent contends, that such an offense may be only created by general law applicable to the whole state [so that Sec. 4355, R.S.1939, Mo.R.S.A. would apply to offenses in these cities as well as anywhere else in this state], nevertheless these sections do furnish a legislative construction which should be at least persuasive.

Respondent argues that, because Sec. 4864, R.S.1939, Mo.R.S.A., defines "felony" as "any offense * * * punished with death or imprisonment in the penitentiary", the...