State ex rel. Funkhouser v. Spencer

164 Mo. 23 | Mo. | 1901

MARSHALL, J.

— This is an original proceeding in prohibition, to prohibit the respondents from carrying out an order of the Hon. Selden P. Spencer, as judge of the circuit court of the city of St. Louis, on the other respondents as election commissioners of that city, to -examine the ballots and compare them with the voting lists, east at the general election, in the year 1900, in the city of St. Louis, for the office of coroner of that city.

Robert M. Eunkhouser, the relator, was the Democratic nominee for the office of coroner of St. Louis, at the general election in 1900, and Henry Lloyd was the Republican nominee. Funkhouser was declared elected, and Lloyd instituted a contest for the office, and among other grounds therefor he *30procured from the board of election commissioners a printed copy of the entire list of registered voters of the city of St. Louis, containing about 130,000 names, and after erasing a few hundred names therefrom, made the' same a part of his notice, and stated in the notice that the list contained 'the names of voters to whom he objected, stating his reasons for so objecting. Among the names of persons so objected to was that of Lloyd himself. Thereafter, he applied to Judge Spencer for an order on the election commissioners to examine and recount all the ballots cast at said election for said office, and to compare such ballots with the voting lists, and to certify the result of such examination, recount and comparison to the circuit, court. Judge Spencer, sitting as such judge of said court, made the order asked, the portion thereof essential to this controversy being as follows:

“Now, therefore, these presents are to command you, and each of you, acting as the said board of election commissioners, or as deputy election commissioner and secretary of said board, and as the said board of election commissioners, and as deputy election commissioner authorized by law to exercise the full power and authority of the said board whenever occasion so to do shall arise under the law, to proceed to open, examine, count and compare with the list of voters in your office, all the ballots that were cast at the general election aforesaid for the office of coroner for the term above mentioned, and that you certify to this court, under your hand and seal, and as required by law, the result of such count, comparison and examination of the said ballots so far as the same relate to the office aforesaid, in contest in the election contest above mentioned; and in so certifying the result of such count, comparison and examination of the ballots you shall intelligently distinguish between ballots which were counted and those which were rejected by the judges of election acting in the several precincts of the city of *31St. Louis, at the election aforesaid, and show the numbers upon said ballots and the initials and other writing .upon each such ballot, whether counted or rejected; .and you are further directed to begin the said count, examination and comparison of said votes, according to the directions of this writ, and to proceed with the same with all convenient and practical speed.
“To assist you in the performance of the duties herein required, you are authorized and directed to detail not exceeding four of the regular sworn assistants of your office, who shall he, however, sworn to secrecy in the same manner that the paHies and thew attorneys are required to he sworn, according to the provisions of section 7046 of the Revised Statutes of the State of Missouri 1899.
“You, and each of you as the board of election commissioners, as members of said board, and deputy commissioner, and all clerks detailed as assistants under authority herein granted, and each and all of you, are further required and commanded that in obeying this writ you shall proceed in all things according to law, and further that immediately upon the receipt of this writ you shall fix a day not more than thirty days after the date of the receipt of this writ, on which yóu will proceed to open the said ballots, and to count, examine and compare the same, as herein required, and you shall cause notice in writing of the "day so fixed by you to be served on the contestant, Henry Lloyd, and the contestee, Robert M. Eunkhouser, or their respective attorneys of record in this proceeding, at least five days before the date so fixed by you to open the said ballots, and count, compare and examine the same; and, further, that on thé day so fixed by you you shall proceed in your office to open the said ballots in the presence of the said contestant, Henry Lloyd, and of the said contestee, Robert M. Eunkhouser, and their respective attorneys, not to exceed two for each of the parties, all of whom shall be attor*32neys of record in this cause, -or such of them as may demand to be present, and after administering to all such persons an oath binding them, as required by law, that they will not disclose any fact discovered from such ballots, or by or through the examination of the said ballots and the comparison thereof with the said list of voters, except such facts as may be contained in your certificate of the result of siich count, examination and comparison, and you shall exclude from your office during the time while such ballots are open and being examined and counted and compared, all other persons whatever.
“You are further commanded in such count, examination and comparison of the ballots aforesaid, that you shall permit the said contestant, Henry Lloyd, and the said eontestee, Robert M. Eunlihouser, to be present during all of your proceedings, either together with their respective attorneys of record in this cause — not more than two for each party — or separately, and shall also permit the said attorneys for the contestant and eontestee separately to be present during all the said proceedings, and shall permit them and each of them, as they may request to fully examine said ballots and voting lists, and to compare the same, and in the return or certificate which you shall file staling your proceedings under this writ, you shall also return to this court under your hands and official seal all the facts which either of the parties to the aforesaid election contest may desire and request to have returned, and which may appear from the said ballots and the examination and comparison thereof, affecting or relating to the election for the office now being contested in this proceeding. Herein fail not at your peril.”

The election commissioners gave relator notice of intention to comply with the order, and thereupon he applied for and obtained from this court a preliminary rule against the said judge, the election commissioners and Henry Lloyd, con*33testee, prohibiting them from proceeding as proposed. The returns set np the order and justify it. • The relator moved to quash the return of the judge, and demurred to the return of Lloyd.

I.

The pivotal question involved is whether the circuit court had power to order the election commissioners and the parties litigant to make a comparison of the ballots with the voting lists and to require the election commissioners to return and certify to the court “all the facts which either of the parties to the aforesaid election contest may desire and request to have returned, and which may appear from the said ballots and the examination and comparison thereof.”

Section 3 of article 8 of the Constitution is as follows:

“All elections by' the people shall be by ballot; ‘every ballot voted shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters, opposite the name of the voter who presents the ballot. The election officers shall be sworn or affirmed not to disclose how any voter shall have voted, unless required to do so as witnesses in a judicial proceeding: Provided, that in all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law.”

Accordingly, it has been held by this court, that the ballots can not be examined in a proceeding by quo warranto (State ex rel. v. Francis, 88 Mo. 557), nor in a proceeding before a school board to contest the election of one of its directors (State ex rel. v. Board of Public Schools, 112 Mo. 213), nor by a grand jury to ascertain whether a voter has been guilty of a crime against the election laws of the State (Ex parte Arnold, supra).

In short, the only exception to the absolute and complete secrecy of the ballot is in cases of contested elections, and in that it is only permissible to count the ballots, compare them with the list' of voters and examine them “under such safeguards and regulations as may be prescribed by law

Immediately following the adoption of the Constitution of 1875, containing this provision, the courts began to order a recount, examination and comparison of the ballots with the voting lists, and inasmuch as the General Assembly had not prescribed any safeguards or regulations, each court making such an order framed rules and regulations for itself, as was the practice and law before the new Constitution was adopted. But in State ex rel. Beach v. Lobsinger, 7 Mo. App. 106, it was properly held that the courts had no power to make such regulations and rules, and that until the General Assembly enacted such safeguards and regulations the ballots could not be recounted, examined or compared with the voting lists.

Thereupon, the General Assembly enacted a code of safeguards and regulations, which have passed into the Revised Statutes of 1899, and appear as sections 7044 to 7049, inclu*35sive, and are as follows:

“Sec. 7044. County Cleric to Open, Count and Compare Ballots, Etc., When. — Either house of the General Assembly, or both houses in joint session, or any court before which any contested election may be pending, or the clerk of any such court in vacation, may issue a writ to the clerk of the county court of the county in which the contested election was held, commanding him to open, count, compare with the list of voters and examine the ballots in his office, which were cast at the election in contest, and to certify the result of such count, comparison and examination, so far as the same relates to the office in contest, to the body or court from which the writ is issued.
“Sec. 7045. Writ to he Served; Cleric to Give Notice, Etc. — Such writ shall be served, without delay, on such county clerk by the sheriff of his county, and on receipt of such writ such clerk shall at once fix a day, not more than thirty days after the date of the receipt of the writ, on which he will proceed to open such ballots, and shall cause notice, in writing, of the day so fixed to be served on the contestor and contestee, or their attorney, at least five days before such day. Such notice may be served in the same manner as a writ' of summons in a civil action; but in case either of the parties and his attorneys are not found in the county of such clerk, such notice may be served by posting same on the door of the county clerk’s office.
“Sec. 7046. Clerk to Open Ballots; Who May Be Present. — On the day so fixed the clerk shall proceed, in his office, to open such ballots in the presence of the contestor and contestee, and their attorneys, or such of them as demand to be present, and after swearing them not to disclose any fact discovered from such ballots, except such as may be contained in the clerk’s certificate. While such ballots are open and being examined, the clerk shall exclude all other persons from his office.
*36“Sec. 7047. Ballots May Be Examined by Whom; ClerYs Return, To Contain What. — The clerk shall permit the eontestor and contestee and their attorneys to fully examine the ballots, and shall make return to the writ, under his hand and official seal, of all of the facts which either of the said parties may desire, which may appear from the ballots, affecting or relating to the election for the office in contest.
“Sec. 7048. Ballots to be Resealed. — After the examination of the ballots is completed, the clerk shall again securely seal them up as they were, and preserve and destroy them as provided by law, in the same manner as if they had not been opened.
“Sec. 7049. Clyde’s Certificate Pñma Facie Evidence. —The certificaté of the clerk, made under the provisions of this article, shall be prima facie evidence of the facts stated therein; but the persons present at the examination of the ballots may be heard as witnesses to contradict the certificate.”

These provisions, together with section 7114, Revised Statutes 1899, which provides that “no officer of election shall disclose to any person the name of any candidate for whom any elector has voted,” and section 7254, Revise*} Statutes 1899, which requires the election commissioners to keep the ballots séeurely locked up, “not opening or inspecting them, nor. allowing anyone else to do so, except, upon order of court in case of contested election,” constitute all the safeguards and regulations that have been prescribed by law.

Thus it will be seen that while section 7044 authorizes the court, before which any contested election may be pending, to order the clerk of the county court (in St. Louis the board of election commissioners) “to open, count, compare with the list of voters and examine the ballots in his office” and to certify the result of such count, comparison and examination to the court, it gives no such right to anyone except the clerk — not *37even to the parties or their attorneys. The subsequent sections emphasize this feature and show that it is not simply a casus omissus but that it was deliberately and intentionally so framed. Thus section 7046 provides that the ballots shall be opened in the presence of the parties and their attorneys, “and after swearing them not to disclose any fact discovered from such ballots except such as may be contained in the clerk’s certificate.” It will here be noted that the oath of secrecy relates only to what may be discovered from the ballots, and does not impose any secrecy as to what is shown by a comparison of the ballots with the voting lists.

But this is not-all. Section 7047 requires the clerk to permit the contestar and contestee and their attorneys “to fully examine the ballots ” and further that the clerk “shall make return to the writ.... of all the facts which either of said parties may desire, which may appear from the ballots affecting or relating to the election for the office in contest.”

• So that up to this time the Legislature has only given the parties or their attorneys the right to fully examine the ballots and to require the clerk to certify all the facts which either of the parties may desire which appear from the ballots. No right has been given them to compare the ballots with the voting lists. Such a comparison would disclose how the elector voted, and thereby lift the veil of secrecy, without his consent, to the parties and their attorneys, and they would be under no obligation not to disclose the information so obtained, for their oath of secrecy is limited by the statute “not to disclose any fact discovered from such ballots” — not from such a comparison. And if the contention of respondents, that the term “ballot” employed in section 7046 includes such a comparison of the ballots with the voting lists, be true, then it necessarily follows that the veil of secrecy would not only be lifted to the eyes of the parties and their attorneys, but also to the whole *38world, for section 1041 requires the clerk to permit tbe parties and tbeir attorneys to fully examine tbe ballots, and to make return “of all the facts wbicb either of said parties may desire wbicb may appear from tbe ballots.” So that under such a construction tbe clerk could be required by tbe parties to certify to tbe circuit court and thus make a public record of every fact that appears from tbe ballots and from a comparison of tbe ballots with tbe voting lists, and in this manner a perpetual public record would be made of bow every elector voted. And this is precisely what tbe circuit court ordered to be done in this case. That this is not tbe true or literal meaning of tbe law is conclusively shown by tbe fact that tbe parties and tbeir attorneys are required to be sworn not to disclose any fact discovered from the ballots. If ballots includes voting lists, then what useful purpose would be subserved by swearing tbe parties to secrecy when all tbe facts so discovered would be made matters of public record in tbe circuit court by tbe return of tbe clerk ? And yet tbe prime purpose of voting by ballot is to preserve inviolate tbe secrecy of tbe vote. Respondents argue, however, that without such a comparison, an examination of tbe ballots only would not accomplish all they want, and would not give them all tbe relief necessary to successfully contest tbe election. If this be so, then tbe remedy must be obtained from tbe Legislature. Tbe courts have no more power to correct imperfect legislation by construction than they have to prescribe regulations and safeguards when tbe Legislature has failed to do so, and this as we have seen, was held, in State ex rel. Beach v. Lobsinger, supra, to be beyond tbe power of tbe judiciary.

But respondents further contend that such a comparison is necessary in order to detect and punish frauds in elections, and that this consideration is so paramount that tbe prime purpose of tbe law and of tbe ballot system must give way to it. It *39is easy to demonstrate the fallacy of such a contention. In the first place, the Constitution does not permit even the ballots to be examined except in a contested election proceeding. This court has decided, in Ex parte Arnold, supra, that they can not be examined in order to detect and punish crime. Every good citizen and lover of liberty is in favor of honesty in elections and of punishing frauds in elections. But respondents do not show, nor can it be discerned, how the perpetrators of any fraud in the election can be punished in a contested election case. The sole purpose and the limit of possibility in such a ease is to determine which of the two contesting individuals shall exercise the functions of the office in question. The proceeding is in the civil courts. If the trial of such a case, in such a forum, disclosed any amount of fraud, the perpetrators thereof could not be punished in that proceeding. It is not, therefore, true that such a comparison in a contested election case is necessary to detect and punish fraud in elections.

Respondents further contend that the prior adjudications of this court authorize such a comparison, and they cite, in support of their contention, the cases of State ex rel. v. Klein, 116 Mo. 259; State ex rel. McCurdy v. Slover, 126 Mo. 652; Lankford v. Gebhart, 130 Mo. 621, and Nash v. Craig, 134 Mo. 347.

An examination of these cases shows that the point here involved was not- raised, discussed or decided in those eases. In State ex rel. v. Klein, the main question involved was whether the ballotboxes could be opened and the ballots examined in a contested election case over a municipal office. The form of the order made by the circuit court and sought to be prohibited from being enforced is not stated in the report of the case, but respondents set it out in their brief in this case, and from that it appears that the order followed strictly the language of the statutes herein set out and commanded the re*40corder of voters to open, count, compare with the list of voters and examine all the ballots and to certify the result (not the details) of snch count, comparison and examination, and to permit the parties and their attorneys “to fully examine the said ballots; and in making such return to this court he shall include all the facts therein, which said contestar or said contestee or their attorneys may desire which may appear from said ballots affecting or relating to the election for said office.” This complies strictly with the statute and the rule here announced, but it is vitally different from the order made by the circuit court in this case, in that in the case at bar, the order is not limited to allowing the parties and their attorneys, to fully examine the ballots and to requiring the officer to certify any fact they may desire which may appear from the ballots, but goes further and commands the officer to allow the parties and their attorneys to compare the ballots with the voting lists, and requires the officer to certify all the facts either party may desire “which may appear from the said ballots and the examination and comparison thereof.” Which difference takes this case out of the rule laid down in the case of State ex rel. v. Klein, supra. The circuit court in this case, also, after first requiring that the parties should take the oath required by section 7046, afterwards, in the same order, enlarged the oath required by that section and required the parties and their attorneys to swear “not to disclose any fact discovered from such ballots or by or through the examination of said ballots, and the comparison of said ballots with the list of voters The italicized words constitute the enlargement.

State ex rel. v. Slover, 126 Mo. 652, was a proceeding to prohibit the circuit court of Jackson county from enforcing an order on the recorder of voters in that county to open and count the ballots, in a contested election case for the office of collector of the revenue of that county. The opinion states that the sole *41point raised is whether the circuit court had power to issue-such a writ to the recorder of voters, when the statute provides that the order shall be directed to the clerk of the county court. Inasmuch as in Jackson county the recorder of voters performed the duties pertaining to elections that usually devolve upon the clerk of the county court, it was held that the writ was properly issued. But so far as appears from the opinion, the order did not direct the officer to permit the parties to compare the ballots with the voting lists nor to certify any fact the parties desired which might be disclosed by a comparison of the ballots with the voting lists. Counsel for respondents have set out in their briefs a copy of the order in that case, and it appears therefrom that the order was exactly like the order in the ease of State ex rel. v. Klein, supra, and did not authorize or permit the parties or their attorneys to compare the ballots with the voting lists, nor did it require the officer to certify any fact the parties or their attorneys desired which appeared from such a comparison. What is said herein as to the Klein case, applies equally to the Slover case.

Lankford v. Gebhart, 130 Mo. 621, was an election contest case for the office of sheriff of Daviess county. The opinion states that, “On a proper order the ballots were opened, examined and recounted by the clerk.” This is all that appears. It does not, therefore, appear that the point here involved of the right of the parties to compare the ballots with the voting lists and to have the officer certify all facts disclosed by such comparison, was raised or decided in that case. Indeed, it does not appear that anyone attempted to do such a thing in that case. The decision turned upon other points not involved' here. Among the points involved in that case was this: The name

of Frank Vance appeared on the pollbooks as one of the voters. No such person lived in the precinct. But there was a man named Frank Zentz, who was a qualified voter in the *42precinct and who voted at the election, but his name was not on the pollbooks. The trial court held that parol evidence was admissible to prove that the ballot was cast by Zentz. This court held that was error, and incidentally referred to the constitutional provision (see. 3, art. 8) that in contested election cases the ballots may be compared with the list of voters. But the point here involved was not present or decided in that case.

Nash v. Craig, 134 Mo. 347, did not raise or decide the question here involved. It was there held that the duties imposed on the county clerk in respect to contested election cases might be performed by his deputy. Other points were also decided, but they have no bearing on this case.

It is not, therefore, true that this court has ever before been called on to decide .or has ever decided that the ballots may be compared with the voting lists by the parties to a contested election case, nor that they can require the officer to certify any fact they desire which appears from such a comparison, and thus make a public record in the circuit court of how any or all voters voted at any election for any office to be filled at such election. If this was permissible then a contest as to every office to be filled would make a public record of how every voter voted for every office to be filled, and the inviolate secrecy of the ballot would be only an empty delusion.

Respondents, however, contend that they can accomplish this result by indirect means any way, and, hence, they should be allowed to do it directly as the order here under consideration allows, for they boldly and candidly aver that it is their purpose to find out how every elector voted. They say that under the statute they can discover from the ballots all the facts apparent thereon, among others, the voting number, of the person who cast the ballot, and then, under the decision in State ex rel. Thomas v. Hoblitzelle, 85 Mo. 620, they can, by man-*43damns, compel the election commissioners to furnish them a copy of the pollbooks and lists used at an election, on which the voting number of the elector will appear, and that by putting the two together they will be able to tell how every elector voted.

This exhibits much ingenuity and resourcefulness on the part of counsel, but it is more plausible than correct.

At the time that ease was decided it was the practice in St. Louis not to allow anyone to see or have a copy of the registration lists or pollbooks. The idea prevailed that this would prevent personation, for if it was not known to outsiders and especially to repeaters, who was entitled to vote, they would not know who to attempt to personate. Thomas had been a candidate for the office of city marshal and was defeated by Neiser. He wanted to institute a contest and alleged that in order to know whose votes to challenge it was necessary for him to know who had voted, and he applied for a mandamus to compel the recorder of voters to permit him to inspect the registration lists, pollbooks and lists used at the election. This court held that under the statute the seal of secrecy only attached to the ballots, and that the registration lists and pollbooks and lists used at an election were public records that anyone was entitled to inspect. But the court added, very significantly, “Nor can we see how an inspection of the pollbooks tends either to destroy or impair the secrecy of the ballot. While the inspector would learn from it who voted, he could not learn how or for whom the voter voted.” Thereby clearly demonstrating that the court would not have permitted such an inspection if the secrecy of the ballot would be thereby destroyed or impaired. The court never dreamed in so deciding that it was affording a means for the secrecy of the ballot to be destroyed in the manner respondents here say it can be done.

Hnder the registration and election laws in force to-day *44the registration lists are published and made public. The law (sec. 1006, R. S. 1899) requires the judges and clerks to make up duplicate lists of the votes cast at any election, one copy to be transmitted to the clerk of the county court, and the other to he retained by the judges of election, “open, to the inspection of all persons.” So that there is no longer any occasion to call on the clerk of the county court or the election commissioners for a copy of the list of persons who voted at any election. But as was said in the Thomas case, an inspection of such a list will not disclose how or for whom any elector voted. But none of this is any authority for the order made in this case nor does this case or this statute allow any person to an election contest to compare the ballots with the poll lists and to have the clerk certify the result of such a comparison to the circuit court, and thereby make a public record of how and for whom every elector voted.

It is argued, however, that section I0M authorizes the clerk of the county court to open, count, compare with the lists of voters and examine the ballots and “to certify the result of such comparison and examination” to the circuit court, and that in this way the fact may be or is authorized to be made public how any and every elector voted. This is not the true construction to put on this section. The clerk is authorized only to certify the result of the comparison — not to certify, as the order in this case requires, any fact either party may desire which appears from such a comparison.

Under this 'section the clerk is only authorized to compare the ballot with the voting list so as to ascertain if it is a ballot cast by a person whose name appears on the voting list, and thereby determine whether it is a ballot that can be considered. And he is only allowed or required to certify the result of such a comparison — that is, that such comparison of the ballots with the voting list showed that the ballot was cast by a person *45whose name was on the polling list — but not to give the name of every voter so he conld be connected with the ballots under consideration. This is as far as the Legislature has yet given anyone permission to invade the secrecy of the ballot system. If this remedy is not sufficient or adequate to the wants, uses, purposes or desires of contestants or contestees in election contest cases, the remedy lies in having the law changed and made more to their liking, but the courts have no power to legislate on the subject nor to cure omissions nor to expand the law.

In his notice of contest, the contestant Lloyd objected to all of the 130,000 votes east at the election, including his own, with the exception of a few hundred, which he designated by scratching them off of the complete list of voters which he attached to his notice. The order of the circuit court is even broader or more. sweeping than the notice of contest, for it not only permits the parties to examine all the ballots cast by the persons whose right is challenged and requires the officer to make public the votes of all the persons whose right to vote is challenged, but it permits an examination and exposure of every ballot cast, including those of the few hundred whose votes are not challenged. There can be no good reason given for so exposing the votes of those whose votes are not challenged. There is not even the usual pretense of necessity to detect and punish fraud available to justify this invasion of the secrecy of the ballot as to those whose votes are unchallenged.

This, however, arises from the indefinite and reckless character of the charges usually found in notices of contest. In this case the contestant objects to nearly every vote that was cast in St. Louis at the general election in 1900. This includes those who voted for him as well as those who voted against him. ■ It even includes his own name among the votes objected to. Of course, contestant does not object to the votes that were cast for him, for if he did, and the objection was *46sustained, he would fail in his, contest. But it is referred to in order to show the utter disregard of good pleading that is usually indulged in, and that has run to absurdity in this ease. It also evidences an utter disregard for the rights of honest electors by attempting to expose how they voted. Public policy, favors the detection and punishment of frauds in elections, but it protects the rights of the honest electors, and requires those who seek only selfish ends in election contests and who are not seeking to subserve public interests by the exposure of fraud to have some regard to the rights of the public and the honest voters. If fraud was detected in this way it could not be punished in such a proceeding, for the simple reason that the perpetrators of the frauds are not parties to the case before the court, and, hence, no judgment could be rendered against them. But as pointed out, the claim that such violation of the secrecy of the ballot is necessary to expose and punish frauds in elections, is wholly without merit in a contested election case, the sole object and purpose of which is to put out the contestee and install the contestant in the office in question.

There is no merit in the point that the circuit court reserved the right to amend, alter or modify the order in question. It has not done so, but on the contrary the judge here justifies it, so of course, he will not change it unless compelled to.

Eor these reasons the preliminary rule prohibiting the carrying out of the order of the circuit court is made absolute.

All concur, except Robinson, J., who dissents.

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