*1 83 juvenile act and petition act on the accord- procedural by filing a question raise the ingly. motion under Rule 25.06.
Respondent’s motion to pro- adopted today dismiss the opinion I understand the ceedings is denied. The preliminary may proce- rule to hold that the child raise is made absolute and judgment final appellate fil- in an court question dural prohibition is against entered respondent prohibition. application for writ magistrate. However, I would discon- object. I do not Reid device
tinue the use of the Kent v. In re Missouri and would overrule T.J. MORGAN, HOLMAN, BARDGETT, H., supra, that extent. The Kent v. FINCH, HENLEY and JJ., concur. longer needed to raise Reid device is no in- question. It was never procedural to raise tended that it be used Missouri DONNELLY, J., separate C. concurs in question. the substantive opinion filed. DONNELLY, Chief (concur- Justice
ring).
It seems to me that when a Juvenile
Court enters an order relinquishing
jurisdiction to deal with a child under the Code and exposing pro- him to
Juvenile
ceedings
general
under
law,
criminal
questions
least two
arise:
S.
of Missouri ex rel. James
STATE
al., Relators,
et
McCLELLAN
(1)
procedural
question: does the
form of the order satisfy
requirements
Secretary
James C. KIRKPATRICK
States,
Kent
v. United
U.S.
Missouri,
of the State
State
S.Ct.
neither (procedural or substan-
tive) appellate would receive review unless
the child were general convicted under the
criminal appealed. law and T.J.H., In re
supra, recognize did a need for preliminary procedural
review of question, if de-
sired, putting before the child trial un-
der general and, criminal law there-
fore, suggested the Kent v. Reid device Reid,
(Kent U.S.App.D.C. 330,
F.2d 331 (1963)) permitting the child to *2 Counselor, City Koehr, City L. of Jack Louis, Louis, Hemenway, David
St. St. S. for relators. Danforth, Gen., Atty. C. C. John John Gen.,
Klaffenbach, Burns, Attys. Jr., C. B. respondent for C. City, Jefferson James Mis- Secretary State of Kirkpatrick, souri. McSweeney
Hearnes, Raack, Padberg & intervenor-respond- Slater, Louis, for St. ents, by Godfrey Padberg, Louis. P. St. BARDGETT, Judge. filed original an mandamus action
This is relators, the Board of court City of St. Election Commissioners of Secretary respondent, Louis, against in which the State State direct- of this court order seek to certi- respondent Secretary of State balloting by us- voters fy the results City of ing voting machines in the St. primary elec- at next Louis statewide will Respondent has declared tion. balloting if certify the results permit election voters the relators making known the vote without first ballots voters’ choice by re- This declaration of election. spondent from the announcement resulted equip they going by the relators that City in the Louis machines St. the booth it- device within with located pri- whereby the voter make self will mary privately and without selection disclosing choice intend to the de- election. Relators install voting. vice some machines Louis and use them the the machine be held in of 1974. The instal- on the face of August cated and, pri- $160,000 in the approximately operated by the voter lation will cost would be se- done, booth, allowing be- if it would have to the voter vacy is to be work thereby gin promptly privately. for the machines It would order lect a ballot unnecessary election in Au- for the voter to advise ready make it gust 1974. the election *3 intend to install Relators desires to vote. in its discre- jurisdiction, This court has voting machines a device on the such tion, original reme- issue and determine to to re- and intend not City of Louis the St. V, Mo.Const., 4(1), dial Art. writs. make ballot selection quire the voter to V.A.M.S. require judge election nor to known to the judge to the voter deliver importance The here are of vital issues the ballot the voter. City selected to the electorate of the of St. Louis as a and the whole State Missouri Secretary position Respondent of State’s in ac- carry plan for if out their laws Missouri is that the cordance with their announcement require of election to deliver judges thereafter it is that a violation determined by the voter to ballot selected occurred, of the the result election laws make consequently require the voter to voiding hundred could be the of several judges of choice known to the his ballot complete perhaps ballots and thousand so con- election and the election is unless disruption of a statewide election. Secretary not cer- ducted the of State will pre- It was for these reasons the court motion, tify the results thereof. On liminarily petition for sustained relators’ City for the Democratic Central Committee mandamus, writ of ordered an accelerated permitted to intervene as Louis St. schedule, briefing arguments heard in the respondents position and take the as same 19, 1973, case on October de- will now Secretary of State. questions presented.1 cide the conducting point have the statutory Relators Relators’ first is that a City requirement elections in the Louis and uti- that a voter voting lize about machines in the con- tion must the ballot he in- announce which duct of a election. face tends to vote contravenes Missouri each machine contains the provisions constitutional be elections participating political party open of each free and and that citizens qualified independent and other as the ballots such have the to vote shall therein. Const., I, VIII, locking ballot. There is a on the device Art. and Art. outside point of each machine which is utilized V.A.M.S. Relators’ second open the face of the machine to which- even if were constitu- ballot the prohib- ever voter states it desire tional the law of is his Missouri does not prevents vote which the voter from it election officials from adjusting vot- voting any other ballot. The voter tells a machines so to make an an- as unnecessary. of election which ballot he desires nouncement and the of election then activates point second will be Relators’ considered locking provide device so as voter first, if the law of Missouri does with the ballot the voter has selected. require the voter state his ballot choice officials, These machines can fitted with to the constitutional question a ballot need selection device which would be lo- not be reached. preliminary 1. The writer entertains substantial doubt court voted to issue writ advisability entertaining here, argued of this court the cause has been briefed and original this matter as writ rather than the writer believes the court decide the should appeal court; from circuit but since case on the merits. delivering any voter, ballot to Do the laws fore therefore is: charge of require having to two state of Missouri shall names or initials primary ballot write their the election upon the back indelible ballot with vote ? desires to
pencil, writing on the no other shall be except provided by back of the ballot Nominating primary elections or law.” have constitutional stature Mo.Const., VIII, Art. V.A.M.S. qualifications presently are set Voter regulation by the General subject forth in Sec. V.A.M. power police Assembly under the provides person en- S. which “No shall be Murdock, 482 Totton S.W.2d state. any primary titled to vote at un- parties play a Political (Mo.banc 1972). qualified precinct less he *4 national, state necessary and role in vital duly therein, registered registration and if wide, recog and are and local elections required by law.” Prior to the 1969 give nized the of state which laws this amendment, provided this fol- section powers, parties statutory rights, the certain (the portion appearing lows italicized be- primary and respect to and duties with low amended was out of the statute in 120, general Chapter RSMo elections. : 1969) 1969, are an Primary elections V.A.M.S. person “No shall be entitled vote at to machinery and part integral of the any primary qualified of unless elector political whereby the method constitute precinct therein, duly registered the if public party a candidate for can nominate registration law, required by thereat be 1969, 120.150, V.A.M. office. Sec. RSMo known to political party with the affiliate in S.; exceptions provided for see the named at the head he ticket calls of 120.550, 120.560, for 120.300, RSMo Secs. attempts vote, obligates to or himself V.A.M.S., apply to the of which none support to the nominees at party said Chapter Pursuant to hand. following general election.” 1969, voting machines RSMo adopted use in Louis. Sec. been 120.470, 1959,V.A.M.S., RSMo provi provides part that “the 121.260(1) repealed Mo.1969, p. 1969 (Laws of elections relating laws sions all state 238). repeal Prior to pro- section this chapter this . . . not inconsistent with duty “It shall be the chal- vided: apply or to all elections districts shall lenger challenge and the of the precincts voting are used.” where machines judges reject of election to ballot any person attempting to vote other than generally primary election laws are party ticket of the with which he is Chapter found in RSMo V.A.M. affiliated, to be person, known unless such part that “At 120.450(1) requires in S. Sec. challenged, obligates himself, when by oath many be as primary all elections there shall or affirmation administered one of the parties are enti- separate ballots as there judges, support party nominees of primary participate in election. tled to - following ticket he is in the non-partisan ballot There shall also be a general judges election. All of the election added) (emphasis . .” authority empowered shall have and are any pri- 120.450(7) “In administer provides: affirmation, such oath or any person be mary qualified each voter shall offering to vote who shall fail of the judge entitled to from the or refuse to take receive or make oath or af- political party firmation election one ballot when demanded such chal- lenger, participating required in the election for which or by any judge, shall not election be desires to vote. The allowed to primary vote at such Be- shall deliver the ballot voters. tion.” political party or that he
It relators’ contention that 1969 affiliated with a repeal support the' the nominees of amendment to Sec. 120.460 and take an oath to removing party appearing had effect of on the Sec. 120.470 any from the law that a voter he selects. pref- in a primary election state provi- contend however that the Relators erence to a unless 120.450(7) sion of would be satisifed necessary pro- in order to
declaration if the of election delivered to the particular ballot, vide the voter with a paper upon one which was sheet paper in the case where ballots are used. parties printed participat- all the ballots of 1969, V.A.M.S., su- in the with instruc- RSMo pra, provisions only all one If makes tions vote state laws con- ballot. correct, lating applicable tention is then officials in elections areas places paper in the except machines where ballots used are used general balloting print all provisions those could laws inconsistent with the paper give chapter (Voting ballots on one sheet of Machines). paper. The voter then provisions 120.450(7), of Sec. privately par- would select ticket of 1969, V.A.M.S., require ty in partici- he desired to whose voter receive the elec- pate from If vote ballot. Missouri *5 by tion it the ballot desired the voter and primary permitted election laws the forego- requires judge further that the ing practice used, of where ballots are paper such deliver ballot to the Where voter. then proposal it that of follows voting used, duty per- are this is machines respect voting with would be machines by judge op- formed when contention valid. This however must be locking erates device in accordance rejected. with preference permit the voter’s so toas V.A.M.S., 120.450(1), Sec. RSMo the voter primary to vote the ballot requires many separate there be as prefers. It is obvious that the other parties participating ballots as there in provision of requiring Sec. 120.450(7) the primary 120.450(7) election. enti- Sec. two of election to initial the back of tles the voter to receive from the election performed the ballot cannot be when vot- political party par- one ballot of ing used; provision machines are this ticipating in the election which he de- therefore chapter inconsistent with 121 and Assembly to vote. Had the General sires applicable consequently voting not intended all the ballots of could be machines are used. printed upon paper sheet of one and deliv- provision The of 120.450(7) Sec. voter, pro- ered to the it would have so requires of election to deliver the vided it did in the case war as of ballots. ballot selected the voter to the voter is 112.330, Fur- V.A.M.S. chapter inconsistent with 121 and evidencing ther the fact that was not applicable places therefore is where vot- legislative language intent is the ing recog- machines are used. The court ballots, respect with 112.330(1) to war performance nizes that the of this duty as follows: “The form and of the contents judges requires the voter to comply primary shall with preference make his ballot to the laws, known general except as in- to the judges of election. The 75th As- required General placed primary structions be sembly equally was aware of this fact general ballots, except when it provision decided retain this ballot for elections for all part the law in 1969 parties Senate Bill 135 shall single of a consist sheet of which bill provision also paper contained re- substantially shall be in the fol- pealing requirements that the voter be lowing (emphasis form . . ..” added) 88 Kearbey, 251 158 language clearly In Nance
The shows that foregoing held that delivery (banc 1913), this court printing and to the voter 629 S.W. right in paper containing right all to vote a constitutional sheet of one the enumerated recognized by possessed Gen- those citizens election ballots it qualifications and that to the Assembly exception eral constitutional although not supra. No may by statute regulated be quirements respect abrogated. to vot- Totton v. exception appears lightly denied or with 1972), Murdock, (Mo.banc 482 S.W.2d machines. primaries are constitutional held of each requires the ballots Sec. 120.450 regulation of tions but that the only printed separately and that party be power police is within the elections is to requested the ballot state. delivered him. integrity preservation of the requires that the election 120.450(7) legitimate and process is a the electoral the voter. This the ballot to judge deliver Rockefeller, goal. state Rosario valid con- applicable to elections requirement is 752, 761, L.Ed. U.S. S.Ct. the use of by relators with ducted the United States (1973). 2d 1 In Rosario performance of machines. pri held that a New York Court judges necessitates by election required mary election law that preference making his party political in a election voter to enroll law of election. The known general days his choice 30 before voting in except who are does not those to vote election in November order with the by relators elections conducted subsequent primary election did the next making their from ma'chines use not violate citizen’s First Fourteenth judges of elec- known to the ballot choice free with Amendment association tion. political party choice nor did *6 requirement the contend that Relators requirement an onerous constitute judges the that a voter tell right the to vote. burden on voter’s he contra- primary ballot desires which 1104, Kusper, F.Supp. In Pontikes 345 VIII, 25, I, and Art. Sec. Art. venes Sec. statutory three-judge (N.D.Ill.1972), a 2, Mo.Const.1945,V.A.M.S. federal court held that an statute Illinois 2, VIII, I, 25, and Art. Sec. Art. Sec. required which the election voter primary V.A.M.S., alia, provide, that all inter party prior to declare to vot his affiliation pow- open; that no be free and tions shall right unduly did not the burden voter’s er, any time inter- military, shall at civil or privacy right Kusper or his to vote. prevent free exercise fere to the appealed the case to the United States Su persons suffrage; and that all right of Court, Kusper Pontikes, preme 414 U.S. qualifications possess prescribed who the 51, 303, (1973). L.Ed.2d 260 S.Ct. residence, are not age and who opin The United States Court’s classes, specific disqualified within certain point ion does not deal with the noted at all elections shall be entitled to vote judgment above but does affirm people. which, three-judge part, court in held an other section of the Illinois Election Code a argue requirement that that a Relators upholding the validi unconstitutional while his primary election announce voter at a ty requiring primary of the law voter preference qualification constitutes a party to declare his affiliation. for in the Constitu- contained Assembly conflicts The General has tion therefore Missouri of Missouri and 2, VIII, require I, 25, seen fit to that an election official and Art. with Art. Sec. se- V.A.M.S., primary deliver voter hallot supra. neces- performance the voter. The lects from an election official which lected his ballot sarily requires selection the voter to make requires that voter’s this is judge. preference Re- election official be made known to the election known voting. independent qualification nor has re- not an additional lators cite no cases ap- procedure is deemed any where the Rather it is a that search revealed cases orderly elec- quirement election voter propriate that a to uniform numerous balloting to an tions done at make known his choice of ballots throughout day polling places has been held to constitute on election official require- impermissible right to that a burden on the The court holds state. Rosario, Pontikes, supra, make supra, a election voter ment that vote. noteworthy on this issue because both his choice known to requirement there in order that the cases existed pri- is not an election voter make known the ballot to can deliver all, burden, mary preference in both if a burden election ballot unreasonable requirement held to be does not violate right cases this valid. to vote and VIII, I, 25, or Art. provisions of Art. V.A.M.S., Constitution Relators contend that there no to elec- applicable Missouri longer any require pri exists reason to by relators. tions conducted mary preference voter to state his ballot Assembly repealed because the has General of mandamus petition for writ Relators’ V.A.M.S., 120.470, RSMo is denied. part of Sec. V. A.M.S., permitted primary which MORGAN, DONNELLY, J., particular party
voter’s bal C. vote <and FINCH, JJ., concur. challenged ground lot to be on the HOLMAN political party was not a member sought
whose ballot he unless he vote SEILER, grant J., dissents and would obligated support the nominees himself the writ. party whose sought participate.
that an election official deliver the HENLEY, separate J., dissents dis- may ballot to the been consid opinion senting filed. legislature ered to be a mild inhibi- primary “raiding”, ter to crossover *7 interest, per legitimate
is state Rosa HENLEY, Judge (dissenting). rio, help prevent election or to fraud Pontikes, and the respect, F.Supp. pleadings, As I understand the some other pleadings, made those relators regulation at or to be a that would be issues determined, has and the court orderly spec seek have conducive elections. statutory and possible this re determined constitutional trum of reasons behind However, rights responsibilities persons not quirement wide-ranging. and parties qualified not of de to the action: voters identifying the exact rationale is other cities legisla city Louis and importance in this case. The St. cisive use machines. right has the make laws counties which ture responsibilities (1) are: rights These Those of elections. regulating conduct of this state now whether the legal regulations must be enforced unless statutes quire consti application against offends their announce exercise machines are used people to rights of the
tutional he intends to the election right their vote. and, so, stat- vote; if those (2) ballot he se- whether receive the (a) utes are unconstitutional as contraven- open” right to a “free his Missouri, Respondent, STATE of I, (Art. to vote at 25); (b) § VIII, This 2). (Art. an election § HYSTER, Appellant. Frank brought by qualified action not No. 57491. by anyone in their behalf. This or
voters representa- is an action their Court of of the Board capacity tive as members Division No. 2. Commissioners, not one them Election Jan. 1974. qualified capacity as in their individual voters; by them nor is it a class action are these nec- Nor
members of class. voters, made
essary parties, qualified this, Notwithstanding
parties defendant. has, to, decided their
the court is asked con- responsibilities. I cannot
rights and has, beginning to from
cur action which their
end, blithely ignored them and so
right to be heard. is a up to me points what absence
Their part of relators’ case. in a
fatal weakness upon, attack, has ruled the court
They statute which constitutionality of the pri at a says requires the voter
the court
mary election to announce nonpar or (party type of ballot not disa I do proposes vote.
tisan) he given. has the court
gree with the answer an agree that simply
I do not This, be properly before us.
swered this con raise only parties who
cause relators, do question, the
stitutional since, as issue standing present this Commissioners, con they have no
Election or will been rights that have
stitutional Toliver rel. State ex
directly affected. City of of Education Board 230 S.W.2d
Louis,
[8] (1950); State ex rel. *8 Brown v. Mc al., 103 S.W.
Intosh et (1907).
1081-1082 respectfully dis- reasons, I the above
For rea- other it is these And,
sent. the alterna- issued
sons, I would now place and would first
tive writ granted. improvidently
quash the writ