85 Mo. 620 | Mo. | 1885
Lead Opinion
This case is before us on the appeal of defendant from the judgment of the circuit court of the city of St. Louis, awarding a peremptory writ of mandamus directing defendant to allow relator to inspect the registration lists, poll books, and lists used at an election held in said city on the seventh day of April, 1885, and on file in the office of the defendant as recorder of voters. At said election, relator was a candidate for the office of city marshal, and one Martin Neiser was also a candidate for the same office and received a certificate of election.
Relator in substance avers that he received a majority of the votes cast at said election, and was in fact duly elected, and intends to contest the election with a view to establish his right to the said office, and that for the purpose of enabling him to prepare his notice of contest, and state the grounds upon which it is based, he demanded of defendant that he and his attorneys be permitted to inspect the registration list and poll books' used at said election, which defendant refused. Upon such refusal this proceeding by mandamus to compel de-' fendant to allow such inspection was instituted, awarding a peremptory writ. While it was conceded by counsel in the argument before the court, that as a rule records required to be kept in the office of a public officer are public records and open to inspection under the supervision of the officer; - and while it was admitted
We think the statute is susceptible of a more rea- ■ sonable solution than the one contended for. It is this; inasmuch as the paper to be signed by the voters at • the poll who elect a judge to fill the place of one appointed who fails or refuses to serve, does not emanate rfrom any officer known to the election law, but from
By the act of 1883, there is only one thing on which the seal of secrecy is stamped, and that is the ballot cast by the voter, and to this the. judges and clerks of the election are forbidden, under penalty, from disclosing how any voter voted, and the ballots when counted are securely sealed in the ballot boxes, returned to the recorder, and are not to be inspected by him or anybody else, until the seal is broken in case of contested election, or when it becomes necessary to use them in evidence, and only then on the order of a proper court. It is also argued that it is against the policy of the law and destructive to the secrecy of the ballot to allow the poE books to be inspected.
It is also contended that the peremptory writ should be refused on the ground that under the constitution and laws of the state, no provision is made for contesting an election of a city officer. This question we will not anticix ate, but sa.y of it, as was said by Judge Thayer in a clear and conclusive opinion filed by counsel as part of
Judgment affirmed.
Concurrence Opinion
Cohourrihg.—I have no doubt that the relator is entitled to the relief he seeks, whether as a citizen or whether as a contestant. For the latter purpose he states, such facts as entitle him to a standing in court, and to the enforcement of the specific right to which he lays claim. For the former purpose the simple allegation that petitioner is a citizen, without more, is the sesame which unlocks the gate of mandatory Authority whenever an officer, whose functions are merely ministerial, refuses to perform his office and thereby causes detriment to the public interest.’ On this point an accepted authority says : “Where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator at whose instigation the proceedings are .instituted, need not show ■that he has any legal or special interest in the result, it being sufficient to show .that he is a citizen and as such interested in the execution of the laws.” And after citing numerous authorities in support of the position, the author adverts to the views to the contrary taken in some 'of the states, and then observes : “However satisfactory the reasoning of the courts in the states here referred to
The cases cited to uphold the doctrine just announced yield it the most abundant support and leave no doubt of the stable basis op which it rests. A recent case, that of Ferry v. Williams, 41 N. J. Law, 332, adds to the weight of judicial decision. In that case a citizen of Orange being desirous to know whether the charter provisions of that town had been observed in respect to licensing saloons, requested of the collector an inspection of the letters on which the licenses had been granted. This request being denied by the collector and the common council, on appeal to them, backing him therein, the citizen thereupon applied to the Supreme Court of the
And the remark of Lord Denman in Rex v. Justices, etc., 6 A. & E. 84, is there approvingly quoted, that: ‘£ The court is by no means disposed to narrow its authority to enforce by mandamus the production of every document of a public nature in which any citizen can prove himself to be interested. For such persons, indeed, every officer appointed by law to keep records, ought to deem himself for that purpose a trustee.” The case cited from New Jersey is well nigh decisive of the one at bar on both these points: First. The right of citizenship alone conferring the right of relatorship in cases of this sort. Second. That the poll books are public records and open as such to every citizen’s inspection. That the first point is settled by the authorities quoted is abundantly clear. This being true, the second, though not expressly ruled, would seem logically to follow; for surely a poll book or things of that nature ought to occupy fully as high a documentary plane as do letters on which a saloon license is granted. To my mind, however, the
And it may be further observed, that though, undoubtedly, a contestant or citizen in the circumstances of this case, might have his action on the bond of an officer who gives bond, or his ordinary action against the recorder of voters, yet this does not by any means supersede or preclude resort to mandamus; for the reason, and the test in such cases is that mandamus is the only remedy which will secure to the party complaining, the specific relief to which, as already announced, he is clearly entitled. High Extr. Leg. Rem., sec. 82, and cases cited. For these reasons the judgment should, in my opinion, be affirmed. I have deemed it best in this, separate opinion to place the right of relator to a peremptory writ on the right of citizenship as well as on that of being a contestant; for if his right to inspection of the poll books, etc., is made to turn alone on his claim • as a contestant, as I understand the majority opinion to» go, and there should be no form in which contestant can try his right in that respect, as is expressly alleged in the return, it is quite too obvious for discussion that a peremptory writ would be fruitless, and should, therefore, be denied.