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continuously until completed; and without the presence of the
recorder and the ballot-boxes, such recount in said contested
elections could not proceed. That he was advised by his counsel
that said circuit court having obtained jurisdiction oyer the
person of petitioner and possession of said ballot-boxes, he was
not subject to the order of any court of co-ordinate jurisdiction
until discharged by said circuit court

Upon this return to its order, the criminal court adjudged
petitioner to be in contempt and issued its writ to the marshal of
Jackson county commanding said officer to arrest and commit
to his custody the petitioner. He was arrested by said marshal,
and is now under arrest and restrained of his liberty. From
this imprisonment he seeks to be discharged by the judgment
of this court.

It is a settled law in this state that one imprisoned for the
Tiolation of an order or judgment in excess of the jurisdiction
of the court rendering it can be discharged by writ of habeas

^^ 1. Did the criminal court of Jackson county haye au-
thority to require the recorder of voters to produce before the
grand jury of that county the ballot-boxes and break the seals
thereon, and permit that body to examine and inspect the ballots
therein? If it had, it must flow from the common-law princi-
ple that all courts have the power to compel the production of
the best evidence within the reach of their process, and it must
logically follow that if the said criminal court may, by its order,
break the seal upon said boxes and remove the veil of secrecy
with which the constitution and laws of this state have invested
the elector^s ballot, then any other court may do the same thing.

As was said by Chief Justice Beatty in Ex parte Brown, 97
Cal. 83: "A judge of the superior court acting in that capacity
[as a committing magistrate] has no authority over the registrar
of voters or the county clerk which is not fully shared by every
police judge and justice of the peace in the state. If he can
•rder a sealed package of ballots to be opened for the purpose of

Digitized by


660 Ex PABTs Abnoldw [Miflsoozi,

obtaining eyidenoe supposed to be material in the pidiimiiaiT
inyeatigation of a criminal chaige, so may any one of than.
There is indeed no middle course between holding that the bal-
lots must be kept as the law • . • • directs th^n to be kept» L e,
sealed^ and in the ezclusiye possession of the registrar or countf
clerk, or that any judicial officer of any grade wkj,
in any judicial proceeding, civil or criminal, take them
out of the possession and control of the officer chained
with their custody, open them, and keep them during such time
and subject to such precautions as he may deem necessaiy for thA
purposes of his inyestigation and the pres^yation of their in-

The constitution of Ifissouri ordains that ''all elections by the
people shall be by ballof There can be no doubt that theee
words, without qualification, were **^ understood, both by the
people and the courts at the time of the adoption of the consti-
tution to mean a secret ballot When the constitution was sub-
mitted for ratification, every state in the Union, with the pos-
sible exception of Kentucky, had adopted that method of Toting
at elections by the people. The expression ''election by ballots*
had been expounded and construed by the yarious courts of last
resort, and, with entire unanimity, they had declared it meant a
secret ballot, and that the essential principle of this maimer of
voting was that the elector might conceal from eveiy person the
name of the candidate for whom he voted, or the character of
his vote upon any question submitted to the electors at an elec-
tion; that the manifest and obvious purpose was to protect the
secrecy of the ballot, in order to guard and protect the voter
against intimidation and secure him entire freedom in the eIe^
cise of the elective franchise and reduce to a Tninimum the in-
centive to bribe the voter: Coolers Constitutional limitations,
6th ed., 760, 762, 763; McCrary on Elections, 3d ed., sec. 4M;
Williams v. Stein, 38 Ind. 89; 10 Am. Rep. 97; Brisbin v. Caean,
26 Minn. 107; People v. Cicott, 16 Mick 283; 97 Aul Dec 141;
Jones V. Qlidewell, 53 Ark. 161.

Under constitutions containing simply the provisions that
"elections shall be by ballot/' the supreme courts of Indiana and
Minnesota held statutes which provided for numbering the bal-
lot unconstitutional: Williams v. Stein, 38 Ind. 89; 10 Am. Bep.
97; Brisbin v. Cleary, 26 Minn. 107.

Section 3, article 8, of the constitution of this state is in ftesi

Digitized by


April, 1895.] Ex PARTS Arnold. 561

''Sec. 3. Elections^ how conducted and contested. — ^AIl eleo«
tions by the people shall be by ballot; every ballot voted shall bi
numbered in the order in which it shall be received, and the num-
ber recorded by the election officers on the list of voters, oppo«
site 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 regulationa
as may be prescribed by law/'

At the time of the adoption of the constitution, a statutory
method of contesting elections had been in force in this state for
many years, and the term "contested elections'* had a well-de-
fined and well-understood meaning, as contradistinguished from
other remedies for determining the title to offices in this state.

This article of the constitution has been twice construed by
this court. In State v. Francis, 88 Mo. 557, the proceeding was
by quo warranto, and it was held by this court that the courts
had no power to open the ballot-boxes in such a proceeding; that
the right to count the ballots was confined to cases of contested
elections, and then only after the legislature had prescribed
safeguards and regulations for the secrecy of the ballots; and that
the state was as much bound by the organic law in this respect
as any other suitor. That case was followed in State v. Board
etc. of Public Schools, 112 Mo. 213, in which the second division
of this court held an election of the school board in St. Louis was
an election by the people, and that a proceeding by said school
board, under its power to judge of the qualification and election
of its members, was not a contested election within the meaning
of the law.

But it is now urged that while, in the opinion of counsel,
those cases were correctly decided upon the facts of each,
so much of each of these decisions as ruled that the ballot-
boxes could only be opened and the ballots examined in a con-
tested election case was obiter, and we are asked again to con-
sider the question *^ upon principle. This we have endeavored
to do, and are firmly convinced that the criminal court had no
power to require the ballot-boxes opened for the inspection of the
grand jury.

The provision as to numbering ballots, of course, removes the
veil of secrecy, to a limited extent, from the ballot in the one case

AM. ST. Rir., Vou XLJX. — 86

Digitized by


662 Ex PARTE Arnold. [Missouri,

•pecified by the constitution, but in no other. Constroed as i
whole^ section 3 of article 8 secures to the voter the right to
Tote without disclosing his choice to anyone, save in the one pro-
ceeding pointed out in the section itself. Without the proYiso,
the prohibition against disclosing the contents of the ballot
would have been absolute in all cases and under all circum-
stances. It is clear, we think, from the whole text of the article
that the convention thoroughly canvassed the propriety of per-
mitting the ballots to be opened and the choice of the voter made
public, and concluded that the protection afforded the elector bj
a secret ballot would be wholly inadequate and misleading, if it
extended no further than the occasion of depositing it in the box.
In the language of Chief Justice Denio, in People v. Pease, 27
N. Y. 81, 84 Am. Dec. 242, "the spirit of the system requires that
the elector should be secured then, and at all times thereafter,
against reproach or animadversion, or any other prejudice, od
account of having voted according to his own unbiased judg-
ment; and that security is made to consist in shutting up within
the privacy of his own mind all knowledge of the manner in
which he has bestowed his suffrage.'*

Not only is this conclusion deduced from the words **electioiK
of the people shall be by ballot,*' which, by universal acceptation
and judicial construction, mean and import a "secret ballot,**
but the use of the proviso that they might, under certain safe-
guards, be again counted and examined in a contested election,
indicate ^^^ most clearly that, in the opinion of the conven-
tion, without this proviso and exception, the ballot-boxes conld
not be opened, even in such a case, and, being limited to this one
case, the canon of construction "expressio unius, exclusio alt^
lius," is peculiarly applicable. That this maxim applies with as
much force in the construction of constitutions as of statutes wa?
pointed out in the dissenting opinion of Sherwood, judge, in
State V. Seibert, 123 Mo. 434, and the authorities by him there

Judge Cooley, in his Constitutional Limitations, says: ''We
are not, therefore, to expect to find in a constitution provision?
which the people, in adopting it, have not regarded as of high im-
portance, and worthy to be embraced in an instrument which
for a time, at least, is to control alike the froverment and the
governed, and to form a standard by which is to be measured the
power which onn he cxorrised ns well bv the drlcfirate as bv the
sovereign people themselves. If directions are given respecting

Digitized by


April, 1895.] Ex parte Arnold. 668

the times or modes of proceeding in which a power should be
exercised, there is at least a strong presumption that the people
designed it should be exercised in that time and mode only; and
we impute to the people a want of due appreciation of the pur-
pose and proper province of such an instrument, when we infer
that such directions are given to any other end. Especially
when, as has been already said, it is but fair to presume that the
people in their constitution have expressed themselves in careful
and measured terms, corresponding with the immense import-
ance of the power delegated, and with a view to leave as little as
possible to implication^': Cooley's Constitutional limitations,
6th ed., 78, 79, 93, 94; Commonwealth v. Williams, 79 Ky. 42;
42 Am. Eep. 204; Page v. Allen, 58 Pa. St 338; 98 Am. Dec
272; People v. Draper, 15 N. Y. 632.

^^ The idea and purpose of maintaining the secrecy of the
ballot in elections by the people is sharply accentuated, and, in-
deed, demonstrated, by another section of the constitution in the
same article, to wit, section 6, which declares that **all elections
by persons in a representative capacity shall be viva voce.*'

While election officers are permitted to testify as to the indi-
vidual ballot of any voter in a judicial proceeding, the secrecy of
the ballot itself is protected, save in the one proceeding named
in the constitution. Nor is it diMcult to assign a reason for this
discrimination. Bearing in mind the policy of the people in
adopting the system, the convention might well determine, as it
did, that the courts should hear the evidence of the election offi-
cer, limited by appropriate rules of evidence, but it was evident
that, if once the ballot-box was invaded by one court, then, upon
the flimsiest pretexts, these boxes could be opened in all cases,
and in all courts, and their secrets spread before the curious pub-
lic, and the whole scheme of a secret ballot would become utterly
discredited. The convention and the people understood all this
at the time, and they must have considered that, while it was
possible to commit frauds in elections, the legislature, by wise
and stringent election laws, could prevent or greatly mitigate
these wrongs, but, at all events, the mischiefs Jo ensue
from fraudulent voting were not thought sufficient to outweigh
the benefit of a secret ballot, and hence the constitution was
written as it is.

The considerations which induced the states of this Union to
adopt the secret ballot not only continue to exist, but others have
been added. The timid voter to-day is not only protected from

Digitized by


664 Ex PARTS A|tNOLD. [Missouri,

his opnlenl employer but from the aggressive spirit of his own
fellows and the domination of brotherhoods and sodeties. It is
a most significant fact that in the reports of adjudicated ^^
cases in the courts of last resort of this country no case has been,
nor can be^ found where the courts have asserted the power to
open a ballot-box and use the ballots as evidence^ save in con-
tested elections.

The legislature of this state, in 1883, passed an act providing
for counting ballots in contested elections: Laws 1883, p. 91.
By that enactment the policy of preserving the secrecy of the
ballot is made manifest. The act provides that the county clerk
shall exclude all persons from his office, except the contestant
and contestee and their respective attorneys, and these are re-
quired to be sworn not to disclose any fact discovered from such
ballots, except such as may be contained in the clerk's certificate.
After the parties have examined the ballots, the clerk is required
to make a certificate, under his hand and seal, of all the facts,
which either of said parties may require, which may appear from
the ballot affecting or relating to the election for the office in
contest. By the next section the clerk is then required to again
securely seal up the ballots as they were, and preserve and destroy
them as provided by law in the same manner as if they had never
been opened: Acts 1883, p. 91; Hev. Stats. 1889, sees. 4725,
4726. The certificate of the clerk made under the provisions
of this act 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.

It is clearly apparent that the legislature, by the foregoing
provisions, scrupulously provided against the production of the
ballots themselves in evidence, and substituted secondary evi-
dence of their contents in lieu thereof. This act of 1883 nega-
tives any presumption that the ballots were to be subject to the
command of any court, or to be used as primary evidence therein,
by the express provision that the certificate of the clerk *^^
should be prima facie evidence of the facts, and limiting the re-
buttal to those witnesses who had been permitted to be present
at the recount.

But this is not all. If the policy of the law had favored or
permitted the production of these ballots as evidence, most cer-
tainly it would be contrary to every principle of justice to re-
quire e^-idence deemed opsential to a recovery in any action to be
destroyed without reference to the pendency of the action or

Digitized by


April, 1896.] Ez PARTE Arnold. 665

{he rights of the parties; and yet the act of 1883 requires the
county derk or recorder of voters to destroy the ballots at the end
of a year from the election. On no other principle can the de-
struction of the baUots be justified than that they were pre-
served in the first instance for the sole purpose of permitting the
result of the canvass to be verified or disproved^ and that one
year would be accorded for that purpose^ and after that they
should be destroyed. Surely the law cannot be so inconsistent
with itself as to authorize a judicial inquiry upon a particular
subject^ and^ at the same time, industriously provide for the con*
cealment of material evidence which would establish the fact
sought after.

But it is asked how can this conclusion be reconciled with the
laws enacted to punish fraud by judges and clerks of election,
as provided by section 3748 of the Bevised Statutes of 1889, and
with the general powers of a grand jury? We answer that it ia
upon precisely the same principle which prevents the disclosure
of confidential and privileged communications. There are
doubtless many instances in which the evidence of a husband
would convict the wife, or the wife's would settle the guilt of her
husband, and yet the law, in its wisdom, seals his or her mouth.
Likewise the testimony of attorney, priest, or physician might
establish beyond all doubt the guilt of the client, penitent, or
patient in a given case, and yet it is excluded. These exceptions
are based upon *•* the peace of society, but, in the estimation of
the people of Missouri, good government itself is dependent upon
the absolute inviolability of the ballot, except in a '^contested
election,'' and then only under such safeguards as would insure
both the secrecy of the baUot and absolute verification of the
election as held by the people. These two considerations gov-
erned the convention in framing, and the people in adopting, the

Confirmatory of our construction, that the ballots are pre-
served solely for evidence in contested elections, it is to be ob-
served that election contests are intended to be summary, and
hence a year was deemed ample time within which a recount
should be made.

Now, it is universally agreed that the admission of the ballots
in evidence depends upon the primary proof that they have re-
mained in the same condition in which they were cast; that they
have remained in the custody of the officer charged with their
keeping, and that no opportunity has been afforded whereby they

Digitized by


566 Ex PABTB Arnold. [MisBourli

might have been changed or tampered with: McCrary on Eleo-
tions^ 2d ed., sec. 277; Coglan y. Beard^ 67 CaL 303; Ex parte
Brown, 97 Cal..83. As well stated by the petitioner in his re-
turn to the court, if the ballot-boxes may be opened and the
ballots themselves handled and examined by twelve grand jurors,
the prima facie case for the parties to the contested election is
destroyed, or at least rendered exceedingly difficult to establish;
and we may add that if one grand jury may demand the ballots,
all grand juries, and all examining magistrates, and all courts^
may do so and thus the evident and sole purpose of preserving
the ballots be entirely frustrated. So long as the recorder of
voters or county clerk permits no one but the contesting can-
•didates to inspect the boxes under the safeguards of the law,
they have every assurance and presumption that they have not
*^® been tampered with; but if they must, under this sweeping
order, be turned over to a grand jury, for twelve men to handle
•and scan, great difficulty must result in making even the prelim*
inary proof necessary to admit them in the further steps of the

' There is another consideration mentioned by the supreme
(court of Michigan which deserves noting. Says Judge Camp-
bell, in People v. Cicott, 16 Mich. 302, 97 Am. Dec. 141: 'TSThen
we consider that for very many years legislation has been often
modified for the very purpose of suppressing illegal voting, and
when we know that hundreds of elections must have been turned
by the ballots of unqualified voters, the absence of any body of
decisions upon the subject is very strong proof that inquiry into
private ballots is felt to be a violation of the constitutional
safeguard on which we pride ourselves, as distinguishing our
-elections from those which we are wont to regard as conducted
•on unsafe principles."

Again, it is perfectly evident that the county clerks and re-
corders of voters cannot comply with the law, if they can be
compelled by the courts to permit these boxes to be opened by
any and every court that may demand them, and, on the other
hand, if the grand jury or a committing magistrate may take
charge of the ballot-boxes and discover how each elector votes,
and the judges or clerks are indicted but not tried before the
expiration of the year, must the clerk or recorder of voters
again violate the law and refuse to destroy the ballots, or, if he
does destroy them in obedience to the statute, will he be in con-
tempt of the court?

Digitized by VnOOQ IC

April, 189&] Ex pabte Arnold. 667

The conclusion, it seems to ns, is inevitable that, however
necessary it is to punish crime, the courts must be careful that
they do not override the organic and statute laws of the state.

^^ The case of Lee v. Birrell, 3 Camp. 337, is cited to show
that there is an implied exception of the evidence to be given in
a court of justice where a witness had taken an oath of secrecy.
The meager report of that case does not disclose that the oath of
secrecy was even lawf uL If it was a mere voluntary oath not to
disclose a matter not otherwise privileged as it would seem to
have been, then no doubt Lord Ellenborough expressed the cor-
rect rule. But here the official oath of the recorder of voters is
in harmony with the organic and statute law.

We are cited to the decision in Ex parte Brown, 72 Mo. 83, 87
Am. Bep. 426, in which the agent of a telegraph company was
subpoenaed to produce certain private dispatches, and it was held
they were not privileged communications, but the reasoning of
that case only strengthens the view that, where the paper sought
is not only privileged but that privilege the result of the en-
lightened opinion of the people as expressed in their funda-
mental laws, it will be sustained.

There is no question of the cogency of the argument which
urges the importance of punishing election officers for making
false returns. We recognize its full force, and yet we are not
prepared to agree that, because now and then an official violates
his oath of office and escapes punishment through some techni-
cal rule of evidence, our system of government is a failure. We
deem it far more essential to maintain the integrity of the consti«
tution than to punish any one man or set of men. If a criminal
cannot be punished, save by the infringement of the constitution,
then he should go acquit, and the people can amend their con«
stitution and laws, if they see fit.

The tyranny of giant corporations and concentrated wealth on
the one hand, and the combinations of laborers and workmen
upon the other, to say nothing of the ^'^ influence of parties,
make it exceedingly difficult for any, save a bold and courageous
man, to vote an open ticket, and the courts should be exceedingly
careful, therefore, in discrediting the secret ballot. The people,
through their representatives, can prescribe more drastic reme-
dies for wrongs that experience has demonstrated will occur
under any system of laws, but the remedy is not in courts disre-
garding the constitution, and laws made to perpetuate it.

Accordingly, we hold that the petitioner P^o^fe^^^&84il?

668 Ex PARTS Abnolou [Hufloori,

open fhe ballot-boxes, and the order of the criminal court was in
excess of its jurisdiction, and the petitioner is discharged from
further custody of the marshaL

Macfarlane, Burgess and Sherwood, JJ., concur.

Barclay, J., concurs in discharging petitioner for reasons stated
in his separate opinion.

Brace, C. J., and Bobinson, J., dissent

BABCLAY, J., concurring. The record in this case shows
that before the order was made by the criminal court for pro
duction of ballots cast at the last NoTcmber election, the recorder
of voters, under direction of the circuit court, had .entered upon
an examination or recount of the same ballots, and that that ex-
amination was not finished. Such examination is authorized by
the constitution and laws of this state, in election contests:
CJonst 1876, art 8, sec. 3; Bev. Stats. 1889, sees. 4721-4723:
State T. Slover (1895), 126 Mo. 652. While such an examina-
tion is in progress, under the order of a competent court, it seemi
to me that the recorder of voters should not be compelled to im-
mediately produced before some other court the ballots required
io complete that examination.

There is no suggestion that the examination in the contested
election case has been unreasonably prolonged. Nor is there an I
intimation of any abuse of the *^* circuit court's order to avoid I
compliance with the order of the criminal court. There is noth- j

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 65 of 121)