State Ex Rel. Barrett v. Sartorius , 351 Mo. 1237 ( 1943 )

I concur in the result. The cause is submitted by respondent's return solely on the legal theory that the phrase "convicted of a felony" appearing in Sec. 2, Art. VIII of the Constitution, and Sec. 11469¹, refers only to convictions in Missouri courts of felonies under the laws of Missouri and committed inMissouri. Respondent's ruling below was, that since voter Owens had not been convicted in a Missouri court, but in the Federal court, of a felony (evading payment of income tax) under the laws of the United States, not the State of Missouri, therefore the Board of Election Commissioners had no power under Sec. 11469, supra, to strike his name from the registry of qualified voters. The principal opinion holds against that restrictive contention, and to that general ruling I agree. But I do not agree to the sweeping conclusion that the constitutional provision and statute, supra, refer to any felony under the laws of any other jurisdiction, regardless of whether the same act would be a felony or any crime at all, if committed in Missouri. As a matter of fact, evasion of payment of state income tax in Missouri is only a misdemeanor. Secs. 11371, 11372.

Respondent has cited considerable authority which seemingly supports his narrower view.² But many of these cases deal with disqualification to hold office, or for jury service, or as a witness, because of prior conviction of a felony in another jurisdiction. These may be distinguishable; at least let that be conceded. And let it be further conceded, as the principal opinion holds, that the purpose of a statutory disqualification to vote because of a prior conviction of a felony, is imposed to safeguard the purity of elections and to fix minimum moral standards for voters. But granting that, is it not this State which prescribes the moral qualifications ofits voters, and not one of the forty-seven other States, or the Federal Government? Have we by the constitutional and statutory provisions aforesaid turned over to those other jurisdictions the power to impose conditions of disfranchisement upon our voters, or put it in the hands of the governor of some other state to reinstate them by a pardon for a crime committed there?

Answering respondent's restrictive contention, the relator members of the Election Board in their reply brief very pertinently inquire whether it can be said "with any semblance of reason or logic, that (the people) intended that one guilty of a ``Missouri felony' should be disqualified, but that one guilty of an equally reprehensible act under the laws of another jurisdiction should remain qualified?" Another case, Crampton v. O'Mara, 193 Ind. 551, 557(5), 139 N.E. 360, 362(4) declares such a course would be "anomalous, illogical, and unjust." But turn that proposition around and look at the converse of it. Would it not be equally unjust and discriminatory to deny a citizen of this state the right to vote because he had previously been convicted of an unpardoned crime in another state, which that state had denominated a felony, while at the same time other citizens of Missouri were doing the same thing every day in our very presence, and yet voting without hindrance because the act is only a misdemeanor, or not a criminal offense at all, in Missouri?

True, it could be said of the disfranchised voter that he had violated the law of the foreign state where he was when he committed the act, but it seems to me if the purpose of the disqualification is to fix the moral standards of voters, then this state and no other is the one to say what those standards shall be. The principal opinion quotes an excerpt from the Langer case, supra, decided in North Dakota, which says it makes no difference in the application of the rule that moral views may differ in the several jurisdictions and that an act may be treated as a serious offense in one and not in another. But this would result in disqualification of a voter for violation of the blue laws of any other states that still have them; and even of the penal laws of foreign countries which are wholly unknown here — if our statute includes those jurisdictions. And it would further result that a voter could be disfranchised [792] who is morally blameless according to our own standards; or, on the other hand, that he could evade payment of his Missouri income tax with impunity, whereas he would be denied the right to vote if he evades payment of his Federal income tax. In other words, to secure equal treatment for all voters our laws would have to parallel the Federal laws.

The Langer case further says it would be "unthinkable" to affirm that one who had committed treason, murder or robbery in North Dakota and been convicted of the crime in the Federal Court, should not be disqualified as a voter in that state. This is quite true, of course, if those crimes are felonies in North Dakota, as we assume they are. But the fact that the crime had been committed in a federal jurisdiction overlapping the state, otherwise would not make it an offense against the state of North Dakota anymore than if it had been committed in a wholly different state. The court systems, laws and rights of franchise of the two jurisdictions would be wholly different and separate.

The Langer case evidently was decided under some political stress. The proceeding there was in quo warranto (not by impeachment) to oust the respondent from the office of governor of North Dakota, because he had during his tenure been convicted of a felonious conspiracy to defraud the United States by corruptly administering the Emergency Relief Acts of Congress. The offense would have been only a misdemeanor under the state law. The theory of the action was that by conviction of the federal felony the respondent there became disqualified to serve as governor, since the constitution of the state required him to be a qualified elector and he had lost the right to vote. The decision ousted him, but he was reelected governor two years later and is now the United States senator from that state. There was a strong dissenting opinion, and the case has been ably reviewed in 2 University of Chicago Law Review, supra, loc. cit. 334, where it is said (italics ours): "The court might well have required the conviction to be for a felony within the state, orat least for an act which is considered a felony by local law."

The italicized part of the above quotation states the true rule which should apply here, in my opinion. If, as the relators and the above cases reason, it is unthinkable that a person convicted of a Missouri felony in Missouri should be disqualified, whereas one guilty of an equally reprehensible act under the laws of another state is not disqualified, that is simply another way of saying in reverse that the outstate felony ought to be of the same kind and nature as the Missouri felony. And we apply that rule even as to common criminals in our habitual criminal statute, Sec. 4855. It reaches not only to the other states of this Union but to foreign countries. If the second offender has previously been convicted in those outside jurisdictions (italics ours), "of an offense which, if committed in this state, would be punishable" as a felony then the maximum punishment can be assessed, but not otherwise. Such a criminal cannot be subjected to the aggravated punishment merely because he has committed a (any) felony in another jurisdiction. It seems to me the constitutional provision and statute, supra, can hardly be construed to intend harsher treatment to a voter than to a second offending felon.

I respectfully submit that the proper construction of Section 2, Article 8 of the Constitution and Section 11469 is that the voter to be disqualified must have been convicted of a felony in this state or of a felony in another jurisdiction which would also be a felony if it had been committed in Missouri. No such situation exists in the instant case. This conclusion, if adopted, cannot help the voter here because the issue was not raised by the parties either here or below. But the question ought to be decided, or at least not ruled the other way, because of the effect it may have on the voter's future rights and course. Leedy and Clark, JJ., concur.

¹ All references to our Statutes are to the Revision of 1939 and same section numbers in Mo. R.S.A., unless otherwise noted.

² Univ. Chicago Law Review, p. 333 et seq.; Wigmore on Evid. (3 Ed.), sec. 522, p. 615; Jones Commentaries on Evid. (2 Ed.) Rev., 1926), sec. 2098, p. 3834; State ex rel. Olson v. Langer,65 N.D. 68, 101, 109-110, 256 N.W. 377, 392, 395-6; State ex rel. Mitchell v. McDonald, 164 Miss. 405, 145 So. 508, 86 A.L.R. 290, 297; U.S. v. Barnabo (U.S.C. Ct.), 14 Blatchford, 74, 79.