In Re Oppenstein

Petitioners constitute the Board of Election Commissioners of Kansas City. They have sued out a writ of habeas corpus to obtain their release from custody upon a commitment for contempt because of their refusal to obey a subpoena duces tecum which commanded them to produce in the Criminal Court of Jackson County the original ballots, poll books, register and certificate of the result of the election in the Fifth Precinct of the Second Ward of Kansas City, used, made and certified in that precinct at the municipal election in April, 1920.

The question presented by counsel is whether the Constitution of the State permits the ballots in question to be used in evidence in the manner in which it is attempted to use them in this case. An agreed statement of facts upon one phase of the case is referred to, as for as necessary, in the opinion.

I. In the cases of this kind it is usual for the argument to be made that unless this court holds that ballots,Constitution: etc., may be freely used in evidence, frauds mayObstacle to go unproved and election crooks go unpunished.Criminal This case is no exception to the rule. In hisProsecution. brief counsel says:

"We believe the time has come when this court should fearlessly announce that nothing shall be permitted to stand in the way of the prosecution of a crime against the ballot-box. Unless we have honest elections, then government by the people is a farce, and it seems trite to say that no rights of an individual elector should be considered when the rights of the whole people are assailed by false ballots or by false count and returns on the part of election officials."

The question the parties present in this case is whether the Constitution of the State permits the use in evidence of the ballots, and the like, used in an election to which the Constitution applies. Counsel does not deny, nor could it be denied, that the people have power, by constitutional provision, to prohibit their use in the manner in which counsel seeks to use them. Of course, if the people have not prohibited such use, the quoted argument has little application to the question in this case. It is, therefore, clear that what the argument in fact invites this court to do is that, if it shall find the Constitution does prohibit such use, it shall "fearlessly announce" that it will not "support the Constitution of the State" (Sec. 6, Art. XIV, Mo. Constitution) in so far as concerns Section 3 of Article VIII of that instrument. That counsel really intends that the court shall yield to this argument is beyond belief. It was doubt less but a slip of the pen which was, perhaps, induced by previous slips of other pens in like cases.

The question in this case is not what the people ought to have put into the Constitution. The question is, what does the provision mean which they did put into the Constitution;

II. When the Constitutional Convention came to the business of drafting the article on Suffrage and Elections, and the people came to the business of adopting the article the Convention had drafted, then the question of policy was forGovernmental consideration, and then the arguments, pro andPolicy: Power con, were made and heard. The Convention proposedof Courts. the adoption of the policy provided in Section 3 of Article VIII and the people adopted that policy when they adopted the Constitution the Convention had drafted. Good or bad, for better or for worse, it was written into the Constitution and this court has no power to change it. The court may decide what policy was adopted, but it may not displace the policy adopted and substitute one which it or counsel may deem to be better. It may not amend the Constitution. It must apply it as the people wrote it.

III. The history of the adoption of the ballot as a method of voting has often been written. Constant repetition of argument based upon the assumption that there can be no consideration of sound policy which could support a provision for an absolutely secret ballot, will excuse some reference to theSecret conditions and arguments which confronted theBallot. Constitutional Convention and the people on this head. The method of voting vira coce once prevailed in this State and elsewhere. The literature of the times, both legal and other, demonstrates that this method had resulted in coercion, corruption and intimidation, and was attended by rioting, violence and disorder. The bribe-giver had certain means of determining whether the votes he bought were cast as agreed. Employers, creditors, landlords, organizations of all kinds, could and did require employees, debtors, tenants, members and others, to vote as directed or suffer such punishment or inconvenience as the circumstances permitted. These were conditions and not theories. Discussions of them and references to literature on the subject can be found in the "Australian Ballot System," by Wigmore, published in 1889. Statesmen became much concerned. The system of election by ballot was designed to cure these evils. The heart of the system was secrecy. There was opposition to it. The arguments made now were made then — and others as well. The new system was rapidly adopted. At the time the Convention of 1875 was held, these arguments had been developed and amplified, pro and con. The fragments of the debates in the Convention which are still available show they were considered in that body. With these arguments before it, the Convention adopted Section 3 of Article VIII.

At that time it was already settled beyond doubt that election by ballot meant an election by secret voting. There is practically no difference of opinion as to that. The history of the origin of the system precludes any other view. Counsel does not deny this. Many of the decisions are collated in 6 C.J. pp. 1173, 1174, and 9 R.C.L. secs. 64, 65, pp. 1047, 1048. Among these are found decisions of this State which, many years ago, construed the words "election by ballot" in entire harmony with the construction almost universally given them elsewhere.

The text-books have always announced the same doctrine Judge Cooley, whose great ability is universally esteemed, expressed himself thus:

"The system of ballot voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases, and that no one is to have the right, or be in a position to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in the case of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentaly, or by trick or artifice have acquired knowledge on the subject, should not be allowed to testify to such knowledge, or to give any information in the courts on the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it. His ballot is absolutely privileged, and to allow evidence of its contents when he has not waived the privilege, is to encourage trickery and fraud, and would in effect establish this remarkable anomaly, that, while the law, from motives of public policy, establishes the secret ballot with a view to conceal the elector's actions, it at the same time encourages a system of espionage, by means of which the veil of secrecy may be penetrated and the voter's action disclosed to the public." [Cooley on Constitutional Limitations (17 Ed.) pp. 912, 913.]

Numerous decisions support this text. This language is quoted and approved in McCrary on Elections (4 Ed.) secs. 488, 489.

In People v. Cicott, 16 Mich. l.c. 312, CHRISTIANCY, J., with whom COOLEY, C.J., and GRAVES, J., concurred, said:

"The object of this requirement (that all votes `be given by ballot'), when considered with reference to the history of our country and the whole theory of popular governments, is too plain to be misunderstood. It was to secure the entire independence of the electors, to enable them to vote according to their own individual convictions of right and duty, without fear of giving offense or exciting the hostility of others. And with this view the right is secured to every voter of concealing from all others, or from such of them as he may choose, the nature of his vote, or for what person or party he may have voted. This important object, vital as I think it is in our system of government, would be substantially defeated if the voter could be compelled to disclose even in a court of justice, how he has voted. The Constitution and our statutes which have followed out its spirit, have thrown over the voter an impenetrable shield, under which he may keep the secret of his vote until he shall see fit to disclose it. . . . How an elector may have voted is, under the Constitution and the law, a fact which no man has a right to learn, in this or any other manner, till the elector himself may choose to make it public."

The proposition, then, that a simple provision that "election shall be by ballot" introduces absolute secrecy, is established by the decisions of the courts, the view of the text-writers, the history of the origin of voting by ballot and the nature of the evils it was intended to remedy, and is not questioned by counsel for respondent, as we understand him. Further, as this court long ago pointed out, the people who adopted our Constitution and who have the power to amend or revise it, or adopt another in its stead, have not by any of these methods indicated dissatisfaction with Section 3 of Article VIII, as construed by this and *like provisions) practically all other courts of the country.

IV. These principles were before the Convention and the people when the Constitution of 1875 was adopted. It is therefore apparent that the question of policy was not a one-sided one as the argument of counsel in this case seems to assume. It was between policies that the Convention and the peopleOne-Sided were called upon to choose. They did choose and theirPolicy. choice is expressed in Section 3 of Article VIII. When the meaning of that section is determined, this case is decided.

V. The first clause in Section 3 of Article VIII is that "all elections by the people shall be by ballot." As already pointed out, these words, at the time they were written into our Constitution, had a definite and settled meaning. If they stood alone and unqualified, there could be no questionModification. about their meaning, and petitioners' position would have to be sustained without further ado. It is also true that the meaning of the quoted words cannot be held to be modified or affected by anything outside of the Constitution. The Constitution cannot be changed by the Legislature or the courts or any other than the people who adopted it. It is useless labor, therefore, to look elsewhere than in the Constitution for the modifications of the quoted clause which, respondent's counsel contends, so qualify it as to justify the restraint of petitioners.

(1) It is urged, since the Constitution requires the ballots to be numbered, that the ballot it prescribes is no longer a secret ballot, and, therefore, the ballot of any and all voters may be examined at will. Cases are cited. These are decisionsNumbering from states in which the constitutional provisionsBallots. in force merely provided that "elections shall be by ballot" or "by secret ballot," and in which the Legislature attempted to require that the ballots be numbered so that the ballot of any voter might be identified. [Williams v. Stein, 38 Ind. l.c. 91; Brisbin v. Cleary, 26 Minn. 107; Ritchie v. Richards, 14 Utah, 373 et seq.] These decisions are that elections by ballot necessarily mean elections by secret ballot, and that the Legislature may not provide a means whereby the secrecy secured by the Constitution may be invaded; and that numbering and listing the ballots may not constitutionally be required under such provision. These decisions do not support the contention counsel makes. As heretofore pointed out by this court, the provision in Section 3 of Article VIII, that ballots must be numbered, "of course removes the veil of secrecy to some extent" but in no wise destroys it entirely. [Ex parte Arnold,128 Mo. 256.] The provision for numbering has its uses in election contests as the section expressly provides. The mere numbering of the ballots does not, of itself, in fact uncover the ballot of any voter; nor does that provision authorize anyElection action by any one which would, of itself, disclose theContests. character of any ballot. Except in cases of contested elections, no permission is given to compare the ballots with the list of voters. The fact that such permission is expressly given in election contests is certainly not any reason for saying that such a comparison may be made in proceedings which are not election contests. This exception in Section 3 in no way aids respondent.

(2) Section 3 of Article VIII permits election officers to testify in judicial proceedings, concerning the way in which a voter voted. It has been suggested that it is absurd to think that the Constitution would permit secondaryElection evidence and exclude the primary evidence, theOfficers: ballots. The question is not the wisdom orPermission consistency of what was done. The question is, whatto Testify. was done? It is clear that the permissions to testify has nothing to do with the use of the ballots in evidence. It is merely an exception to the provision that election officers shall not disclose how any voter voted. The exception permits them to testify and permits that only. When due consideration is given what was before the convention, the idea that this provision is absurd does not seem to be established as correct.

(3) It is contended that the proviso 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," in some wayProviso aids the argument that the ballots may be put inConcerning evidence in proceedings other than contestedContests. elections. This finally resolves itself into an argument that the quoted proviso does not limit the use of the ballots to cases of contested elections. Even if true, this could not aid respondent. The question is not whether this proviso itself limits the use of the ballots to contested election cases. Rather, it is whether the proviso extends the use of the ballots to proceedings other than contested elections. The limitation is found in other words of the section. It is too clear for argument that the proviso has no pertinence to any proceeding except cases of election contests. Upon this question People v. Londoner, 13 Colo. 303, is cited. That decision is chiefly concerned with the question whether quo warranto could be employed to determine who had been elected to office. It was held the proceeding was authorized. With the greatest respect for the learned court which rendered that decision, we find our own decisions out of harmony with its principal ruling in the Londoner case, and in harmony with the weight of authority elsewhere. [State ex rel. v. Francis, 88 Mo. 557. See note to State v. Ross, 245 Mo. 36, in Annotated Cases 1913E, p. 982 et seq.] In the portion of the decision upon which respondent relies, it is held that:

"The declaration in Section 8, Article 7, of the Constitution, that the ballots may be examined in contested elections, does not limit their examination to such proceedings. The right mentioned has always been freely exercised in quo warranto, which is the common law method of inquiring into election frauds. And the purpose of this provision was to give, in the election contests authorized by Section 12 of the same article already considered, the privilege of inspecting ballots; not to withdraw it from the proceeding in which theretofore it had been universally exercised. The leading object of Section 8 was to preserve the purity of the ballot by insuring its secrecy; but lest the language indicating this intent should be carried too far, and become the means of perpetrating fraud, the privilege in question was carefully extended to election contests in which, perhaps, it might otherwise have been challenged."

It is apparent that the court was deciding the question whether the provision for comparing the ballots with the lists of voters in contested election cases, itself prevented such comparison in other cases. That it does not do so is clear enough, as we have already pointed out. That is not the question here. In this case the question is whether the proviso with respect to contested elections authorizes the use of the ballots in proceedings other than contested elections. The learned court which decided the Londoner Case did not approach the question from that angle. Counsel seem to have assumed that the proviso respecting contested elections in Colorado was the sole restriction which could be relied upon to prevent the use of the ballots in quowarranto proceedings. That contention the court answered, but that answer is not relevant to the question before us. Again, though the provisos respecting contested elections in Section 3 of Article VIII and in Section 8 of Article VII of the Constitution of Colorado, do not of themselves expressly and in terms prohibit the use of the ballots in other proceedings, yet the very fact that special provision was deemed necessary in the case of contested elections makes applicable the well known cannon of construction "expressiounius, exclusio alterius." [Ex parte Arnold, 128 Mo. l.c. 263, 264.] The effect of this rule is not discussed in the Londoner Case. This makes it still more apparent that the court was not called on by the briefs to consider a contention like that made here.

VI. It is argued that the decision in Gantt v. Brown,238 Mo. 560, authorizes the use of the ballots, poll books, etc., in the trial of a criminal case. It is obvious that this is not a correct construction of that decision. No such question was before this court in that case. It is a poor complimentGantt v. to our brethren then upon this bench to attribute toBrown. them an effort to decide a question in no wise presented by the record before them. That case dealt with an election contest and considered the meaning of the proviso to Section 3 of Article VIII of the Constitution, which proviso expressly provides that in "all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards as may be prescribed by law." That the question in that case has no analogy to that presented by this record, is beyond cavil. The learned writer of the opinion in Gantt v. Brown concurred in the opinion In Re Feinstein, in which the inapplicability of the decision to a case somewhat like this is pointed out. In the concurring opinion of LAMM, J. (in which a majority concurred), in Gantt v. Brown, 238 Mo. l.c. 581, that learned jurist summed up the holding thus: "Our ruling does not mean that the secrecy of the ballot should be exposed except in so far as it may be absolutelynecessary under the allegation of the pleadings in an electioncontest, to show fraud, if any, and to that extent neither the Constitution nor the statutes protects the secrecy of the ballot."

That this court in that case had no idea it was passing upon any question save that pertaining to contested elections is obvious from the record it had before it, the language of the opinion and the rule it announced, and by the subsequent course of the judges who participated in that decision. The case of Gantt v. Brown has no relevancy to the question counsel present in this case.

VII. The Constitutional Convention, after having put Section 3 of Article VIII in the form in which it now stands, had before it the question of striking out that section and adopting the following: "All elections by the people shall be byProposed ballot, but all ballots shall be subject toSubstitute. inspection and examination, in all cases of contested elections and judicial proceedings, under such proceedings, regulations and safeguards as may be provided by law."

This substitute was rejected by a vote of 42 to 23. Three members were absent. The power to inspect and examine the ballots in "judicial proceedings" would have been given by this amendment. The Convention rejected it.

It is clear from this that the Constitutional Convention had before it, in the proposed substitute section, the very question which counsel discuss. This substitute would have expressly given the authority now sought to be exerted. When the Convention defeated it, it passed upon the question in this case. Its intent could hardly have been more clearly exhibited than by the vote upon the substitute section.

VIII. The decision In re Massey, 45 Fed. (D.C.) 629, is cited. In that case the question was "whether by the Act of Congress and the laws of the State of Arkansas, the custodian of ballots cast, at an election held for members of Congress, pursuantFederal to said laws, may be compelled by a Federal court, inAuthority. administration of the criminal law of the United States, to produce the ballots cast at said election, or not." After stating the question, thus, the learned district judge held the Federal law was, in such a case, paramount and that restrictions upon freedom of action under it could not be imposed by the State. As he remarks, he might well have left the matter there as decided by the principle he had laid down. Nevertheless, he proceeded to discuss the question whether the laws of Arkansas made any provision which would permit the examination of the ballots in a case to which those laws applied. With great respect, we do not deem this part of the opinion deserving of great weight in the question in the instant case. First, it is clearly and admittedlyobiter; second, it reaches a conclusion as to the construction of a law of a state which is in conflict with the construction of that law placed upon it by the highest court of that state; third, the learned judge obviously goes into the discussion of what the law should be, of what the proper policy is, rather than into the question of what the law means, i.e., what policy the state had adopted.

IX. Section 5403, Revised Statutes 1919, is cited. It is, of course, not contended by counsel that this section can be held to give authority which is denied by the Constitution. In so far as it conflicts with the Constitution it is without forceStatute. in this case. The Legislature had no power to authorize what the Constitution prohibits. This is not a primary election case. With respect to such elections the Legislature is not restrained by the Constitution, since Section 3 of Article VIII does not apply to them.

X. It is said that in an election contest in Kansas City the list of voters was made and the respective numbers of the ballots cast were shown in connection with the names on this list, and that it was also shown for whom each voter voted and that all this is on file in the office of the Circuit Clerk of Jackson County. It is argued that these facts show that theVotes for ballots have already been exposed and that "the veilOther of secrecy has been destroyed and thereOfficers. is now no foundation for the contention that the ballots of any precinct, so exposed in the election contest, should not be produced in evidence." The agreed statement of facts shows that the contest referred to affects the office of mayor only. The ballots listed seem to have been those cast for contestant in that case. Many other officers were voted for and against in that election. The lists show what ballots were cast for contestant in the mayoralty race and who cast them. They could not legally have included a showing as to officers other than mayor. The only votes which lawfully could have been reported upon and made public in the contest case are those for mayor. The examination of ballots, in so far as they affect one race for office, which lawfully may be counted and compared with the list of voters in an election contest, in no wise authorizes the making public of the way in which those who cast such ballots voted on other offices. Further, if the votes pertaining to races other than that for mayor were unlawfully made public, this unlawful act would not justify another violation of the Constitution in this proceeding. This is too clear to require argument.

XI. While Section 5403, Revised Statutes 1919, in so far as it conflicts with the Constitution, is inapplicable to ballots cast at an election which is such in a constitutional sense, it is entirely general in its terms and applies to allStatutory ballots except to the extent to which theProhibition. Constitution prevents such application. There is nothing in Section 3 of Article VIII which prohibits the Legislature from enacting that the ballots shall not be used in evidence in proceedings other than contested election cases. Therefore even though it could be held that the Constitution did not prevent the use of the ballots in this case in the way in which it is sought to use them, still the effect of Section 5403 would have to be considered. That section, among other things, provides that the ballots shall "in no way be used or any information disclosed that would tend toward showing who voted any ballot."

In this case it is proposed to bring into court and use in evidence ballots of which, as shown by the agreed statement of facts, the numbers and names of the voters who cast the particular ballots are already on file in the office of the Circuit Clerk of Jackson County. This record in the clerk's office, respondent insists, is a public record. To say that the use of the ballots in evidence would not, in these circumstances, "tend toward showing who voted any ballot" would require some hardihood. The statute prohibits their use.

XII. State ex rel. v. Kinsey (No. 18035), which was referred to in State ex rel. Feinstein v. Hartman (No. 22,572), is not cited by respondent in this case. In the Feinstein Case enough was said of State ex rel. v. Kinsey to show thatDenial of it was inapplicable in that case. There was noWrit in occasion to go further at that time. In this case itAnother is sufficient to say that in the Kinsey Case theCase. application for the writ was disposed of without opinion and that it nowhere appears what reason moved the court to deny the writ for which application was made. It is quite certain that the court could hardly be thought to have intended to overrule any of the previous decisions by merely marking an application for a writ "denied." It would be a remarkable departure from its customary practice if it did so intend. It is quite as certain that it did not intend to decide anything which would contravene the Constitution. It would have done both had it intended its action in denying the writ to be interpreted as counsel interpreted it in the Feinstein Case. Writs are frequently denied for reasons which do not arise out of substantive law.

XIII. Nearly all the arguments advanced by respondent have been considered heretofore by this court in decisions cited in previous paragraphs. To some extent we have reconsidered these and given expression to our views upon them. If, as said in State ex rel. v. Francis, supra, the State of Missouri has tied her own hands, the court is not empowered to undo what she has done. Also, as said in Ex parte Arnold, supra, if one court may open the ballot boxes, then all courts may do so and the ballot no longer is a secret ballot. So far as concerns the question urged by respondent, the people have chosen the policy they desired. They had full power to choose. Courts and Legislature must abide by that choice.

The petitioners are discharged from custody. All concur, exceptHigbee and D.E. Blair, JJ., who dissent.