State ex rel. Thomas v. Hoblitzelle

Norton, J. 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 [622] 'that the recorder of voters in the city of St. Lonis was a public officer, and the registration lists and poll books, when filed in his office to be “securely kept” by him, ■were not private, but public records, it was insisted by -counsel in an elaborate argument that the law of 1883 discloses a legislative intent that such registration lists .and poll books should not be open to inspection, and that •as to them the rule above stated was inoperative for that reason. In support of this position, it is argued that in- . asmuch as it is provided^in said act of 1883 that when a person who had been appointed judge of an election fails or refuses to serve, the voters at the poll may elect one to serve in his place, subscribing “ their names in witness . of such election to a paper which shall be returned by •the judges of the precinct to the recorder of voters, to be filed by him among the papers of his office, and be subject to inspection by any qualified voter; ” that it follows under the operation of the rule, expressio unius, exclusio alterius, that the legislature intended that the registration lists and poll books should not be . subject to inspection. In other words, the argument 'is, that as the legislature in section eighteen of the statute provided as to that class of papers subscribed '•'by the voters at the poll, who elect a judge to serve in place of one who fails or refuses to serve, that they should be open to inspection, and in the same section as to another class of papers, viz. : registration lists . and poll books, only provided that they should be -“securely kept” by the recorder, that it, therefore, follows that inspection of the latter class of papers was ■. intended to be denied. 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 [623] private persons, and inasmuch as doubts might arise in consequence of this fact, as to whether such a paper when returned to the recorder would be such a record as under the general rule would be subjected to inspection, the general assembly, to make that plain, which would otherwise have been involved in doubt, expressly provided that such papers should be open to inpection. Besides this, it' is provided by section twenty of said act, that the ballots after being counted .shall be placed in the ballot boxes, which are to be sealed and delivered by two judges of each election precinct to the recorder of Voters, who is required to keep them safely for twelve months, and not allow the same to be inspected or handled, unless in a case of contested election, or unless the same shall become necessary to be used in evidence, and then only on the order of a proper court. Now here is one class of papers required to be kept safely by the recorder, which it is declared shall not be inspected, except under the circumstances therein mentioned, and it would follow from this, under the rule invoked by counsel, that all other classes of papers in the recorder’s office, the inspection of which is not forbidden, would be open to inspection. .• 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. [624] We are unable to see the force of this argument, but,, on the contrary, if it be a fact, as it is averred to be by relator, that he was a candidate for the office of city marshal, and received a majority.of. the legal votes cast at the election, and by fraud or mistake the certificate of election was denied to him and given to another, public policy demands the exposure of the fraud and the rectification of the mistake, and that all proper facilities should be afforded to bring about these results.- Nor can we see how an inspection of the poll books tends-either to destroy or impair the secrecy of the ballot. While the inspector would learn from it who voted, he could not learn how or for whom the voter voted. While we regard the poll books as belonging to that class of public records, open to inspection when the applicant who desires to inspect them, shows that the purpose of the inspection is to vindicate some public or private right, the courts will by mandamus compel the inspection on condition that the inspection be made “under such reasonable rules and regulations as the court or officer having them in charge may impose.” Whether mandamus will or will not lie to compel an inspection of poll books when it is sought simply for the gratification of curiosity without any purpose to vindicate either a private or public right, is not necessary to-determine in this proceeding, as it does not present such a case. The relator claims that by reason of his receiving a majority of the votes cast at the election, he acquired a right to the office of city marshal, and desires the inspection asked for as a means of enforcing this right. 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 [625] their-argument, that, “the question is not whether the statutory remedy under section 5528, or any other legal remedy, is in point of fact open 'to the relator, but whether the application is made in good faith by an interested party, for the establishment of his individual right, and in pursuit of a remedy recognized by law to which relator supposes himself to be entitled.” If the application is made in good faith, and there seems to be no good reason to doubt that it is so made, the applica- ' tion should be granted. Judgment affirmed. All cpncur. Sherwood, J., expressing himself in a separate opinion.