Bowers v. Smith | Cases | Westlaw

At the general election held on the first Tuesday in November, 1890, Ellis R. Smith was the Republican candidate for sheriff, and Josiah A. Bowers was the Democratic candidate. This is a proceeding under the statute by which the appellant is contesting the election of the respondent. The contestor gave notice of the contest as required by statute, as did also the contestee. After the contest was begun, under a provision of the statute, a recount was had, which gave the contestee, Smith, a majority, on the face of the county clerk's count, of 33. The abstract showed the vote as follows for the whole county:

The abstract of the vote of the city of Sedalia was as follows:

Various grounds were assigned in contestor's notice, but, after the recount, the parties virtually stipulated to withdraw all charges of lack of qualification of the various voters, and all charges relative to illegal voting.

The remaining objections are contained in the fifth and seventh grounds of notice, which are as follows: “(5) That said general election, on November 4, 1890, was illegally conducted in the city of Sedalia, in said Pettis county, in this: That notwithstanding the said city of Sedalia on said day constituted but a single voting precinct, with fixed boundaries, yet during the whole of said day, and during the whole time of election on said day, two separate and distinct polling places were maintained, by different sets of judges and clerks of election, within the limits of said voting precinct in said city, and votes were received during said day and said election at both of said polling places by the respective sets of judges in charge thereof; and the votes so received at both of said polling places were afterwards certified by the respective sets of judges and clerks of election of said two polling places to the county clerk of said Pettis county, and which votes so certified were afterwards included by said county clerk and the two justices of the peace, called in by said clerk, in the official count of the votes cast at said general election in said Pettis county,–all of which was and is contrary the law of this state, and by reason whereof the said votes so certified from said city of Sedalia should have been and should be wholly excluded from the official count of the votes cast in said county at said general election.” “(7) That in said city of Sedalia, in said Pettis county, the said general election was required to be conducted under the provisions of article 3, c. 60, of the Revised Statutes of Missouri, 1889, and that on November 4, 1890, said general election was not conducted in the manner required, and as provided in said article of said chapter, in this: That the only tickets furnished to the voters and electors at said election in said city of Sedalia, and required to be used by them in voting at said election, were illegal, and did not conform to the provisions of said article of said chapter, but, on the contrary, were prepared, printed, and furnished in violation of said statute; and, among other reasons, said tickets were illegal because the said tickets so furnished and required to be used and voted at said election contained a list of candidates for various offices under the heading of ‘Union Labor,’ of and among *108 which said list was the following: ‘For sheriff, G. D. Sappington;’ and which said list of candidates under the said heading was printed upon and made a part of said tickets without any authority therefor, and contrary to the provisions of said statute, for the reasons: First. That there was not at the time of said election, nor on or within 60 days prior thereto, any political party within said Pettis county having or being known by the name of ‘Union Labor,’ or any other similar name, or any name of similar import, which had, at the last general election in said county before said general election in 1890, polled as a party at least 3 per cent. of the entire vote cast in said Pettis county at such prior election, and said list of names of candidates was not legally certified from any convention of a political party having the right in law to certify the nomination of candidates to be inserted in the tickets to be used and voted in said city of Sedalia at said general election in 1890. Second. That said list of candidates was not nominated as provided by law, and their alleged nomination was not certified by a certificate of nomination signed by electors resident within the said city of Sedalia, nor by electors resident within the said county of Pettis, to a number equal to one per cent. of the entire vote cast at the last preceding general election in said Pettis county prior to said general election in November, 1890. Third. That the alleged nomination of said list of candidates, and of each of them, so printed on said tickets under said heading of ‘Union Labor,’ was not made or certified to the clerk of the county court of said Pettis county, by filing a certificate of nomination executed with the formalities prescribed for the execution of an instrument affecting real estate; and no certificate of nomination of said candidates, or of any of them, executed with the formalities prescribed for the execution of an instrument affecting real estate, was filed with the clerk of the county court of Pettis county, Mo. For which reasons the votes cast in said precinct in and for the city of Sedalia were and are illegal, and should have been, and should be, wholly excluded from the official count of the votes cast at said general election, in November, 1890, in said Pettis county.”

The contestee filed a motion to strike out of the contestor's notice the 4th, 5th, and 7th paragraphs, which alleged, respectively, that the ballots in the Sedalia precinct were counted contrary to law, and that two polling places were maintained in said precinct, and that the official ballot illegally contained the names of the candidates of the Union Labor party. This motion was sustained, to which action appellant duly excepted at the time. On the trial of the case the contestor offered in evidence one of the official ballots which were cast at the election in question, and also read in evidence the county clerk's abstract of the votes cast for the parties at such election as ascertained by the recount. The court refused, against the objections and exceptions of the contestor, to admit evidence showing that the city of Sedalia at the time was a city with over 5,000 inhabitants. The court then admitted evidence showing that the 164 votes in the Sedalia city precinct referred to in the county clerk's return of his official recount as “no votes” were so returned because the majority of said ballots were not counted for either of the three candidates for sheriff, by reason of the fact that the name of only one of the same was crossed out, leaving the names of two candidates voted thereon for such office. The court next refused evidence offered by the contestor to show that two polling places were held in the Sedalia city precinct, with two sets of judges, clerks, poll books, and ballot boxes. And contestor offered evidence in connection therewith to show that in one of said polling places all voters the initial letter of whose last name fell between A to K, inclusive, were required to vote at one polling place, while in a like manner all between L to Z voted at the other polling place; but that the poll books showed about 50 exceptions to the rule, voters to that number having voted at the wrong place under such arrangement. That at each of said polling places there were six judges, two of whom had charge of the ballots, and issued them to the electors. At each place the judges numbered the ballots on the back to correspond with the number of the voter casting the same at the poll. That these polling places were 75 feet apart,–all of which evidence was, on motion of contestee excluded by the court, to which appellant duly excepted. At the close of contestor's case the contestee offered in evidence his certificate of election, and his commission, and rested, and the court thereupon rendered judgment for the contestee. In due time, the contestor (Bowers) filed his motion for new trial, assigning as error the sustaining of contestee's (Smith's) motion to strike out parts of contestant's notice, and striking out said paragraphs, (4th, 5th, and 7th,) and excluding legal and competent evidence. This being overruled, the cause was appealed to this court.

The trial court excluded evidence tending to prove that the city of Sedalia was a city having over 5,000 inhabitants on the date of the general election in 1890. If the trial court refused to hear this evidence on the ground that it would take ex officio notice of the population of Sedalia, its ruling might be sustained; otherwise it was error to decline to hear it. Section 4794, art. 3, c. 60, only applied to cities of 5,000 inhabitants. It was most material to know whether that article applied to the contest. It is, however, conceded by both sides here that said city has a population largely in excess of 5,000. Under these circumstances, article 3, c. 60, Rev. St. 1889, was applicable to the method of holding and conducting said election in said city.

1. The contestor insists that the vote of the city of Sedalia should be rejected altogether, because the official ballot prepared by the county clerk, and used at that precinct, contained, in addition to the names of the Democratic and Republican nominees, duly certified to the county clerk, the *109 names of certain parties as candidates of the Union Labor party,–among others, that of George D. Sappington, for sheriff, –when, in fact, no such party at the last previous general election had cast 3 per cent. of all the votes of Pettis county, and no nominations of such a party had been certified to or filed with the county clerk, as required by said article 3, c. 60. This, it will be readily seen, presents a question of great moment. The right of suffrage is justly esteemed the corner stone of our free institutions. Our election laws are framed with the special purpose of preserving this right, and of enabling every citizen, whatever his position in society, to express his choice, untrammeled and unintimidated. It is earnestly contended by counsel that, if the statute is to be construed so that ballots cannot be counted which contain names of candidates prohibited by the statutes, then it is unconstitutional. The argument of counsel for contestee is based upon the wrong that would be done the voter to deprive him of his franchise on account of the illegal act of a public officer, and that the statute is merely directory, and not mandatory. The right to make laws to preserve the purity of elections is expressly conferred on the legislature in some of the states by their constitutions, but in Missouri the power to regulate elections by law has never been doubted or denied. In the administration of these laws, individual instances doubtless will occur when the voter loses his ballot, but this is no greater hardship than befalls the individual in the administration of other general laws.

In State v. Cook, 41 Mo. 593, where the whole vote of an election district was thrown out by the court of appeals because the officer making the registration was disqualified to act, this did not give a party who was a qualified voter, and who was registered as such, the right to demand that he should be entered as a qualified voter in preparing the list of voters for a special election. The court held that it was a case of great hardship and deprivation. A citizen who had fought in the armies of his country, who was a qualified voter according to law, and had complied with all the forms of registration, was denied the privilege of voting because the board of revision pronounced the book in which he was registered a nullity, and the law had failed to provide for a new registration. Judge Wagner, speaking for the whole court, said; “But it is better that he should be deprived of a right temporarily than that this court should overstep the boundaries of established precedent and sound construction, and annihilate the line which separates judicial from legislative functions.” “A court of law,” says Lord Abinger, “ought not to be influenced or governed by any notions of hardship. Cases may require legislative interference, but judges cannot modify the rules of law.” Rhodes v. Smethurst, 4 Mees. & W. 63. “It is not for courts of justice proprio marte to provide for all the defects or mischiefs of imperfect legislation.” Per Story, J., in Smith v. Rines, 2 Sum. 354. In West v. Ross, 53 Mo. 350, in a statutory contest for the office of clerk of the circuit court of Gentry county, the statute required that all ballots cast should be numbered, and that ballots not numbered should not be counted. It appeared that none of the votes cast in Miller township were numbered by the judges of the election; that Ross received in said township 179 votes, and West 72 votes. It was further shown that the majority for Ross in the whole county, over West, was 8; that, if the votes in Miller township which were not numbered had not been counted, West would have had a majority of 99 votes over Ross. It was also admitted that no fraud was intended by the judges in failing to number the ballots. In that case it was contended that the statute requiring the ballots to be numbered was merely directory. Judge Vories says: “After the legislature by the statute directs that the ballots shall be numbered, it proceeds to declare the consequences of a noncompliance with the direction, which is that ‘no ballot not numbered shall be counted.’ Can we say this negative clause is only directory, and in that indirect way nullify, or repeal by a judicial decision, the whole provision of the statute requiring ballots to be numbered? If we deny the consequence affixed by the legislature to the nonperformance of a regulation provided by the law, it, in effect, nullifies the law itself. This case may be a hard case, and doubtless is, but the legislative enactment is clear; and, although it may deprive a portion of the citizens of the county of their right to be heard in the election of clerk at one election, it is better that they should suffer this temporary privation than that the courts should habituate themselves to disregard or ignore the plain law of the land in order to provide for hard cases.” The same statute received the same construction again in Ledbetter v. Hall, 62 Mo. 422. In State v. Frazier, 98 Mo. 426, 11 S. W. Rep. 973, the special act of the legislature, incorporating the city of Rolla, required that the voters at city elections “shall register their names at least two weeks next preceding the election.” A city election was held, and certain citizens elected councilmen. The election was held in every respect in compliance with law, save the voters were not registered. Barclay, J., said: “There was in this case a total failure to comply with a law making the registration of voters an essential preliminary to an election to the fullest extent; that it is peculiarly the province of the legislature to prescribe the rules and regulations for conducting elections in this state; and that when the law prescribes certain requisites in the ballot, and follows it with the denunciation that, unless the ballot complies with the law, ‘it shall not be counted,’ then the statute is mandatory, and a noncompliance therewith will avoid the election.”

Now section 4772 provides: “Except as in this article otherwise provided, it shall be the duty of the clerk of the county court of each county to provide printed ballots for every election for public officers in which the electors, or any of the electors, within his county, participate, *110 and to cause to be printed, in the appropriate ballot, the name of every candidate whose name has been certified to or filed with him, in the manner provided for in this article.” “Ballots, other than those printed by the respective clerks of the county courts, according to the provisions of this article, shall not be cast or counted in any election.” Section 4773 provides that “every ballot printed under the provisions of this article shall contain the name of every candidate whose nomination for any office specified in the ballot has been certified or filed according to the provisions of this article, and no other names.” For the purposes of this discussion, it must be taken that the motion to strike out the allegations in the notice as to the names of the Labor Union candidates confesses the truth of that averment, which I hold is a clear and concise statement, and its sufficiency as a pleading was not questioned by opposing counsel in the circuit or this court. It was reserved for this court to make the point, and it stands admitted that the ballot contained names not certified or filed in accordance with said article 3 of chapter 60. The statute provided said ballot should contain “no other names” than those certified. Here, then, is a positive violation of a plain law. What penalty follows in such a case? The statute answers: “Ballots other than those printed *** according to the provisions of this article (3) shall not be cast or counted at any election.” The words “shall not be counted” were construed as mandatory in West v. Ross, 53 Mo. 350, and the whole vote of a township excluded. Again, in Ledbetter v. Hall, 62 Mo. 422, the whole vote of a township was excluded under the same provision. In Gumm v. Hubbard, 97 Mo. 311, 11 S. W. Rep. 61, it is true, the words “shall be considered fraudulent” were in the statute, but the words “and shall not be counted” affixed the punishment that should be visited upon the ballot declared by the statute to be fraudulent. The alternative is plain. We must either follow a statute which the legislature has enacted, and had a perfect right to enact, or hold that it is optional with the county clerks to obey the election law or not, as their judgment may dictate. By holding that a violation of this provision does not affect an election, we in effect nullify the statute, and say to election officers it is not necessary to follow its commands. But it is argued by contestee that no fraud on the part of the clerk or of respondent is charged. In West v. Ross it was expressly admitted the judges were guilty of no fraud in failing to number the ballots, yet that did not prevent this court from declaring the election void. In Gumm v. Hubbard, Judge Black says the statute furnishes an absolute rule of evidence. It makes the ballot fraudulent ���without regard to intent.” So it would seem that neither averment nor evidence of fraud is necessary in such cases, but proof simply of a failure to comply with a mandatory provision of the statute will avoid the election. In 6 Amer. & Eng. Enc. Law, p. 348, § 8, it is said: “In many of the states there are statutes prescribing the form of the ballot, the kind of paper, etc., and prohibiting any marks, figures, or devices by which one can be distinguished from another. These statutes, being designed to preserve the secrecy of the ballot, and to prevent fraud, intimidation, and bribery will generally be considered mandatory, and this will be so in all cases where the statute provides that a ballot varying from the requirements of the law shall not be counted.” And at page 325 of the same volume it is said: “A violation of mandatory provisions will avoid the election, without regard to the motive of the persons guilty of the violation, and without any inquiry into the effect of the result of the election.” Again it is said: “No harm was shown to have resulted to contestor.��� It appeared from the evidence in the trial court that upon the recount contestee, Smith, had a majority of 33 votes only. It further appeared there were 164 votes cast in Sedalia that were returned as “no votes.” “In about three fourths of said ballots, the state of the case was that the same were not counted because one of the three candidates for sheriff was scratched, leaving the other two upon the ballot, and in a very large majority of such three fourths of said ballots the aforesaid result arose from the fact that the voter struck out one column of candidates, or the candidates of one political party, and left the candidates of the other two parties or columns intact.” Now, according to the statutes of this state, as only the nominees of two political parties had been certified to the county clerk, no other names could lawfully be placed on the ballots at said election; and, had there been only the two names of the contestor and contestee on the official ballot, the striking off of either of their names would have left the other a vote; but, when a third name illegally appeared on this ballot, the striking off of the name left a vote for two candidates, which rendered it void, or “no vote.” There were 164 votes of this character in Sedalia alone, and the majority is only 33. Who will say that the placing of the third name illegally on these ballots did not render this election uncertain? It has often been said that if the irregularities in an election are so great as to render the choice doubtful, they will avoid the election. Scranton Borough Case, Brightly Elect. Cas. 455; 6 Amer. & Eng. Enc. p. 328, note 3.

But it is argued that one constitution secures to every voter the right to cast his ballot for whom he pleases. Certainly this is not denied, and, in order that he may not be restricted simply to those candidates whose names are printed on the official ballot, it is expressly provided in section 4773 that “at the end of the list of candidates for each office shall be left a blank space large enough to contain as many printed names of candidates as there are offices to be filled.” We agree with counsel for appellee that if this new election law of May 16, 1889 should restrict the election to the names printed on the official ballot, and made no provision for his substituting any name he chose for any office to be chosen, it would *111 be unconstitutional. On the contrary, it has expressly guarded against that in section 4773, by leaving space for him to write the names of as many candidates as there are offices to be filled.

But we are not certain that we fully comprehend the objection that this act is unconstitutional, if it is construed that a ballot shall not be counted if it contains written matter not authorized by the statute. The term, “elections shall be free and open,” is very general. If, by it, we are to understand that the citizen may defy all regulations prescribed by law, call and hold elections whenever he sees fit, and vote in any manner that may suit his fancy, then all election laws are unconstitutional. But we hold that “the electoral franchise is not an unrestrained license. In a government of law, the law must regulate the manner in which it is to be exercised. The time, occasion, and mode of voting are to be prescribed by the legislature in subordination to the provisions of the constitution.” Paine, Elect. § 5, (1888.) A careful scrutiny of this act has not revealed anything in the provisions requiring the county clerk to print the ballots, and prescribing what names shall be printed thereon, that, in our opinion, conflicts with a free and open election. If an aspirant for office does not belong to any of the great parties in this country, and is not fortunate enough to have the nomination of a party that cast 3 per cent. of the votes at the last election, he is still not debarred. He can procure the certificate of electors within his district or political division to the number equal to 1 per cent. of the vote cast at the last general election. This system contains many features that are new, and they have not yet received construction by the courts of the several states. In Price v. Lush, 24 Pac. Rep. 749, the supreme court of Montana held that as this was an English statute, and had been often construed by the courts of that country, the territory of Montana must be presumed, in adopting it, to take it with the construction it had received in England, and consequently held an election void where the successful candidate at the polls had not been nominated as required by law, but had succeeded in getting his name on the official ballot. That court reached that conclusion after a thorough examination of the English and Australian cases. In adopting that construction, it followed eminent authority. Pennock v. Dialogue, 2 Pet. 1; McDonald v. Hovey, 110 U. S. 628, 4 Sup. Ct. Rep. 142; Allen v. Bank, 120 U. S. 34, 7 Sup. Ct. Rep. 460; Pratt v. Telephone Co., 141 Mass. 225, 5 N. E. Rep. 307; Skouton v. Wood, 57 Mo. 380. But the power of the legislature to regulate elections has been elaborately reviewed by the court of appeals of New York very recently in the case of People v. Board of Canvassers, 29 N. E. Rep. 327. The Australian ballot system, with some modifications, was adopted by the legislature of that state in 1891. The title of the act was “An act to promote the independence of voters at public elections, enforce the secrecy of the ballots, and provide for the printing and distribution of ballots at public expense.” Laws N. Y. 1891, c. 296. Section 31 of the act provides that “no inspector of election shall deposit in a ballot box, or permit any other person to deposit in a ballot box, on election day, any ballot which is not properly indorsed and numbered, except in the cases provided for in section 21 of this act.” Section 17 of the act required this indorsement, “Official ballot for _____;” and it was provided that, after the word “for,” in the blank, should follow the description of the polling place for which the ballot is prepared, the date of the election, and a fac simile of the signature of the county clerk, “and the ballot shall contain no caption or other indorsement.” The town of Camillus, in Onondaga county, was divided into two election precincts. In some way it turned out that all the Republican ballots in district No. 1, in said town, were indorsed, “Official ballot for second district poll, town of Camillus,” November 3, 1891; and in district No. 2 all the Republican ballots were indorsed, “for first district.” There were 1,252 of these ballots. The inspectors counted these ballots for Rufus T. Peck, Republican candidate for senator. A proceeding by mandamus was begun in the supreme court to require the canvassers to reject these ballots as illegal, and the writ was made peremptory in that court. On appeal to the court of appeals that order was affirmed. Opinions were written by Chief Justice Ruger and Judges Gray and O'Brien, in which the decisions of this court in West v. Ross, 53 Mo. 350, and Ledbetter v. Hall, 62 Mo. 422, supra, were quoted and approved. These opinions with one accord all hold that as “the act provides that no ballots not properly indorsed shall be received, or, if received, shall be counted,” it is imperatively the duty of the canvassing officers to reject them. Says Chief Justice Ruger: “But it is urged that a strict construction of the law must result in disfranchisement. This is true, but the law plainly contemplates such a result, and who can complain, except those who are opposed to any restrictions whatsoever upon the action of the election? No advocate of the reform ballot law can justly criticise a result which was in the minds of its authors when the law was drafted and enacted. They clearly contemplated this effect, and determined that the injustice which a few might suffer through ignorance, willful blindness, or inattention to the requirements of law should not be permitted to defeat the great good to be secured to the whole people by the adoption of an effectual scheme for the purification of elections.” Let it be conceded that the arguments of the judges in sustaining the law proceed principally upon the necessity of a secret ballot, and to permit the irregularity to go unpunished would destroy that secrecy, still the great underlying consideration was that “elections are a contrivance of government, which prescribes who are electors and how they may express their will, and it is a legitimate exercise of power to prescribe the description of ballots which shall be used.”

This case fully meets the argument of respondent, *112 that the ballots in this case at bar were official ballots, prepared by the county clerk, and his illegal act cannot disfranchise a voter. In the New York case the ballot was indorsed “Official Ballot,” but, by the willful or negligent act of the clerk, the wrong precinct was indorsed, and they were rejected. The point is identical in principle. It was the act of an official, and that court, as we have already said, but followed our own decisions, supra, wherein the act of the election judges disfranchised a whole township. The supreme court of Connecticut in Talcott v. Philbrick, 59 Conn. 472, 20 Atl. Rep. 436, had a question identical in principle with this. There, as in Missouri, this Australian ballot system was adopted in 1889. By the first section of chapter 247, p. 155, Acts Conn. 1889, it is provided, among other things: “In addition to the official indorsement, ballots shall contain only the names of the candidates, the office voted for, and the name of the political party issuing the same.” And section 12 provided that “all ballots cast in violation of the foregoing provisions, or which do not conform to the foregoing requirements, shall be void, and not counted.” Certain ballots, (286 in number,) bearing the names of all the Republican candidates, and in every respect complying with the law, save and except they bore the name “Citizens',” were cast at that election. These ballots were issued by the Republican party. The court held these ballots were void, and should not be counted. Says the court: “We are relieved of any obligation to inquire as to the necessity or reason of this or that requirement, and we are not at liberty to dispense with anything that is required, whatever the reason for it may be, or even if without any apparent reason at all. The legislature has spoken, and obedience is our first and only duty. It is at liberty to throw around the ballot box such safeguards and regulations as it may deem proper, and it is the duty of the citizen to conform thereto. Some inconvenience is not too great a price to pay for an honest, pure ballot.” And, as applicable to the notice of contest in this case, the court says: “The ballot does not speak the truth. It purports to have been issued by a Citizens' party, but it was in fact issued by the Republican party. It implies there was a Citizens' party, but there was not. In this case, the ballot implies there was a Union Labor party, but the motion to strike out confesses there was not; and yet the names of candidates of such a party were placed on this so–called official ballot, to mislead and confuse the voter, and actually had that result. In Fields v. Osborne, (Conn.) 21 Atl. Rep. 1070, this same Connecticut statute again came under review. This was an annual election for the town of Branford. Among other offices to be filled was that of town clerk. By the statutes this office is ex officio the registrar of births, marriages, and deaths in their respective towns. No vacancy existed, and by law no election for probate judge was authorized at this election. There were two tickets in the field. The Democratic ticket and a Citizens' ticket. On the Citizens' ticket were the words, “For judge of probate, Henry H. Steadman.” On the Democratic ticket were the words, “For town clerk and ex officio registrar of births, marriages, and deaths.” The court held that the Citizens' ticket, containing the words “judge of probate,” were illegal, and should not be counted, and also rejected the Democratic tickets with the words “ex officio registrar,” etc. Judge Seymour, delivering the opinion, says: “A plain provision of the law is violated in a point concerning which the act does not authorize us to inquire into the intent or the consequences of the violation. In short, the legislature has seen fit to say, if a ballot contains the addition to the specified contents which these do, it shall be void. Unless we are prepared to hold the act unconstitutional, we cannot disregard its requirements. If it is harsh and unreasonable, the remedy is with the legislature that enacted it, and not with the courts, which are bound to respect it.” See, also, In re Vote Marks, (Sup. Ct. R. I.) 21 Atl. Rep. 962.

The act of 1889 was confined to cities of 5,000 inhabitants. It was an experiment. The legislature apparently hesitated to adopt it for the state at large, lest its requirements might confuse the officers and voters; but the city elections demonstrated that it was not difficult to comply with it, and it rapidly won the public favor, so that the present legislature has applied its provisions to every precinct in the state. Except for the gravest reasons, we ought not to set aside the plain mandate of the legislature; but, if we permit the plain violation of that law that was committed in this case, we nullify the statute. But it is objected that, notwithstanding the county clerk placed upon the ballots at this election the names of candidates in positive violation of the statute, the contestor cannot complain, because section 4778 provides: “Whenever it shall appear by affidavit that an error or omission has occurred in the publication of the names or description of candidates nominated for office, or in the printing of the ballots, the circuit court of any county, or the judge thereof in vacation, or, if the circuit judge is then absent from the county, a judge of the circuit court, may, upon application by any elector by order, require the county clerk of the county court to correct such error, or to show cause why such error should not be corrected.” This section was intended to correct mistakes in the names of the candidates nominated, or the designation of the offices for which they were candidates, upon the application of any elector. It does not purport nor do we think it was intended as furnishing a mode of procedure to a candidate who was wrongfully denied a place on the ticket, nor a remedy for those lawfully on the ticket to purge it of names which had illegally been placed thereon. But, in any event, this case is here on the pleadings alone. There is nothing in the record that tends to show that contestor had any knowledge of the facts which would now estop him of complaining. In the absence of proof or allegation to the contrary, it will be presumed that he acted *113 on the presumption that the county clerk, a public officer, would not put on the official ballot the name of any candidate whose nomination had not been certified or filed as required by law. In the absence of knowledge, no one will contend he is estopped.

2. Again, it is contended by the contestor, Bowers, that the vote of the Sedalia precinct should be excluded, for the reason that the county court ignored section 4673 in the appointment of judges of the Sedalia precinct. The statute (section 4777, in connection with 4673) provides that the court shall appoint 6 judges for each precinct, and in this instance the court appointed 12 judges. Instead of one polling place in the precinct, there were two, 75 feet apart. Different judges received and numbered the ballots. At one of these voting places 1,582 votes were cast, and at the other 1,578. By the statute (section 4777, in connection with 4673) the county courts are empowered to appoint six judges only for each election precinct. Three of the judges shall be selected from the party having the largest vote at the last election, and three from the party having the next largest. These judges shall select the two judges, one from each party, to have charge of the ballots, and furnish them to the voters. And minute direction is given in the statute for the conduct of the election. There is no warrant for the appointment of double this number and opening a new poll. After the court had appointed six, the power of attorney was exhausted, and those appointed after that derived no authority. If the county court of Pettis county may disregard the election law by appointing six additional judges and a second polling place, they may establish a dozen in the same precinct, and, if that court may do this, all other county courts may do likewise. The precedent would be dangerous and pernicious. It would open wide the door for fraudulent practices, and practically nullify the statute.

Counsel for contestee says: “Certainly some of the judges acted legally, and how can it be decided as to which lot of ballots shall be thrown out, and which body of electors deprived of their votes?” We answer that, where the conduct of the election is so grossly irregular that the courts cannot determine which are legal and which illegal, the whole should be disregarded. In no other way can the laws be upheld, and the purity of the ballot preserved.

As to the provision of the statute, we think there is little trouble in ascertaining the reason upon which it rests. Observation and experience have taught that one of the greatest evils attending our popular elections has been the crowding of the polls. In this way the not over scrupulous partisan manages to delay voters, deter the timid and diffident voter, annoy the judges with frequent and unfounded challenges and other interruptions, and block the way for all but his own party. To avoid this, the statute is ampler in its authority to the county court to make the precinct or election districts small enough that six judges only will be required to receive and count the vote. The county court of Pettis county when it appointed twelve judges for one precinct by its very record disclosed the absolute necessity for dividing this precinct. It is a virtual finding that six judges could not receive and count the votes. Instead, in that city, of their following the plain provisions of the statute, and dividing the precinct, they made this unauthorized appointment of six additional judges, and in this way preserved all the objectionable features of a popular election, and secured to the people of that city none of the benefits that the statute was designed to secure. The statute wisely provides that “each voter shall vote only in the township in which he resides, or, if in a town or city, then in the election districts therein in which he resides.” This provision was made so that the judges and voters could more readily know who is entitled to vote, and the more easily detect any attempt to vote illegally, either from want of residence or nonage, or other disability. McCrary, Elect. § 651. Moreover, by having precincts small enough for two judges to receive and two to count, the judges may more deliberately hear challenges and decide them, without denying others the right to vote. Judge McCrary, in his work on Elections, expresses the opinion that no precinct should contain over 300 voters; indeed, he lays it down as a cardinal principle that multiplication of voting precincts will prove an effectual remedy for all the evils that flow from overcrowding the polls. And there are other considerations that doubtless controlled the legislature. It was intended that the boundaries of each precinct should be defined, and every elector therein should know the voting place. It was never intended, as was done here, that the initial letter of a voter's name should subject him to the annoyance of going from one voting place to another, according to the initial letter of his name. It was the clear intention of the law that every voter in each precinct should vote at one and the same place, and that these precincts should be small enough to permit each voter to cast his ballot on the day of election without annoyance. The suggestion that this had been previously done is not in the case, and, if it was, is no justification. There was no evidence heard on this branch of the case that would tend to estop the contestor. As the judges in excess of six were not even defacto judges, it resulted that at least six persons unauthorized by statute were permitted to pry into the ballots of the voters, and thus destroy that secrecy which the constitution secures against every one but a sworn and lawful election officer. The position taken by my learned brother that the two polling places within one precinct is not an abuse of the statute is not sustained by those judges of this court who hold that this violation of a positive enactment does not vitiate the election. The case from the supreme court of Texas (Davis v. State, 12 S. W. Rep. 957) is cited as authority. But the facts in that case show that the county court made the mistake of putting two wards in one precinct, and only appointed one set of officers for *114 each precinct. I presume I may be permitted also to cite the dissenting opinion of Judge Henry, Id. 962, as furnishing to my mind the most satisfactory reasons why the election in that case should have been held void. I quote from his opinion: “The doctrine of de facto election precincts finds no place in the law. What it is unlawful for the commissioners' court and the voter to do in the first instance cannot become right or lawful by being repeated. The law, much less the constitution, cannot be repealed or superseded by such methods. *** The law does not, however, authorize two separate elections to be held in one ward or any one precinct. It directs and authorizes one only. For the purpose of preventing fraudulent voting, the policy of the law is that there shall be only one poll at which one person can cast his vote.” I am glad that the judgment of this court does not, at least, approve the clear violation of the law in appointing two sets of election judges in one precinct, and that in the future the county court will avoid this clear violation of the spirit and letter of the law. This appeal will accomplish this much good, if no more. I cannot give my assent to the opinion of the majority. I understand that the legislature has a right to enact laws regulating elections, and that it is the duty of the courts and the citizens alike to obey them, so long as they do not infringe the constitution. When the legislature adopted what is popularly known as the “Australian Ballot Law,” its purpose was most clearly to throw around the voter and his ballot additional safeguards, and render him less liable to be deprived of his suffrage. All good citizens appreciate the importance of preserving the ballot in all its purity; the only difference that can arise is as to the method of so doing. We hold that the most effectual way of accomplishing this is to require these election officers to obey the statute. It follows from these views that I hold the ballots containing the names of the Union Labor candidates void, and that the dividing of the city into two polling places was illegal and unauthorized, and resulted in placing the ballots in the hands of parties who had no authority to see them, and was a clear violation of the statute. In so doing, I follow the command of the law in a matter of the highest public concern. The judgment of the circuit court should be reversed, and the cause remanded for trial in accordance herewith. I am authorized by Sherwood, C. J., to say he concurs fully in all I have said, and Thomas, J., concurs in the result I would reach.