author: REVELLE, J.

text:
    THOMAS B. STRAUGHAN, Contestant, v. CHARLES W. MEYERS, Appellant.
    In Banc,
    July 18, 1916.
    1. ELECTIONS: Absent Voters: Special Law: Applicability to One City. The Act of 1913, Laws 1913, p. 32S', providing methods by which absent voters may cast their ballots at any precinct in the State and have them counted in the precinct of their residence is not a special law, does not apply solely to the county and city of St. Louis, and does not violate 'he provision of the Constitutior (Art. 4 sec. 53) declaring that “the General Assembly shall not pass any local or special law for the opening and conducting of elections, or fixing or changing the places of voting.”
    2. -: -: -: Aided by Title. A section of a statute, which in certain of • its terms is ambiguous, may be aided by its title as a clue and guide to the legislative intention; and since the title to the Act of 1913, Laws 1913, p 32S', providing methods by which legal voters required to be absent from their voting precincts on ;'.ny general election day, may cast their ballots and have them counted in the precinct of their residence, in clear and uncertain terms makes the act apply to all counties and all absent voters, resort may be had to it to clarify the ambiguity of section 1 which standing alone might seem to restrict the applicability f the act to the city and county of St. Louis. Doubtful words of a- statute may always be enlarged or restricted in their meaning to conform to the true intent of the lawmaker, when aided by sound principles of interpretation.
    3. -: --: Sixty Days' Residence. The provision of the Constitution requiring a legal voter to “have resided in the county, city or town where he shall offer to vote at least sixty days immediately preceding the election” did not inhibit the Legislature from providing a method by which an absent legal voter may have his vote, wherever cast within this State, counted in the precinct in which he has been a resident for sixty days, his choice being confined to candidates anfi matters relating to the place where he does reside. The Act of 1913 does not attempt to authorize a legal voter to vote in any place other than his residence. Legal voting embodies the right to have the vote counted. The word “vote” is not synonymous with ballot, which is merely the instrument by which the voter expresses his vote or choice. The Constitution prescribes no place where the ballot may be deposited with election officials; it simply means that, wherever initially deposited, it can be counted only in the precinct in which the voter has a legal residence and does not undertake to prescribe methods of voting.
    4. -: -: Numbering Ballots. The Act of 1913 relating to methods by which the ballots of absent voters may be received by. election judges at any election precinct in the State and when enclosed in an envelope and filed with the county clerk be by him transmitted to the county clerk of the county in which the voter resides, and further providing that “the' county court or board of election commissioners shall open said envelope and record said ballot upon tae poll sheet of the proper precinct,” does not violate the provision of the Constitution (Art. 8, sec. 3) which declares that all ballots shall be numbered in the order in which they shall ’’e received “and the number recorded by the election officers on the list of voters opposite the name of the voter who presents the ballot.” The act without specifically so requiring, implies that the ballots will be numbered by the county court or the board of election commissioners, who are “election officers,” and the act cannot be held' unconstitutional because it does' not specifically require them to number the ballots so received.
    5. -: -: Affidavit and Signature of Judges: Mandatory. The requirements of the Act of 1913 pertaining to the right of absent voters to vote at somt other precinct than the one of their residence that the voter shall make and subscribe to the prescribed affidavit and that his ballot shall have the names of all the judges on the back thereof, are mandatory, and essential to the counting of the ballot and it is incumbent upon the voter to see that they are complied with, and no ballot which does not contain such affidavit and signatures can be counted.
    6. -: -: -: Validating Ballot. A failure to take the voter’s affidavit in the manner prescribed by the statute cannot be supplied by an election officer going after the date of the election to the county of the, voter’s residence and there taking his affidavit. Nor is an affidavit taken in a county other than that in which the ballot is cast 'sufficient.
    7. -: -: Signature of All Judges. Nor is a ballot which does not have indorsed thereon the signature of all the election judges legal.
    Appeal from Ste. Genevieve Circuit Court. — Now. N. Q. Ramsey, Judge.
    Affirmed.

      Thomas B. Whitledge, Samuel Bond and William C. Boverie for appellant.
    (1) The title to the Absentee Voter Act is sufficient to include and make operative all of the provisions of the act. State ex rel. v. Ransom, 73 Mo. 78; State ex rel. v. Wiethaupt, 231 Mo. 449; State ex rel. v. Railroad, 48 Mo. 468; Stephens v. Bank, 43 Mo.' 385; State ex rel. v. Gordon, 170 S. W. 892; State ex rel. v. Vandiver, 222, Mo. 219; O’Connor v. Transit Co., 198 Mo. 622; Ewing v. Hoblitzelle, 85 Mo. 64; Sedgwick on Statutory & Const. Law, 521, quoted in Eltinge v. Hickman, 172 Mo. 237. (2) Courts are very reluctant to declare a law unconstitutional on a mere technicality. The unconstitutionality must appear beyond a reasonable doubt. State v. Utle, 65 Mo. 361; State ex rel. v. Jockey Club, 200 Mo. . 34. (3) This act is not a local act, and is not unconstitutional as being repugnant to section 53 of article 4 of the Constitution. It applies to all counties of the State and not especially to St. Louis County and city. (4) The well settled law of this State is that where an honest voter presents himself at the polling place where he is entitled to vote and is given a ballot which he properly fills out, and it is deposited in the ballot box, and then departs, he is entitled to have it counted for the men whom he selected on his ballot, and the same cannot be rejected, because of mistake in law, error of judgment, wrongful act of omission or commission of any of the judges of election, un-. less the mistake, error of judgment or neglect to comply with the provisions of the election law consists in the omission of something that the law itself says is fatal, and only in such cases where the law itself says a ballot is not to be counted shall the vote be rejected. West v. Ross, 53 Mo. 350; Ledbetter v. Hall, 62 Mo. 442; Gunn v. Hubbard, 97 Mo. 37; Hehl v. Guión, 155 Mo. 76; Gass v. Evans, 244 Mo. 238. (5) - Failure of judges to put their initials or names on ballot, or to comply with any other provision of law, unless expressly stated by statute to be otherwise, does not vitiate ballot or disfranchise voter. Bowers v. Smith, 111 Mo. 61; Gass v. Evans, 244 Mo. 353.

      Jerry B. Burks for respondent.
    (1) The Act of 1913, Laws 1913, p. 323, permitting electors to vote in counties other than that in which they reside, is unconstitutional, and the trial court did not err in excluding the thirteen ballots of absentee voters voting for defendant. By express language, said act applies only to the county and city of St. Louis, and is a local or special law, in contravention of Secs. 53 and 54, art. 4, Constitution of Missouri. Said act is further special legislation in that it applies only to a certain favored class of electors, when a general law applicable to all voters could have been enacted. Subsec. 32, sec. 53, art. 4, Constitution; State v. Hill, 147 Mo. 63; State v. Anslinger, 171 Mo. 600; State ex rel v. Messerly, 198 Mo. 351; State v. Miksecik, 225 Mo. 561; Murnane v. St. Louis, 123 Mo. 491. Said act further violates subsection 12 of said section 53, which inhibits any special law for opening or conducting elections or fixing or changing the place of voting. (2) This law, and any law which authorizes a voter to cast his ballot or offer to vote at a place other than the county, »city or town in which he resides, is violative of the fundamental law- governing elections. Subsec. 2, sec. 2, art. 8, Constitution. This provision of the Constitution requiring a residence of sixty days in the county, city or town where the voter shall offer to vote, is to safeguard the interests of the State and to prevent a fraudulent use of the ballot. So the voter must offer to vote and vote where he resides and is known. Chase v. Miller, 41 Pa. St. 419; Twitchell v. Blodgett, 13 Mich. 143; Day v. Jones, 31 Cal. 261; Bourland v. Hildreth, 26 Cal. 161. There is no such constitutional mandate, expressly or impliedly, justifying any such enactment, as was held in case of State v. Etchman, 189 Mo. 656. (3) Said act is further obnoxious to the Constitution in that no provision is made for numbering the ballots cast; in fact, said act implies, if it does not expressly state, that said ballots should not be numbered. Sec. 3, art. 8, Constitution; West v. Ross, 53 Mo. 350. (4) Section 4 of said act is further vicious in that it permits the clerk and judges of the court, even though they are themselves candidates for office, to sit in judgment and pass upon the legality of ballots returned to them. (5) In any event, the seven ballots cast for Meyers by absent voters, at Commerce, in Scott County, were illegal. The names of all the judges were not endorsed on the ballots, nor were any affidavits made' and subscribed to by said voters 'on the day of said election, at said precinct, during voting hours, in compliance with the imperative mandate of the statute, but on the contrary, said affidavits were made on the day following the election. Sees. 1 and 2, Laws 1913, p. 324. (6) The ballots of Schafer, Rehm, Donze and Owen, absent voters, and voting for Meyers, were illegal. No affidavit was made and subscribed to by Schafer. No names of judges were on the ballot of Rehm. No written affidavit was made and subscribed to by Owen. The affidavit of Donze shows on its face that it was made in Ste. Genevieve County. Laws 1913, p. 324, secs. 1, 2 and 4.
   REVELLE, J.

— This is a contested election case. At the last general election in Ste. Genevieve County, held on November 3, 1914, the contestant and contestee were opposing candidates for the office of presiding judge of the county court of said county. Both parties are elegible under the law to hold the office.

The notice and counter notice of contest, in addition to the necessary averments as to the nomination of candidates and the holding and results of the election as declared by the election officials, contain numerous averments charging specific objections to many of the votes cast, based on the alleged non-residence, non-age, and other disqualifications of the voters, as well as numerous irregularities of many of the ballots.

In addition to the foregoing grounds of contest, the contestant attacks the constitutionality of the Act of the General Assembly, approved March 14, 1913, relating to the manner in which voters who are absent from their place of residence may cast their vote. [Laws 1913, p. 323.]

Applications to the circuit court were made by both parties for writs directed to the clerk „of the county court, commanding him to open, count, compare with the lists of voters, and examine the ballots in his office which were cast at the election in contest, and to certify the result of such count back to said court. This was done, and according to the count made by the county clerk, as shown by his report, the contestant received a total of 1121 votes, and the contestee received a total of 1130 votes, a majority of nine votes in favor of contestee.

■ A certificate of election was accordingly issued to contestee, and he was duly commissioned as presiding judge of that court.

Such other facts as are material and essential to a determination of the questions presented will be noted in the opinion.

In this action the legislative act (Laws 1913, p. 323) relating to absent voters and prescribing the manner in which they may vote, is challenged as being obnoxious to the Constitution, and the facts are such that a determination of this question is essential to a decision. The title to the act is:

“AN ACT to enable railroad employees, traveling salesmen and other persons, required by their duties or occupation to be absent from their voting precincts on the day of any general election, to cast their votes wherever within the State they may be and providing for the counting of such votes and prescribing penalties for violations thereof.”

The body of the act provides that employees of railroad companies, traveling salesmen, college students, and all other persons who are qualified electors of this State, and who, by reason of their business, occupation or duties, are, on the day of the general election, unavoidably absent from the county in which they reside, may cast their ballots in any voting precinct of the State where they may present themselves on the day of the election. The act then proceeds to name the conditions and regulations under which the absent voter may avail himself of the privilege, and enjoins upon him certain duties, among which are: that he present himself during voting hours and make and subscribe, before one of the election judges, an affidavit relative to his residence and qualifications as an elector; the reasons of his absence from his county; and that he has not voted and will not vote elsewhere. This being done the act provides that he is then entitled to a ballot of a certain and specifically defined kind, to-wit, a blank ballot with the names of all the judges written on the back thereof. This ballot he is then authorized to mark, fold and hand to the judge in like manner as a resident voter. The act further provides that such ballot shall not be deposited in the ballot bos nor entered upon .the poll books, but shall together with the affidavit, be sealed in an envelope, which shall be signed by one of the judges and be filed with tbe clerk of tbe county where the ballot was cast, and be by him transmitted to the clerk of the county where the voter resides. Ample provisions are then made for recording and counting such votes in the county of the voter’s residence, as well as for the preservation of the ballots and penalties for violation of the act.

The court nisi held the act invalid upon the ground that it contravenes the 12th subdivision of section 53, article 4, of the State Constitution, which is as follows:

“The General Assembly shall not pass any local or special law for the opening and conducting of elections, or fixing or changing the places of voting.”

This conclusion was a sequence of the construction which the court placed upon the act, that, by its terms and title, it was applicable only to the city and county of St. Louis, and was, therefore, local and special. The conclusion is unassailable if the construction placed upon the act be correct, but in this we disagree with the learned trial judge.

The title, instead of limiting the effect of the act to those two subdivisions and persons residing therein, in no uncertain terms, and, as clearly as language can express, makes it applicable to all counties, and all absent electors, wherever they may reside or be on the date of election, provided both places are in this State. In fact, the title so unmistakably expresses the applicability of the act to the whole State that it would be more- or less defective as a title to an act applicable only to the city or county of St. Louis.

It is urged, however, that the terms of section 1 do so limit and restrict it. It is true this section is not drawn with the nicety and precision which characterizes the work of a linguist, but its intent and meaning is not difficult of understanding when read with other parts. The worst-that can be said of it is, that certain of its terms are ambiguous, and in that case we are at liberty to go to the title as .a clue or guide to the intention of the Legislature. The title is clear, unambiguous and expressive, and, when invoked as an aid in the construction, removes all doubt as to the meaning. We have frequently said that doubtful words of a statute may be enlarged or restricted in their meaning to conform to the true intent of the law makers, when manifested by the aid of sound principles of interpretation. [State ex rel. Aull v. Field, 112 Mo. 554; Glaser v. Rothschild, 221 Mo. l. c. 211; Bingham v. Birmingham, 103 Mo. 345.] In dealing with subjects of this character we have also other well-established rules which cannot be ignored. We are reluctant to declare statutes unconstitutional, and we resolve all doubt in favor of their validity. We indulge the presumption that the Legislature did not intend to violate the organic law of the State, and we place the burden upon him who asserts the contrary to convince us. Acts of the Legislature and the provisions of the Constitution must be read together, and so harmonized as to give effect to both, when this can be consistently done.

We are of the opinion that the Legislature clearly intended this law to be of general application, and that it is not special or local, and, therefore, not offensive to section 53, article 4, of the State Constitution.

It is next urged by respondent that the act violates that part of section 2, article 8, of the State Constitution, which reads as follows:

“Every male citizen . . . possessing the following qualifications shall be entitled to vote at all elections by the people. . . . He shall have resided in the county, city or town where he shall offer to vote at least sixty days immediately preceding the election. ’ ’

It is clear that this section does not undertake to prescribe the manner in which a choice shall be expressed, or a vote cast, or the ballots prepared, deposited or counted; but merely the qualifications of the voters. It is true, - under this provision, a person can vote only in the place of his residence, but this constitutes no inhibition against any particular method the Legislature may provide to enable bim to so vote. The word “vote” means suffrage, voice or choice of a person for or against a measure or the election of any person to office. It is not synonymous with “ballot,” which is merely the means or instrument by which the person votes, or rather expresses his choice or exercises his right of suffrage. [Clary y. Hurst, 138 S. W. 566; State ex rel. v. Blaisdell, 119 N. W. 360; State v. Custer, 66 Atl. 306; Gillespie v. Palmer, 20 Wis. 544; Davis v. Brown, 34 S. E. 839.]

Had this measure provided that such absent voter could vote, that is, could exercise a right of choice for or against matters relating to the place where he did not reside, for instance, candidates of a county or district other than that of his residence, there would be no doubt of its invalidity; but it does not so undertake. The act specifically provides that the ballot shall not be deposited in the ballot box, nor entered upon the poll books, but that same shall, under certain safeguards and regulations, be transmitted to the clerk of the county where the voter resides, and be there counted. The act of legally voting, as the term is understood in law, embodies the right to have the vote counted. This act does not undertake to authorize a person to vote in a place other than that of his residence, but merely provides a system or method through which he may vote in the place of his residence.’

It is not class legislation, because it applies alike to all persons who, by reason of their business duties, are unavoidably absent from their county. It is our opinion that this classification is not objectionable, and that the act does not violate the constitutional provisions heretofore pointed out.

It is next said that the act offends against that part of section 3, article 8, of the State Constitution, which provides that all ballots shall be numbered in the order in which they shall be received, and the number recorded by the election officers on the list of the voters opposite the- name of the voter who presents the ballot. ,

The only provision in this act bearing upon this phase is the following: “The county court . . , or board of election commissioners . . . shall open said envelope or envelopes and record said ballot upon the poll sheet of the proper precinct or ward in their possession in' the same manner as clerks of election record votes.” There is nothing whatever in the act providing that the ballots of the absent voters shall not be numbered; nor is there anything in the act which would make the numbering thereof for the purposes contemplated by the Constitution inconsistent with its provisions. The most that could be said is that this part of the Constitution requiring ballots to be numbered is as much a part of this act as if it were employed therein; and there being nothing in the act inconsistent therewith, it cannot, for this reason, be said to be in conflict with the Constitution. In fact, the provision of the act heretofore quoted can reasonably and logically be so construed as to indicate an intention on the part of the Legislature that these ballots should be numbered by the county court or the board of election commissioners. These officers are election officers within the meaning of this provision of the Constitution, and there is nothing therein contained which prevents the numbering of these ballots by such officers. This constitutional section does not undertake to point out what particular election officers shall perform this duty. It must also be borne in mind that the purpose of this section is to provide a means of contesting elections and so preserving evidence that it may be used for this purpose. The provisions of this act, when construed, as above, accomplishes the very object intended by the section.

Having disposed of the constitutional objections we come now to the question of construction from another angle. Are the requirements that the voter make and subscribe to the affidavit, and that the ballot have the names of all' the judges on the back thereof, mandatory -or merely directory, and does failure of compliance in these respects vitiate the ballot? In construing statutory provisions the object and purpose which induce their enactment and the mischief they are intended to prevent must be given effect (Spitler v. Young, 63 Mo. 42), as must also the results and consequences' of a proposed interpretation. [Glaser v. Rothschild, 221 Mo. l. c. 210.]

Counsel for appellant urge that the doctrine announced in Bowers v. Smith, 111 Mo. 45; Hehl v. Guion, 155 Mo. 76; and Gass v. Evans, 244 Mo. 329, that the omission of the initials' of the judges from the ballot, under the general election laws, does not invalidate the ballot, should be applied to these requirements. We again approve the conclusion reached in those cases, as well as the reasons which induced it; but do they apply here? As with statutes, so with decisions, their underlying reasons must not be overlooked. The conclusion in those cases is based chiefly upon the propositions: (1) That when the legal voter has performed his own duty, and ;his ballot has been received and finally deposited in the box, and his name entered in the poll books, this being done in his. presence, he is justified in doing nothing more, and that his rights should not be defeated through the remissness and dereliction of the election officers. (2) That the object in. requiring the initials on the ballot “was. not to guard against the counting of an illegal ballot, but......to guard against fraud while the election was in progress.” In the leading one of these cases (Hehl v. Guion, supra) the court announces that this requirement is addressed to the election judges, and says to them: Examine the ballot to see' if it is properly endorsed, and if not, do not deposit it; do not mislead the voter, but give him another ballot that is properly marked, and. while he is present, and let him cast it. This, officer, is your duty, and the opportunity for its performance is readily at hand. If you do not accept the opportunity and do not do your duty when the voter has done his, your conduct shall not defeat his -rights.

It must also be remembered that, under the general election laws, the regular election officers are residents of the immediate community in which those entitled to vote also reside, and have more or less knowledge of the qualifications of the voters, as have' also the local challengers and others having the right to be present and participate.

Let us now consider the requirements and character of the act under review. In the first place, it was enacted to provide the means and machinery through which a certain class of citizens might enjoy a privilege which, under the general laws, could not be exercised. Its beneficiaries are of one class and specially favored, and they vote under conditions altogether different to others. The act itself declares (Sec. 1) that they can avail themselves thereof only upon the conditions and under the regulations spécified. As early as Smith v. Haworth, 53 Mo. l. c. 89, this court said:

“It is a very salutary rule, long sanctioned by reason, experience and authority, that special laws, that give origin to new and unexpected departures from general rules, should be closely scrutinized, and the powers therein conferred strictly construed.”

When we turn to the act we find that a stranger to the election officers and residents is authorized to present himself for the purpose of securing something which under the general laws only a resident is entitled to, and something which is carefully guarded by the law, namely: a ballot of a certain form. The act provides that before he is so entitled he, himself, shall perform certain duties. It prescribes that he, not the election officers, shall make and subscribe to an affidavit, in which he recites the conditions which entitle him to a ballot. When he has performed this duty he is then, and not before, entitled to receive a ballot of a specified kind, to-wit, one bearing the names of all the election judges. With this ballot the election judges from whom he receives same have nothing whatever to do in the way of finally accepting or rejecting same. They perform merely the ministerial duty of preserving and forwarding same to the authorized election officers. When this ballot is received at the place of the voter’s residence and by the election officers who are authorized to act thereon, they have no opportunity to give him another or different ballot, as has the election officer under the general election laws. In fact, the election officers from whom he receives his ballot are but his agents for the purpose of enabling him to get his ballot to the proper election officers. For the purpose of his ballot the authorized election officers are the members of the county court or board of election commissioners at the place of • his residence, and when his ballot reaches them they have neither power nor opportunity to do anything towards meeting the requirements created by the act and enjoined upon him and his agents. This being a special privilege conferred upon such person, and being available only under certain conditions, it seems to us that until these conditions are complied with the privilege cannot be exercised and that the voter has not performed his full duty until they have been met. Special privileges usually enjoin additional duties, and so it is with this act.

Again, when the ballot of the absent voter is received and counted, it is not done by the local resident election officers, who generally know the qualifications of the voters, but by officers whose opportunity to so know is not equally available. For these reasons it is not strange that the Legislature would purposely provide regulations and safeguards different to those under the general election laws and where the conditions are different.

It has been urged against this act that it is vicious and dangerous, because capable of being made an instrument of fraud, and, therefore, a means of defeating the public will. In the absence of proper safeguards we can conceive of such consequences, but when the provisions of the act are strictly complied with we think they afford a fairly sufficient shield against this. These safeguards should, however, not be destroyed by construction, but should be carefully preserved, in order to give life, force and beneficent effect to the act. The affidavit of the voter and the names of the judges where the ballot is procured are essential to guard against fraud and to properly identify the ballot and voter, as well as to warrant the county court or election board in acting thereon. Unlike the requirement of the general election law that the ballot contain the initials, the object of these requirements is. to guard against the procuring and counting of illegal ballots, rather than against fraud while the election is actually in progress. It is our opinion that before a voter can avail himself of this special privilege it is incumbent upon him to see that these provisions are complied with, and that failing to so do his ballot should not be counted. These provisions relating to the duties of the authorized election officers after the receipt of a properly prepared ballot should be construed as were the provisions of the general election laws in the cases heretofore cited.

In the instant case the trial court rejected the ballots of sixteen absent voters without regard to their regularity or irregularity, basing his action upon the alleged invalidity of the act. Of the sixteen thus rejected, thirteen were deducted from the total vote of the contestee, and three from the total vote of contestant. Of the thirteen deducted from contestee the record discloses that eight were cast at Commerce, Scott County, Missouri, and that no affidavit was made or subscribed to at that time, and that the ballots did not have the names of all the judges endorsed thereon. Sometime after the date of the election, and before the ballots had been forwarded, one of the persons who had acted as an election judge at that precinct, went to the county where these parties were employed and there undertook to take their affidavit. This was after the day of the election and at a time when his functions as a judge had terminated.

Another of the votes deducted from contestee’s total was that of E. P. Owen, who did not subscribe to the affidavit, and with whose ballot no affidavit was transmitted; also the vote of one L. W. Donze, with whose ballot appears an affidavit, but which discloses that it was made in a county different to the one in which the ballot was cast; also the vote of J. J. Shafer, whose ballot did not have indorsed there.on the names of all the judges, and with whose ballot was a purported affidavit to which said Shafer had not subscribed.

The votes of the absent voters M. H. Harmon and A. E. Lottes, whose ballots are in regular and proper form, and with which were transmitted sufficient affidavits, were also deducted.

From the total vote of contestant the court deducted three votes of absent voters. Of these one was cast at Commerce under the same conditions and with the same irregularity as the eight heretofore mentioned as having been deducted from the total of contestee; also the vote of C. B. Rickard, whose ballot did not have indorsed thereon the names of all the judges; also the vote of Lon Graves, whose ballot and affidavit are in regular form and free of irregularity.

In our ■ opinion the court should have deducted from contestee’s total vote eleven, 'instead of thirteen, votes; and from contestant’s total two, instead of three, these being the votes of absent voters whose ballots wholly failed to conform to the requirements, which we hold to be mandatory.

In addition to the above-mentioned changes in the official returns the court found that the election judges wrongfully rejected and refused to count for contestant two votes which had been cast for him, and which should have been counted; also that they received and counted for Contestee eight votes which were irregular and not entitled to be counted, because the persons casting same were disqualified as electors, either because of non-residence or non-age. The court further found that nine votes should he deducted from-the total vote of contestant, because the persons casting same were likewise disqualified as electors on account of non-residence and non-age.

Besides the persons whose votes the court found to be illegal on account of disqualification, both the contestant and contestee challenge in their pleadings the votes of numerous other electors, but these grounds were rejected because of failure of proof.

The record in this case is necessarily somewhat lengthy, and it would serve no useful purpose, and would unduly lengthen the opinion, to enter into a discussion of the court’s findings relative to the qualifications or disqualifications of the various challenged voters. It is sufficient to say that we have carefully gone through the entire record and are entirely satisfied with the findings and conclusion of the trial court on these questions. The trial court reduced its findings to writing, and we have had the benefit thereof, and it is due this learned judge to say that his findings in these respects are, in our opinion entirely correct and disclose such fairness that same cannot be challenged. In fact, we find but little complaint from either party relative thereto.

By deducting the thirteen votes of absent voters from contestee’s total, and three of such votes from contestant’s total; and by adding to and subtracting from the remaining vote the number which the court found should be deducted from each party on account of disqualifications of certain persons who voted, the result as found by the trial court was as follows: Contestant, 1111 votes; Contestee, 1109 votes. Making the calculations according to the views herein expressed, the result is: 1112 votes for contestant; 1111 votes for contestee; leaving contestant a majority of one vote.

From this it follows that the judgment of the lower court that the contestant was legally elected at said election to the office of presiding judge of the county court of Ste.’ Genevieve County, Missouri, should he, and the same is, affirmed.

Blair, Walker and Graves, JJ., concur; Bond, J., concurs in result; Faris, J., dissents; Woodson, C. J., absent.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    THE STATE ex rel. HARRY T. HEIMBERGER, Appellant, v. BOARD OF CURATORS OF THE UNIVERSITY OF MISSOURI, a Corporation; D. R. FRANCIS, J. C. PARRISH, C. B. ROLLINS, SAMUEL SPARROW, JOHN H. BRADLEY and G. L. ZWICK, Constituting a Majority of Members.
    In Banc,
    July 18, 1916.
    1. CONSTITUTIONAL LAW: Mandatory Statute: Mandamus: Burden. It is incumbent on a board of curators of an institution established by the State who refuse to obey a mandatory statute, to establish beyond reasonable doubt that the statute is not susceptible of any reasonable interpretation consistent with the Constitution, which will leave in it any command to them which is enforcible by mandamus and within the scope of the alternative writ.
    2. -: Interpreted by Words Used. No forced or unnatural construction is to be put upon the language used in the Constitution. The primary rule of interpretation is to seek out the thought expressed by the words used. To ascertain that thought, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers have plpced them. If thus regarded, the words embody a definitt meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one alone that was intended to be conveyed.

      3. -: Departments of the Univercity. The language of the Constitution which commands that “the General Assembly shall, whenever the public school fund will permit and the actual necessity of the same shall reouire, aid and maintain the State University, now established, with its present departments,” did not deal with the right or power of the General Assembly to establish other departments, but spent its direct force entirely upon an injunction to aid and maintain, under stated conditions, the departments already established. And that being the case, courts are not permitted, for the purpose of attempting to discover some hidden, some occult intent of the people, to resort to documents other than the Constitution itself.
    4. -: -: In Light of Constitution of 1865. There is no such difference between the language of the Constitution of 1875, which required the General Assembly to “aid and maintain the State University, now established, with its present departments” and the language of the Constitution of 1865 which required the General Assembly to “establish and mairtain a State University with departments for instruction in teaching, in agriculture, in natural science,” as makes invalid a statute increasing the departments of the University. It cannot be assumed, because the word “establish” used in the Constitution of 1865 was omitted and the word “aid” substituted therefor in the .Constitution of 1875, that the framers of the Constitution of 1875 recognized the University as already established with definite departments and meant the General Assembly should maintain it with only those departments. There is no need, either for the courts or the General Assembly, to resort to the Constitution of 1865 for an ascertainment of the words used in the Constitution of 1875, for those words are so plain that they need no construction.
    5. -: Department in University: Not Aided by Other Schools. A statute authorizing the School of Mines and Metallurgy to provide for courses of study in mining, mechanical, electrical, chemical and civil engineering and to confer scientific degrees, is not violative of the constitutional provision requiring the General Assembly to “aid and maintain the State University,” on the theory that it affords a means by which students will be attracted to said school and away from the University, and would not to that extent be an “aid” to the University. The word “aid” means to assist by an appropriation of money.
    6. -: -: No Actual Necessity For. The statute providing for new courses of study in the School of Mines and Metallurgy is not unconstitutional on the theory that there is no “actual necessity” for their establishment. The constitutional provision requiring the General Assembly to aid and maintain the State University as “the actual necessity of the same may require” simply commands aid to be given under stated conditions, does not forbid aid, and does not refer to necessary courses of study.
    7. -: -: Investment of Government in Curators: Control by Legislature, The language of the Constitution declaring that “the government of the State University shall be vested in a board of curators” does not deprive the General Assembly of power to legislate concerning the University with respect to the establishment of new departments or new courses of study in established departments. These words do not constitute the board a separate and distinct depart: :ent of the State Government, over which the General Assembly has no control except in the matter of appropriations for its maintenance.
    8. -: -: The Word Government. The language of the Constitution declaring that “the government of the State University shall be vested in a board of curators” vests nothing in them save the government of the University; and “government” means control, direction, regulation, management, exercise of authority in regulating something, and there was in the use of that word no express or implied restriction upon the power of the Legislature to add new departments or courses of study to the University, nor anything to devest the General Assembly of power to legislate respecting the University.
    9. -: -: Legislative Power. The legislative power, subject to the limitations contained in the Constitution, is vested in the General Assembly, which is vested with all legislative power not expressly or by necessary implication for- • bidden by that instrument.
    10. --: In Light of Creative Statute. There is no necessity to resort to extrinsic matter for an ascertainment of the meaning of the words of the Constitution declaring that “the government of the State University shall be vested in a board of curators,” for those words plainly do not devest the General Assembly of all legislative control over the University; but if such extrinsic matter is pertinent the most relevant is the Act of 1839 which gave origin to the University and used the same words, and it would be unreasonable to say that the General Assembly by using those words intended to devest itself, for all time, of power to legislate respecting the University.
    Mandamus.
    Writ granted.

      C. C. Bland, Frank H. Farris, J. J. Crites, Watson & Livingston, Lorts & Bruer and Holmes & Holmes for relator.
    (1) The university incorporated under, the name of the Board of Curators of the University of Missouri is declared to be a body politic. R. S. 1909, sec. 11097. That is, it is a corporation pertaining to the public; a public, not a private, corporation; a g-uasi-munieipal corporation, subject to the discretionary control of the law-making power of the State. Head v. Curators, 47 Mo. 220; Carrick Academy v. Clark, 112 Tenn. 483; State v. Irwin, 84 Pac. (Wyo.) 90; Mayor of Baltimore v. Keeley Inst., 81 Md. 106; Downing v. State Brd. of Agr., 129 Ind. 443; University v. Williams, 9 Gill. (Md.) 365; Smith v. Board of Trustees, 141 N. C. 143; Young v. Regents Kansas U., 87 Kan. 239; Applegate v. Taylor, 224 Mo. 465. (2) The board of curators is not invested with judicial power by either the Constitution or any statute of this State; its functions are administrative and executive and its duties are to obey the will of its principal and master, the State, as expressed by the Legislature, and its action in expressing doubt as to. the constitutionality of the Buford Act is an impertinent usurpation of judicial power. State ex rel. v. Johnson, 234 Mo. 338; State ex rel. v. Williams, 232 Mo. 56; Smith v. Indiana, 191 U. S. 138; County Court v. West Virginia, 208 U. S. 192; State v. Cruise, 28 Okla. 217; State v. Burley, 80 S. C. 127. (3) The word “govern” as used in section 5, article 11, of our Constitution, and in Sec. 11097, R. S. 1909, is synonymous with the word manage. And the board of curators being nothing more than an executive and administrative body, is the agent of the State created for the purpose, of administering the affairs of the university and its departments in such manner as the State by its Legislature may direct. New Stand. Diet. 1059; Am. Encyc. Diet., 251; St. Louis v. Howard, 119 Mo. 41. And in construction of a constitutional provision its words are to be taken in their ordinary, usual and natural meaning. State ex rel. v. Riley, 203 Mo. 187. (4) The Legislature has from time to time during the history of the university enacted laws in respect to it, and laws prescribing the powers and duties of' the board of curators and its officers. It has also required that specific subjects be taught and designated that degrees should be conferred, and this class of legislation has never been challenged ' by the board until now. R. S. 1865, eh. 65, secs. 17 to 62; R. S. 1909, secs. 11100 to 11149. The legislative construction of the Constitution is entitled to great weight and ought not to be departed from unless manifestly wrong. Sanders v. St. Louis Anc. Line, 97 Mo. 26; State ex rel. v. Railroad, 74 Mo. 166; State v. Hostetter, 137 Mo. 636; Railroad v. Brick Co.,'85 Mo. 307. (5) If under any possible state of facts an act would be constitutional the courts are bound to presume that such facts exist. 6 R. C. L., sec. 112, p. 112; McGuire v. Railroad, 131 La. 340. (6) There is a strong presumption in favor of the constitutionality of a legislative act, and it will not be declared invalid unless its unconstitutionality is so manifest as to leave no room for reasonable doubt. State ex rel. v. Port, 210 Mo. 526; State ex rel. v. McIntosh, 205 Mo. 602.

      O. M. Barnett and Charles E. Yeater for respondents.
    (1) While, ordinarily, the constitutionality of a statute, imposing duties purely ministerial upon a subordinate ministerial officer, whose personal rights are not thereby involved, cannot be raised by him in a mandamus return, that rule is not applicable here, because the curators of the University are not ministerial officers charged simply with ministerial duties, but are officers, subject to the direction of no superior, holding offices created by section 5 of article 11 of the Constitution, which vests in them as guardians of a public trust the government of the University, and imposes in them the broadest powers of discretion and judgment, expressly un- ' trammelled in the exercise of such powers by any authority in the General Assembly to prescribe the same by law. State ex rel. v. State Bd. of Comrs., 36 Utah, 406; Van Horn v. State ex rel., 46 Neb. 62; Norman v. St. Bd. of Mgrs., 93 Ky. 537; Sterling v. Regents, 110 Mich. 369; State ex rel. v. County Collector, 151 Mo. 663; State ex rel. v. Munson, 153 Mo. 61. (2) ' The Constitution of 1865 provided that the- General Assembly “shall also establish and maintain a State University, with departments for instruction in teaching, in agriculture and in natural science” but the Constitution of 1875 took away from the Legislature that power to “establish” “departments” of the University by striking out the word “establish” and by substituting the new word “aid” in lieu thereof, and concurrently, by a new provision vested in the board of curators the unlimited power of the government of the institution, subject to no directory power of the General Assembly, whereby the establishment, by the Buford Act, of courses in or a department of engineering or mechanic arts at the Rolla School, admitted by relator’s pleadings to have been done, is in violation of the Constitution. (3) The rational method and the sound educational policy adopted by the Convention of 1875 was to invest in a compact, continuous board of curators the unlimited and unfettered government and control of the University, the members of which by-actual contact with the physical plant, and personally advised by the president and deans of the colleges and schools composing the institution, could plan and carry out a wise and continuous policy, in the-conduct and development of the institution. (4) The Convention. of 1875 took away the former power to “establish a state university with departments” expressly invested in the General Assembly in the Constitution of 1865, and substituted the power to “aid” in lieu thereof, and confirmed and ratified the words of the Act of Feb. 24, 1870, reading, “there is hereby established the Agricultural and Mechanical College and the School of Mines and Metallurgy ... as a distinct department of the University of the State of Missouri,” and made it the duty of the General Assembly to “aid and maintain the State University now established with its present ■ departments.” Hence the General Assembly has no power to disestablish, dis-organize, change or alter departments of the University ‘then, in 1875, established, nor to hinder instead of to “aid” any of such departments, but must “aid” each of the then present de-• partmentS; and the Buford Act, which thus violates the departmental plan of the University, in the Constitution of 1875, by setting up the same courses and degrees in the Mechanic Arts, alleged in the return, and admitted by the motion for judgment to have been provided, for and taught in the said Agricultural and Mechanical College before and during the sitting of the Constitutional Convention of 1875 and thereafter, is therefore void and invalid. (5) The courses provided for in the Buford Act were established by law and given in the Agricultural and Mechanical College at Columbia in 1875, and relator’s motion so admits, and the departmental plan of the University in the Constitution requires the General Assembly to aid and maintain the “present departments” as “the actual necessity of the same may require” and such act therefore violates' the requirement of the Constitution by imposing on the treasury continuous future appropriations to maintain at useless expense courses not required by actual necessity and which duplicate existing legal courses of a “department” “present” in 1875, whereby the act is invalid.
   BLAIR, J.

— This is an original proceeding by mandamus, the purpose of which is to compel the curators of the University of Missouri to obey an act duly passed by the General Assembly of the State and signed by the Governor, March 23, 1915. [Laws 1915, p. 391.] That act amends sections 11134 and 11141, Revised Statutes 1909, and, with the amendatory matter indicated by italics, reads as follows:

“Sec. 11134. Objects of These Colleges. — The leading objects of said colleges shall be to teach such branches as are related to agriculture and mechanic arts and mining, including military tactics, and without excluding other scientific and classical studies, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions of life.
“See. 11141. Right to Confer Degrees. — The college of agriculture a,nd the school of mines and metallurgy shall have power to confer degrees suitable to their designs and courses of study; and the school of mines and metallurgy shall provide courses for, and shall confer the bachelor of science and professional degrees in mining engineering, in metallurgy, in mechanical engineering, in electrical engineering, in chemical engineering, in civil engineering, and the degrees of bachelor and master of science in general science.”

So' far as concerns section 11134, the act merely restored it to the form in which it was first enacted (Laws 1870, sec. 2, p. 15) and which it had retained (Sec. 7278, R. S. 1879; Sec. 8739, R. S. 1889; Sec. 10505, R. S. 1899) until it was amended in 1909. [Sec. 11134, R. S. 19-09.]

The unitalicized portion of section 11141,. as above set forth, constituted the entire section 11141 in the Revised Statutes of 1909. The words “college of agriculture” used therein were inserted in 1909 in lieu of the words “the college of agriculture and mechanic arts,” and these, in turn (Sec. 105-05, R. S. 1899), had supplanted the words “the agricultural and' mechanical college” as they appeared in the Act of 1870.

The “colleges” referred to in the Act of 1915 are the College of Agriculture, as it is how called, and the School of Mines and Metallurgy.

The Act of' 1870 (Laws 1870, sec. 1, p. 15) which was in force at the time of the adoption of the Constitution of 1875, upon the interpretation of one of the sections of which Constitution the defense depends, established “the Agricultural and Mechanical College and a School of Mines and Metallurgy, provided for by the grant of the Congress of the United States as a distinct department of the University of the State of Missouri.”

It is unnecessary to set out the pleadings, since no question of consequence is raised in connection with them. It will suffice to say the return admits relator’s capacity to sue, the passage of the Act of March 23, 1915, and respondents’ refusal to obey or permit obedience to its command. It is the command of the General Assembly contained in the amendment made by the Act of 1915 to section 11141 which relator seeks to have enforced and the enforcement of which respondents resist.

No question is raised as to the regularity of the passage of the amendatory act, nor is it contended the amendment it makes to the statute is couched in language whose meaning is obscure or equivocal. Respondents simply deny the power of the General Assembly to exert over them any authority of the kind implied by the enactment of the amendment. Their position is that they are independent ,of the General Assembly and not subject to its direction or control in any manner or degree. The argument whereby they seek to maintain this position is grounded upon section 5 of article 11 of the Constitution of 1875, which section reads as follows:

“The General Assembly shall, whenever the public school fund will permit and the actual necessity of the same may require, aid and maintain the State University, now established,. with its present departments. The government of the State University shall be vested in a board of curators to consist of nine members, to be appointed by the Governor, by and with the advice and consent of the Senate.” •.

The question presented is whether this constitutional provision invalidates the Act of March '23, 1915. In order to maintain the affirmative of this it is incumbent upon respondents to convince us beyond a reasonable doubt that the act assailed is not susceptible of any reasonable interpretation consistent with section 5 of article 11, which will leave in it any command to them which is enforeible by mandamus and within the scope of the alternative writ.

I. In support of their position that the quoted constitutional provision devests the Gen-era^ AssemWy authority over the and vests all authority in respondents, the first branch of the argument advanced is based upon a comparison of that provision with section 4 of article 9 of the Constitution of 1865. That section provided that ‘ ‘ the General Assembly shall also establish and maintain a State University with departments for instruction in teaching, in agriculture, and in natural science, as soon as the public school fund will permit.” The insistence is that, in view of the presence' of the command in the Constitution of 1865 that the General Assembly should establish “a State University with departments ” and of the omission of this command from the Constitution of 1875, therefore, in the language of respondents’ counsel, it is “plainly apparent and very clear that the express power to establish a university with departments in the General Assembly was withdrawn and came to an end on the adoption by the people of the Constitution of 1875. By their vote the people struck out the word ‘establish’ and inserted in lieu thereof the word ‘aid’ and ratified and confirmed the departments at that date ‘present’ or ‘existing.’ ” This is counsels’ statement.

It may he conceded the' Constitution of 1875 deprives the General Assembly of the power to disestablish the University or any department thereof in existence when the Constitution was adopted. That matter is not in issue in this case, and in so far as the argument is directed to, that question, save in one particular hereafter noticed, it is not relevant to the question before us. The - rest of this argument, however, requires us to ascertain the meaning of the first sentence of section 5 of article 11 of the Constitution, and a restatement of a fundamental principle or two is pertinent. In interpreting the language of the Constitution, “the thing which we' are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If thus regarded the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. . . . That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning.” [Cooley’s Const. Limitations (7 Ed.), p. 91.] “In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. As Marshall, J., says: The framers of the Constitution and the people who adopted it ‘must be understood to have employed words in their natural sense, and to have intended what they have said.’ This is but saying that no forced or unnatural construction is to be put upon their language; and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their framers never held, that it frequently becomes necessary to re-declare this fundamental maxim. Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.” [Cooley’s Const. Limitations (7 Ed.), pp. 92, 93.]

1. The words composing the first sentence in section 5 of article 11 of the Con- ,,. . . . . , stitution contain m themselves no hint of an intent to forbid the establishment by the General Assembly of new departments in, or in connection with, the University. Plainly and simply they command that the General Assembly “shall, whenever (1) the public school fund will permit, and (2) the actual necessity of the same may require, (a) aid and (b) maintain the State University, now established, with its present departments.” Obviously, this provision does not directly deal, at all, with the right or power of the General Assembly to establish other departments. Its direct force is spent entirely upon an injunction to' aid and maintain, under stated conditions, the departments already established. No “subtlety,” no “ingenuity of argument,” logically, can wring from the language used any other meaning. In such case we are not permitted, for the purpose of attempting to discover some hidden, some occult intent of the people, to resort to documents other than the Constitution itself. It is only in case the meaning remains in doubt after the whole instrument is examined that the court may turn to extrinsic facts for aid in interpretation. When the words used themselves permit of no doubt as to the meaning, that ends the matter. There is no room for construction.

There is no impropriety in adding that we see nothing in the differences between the language employed in the Constitution of 1865 and that used' in. section 5 of article 11, Constitution 1875, which aids respondents on this branch of the argument. The one commanded, under stated conditions, the establishment of a State University and made mandatory the inclusion of specified departments. The other, again under named conditions, commands the General Assembly to aid and maintain tbe University ■with its departments as then established. If the General Assembly was under the necessity of pointing to specific constitutional authorization for all its enactments, there might be something' in the argument. Since it is under no such necessity, the argument fails.

2. Next, it is urged the establishment in the School of Mines and Metallurgy of the department or courses prescribed by the Act °f March 23, 1915, would be and is quivalent to the disestablishment of the College of Agriculture to the extent to which students who might pursue those studies in the last named school might or would be attracted to the School of Mines and Metallurgy.

Unless the General Assembly is forbidden by the Constitution to establish new departments in the State University, or, at least, to establish courses of study in one department which overlap those offered in another, it retains that power, since all . legislative authority not denied the General Assembly by the Constitution resides in it. Absent a constitutional limitation upon its powers, the General Assembly certainly may legislate as it wills, subject only to the limitations imposed by the Constitution of the United States. The argument is, however, that the limitation upon the power of the General Assembly to establish new departments or courses of study is found in the constitutional command that the General Assembly shall “aid and maintain” the University with its established departments. The position taken is that to establish a department which might attract students who might have attended the established department, to that extent tends to destroy and not to “aid” such department and thus violates the constitutional command to “aid and maintain” such department. The implication invoked by counsel is not warranted by the language of the Constitution. It is not a necessary one, is conjectural and argumentative (Cooley’s Const. Limitations (7 Ed.), p. 98) and is not of a kind to warrant us in seizing upon it to pare away the legislative powers of the General Assembly. On the other hand, the command to “aid” the University so clearly has reference to aid by the appropriation of money, that argument in support of that interpretation would be a waste of words and space. That such an injunction furnishes a basis for holding the General Assembly’s power limited as insisted is not a ■ tenable position. Whether the spirit of the constitutional provision would be violated by appropriations for other schools or departments before proper “aid” had been given the departments specifically in mind in section 5 of article 11, and whether each General Assembly is the sole judge of the existence of the conditions under which aid is enjoined, are matters not involved on this branch of the case. Neither are we concerned with the policy, wisdom, or even the justice of a constitutional provision not in conflict with the Federal Constitution. When the people of the State, subject to the single condition mentioned, write plain words of plain meaning in their Constitution it is none of our business to deal with its policy, wisdom or justice. We are not empowered to substitute our judgment for that of the whole people. This is the established rule of all courts, and counsel do not question it.

Further, to indicate to what the argument being considered leads, to adopt counsels’ interpretation would be to preclude the General Assembly from providing in high schools and normal schools courses of study overlapping freshmen studies in the University in 1875. That any such result was intended by the words ■ being considered is not a reasonable conclusion.

3. Another contention is that there is no “ actual necessity ’ ’ for the establishment of the courses named in the Act of March 23, 1915, and, as a consequence, their establishment is forbidden by section 5 of article 11 of the .Constitution. This conclusion is reached by again treating that section as dealing with new departments and new courses of study instead of appropriations of money and by interpreting the Constitution as a prohibition against any “aid” except such as is required by “actual necessity.” The constitutional provision is not susceptible of such interpretation. It forbids nothing in the way of aid and maintenance. It simply commands that aid shall be given under stated conditions. The argument falls with the incorrect interpretation upon which it is based.

II. It is insisted the provision in section 5 of article 11, that “the government of the State Universitv shall be vested in a ^ board, of curators” deprives the Gen-' eral Assembly of all power to legislate concerning the University with respect to the establishment of new departments or new courses of study in established departments and, in itself, renders invalid the Act of March 23, 1915. Counsel do not mince words. In plain language they state their contention to be that the quoted words constitute the board of curators a separate and distinct department of the State Gevernment, over which the General Assembly has no power and with which it has practically nothing to do except to make such appropriations as it deems proper under that part of section 5 which deals with appropriations as above pointed out. Upon this phase of the case the argument depends wholly upon the meaning of the word “government” as it appears in section 5.

1. The effort to find independent support for this position in the words “vested in” and in the fact that like words are used in the clauses relating to the executive, legislative and judicial departments of the State government fails, of course, since there is nothing “vested in” the board of curators save the “government” of the University, and we are thus brought back to the question as to the meaning of that word.

Several other like arguments are found in respondents’ brief. These need no answer other than that which may be found in what is said upon the principal argument as to the meaning of the word government.

2. Another somewhat similar contention is that the board of curators and the General Assembly derive their powers from the same document and that by it they are created separate and dhtihet constitutional bodies; that a direct power conferred upon one necessarily precludes its existence in the other; that the Constitution vests the government of the University in the board of curators, and, therefore, deprives the General Assembly of' that piower, and, it follows, the Act of lffi.5 is Invalid. This reasoning begs the question. The question is, what does the word “government” mean1? If its meaning is such as to confer upon the hoard of curators the exclusive powers contended for, that ends the matter and the position taken is correct. If ¡suck is not its meaning, then the conduslon does not follow the argument hut results from an unjustifiable assumption of the very thing the argument is offered to establish. The argument employs an assumed definition of the word government to define the word. This process cannot advance the investigation.

3. Counsel ground their most earnest effort upon the decision in Sterling v. Regents, 110 Mich. 369. It is necessary to examine this ruling. That case was decided under a provision of the Constitution of Michigan which, so far as relevant, is as follows: “The Board of Regents shall have the general supervision of the University and the direction and control of all expenditures from the University interest fund.” An associated provision required, in effect, that the interest on certain funds should be “inviolably appropriated and annually applied” to the maintenance of the University. At the time these constitutional provisions were adopted in Michigan this interest was the University’s sole source of support. In 1895 the Michigan Legislature passed an act, the purposes of which were to disestablish one of the departments at Ann Arbor, the location of the University, and establish a like department at Detroit. This act was attacked as unconstitutional, and the Supreme Court of Michigan held it invalid on the grounds (1) that the history of the times, the constitutional debates and reports of certain investigating committees indicated the framers of the Constitution intended to exclude the Legislature from all power over the university; (2) that for forty-six years the quoted constitutional provision had been so acted upon and construed; (3) that in a previous case (Weinberg v. Regents, 97 Mich. 246, two of five judges dissenting), involving the liability of the board of regents for failing to require bond of building contractors as provided by statute, the same court had held the board of regents a separate constitutional body and declared that board exempt from the statute; (4) that to uphold the act in question would nullify the specific control over funds given hy the Constitution to the board of regents; (5) that the. constitutional provision specifically defined the powers of the board of regents and that such specific definition excluded legislative action of the kind attempted in the act mentioned; and (6) that the Constitution defined the powers of the board of regents and defined those of no other constitutional corporation; that general powers are given the board of regents without specific restriction while those of other boards and offices created by the same Constitution are restricted, and that this implies the exclusion of such restrictions upon the powers of the board of regents, in accordance, the court said, with the rule “that where a general power over one subject is conferred upon one body in one clause of an instrument, without any restricting or qualifying language, and the like power over another subject is conferred upon another body in another clause of the same instrument, with restricting • or qualifying language, the restrictions or qualification’s of the second clause' cannot be read into the first clause. On the contrary, they must be excluded.”

(a) Resort to the history of the times, constitutional debates and the like is justified only when the language whose meaning is sought remains doubtful after it has been read in the light of the whole instrument of which it is a part. [Cooley’s Const. Limitations (7 Ed.), p. 100.] Even when they are relevant under this rule constitutional debates are not the most trustworthy aids, since these in no wise necessarily represent the views of the majority of the convention and less certainly reflect those of the people whose votes adopt the constitution, but who did not hear the debates. In this case we have before us but a fugitive sentence or two uttered in the constitutional convention, the report of the debate having been practically destroyed by fire in 1911. What is preserved affords no basis for interpretation. Counsel do 'not contend to the contrary. The history .of the University points to probable reasons for taking the appointment of the curators out of the hands of the General Assembly, but could be of little or no aid in determining the meaning of “government” as used in section 5 of article 11. That history is to be found chiefly in certain acts of the General Assembly prior to 1875. None of these arguments could be available, however, except under the conditions stated above.

(b) Practical construction is to be. resorted to only when language is doubtful, in the sense stated in the preceding paragraph. What practical construction there has been runs somewhat contrary to respondents’ contention. The chapter on the State University discloses a number of acts of the General Assembly purporting to affect the University. Two of these were designed to establish departments or chairs in the University. The board of curators rendered obedience to those.

(c) We have no previous decision in this State comparable to the case of Weinberg v. Regents, supra, upon which the Supreme Court of Michigan declared it might have been content to rest its judgment. Nor does that decision advance any reason for the conclusions reached which are not included in the other grounds of decision in Sterling v. Regents.

(d) Our Constitution gives the board of curators no specific control over funds unless such power is given by vesting in the board the “government” of the University. This merely returns us to the question as to the meaning of that word.

(e) The same thing is true of the Michigan court’s ground of decision (5) since the definition in our Constitution of the powers of the board of curators is found in the word “government” used in section 5.

(f) With respect to the last (6) argument advanced in Sterling v. Regents, it is to be observed it- is based upon the proposition that the Michigan Constitution invested the board of regents of the University of that State with general powers. The argument, therefore, if applied here, begins by taking as true the only thing in issue in the case before us. We can assume that was well enough under the facts in Sterling v. Regents, but, obviously, a like assumption here again begs the question we are asked to decide. Further, the rule quoted from the Michigan decision (6) we do not regard as unqualifiedly applicable in processes of constitutional construction. It is certainly not available to expand the meaning of words used without appended restrictions and introduce into their meaning something new. The absence of express restrictions upon the meaning of the word .“government” adds nothing to its meaning which we are justified in seizing and using to cut down the General Assembly’s legislative power further than it is diminished, if at all, by the use of the word itself in its natural sense.

Upon the question presented in this case, we do not, for the reasons given, think the decision in Sterling v. Regents, supra, is authority one way or the other.

4. The legislative power, subject to the limitations contained in the Constitution, is vested in the General Assembly of the State of Missouri. The General Assembly retains all legislative power not expressly or by necessary implication forbidden it by the Constitution. On the theory that certain language -wholly withdraws from the field of the General Assembly’s legislative power the subject-matter of the act of March 23, 1915, we are asked to hold that act unconstitutional and invalid. With respect to our duty in such case it has been said: “The judiciary can only arrest the execution of a statute when it conflicts with the Constitution, It cannot run a race of opinions upon points of right, reason and expediency with the law making power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima-facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the Constitution and the case shown to come within them.” Further, “when the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument.” [Cooley’s Const. Limitations (7 Ed.), pp. 236 et seq.l

(a) The single question remaining is whether, under the principle stated, the vesting of the “government” of the University in the Board of Curators expressly or by necessary implication limits the General Assembly’s legislative power to such an extent as to render Void the act of March 23, 1915. Obviously, section 5 of article 11 contains no express limitation upon the legislative power of the General Assembly, in the sense that it includes any direct prohibition directed against that body. There are in the Constitution many express limitations (Art. 4, sec. 43, et seq.) but it is not contended any of these lend support to respondents’ position. The real question, therefore, is whether the exclusion of legislative authority arises by necessary implication from the word “government” as employed in section 5 of article 11. As stated in the beginning, the words of the Constitution must be given their natural signification in the connection in which they are used. The primary meaning of “government” according to the Century Dictionary and Cyclopedia is “guidance; direction; regulation; management; control; as, the- government of one’s conduct.” Its primary meaning, according to "Webster’s New International Dictionary, is: “Act or fact of governing; exercise of authority in regulating the action of something; control; direction; rule; regulation; specif, the direction of the affairs of state; the ruling and administration of a political body.”

We repeat what has already been said, i. e., that it may be conceded the General Assembly cannot disestablish the State University or abolish any department of it which was in existence when the Constitution was adopted in 1875; and that it is the General Assembly’s duty, under conditions fixed by the Constitution, to aid and maintain the University and the departments mentioned. These things do not affect the question before us. The act of March 23, 1915, does not,( as pointed out above, conflict with .such a construction of the Constitution or purport to. work disestablishment of anything. In fact, its aim is plainly the contrary, i. e., to add to the University a certain department or courses of study, not to subtract therefrom. This is the.thing, therefore, counsel contend is forbidden by necessary implication arising out of the word government. The natural signification of the word is as the dictionaries quoted give it. Now “exercise of authority in regulating something,” “guidance,” “direction,” “regulation,” “control,” all imply the existence of something subject to such guidance and regulation. They do not contain the idea of creation, origination, or the like, in whole or in part. The vesting of the powers of government in the legislative, executive and judicial departments implies no attempt to vest in either magistracy any power to add to the State itself. What reason can he given for attributing to “government” a different meaning when used with respect to the powers of the board of curators? If the word vests no power to create or originate departments in the board of curators, it is manifest it gives rise to no implication excluding such powers from the field of the General Assembly’s authority, and we cannot strike down the act of March 23, 1915, on the theory that the Constitution commits to the board of curators alone the power ^ of building as well as governing a university. The constitutional powers of the board consist of those which “government” includes — no more and no less. Except as to those the General Assembly is free to act while the powers conferred are beyond the General Assembly’s reach. Before, however, we hold the General Assembly powerless to enact particular legislation, he who asserts such lack of power carries the burden of maldng his position clear beyond a reasonable doubt. We do not think that has been done in this case. Certainly no implication excluding the General Assembly’s power to legislate upon subjects of one character can necessarily arise from the fact that authority over subjects of a different character is invested in the board of curators.

(b) There is also in the Constitution itself another provision which supports the conclusion stated. Under the head of “Limitations on Legislative Power” it is provided that “all revenue collected and moneys received by the State from any source whatsoever shall go into the treasury, and the General Assembly sháll have no power to divert the same, or to permit money to be drawn from the treasury, except in pursuance of regular appropriations made by law. ’ ’ Neither at the time of the adoption of the Constitution in 1875 nor since has the State University had any income, independent of appropriations by the General Assembly, which bore any considerable ratio to the sums necessary for its maintenance. It must have been apparent to the framers of the Constitution that if the people adopted the Constitution, the University’s development and growth, so far as money was required therefor, would depend upon appropriations from the State Treasury. That these appropriations would be under the absolute control of the General Assembly, the framers of the Constitution expressly provided. Nor did they include in that instrument any command or recommendation that the Legislature should appropriate anything for departments in addition to those already established in 1875. Having thus necessarily left in the General Assembly the complete control of the funds available and necessary for the development of the University, it is hardly reasonable to give to the language of section 5 of article 11 a meaning which can be given no actual force and effect, so far as concerns the establishment of new departments and courses of study, unless that force and effect are given by the General Assembly through appropriations for those purposes. We assume it was intended the University should grow. It is hardly conceivable that section 5 of article 11 was framed for the futile purpose of attempting to deny to the General Assembly a power which the provision as to appropriations thus indirectly, but most effectually, vests in the General Assembly beyond all question, no matter what construction is placed upon section 5 of article 11. Of course, there is nothing in the suggestion that the proceeds of the collateral inheritance tax becomes in any sense the property of the University, any more than any other tax paid into the Treasury, until it is appropriated to the University by the General Assembly. Nor do we understand counsel to press the suggestion to any such extent. This fund, therefore, is also under legislative control and is not available as .the basis of an answer to what is said in this paragraph. Nor was any such tax levied in 1875. The Constitution itself thus furnishes another reason for a refusal to agree to respondents’ construction of section 5 of article 11.

(c) Again, if extrinsic matter could be said to be pertinent, the act establishing the University is perhaps more relevant to the question before us than is anything else.

The first section of the Act of February 11, 1839 (Laws 1838, sec. 1, p. 176), which gave origin to the University reads thus: “A University is hereby instituted in this State, the government whereof shall be vested in a board of curators.” This section has never been amended. [Sec. 11096, R. S. 1909.] It was in that identical form when the Constitution of 1875 was framed and adopted. Certainly, if it is in conflict with section 5 of article 11 of the Constitution it is to that extent invalid. In its language it is not so, however. The word “government” is the hey to its meaning, just as it is to the meaning of the sentence of the Constitution under discussion. We do not understand respondents to contend that the word “government” as used in the statute referred to has any other or different meaning from that which it has in section 5 of article 11. If the word is employed in the Constitution in the same sense as in the statute, it is, if there could be any excuse for resorting to ex■traneous matter in interpreting the constitutional provision, the nearest at hand, the most apposite, the most natural aid available in the circumstances.

What did the word “government” mean used in relation to the subject and standing in the statutes of the State for thirty-seven years before the Constitution of 1875 was adopted! To say the General Assembly by that language intended to devest itself of power to legislate respecting the University would be unreasonable. Such an intent would have met insuperable constitutional obstacles. No General Assembly could, by mere enactment, cut down the legislative power of any of its successors. So to construe the Act of 1839 and later re-enactments of the same thing is to convict the General Assembly of a course so foolish and ridiculous as to render its action absurd. No court would have put such a construction upon the act had its meaning been drawn in question. Such absurdities are never attributed to legislatures unless there is left no rational means of escape. Such being the case and the Constitution having borrowed the very words of the statute upon the subject, it is not far fetched to offer the statute as corroboration of the conclusion already stated' as to the meaning of the word employed in the Constitution.

It is no answer to this to say the statute was and is merely a statute and subject to change by the Legislature. That is true. But that does not justify-a construction of the statute which transforms it into a rank absurdity when there is a reasonable, natural and simple interpretation at hand.

As already stated, other arguments are advanced in the briefs, but, as already pointed out, they are logically included within those specifically considered. The alternative writ is made absolute.

All concur, except Bond and Faris, JJ., not sitting; Woodson, C. J., absent.