author: GRAVES, C. J.

text:
    THE STATE ex rel. GEORGE R. CROCKETT v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    July 12, 1917.
    1. CUSTODY OP CHILD: Contract. The leaving of a child by her father with the maternal grandparents to be kept by them until womanhood, is of but limited value in determining who is entitled to her custody.
    2. -: Grandparents. It is not always to the best interests of a child to be reared in wealth and luxury, or to be reared by fond grandparents past the meridian of life.
    3. -: Right of Pather: Conditions Upon Which Child May Be Awarded to Others. Under the ruling in Matter of Berenice S. Scarritt, 76 Mo. 565, without a finding of one of two things, namely, (1) either that the father is an incompetent person to have charge of his child, or (2) that the welfare of the child itself, for some special or ..xtraordinary reason, demands a different disposition of it at the hands of the court, the court, upon a habeas corpus for its possession brought by the father against those having it in custody, must award it to him; and a finding that the child is a “frail, nervous, imaginative and strongly emotional little girl, whose love for her grandparents is of pathetic intensity” does not establish the “special or extraordinary reason,” and the Court of Appeals in holding that it did contravened In Matter of Berenice S. Scarritt, 76 Mo. 565, and Weir v. Marley, 99 Mo. 484.
    4. -;-: Welfare of Child: Presumption. The presumption of law is that the best interest of the child is to be in the custody of its father, and with such presumption prevailing a showing against the father must be made or that there is some special and extraordinary reason why such custody should not be in him; and to fail to give effect to that presumption is to contravene the ruling in Weir v. Marley, 99 Mo. 484.
    Certiorari.
    Record quashed.

      Robert M. Reynolds and Virgil V. Huff for relator.
    (1) This court will by certiorari review and quash the judgment and opinion of the Courts of Appeál in any cause, wherein it appears that said court in reaching and rendering’ such judgment and opinion, failed to follow the last previous decision of this court upon any question of law or equity arising therein. State ox rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Ellison, 256 Mo. 644; State ex rel. v. Reynolds, 257 Mo. 19; State ex rel. v. Robertson, 264 Mo. 661; State ex rel. v. Reynolds, 265 Mo. 88; State ex rel. v. Ellison, 266 Mo. 604; State ex rel. v. Ellison, 268 Mo. 225. (2) This rule applies in cases of original writs and proceedings in such Courts of Appeal, as well as in other cases. The object of the rule is to secure harmony and uniformity in opinion. Ex parte Conrades, 185 Mo. 411; State ex rel. 'v. Robertson. 264 Mo. 661. (3) The laws as declared by this court is, that ‘ fin contests of this sort unless the father of the infant child is an unfit or incompetent person to have charge of it, or unless the welfare of the child itself, for some special or extraordinary reason demands a different disposition of it at the hands of the court, it is the duty of the court to award him the custody.” In re Scarritt, 76 Mo. 565; Weir v. Marley, 99 Mo. 484. (4) The law presumes against the fact that a parent is an unfit and incompetent person to have the custody of his child, and also against the fact of the existence of any special or extraordinary reason, demanding that the child be kept from the parent’s custody, and the burden is upon the party resisting the parent’s claim to show and make manifest to the court that he is an unfit or incompetent person to have the custody of the child or that some special or extraordinary reason does in fact exist demanding that for the best interest of the child it be kept from his custody, and until such matters are made to appear the parent is entitled to its custody, the presumptions in favor of his rights, including the presumption that it is for the best interest of the child, becoming conclusive and binding upon the court. In re' Scarritt, 76 Mo. 565; Weir v. Marley, 99 Mo. 484. (5) The law as- declared by this court in those two eases is, that where the right of the parent is resisted upon the alleged ground of a gift of the infant by the parent or of a contract or agreement or arrangement whatever by the parent and another, by which the custody of the child is awarded or given to such other (except in cases of deeds of adoption or apprenticeship) the presumptions still obtain, notwithstanding such gift, contract, agreement or arrangement, that the best interest of the child is to be with the parent, and that he is the proper person to have it, and the right of custody is under the law with him. The father’s right is paramount. In re Scarritt, 76 Mo. 565; Weir v. Marley, 99 Mo. 484. (6) The law as declared by this court in those two cases, is that: — in all cases where the infant is weak and helpless, the presumption is that the best interest and welfare of such infant is best served by being in the custody of its parent, and that no status, under such circumstances of infancy, whether created voluntarily or involuntarily can be sufficient to overthrow such presumption, uuless it be first made to appear that the parent is an unfit and incompetent person; and that the mere fact that some other party might he a proper party to have the custody of such child, and that the interests and welfare of such child would not thereby suffer, or would thereby be fully protected, is not a sufficient showing upon which to base a finding that the best interests of such child demand that the parent be deprived of its custody, or that the parent is an unfit and incompetent person for its custody. In re Scarritt, 76 Mo. 565; Weir v. Marley, 99 Mo. 484.

      Com. P. Storts, John A. Rich, Duggins & Dug-gins and Perry S. Rader for respondents.
    (1) Only jurisdictional errors can be reviewed on this writ; and unless this court finds that the Court of Appeals in its opinion failed or refused to follow the last previous ruling of this court on some • question of law or equity, this court has no jurisdiction of this cause, (a) The said Court of Appeals “shall have'power to issue writs of habeas corpus . . . and to hear and determine the same.” Constitution, art. 6, sec. 12. R. S. 1909, p. 88; Constitution, Amend. 1884, sec. 4. R. S. 1909, p. 101. (b) Certiorari “only brings up the record, and can only reach errors or defects which appear on the face of the record of the tribunal to which it is issued and which are jurisdictional in their nature.” State ex rel. v. Smith, 173 Mo. 414; State ex rel. v. Broaddus, 245 Mo. 135; State ex rel. v. Dowling, 50 Mo. 136; State ex rel. v. Wiethaupt, 254 Mo. 329; State ex rel. v. Robertson, 262 Mo. 538, 618. (2) This court cannot by the writ of certiorari correct any error of a court of appeals unless it be error affecting its jurisdiction. Unless that court refuses or fails to follow the last- previous ruling of this court on some question -of law ox-equity, its errors in matters of which it otherwise has constitutional jurisdiction cannot-be corrected by certiorari. State ex rel. v. Walbridge, 123 Mo. 532; State v„ Broaddus, 216 Mo. 342; State ex rel. v. Smith, 173 Mo. 414; In re Breck, 252 Mo. 327; State ex rel. v. Robertson, 262 Mo. 541; State ex reí. v. Dobson, 135 Mo. 12. (3) The conflict in decisions must be upon a point of law. Upon a question of fact, or a conclusion drawn from acknowledged rules of law and facts in evidence, this court cannot take jurisdiction by certiorari. State ex rel. v. Ellison, 256 Mo. 666; State ex rel. v. Ellison, 263 Mo. 515; State ex rel. v. Reynolds, 265 Mo. 93; State ex rel. v. Ellison, 269 Mo. 156. If the substantive facts are undisputed the matter resolves itself into a question of law. Knorpp v. Wagner, 195 Mo. 662. (4) The conflict in decisions should relate to matters of real substance, and does not mean that the decision of the Court of Appeals shall conform to the rulings of the Supreme Court to the point of absolute harmony. State ex rel. v. Reynolds, 257 Mo. 35. (5) The evidence of facts of the case must be gathered from the opinion of the Court of Appeals. State ex rel. v. Reynolds, 257 Mo. 35; Státe ex rel. v. Robertson, 262 Mo. 539; State ex rel. v. Ellison, 263 Mo. 514. The legality of the writ must be adjudged from matters appearing on the face of the record. State ex rel. v. Patterson, 229 Mo. 368. The writ can be used only to bring up the record. In re Breck, 252 Mo. 318; State ex rel. v. Broaddus, 245 Mo. 136. (6) The decision in every case must depend upon its own facts. State ex rel. v. St. Louis, 241 Mo. 238; Bank v. Clifton, 263 Mo. 218; Epstein v. Railroad, 250 Mo. 39; Bender v. Weber, 250 Mo. 561. “General principles of law may not be applied mechanically, but, in order to produce a just result, they should be applied in accordance with their underlying reason and with an eye to the shifting circumstances in judgment.” Knorpp v. Wagner, 195 Mo. 659; Greene County v. Lydy, 263 Mo. 91; Simpson v. Iron Works Co., 249 Mo. 399. And this rule applies when upon certiorari it is contended that the decision of the Court of Appeals is in conflict with the last previous ruling of this court upon some question of law or equity. State ex rel. v. Ellison, 269 M.o. 159; State ex rel. v. Ellison, 192 S. W. 727. (7) Habeas corpus is a legal and not an equitable proceeding. 21 Cyc. 283; Kline v. Kline, 57 Iowa, 386; Drumb v. Keen, 47 Iowa, 436; Jennings v. Jennings, 56 Iowa, 290; Kuhn v. Breen, 101 Iowa, 668; Sumner v. Sumner, 117 Ga. 229; Torns v. Neely, 134 Ga. 274; Dunkin v. Dunkin, 123 Iowa, 65; Lundstrum v. State, 140 Wis. 141; Ex parte Can ova, 84 S. C. 473; Brown v. Eobertson, 76 S. C. 152. (8) The proper disposition of the child in the habeas corpus case being a question of law, the findings or conclusion of the Court of Appeals cannot be reviewed by this court, if there was any substantial evidence to support that conclusion and that court acknowledged the rulings of this court as being the principles of law by which it should be and was guided. Eausch v. Miller, 192 Mo. 303; Brewing Co. v. St. Louis, 209 Mo. 607; Cole v. Mueller, 187 Mo. 640; Culbertson v. Hill, 87 Mo. 555. This court cannot interfere with the discretion of the Court of Appeals in reaching its conclusion unless there was an abuse of that discretion. Ingram v. State, 7 Mo. 294; Walton v. Walton, 19 Mo. 667; In re Wilson, 95 Mo. 184; State v. Sassaman, 214 Mo. 734. (9) The Constitution itself confines this court to a review of the law governing tile ease, and gives it no power to review the conclusions of the Court of Appeals if it rightly observed the law as previously declared by this court, (a) The Constitution, Article 6, Amendment of 1884, Sec. 6, E. S. 1909, p. 101, says that “the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Court of Appeals.” It does not include conclusions drawn ,from facts and correct legal principles. If the Court of Appeals followed the principles of law,as laid down by this court, its application of them to the case in hand, or its conclusion in allying those principles to the facts, if wrong, would ee mere error; and if the facts were different from those in the Scarritt and Weir cases, this court has no jurisdiction to coerce it into reaching a different conclusion, (b) This court can review only errors of law in a law case, even on appeal. Hamilton v. Boggess, 63 Mo. 252; Simpson v. Iron Works Co., 249 Mo. 399. (c) The Court of Appeals quotes the rule as announced in Berenice Scarritt and Weir v. Marley, says that rule is- of “universal acceptation” and that it “does not overlook or ignore” that rule, but on the contrary, guided by it, reached its conclusion that “the true welfare of the child, which is the primary consideration, will be best promoted by denying the writ.” '(d) The facts of this case as found by the Court of Appeals and the facts of the cases of Berenice Scarritt and Weir v. Marley as found by this court, are not the same; and being different in material substance, the Court of Appeals had the power and the right to reach a different conclusion than was reached by this court in those cases; and this court cannot interfere with that judicial discretion without destroying the constitutional power of that court “to hear and determine” a writ of habeas corpus (Constitution, art. 6, sec. 12).
   GRAVES, C. J.

Certiorari to the Kansas City Court of Appeals. The case in the Kansas City Court of Appeals was an original proceeding in habeas corpus to determine the custody of a child, Laura Marie Crockett, and the writ was sued out at the instance of the father of the child, George R. Crockett, the relator in the instant action. The respondents in the habeas corpus proceeding were the grandparents, W. Hall Baker and Laura Baker. The mother of the child died shortly after its birth, and the child was left with the' wife’s parents, above named, by the father. The Kansas City Court of-Appeals appointed a commissioner to take and report the testimony, as well as his conclusions of fact and law. This commissioner took the evidence, and reported the same, together with his conclusion of facts and law to that court. Such commissioner reached the conclusion that the father should have the custody of the child. Exceptions were filed to. his report, and the cause presented to the .Court of Appeals, where by a divided opinion the custody of the child was awarded to the grandparents. From such opinion Ellison, J., dissented, but did not certify the case here. Thereupon application was made for our writ of certiorari on the ground that the opinion of the Court of Appeals contravened controlling decisions and opinions of this court. Our writ was awarded, and the record of the Court of Appeals is now before us for consideration and action. Further details in the course of the opinion.

I. This is one of those cases that courts regret to have to decide. It is an exceptional one in its class. In many contests over the possession of children there are outstanding facts which appeal at once to the calm judgment of the court, and no feeling of regret is occasioned by the demand for action by the court. But this case is not one of those. Here the child by seven years’ nurture has become entwined in the very lives of the aged grandparents. She is the only child of a much beloved deceased daughter. In her face are the features of that daughter. In their minds and hearts she has in a way taken the place of that daughter. Her residence with them helps dispel the grief felt for the departed one, and their grief seems deep and long-lasting. .

On the other hand she is the idol of her father. His feelings for her seemingly have never waned, although after some years, he chose another to take the place of the mother. In other words, it is a case where sentiment may be so stirred as to warp calm deliberate judgment of the legal questions involved.

The record of evidence as recited by the learned-judge who wrote the majority opinion in the Court of Appeals is a lengthy one, but it casts neither blemish nor blur upon the reputation of either of the contending parties. It gives one a better view of humanity to read this record, as thus written. Many of its interesting details serve no "good purpose in the instant case, because we only have the cold duty to determine the one question, i. e. did the Court of Appeals, upon the facts held in judgment, contravene well established rules of law announced by this court. For this purpose it is not necessary for us to recite all of the minute details of the case as has the learned judge who wrote for the majority in the Court of Appeals. There is much in the record tending to the view that the child was left with the grandparents to be kept until womanhood. We mean by this that the father had so consented. All this has but limited value in the disposition of such case, for it is well said in Weir v. Marley, 99 Mo. l. c. 495:

“An analysis^ of the many cases to which we have been cited by counsel serves only to confirm in our judgment the correctness of the ruling of this court in the case of Berenice Scarritt, 76 Mo. 565. That a father cannot by contract, other than such as are provided for by statute, confer upon another irrevocably and absolutely as against himself a right to the custody of his minor child; that notwithtanding any such contract, upon habeas corpus for the custody of such child, the custody will be awarded to the father, unless the welfare of the child demands that it sho'uld remain in, or be restored to, the custody of the person with whom it was placed by the father under such contract, or that some other disposition be made of it. Such a contract is not to be entirely ignored. It is to be considered, not for the purpose of fixing the rights of the parties, but for the purpose of shedding light upon their actual relations and feelings toward the infant and assisting the exercise of a wise discretion by the court, as to what disposition should be made of it for the promotion of its own welfare. ’ ’

This ruling leaves to us a review of a quite limited scope of facts, and the ruling of the Court of Appeals thereon in the opinion before us, as to the applicable law, upon such facts, and further whether such ruling contravenes decisions of this court. These facts, their application, and the legal questions we take next.

II. Upon the most vital question of fact in this case, the Court of Appeals says:

“The petitioner resides in Marshall where he is engaged in the real estate business. He is successful in business, belongs to one of the oldest and most highly respected families in the community and is a young man of high character. By his own efforts he has aceumulated an estate of more than $4,000 and has a yearly income from his business of $2,00(5. There is no question of his ability to support and rear his child in a proper and suitable manner.”

There is also a finding that the child is ‘‘ frail, nervous, imaginative and strongly emotional” and that her love for her grandparents “is of pathetic intensity.” Further that the grandfather on the mother’s side is a man of means (some $50,000 in property) and thereby financially able to look after the child. With these essential facts before us, as held in judgment by the Court of Appeals, does their opinion awarding the child to the grandparents do violence to the rule as announced by this court in the case of In re Berenice Scarritt, 76 Mo. 565, and Weir v. Marley, 99 Mo. 484? Nothing in this record shows the unfitness of the father for the custody of the child. We agree with Ellison, J., when in the dissenting opinion he says:

“The record shows, and it is conceded, that the character of each is the very highest and that the best moral atmosphere, ideals and example would surround the child at the home of either; and the evidence shows, without dispute, that Mr. Crockett’s present wife is’ a refined and an intelligent woman, even tempered, kind and gentle. They have no children and nothing appears to cause a thought that she would not be attentive, watching and loving. The evidence further shows that each of the parties is financially able to provide for the child and properly educate her. Though it does appear from the evidence that the grandfather is a man of much larger means than the father. This, evidently, was brought out to show that it was for the best interest of the child and her welfare that she be given into the custody of her grandparents. It would be stretching the meaning of law intended to be beneficent, to such length as to destroy its character, if we are to say that the best interest of a child lies with the custodian who has the most money. There are some grandparents, or other kinsmen, in this country who could provide extraordinary luxuries for children at enormous cost, and it would be a cruel prospect for an affectionate father who found himself outstripped in such measurement of material benefits.. Manifestly, the legal expression, ‘best interest of the child’ was never intended to penalize a parent for living a simple life, so long as he was an honest and respectable man with disposition and capacity to maintain and educate his child.
“This being the situation and these the circumstances, I am led to ask, What stands in the way of the father? Why should a good, affectionate and capable father be deprived of the custody and care of his child? Certainly not the law of nature, and neither does the law of the land. The truth is, the record shows nothing is in the way save the tender impulse and sentiment of the grandmother for her child who came to an untimely death. So far did she allow this love of the memory of her daughter to control her actions that she treated Mrs. Crockett with little respect and scant politeness. It so far blinded her to Mr. Crockett’s rights, that, though the father, he was not accorded much more privilege and association with his child than if he had been a mere acquaintance. The constant efforts he made and the different disappointments he had in seeing her, together with the slight and trivial excuses offered, made up several sad pages in-the record.
“I think the commissioner’s report should be approved and the proper judgment entered upon it.”

To this may we be permitted to add that it is not always to the best interest of a child to be reared in the lap of wealth and luxury. On the contrary the facing of the stern realties of life in more humble spheres, often times is the thing which brings out and develops .true womanhood and manhood. Nor are we prepared to say that it is always to the interest of a child to have it reared by fond grandparents past the meridian of life. The lives of many girls and boys have been blighted by the unrestrained indulgences of grandparents. But it is not for us to theorize in this case. To us comes alone the cold proposition of law as to whether or not on the recited facts the Court of Appeals has, in applying the law, contravened the previous rules of this court. "We think the court has contravened our rulings, as we shall attempt to show in the concluding paragraph. •

III. Now hearing in mind the facts of the case let us look to the law as heretofore announced by this court. In the case of In the Matter of Berenice S. Scarritt, 76 Mo. l. c. 582, this court said:

“As shown by the pleadings, this is a contest between the father of the infant in- question, on the one side, and its grandparents, on its mother’s side, on the other.
“There is but little, if any, dispute between the parties as to the law generally applicable to such contests. It is conceded that the father is the natural guardian of his child, and as such entitled to the custody of its person. It is also conceded that' in contests of this sort it is the duty of the court to award the person of the infant to the custody of the father, unless it is made manifest to the court that the father, for some reason, is unfit or incompetent to take charge, of it; or unless the welfare of the child itself, for some special or extraordinary reason, demands a different disposition of it, at the hands of the court. Such appears to be the language and current of authorities, to which we have been cited, or to which we have had access. Indeed, this is the admitted law. About this there is no controversy. It is also conceded that the father, by the common law, cannot irrevocably divest himself, even by contract with the mother, or any other person, of the custody of his children. It is held, both in England' and in this country, that an agreement by which the father surrenders the custody of his child, is not binding; and that he is at liberty to revoke his consent afterwards and obtain the child by writ of habeas corpus

In Weir v. Marley, 99 Mo. l. c. 494, we further said:

“In all civilized countries, in which the family is regarded as the unit of social organization, its minor members must and ought to be subject to the custody and control of those who are immediately responsible for their being, for the reason that by nature there has been implanted in the human heart those seeds of parental and filial affection that will assure to the infant care and protection in the years of its helplessness, to be returned to the parents again when they in their turn may need protection, in their years of helplessness and of their child’s strength and maturity. The law, at the birth of an infant, imposes upon the parent the duty of such care and protection, to the performance of which the instincts of nature so readily' prompt, and clothes bim with the right of custody, that he may perform it effectually, upon the presumption that such custody, being in harmony with nature, is best for the interest, not only of the parent and child, but also of society; conceding, however, that the primary object is the interest of the child,- the presumption of the law is that its interest is to be in the custody of its parent.”

The facts held in judgment by the Court of Appeals do not show the father to be an incompetent person to have charge of his child. On the contrary such facts show that he was not only highly competent, but financially able to render all the dues, imposed by nature and by law, from a father to a child. Nor do thé facts found show that “the welfare of the child itself, for some special or extraordinary reason demands a different disposition of it, at the hands of the court.” Without a finding of one of the two things mentioned, under our ruling in Scarritt’s case, supra, the child goes to the father. The fact that the little girl is a “frail, nervous, imaginative and strongly emotional little girl, whose love for her grandparents is of pathetic intensity” is not “some special or extraordinary reason” demanding a different disposition of her. In ope of her tender years (seven years) the breaking of love for her grandparents, however pathetically intense, 'can do no serious injury to the child. In fact to do so, would but give her a chance in a very short time to develop the same character of love for the father, which is the natural status for father and child.

If she he nervous, imaginative and strongly emotional she needs the guidance of a loving and dutiful father. On" the facts found, the judgment and opinion of the Kansas City Court of Appeals clearly contravenes the rule of law in Scarritt’s case, supra.

Nor did the Court of Appeals give effect to that presumption which we spoke of in Weir v. Marley, supra. We then said that the presumption was that the best interest of the child was to- be in the custody of the parent^ With such prevailing presumption, a showing against the parent must be made, or that there was some special and extraordinary reason why such custody should not be in the father.

In our judgment the opinion of the Court of Appeals in this case, upon the facts held in judgment by such court, contravenes both of 'our opinions, supra. For that reason their judgment and opinion should be quashed and it is so ordered.

All concur, except Bond, Paris and Williams, JJ., who dissent.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE ex rel. J. HENRY CARUTHERS, Appellant, v. LITTLE RIVER DRAINAGE DISTRICT et al.
    In Banc,
    July 12, 1917.
    1. ABSTRACT: Showing of Motion for New Trial: Appellate Review. If “the short form of transcript” filed in the appellate court sets forth the filing and disposition of the motion for a new trial, the review will not be confined to the record proper, although the printed abstract of the record proper does not contain any recital showing the filing of the motion or the disposition made of it.
    2. DRAINAGE DISTRICTS: Canals Across Public Highways: Prior Condemnation and Assessment of Damages. A drainage district and those acting for it cannot be enjoined iron cutting channels or ditches across public highways until by condemnation proceedings the damages have been ascertained and paid, if their construction is authorized by the provisions of the drainage statutes.

      3. PUBLIC HIGHWAYS: Appropriation to Different Use: Prior Condemnation. The public highways belong to the State and are already devoted to a public use, and the Legislature may authorize their appropriation to a different public use, as it has done .through the drainage statutes. The State is not concerned in the ascertainment of the value of the public easement in them except to determine whether the proposed added use is one in the interest of the public, and of that the Legislature is the judge; and a proceeding by condemnatioh to ascertain the value of so much of the easement as the Legislature has by statute authorized to be appropriated for a drainage canal or ditch, being another or different public use, would be a useless formality.
    4. -: Bridges Over Drainage Canal. The statutes require the county to build the bridges made necessary by the construction of drainage canals or ditches across or through the public highways by a drainage district organized under the Circuit Court Act prior to 1913 and not since reorganized under the Act of 1913.
    Appeal from Cape Girardeau Circuit Court. — Row. Frank Kelly, Judge.
    Affirmed.

      J. Henry Garuthers and Edward D. Hays for appellant.
    (1) Injunction the Proper Remedy. Where the public easement is interfered with by obstructing the right-of-way, relief will lie by injunction. The injury proposed is one not measurable in monetary damage. The nuisance, being of such a nature as to be permanent, and tp permanently invade the right of the public to the easement, entitles the county to equitable relief by injunction. Elliott, Roads & Streets, 495, 496, 501; 37 Cyc. 252; 29 Cyc. 1219; Lockwood v. Railway, 122 Mo. 86; Debach v. Railway, 89 Mo. 483; Lokenan v. Railway, 36 Mo. App. 363-372; State ex rel. v. Drainage District, 190 S. W. 897. (2) An easement is subject to condemnation, and for which the owner is entitled to compensation, as much so as if the land were taken to which the easement is appurtenant. 15 Cyc. 607. -(3) The county has the vested right in public roads as trustee for the public in holding the easement. Elliott, Roads & Streets, p. 321; State v. Faith, 180 Mo. App. 484; State v. Culver, 65 Mo. 607; State v. Walters, 69^ Mo. 463; Eailroad v. Totman, 149 Mo. 657; Zimmerman v. Snowden, 88 Mo. 218; State v. Wells, 70 Mo. 635. (4) As the law stood in 1907 when the district was incorporated (Laws 1905, p. 190 et seq), the board of supervisors had power to condemn all property, including easements, for the right-of-way of the channels, etc. No power was given them to destroy the public easement in a highway without condemnation. Laws 1905, p. 195, sec. 8259b. (5) In other states similar statutes have been construed to mean that roads and highways must he assessed according to damage and benefits the same as other property in the district, and in such jurisdiction, as well as in jurisdictions where the law is silent as to assessing public roads, according to damages and benefits, it is uniformly held that the district must construct the bridges. Drainage District v. Elgin, 249 111. 260; Comrs. v. Drainage District, 246 111. 388; People v. Drainage District, 231 111. 435; Eailway v. Board of Supervisors, 116 N. W. (Iowa) 805; State ex rel. v. Henry County, 157 Ind. 96. (6) And no express statute is necessary to compel the drainage district which runs its ditch across a highway to restore the same. People v. Fenton & E. T. Co., 96 N. E. (111.) 864; State v. Drainage District, 132 N. W. (Neb.) 398; Conewango v. Shaw, 52 N. Y. 327; Highway Comrs. v. Drainage Comrs., 246 111. 38.

      Oliver & Oliver for respondents.
    (1) There is nothing presented for the review by appellant’s abstract, except the record proper. The abstract does not contain a recital that the appeal was duly taken, nor does it contain a recital that a motion for a new trial was filed. The bill of exceptions shows the filing of such a motion, but that is not sufficient. Case v. Carland, 264 Mo. 463; Dalton v. Eegister Co., 248 Mo. 150; Clark v. Clark, 191 Mo. App. 278; Walker v. Fritz, 166 Mo. App. 317; Eule 31, Supreme Court. (2) The temporary writ was properly dissolved. Tlie county is not entitled to' an injunction restraining the construction of the headwater diversion channel across the roads of 'Cape Girardeau County. The Legislature has granted the right to the drainage district to cut the roads. Secs. 5503, 5513, R. S. 1909; State ex rel. v. Drainage District, 190 S. W. 900; State ex rel. v. Drainage District, 252 Mo. 345; Douglas County v. Drainage District, 139 N. W. 718; Heffner v. Cass and Morgan Counties, 193 111. 439, 58 L. R. A. 353; Rigney v. Fischer, 113 Ind. 313; Railroad v. People, 200 U. S. 561. (3) The Legislature was acting within its power when it granted to the drainage districts organized under the Act of 1905 the right to cut the public roads. The public roads are under the control of the State itself, and the Legislature had full power to authorize a drainage district — a political subdivision of the State — to cut a public road without imposing any restrictions on the district for so doing. State ex rel. v. Drainage District, 190 S. W. 901; State ex rel. v. Drainage District, 252 Mo. 345; Douglas County v. Drainage District, 139 N. W. 718. (4) The duty to pay the cost of constructing the bridges must be borne by the county. The drainage district was organized November 30, 1907, under the Act of 1905, and has continued to operate under it and the applicable amendments enacted in 1907, 1909 and 1911, but has never been reorganized nor elected to proceed under the Act of 1913. The law in force prior to 1913 is the law governing this case, since the district has never brought itself within the provisions of the 1913 act. Secs. 5503, 5513, R. S. 1909; State ex rel. v. Drainage District,190 S. W. 901; State ex rel. v. Drainage District, 252 Mo. 354. It was a matter of discretion for the Legislature to say which of the two subdivisions of the State it would require to pay the cost. The Legislature having designated the couúty, the Courts cannot change it. Nor is it for the courts to say whether the Legislature acted wisely or unwisely. State ex rel. v. County Court, 3á Mo. 546; State ex rel. v. Mason, 153 Mo. 50; State ex rel. v. Owsley, 122 Mo. 68; State ex rel. v. Field, 119 Mo. 634; Eitling v.' Hickman, 172 Mo. 258; State ex rel. v. Board of Education, 141 Mo. 45; Harris v. Bond Co., 244 Mo. 690.
   WALKER, J.

The prosecuting attorney of Cape Girardeau County instituted this action by injunction in the court of common pleas of that county against the Little River Drainage District and its supervisors and secretary. The purpose of this proceeding was to enjoin the drainage district and others acting for it or in its behalf from cutting channels or ditches for drainage purposes across the highways of said county until they have obtained consent so to do from the county court of said county and have obligated themselves to hold said county and the taxpayers thereof harmless from any expense incurred in the erecting of bridges and approaches across said highways at the points where the district’s channels or ditches cross same.

The judge of the court of common pleas, after having granted a temporary writ, disqualified himself and the cause was transferred to the circuit court of said county, where it was tried, resulting in a judgment dissolving the temporary injunction, but requiring the drainage district before cutting through said highways to cause temporary bridges to be constructed over any channel, ditch or drain where said highways are cut, the same to be done only as the work proceeds and it shall be necessary for its further prosecution. From this judgment relator appeals.

I. It is contended that as the abstract of the record proper filed herein does not contain a recital of the fling of the motion for a new trial and show that an a~3peal was granted that our review must be limited to such portions of the record proper as have been incorporated in the abstract (Stark v. Zehnder, 204 Mo. l. c. 448; Railroad v. Wyatt, 223 Mo. l. c. 352), although the omitted entries appear in the bill of exceptions. As a general proposition this contention is well founded. Matters of record should be preserved, in the abstract of same and matters of - exception in the abstract of the bill of exceptions where the appeal is perfected by the filing of a perfect transcript. [Case v. Carland, 264 Mo. 463; Dalton v. A. L. Register & Co., 248 Mo. 150; Kuczma v. Droszkowski, 243 Mo. 57.]

Where, however, the appeal is perfected by the filing of an abstract preceded as required by the statute (Sec. 2048, R. S. 1909) by what is termed “a short form of transcript,”- to-wit a certified copy of the record entry of the judgment, order or decree appealed from, together with the order granting the appeal, we have held that although the abstract of the record proper may not in terms declare that a certified copy of the judgment and order granting the appeal was filed, if this fully appears in the short form it will supply the deficiency and authorize a review on the merits. . [Godfrey v. Godfrey, 228 Mo. l. c. 512; Coleman v. Roberts, 214 Mo. 634.] The reason for this rule is evident. The abstract derives its integrity from the record and the short form is but a part of same. They are, therefore, entitled, so far as concerns their verity, to like consideration. In this case the certified copy of the record entry showing the granting of the appeal also sets forth the filing and disposition of the motion for a new trial. The objections, therefore, to the sufficiency of the record are fully met and a review of the case on its merits is authorized.

II. The district sought to be enjoined was incorporated in November, 1907, under what is now article 1, chapter 41, Revised Statutes 1909, entitled the “Organization of Drainage Districts by Circuit Courts.” The relator contends that the district was not authorized to cut its canals or ditches across the highways without first securing the consent of the county and as a means to that end condemnation was necessary. It is further contended that the expense of restoring the highways to their former condition should be borne by the district, whereas the district maintains that such expense should be borne by the county. These contentions provoke two inquiries: (1) has the district taken the preliminary steps required by law to entitle it to cut across the highways? and' (2) upon whom does the burden legally rest of restoring the highways thereafter to their former condition?

No election having been made to reorganize the district under the Laws of 1913, pp. 232-267, a discussion of any of the provisions of that act is precluded. Not only does the act itself so provide (Sec. 52, p. 263) but our construction of same in State ex rel. McWilliams v. Little River Drainage District, 269 Mo. 444, expressly sustains this conclusion. The assignments of error other than those in regard to the contended application of the Act of 1913, are general in their nature and are properly included in the' two leading questions which we have stated demand solution.

The State in the exercise of its right of eminent domain has through the Legislature granted drainage districts the right of way for ditches, canals, levees and dikes across, over or through public highways. [Sec. 5513, R. S. 1909.] Paraphrasing the very clear exposition of this subject in the McWilliams case, Paris, J., speaking for the court, says in effect: In dealing with public highways county courts are but agents of the State, acting from necessity by delegated authority. Such title as the counties have in the fee or to the easements in such highways is in the nature of a trust for the whole people, or more comprehensively speaking, the State. Therefore, whatever interest in or control over such highways is possessed by the several counties is due to the fact that they are legal subdivisions of the State; and the latter for convenience and to facilitate administrative control has delegated to the counties whatever powers they possess over such highways. The powers thus conferred are subject always to the limitation that they do not trench upon private rights or attempt to devote such highways to other than a public use. That drainage districts are public corporations and that their canals and ditches are devoted to public uses is too well established to now demand discussion. [State ex rel. McWilliams v. Drainage District, supra; Carder v. Drainage District, 262 Mo. 542; Morrison v. Morey, 146 Mo. l. c. 561.] The crossing of public highways by such ditches is not incompatible with the conclusion that this use of such highways is a public one. The necessities of the case sustain this conclusion. No system of drainage ditches can be constructed which may not, to effect their completion, require the crossing of public highways; and it is elementary that statutes should be so reasonably construed as to give them their intended force and effect. [State ex rel. Bernero v. McQuillin, 246 Mo. 517; Curtis v. Sexton, 252 Mo. 221; State ex rel. St. Louis v. Railroad, 262 Mo. 720; State ex inf. v. Duncan, 265 Mo. 26; Johnston v. Ragan, 265 Mo. 420; State ex rel. v. Gordon, 266 Mo. 394.] A holding, therefore, that the crossing of a public highway by a drainage ditch through the instrumentality of a district organized under the statute, is not a public use or is incompatible with such use, would not be in harmony with the legislative intent, which is too evident to admit of question and would render possible, in many instances, the defeat of the purpose of the statute, a result always to be avoided within the bounds of reasonable interpretation.

The primary right of sovereignty of the State over the public highways therein, the public character of drainage districts as subdivisions of the State, and the consequent public use of drainage ditches as necessary instrumentalities to the existence of such subdivisions, being established, it follows that the State may in the exercise of its right of eminent domain authorize or direct the appropriation of such portions of the public highways as may be necessary to enable such drainage district to cut or cross same without the formality of condemnation proceedings if the power conferred is exercised in accordance with the intent and purpose of the drainage statutes.

This conclusion rests primarily upon the well established rule that the Legislature may authorize the appropriation of property already devoted to a public use to another and a different public use whenever in the judgment of "the Legislature the public interest so requires. [15 Cyc. 612, and cases.] Furthermore, ' condemnation proceedings, which are nothing more than compulsory sales of the owners’ interest therein, are authorized for the purpose of ascertaining the value of the property and to provide for compensation therefor. Here the owner is the State, or what is equivalent thereto, it possesses the right of control of the easement created by the .establishment of the highway.' It is not concerned in the ascertainment of the value of this easement except to determine whether the proposed added use is one in the interest of the public and of this the Legislature is the judge. A proceeding, therefore, by a condemnation under this state of facts would be nothing more than a useless formality.

III. The question as to whether the county should be required to build the bridges rendered necessary by the ditches or channels made in and across the highway by the drainage district has been answered in th-e affirmative by this court in two recent cases. [State ex rel. v. Little River Drainage District, 269 Mo. 444; State ex rel. v. Chariton Drainage District, 252 Mo. 345.] To our mind the reasoning of these cases is clear and conclusive and we find no ground here urged of sufficient force to cause us to change the conclusion there reached.

Some question'is raised by the respondents concerning the extent of the judgment rendered by the trial court.. Only the relator is appealing and hence our review is limited to the contentions made by him.

This results in an affirmance of the judgment and it is so ordered.

All concur.


author: BLAIR, J. GRAVES, C. J. BOND, J. WOODSON, J.

text:
    JOHN H. BRADLEY, Contestant, v. ARGUS COX, Contestee.
    In Banc,
    July 12, 1917.
    1. GENERAL ELECTIONS: Printing Wrong Name On Ballot: Vote Void. Only the names of party nominees can he printed on the ballots used at a general election. If the name of some one who is not a party nominee is printed on the ballots, they cannot be counted for such person. The only method hy which the voter can, on a party ticket, vote for any person other than the regularly nominated nominee of such party, is by erasing the printed name' of such nominee and writing in the vacant space under his name the name of the person of his choice.
    2. -:-: Writing in Name of Nominee Omitted. There is no provision in the law permitting the voter to write in the name of the party nominee which has been inadvertently omitted or misprinted. If the name of a person who is not the party nominee is printed on the ballot, the voter cannot erase that name and write in the vacant space under it the name of the nominee and then have his vote for that nominee counted. By statute the blank space is provided for the name of the voter’s choice when that choice is some other person than the nominee.
    3. -: Voter Providing His Own Ballot. The voter cannot provide his own ballot at a general election. He can use only the ballot prepared by the county clerk and received from the judges of election.
    4. Ballot Cast as Printed: Vote for Nominee. A i arty ballot, voted and cast as printed, must be counted as a vote for the party nominee for the office, even though his name is not printed upon it, hut the name of some other person is. [BOND, WALKER and WOODSON, JJ., dissenting.]
    5. -: Counting Vote for Nominee Whose Name Was Not Printed on Ballot. Bradley was the Democratic nominee. There were 1311 ballots cast on which the name of Johnson, who was not the nominee of any party, was printed. These ballots were headed “Democratic Party,” were prepared by the county clerk, and handed by the judges of election to the voters as they came to vote, and the names of the Democratic nominees for all other officers were printed thereon. The ballots were returned by the voters without erasing the printed name of Johnson and without writing in the name of Bradley or of any other person, and without any attempt to change them. The law required Bradley’s name to be printed on the ballots and prohibited the voters from writing his name thereon and from providing other ballots for themselves. Held, that the ballots must be counted for Bradley. This conclusion is enforced by the statutes themselves.

      Held, by BOND, J., dissenting, with whom WALKER, J., concurs, that the votes actually cast for Johnson cannot be counted for Bradley by the courts after the election is over.

      Held by WOODSON, X, dissenting, that conceding that all the voters who voted for Johnson thought they were voting for their party nominee, it does not follow that they thought they were voting for Bradley.
    6. -: Disfranchising Voters: Error of Official: Legal Fraud: Oral Evidence of Voter’s Intention. The courts should not so construe the statutes as to permit the disfranchisement of large bodies of voters because of an error of a single officer in any case in which they are fairly susceptible of a construction that will prevent such a result. The statutes are fairly susceptible of the construction that a party ballot, voted and cast as printed, must be held conclusively to show the voter’s intention to vote for the nominees of that party and that it must be counted, with respect to each office, for the party nominee therefor, regardless of what name appears in the particular space devoted to that office. And to reach that conclusion it is not necessary to resort to the oral testimony of what the voter’s intention was.

      Held, by GRAVES, C. J., concurring, with whom PARIS, J., concurs, that it is clear that the voters did not intend to vote for any person other than the party nominee, because they wrote no names in the blank spaces on their ballots; but the court is not in such case precluded from going to the voter’s evidence as to his intention, and the decisions holding that the voter cannot by oral evidence impeach his ballot do not apply to such a case. Held, also, that the facts pleaded make out a case of legal fraud, in that they show that more than half the voters of the county have been disfranchised by the act of the county clerk in erroneously causing the name of a man to be printed on the party tickets as the nominee of the party for an office who was not the party nominee, and thereby legal assurance and a legal presumption were conveyed to the voters contrary to the fact and to uproot that fraud oral evidence is admissible, whether fraud is specificálly charged or not.

      Held, by BOND, J., and WOODSON, J., dissenting, that oral evidence taken after the election is over cannot be used to overthrow the voter’s intention as manifested by his ballot.
    7, -: Vote Manifested by Ballot: Constitutional Requirement. The provision of the Constitution that all elections shall be by ballot does not preclude the counting of votes for the party nominee although on their face the ballots show they were cast for a man whose name was unlawfully printed on them. That provision is intended principally to secure secrecy, and any manner of voting that shows the voter’s choice and preserves secrecy is voting by ballot; and, besides, the votes were by ballot.
    Election Contest.
    Contestant awarded oeeice.

      William G. Marshall, J. L. Fort, Ralph Wommack,A. L. Oliver, R. L. Ward, N. G. Whaley, W. H. Douglas, John T. Mackay and L. R. Hutchison for contestant.
    (1) The statute has given this court jurisdiction in this contest and, being a constitutional court, it possesses inherent power and by virtue of that power may do whatever right and justice requires in this case, whether specifically provided for in the statutes or not. R. S. 1909, sec. 5951, amended Laws 1911, p. 243; State ex rel. v. Ross, 161 Mo. App. 671. (2) Under the facts and pleadings in this cause it would have been legal and right to count the ballots cast in Maries County bearing the name of Arch A. Johnson as if he were the Democratic nominee, for this contestant, without proof from the voters by parol evidence as to what they intended. The law directed that contestant’s name be placed on the ticket as the Democratic nominee and this statute (Section 5891) is mandatory. The law presumes that done which ought to be done. The well known and conceded facts and circumstances surrounding the election are all that should be necessary, as the voter has nothing to do with the printing of his ballot. He cannot be disfranchised by an error or fraud of the election officers. Fair-child v. Ward, Dig. of Contested Election Cases, H. of R. (Rowell), p. 559; Nance v. Kearbey, 251 Mo. 374; People ex rel. v. Malzacher, 110 111. 305; Behrensmeyer v. Kreitz, 135 111. 591; People v. Cook, 8 N. Y. 67; Bowers v. Smith, 111 Mo. 45; State v. Saxon, 12 So. (Fla.) 218; Miller v. Pennoyer, 31 Pac. (Ore.) 830; State v. Yan Camp, 54 N. W. (Neb.) 113; San Luis Obispo -v. Fitzgerald, 58 Pac. (Cal.) 699; G-umm v. Hubbard, 97 Mo. 311; People v. Czarnecki, 256 111. 327; People ex rel. v. 'Matteson, 17 111. 167; State ex rel. v. Elwood, 12 Wis. 551; Atkeson v. Lay, 115 Mo.. 539; Wigmore’s Aus. Ballot System, 190; McCrary on Elections (4 Ed.), p. 403; State ex rel. v. Eagen, 115 Wis. 417; Easterbrooks v. Atwood, 76 Atl. (Vt.) 109; State ex rel. Hirsh v. Wood, 148 N. T. 142. (3) It is competent for the 1311 voters of Maries County who voted a ticket bearing the name of Arch A. Johnson to testify that they thought they were voting for and intended to vote for the regular Democratic nominee of their party. If this be not the law, then indeed would the door to fraud be wide open. The voters in Maries County who voted the Democratic ticket testified that they intended to vote for the Democratic nominee. This evidence is proper. It does not violate the rule of law that parol evidence is not admissible to contradict a written instrument. The distinction arises from the very nature of our election laws, for the written instrument (the ballot) is not prepared by the voter but by the public officials and the voter has the right to rely upon the fact that public officers do their duty, (a) Parol evidence may be admitted where there has been a fraud, either actual or constructive, perpetrated on the voters or on the candidate. People ex rel. v. Ferguson, 8 Cow. (N. T.) 102; Freeman v. Lazarus, 61 Ark. 247; State ex rel. v. Pease, 147 S. W. (Tex.) 649; State ex rel. v. Elwood, 12 Wis. 551.; State ex rel. v. Meilike, 92 Wis. 607; State ex rel. v. Luy, 103 Wis. 528; State ex rel. v. Eagan, 115 Wis. 420; Hirsh v. Wood, 148 N. T. 142. (b) A ballot that is ambiguous on its" face may be explained by parol evidence. Gfumm v. Hubbard, 97 Mo. 311; McCrary on Elections (4 Ed.), 403; People v. Saxon, 22 N. T. 311; People ex rel. v. Malzacher, 110 111. 305; People v. Ferguson, 8 Cow. (N. T.) 102; Norton v. County Court, 91 S. E. (W. Va.) 258. (c) Ballots should be liberally construed and the construction should be in favor of a reading which will render the ballot effective rather than some conclusion which will on technical grounds render it ineffective. Abshier v. Aiken, 191 S. W. (Tex.) 770; Behrensmeyer v. Kreitz, 135 111. 495; Bowers v. Smith, 111 Mo. 57; Owens v. State ex rel., 64 Tex. 509; State ex rel. v. Saxon, 12 So. (Fla.) 218. (d) The statute takes out of the voter’s province the preparation of the ballot, and the State undertakes to do this for him. If the ballot is not prepared in the manner prescribed by the mandatory statutes of the State, then the voter has a right to contradict it. Freeman v. Lazarus, 61 Ark. 247; "Williams v. Buehannon, 86 Ark. 270; Peabody v. Burch, 89 Pac. (Kan.) 1016; Patton v. Coates, 41 Ark. Ill; People y. Clark, 8 N. Y. 67. (e) A ballot is to be construed in the same way as any other written or printed document and the construction must be such to give effect to the voter’s intention if that can be ascertained from the face of the ballot, or in cases where there has been a fraud perpetrated on the candidate or the voters .or that which amounts to a fraud, and which fraud or that which amounts to a fraud changed the result of the election, then evidence aliunde the ballot may be heard. McCrary on Elections (4 Ed.), p. 403; People v. Cook, 8 N. Y. 67; In re Foy’s Election, 76 Atl. (Pa.) 713. (f) It is a matter of common knowledge that does not require proof that electors more often vote for a candidate because of the party he represents than for reasons personal to the voter. Therefore, it is competent to prove by the voter what he intended when he cast a ballot under the circumstances of this ease. In re Foy’s Election, 76 Atl, (Pa.) 715; Norton v. County Court, 91 S. E. (W. Ya.) 258; Clark v. Commissioners, 33 Kan, 202.

      Barbour S McDavid, Morton Jourdan, W. J. Orr, Howard Gray, J. W. Halliburton, Lewis Luster, 8am Wear and Pope & Terrill for contestee.
    (1) The right to contest an election did not exist at common law and is not an inherent right, but the right exists only by reason of the provisions of the Constitution and statutes of the State. The Constitution provides that the “General Assembly shall by general law designate the court and regulate the manner of the trial and all matters incident thereto,” and therefore, the powers exercised by tbe court must be derived from tbe statute and the court has no inherent, power to do anything in relation to this matter that is not provided for by the statute. Constitution, art. 8, sec. 9; Kehr v. Columbia, Í36 Mo. App. 328; Bradbury v. Wightman, 232 Mo. 392; Nance v. Kerbey, 251 Mo. 387; State v. Gamma, 149 Mo. App. 702; State ex rel. v. Slover, 134 Mo. 15; State ex rel. v. Spencer, 166 Mo. 285; State ex rel. v. Hough, 193 Mo. 643. (2) The Constitution and statutes provide that all elections shall be by ballot, which plainly means that no candidate or person can be voted for unless the name of such candidate or person is printed or written on the voted ballot; and hence, it must necessarily follow that no vote can be east or counted for any candidate or person whose name does not appear on the ballot cast by the voter. Constitution, art. 8, see. 3; Secs. 5805, 5890 and 5891, R. S. 1909; Sec. 5900, Laws 1913, p. 328. (3) The statute provides that it shall be the duty of the county clerk to provide printed ballots for the election and to cause to be printed on the appropriate ballot the name of every candidate whose name has been certified to him. Ballots other than those printed by the county clerk according to the provisions of this article shall not be cast or counted in any election. See. 5890, R. S. 1909. The statute further provides that every ballot printed under the provisions of this article shall contain the names of every candidate whose nomination for any office specified in the ballot has been properly certified, and no other names. Sec. 5891, R. S. 1909; Laws 1913, p. 327. (4) John H. Bradley was the Democratic nominee for Judge of the Springfield Court of Appeals. The name of Arch A. Johnson, who was a candidate for nomination at the primaries, was printed on the official ballot as the Democratic nominee for that office, and the name of John H. Bradley was omitted therefrom. The statute expressly provides that such ballot shall not be cast and shall not be counted in any election, which means that the ballots in question cannot be counted either for Johnson or for Bradley. They cannot be counted at all, except those on which Johnson’s name was written must be counted for him. Sec. 5890, R. S. 1909; Rollins v. McKinney, 157 Mo. 664; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350; Donnell v. Lee, 101 Mo. App. 191, approved 244 Mo. 327; Rollins v. McKinney, 157 Mo. 664. (5) No one can print a ballot for use at the polls but the county clerk and no ballot can be counted 'for any candidate unless his name is printed thereon by the county clerk or by his direction or unless such candidate’s name is written on the ballot by the voter. There is no other way by which the name of a candidate can be legally placed on a ballot and if his name is not on the ballot, it cannot be counted for him. Sec. 5890, R. S. 1909; McCrary on Elections (4 Ed.), sec. 225; Rollins v. McKinney; 157 Mo. 664; Nance v. Kerbey, 251 Mo. 383; Gass v. Evans, 244 Mo. 353; Saunders v. Lacks, 142 Mo. 263; Hehl v. Guión, 155 Mo. 82; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350; State ex rel. v. Cook, 41 Mo. 594; Lankfort v. Gebhart, 130 Mo. 629; Turpin v. Powers, 192 S. W. (Mo.) 986. (6) The ballot as cast by an elector for a particular person, when the ballot is plain and unambiguous, must be held to express the intention of the voter to vote for that person and a different, secret or mental intention on his part cannot be shown by parol testimony. The ballot itself, in the case at bar being plain and unambiguous, proclaims and legally determines the voter’s expressed intention to vote for Arch A. Johnson, if he did so vote, and such voter cannot now vary or contradict such ballot by testifying that he intended to vote for John H. Bradley whose name did not appear on the ballot cast. It is not the hidden or secret intention in the mind of the voter with which the court deals. The court in determining and enforcing the law, can and does only deal with the legally expressed intention of the voter. The intent must be found in the ballot itself. Effect cannot be given to an intention not therein expressed. The question is, not what the voter meant as distinguished from what his ballot plainly expresses, but simply for whom did he vote as expressed by his plain and unambiguous ballot. Therefore, the testimony of all the contestant’s witnesses that they intended to vote for contestant, or for the Democratic nominee, is wholly incompetent and inadmissible. McCrary on Elections (4 Ed.), secs. 528-530 and 542; Wigmore on Evidence, sec. 2421, p. 3405; Cooley’s Constitutional Limitations (7 Ed.), pp. 914-920; Ott v. Brissette, 100 N. W. (Mich.) 906; State v. Reynolds, 61 Ind. 422; State v. Steinborn, 66 N. W. (Wis.) 798; People v. Seaman, 5 Denio (N. Y.), 409; People v. Saxton, 22 N. Y. 309; Coughlin v. McElroy, 43 Atl. (Conn.) 857; People v. McNeal, 63 Mich. 297; Maddux v. Walthal, 74 Pac. (Cal.) 1026; Anderson v. Winfree, 4 S. W. (Ky.) 353; Beards-town v. Virginia, 76 111. 43; State v. Eagan, 91 N. W. (Wis.) 984; Wimmer v. Eaton, 34 N. W. (Iowa) 170.
   BLAIR, J.

This is an election contest. The office involved is that of Judge of the Springfield Court of Appeals. Contestee has been declared elected and has been commissioned. In the primaries held August 1, 1916, contestant and contestee were regularly nominated by the Democratic and Republican parties, respectively. There are forty-four counties in the Springfield Court of Appeals District. The only questions raised in this proceeding grow out of happenings in Maries County. In the forty-three counties, other than Maries, contestant received 86928 votes and contestee received 87271 votes. In Maries County contestee received 721 votes, making his total 87992. One vote cast in Maries County is conceded to contestant, making his uncontested total 86929. One thousand three hundred and eleven other votes for Judge of the Springfield Court of Appeals were cast in Maries County, and the principal question is whether these votes should be counted for contestant. Contestant’s name, as the name of the regularly nominated Democratic candidate for the office in question, was duly certified by the Secretary of State to the county clerk of Maries County. Two newspapers, the Maries County Gazette and the Belle Times, were designated as the papers to publish the lists of nominations for the various offices to be filled at the 1916 general election The list as published in the latter was correct. In the former the published list contained the name of Arch A. Johnson, instead of that of contestant, as the Democratic nominee for the Springfield Court of Appeals. A third paper, the Home Advertiser, a paper of general circulation in Maries County, published at Vienna, the county seat, published the correct list of all nominations. The Gazette printed the official ballots for the county and in these printed the name of Arch A. Johnson, instead of that of contestant, as the Democratic candidate for the Springfield Court of Appeals. The error was not discovered until several days after the election. These ballots were the ones used in Maries County and were otherwise correct. They were, on election day, handed out to the voters as the Democratic ballots for that election and were used by the voters who voted the Democratic ticket in that election.

In his notice of contest, contestant asked that a commissioner be appointed, Hon. H. E. Alexander of Cape Girardeau was appointed and took the testimony of many witnesses. The net result of this was evidence that practically all the 1311 voters who cast the ballots in question intended to vote and believed they were voting for the Democratic nominee for Judge of the Springfield Court of Appeals. Our commissioner so finds from the evidence. He concluded that the 1311 ballots should be counted for contestant.

Among other things, the parties hereto stipulated the following:

“Tenth. That the name of Arch A. Johnson was printed on the Democratic ticket in Maries County as if he were the Democratic nominee for Judge of the Springfield Court of Appeals, and that all of the Democratic tickets used at the various precincts, and at all the precincts in Maries County, at the general election on November 7, 1916, contained the name of Arch A. Johnson printed thereon as if he were such nominee ....
“Thirteenth. That there were 1311 ballots cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson thereon and cast with said Johnson’s name thereon as if he were the Democratic nominee for Judge of the Springfield Court of Appeals.
“Fifteenth. That there were 111 ballots cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson as if he were the Democratic nominee for Judge of the Springfield Court of Appeals by legally qualified voters, whose evidence has not been taken, and who have not been stipulated upon.”

Contestee’s answer contains the following:

“Contestee admits and avers that by some mistake or inadvertence, unknown to contestee, the name of Arch A. Johnson as a candidate for Judge of the Springfield Court of Appeals was printed on the Democratic ballots that were provided for the use of voters in said Maries County and that said ballots were used by said voters and that there were cast for said office in said Maries County at said election for contestant one vote, for contestee seven hundred and twenty-one votes, and for Arch A. Johnson thirteen hundred eleven votes.”

On the argument it was further stipulated that the persons easting the 1311 votes counted for Arch A. Johnson, voted the regular Democratic ticket.

Under section 5855, Revised Statutes 1909, all nominations for elective offices, with certain exceptions with which we are not concerned in this case, must be made by primary election held under article 4, chapter 43, Revised Statutes 1909. Section 5877 provides that the party primary nominees for offices shall be the- candidates of that party for such offices and their names as such candidates shall be placed on the official ballot at the following election. Section 5878 requires the Secretary of State to certify and publish the primary results as to state and district offices, and to certify to the chairman- of each party’s state committee so much of the certificate as relates to the nominees of the party of whose committee such chairman is the head. Section 5879 requires the Secretary of State to certify to the county clerk of each county the nominees for each state and district office for which the voters of the county are entitled to vote.

By section 5889 it is provided that all ballots cast in elections for public officers in this State must be printed at public expense. Section 5890 makes it the duty of the county clerk of each county to provide printed ballots for every election for public officers in which the electors of his county are entitled to participate, and requires, such clerk “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.” It further provides that “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. ” By section 5891 it is provided that “every ballot printed undejr the provisions of this article shall be headed by the name of the political party by whom the candidates whose names appear on the ballots were nominated and each of said ballots shall contain only the names of the candidates nominated by said party. Underneath the name of each candidate shall be left a blank space large enough to contain a written name.’ ’ By section 5895 it is required that all the ballots and lists of nominations for office shall be printed and published, respectively, “under the direction and with the consent and approval of the county court of the county in which any such election is to be held.” Section 5896 provides that when “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” certain courts or judges “may upon application by any elector, by order, require the clerk of the county court to correct such error, or to show cause why such error should not be corrected.” Under section 5899 each voter is entitled to receive from the judges of election one ballot “of each political party voted for at said election,” and it is made the “duty of such judges of election to deliver such ballots to the elector,” the judges first writing their initials upon-the back of the ballots. Section 5900 provides that the voter, upon receiving the ballot, shall immediately retire- to one of the booths in the polling place and that “he shall prepare his ballot by selecting the ballot he desires to vote. He shall erase or strike ont the name of any candidate he does not wish to vote for and write the name of his choice underneath.”

Section 5851 requires the county clerk, prior to the election, to publish ‘ ‘the nominations, to office certified to him by the Secretary of State and also those filed in his office.” The lists so published are required by section 5852 to be arranged in the order and form in which they will be printed upon the ballot.

Contestant was the regular nominee of his party. The law required his name to be printed upon the party ballot as the party nominee and candidate. Instead, through mistake, the name of Arch A. Johnson was printed thereon as such nominee and candidate. The party ballots bearing Johnson’s name so printed were delivered by the judges to the voters, and, it ,is stipulated, 1311 such ballots were cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson thereon and cast with said Jolvnson’s name thereon as if he were the Democratic nominee for Judge of the Springfield Court of Appeals. It is further stipulated these ballots were cast by persons who voted the regular Democratic ticket. The answer avers that 1311 of these ballots with Arch A. Johnson’s name printed thereon as candidate for Judge of the Springfield Court of Appeals were cast by the voters of Maries County, and avers that Johnson received 1311 such votes. The stipulation and this averment mean that 1311 voters who selected the Democratic ballot as the one they desired to vote cast such ballots with the name of Arch A. Johnson printed thereon in the space set aside for the name of the Democratic nominee for the Springfield Court of Appeals, and that these ballots, when cast, bore in that space the printed name of Arch A. Johnson, and that no other name was printed or written in such space. The averment that Johnson “received” 1311 votes, coupled with the stipulations, makes-this clear beyond doubt.

It is obvious the ballots canndt be counted for Johnson. The law requires the names of party nominees, only, to be printed on the ballots. If tbe names of others are printed thereon, the ballots, nevertheless, cannot be counted for such others. Even had Johnson been the nominee of some other party or of a group of electors, these ballots, could not have been counted for him. [Atkeson v. Lay, 115 Mo. 538.] The only method whereby the voters can, on a party ticket, vote for any person other than the nominee of such party, is by erasing the name of the nominee; i. e., the regularly nominated candidate, and writing “the name of his choice underneath.” [Sec. 5900, R. S. 1909.] Nor is there any provision of law permitting the voter to write in the name of a nominee which has been inadvertently omitted or misprinted. The blank space is provided for the name of the voter’s “choice” when that “choice” is some person other than the nominee. This is the specific meaning of the statute. Neither can the voter himself provide a correctly printed ballot. He must receive from the judges and must use in voting the ballot prepared by the county clerk. The statute prohibits the casting or counting of any other. In such circumstances and under these statutory provisions, the voters of Maries County went to the polls. Each of the more than two thousand voters of that county was handed, among others, the official ballot prepared, by the clerk, headed “Democratic Ticket,’ ’ and required by the law to contain the names of every Democratic nominee, including that of contestant. One thousand three hundred and eleven of those voters desiring to vote the Democratic ticket returned the official Democratic ballot to the judges of election without erasing the printed name appearing on the ballot as that of the Democratic candidate for the Springfield Court of Appeals, and without writing in the name of any other person as their choice for that office. Without attempting to change it, these voters cast the printed official ballot, properly headed as the ballot of the Democratic party. They selected it as the particular party ballot they desired to vote. They knew the law required that ballot, as given them by the judges, to contain the names of every one of the numerous Democratic nominees for office, including that of the nominee for the Court of Appeals. Knowing this, each delivered the ballot to the judges in the form in which it was officially printed and in which he received it from the election officials, so far, at least, as concerns the office in question. The State had taken out of the hands of these voters the preparation of. these ballots. It had prohibited them from using any ballots except those it furnished. It furnished them ballots which lawfully could contain no names other than those of the regular nominees. By so delivering them these ballots it, in effect, said to them “this printed ballot, headed with the name of the Democrat party, contains the- names, under proper headings, of the Democratic nominees. You must use this ballot if you desire to vote the Democratic ticket. You can use no other. If, for some office, you wish to vote for some person other than a nominee, you must erase the name of the nominee, printed on the ballot, and write in such other person’s name.” In effect, therefore,' the act of delivering of such ballot also meant that if the voter desired to vote for all Democratic nominees, all that was necessary for him to do was to re-deliver the Democratic ticket to the receiving judges.

In such circumstances and under such statutory provisions we are of opinion that a party ballot, voted and cast as printed, must be held conclusively to show the the voter’s intent to vote for the nominee of that party and that it must be counted, with respect to each office, for the party nominee therefor regardless of what name appears in the particular space devoted to that office. In this ease the agreed facts and statutes are sufficient without any consideration of the oral evidence offered.-

There are no precedents. No similar case has heretofore engaged the attention of any court so far as industry of counsel or our own investigation has disclosed. This court is, however, committed, as are all courts, to the principle that the disfranchisement of voters is not favored. We will not give to any law such a construction “as would permit the disfranchisement of large bodies of voters because of an error of a single official” in any case in which the law in question “is fairly susceptible of any other.” [Bowers v. Smith, 111 Mo. l. c. 55.] In this case the law is not only fairly susceptible of the construction we have given it, but no other construction seems reasonable in view of all the provisions of the statutes.

Something is said concerning the result and effect of the holding that the 1311 votes in question shall be counted-for contestant. Perhaps there is no impropriety in pointing out the effect of a contrary holding. ' The first result of such a holding would be to disfranchise the voters of one party in an entire county. The second result would be the establishment of a precedent whereby error might disfranchise the entire State and behind which, possibly, fraud might intrench itself and intentionally defeat thé will of the voters of the State. Under such a ruling it is within possibilities that error or fraud in printing the ballots in Missouri might result in changing the result even in .a national election. That the Legislature intended to leave open the way for such wholesale defeat of the popular will is not a conclusion we are willing to announce unless there -is no other reasonable construction to be given the statutes.

It is suggested the Constitution provides all elections shall be by ballot and that this precludes counting the votes for contestant. This constitutional provision is intended principally to secure secrecy. [Ex Parte Arnold, 128 Mo. 260.] It does not prohibit the Legislature from providing methods of voting* in which names of regular nominees need not appear at all upon the ticket. The real requisites are that the ballot shall preserve secrecy and show the voter’s choice. [In re Mathiason Mfg. Co., 122 Mo. App. l. c. 444.] Any manner of voting which shows the voter’s choice and preserves secrecy is “voting by ballot.” Within the constitutional provision voting jnachines meet a constitutional requirement such as ours. [Lynch v. Malley, 215 Ill. l. c. 580; U. S. Standard Voting Machine Co. v. Hobson, 132 Iowa, 38; City of Detroit v. Election Inspectors, 139 Mich. 548, and cases cited; Elwell v. Comstock, 99 Minn. 261.] In this State the ticket required to be printed is headed by the party name and required to contain the printed names of nominees with spaces left for writing in names of persons other than nominees. The view that under our statutes the delivery of such -an official ticket to the judges of election is a vote for the regular nominees of the party whose name heads the ticket does not, it is apparent, cause the statutes to offend against the 'constitutional provision. The vote was by ballot. The construction of the effect of the ballot as cast is that which concerns us in this case.

The statutory provision that ballots other than those the county clerk prepares and causes to be printed shall not be cast or counted means, simply, that no ballot shall be cast or counted except those officially prepared. It does not mean if any error occurs in printing such ballot the ballot shall be thrown out.

It is also urged that the statute provides a method for correcting errors in printed ballots and that this is preclusive. This question is not involved in this case. Our construction of the ballot cast is such that, as cast, it must be counted for contestant; that as cast it shows an intent to vote for the nominee, i. e. contestant. In such circumstances, whether the ballot might, under the statute, have been corrected at the instance of contestant or any elector of Maries County is not an inquiry necessary to be made. If the official ballot means what we hold it means, then no correction was necessary to require these 1311 ballots to be counted for contestant and to prevent the disfranchisement of the 1311 voters of Maries County who east those ballots. The cases cited on this point decide nothing out of harmony with this conclusion.

It results that the 1311 ballots in question must be added to the 86929 conceded to have been correctly counted for contestant. This makes his total vote 88240, giving him a majority of 248 and entitling him to the office. It is ordered, therefore, that contestee be ousted from the office of Judge of the Springfield Court of Appeals and that John H. Bradley,, contestant herein, be installed in said office as judge of said court for the full term for which he was a candidate at the general election in November, 1916.

Williams, J., concurs; Graves, J., concurs in a separate opinion in which Faris, J., concurs; Bond, J., dissents in separate opinion in which Walker, J., concurs. Woodson, J., dissents in separate opinion.

GRAVES, C. J.

(concurring) — I. I concur in all that is said by my learned brother writing for the majority. I agree with him that under the statutes of this State the .1311 votes in dispute can not be counted for Johnson. This, because his name does not get upon the voters’ ballot in either one of the two ways by which the law authorizes its presence upon the ballot. To be specific, before his- name can be printed upon the ballot, he must haye been the Democratic nominee for the office. He was not such nominee. No authority in law for his name there in print, can be found. The only way it could have legally gotten on the ticket of any voter, was by the voter writing it in the space left under the caption and under the name of the nominee. The admissions show that this did not happen. So we also agree to the ruling that under the admissions in the pleadings and otherwise, it is not necessary to go to the oral evidence from the voters'to determine the intent of the voters. But whilst I so agree, I do not want to be understood as agreeing to contestee’s contention that this court is precluded from going to the voter’s evidence as to his intentions under the facts of this case. I know that it has been ruled that the voter, by oral evidence, can not impeach his ballot, but no such ruling has ever been made in a case having the facts of this record. I maintain that under the facts of this record evidence of the voter as to his intent was competent, and after a slight mention of another suggestion in the ease, I shall present my views upon the competency of the oral evidence of the voter as to his intent in casting these ballots. •

II. Suggestion has been made, and whether it came from court or counsel is immaterial, to the effect that the whole election might be declared void. To my mind there is no substance in this view of the case. In the first place the pleadings in. this (an original proceeding) would not authorize such a judgment, if in fact and law, this court could enter such a judgment.

This is a contested election case. All such cases proceed upon the theory that there has been a valid election, but that, by reason of some happenings in. the course of a valid election, things have occurred by which the contestant has been deprived of votes to which he was entitled, or contestee has been given votes to which he was not entitled. A contested election case is brought upon the theory that someone has been legally elected, not on the theory that there has been no election at all. In fact, the contestant must aver that he was legally elected at the election in question, and therefore, by his petition, admits that a legally authorized election has been held'. His only contention is, that by reason of alleged irregularities and wrongful acts in the course of a duly authorized election, he has not been given the office for which he ran, and to which he would b^ entitled if these irregularities and wrongful acts had not occurred. The pleadings govern the judgment which may be entered, in this an original proceeding or contest, and these pleadings will no£ ail^orize a judgment to the effect that there was no valid election and therefore no person was elected to the office. Such a judgment would be beyond the scope of the pleadings. Only by consent of the parties can a new election be ordered. [R. S. 1909, sec. 5930.] We have no such consent here. In this case these 1311 votes were either rightfully or wrongfully counted for Johnson, and the majority opinion is correct in saying that, under the provisions of our statutes, they were wrongfully counted for Johnson. If this be true, then they should either be counted for Bradley, the Democratic nominee, or not counted at all. If counted for Bradley, lie is elected. If not counted at all, Cox is elected. This is the simple issue, and I fully agree with t£e view expressed in the majority opinion to the effect that these votes must be counted for Bradley. But as said we want to give our views upon the competency of this oral evidence and to that question we proceed next.

ITT. To my mind, under our statutes, when the voter selects from the several ballots handed to him by the judges of election the ballot headed “Democratic Ticket,” and deposits that ballot, unscratched as to a given office, and returns unvoted the several other . , . , ,, . -, ballots given by the judges, there is a presumption that such voter intended to vote for the Democratic nominee, and said presumption continues until overthrown by evidence contra. In this case there is no evidence contra.

In addition to this, it is clear that such voters in the instant case did not intend to vote for Cox, because they returned unvoted the ticket with that name upon it. And it is also clear that such voter did not intend to vote for a person other than the Democratic nominee, because they wrote no name in the blank space upon their ballots. This, however, goes to the case without considering the evidence Sf the voters, and is aside upon that question.

A petition must be characterized by the nature of the things charged therein. The instant petition does not specifically charge fraud, but the facts stated therein make out a case of the rankest legal fraud. In the disposition of a case it makes no difference whether the facts pleaded make a case of actual fraud, or one of legal fraud. Fraud of either kind is sufficient. Thus in Gantt v. Brown, 238 Mo. l. c. 567, this court said:

“In this case the contestants charge fraud in the election — both actual fraud and what might be denominated legal fraud. The classification is immaterial, in cases of the character under consideration, because fraud is fraud, whether it be actual or legal.”

In the same case (238 Mo. l. c. 568) we further said:

■ “We hold further that when charges of fraud are made as above indicated the mode and measure of proof should he as broad as tbe charges. Tbe best evidence should be available in tbe search for fraud, or in disproving tbe charges of fraud.’ ’

Tbe conceded facts in this case work a legal fraud, both on tbe contestant, Bradley, and tbe 1311 voters of Maries County, who thought they were voting for Bradley, when they cast their ballots, unless these voters and Mr. Bradley are protected by the presumption we have suggested, or are protected by tbe proof of bow these voters intended to vote. We concede if no fraud (actual or legal) is shown, that the voters should not be permitted to contradict tbe face of bis ballot, but this is not this case. If it is to be contended that our cases bolding that- a voter shall not be permitted to contradict bis ballot, by stating for whom be intended to vote, shall control here, under tbe facts of this case, then I say it is time to\ write anew tbe law. Fortunately those eases held in judgment no such facts as are in this record. Nor was tbe rule announced in them intended to apply to a situation, where more than half of tbe county’s voters have been disfranchised by a legal fraud. In tbe commonest cases tbe evidence takes a broad range upon questions of fraud, and no reason can be assigned as to why it should not take that range in a case affecting the very vitals of repubhcan government. If fraud, either actual or legal, can thwart tbe intent and will of tbe voters, elections should be abandoned. Tbe legal effect of saying that tbe intent of tbe voter cannot be shown, in this case, is to say, that although it were shown in this ease that tbe contestee bad unlawfully paid tbe clerk and tbe printer money to put out tbe Democratic ballots, in Maries County, with tbe name of Johnson, instead' of Bradley, thereon, tbe voter would be precluded from giving evidence as to bis intent to vote for Bradley. Tbe latter would be actual fraud, tbe record before us is legal fraud, and tbe result tbe same in each. In eases of fraud proof aliunde tbe ballots has been admitted, and admitted for tbe reason that to refuse to admit it would be to countenance fraud. Thus in Freeman v. Lazarus, 61 Ark. 247, tbe question was up as to tbe validity of an election on been.sing or not licensing the sale of liquors. Actual fraud was charged. It was claimed that a number of voters intended to vote to license the sale of liquor, whilst their ballots showed their vote contra. It was charged and shown that one of the judges of election was against the licensing of such sales, and distributed tracts against it; that he solicited voters to let him make out their ballots; that he did make out many such votes, and they were “against license” although it was further shown that some of the voters so marked as “against license” on their ballots had directed him to make the ballots the other way. Under these charges of fraudulent conduct upon the part of the election official, the' court nisi permitted the voter to testify how they intended to vote, and the Supreme Court sustained the lower court. The reason assigned was that the election officials had perpetrated a fraud upon the voter. In the instant case we have present the same thing. The preparation of the ballot (with only the names of nominees thereon) is left by the law to officials, and the legal fraud in this case is as great as the actual fraud in the Arkansas case supra. The ballots were handed to the voters with the legal assurance from the state officials in charge of the election that they contained the names of the Democratic nominees, including contestant Bradley. To uproot this fraud, evidence aliunde is admissible. To hold contrary would be to seal the lips of the best evidence in a case of fraud (and there is no distinction between actual and legal fraud) and permit such monster (in the very fields of justice) to run at large, uncurbed and unchecked. So whilst we have said (absent the charge of fraud) that the voter may ,not contradict his ballot, yet this is far from saying that we will not hear the voice of the voter as to his intent, when it is charged that his intended vote was changed by reason of fraud, either actual or legal.

Recognizing the rule (absent the charge of fraud, actual or legal) to the effect that a voter, by parol evidence may not contradict his ballot, yet such rule has no place in this case. Every fact charged in the petition at bar charges a legal fraud. The facts pleaded make a case of legal fraud. In cases of fraud the evidence takes a broad latitude, and to weed out fraud the courts admit the best evidence of which the case is susceptible. I am therefore firmly fixed in the view, that to avoid the conceded fraud upon these 1311 voters of Maries County, and the conceded fraud upon contestant Bradley, the oral evidence of the voters as to their intent in casting the ballots was competent, even though in this case it is but cumulative. For these additional reasons, as well as for the reasons expressed in the majority opinion, I concur in the majority opinion.

Faris, J., concurs in these views.

BOND, J.

(dissenting) — I dissent from the majority opinion. I cannot agree that the votes lawfully cast at a lawful election for one man may be counted for another, after the election, by the courts.

If that rule is approved, then election to office in this country does not depend upon the action of the voters in casting their ballots at the time of .the holding of a lawful election, but depends upon investigation after the election, whether certain voters would have voted for the contestant, if they had known that he had been nominated by a particular political party whose general ticket was used by them in preparing their ballots. To support this theory evidence would have to be taken .after the election was over, as to what the respective voters would have done under circumstances not present at the.election. This .was done in this case, and upon the results of that inquiry the contestant now asks that votes which were actually cast against him should be counted for him. In effect, that another election should now be held through the medium of testimony given in a contest suit, whereat, after a recanvass of the votes based upon an assumption of what the voters might have done, this court should adjudge a man to be elected to an office for which he was defeated by the plurality of the ballots actually cast at a regular election for the filling of that office.

To my mind such a contention is the height of unreason. Confessedly it is one to which no court has as yet lent its countenance. If it should now receive judicial sanction, the result would necessarily follow that any lawful election, held in strict conformity to law and free from any imputation of fraud or unfairness, would constitute only a conditional choice, subject, to be changed as to the persons chosen by the ballots cast at the election, by the subsequent testimony of the voters that, through their own negligence or lack of knowledge, they actually voted for a man for whom they would not have voted, if they had been fully informed as to the,- candidacy of another at the time when ballots were cast. Such a contention is not only irrational, but, if sustained, would open the flood-gates for fraud in the matter of elections to office. I cannot assent to the right of this court to install a man into an office for which he was defeated at the polls. Courts are not “electoral commissions” and have no power to substitute their appointee for the person elected by the votes of the people.

II. The construction sought to be forced by the majority opinion upon the statutes referring -to party ballots, would obviously defeat the voters’ freedom of choice, and in other vital respects would violate the fundamental principles of all free elections. .

III. As to the question of the acceptance of the office by the contestee under the circumstances, that is a matter left to his personal judgment, with which this court has nothing to do, in the absence of any showing of invalidity of the ballots cast in his favor or fraud in the -election. The sole question for this court to determine is the fact of the election or non-election of the person now seeking the office through this contest. There being no doubt that he did not receive a plurality of the lawful ballots cast ,at a lawful and closed election, his petition should be dismissed.

For these reasons I record my protest to the ruling in the majority opinion.

Walker, J., concurs in these views.

WOODSON, J.

(dissenting) — While I agree witii most of what is said in the majority opinion, yet I dissent from the legal conclusions drawn from some .of the observations of my learned associates, and I dissent from the result the opinion reaches.

Conceding that all of the electors who voted for Judge Johnson thought and believed they were voting for the Democratic nominee, yet it by no mean's follows, as a necessary sequence, that all of them believed they were voting for Judge Bradley.

It must be conceded that even Democrats might scratch a nominee of their party and vote for some other Democrat for that office; in fact, that is often done; and the Legislature so recognizing the fact, has provided by statute that in making out the official ballots, a blank space shall be left thereon after the name of each nominee in order that the. electors, if they deem proper, may scratch a nominee and write therein the name of some other person, and thereby vote for such other person for said office.

Moreover, this record shows, as a matter of fact, that the thirteen hundred and eleven votes cast for Judge Johnson were not in fact cast for Judge Bradley, and we might very well assume that some of them who voted for Judge Johnson would not have voted for Judge Bradley, even though they were Democrats. In other words it frequently occurs that some one or more of the nominees may not poll his or their party’s full strength. The history of this State is full of instances where one or more nominees of a party have been defeated at the polls, while the rest of the ticket has been elected. This occurs in one of three ways: First, by some of the electors not voting for the nominee of their party; second, by voting for the nominee of some other party; or, third, by voting for an independent candidate. I mention this for the purpose of showing that a nominátion by the dominant party of a county, district or state is not equivalent to an election; if that were true, then what would be the use of holding the election? So the point is: it does not necessarily follow that because Judge Bradley was the Democratic nominee of his party for Judge of the Springfield Court of Appeals, lie was therefore necessarily elected to that office because of the error of the county clerk in omitting his name from the ticket and printing the name of Judge Johnson in lieu thereof; for some of them might not halve voted for him had his name been on the ticket; and how many, no one can tell, and we have no right to make a guess upon that question.

The doctrine announced in this case opens wide the door to fraud and corruption in elections; it authorizes the elector, after he has cast his vote, to testify for whom he voted, and thereby perhaps change his vote, a most dangerous rule; also under this rule a nominee who is unpopular in a city or county might fraudulently and not by mistake, as was done in this case, have substituted on the ballot the name of some other person instead of his own, who was popular and strong, and let the electors vote for him, and then count the ballots for the nominee.

I therefore dissent.

When writing this dissent I was laboring under the impression that the oral testimony mentioned in the majority opinion constituted a part of the concrete case stated ; but upon my' attention having been specially called thereto I find I was in error; but since Brother Graves in his concurring opinion considers such evidence admissible I will not change the dissent.

Believing there was no valid election held, I therefore dissent.