author: FERRISS, J.

text:
    HENRY C. TIMMONDS, Contestant, v. JOHN KENNISH .
    In Banc,
    June 26, 1912.
    1. ELECTION LAWS: Special and General. It is the duty o£ the court, in an election contest, to dovetail and reconcile all election laws, so far as possible, and to give effect to all of them applicable to general elections; but if any inconsistency appears between the general law and the special law at any one point, the special law prevails.
    2. ELECTION CONTEST: Registration Number on the Ballots. The provisions of the general law (Sec. 5905, R. S. 1909) requiring the number found in the registration book opposite the name of the person voting to be placed on the ballot, do not apply to St. Louis; but what is required to go on the ballots in that city is determined by Secs. 5899 and 6220, R. S. 1909, which together declare that no other writing shall appear on the back of the ballot except the initials of the judges and the voting number. Section 6220, applicable only to St. Louis, is a special law, and is an exception to section 5905, and governs elections in that city so far as it goes, and it does not require the registration number to go on the ballots, neither does the law applicable to that city require or contemplate a registration number.
    3.--: Impossible Requirement. The law does not require an impossible thing to be done. It is impossible to indorse on a ballot a registration number that does not exist. Where all the names beginning with a certain letter of the alphabet are assembled on one and succeeding pages of the registration book, and each name on that page was given a number from the first name downward, the same method and numbers being thereby repeated in the book twenty-six times, there was in fact no registration number, but such numbers were simply made for the accommodation of the clerks.
    4. -: -: Long Acquiescence of Public. The fact that since the enactment of the Act of 1895 the election officials of the city of St. Louis have construed the law to require no number in the registration book and consequently no registration number on the ballot, and that after eight years of such construction the Legislature in 1903 substantially reenacted that statute without providing for such registration number, and that this construction has been acquiesced in by the entire community, including candidates defeated for office, since 1895, is of great persuasive force against a judgment that would hold invalid every ballot cast in the city at one general election because of the absence from each ballot of a registration' number.
    Election Contest.
    Judgment bob contestes.

      W. G. Marshall and W. M. Williams for contestant.

      Spencer S Donnell and Lon 0. Docker for contestee.
    For briefs, see under Gantt v. Brown, ante, p. 271.
   FERRISS, J.

On tbe returns from the general election held in November, 1910, defendant was declared elected over plaintiff to the office of Judge of the State Supreme Court by a majority of 5357 votes, and thereafter duly qualified and entered upon the performance of the duties of the office.

This proceeding was instituted by plaintiff to contest the right of defendant to said office. Evidence has been taken at length by a commissioner appointed by this court, and the case is submitted upon Ms report, exceptions thereto, and arguments of counsel. As finally submitted, the case on the merits presents a single proposition, which is stated as follows in plaintiff’s brief:

“As to the case of Timmonds v. Kennish, we contend that the judgment must be in favor of Judge Timmonds and against Judge Kennish for the first reason above stated, that is, that none of the ballots cast in the city of St. Louis in 1910 had indorsed on them the registration numbers as required by section 5905, and consequently none of the votes in St. Louis can be counted for either party, and that without the vote in St. Louis Judge Timmonds was elected.”

It is also contended by defendant that this court has no jurisdiction of the case.

It is conceded by defendant that none of the votes cast in the city of St. 'Louis in the election of 1910 had the registration number of the voter indorsed thereon. It is further conceded that without the vote of St. Louis plaintiff would have been elected, as he had a majority of the vote cast in the State outside said city. The case, then, depends upon whether the absence of the registration number of the voter in the city of St. Louis on his ballot invalidated his vote. If it does, then the entire vote in St. Louis must be thrown out, and the office given to plaintiff.

Registration and elections in the city of St. Louis are governed by a special law applicable to cities of 300,000 inhabitants and over. [Sec 6189, et seq., R. S. 1909] Section 6189 reads as follows:

“In all cities of this State now having or which hereafter may have three hundred thousand inhabitants or more, there shall be a registration of all the qualified voters, and said registration and the mode of conducting the elections held in such cities shall be governed and controlled as provided herein, and be subject to all the provisions of the other election laws of this State, so far as the same are not inconsistent or in conflict herewith.”

There is' also this section in the general law: x ‘ Sec. 5810. All elections in the city of St. Louis shall be conducted in all respects as provided by the laws now in force regulating elections in said city.’.’

It is contended that inasmuch as the law provides for registration in St. Louis, section 6189, above quoted, reads into the special law the provisions of section 5905 of the general law, so far as they require a registration number on the ballot. Said section •5905 reads thus:

“See. 5905: The judge to whom the ticket shall be delivered shall, upon receipt thereof, pronounce in an audible voice the name of the voter; and if the judges shall be satisfied that the person offering to vote is a legal voter, his ticket shall be numbered and placed in the ballot box without inspecting the names written or printed thereon, or permitting any other person or persons to do so; and the clerks of election shall enter the names of voters and the numbers of the ballots, in the order in which they were received, in the poll books, in conformity with the form printed in section 5809, and, in addition, whenever a registration is required by law, place on such ballot the number corresponding with the number opposite the name of the person voting, found on the registration list; and no ballot not so numbered shall be counted; and the ballots, after being counted, shall be sealed up in a package and delivered to the clerk of the county court or corresponding officer in any city not within a county, who shall deposit them in his office, where they shall be safely preserved for twelve months; and the said officer shall not allow the same to be inspected, unless in case of contested elections, or the same become necessary to be used in evidence, and then only on the order of the proper court, or a judge thereof in vacation, under such restrictions for their safe-keeping and return as the court or judge making the same-may deem necessary; and at the end of twelve months, said officer shall publicly destroy the same by burning, without inspection; and no judge or clerk of an election shall disclose the names of the candidates voted for by any voter, and any judge or clerk violating the-provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of one hundred dollars.”

This section (5905) originated in 1865, and appears in the General Statutes of that year «as section 15, chapter 2. It contained no provision for a registration number on the ballot. The Constitution of 1875, section 5, article 8, provided for a* registration of voters in cities of over 25,000 inhabitants. In 1877, and evidently in view of the said constitutional provision, the Legislature amended section 15 of chapter 2 of the General Statutes of 1865 by inserting therein a provision that the registration number of the voter should be indorsed by the clerk of election on the ballot “whenever a registration is required by law.” [Laws 1877, p. 246.] The law, as thus amended, appears as section 5905 in the present revision of 1909, This section is a general law, and is found in article 5, chapter 43, Revised Statutes 1909, entitled, “Elections.”

In 1889 an act was passed governing elections in cities of over 5000 inhabitants, and providing that the judges of election should initial the ballots, but making no provision for any number thereon. The act (Sec. 4780, R. S. 1889) reads as follows: x

“On any day of election of public officers in any election district, each qualified elector shall be entitled to receive from the judges of the election one ballot. It shall be the duty of such judges of election to deliver such ballot to the elector. Before delivering any ballot to the elector, the two judges of election having charge of the ballots shall write their names or initials upon the back of the ballot, within two inches of the top thereof.”

This section was subsequently amended (p. 133, Laws 1891, and p. 107, Laws 1897), and as so amended appears in the present revision as section 5899, as follows:

“On any day of election of public officers in any election district, each qualified elector shall be enti-, tied to receive from the judges of election one ballot, of each political party voted for at said election. It shall be the duty of such judges of election to deliver such ballots to the elector. Before delivering any' ballots to the electors the two judges of election having charge of the ballots shall write their names or initials upon the back of the ballots, with ink or indelible pencil, and no other writing shall be on the back of the ballot, except the number of the ballot voted.”'

Hence we have, on opposite pages, two sections of the statute, sections 5899 and 5905, one providing that there shall be nothing on the back of the ballot save the number and the initials of the judges, and the other providing for a registration number, in addition to the voting number and initials. These are both general laws. As they cannot both apply to the' same ballot, it is obvious that section 5899 applies: where there is no registration number to go on the ballot, and section 5905 applies where there is such registration number.

We will now consider the laws specially applicable to the city of St. Louis, and which govern the elections therein.

The registration laws applicable to the city of St. Louis, up to 1895, provided for a registration number for each voter registered. [Sec. 989, R. S. 1889.] This law applied to all cities of the first class; that is, those having 100,000 inhabitants or over. In 1895 a new law was enacted applicable to such cities, estabr lishing a board of election commissioners, and providing in detail a system for- registration. This act provides what the registration book shall contain, and gives a form therefor. [Laws 1895, Special Session, p. 13.] There is no provision for a registration number. In 1903 the present law governing registration and elections in St. Louis, and applicable to cities of 300.000 only, was enacted. [Sec. 6189 et seq., R. S. 1909.] The law of 1895, as to registration, was continued in force, and is still in force as to cities above 100.000 and below 300,000 inhabitants. [Sec. 6090, et seq., R. S. 1909.] Neither of these laws requires a registration number.

Section 6189, together with section 5810, above quoted, makes it clear that the registration and manner of conducting the election in St. Louis are to be governed in all respects by the provisions of article 15, chapter 43, Revised Statutes 1909, which is especially applicable to St. Louis, subject only to such general laws as are not inconsistent or in conflict therewith. As stated above, - plaintiff contends that the words, “subject to all the provisions of the other election laws of this State, so far as the same are not inconsistent or in conflict herewith,” contained in said section 6189, read into the special law the mandatory words of section 5905, which require the ' clerks of election to indorse on -the ballot the registration number, “Whenever a registration is required by law.” Counsel, however, does not notice section 6220 of the special law, which covers every step in the reception of the ballot from the voter, the marking thereof, and the depositing of it in the ballot box. That section is as follows:

“One of the said judges of election shall receive the ballot from the voter, and shall announce his residence and name in a loud voice, and shall write on the back of said ballot the number of the same, in the order in which it was received, which number shall also be placed opposite tbe name of the voter in the poll book, in the column headed ‘number,’ and another judge shall put the vote in the ballot box in the presence of the voter and the judges and clerks, and in plain view of the public. The judge or clerk having charge of the registry shall then, in a column prepared thereon, in the same line of the name of the voter, mark in ink or with indelible pencil ‘voted.’ If such person so registered shall be challenged or disqualified, the party challenging shall assign his reason therefor, and thereupon one of said judges shall administer to him an oath to answer questions, and he shall be questioned by said judge or judges touching such cause of challenge, and touching any other cause of his disqualification, and may also be questioned by the person challenging him in regard to his qualifications and identity, but if a majority of the judges are of the opinion that he is the person so registered and a qualified voter, his vote shall then be received accordingly. The vote of no one shall be received by said judges whose name does not appear upon the books of registration as a qualified voter.”

The special law makes no provision for the delivery of the ballot to the voter, nor as to its preparation by the voter. For information as to the proper method to be pursued in these matters resort must be had to sections 5899 and 5900 of the general law, which cover these matters in detail. The special law takes the matter up at the point where the voter is ready to cast his ballot and, by the terms of section 6220, provides that his ballot shall be handed by him to one judge, who shall pronounce the name of the voter, mark the voting number on' the ballot, and hand the ballot to the other judge, who shall deposit it in the ballot box. The provisions of this section are in harmony with the general law (section 5899), which declares that no other writing shall appear on the back of the ballot save the initials of the judges and such voting number, but are inconsistent, and in some respects in conflict, with section 5905, which requires a registration number also. There is a direct conflict in this, that section 5905 provides that the clerks shall indorse the registration number on the ballot, while the special law does not allow the clerks to handle the ballots at all. The provisions of 5905, providing for a registration number, cannot apply, because in 1 the city of St. Louis there is no registration number, and, for the same reason, section 5899 does apply. It is our duty to dovetail and reconcile all the election laws, so far as possible, and to give effect to all of them applicable to the situation, bearing in mind that if any inconsistency appears between the general law and the special law on any one point, the latter must prevail.

The special law applicable to St. Louis is complete, so far as it goes. It was the intention of the Legislature, by the provision in section 6189 to the effect that the special law should govern, subject to all the provisions of the other election laws not inconsistent or in conflict therewith, that resort should be had ?o the general law for guidance in matters not provided for in the special law; as, for instance, in the matters of delivering the ballot to the voter and his action in preparing same, which are covered by general sections 5899 and 5900, but which are not touched on at all in the special act. With regard, however, to the method to be pursued in marking and depositing the ballot, section 6220 of the special law covers the ground completely, and entirely supplants section 5905 of the general law, which was enacted long before, and without reference to, the registration law of 1903 applicable to St. Louis. The special law applicable to cities of between 25,000 and 100,000 inhabitants does provide for a registration number. [Sec. 6066, R. S. 1909.] It does not appear why this distinction is made between such cities and those of 100.000 and over and of 300,000 and over. "Without •doubt, however, such distinction is made. The fact that it is made clearly signifies the intention of the Legislature to require no such registration number in ihe latter cities. The law does not require an impossible thing to be done. It is obviously impossible to indorse upon a ballot a number that does not exist, and hence the manifest nonapplication of section ■5905 to this situation, and its no less manifest inconsistency with the special law governing elections in the city of St. Louis.

It appears that the registration book, in which the blank extends across two wide pages, has a line number on each of the two pages of the blank. The voters’ names are entered in alphabetical order; that is, ail beginning with the same letter are entered together on consecutive pages. The line number, from 1 up, runs serially through the names beginning with the .same letter, and the same numbers are repeated in the same manner with the names beginning with the next letter, and so on through the alphabet. It is suggested that this line number may be regarded as a registration number, and as such endorsed on the ballot. These line numbers are not required by law. They are •evidently inserted for the convenience of the clerks in making the entries. They are duplicated as many times as there are letters in the alphabet. Obviously they are not designed to be, and are not in fact, registration numbers, as will appear at once by comparison with the form provided by section 6066, Revised Statutes 1909, for registering votes in cities of over 25.000 inhabitants.

Plaintiff relies upon the case of Donnell v. Lee, 101 Mo. App. 191. That case involved a contest for a •city office in a city of 25,000 inhabitants. Certain ballots were challenged because there was not indorsed "thereon the registration number of the voter. The law applicable to such cities (section 6066) required a registration number. There was no provision in the special law governing elections in-such cities as to the method of receiving, marking and easting the ballot. The general law applied. The Court of Appeals held that section 5899 did not apply, because the election did not involve a public office; further, that section 5905 did apply to a city office, and that the ballots should be rejected because of the absence therefrom of the registration number. This ruling was obviously correct, inasmuch as the law governing the registration in that city did require a registration number. That case is not authority for the contention of plaintiff here.

Since the passage of the act of 1895 the election officials of the city of St. Louis have construed the law to require no registration number in the registration book, and, consequently, no such number on the ballot. This construction has been acquiesced in by the entire community, including candidates defeated for office, up to the time of the institution of this contest. In 1903, after eight years of such construction, the Legislature substantially re-enacted the law in this' regard, without providing for any registration number. These facts are of great persuasive force. We ought not to render a judgment reversing this settled construction — a judgment which would disfranchise the entire voting population of St! Louis — unless constrained to do so by a mandate of the statute which is of clear, certain and undoubted construction to that effect. We find .none such. On the contrary, we can reconcile the somewhat disjointed election statutes only by holding that the law applicable to St. Louis-(section 6220) is in harmony with section 5899 of the general law which forbids any indorsement on the back of the ballot save the initials of the judges and the voting number, and is inconsistent with section 5905, which provides for a registration number.

The question of jurisdiction is disposed of adversely to the defendant in the companion ease of Gantt v. Brown, page 271, decided at this term, and the same ruling is made in this case.

It is ordered that judgment be entered for the defendant.

All concur except Kennish and,Brown, JJ., not sitting


source: Caselaw Access Project

author: LAMM, J. WOODSON, J.

license: Public Domain

text:
    HOWARD A. GASS, Contestant, v. WILLIAM P. EVANS.
    In Banc,
    June 26, 1912.
    1. ELECTION CONTEST: Jurisdiction: Challenged By Inter-meddler. A county clerk, commanded by the court’s writ to recount the ballots in his county, in aid of an election contest for a State office, to which he is not a party, cannot, by motion, challenge the jurisdiction of the court, for he is an intermeddler, and his motion without legitimate function.
    2. -: In Supreme Court: Jurisdiction. The Supreme Court has jurisdiction to hear and determine an election contest for the office of State Superintendent of Schools, brought by the unsuccessful candidate at the election, as contestant, against the candidate who received the certificate of election and the commission to take office, as contestee. [Following Gantt v. Brown, ante, 271.]
    2. -: Motion to Dismiss: Impliedly Overruled or Abandoned. A motion to dismiss the election contest, filed early in the proceeding, charging that the allegations of contestant’s petition are too general, are merely fishing in character and only aimed at making a discovery, and that the action has not been prosecuted with due diligence, was impliedly and in effect overruled by subsequent orders, sometimes made on showings and sometimes on stipulation of counsel, extending the time of the commissioners to take evidence, and will be considered as abandoned by the movent’s silence on the final hearing at which it is not contended the petition does not state a cause of action.
    4. -: Registration Number. All the ballots cast at a general election in the city of St. Louis will not be thrown out because of an absence from each of the ballots of the registration number thereof, although to throw them out would result in giving the office to the contestant. The ballots were not Illegal because-the registration number of each was not placed thereon. [Following Timmonds v. Kennish, «tie, 318.]
    5. -: Fraud: Secrecy of Ballot. The secrecy of the ballot. should be kept inviolate up to the point where it becomes necessary to show fraud in the ballot box or ballots, and no further. There is no place where fraud can take sanctuary from justice. But the proof of fraud must be kept within the averments of the petition.
    '6. -: -: Irregularities. Irregularities in detail are-bound to occur in all registrations and elections where little time is -allowed and a vast array of voters register or vote and. a multiform aggregation of minute details are necessarily crowded into that little time. Courts recognize that condition as a natural one in election contests, and work out the wrong' and right of the matter and the injury to the contestant or contestee by weighing the facts and giving heed to the letter and not losing sight of the spirit of the laws.
    7. -: -: Not Established. Where the averments of contestant’s petition relating to fraud are established neither by the recount of the ballots by the board of election commissioners of the city, nor by the recount of the county clerks of the ballots cast in their counties, nor by the report and findings of the court’s commissioner appointed to take evidence in the election contest ease, nor by the other testimony, the-issue of fraud will be put aside. Fraud is not to be grounded on suspicions or conjectures.
    8. -: Illegal Voters: Negroes: Names Stricken at Subsequent Registration. The fact that at a registration in January after the election in November the names of eleven hundred negroes who had voted in November were stricken from the registration books, as unknown and not found, along with the names of fifteen thousand men, white and black, is-not sufficient to establish the contention that those eleven hundred negroes were illegal voters; especially, where it is shown that the registration for said November election was taken in-September and at said November election a question was voted upon which was -of all-pervading interest. The vote of a voter is not impugned by the mere fact that his name is stricken from a precinct registration list on a recanvass two months-after an election.
    9. -: -: -: -: Presumption. The presumption is that a name placed upon the registration books-by the judges and clerks of election is properly there, and that when he has voted and his vote has been counted he was. a legal voter.

      10. -: -: -: -: From Disreputable Houses. The fact that negro voters registered from disreputable houses in a congested negro quarter of the city, or from lodging, rooming or boarding houses, in numbers ranging from one to nineteen from each of said houses, does not of itself tend to show that they were not legal voters. Technical or actual sexual immorality is not a statutory disqualification to vote; and the court will take judicial notice that imperious prevailing social conditions irresistibly drive negroes to herd together.
    11. -: -: Unnaturalized Citizens: Equal Number for Each. Where the number of persons voting for contestee who contestant claims were not naturalized citizens is counterbalanced by an equal number of persons voting for contestant who were by the same token not naturalized, the court will not determine whether any of them were or were not naturalized citizens at the time they voted.
    12. -: -: Sporadic Scratching: By a Single Mark. The striking off of contestant’s name with a single stroke of the pencil, sporadically, in all precincts of the city, if there is no evidence pointing to a motive or to a common and preconceived design to commit the wrong of unauthorized erasure, will not be held to constitute illegality in the election, especially if such sporadic scratching affects both candidates alike. The court cannot know judicially that a legal voter, wishing to scratch a name, would use more than a single stroke of his pencil.
    13. -: -: Registration: Neglect or Mistake of Clerk: No Entry Under Qualified Voter. If the entries under proper headings in the registration books show the voter to be a legal voter, d’nd he is permitted to vote, the fact that the registration clerk wrote the word “no” under the caption ’“Qualified Voter”, in the registry, when he should have written “yes,” or that he wrote nothing at all under that heading, will not justify the court in holding the ballot of such a voter to be illegal. Such act of the clerk would neither enfranchise an illegal voter nor disfranchise a legal one. The duty of the contestant in such case is to go further and show that the man who voted and opposite whose name on the registration book under the words “Qualified Voter” was written “no,” or nothing at all, was in fact an illegal voter.

      Meld, by WOODSON, J., that the statute requires the Board of Election Commissioners to state on the registration books what persons whose names appear thereon are “qualified voters,” and said statute is mandatory, • and the judges of election cannot change that determination by the board once made.

      14. -: -: One Initial on Ballot. The statutes do not themselves declare that a ballot on which the initials of only one judge of an. election appears is not to be counted; and unless there is such a statute, the court in an election contest will look into the matter to determine whether or hot actual fraud caused the omission of the initials of the other judge. But if the legal voter himself does no wrong, performs his own duty and casts an honest ballot, it should be counted, in the absence of a statute declaring it cannot be counted. [Overruling McKay v. Minner, 154 Mo. 609; and following Hehl v. Guión, 155 Mo. 76, and Bowers v. Smith, 111 Mo. 45.]
    Election Contest.
    Judgment eoe contestes.

      W. G. Marshall and W. M. Williams for contestant.

      Spencer & Donnell and Lon 0. Docker for contestee.
    For briefs, see under Gantt v. Brown, ante, p. 271.
   LAMM, J.

At the general election in November, 1910, Howard A. Gass was the Democratic and William P; Evans the Republican candidate for the State office of Superintendent of Public Schools. On the face of the returns, Mr. Evans was elected. On his receiving the certificate of election and the'commission to take office for four years, Mr. Gass filed his petition to contest his election in this court on December 17, 1910, after giving due notice. On that day Mr. Evans appeared and filed his answer. At sundry times from that day to this, motions (to be presently disposed of) were filed, directed to one or another phase of the case. At a certain time our writ issued to the board of .election commissioners of the city of St. Louis, commanding them to fix a day (within thirty) and proceed to open the ballots cast in' said city at said election, in the presence of con- - testant, contestee and their counsel (after taking a prescribed oath) and count and compare the ballots with the lists of voters, examine them and certify the result here. That board obeyed that writ and their return of the recount increased Mr. Evans’s lead slightly. On January 11, 1911, Romulus E. Culver, Esq., of the St. Joseph bar, was appointed our commissioner to take testimony and report his finding in the instant case, as well as in companion cases pending contesting the same election between other parties (James B. Gantt v. John C. Brown, and Henry 0. Timmonds v. John Kennish) on other offices. He qualified, took upon himself and well performed the duties prescribed by our order. Thereafter, taking a vast volume of testimony, spread on 7160 pages in ten volumes of typewritten manuscript, he returned the same into this court, with his findings of fact and report, on the 15th day of May, 1912 — the cases being-treated by all hands as if consolidated. That report will be recurred to presently.

Thereupon contestant excepted to that report. Set down for a special hearing on June 17, 1912, the consolidated case on its merits and on motions was-submitted for final disposition — five judges sitting (Valliant, O. J., Lamm, Woodson, Graves and FerRISS, JJ.)

The facts warranting it, we take space and leave to say (and say it con amore) that we are beholden to distinguished counsel for the benefit of oral arguments and briefs unexceptionable in matter and taste. To hear and decide, not to praise, is the office of the judge. Peradventure, however, to commend counsel for putting away temptation to take on color and heat, when such temptation dogs the heels of cases of a political character, is to speak to a judicial purpose. The case bespoke, and received, a fine courage, to be tempered (as it was) with serenity and equipoise at the bar. So, it bespeaks it from a bench whose quickening precepts should he: Te shall not respect per- • sons in judgment; but ye shall hear the small as well as the great; ye shall not he afraid of the face of man. (Deut. i.17) And that noble saying of Yirgil in the Aeneid, I remember to have been once used by our brother Woodson: “Trojan and Tyrian shall be treated by me with no discrimination.” (Tros Ty ñus que, etc.)

Because briefs take a wide play, it will head towards brevity to treat propositions in our own order and way.

I. Of a bundle of motions.

(a) . Early in the litigation Mr. Seibel, county ■clerk of St. Louis county (commanded by our writ to recount the ballots in that county) filed a motion peremptorily challenging our jurisdiction; and on that ■and other grounds asking us to vacate or modify our order to him. Up to this moment that motion, slumbering, has been passed in silence by court and counsel. As to that we say: As Mr. Seibel is not a party nor does he appear by invitation or leave granted as “a friend of the 'court,” he is an out-and-out intermeddler and has no locus standi to intervene. Because of that fact, according to correct form, his motion is without legitimate function. So, in the evolution of the case, we have long since gone on beyond some of the points to which movent directs his motion. [Vide, Gantt v. Brown, 238 Mo. 560.] It is of little avail to do so vain and inutile a thing as to tread back in our tracks to dispose of moot questions. As to other points, they are raised by those entitled to raise them and deserve and have received attention.

The motion is stricken from the files to be consigned to the dustheap.

(b) . Early in the litigation counsel for contestee moved to have certain legal questions, raised by the pleadings, set down for oral argument. That mo-lion was passed sub silentio. As to that motion we say: Such of those questions as survived the wear and tear of the flux of time and run of events in the case have now been argued on final submission. Hence that.motion has no office hut to go also to the dust-heap.

It is stricken from the files.

(c) . On February 25, 1911, contestee filed a motion to dismiss, grounded on the theory that this court was without original jurisdiction to- hear and determine any election contest. As to that we say: That identical contention, carried forward as live matter in pleadings and briefs, was submitted in this and in the two companion cases, and has been ruled adversely to contestee, on full consideration of its constitutional bearings, in an opinion by Graves, J., in ■one of those companion cases, Gantt v. Brown, handed down at this delivery. "We stand by our deliverance in that case. Stare decisis.

The motion is overruled.

(d) . On July 12, 1911, contestee filed a motion in nature ancillary to the other, to dismiss. It was grounded on the notion that the allegations of contestant’s petition are too general, are merely fishing in character and only aimed at making a discovery, and because the action has not been prosecuted with due diligence — all to the wrong and injury of contestee, who complains he is serving in office without pay and is subject to the drain of expenditures of a grave character in the employment of counsel, etc. As to that we say: The orders of this court from time to time, sometimes by stipulation of counsel and again ■on showing made, whereby our commissioner’s time was extended, were either of right or of grace. In either event, they practically overruled that motion to some of its intents and purposes. What was thus •done in fact, hut impliedly, as we went along, maj as well be done in form at the end. As to the assault on the petition in the nature of a general demurrer (we say “demurrer” because that is the most favorable construction to put upon it) it is not now contended in briefs that it states no cause of action. Such silence should be taken as tantamount to abandonment. Hence the life has gone out of the point. We have no call to be astute to set up barriers in the road to the merits of the case.

The motion is overruled.

With this clearing away of some propositions, ruled in companion eases, and the underbrush of subsidiary matter, main propositions remaining come into the clear.

II. Of two other propositions to he put out of the case.

(a). Here, as in companion cases, it is alleged-in the petition (and now argued in contestant’s brief) that each and every of the 143414 ballots cast at the election in the city of St. Louis in November, 1910, should be discarded in the count. This, because of an alleged vice common to all, to-wit, the absence of a registration number on the back of every ballot voted in that great city — a condition originating seventeen years gone and existing ever since in every election held there. It was based on a construction of complex and overlapping statutes involving , separate schemes of registration and voting in country districts and in cities differently classified by population (not without some obscurity and consequent difficulty in interpretation) hitherto universally acquiesced in by all political parties and candidates. If the contention be sound, then Mr. Gass is entitled to the office of Superintendent of Public Schools; for it stands admit- ’ ted that all St. Louis ballots were in that fix, and on such hypothesis Mr. Evans falls many thousand votes short of enough to elect him. If it be unsound, then it is out of the case and other questions remain to be considered. As to that we say: In Timmonds v. Kennish, supra, contestant stood on that lone proposition and put it to the touch to win or lose all. So that contestant’s bread if any loaf there was to be, was due to be baked in that one oven in that case, or not at all., The proposition was declared unsound on full deliberation on a review and interpretation of pertinent statutes, in an opinion by Fekriss, J., handed down at this delivery in that case. To such situation Coke’s maxim applies: Of like things, in like cases, the judgment is to be the same. (De similibus, etc.) Accordingly, as we ruled there, so we rule here.

The point is disallowed to contestant.

(b). After making in his petition a formidable aggregation of twenty or more averments amounting to fraud in the registration, in the appointment of election officers, in a false count, in the manipulation of ballots, in intimidation by an unlawful use of process, some of them covering the acts of voters, some the acts of registration officers, some the acts of judges and clerks in and about the performance of their duties at the polls in receiving and counting ballots, some to the scratching of ballots, some in the selection of judges and clerks, who (it is alleged) masqueraded as belonging to the Democratic party when they did not — all contrary to the law and to the right of the matter — contestant went on to allege, in effect, that Mr. Evans was the beneficiary of the fruits of such frauds,.and that when the apparent result was purged of fraud it would be found that contestant was elected. “Wherefore,” to quote the last clause of his petition, “contestant prays leave to produce his proof of the facts and charges aforesaid.”

It would be useless to encumber this opinion with a more detailed statement of the specific.ations of fraud and gross irregularities amounting to fraud set forth, in the petition. The aforesaid general summing up will do. Oontestee joined issue on those averments by his answer.

(As our purpose is to deal with those averments in a block, we allow ourselves a foreword, viz.: there is a contention made in briefs relating to negro votes •cast at the November election of 1910, and to votes of aliens, which will receive separate attention. Hence what we have to say under this head does not appertain to those votes.)

Midway in the history of this case the question how to get at the proof of such of those averments as pertain to fraud in the ballot box and ballots, was considered by this court, with a view to instructing our commissioner how to proceed and how litigants might proceed in proving or disproving allegations of fraud in that regard. What we had to say in that behalf is said in our opinion on interlocutory questions certified here by our commissioner in the consolidated case, Gantt v. Brown, 238 Mo. 560. In that case it was ruled, in effect, that (ex debito justiciae) the secrecy of the ballot'should be kept inviolate up to the point where it became necessary to show the fact of fraud in the ballot box or ballots and no further; that fraud being hateful to the law there was no place in Missouri where it could take sanctuary from justice. Our judgment in that behalf was of such character that technical barriers, supposed to exist in the way, were burned away in the pursuit of fraud in an election case, always, of course, keeping the proof within the averments of the petition; that the accepted rules of law relating to the investigation of fraud in other cases were of such obstinate significance as to hold fast in an election contest case. Those rulings amounted to holding that, in conformity to his prayer, contestant was granted “leave to produce his proof of .the facts and charges aforesaid.” The door was opened wide to him (and he was invited) to go on and produce all Ms proofs. He did go on at will to the day finally fixed by ns for the end — one that gave him ample time for the taking of proof and ran for a year or so.

Attending to the result of that long and searching investigation, we make these observations:

We have no call to go out of our way to pass encomiums on the fairness of that election, as one side seems to want ns to do, nor to go out of our way to stigmatize that election as unfair, as the other side seems to want us to do. Irregularities in detail are bound to occur in all registrations and elections where little time is allowed and a vast array of voters vote or register and a multiform aggregation of minute details are necessarily crowded into that little time. Courts recognize that condition as a natural one in election contests, and work out the right and wrong of the matter and the injury to one or another litigant by weighing the facts and at the same time giving heed to the letter and not losing sight of the spirit of the laws. Such irregularities were found as of course in the registration and election in question. Whether they were more or less than in other elections held in St; Louis we have no data here to compare and decide, therefore we have no judicial call or right to comdemn or approve by way of comparison. Nor are there any data here by wMch it can be determined that Mr. Grass suffered more by them than Mr. Evans. (Nihil habet forum ex scena.)

We content ourselves with ruling on the record before us. Attending to that, the very heart, the sum of the matter is this: Neither by the recount of the board of election commissioners of St. Louis certified here, nor by that certified here by the county clerk of St. Louis county, nor by the testimony, nor by the report and findings of our own commissioner, are the averments of contestant’s petition relating to fraud, and Ms consequent damage therefrom, estabfished. Indeed, we are no little inclined to pnt that construction on the concessions of counsel in oral argument. As apposite to the whole situation, we may borrow a venerable figure gravely used in sober discourse. It is said of Lord Shaftesbury's short career as Lord Chancellor, that it was like «March — it came in like a lion and went out like a lamb — his discourse flew so high in a certain particular at the start and became so mild at the end. [Vide, Fonblanque's Eq., Laussat’s Ed., p. 40, note.] . So here of the phrase of the petition relating to fraud and injury therefrom, as compared with the facts uncovered. True, suspicions are indulged in briefs. But we know of no accredited Treatise on Suspicions, up to this time, whereby metes and bounds may be put to them, or (what is closer home) whereby a judge may discern their office in a lawsuit, if any, or the rules for applying them, if any. Indeed, suspicion is but smoke, conjecture. As the dream of a sleeper fades at daybreak, so conjecture and suspicion fade in the sunlight of the facts in a litigated case.

The sensible and sufficient rules to go by are: "What does not appear from admission or proof is taken by the judge as non-existent. In fraud he who alleges in court holds the burden of proof. Fraud or dole is not to be presumed. Honesty and good faith are persumed,’ absent proof to the contrary. So that it matters not that fraud will be followed relentlessly and its fruits snatched away by courts with a willing and ungloved hand. It must first be found to exist before it bears any fruit to be snatched away.

Giving heed to those precepts (and the premises all considered) this cause can not be determined in favor of contestant on the theory he was defrauded out of his election, as alleged in his petition.

Accordingly we so hold, and put fraud, as such, to one side.

III. Of negro votes.

Contestant maintains that the rise of 1100 negro votes were improperly cast and counted for Mr. Evans. Before disposing of that contention presently, a preliminary observation is due. Thus, by discarding those votes in certain hypotheses put by counsel in their brief and then by going on and taking from Mr. Evans’s vote, thus reduced, a certain number of other votes, the election of Mr. Gass, by a small plurality, is calculated. But in none of those hypotheses could Mr. Gass be declared elected unless those 1100 negro votes are first taken bodily from Mr. Evans’s count. It becomes apparent, then, that the key to the situation on contestant’s own theory is those negro votes. If they were properly allowed to Mr. Evans then all contestant’s hypotheses fail him. If they are to be discarded, then that fact does not elect Mr. Gass, unless other contentions obtruded are also ruled in his favor.

Becurring to those votes, the contention is not new in this court. Contra, it was made and pressed before our learned commissioner. We stress the fact that it was disposed of by him, after summing up the testimony pro and con, as follows: “My finding from all this testimony is that it falls short of showing that ány of these colored .voters did not in fact exist, or did not reside at the places from which they registered.”

But exception is taken to that finding and the significance of the matter warrants this court in going deeper into the facts. In doing so it may be assumed that in the registration of September, 1910, preparatory to the general election, negro voters (either real or simulated) representing those votes, registered, passed the subsequent verification, canvasses and scrutiny and voted for Mr. Evans in November, 1910. In the January following that election there was pending a “charter election” in the city of St. Louis to be held the last day of that month. There was also pending a regular city election to be held in the ensuing April. So much clearly appears from the testimony, and that, as shown by the record, was the theory of counsel before our commissioner. It is not quite clear under which recanvass of voters preparatory to those two elections those 1100 negro voters-were stricken off the registry books, but it was at one or the other, and my reading of the testimony inclines me to believe it was done in January preparatory to the charter election to be held January 31, 1911. The statutory scheme for registration, canvass of votes,, verification therefor, sifting and purging the lists, and for holding elections in the city of St. Louis (R. S. 1909, sec. 6221), contemplates an additional registration, verification and a recanvass purging the lists before every city election proper and before every election for the ratification of a revised city charter held between the all-round, new registrations required once in four years for presidential elections. Whatever was done in the way of a recanvass, additional registration, verification and the striking off of names of voters was done under that section; and what actually was done at that time was to strike off some fifteen thousand names (white and black) from the registry books, including’ said 1100 negro voters.

No vital significance is attached by contestant’s counsel to striking off any of those fifteen thousand names, except negroes. We face, then, this proposition: Over 1100 negroes who registered in September and voted in November for Mr. Evans were struck off the lists in January, 1911. The record abounds with testimony showing an intense and all-pervading interest in a state-wide prohibition proposition voted, on in November and likely to bring out a full registry and vote. At that election there were over 2000 more votes polled than were cast for Governor in 1908 and the registration shows nearly 17,000 more names. For contestant it is argued, as we grasp it, that the striking off of those negro voters so shortly after the November election harks back and impugns the validity of their votes in the November election — all this, observe, without direct evidence that any bogus or illegal negro votes were cast, any colonization schemes laid or hatched, or any direct evidence of fraud. As our commissioner declined to follow the lead of that argument, so do we.

This because:

The controlling maxims are; All things are presumed to be legitimately done, ■ until it is proved to the contrary; all things are presumed to be done solemnly. [Chlanda v. Transit Co., 213 Mo. l. c. 261; Coke, Litt. 6. b.] What ought to be done is easily presumed. Those maxims evidence a rule of convenient public policy universally applied and without _ which great distress would spring in the affairs of men. They abide until facts proved to the contrary make them take flight. They apply with peculiar force to official acts. [Hartwell v. Parks, 240 Mo. 537.]

The full force of those maxims is due here. By them the election officers, the judges and clerks, are presumed to have done their duty in the registration for the general election in 1910 in registering’ voters. They are presumed to have done their duty in sifting and purging the lists before that election. They are presumed to have done their duty at the election itself in receiving • votes. Subsequently when preparatory to a new election they purged the lists, the same presumption arises. If these officers in January purged these lists, not with a view to a new election nor under the commands of the statute, but because of wrongs they were conscious had been committed in the former registration and thus their last act was but setting in judgment on their former act, a situation would arise different than exists which would call for disposition in the light of all the facts. Moreover, when a voter has* voted and his vote has been counted the presumption in the first instance is he was a legal voter. [Gumm v. Hubbard, 97 Mo. l. c. 320.] That presumption was allowed in that case in favor of the foreign born — a fortiori does not apply in favor of the native born as here; for we shall assume the historical fact that the present negro is native and to the manner born. All this but means that the official acts of duly appointed .officers, charged with a duty in that regard, are presumed to be correct and he who asserts they are incorrect and attacks their validity holds the laboring oar and has the burden of proof. That burden contestant did not successfully carry in this instance.

We ought not to leave the subject without pointing out that the vote of a voter is not impugned by the mere fact that his name is stricken from a precinct list on a recanvass after an election. He may have moved (and negroes are shown to be prone to do that often in St. Louis)-, he may have died in the interim. So, the recanvassing officers may have inadvertently missed him. So, he may not get his verification notice when mailed. So, if he did get it, he may not care to take the time or go to the bother of reregistering. Through interest or the lack of it the registration.of voters notoriously swells and ebbs at spells. All these elements, and more, would have to be sharply reckoned with before it could be held as a matter of law that striking a voter from the lists impugns his vote cast in an election held two months before the fact. In this case contestee, not resting alone on friendly presumptions, took up the cudgels and went on and put in proof tending to explain the striking off of a great many of those negroes in a way to take the edge from the insistence that they were not tona fide voters. [Vide, our commissioner’s report: “Contestants also introduced evidence showing that many of these colored voters were registered from lodging, rooming, or boarding houses; the number registered from each of said houses ranging from 1 to 19. Contestants also introduced two witnesses who testified that they visited a row of houses on Clark avenue from which some of these colored voters were registered and were unable to find the parties as shown on the registration books. On the other hand, a large number of witnesses were introduced by contestees, most of them negroes, who testified as to the identity of a large number of the negroes so registered.”]

That they registered from a congested negro quarter as appears from the testimony avails nothing to the point. The negro race is not only markedly sociable and gregarious, but courts, assuming not to be more ignorant than the rest of mankind but to know what every one else knows, will take judicial notice that imperious prevailing social conditions irresistibly drive negroes to herd together. As to them the saying of old Bobert Burton is brought to pass, viz., ‘“Birds of a feather gather together.” [Anat. Mel. E. Claxton’s Ed., p. 429.] That some of the houses from which some of them registered were “lodging, rooming or boarding houses,” as found by our commissioner, or are disreputable, as argued by contestant, avails nothing to the point in and of itself. If the fact is as argued it is regrettable. But may we try an election contest on the cynical adage: Give a dog a bad name, and then — hang him. Exconvicts, unpardoned, may be disfranchised, but up to this time technical or actual sexual morality is not made a statutory test of a voter by the Missouri lawmaker. When that day comes, if ever, there will be fine grinding in the mill, but no matter about that. As the law now stands we do not understand it would avail contestant aught to show that all or any of those negroes were ethically incorrect.

The point is ruled against contestant.

III. Of the votes of certain aliens, and herein of scratched votes.

(a). It is contended by contestant that certain foreign born citizens, voting- at that election for contestee, were either naturalized by some court without jurisdiction, or had voted on first papers too old, or the registration books contained information showing they were not entitled to vote for this, that or the other reason.' Under the facts of this record to analyze contentions made under this head and determine them would be utterly vain and futile. This, because: Oontestee, as a counterstroke, raises the same issues on about the same number of foreign voters, who cast their votes' for contestant. Our commissioner patiently collated and classified the facts relating to such votes, on both sides and set down the number of votes affected in each class by itself with peculiar facts relied on to vitiate the.vote. Of course, as was proper, in order to make his classifications fit for comparison one with the other he used the same classification in votes challenged by both contestant and contestee. Contestant does not put his finger on any appreciable error or looseness in the commissioner’s classification or in the number of votes said to be affected under each group, but adopts the plan of making a different classification on his side than he does on his opponent’s. Why is somewhat dark. As to that we say: There is not enough of substance in the difference between the plan of the commissioner and that of contestant to justify bothering with determining which is the better of the two for the ends in view in both. Summed up, the gist of the matter is this: Under either plan, if the one or the other claim of contestant were allowed, only to be offset (as would be bound to happen on the facts here) by a similar claim by contestee, it would profit neither party a whit. It would not at all affect the net result and merit; ergo, the questions are somewhat ■ moot in nature and may be laid on the shelf to be decided in some future case riding off on them.

(b). The testimony shows that here and there, sporadically, in all the precincts in St. Louis, Mr. Glass’s name was struck off of some Democratic ballots by a single stroke of a pencil and no name written in. The same testimony shows a like condition on Republican ballots where Mr. Evans’s name was scratched similarly. The same condition exists in companion cases, only to a greater extent. A sinister conclusion is drawn from those scratches by learned counsel, arguendo, and if it be allowed as just, then, Mr. Evans’s plurality of 2000 or so over Mr. Grass is reduced by a very few votes.

In this view of it the question might be ruled as in paragraph “a” under this head. But we allow ourselves these further observations. If blocks of ballots or consecutive ballots, to a number challenging attention, were marked by a scratch of this sort, or if it were shown that the same pencil was used in the scratches, or that the phenomenon occurred largely with one set of election officers, or in one precinct (when the vote was on a State officer), or if there were any other indications pointing to a motive or to a common or preconceived design to commit the wrong of an unauthorized erasure, it would be well worth looking into. But where, as here, there are no facts of that sort, but the scratches occur sporadically and scattered throughout the entire city, affecting both parties alike, we can allow no sinister significance to them.

Counsel argue at our bar that a voter, intending to scratch a name and write in no other, would naturally not use only a single stroke of a pencil, but would obliterate tbe name by several scratches amounting to a smear. That contention we can not allow as sound, because: A court would be on dangerous ground that would undertake to answer that question in favor of or against a single pencil stroke or lay down a rule for scratching by a priori reasoning. Could the very Solomon himself know how liberally a voter would use a pencil in scratching a name from a ballot, absent evidence on habit, temperament, time, condition of mind, taste and sourroundings, as here? "We trow not. Not knowing, to that lack of knowledge a beatitude or admonition applies — found, I think, in Theophrastus Such (I quote offhand from memory and may corrupt the text): Blessed is he who knowing nothing avoids giving wordy evidence of the fact. A very celebrated judge once upon a time gave me that rule as a good one in judicial discourse.

To illustrate: There has been now and then an ingenious conceit indulged in damage suits that appellate courts should know judicially how a woman would fall and light under given circumstances in a street car accident, or where her center of gravity would be. Those amusing speculations on natural philosophy have been gently put to one side as beyond the purview of the doctrine of judicial notice. [Flaherty v. Transit Co., 207 Mo. l. c. 326-7; vide, remarks of Gary, J., in Chicago Ry. Co. v. Yancey, 33 Ill. App. 94.] The matter being no little related to the question up, we apply the same rule.

The point is not allowed to contestant.

IV. Of the failure to_ write “yes” or “no” in the column headed: “Qualified Voter.”

The registration books in use in St. Louis have a column headed “Qualified Voter.”. The scheme of registration involves two registers, one kept by one clerk and one by another and both are originals. Our commissioner reported, inter alia, .as follows:

“Frequently one of the books, in the column under the caption, ‘Qualified Voter,’ contains entries on every line, such as ‘Yes,’ or some mark indicating ‘Yes,’ while the same column in the other, or duplicate book, will be blank throughout. • It is shown that there are 29,427 names on the registration books as to whom there is no entry in the columns under the caption ‘Qualified Voter.’ ”

As we read the testimony those names were got at by counting from only one set of the duplicate books. But that is immaterial, in view of what follows. At the threshold of the subject lies this large and guiding proposition, which should never be lost sight of from end to end of the discussion, namely: If by error or accident at the outset a name is written on the books, which, in the further course of the registration investigation it turns out is not that of a voter, that name should be erased instcmter and got rid of once for all. Such is the law and such was the practice as shown by the testimony.

Mindful of that, as presently seen, it is not contended by contestant’s counsel that a failure to fill out that column, or to write “yes” when by» the facts disclosed by the registration “no” belonged there, or “no” when by the same facts “yes” should have been written, would kill a cast ballot on a recount. To illustrate: A citizen about to register gives in his residence, name, nativity, color, age in years, occupation and date of application to be registered. The facts so given in are written down in columns with appropriate heading (vide, R. S. 1909, secs. 6198 and 6199) and those facts show him to be native born, of full age and a resident of his precinct in St. Louis for the required time to gain a residence, and yet the clerk, without striking off the name, writes “no” in the column headed “Qualified Voter,” despite the patent fact that all the facts following the name in all the columns point only one way, viz., that he was qualified, or (as in this instance) writes nothing at all when he should have said “yes.” The last hypothesis states a typical case easily put and covering the point. As to that supposed case we say: It has been often said by way of a generalization that the right to vote is not a natural or vested right. That phraseology will generally be found to be used by courts in connection with a direct or implied consideration of the bald power of the lawmaker to regulate the right of suffrage within constitutional bounds. Under that power minors, paupers, soldiers, idiots, prisoners (and — may we not say it softly — our mothers, sisters, wives and sweethearts) are denied the right to vote in this State. But that generality is never used by courts to belittle or whittle away a right so tender, so sacred and so deep-going as the right of manhood suffrage under a democratic form of government among Anglo-Saxon peoples. To sensibly regulate the right is permitted; to turn a cold eye upon it, is unjudicial; to deny it in toto, is unthinkable — is stark revolution.

So, there is much learning and controversy in the courts on the question whether this or that voting or registering regulation is mandatory or only directory. It would serve no useful purpose to be drawn into that wide field of discussion under this head. It is not in this case under this head and should not be lugged in; for no one would have the hardihood to say, until the lawmaker writes it down in terms open to no other construction, that a court should hold that a mere clerk, who through inadvertence or misapprehension, wrote “no” in that column when the facts before him called out for “yes,” or “yes” when he should have written “no,” or nothing when he should have written something, would thereby either enfranchise an illegal voter, or disfranchise an honest one, destroying his ballot on a recount when once cast and counted by election judges. That would be a drastic holding at one unhappy and unreasoned push opening a new and wider door to possible fraud than any ever shut by this court; for if we once held that by a mere slip a clerk could on one hand destroy or on the other grant so valuable a right, we would open the door to design following in its train and after that — “the deluge,” as the French king put it in a similar predicament.

We do counsel for contestant simple justice by saying that although they make something of the fact that in one set of registration books nearly 30,000 names have no entry opposite in that column, yet they do not contend that lapse, in and of itself, vitiates the vote of registered and honest voters. Such would be a two-edged sword cutting to the bone.both ways in this case. Their object in introducing that line of testimony (as is shown in the commissioner’s hearing and by the train of their brief) is indicated by an excerpt from the record stating their position, thus: “I must state,” said contestant’s counsel, “that the purpose of this is not to disqualify any voter but to show the manner in which the election officers discharged their duty. . . . The evidence is not offered for the purpose of disqualifying the individual whose name appears, but for the purpose of showing the manner in which the election officers conducted or transacted the business the law imposed upon them, and it is only for that purpose.”

It will thus be seen that the contention is in the nature of a prelude or by way of inducement leading up to the ultimate and vital issue of an actual wrong and fraud edging its way into the ballot box by slipshod registration; and to be told, if at all, in the story of the ballots themselves when compared critically with the lists, examined front and back and held in judgment in this contest, together with the qualification of any challenged voter — a matter heretofore ruled against contestant on the facts in a former paragraph. The word “yes” or the word “no” might serve a useful purpose to catch the eye of election judges on election day to pass one vote or halt another, which, on summary investigation may be found an illegal one, but which, in the presence of a legal vote, ought not to control.

We have no call at this time to discuss the legal significance of the certificate made by the election officers to the registration books as required by statute. [R. S. 1909, sec. 6209.] Nor the significance of the statutory phrase, “under the column ‘date of application,’ the month, day and year when the applicant presented himself and was adjudged a qualified voter in the election precinct.” [R. S. 1909, sec. 6198.] Nor to further .considér the prima facie presumption, heretofore mentioned (Gumm v. Hubbard, supra), of validity arising from the fact that the named person voted and his vote -as cast was counted. We pass those matters by and dispose of the question in hand by referring to the stated position of contestant’s counsel and by calling attention to the record fact that no voter opposite whose name the column was unfilled was shown to be an illegal one, though the case was open to such proof; and the further fact that the testimony does not show or attempt to show how many of the 30,000 voters voted for Mr. Grass or for Mr. Evans, hence the case could not break on the point were it held vital. (And that, as shown, we do not do.) Wherefore, the point, if point it is,' is ruled against contestant.

Y. Of the initials of judges on some ballots.

There is a question lodged here relating to certain ballots cast by registered voters and whose right to vote is not impugned, viz., the absence of the initials of judges on a few ballots. The question is: Should they be counted or rejected? Its determination one way or the other does not affect the result, but it ought to be decided because of the unfortunate state our decisions are in. This court is in duty bound, at this its first opportunity, to set itself right on that score and speak a single and authoritative voice instead of a double one, as it now does. In McKay v. Minner, 154 Mo. 609, decided Eebruary 20, 1900, Division Two held that ballots bearing the name or initials of only one election judge though cast could not be counted in a contest. To reach that result that division in set terms overruled Bowers v. Smith, 111 Mo. 45 — a celebrated and carefully considered case in Bane whose reasoning'confessedly led to an opposite result. Our brethren deciding the McKay case dissented in the Bowers case and the McKay case made their dissent effectual. On March 14, 1900, Division One in Hehl v. Guion, 155 Mo. 76, followed the Bowers case in holding contra. Doubtless if the two divisions had been aware of these diverse decisions, the case would have been sent to Banc to be settled there, as was seemly and in accord with precedent; but those opinions were handed down, the court adjourned for the term and the matter has remained in that unsatisfactory condition to this hour. The whole question hinges, as stated in the Bowers case, on whether the law itself declares a specified irregularity to be fatal to the ballot. If so, courts enforce it; if not, they will not be astute to create a fatal irregularity by judicial construction. As pointed out in Hehl v. Guion, in the Bowers case it was ruled that: “If the law itself declares a specified irregularity to be fatal, the courts will follow that command irrespective of their views of the importance of the requirement. ... In the absence of such declaration, the judiciary endeavor as best they may to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate the entire return; otherwise it is considered immaterial.”

The benign, hence just, doctrine thus announced was followed by Division One. The reasoning of Yalliant, J., in the Hehl case is unanswerable. His interpretation of the statutes, following Barclay, J., in the Bowers case, is so broad, so wise and so close as to-leave nothing more to be said. During a consideration of the question from the standpoint of statutory law, precedent and natural justice, he quoted from a Canadian case pointing the dangers lurking in any other view. “It must also be borne in mind,” says Blake, V. C., in the case borrowed from (Grant v. McCallum, 12 Can. L. J. N. S. l. c. 114), “that if the court lightly interferes with elections on account of errors of the officers employed in their conduct, a very large power may thus be placed in the hands of these men. That which arises from carelessness today may be from a corrupt motive tomorrow, and thus the officer is enabled, by some trivial act or omission, to serve some sinister purpose, and to have an election avoided, and at the same time to run but little chance of the fraudulent intent being proved against him.” That excerpt aptly states the sum of the matter in a nutshell.

The question was up in the 45th General Assembly in the contest over the Lieutenant-Governorship between Mr. Painter and Mr. Gmelich, where in a report presumably prepared by Senator McDavid, a sound and veteran lawyer, and unanimously concurred in by his learned associates on the committee, the doctrine of Hehl v. Guion was applied by the committee and accepted by the General Assembly in deciding that contest. [House Journal, 45th General Assembly, p. 31, et seq.]

We reaffirm and stand by the doctrine of the Bowers and Hehl cases and overrule the McKay case. In doing so we are not to be taken as palliating or justifying a slovenly performance of official duty. There are remedies open and ample for non-performance of or misfeasance in official duties. So, if their official acts open a way for fraud and wrong to corrupt an election, it may be followed and corrected in a contest. We are protecting an honest voter, who, doing no wrong himself, -performs his own duty as a citizen,' casts an honest vote and is entitled to have it counted unless the law itself raises an impassable obstacle, as held in the Bowers and Hehl cases.

Other questions are alluded to in briefs, but none of them are material, and we have already pursued the matter far.

From the views thus expressed, there can be but one just result announced, viz., that Mr. Evans is entitled to the office of Superintendent of Public Schools. Judgment for him is, therefore, now rendered.

Valliant, G. J., and Graves and Ferriss, JJ., concur; Woodson, J., in separate opinion; Kennish and Brown, JJ., not sitting.

CONCURRING OPINION.

WOODSON, J.

I fully concur in the result reached in this case, and to all that is said in the opinion, except I believe that the statutes prescribing the duties of the Board of Election Commissioners of the city of St. Louis, regarding the registration of electors, is mandatory, as regards the qualified voters of that city.

The whole registration of the city is clearly placed under their supervision and control. [R. S. 1909, art. 15.]

They are thereby expressly empowered to investigate, hear evidence and to strike from the registration books all names improperly placed thereon by the precinct registrars, and to add thereto names of qualified voters whose names were improperly omitted or erased therefrom by the precinct registrars, as well as those authorized to be placed upon the registration books by the courts, etc.

Section 6191, clauses 3, 4, 5, 6, 7 and 8 thereof, which read as follows:

“3rd. Separate printed lists, by precincts, showing names of qualified voters, alphabetically arranged, as they appear on the registry books; giving name, number of line in registry books and residence of such voter, at the time such registry books are delivered to the election commissioners by the precinct registrars at the close of registration.
“4th. Similar separate printed supplementary lists, by precincts, of names added as qualified voters to the registry books by precinct registrars.
“5th. Also similar supplementary lists, by precincts, of names erased from the registry books by precinct registrars.
“6th. Also similar printed supplemental lists, by precincts, of voters added, restored or erased by the board of election commissioners.
“7th. Also similar printed supplemental lists, by precincts, of voters added or restored by the court.
“8th. Also similar printed supplemental lists, by precincts, or voters added by the election commissioners or the courts, and whose names do not appear on the regular registration lists.”

The board, by this section, is given express authority to pass upon and adjudicate whether or not a person is, or is not, a qualified voter, and that section of the statute in express terms provides that the board shall state the “names of qualified voters,” as well as the facts upon which that finding is predicated.

If the registration books show that a party is in fact a qualified voter, but the board through error or fraud should find to the contrary, the courts entertain ample power, by the mandamus or other appropriate original writ, to compel it to so state that fact or its judgment.

"While the finding of the board, that a person was a qualified voter, might not be controlling, and doubtless would not be, in a contested , election case, if the fact should appear that he was not in fact, a qualified voter; but the object and purpose of the statute in requiring the Board of Election Commissioners to state the fact that he is a “qualified voter,” is to control the various judges and clerks of election, on the day of election, in passing upon the question, as to whether or not the persons who offer themselves as voters, are qualified voters. If that fact is not stated, then one set of judges and clerks in one precinct might hold that one person was a qualified voter, and those of another, upon the same showing, might hold to -the contrary, and vice versa. In other words, in my opinion, the judges and clerks, in those cities where the law provides for a registration of electors, have no authority whatever, to pass upon the qualifications of the voters, except perhaps in cases where their attention is called to some fact which shows the voter has been disqualified from voting since the board passed upon his qualification.

Vallicmt, C. J., concurs herein.


author: GRAVES, P. J.

text:
    FRANK ALLEN v. ALVIN P. MORRIS et al., Appellants.
    Division One,
    June 29, 1912.
    1. EVIDENCE: Verbal Acts: Statements by One in Possession. In a suit to quiet title other witnesses may testify what statements were made by persons in the actual possession of the land in suit as to how they held the land.
    2. COTENANCY: Adverse Possession: Limitations. Presumptively the possession of one ootenant is the possession of all; but there are exceptions to the rule, one of which is that, if the eotenant in possession, by acts clearly repudiating and denying the rights of his cotenants and showing a clear intention to hold adversely to them, sets up a claim as sole owner of the land, the Statute of Limitations will inure to his benefit.

      3. -: -: -: Notice. But it is not essential that these acts he brought to the notice of the other cotenant • or any of them. If such acts are such as to demonstrate to the immediate and surrounding neighbors an adverse claim, the other cotenants must take notice thereof, although they reside in a distant State.
    4. -: -: What Acts Show Adverse Possession. Where the title was in the father who died in 1848, leaving children by a former wife, and two small children by his surviving second wife, who died in 1863, presumptively the title descended to all the children, and "the children of the second wife who remained in possession after her death presumptively held possession for themselves and the children of the first wife. But where there is evidence that the second wife’s money was used to pay for the land and her children alone remained in possession, the fencing and building of houses thereon by them and the conveyance or incumbrance of the land by them as the sole owners are n'ot referable to a recognition of a cotenancy, although the payment of taxes and the appropriation of the rente and profits might not alone be held to show a claim adverse to the other cotenants. But when done for a long series of years, they are, when taken in connection with the other matters, important.
    4. -: -: -: Incumbrance Within Ten Years. Recorded incumbrances or conveyances of the land by two of the cotenants, which declare that each was conveying an undivided half interest, although made and recorded only six or seven years prior to the suit to quiet title, emphasize the verbal acts of adverse possession and ownership occurring for many years prior to such mortgages and deeds.
    Appeal from Bates Circuit Court. — No». C. A. Denton, Judge.
    Affirmed.

      S. W. Dooley for appellants.
    . (1) The possession of one tenant in common is the possession of all. Bernecker v. Miller, AO Mo. 473; Long v. McDow, 87 Mo. 197; Rodney v. McLaughlin, 97 Mo. 426 ; Stevens v. Martin, 168 Mo. 407. The entry and possession of one tenant in common is prima facie in support of the title of his cotenants. There must be some notorious and unequivocal act, indicating the intention to hold adversely. A declaration of such intention to a stranger is not sufficient unless brought to the knowledge of the cotenant. Warfield v. Lindell, 30 Mo. 272. If the acts are of such a nature as the law will presume to be notice by persons of diligence in attending to their own interests and of such unequivocal character as not to be easily misunderstood, it does not devolve upon the possessor to show that actual notice was given or prove a probable actual knowledge; it is sufficient if the act is overt and notorious. Lapeyre v. Paul, 47 Mo. 586; Musick v. Barney, 49 Mo. 458; McQuiddy v. Ware, 67 Mo. 74; •Colvin v. Hauenstein, 110 Mo. 575; Dunlap v. Griffith, 146 Mo. 283; Golden v. Tyler, 180 Mo. 196; Chapman v. Kullman, 191 Mo. 237; Coberly v. Coberly, 189 Mo. 1; Hendrick v. Musgrove, 183 Mo. 310. Mere possession and exclusive receipts of rents and profits without any account or demand for the period of twenty-six years, is not of itself sufficient to raise a legal presumption of disseisin. Warfield v. Lindells, 30 Mo. 272. (2) The only overt act of plaintiff’s grantors is Cereña Morris’s deeds of trust on her interest in this land, described as an undivided half interest. If these should be deemed inconsistent with defendant’s •claim so as to impart constructive notice, they fall short of the period of ten years required by law, as they are dated in March and October 1899, or eight years before this suit was brought. MeCune v. Good-willie, 204 Mo. 339; Hendricks v. Musgrove, 183' Mo.' 300. (3) The declaration of title first made about seventeen years after a friendly or permissive possession had run in them and thirty-four since that of the mother began, will not hold unless actual knowledge of them is brought home to the defendant. McCone v. Goodwillie, 204 Mo. 339; Heckescher v. Cooper, 203 Mo. 293. (4) The rule as to the nature and character of adverse possession which will operate as a bar against a tenant in common in favor of Ms cotenant is much more stringent than where such relation does not exist. Golden v. Tyler, 180 Mo. 196. (5) The entry of plaintiff’s grantors was friendly, afterwards became permissive and that character being stamped upon the nse the law presumes it continued until a distinct and positive assertion of right hostile to the owner, and brought home to him (actual or constructive), transformed it into one adverse, exclusive and independent of defendants ’ title. Heckescher v. Cooper, 203 Mo. 293; Lumber Company v. Jewell, 200 Mo. 716; Pitzman v. Boyce, 111 Mo. 392; Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 40'Oq Budd v. Collins, 69 Mo. 129; Estes v. Long, 71 Mo. 605; Wilson v. Lerche, 90 Mo. 403; Wilkerson v. Thompson, 82 Mo. 317.

      Silvers & Silvers for respondent.
    (1) Continuous possession, payment of taxes and taking of profits for a period of twenty-six years, acquiesced in by defendant, gives title to the plaintiff possessor. Warfield v. Lindell, 38 Mo. 581. Especially is this true when the possession is coupled with the making of improvements. Dunlap v. Griffith, 146 Mo. 293; Hutson v. Hutson, 139 Mo. 236; Hendricks v. Musgrove, 183 Mo. 300. (2) Actual notice of the adverse claim to defendant is unnecessary. Dunlap v. Griffith, 146 Mo. 294; Boyce v. Railroad, 168 Mo. 593; Hendricks v. Musgrove, 183 Mo. 309. (3) Oral statements of claimants by adverse possession, made to third persons, are admissible along with other facts on the question of adverse possession. Dunlap v. Griffith, 146 Mo. 294.
   GRAVES, P. J.

Action to qmét title to eighty acres of land in Bates county. In the petition it is charged that the land was entered by one John Morris in 1845; that said John'Morris, whom we will hereafter designate as John Morris, Sr., died in 1847 or 1848, leaving a widow and two sets of children. One set of these children were by the first wife of John Morris, Sr., and the other by his second wife and widow. The defendants in the suit are the first set of children and their descendants, where any had died. The defendants also include husbands of some of the married girls. The widow or second wife died in 1863. Plaintiff claimed title through the children of the second wife, alleging that the land was purchased with the money of the second wife, and alleging further that he and his grantors had been in the adverse possession of the land for more than fifty years, and had during all that time paid the taxes thereon. The petition further charged that the records of the county failed to disclose any conveyance of the land by the defendants, or the first set of children. Service was had by publication and in due course of time a default judgment for plaintiff was entered. In due time on© of the defendants, Alvin P. Morris, moved to set aside the judgment by default, and the judgment as to him was set aside. Thereupon the said Alvin P. Morris filed his answer, and the plaintiff his reply, and upon the issues thus tendered a trial was had, and judgment was again entered for the plaintiff. It should be noted that, after the default judgment, and before its vacation as above indicated, the plaintiff conveyed one forty acres of the land to Frank Tyler, and the remainder thereof to Cereña Morris.

This fact appearing at the trial, the last decree was entered to accord with such fact. From this adverse decree Alvin P. Morris has appealed, but the other defendants have abided the judgment of the court. Points made will be noted in the course of the opinion.

I. During, the' course of the trial many objee-. tions were made as to the admission of evidence which do not seem to be pressed in tbe brief here, although they are made points under the proper assignment of errors. These objections were to the admission of the evidence of certain witnesses who testified as to what Cereña and John Morris, Jr., said about how they held this eighty acres of land. The statements proven were statements made whilst Cereña and John were in the actual possession of the lands. This evidence was proper. Such statements made by one in possession are denominated by the law as verbal acts tending to characterize the possession. The rule in this State is thus tersely put in Dunlap v. Griffith, 146 Mo. l. c. 294: “As to the admission and exclusion of evidence. The court correctly ruled that Henry Griffith’s declarations were inadmissible because he was not in possession of the land when the proposed declarations were made, and the statements of Daniel Griffith asserting title while in possession were admissible as verbal acts tending to characterize his possession. [Burgert v. Borchert, 59 Mo. 80; Railroad v. Clark, 68 Mo. 371; Lemmon v. Hartsook, 80 Mo. 13; Miss. Co. v. Vowels, 101 Mo. 225.]”

We can add nothing to the discussion of the point as found in the cases cited above. In the case at bar the trial court properly admitted this evidence.

II. The crux of this case lies in the character of the.evidence tending to show an adverse holding of this land by the children of the second wife, as against the children of the first wife. When the father died in 1848 these children were small. Cereña, the daughter, was not over four or five years old. In 1852 the appellant left for Oregon, where he has since been. The children of the second wife were not of such age as to intelligently understand business affairs. Cereña, or Serena, as it is sometimes put in the record, was but eight or nine years old when appellant left, and the boy John a little older. Their mother died in 1863. As a legal proposition the legal title to the land being in the name of the father passed npon his death to all his children, and npon the face of the record they became tenants in common.

But there can be adverse possession as between tenants in common. It is true that presumptively the possession of one is the possession of all, but possession of a different character may be shown. The only question is the character and quantum' of proof.

Upon the general rule in the recent case of Nickey v. Leader, 235 Mo. l. c. 43, we said: “The general rule is that the possession of one joint tenant is the possession of all. This rule has its exceptions. Although the deed may in law create a joint tenancy, yet if one of the joint tenants is in actual possession, claiming the title as against cotenants and the world, the Statute of Limitations will inure to the benefit of such claimant. [Warfield v. Lindell, 38 Mo. 561; Dunlap v. Griffith, 146 Mo. 283; Whitaker v. Whitaker, 157 Mo. 342; Hendricks v. Musgrove, 183 Mo. 300.]”

And as to the character of the proof in the same case we further said at page 44: “Of course the testimony as to the adverse possession of one cotenant as against his fellows must be clear and pointed. In the case at bar, there are many facts in evidence strongly tending to show that Marshall claimed the absolute ownership of this house and small tract of land. In fact, it appears that only recently has a contrary claim been made. The court was authorized to find for respondent upon this theory of the ease alone, and having so found we will not disturb the judgment.”

What was said in the Nickey ease may well be said here. There are many circumstances in this case lending credence to the theory that> Cereña and John Morris, Jr., were claiming the whole title to this land. It appears that they were impressed with the idea that their mother bought the land with funds of her own. When by the ravages of war the buildings and improvements (moderate as they were) were swept away, they caused them to be replaced. From the death of their mother in 1863, they paid the taxes. Not a child of the first wife ever claimed an interest in this land, so far as the record goes, except this appellant, and the character of his claims we discuss later. Under the proof, for years the two children left of the second wife claimed the land as their own, improved it as their own, used the rents and profits as their own, and paid the taxes thereon as their own. It is true many of these things are referable to the acts of co-tenants, but all of them are not so referable. The fencing and- building of houses are not so referable. Neither is the claim of ownership to be so referred. In addition to the claim of ownership dating back far beyond the statutory period, we find later, but six to seven years prior to this suit, that they sold and incumbered the lands, always expressing in the conveyances that each one was conveying an undivided one-half interest in the tract of eighty acres. It is true that these record evidences of their adverse claim do not go back the required number of years, but they do emphasize the verbal acts of adverse possession occurring for many years prior to the deeds and mortgages. Whilst the acts (whether verbal or otherwise) to show an adverse claim must be acts clearly repudiating and denying the rights of the cotenant, and must be such as will show a clear intention to hold adversely as to the other cotenants, yet “it is not essential, however, that it be shown that such acts were brought to the notice of the cotenant.” [Hendricks v. Musgrove, 183 Mo. l. c. 300, and cases cited therein.’ If such acts are such as to demonstrate to the immediate and surrounding neighbors an adverse claim, the cotenant must take notice thereof. In other words, his knowledge must be the general knowledge of the neighborhood wherein the land is situated.

For practically forty years Cereña and John Morris, Jr., claimed the land. During all this time they appropriated the rents and profits. During the same time they improved it and kept up the improvements, and later conveyed it as their own. Their whole conduct toward it was inconsistent with the recognition of the claims of any other parties to an interest therein.

Another significant fact in this record is that of all the children bom of the first wife, this appellant is the only one who ever asserted a claim. This fact would indicate that they, like the children of the second wife, were impressed with the idea that the lands were purchased with the funds of the second wife, and abandoned all claim thereto. Appellant claims that he had an understanding with Cereña and John that they were to use the land and pay the taxes. He testified by deposition, and expresses many conclusions. Just when such an understanding was had does not appear. How it was had does not appear. It could not have been before he left this country in 1852, for two reasons. First, these children were then very young, and, secondly, the widow was then in possession and remained in possession until her death in 1863. He does not claim to have made it by correspondence, and yet this is the only way in which it could have been made, for the record does not disclose his presence in Missouri but once since his departure in 1852, and that was about eight years before the trial in the lower court. At that time he visited his half brother and sister, but does not claim in his deposition to have ever mentioned the farm to them. They say that he did not mention it. He does not claim to have then made any arrangement as' to the payment of taxes, so that if he ever had such an arrangement it must have been by letter, yet he makes no such claim and no such proof in the deposition. His deposition in many respects is valueless because of mere conclusions stated. He does claim, however, to have gotten a letter from Cereña Morris some eight years before the suit, in which, he says, she asked him what he would take for his interest in the land. The loss of this letter is shown and one of his daughters testifies in a way to the contents, as did appellant. Cereña Morris denies ever writing such a letter, and upon this disputed point we are impressed as was the trial court, i. e., that no such letter was written. It strikes us as peculiarly strange that Cereña Morris for long-years would openly claim this land as her own, as the record shows, and then write a letter such as claimed. It also appears strange to us that, if appellant knew or thought he had an interest in this land, he would await the ripe old age of eighty-two or better to assert it. His long- silence is against him.

For more than thirty years he pays no taxes, and furnishes no excuse therefor, except as above discussed.

Upon the whole record we are satisfied with the decree nisi. To our minds it measured out the full equities of the case. Let it be affirmed.

All concur.