author: BLAIR, J. BOND, J.

text:
    E. W. STEPHENS et al., Constituting State Capital Commission Board, v. JOHN P. GORDON, State Auditor.
    In Banc,
    December 8, 1915.
    1. NEW STATE CAPITOL: Furniture. The Act of March 24, 1911, Laws 1911, p. 108, providing for the building of a new state capitol, invested the State Capitol Commission Board with no authority to purchase furniture for the new building. The board is by it created “for the purpose of building a new state capitol,” and it specifically says that the terms of its members “shall end with the construction of the building;” and while it makes an appropriation of the money for the construction of building and the purchase of additional grounds, it makes none for buying furniture.
    2. -: -: Purchaseable Out of Other Funds. The said act limits the State Capitol Commission Board’s power to expend money to a sum of $500,000 less than the bond issue authorized by the people; and the cognate acts disclose that this $500,000 is the sum set aside by the act submitted to the people as the maximum amount, out of the proceeds of the bonds, which is to be available for other purposes than the construction of the capitol, including furniture, and this entire sum, out of which the provision for furniture is made, the board is directly excluded from using.
    3. AMBIGUITY IN STATUTE: Resort to its Title. Where the terms of an act are ambiguous, resort may be made to its title for whatever light it can give; but resort to the title is not justified if the body of the act is free from ambiguity. And the Act of March 24, 1911, being entirely clear' and on its face showing that it does not authorize the State Capitol Commission Board to purchase furniture for the new capitol, it is ,of no consequence that its title covers the furniture as well as its construction.
    4. NEW STATE CAPITOL: Building and Furniture: Single Board. The act adopted by the people, authorizing the issuance and sale of bonds for building a new state capitol, did not provide that a single board should have charge of the construction of the capitol and the purchase of furniture, nor did it prohibit the creation of separate boards, nor provide for any board at all; but it left the Legislature untrammeled in that respect, and the cognate legislative act invests the only board it created with no power to buy furniture for the new building.

      5. -: Construing Statute: Convenience. Likelihood of delay in case furniture for the new capitol cannot he purchased before the meeting of the next Legislature unless it is held that the present State Capitol Commission Board is invested with power to purchase furniture, is an argument from convenience, which has a place in construing ambiguous statutes, but none in construing a clear and unambiguous one. Courts have no power to reconstruct statutes merely for the purpose of making them conform to their ideas of wisdom.
    Mandamus.
    Writ denied.

      A. T. Dumm for relators.
    (1) If there is any doubt as to the meaning of the statutes or ambiguities in their provisions, the court will construe the various provisions so as to avoid public inconvenience. (2) The court should look at the history of the times and all the surrounding circumstances in order to ascertain the scope and the purpose of the act creating the State Capitol Commission Board. (3) Eeference to the title of an act is'proper in cases of doubt, in order to ascertain the meaning of the act and to give it a reasonable interpretation. (4) There can hardly be a doubt that the various acts are in pari materia. The law found in 'Laws 1911, on page 416, is incorporated by reference and made a part of the acts of the same Laws on pages 108 and 250.

      John T. Barker, Attorney-General, Thomas J. Higgs, Assistant Attorney-General, and Lewis Hord Cook for respondent.
    (1) The act creating the “State Capitol Commission Board” does not authorize the purchase of office furniture or office equipment by said board. (2) The act is not ambiguous and therefore the title to said act should not be considered in construing the same. If the title of the act is considered in the construction of said act then there is no authority given the ‘ ‘ State Capitol Commission Board” by said act to purchase furniture for the offices in the eapitol building. (3) The doctrines of public convenience and in pari materia are not used in the construction of an act when said act is not ambiguous. The act in this case is not ambiguous and these rules of construction are not applicable to this cause.
   BLAIR, J.

This is a proceeding by mandamus, instituted by the members of the ‘ ‘ State Capitol Commission Board” for the purpose of compelling the State Auditor to audit an account for office furniture for the new eapitol and issue his warrant for $32.50 in payment thereof. This is the only purchase of the kind, so far as the petition shows. Respondent entered his appearance, waived the issuance of the alternative writ and demurred, generally, to the petition therefor. Relators thereupon moved for judgment.

Under the issues made, the sole question presented is whether the State Capitol Commission Board is empowered to purchase the furniture for the new eapitol.

The title of the Act is as follows:

“An Act providing for building a new state capitol at the present seat of government of the State of Missouri and for acquiring other premises than those now owned by the State, for additional State eapitol premises and making provision, and also appropriations out of the state treasury, for carrying out the purposes and provisions of this act, and also of an act of the General Assembly of this State entitled, ‘An Act authorizing and directing the contracting of the liability of the State of Missouri by the issuance of its state bonds in a sum, not to exceed three and one-half millions of dollars, and for the sale of said bonds, to provide means for the building, furnishing and other equipment of a new state capitol at the present seat of government of the State, and for the purchase of additional state capitol premises, and also providing for the payment of said, bonds and interest accruing thereon,’ Approved March 16, 1911.” [Laws 1911, p. 108.]

Section 1 of the act first provides “that for the purpose of building a new state capitol at the present seat of government of this State, there is hereby created a board of commissioners to be styled the ‘State Capitol Commission Board.’ ” The section then proceeds to fix the number and qualifications of the members of the board and provide the manner of their election, and continues: “Said commissioners . . . shall hold their offices until the completion of said building unless sooner removed for cause;” provides for bonds to be given by the members, for the filling of vacancies, for the general manner of conducting the business of the board, for its offices and times of meeting and for the compensation of members, and concludes: “The term of the members of the board shall end with the construction of the building proper.”

Section 2 provides that “it shall be unlawful for any member of the board to be connected directly or indirectly in any manner with any contract. or part thereof for the building of said state capitol or for any work or employment connected therewith or for the purchase or furnishing of any material or supplies therefor, or to accept any benefit therefrom, or the promise of any such benefit” in any manner, and then fixes drastic penalties for the violation of that provision and forbids the employment of any person as superintendent “of the construction of said building who is or shall become connected directly or indirectly with any contract for the building of said capitol or for the furnishing of any of the material or labor therefor.” In this section is set out the oath to be taken by members of the board, as follows:

“I,-, do solemnly swear that I am not
now and shall not, directly or indirectly, become interested or concerned in any manner with any contractor or contractors, person or persons, company or corporation for the construction of the state capítol or any part or portion thereof or in the proceeds or profits arising out of the same or in any work or labor done thereon or material furnished in the construction of said building, and that I shall faithfully and impartially, according to law, perform all my duties as a member of the State Capitol Commission Board.”

Section 3 provides for the purchase or condemnation of certain premises in Jefferson City, adjacent to the old capítol grounds.

Section 4 provides for the selection of “plan for a state capítol; . said plan to be obtained by a competitive architectural contest,” and defines in part the method to be pursued in that connection. It proceeds thus: “No plan shall be adopted unless accompanied by a detailed and accurate specification of the approximate cost of material and other expenses necessary for the construction of said building, including heating and ventilating apparatus, lighting, vaults and all proper fixtures and conveniences, nor until it shall be definitely ascertained that the aforesaid cost shall not in the aggregate exceed three millions of dollars (and the interest received by the State on proceeds of sale of the bonds herinafter referred to). Said state capítol shall be so constructed and arranged as to afford suitable and adequate offices, compartments and conveniences for the departments of the state government at the seat of government. It shall be a modern, fireproof structure and be constructed of granite, or stone or both and other material suitable and proper to be used in said construction; shall have, above the basement, a first floor for state office departments, also a second floor for legislative chambers and offices, and a third floor for offices and committee rooms; shall have a roof of either tiling, slate, sheet metal or other suitable material, and shall be provided with proper heating, lighting and ventilation facilities and with the most modern and approved sanitary arrangements and equipment.”

The section then authorizes the board to confer with persons “conversant with the subject”1 and to visit other state eapitols in order to procure information upon which to base its selection of a plan.

Section 5 authorizes the board, after adopting a plan, to enter into “a contract or contracts in writing for the construction of said capitol pursuant thereto.” It authorizes the board to “contract for the construction of the entire building by a contractor, individual or corporate, who may undertake the whole work” or to make separate contracts for different classes of work, if the board deems it advisable to divide the work into classes. It requires all contracts for the construction of said building or for designated classes of the work thereof to be let to the lowest and best bidder, and provides the manner of letting bids, and requires that‘ all contracts for the construction of said building or classes of work thereof or for material and labor shall be in writing” and signed in a prescribed manner. It then proceeds: 1 ‘No contract or contracts shall be made or entered into by the board incurring in the aggregate an expense greater than three millions of dollars and the interest received by the State on the proceeds of the sale of bonds hereinafter referred to for the construction of said building.”

Provision is then made for the cancellation of contracts in proper cases, for the retention of a per cent from payments due on monthly estimates, and for the quality of materials used, for preference of Missouri materials and labor, the nse of Missouri granite and stone, and that the plans and specifications shall be executed by skillful and reputable architects, contractors, artists, mechanics and laborers. Bonds are required of contractors, and the preservation and filing of vouchers, contracts, files and papers is enjoined upon the board “until after the completion of said building, and shall then be delivered to the State Auditor for preservation by him in his office. The board is authorizes. to make all contracts and agreements and employ all the aid and assistance and adopt all means appropriate for carrying out the purposes of this act.”

Section 6 prescribes the manner of appointment, qualifications, term of office, oath, bond and duties of the secretary of the board. Only one sentence of the section has any bearing upon the question in this case. It is as follows: “He shall keep a set of books showing in systematic form all the expenditures incurred by the board in and about the building and construction of said state capitol; also showing at all times the condition of the funds appropriated for and applicable for said purpose.”

Section 7 provides for the appointment and prescribes the qualifications and duties of a superintendent of construction.

Section 8 provides that the Board of the Permanent Seat of Government shall decide tie votes in the State Capitol Commission Board and makes the Attorney-General its legal adviser.

Section 9 prescribes the manner in which accounts are to be audited and paid. There is nothing in the section throwing light upon the question in this case.

Section 10 reads as follows:

“Appropriation. — That if the act of the Forty-sixth General Assembly, to be submitted to the voters of this State, referred to in the next succeeding section of this act, shall be ratified by two-thirds of the legally qualified voters of this State, voting at an election field for that purpose, and it thereby becomes a valid and binding law, and the bonds authorized by said act are issued and sold pursuant thereto, the entire proceeds of the sale thereof shall be paid into the state capitol building fund, then said proceeds (which it is estimated will aggregate the sum of three and one-half millions of dollars, more or less) shall be and the same with all interest accruing therefrom, are hereby appropriated to the construction of the state capitol referred to in this act, to the purchase of additional State capitol premises as contemplated by this act, and to otherwise carrying out its purposes and provisions, and also the purposes and provisions of the act of the 46th General Assembly of this State to be ratified by the voters of the State and referred to in the next succeeding section of this act: Provided, however, that so much of the proceeds of the sale of said bonds as may be necessary for the purpose, may be used for the payment of the coupons of said bonds, maturing during the years 1911 and 1912; the same to be restored to said capitol building fund out of the moneys collected to pay said bonds and interest thereon, when so collected, and paid into the State treasury.”

Section 11 reads as follows:

“Act, when effective. — That this act shall take effect and be in force from and after the ratification, by the voters of this State and the proclamation of the governor to that effect, of an act of the 46th General Assembly of this State entitled ‘An act authorizing and directing the contracting of the liability of the State of Missouri by the issuance of its state bonds in a sum, not to exceed three and one-half millions of dollars, and for the sale of said bonds, to provide means for the building, furnishing and other equipment of a new state capitol at the present seat of government of the State, and for the purchase of additional state capitol premises, and also providing for the payment of said bonds and interest accruing thereon,’ approved March 16, 1911.”

The act of March 16, 1911 (Laws 1911, p. 416), referred to in sections 10 and 11 of the act above summarized, was the act which provided for the contracting of the liability and the issuance of bonds of the State of Missouri in an aggregate of not more than $3,500,000, the proceeds whereof “shall constitute a fund to be designated as a capitol building fund, and shall be applied exclusively to the building of a new state capitol at the present seat of government of the State, including the furnishing and other equipment of said building and the purchase by the State of additional capitol premises adjoining those now owned by the State; provided, that three hundred thousand dollars of said fund, or so much thereof as may be necessary, shall be applied to the furnishing and other equipment of said capitol, and two hundred thousand dollars of said fund, or so much thereof as may be necessary, shall be applied to the purchase of land (adjoining the present state capitol premises) for additional state capitol premises. . . '. Contract or contracts for expenditure to carry out the purposes of this act in. excess of said three and one-half millions of dollars, with interest collected thereon, shall, to the amount of such excess, be illegal and void and forever non-payable. ”

Section 2 of this act provides for the levy of an annual tax, and section 3 provides for the taking ef-~ feet of the act after its ratification by a constitutional majority of the voters of the State.

By an act approved March 24, 1911 (Laws 1911, p. 250), the act next above summarized was submitted to the voters of the State, the manner of holding the election being prescribed in detail. The election resulted in the ratification of the act.

The provision of the act constituting the State Capitol Commission Board and other acts relating to the new capítol are set ont sufficiently to exhibit the foundations of the argument of counsel in the case. Of these acts no part which bears any relation to the question presented is omitted.

Upon the face of the statute it is beyond question that the State Capitol Commission Board has no authority to purchase furniture for the new capítol.

The act providing for the creation of the board and defining its powers makes no provision of any kind for the purchase of furniture. In its opening sentence it declares generally that the board is created “for the purpose of building a new state capítol.” It specifies the contracts the board can make and none of these pertains to anything resembling the purchase of furniture. Pains are taken to provide for the severe punishment of any member of the board who is or shall become directly interested in certain specified contracts, all of which relate solely to the construction of the new capítol building. The oath prescribed deals solely with interest in' like contracts. No such provisions relating to contracts for furniture are found in the act. The board is forbidden to adopt a plan of construction until it “shall be definitely ascertained that the- . . . cost’-’ thereunder shall not in the aggregate exceed three million dollars and certain interest thereon; thus fixing definitely the sum the board may expend for the building, including heating and ventilating apparatus, lighting, vaults and all proper fixtures and conveniences, as well as the “most modern and approved sanitary arrangements and equipment.” It further provides that no contract or contracts shall be made or entered into by the board incurring in the aggregate an expense greater than three million dollars. These provisions fix the amount which the board may expend in the construction of the new capítol at three million dollars and the interest mentioned, and then forbid the board to enter into contracts of any kind for a greater aggregate amount than that fixed as the maximum cost of the building.

In addition, under the act, the term of office of the members of the board can continue only “until the completion” of the new capitol building, and this is confirmed by a later -provision that ‘ ‘ the term of the members of the board shall end with the construction of the building proper.” The board is charged, to file and preserve its vouchers, contracts, etc., “until after the completion” of the building, when these are to be delivered to the Auditor. The records to be kept by the secretary pertain solely to the construction of the building.

The act is entirely clear and free from ambiguity and simply provides a board to which is committed specified duties, all relating solely to the construction of a capitol building and having nothing whatever to do with the purchase of furniture. It clearly and positively limits the board’s power to expend the State’s money to a sum -of $500,000 less than the bond issue authorized by the people; and cognate acts above referred to disclose that this $500,000 is the sum set aside by the act submitted to the people as the maximum amount, out of the proceeds of the bonds, which is to be available for other purposes than the construction of the building, including furniture. This entire sum, out of which the provision for furniture is made, the board is directly excluded from using.

It is argued that the title of the act creating the board includes within it the title of the Act of March 16, 1911, and that this quoted title covers the furnishing as well as the construction of the new capitol. It may be conceded that in case the terms of an act are ambiguous, the title may be looked to for whatever light it can give. There is no ambiguity in the act of March 21, 1911, as already pointed out, and resort to the title is therefore not justified by the rule. Besides, the reference in the title to the title of the act of March 16, 1911, in no way can amplify the plain terms of the "body of the act creating the hoard and confer upon the hoard powers the nnambignons language of the act denies them. The title of the act is broad enough to include all the law the Legislature actually wrote under it and is in harmony therewith. If it be assumed that it is broad enough so that more constitutionally might have been written into the act, this could not possibly justify us in writing into the act what the Legislature lawfully might have put in but actually left out. Further, the title reference to the title of the prior act explains itself and warrants no such construction as counsel seeks to put upon it.

It is argued that the people voted for a complete building, including furniture and not for an unfurnished building, ‘ ‘ the use of which would be left to the uncertainty of future legislatures.”

The Act of March 24,1911, creating the State Capitol Commission Board, was passed long prior to the capitol bond election, and one result of that election was to give effect to that act. The particular act adopted at the election of 1911 made no provision for any board. That was necessarily left to the Legislature. Neither did the act adopted provide that a single board should have charge of the construction of the capitol and the purchase of. furniture. The people did not, by their vote, prohibit the creation of separate boards, but left the Legislature untrammeled in that respect. The intent of the people was to do exactly, what they did — leave the Legislature unrestricted with respect to the question whether the same board should both construct the capitol and purchase the furniture therefor.

Something is said concerning extrinsic facts supposed to bear upon the question of the advisability of permitting the board to purchase the furniture for the new building. No such facts are pleaded except the likelihood of delay in case the furniture cannot be purchased before the meeting of the next Legislature. This is the argument from convenience. It has place in construing ambiguous statutes, but has none here. If the failure to provide that the board shall purchase the furniture for the new capitol is unwise, the responsibility lies with the Legislature. We have no power to reconstruct statutes merely to conform them to our idea of the wiser course in the premises. The peremptory writ is denied.

All concur; Bond, J., in separate opinion.

CONCURRING OPINION.

BOND, J.

The act being unambiguous is self-interpretative, and constituted, in my judgment, no ground for this proceeding, of which, from the record, I am unable to take any other view than that it is a “moot” case of which this court should not have taken any cognizance and which should not have been presented to it.

I concur in the result of the learned majority opinion.


source: Caselaw Access Project

author: FARIS, J. GRAVES; .T.

license: Public Domain

text:
    HERMAN SAVINGS BANK v. ANNA KROPP, Appellant.
    In Banc,
    December 8, 1915.
    1. APPEAL: Failure to File Abstract: Penalty. Where appellant has in due time filed with the clerk of the Supreme Court a short-form transcript of the judgment and order of appeal, but has failed to file or serve respondent with a printed abstract of the entire record within the time prescribed.by the rules of the court, the order of the court will be a dismissal of the appeal, and not an affirmance of the judgment; and that must be the holding despite the fact that respondent urges that complications may arise as to the liability of sureties on the supersedeas bond, if the appeal is dismissed. [Refusing to follow or discuss Mattenleé v. Mattenlee, 74 S. W. 889, because it does not appear to have been officially reported or authoritatively promulgated.]
    2. -: -; Affirmance: Statutory Requirement. The affirmance of the judgment appealed from provided by section 2047, Revised Statutes 1909, was not intended necessarily to follow a failure to file a proper abstract within the time prescribed by the rules of the court. The right to affirmance, as prescribed by that statute, seems to have been made to depend upon a failure of appellant to file a complete transcript or a certificate of the judgment and order of appeal in the appellate court, etc., within the time prescribed by section ■ 2048.
    3. -: -: -: Rule of Court. The rules of the Supreme Court made under the direct authority of a statute, have practically the binding force and effect of a statute. And while the court has power to change its rules, the change ought to be in substance, and the rule should not be nullified by a collateral attack.
    4. -: -: Penalty Fixed by Rule of Court. There being no specific penalties attached by section 2048, Revised Statutes 1909, to a failure of appellant, who has in due time filed a short-form transcript, to file a printed abstract in time, the court is empowered to fix the penalties by rule of court; and Rule 16 fixes the penalty at dismissal of the appeal, or at a continuance to the next term, and not at affirmance of the judgment.
    5. -: Completion: Penalty. While the appeal is not so far completed as to allow appellate review by the filing of a short-form transcript, it is completed within the purview of section 2047, Revised Statutes 1909, so far as concerns the penalty of affirmance therein provided; and having been that far completed, Rule 16 steps in and says the penalty for failure to file a printed abstract shall be a dismissal or a continuance.
    Appeal from Franklin Circuit Court. — Eon. R. A. Breuer, Judge.
    APPEAL DISMISSED.

      Hazel & Lay for appellant.

      August Meyer and John W. Booth for respondent.
   FARIS, J.

"Separate actions in ejectment and for the balance dne upon a note were by consent of parties consolidated and tried in the county of Franklin on change of venue from Gasconade county. From a judgment in the consolidated cause defendant, being cast on both issues, appealed and gave two supersedeas bonds in the aggregate sum of $5000. The case was set for hearing upon our docket at this term for April 26. Appellant duly filed a “short-form” transcript of the judgment and order granting an appeal, but failed and neglected to file thirty days before the case was set for hearing and still fails to file any abstract of the record as required by section 2048, Revised Statutes 1909, and by our rules. [Rule 11 of Rules of Supreme Court.] Thereupon respondent moved to affirm the case for failure in this behalf.

Being desirous, as we are advised, to avoid any possible complications which might result in releasing the sureties upon the supersedeas bonds aforesaid (Cf. Hill v. Keller, 157 Mo. App. 7101), respondent now strenuously insists upon an affirmance of the case and not a dismissal of the appeal, and has . filed herein its formal motion to this end. Since there seems to be no formal decision settling in terms this much mooted question, we deem it wise .to investigate it. That the practice is to dismiss the appeal in such a case (McLaughlin v. Fischer, 188 Mo. 546; Crothers v. LaForce, 241 Mo. 365; Manuel v. Railroad, 186 Mo. 499; Whitehead v. Railroad, 176 Mo. 475; Clements v. Turner, 162 Mo. 466; Sanders v. Chartrand, 158 Mo. l. c. 364; Lawson v. Mills, 150 Mo. 428; Foster v. Vernon County, 150 Mo. 316; Hal-stead v. Stone, 147 Mo. 649; Murrell v. McGuigan, 148 Mo. 334; Walser v. Wear, 128 Mo. 652; Brand v. Cannon, 118 Mo. 595; Cunningham v. Railroad, 110 Mo. 208; Thompson v. Allen, 107 Mo. 479; Snyder v. Free, 102 Mo. 325; Garrett v. Mining Co., 111 Mo. 279; Mississippi Valley Fuel Co. v. Bean, 152 Mo. App. 703), there can be no manner of doubt, also, that the practice is’ to do this of our own motion; but the vexing question now here before ns is: Have we authority in law, if we desired to do so, to affirm a ease on account of the failure of appellant to file an abstract of the record?

The resolving of this question necessitates an examination of the statutes, as also of our rules, permission to make which is given by statute. [Sec. 2049, R. S. 1909.] The applicable part of section 2047, Revised Statutes 1909, is as follows:

“The appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section, and if he fails so to' do, and the respondent shall produce in court the certificate. of the clerk of the court in which such appeal was granted, stating therein the title of the cause, the date and amount of the judgment appealed from, • against whom the same was rendered, the name of the party in whose favor the appeal was granted and the time when the appeal was granted, such certificate shall be prima-facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the appellate court to affirm the judgment so appealed from, and the court shall affirm the judgment, unless good cause to the contrary be shown; and the failure of the clerk to notify the appellant, or his attorney of record, of the completion of the transcript in time to enable him to have the same filed in the appellate. court in the time required by law, shall be considered and is hereby declared to be good cause for refusing to affirm the judgment of the lower court on such motion.”

The applicable part of section 2048, Revised Statutes 1909, which we must consider in connection with section 2047, supra, reads thus:

“The appellant or plaintiff in error shall"cause to be filed in the office of the proper appellate court, in cases of appeals fifteen days before the first day of the term of such court, and in cases of writs of error on or before the first day thereof, a perfect transcript of the record and proceedings in the cause, or in lieu of such transcript, a certified copy of the record entry of the judgment, order or decree appealed from in said cause, showing the term and day of the term, month and year upon which the same shall have been rendered, together with the order granting the appeal, and shall thereafter, within the time and manner as is now. or may hereafter be prescribed by the rules of such appellate court, file printed abstracts of the entire record of said cause in the office of the clerk óf such appellate court, and within such time, deliver a copy of said printed abstract to the respondent or defendant in error.”

Counsel for respondent insists that the statutory words “the appellant shall perfect his appeal in the manner-and within the time prescribed in the next succeeding section,” require a timely filing of either a perfect transcript, or the filing of both a short-form, transcript and an abstract of the record; and that if both such transcript and such abstract are not filed, respondent (even though appellant has already filed a sufficient short-form, or complete transcript showing the identical facts) may file a certificate of the clerk of the court nisi “stating therein the title of the case, the date and amount of the judgment appealed from,” etc., and thereby become legally entitled to insist as a matter of right upon the affirmance of the case as permitted .by said section 2047. We do not think so; we are of the view that a logical construction of these two sections, of our rules and of the adjudged cases are all against this contention.

The view urged on us loses sight of the facts (1) that respondent does a vain, expensive and useless thing in filing a certificate of the clerk showing the judgment and order allowing an appeal, since all of these facts are plainly shown by the short-form transcript already filed hy appellant; likewise of the fact (2) that hy a further provision of this section an affirmance may he avoided by the appellant, among other ways hy making the showing that the clerk of the trial court failed to notify the appellant or his attorney of the completion of the transcript, as also of the fact (3) that within the purview of section 2047 the appeal is completed when and as soon as either a short-form transcript, or a complete transcript, is filed within the time in section 2048 limited. Other matters in said section 2048, while in a logical sense pertaining to the perfecting of the appeal, are yet, in a broader sense, mere statutory details making for expedition and convenience in appellate review. So when section 2047 says that the appeal shall he perfected “in the manner and within the time prescribed” in section 2048, it has reference (in so far as the right to affirm upon motion for failure, is concerned) to the filing “in the office of the proper ap; pellate court, in cases of appeals fifteen days before the first day of the term of such court ... a perfect transcript of the record and proceedings in the cause, or in lieu of such transcript a certified copy of the record entry of the judgment, order or decree appealed from in said cause, showing the term and day of the term, month and year upon which the same shall have been rendered, together with the order granting the appeal.” It does not mean that the appeal is not perfected within the purview and purpose of section 2047 till the abstract is filed, for if the appellate court were behind in its docket, the anomalous conditions would he presented of not perfecting an appeal for two or three years after the clerk of the trial court had done all he could do, and allowing appellate courts, if they saw fit, to fix hy rule the time of perfecting an appeal at a period subsequent to the argument and submission of the case. By the terms of section 2047 an affirmance may alioays be saved by showing default of the clerk of the trial court. Could a dismissal of this appeal be now prevented by any showing of the trial clerk’s default? Or could an affirmance thereof — granting arguendo, our power to affirm — be prevented now by a showing, however clear, of such clerk’s default? The answer is obvious and in our view shows conclusively that the affirmance provided for by section 2047 was not intended necessarily to follow a failure to file a proper printed ab-tract of the record. By section 2049 we are given power to make rules to carry into effect the provisions of sections 2047 and 2048. We have made these rules. [Rules 11, 12, 13 and 16 of the Supreme Court.] Said Rule 16 reads as follows:

“If any appellant in any civil case shall fail to comply with the rules numbered 11, 12, 13 and 15, the court, when the cause is called for hearing, will dismiss the appeal or writ of error; or at the option of the respondent continue the cause at the cost of the party in default. ”

Till we change the penalty of Rule 16 (since it was made in aid of, and under the direct authority of a solemn statute), it has practically.the binding force and effect of a statute. ' If we are to change it, we ought to change its substance and not nullify - it by an indirect collateral attack. There are not in section 2048 any specific penalties attached to a failure •to file an abstract in time. We are empowered to fix the penalties by rule of court and we have fixed them at dismissal of the appeal, or at a continuance till the next term, As suggested above, if we saw fit we might, under the broad power 'to “prescribe the time and manner” within which an abstract of the record should be filed, require it to be filed ten days after the case was set for hearing, instead of thirty days before such setting. So,' while the appellant is given an option to file either a complete transcript of the record, or a short-form transcript and a printed abstract of the entire record, it is fairly obvious that while the appeal in the last contingency is not in fact so far completed as to allow appellate review, it is completed within the purview of section 2047 so far as concerns the penalty of affirmance therein provided.

It is urged upon us that this identical point was ruled in favor of the right to affirm for the identical reason here urged, by the Kansas City Court of Appeals in the case of Mattenlee v. Mattenlee, 74 S. W. 889. Our examination of that case as it appears reported above shows us that it sustains the position of counsel, but we have been wholly unable to find the Mattenlee case officially reported. Whether its publication in the Southwestern Reporter was due to an error, and was unauthorized, or whether the opinion was later withdrawn, we do not know. We do find that it is not so promulgated as to -be persuasive with us as an authoritative exposition of the law.

We conclude then upon principle and after a most careful examination of the two sections in controversy and of our Rule 16, that while we may have power to make a different rule and to prescribe a different penalty (e. g., even an affirmance of the case), we have not done so; but on the contrary have seen fit to make a dismissal of the appeal, or a continuance of the case at the respondent’s option, the only penalties and we ought not to change the penalty, at least till we have formally changed our rule.

This view was taken in the only case we have been able to find wherein this matter of the meaning in this behalf of sections 2047 and 2048 was considered. This is the ease of Sanders v. Chartrand, 158 Mo. l. c. 364, where it was most appositely said:

“This case is here upon, a complete transcript. Therefore the penalty of an affirmance, provided by section 812, Revised Statutes 1899, does not apply.,' It is only in cases where the complete transcript, or in lieu thereof a certificate of judgment,, is not filed in this court in proper time, that the judgment may be affirmed. A failure to file a proper abstract is punished by the penalties provided by section 813, Revised Statutes 1899, and by the rules referred to, by dismissing the appeal or continuing the ease at the option of the respondent.”

In this distinction touching the legislative intent as regards these two.sections, there is much of logical method; for if an appeal be not completed we could only affirm the judgment below. If per contra, the appeal be completed and the case with jurisdiction over it be lodged here, we can dismiss it, and we have dismissed hundreds of cases of our own motion. If the right to affirm then is to be based upon the view that a “short-form” appeal is not completed within the purview of section 2047 till an abstract be filed, then logically we have been wrong in our Rule 16 and wrong in all these hundreds of cases “dismissed for failure,” for we have dismissed' appeals and therefore cases which were never here and-of which we never had jurisdiction.

As we have seen the almost universal practice has been to dismiss the appeal where a failure to file a printed abstract has occurred. There has been found but one case (Clark v. Fairley, 100 Mo. 236) of affirmance where no abstract whatever was filed, and this case is affirmed without any consideration of the reasons for, or the propriety of, the practice. There are a few cases wherein an affirmance has been adjudged where the abstract which was duly filed has been held insufficient. [Long v. Long, 96 Mo. 180; Jayne v. Wine, 98 Mo. 404; Craig v. Scudder, 98 Mo. 664.] But the weight of authority shows the practice to be to dismiss the appeal; and finding this practice to be in accord with the principle, with the statutes as interpreted in Sanders v. Chartrand, supra, and with our rule, we dismiss this appeal of our own motion. It follows that the motion to affirm should be overruled, and it is so ordered.

All of this division concur.

PER CUR’IAM. — This cause coming into Bano from Division Two, because of the pending there of the same question here involved, was reheard in Banc and the foregoing divisional opinion of' Faris, J., was adopted.

Woodson, G. J., Bond and Walker, JJ., concur; Graves, J., concurs in a separate opinion; Blair and Rev elle, JJ., dissent.

GRAVES; .T.

(concurring). — I concur in the views expressed in this opinion. In the case of J. A. Pullar v. St. Louis and San Francisco Railroad Company (now pending in this court) I had joined in an opinion expressing different views, whilst the Pullar case was in Division. The Pullar case rather appealed to the equities of the matter. It was urged that a failure to affirm the judgment might preclude action on the appeal bond, and the defendant was a bankrupt. But there is no substance in this contention. It is true the Springfield Court of Appeals has written a case with contrary views on the right to sue upon the bond, but that case and the error of that opinion, are fully discussed by Ellison, P. J., of the Kansas City Court of Appeals in Arkansas Valley Trust Co. v. Corbin, 179 S. W. 484. Judge Ellison likewise ably discusses the very question we have involved in both this and the Pullar case, i. e., our right to affirm the judgment. He reaches the same conclusion as is reached by our learned brother Faris, and I am constrained to believe that they have reached the proper conclusion. I therefore concur in this opinion.


author: BOND, J.

text:
    MIKE BINE et al. v. JACKSON COUNTY et al., Appellants.
    In Banc,
    December 8, 1915.
    1. LOCAL OPTION ELECTION: Number of Petitioners: Comparison With Poll Books. The petition for a local option election signed by one-tenth of the qualified voters of that part of the county which embraces no city having1 2500 inhabitants or more, vests the County Court with jurisdiction to call the election; and if so signed, the court is not without jurisdiction to call the election, on the sole ground that it is not signed by one-tenth of the qualified voters as shown by the poll books of the last general election. The proviso of the statute (Sec. 7238, R. S. 1909) declaring that “the County Court shall determine the sufficiency of the petition presented by the poll books of the last previous general election” simply means that the court shall take the presumptive evidence of the poll books that the names truly set forth the qualified voters who reside in the locality entitled to hold the election. If the petition is in fact signed by one-tenth of the qualified voters of such locality, that is enough. The law confers the right of petition upon the resident qualified voters, not upon the names on the polling lists; and if one-tenth of the resident qualified voters signed the petition, an election ordered by the County Court will not be held invalid, although an order therefor did not recite a comparison of the names of the petitioners with those on the poll books.
    2. -: -: -: Failure of Court. The right given by the statute' to one-tenth of the qualified voters of a local option district to petition for a local option election therein cannot be taken away by the failure or omission of the County Court to look to the poll books as evidence that the petitioners possessed the statutory qualification and residence.
    3. CONSTRUCTION OF STATUTE: Harmonizing Terms. A construction which defeats the chief object of a statute will never be forced by giving its terms a meaning beyond what is expressly stated. The end had in view, and the paramount intention of the lawmaker, afford a strong reason for harmonizing a statute.

      4. LOCAL OPTION ELECTION: Number of Petitioners: How Determined. The poll books are not the only method of determining whether a petition for a local option election has been signed by one-tenth of the qualified resident voters of the locality, nor does the statute say that they shall be the only test. They are not an infallible enumeration. The proviso only means that, nothing else appearing, the County Court must ascertain 'from the poll books whether or not the petition is signed by one-tenth of the qualified resident voters; but it does not confine their examination to those books.
    5. -: -: -: Explicit Finding. An explicit finding by the County Court that the petition for the local option election outside of cities is signed by one-tenth of the qualified voters resident therein, is a substantial compliance with the statute, and (however that fact was ascertained) vested the court with ample authority to order an election and give due notice thereof.
    6. -: Irregularities. The courts will not set aside a local option election on account of mere irregularities not essential to its valid holding.
    Appeal from Jackson Circuit Court. — Eon. FrcmTc G. Johnson, Judge.
    Reversed.

      A. L. Cooper, Boss J. Beam and Guthrie, Gamble & Street for appellants.
    (1) The county court is a court of record, and, in so far as it acts judicially, its judgments import the same verity, and are as conclusive against collateral attack, as those of any other court. Jeffries v. Wright, 51 Mo. 221; Johnson v. Beazley, 65 Mo. 256; Sims v. Gray, 66 Mo. 616; Fulkerson v. Davenport, 70 Mo. 541; Scott v. Crews, 72 Mo. 261; State v. Evans, 83 Mo. 322; State ex rel. v. Wooten, 139 Mo. App. 228; State v. Gamma, 149 Mo. App. 704; State ex rel. v. Thornhill, 174 Mo. App. 469. (2) The rule of conclusiveness applies to a preliminary finding as to the existence of facts supporting the jurisdiction. Lingo v. Burford, 112 Mo. 149; State v. McCord, 227 Mo. 526. (3) The mere exercise of jurisdiction conclusively imports a finding of the facts necessary to support the jurisdiction, unless the lack of jurisdiction affirmatively appears upon the face of the record. Snoddy v. Pettis County, 45 Mo. 363; State ex rel. v. Young, 84 Mo. 94; State v. Searcy, 39 Mo. App. 400; State v. Dugan, 110 Mo. 145; State v. Hitchcock, 124 Mo. App. 104. (4) The order of the county court calling the election did not affirmatively show want of jurisdiction for lack of a proper petition. Sec. 7238, R. S. 1909; State v. Searcy, 39 Mo. App. 400; 'State v. Searcy, 111 Mo. 236; State v. Dugan, 110 Mo. 145; State v. Foreman, 121 Mo. App. 502. (5) It was not necessary for the county court to test the qualification of the petitioners by the last preceding poll books. State v. Carter, 165 S. W. 783; State v. Foreman, 121 Mo. App. 507. (6) The notice of contest was fatally defective for want of any averment that the contestants were polled at the last previous g’eneral election. State ex rel. v. Smith, 104 Mo. 667; Bowers v. Smith, 111 Mo. 46; Ha]e v. Stimson, 198 Mo. 146; Gillespie v. Dion, 18 Mont. 183, 33 L. R. A. 703; 15 Cyc. 401. (7) An election contest does not involve inquiry into the question as to whether a valid election was ever held; but, in contesting the results of the election, the right to hold the election is conceded, and the contest pertains only to the regularity of the proceedings at the election as affecting the rights of the contestant. Sec. 7242, R. S. 1909; Nance v. Kearbey, 251 Mo. 388; Norman v. Thompson, 72 S. W. 64; Lowry v. Briggs, 73 S. W. 1062; State ex rel. v. Tucker, 54 Ala. 210; Commissioners v. Johnson, 145 Ala. 556.

      I. B. Kimbrell and L. II. Waters for respondents.
    (1) The averment in the contestants’ notice, that “they are qualified voters of Jackson county, Missouri, and reside outside the corporate limits of Kansas City and Independence,” is a literal compliance with the statute. R. S. 1909, sec. 7244. (2) A contest under Sec. 7242, R. S. 1909, is a direct and not a collateral attack on a local option election. State v. Searcy, 39 Mo. App. 401; Riggins v. 0>’Brien, 34 Mo. App. 613. In an election contest the court may look behind the record and decide according to the facts upon any essential question. State .ex rel. y. Ross, 161 Mo. App-. 682; State ex rel. v. Ross, 245 Mo. 45; State ex rel. v. Slover, 134 Mo. 15. The remedy by contest accomplishes through one plain, practical, summary proceeding all that is necessary to do full and complete justice. State ex rel. v. Smith, 104 Mo. 669. Where by statute a new right is given and a new remedy provided, the right can be vindicated in no other way than that provided by statute. State ex rel. v. Slover, 134 Mo. 14; State ex rel. v. Ross, 245 Mo. 44. The general rule is that remedies expressly provided by statute to enforce rights created by statute are preclusive. Nance v. Kearbey, 251 Mo. 387; State ex rel. v. Spencer, 164 Mo. 34. If a contest of a local option election under 7242 is a direct attack, appellants’ authorities cited in paragraphs 1, 2 and 3 of their brief have no application whatever. (3) The county court on the face of its record and under the evidence was without jurisdiction, (a) The county court shall determine the sufficiency of the petition presented, by the poll books of the last previous general election. R. S. 1909, sec. 7238. Section 7238 provides for the qualifications of petitioners upon a petition for the holding of a local option election, and for an official place to obtain the number required, or a basis of computation of -such number. State v. Carter, 257 Mo. 85<. The law: further provides that the county court shall ascertain who are qualified voters by the poll books of the last previous general election. State v. Foreman, 121 Mo. App. 507; State ex rel. v. Bird, 108 Mo. App. 163; State ex rel. v. Baldwin, 109 Mo. App. 573. The court clearly did not “ascertain the qualification of the petitioners as provided by statute,” nor did the court obtain the number required from the poll books of the last previous general election which was the basis of computation of such number. The court found and decided that the petition was signed by one-tentb of the qualified voters then residing in the county. It is a case where ex-pressio unius est exclusio alterius applies. The finding did not authorize the order. Adv. Co. v. Castlemán, 165 Mo. App. 578; Bank v. Lumber Co., 102 Mo. App. 82. We do not regard that it was necessary for the record of the county court to show how it ascertained the qualifications of the petitioners so long as it does not show they pursued an unauthorized method. State v. Foreman, 121 Mo. App. 508. If the court in its finding had omitted the sentence “who now and at the time of the petition resided in the county outside the cities of Kansas City and Independence,” it would be assumed that the court did its duty and ascertained the qualifications of the petitioners as required. But this record is not silent, and the testimony we offered does not contradict the record, (b) The offered testimony, if it was competent and material, should be considered as a part of the evidence on this appeal. We offered to prove by the judges of the county court, who ordered the election in this case, that the sufficiency of the petition was not determined by the poll books of the last previous general election. Counsel for appellants conceded they'would testify pursuant to the.offer. The offer to prove a material fact by a competent witness must stand for the fact itself. State v. Steifel, 106 Mo. 134; 1 Thompson, Trials, sec. 685; Neff v. Neff, 20 Mo. App. 186; County v. Hile, 112 U. S. 186; Eschback v. Hurtt, 47 Md. 61; Robinson v. State, 1 Lea (Tenn.), 673; State v. Kelier, 263 Mo. 552. (c) The record shows that the petition was referred to the county counselor, an attorney for appellant, who prepared the court’s order, and reported that he had not determined the sufficiency of the petition by the poll books. We offered to prove by Mr. Smith and three other gentlemen who assisted him, that they compared the petition with the poll books (under the court’s order), and found 387 petitioners whose names were not on the poll hooks of the last previous general election, and that there were 6407 votes cast as shown by the poll hooks at the last previous general election outside of Kansas City and Independence. (4) It was necessary for the court to test the qualifications of the petitioners by the poll hooks of the last previous general election. ’ State v. Carter, 257 Mo. 85; State v. Foreman, 121 Mo. App. 507; R. 'S'. 1909, sec. 7238.

      Roselle, Vineyard <& Thacher, Frank A. Boys and James K. Houghton, amici curiae.

   OPINION.

BOND, J.

This is a contest of a local option election held on the 22nd of August, 1914, in that portion of Jackson county outside of Kansas City and the city of Independence. A canvass of the votes showed that a majority of five hundred and thirty-six were cast against the sale of spirituous and intoxicating liquors. Thereupon Mike Bine filed a notice of contest of said election on the following grounds.

“That said petition was not signed by one-tenth of the qualified voters of said county outside of the corporate limits of said cities who voted at the last previous general election and whose names appear on the poll books of said election, and the county court did not so find in its order.
“That said petition was otherwise defective and insufficient to confer jurisdiction on said county court to make said order.
‘ ‘ That the order of the county court for said election shows on its face that said court did not determine the sufficiency of said petition by the poll hooks of the last previous general election as the court was required to do by section 7238, Revised Statutes 1909.
‘ ‘ The order of the court under and in pursuance of which said election was held expressly states that the court found and adjudged that said petition was signed by one-tenth of the qualified voters of Jackson county, Missouri, who now (July 23, 1914) and at the time of the filing the petition (July 14,1914) reside outside of the corporate limits of the cities of Kansas City and Independence, and who are qualified to vote for members of the Legislature in said county, and that said order is therefore a nullity.
“Contestants, for grounds and causes aforesaid, ask that the court declare and adjudge that the petition filed in the county court as aforesaid was defective and insufficient to confer on the county court jurisdiction to make any order in the premises', and that the said order of the county court was not authorized by law and was and is a nullity, and that said election be declared to have been held without proper authority and be set aside and for naught held.”

Jackson County filed an answer, wherein after admitting the holding of the election and the majority vote and denying other allegations in the notice of contest, it averred that the petition presented to the county court on which it based its order for the election was signed by one-tenth of the qualified voters residing in said county outside the cities of Kansas City and Independence and whose names appear on the poll books of the last previous general election.

The trial judge announced that the petitioners must not only have been qualified voters but must also have been included in the poll list of the voters at the last previous general election, and that in his view the county court’s order for the election showed that the county court had not determined the character and number of the petitioners for the holding of the election by a comparison with the poll books of the last previous general election.

After permitting the parties to make offers of testimony on the issue joined, and after considering the petition filed with the county court for the calling the election and the finding and judgment of the county court (which orders so far as necessary will hereafter be set out), the trial court rendered a judgment in favor of the contestants and against Jackson County, reciting therein as grounds of this finding that the county court failed to determine the sufficiency of the petition for the election as required by the statutes of the State of Missouri, and hence, was without jurisdiction to order the election, and that the election so held was a nullity. From this judgment the contestee, Jackson County, Missouri, perfected an appeal to this court.

I.

The judgment of the trial court can only be upheld, if at all, by a concurrence on our part with his construction of the findings of the county court on the petition for an election upon which it based its order calling the election; and, the section of the statute governing the calling of local option elections. The pertinent parts of the section of the statute are, to-wit:

“Section 7238. Upon application by petition, signed by one-tenth of the qualified voters of any county who shall reside outside of the corporate limits of any city or town having, at the time of such petition, a population of twenty-five hundred inhabitants or more, who are qualified to vote for members of the Legislature, in any county in this State, the county court of such county shall order an election to be held in such county at the usual voting precincts for holding any general election for State officers ... to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of such county lying outside of such corporate limits of such city or town. . . . Provided, further, that the county court shall determine the sufficiency of the petition presented by the poll books of the last previous general election.”

The finding of the court upon the petition is, to-wit:

“The court doth find and adjudge that said petition is signed by one-tenth of the qualified voters of Jackson County, Missouri, who now and at the time of such petition reside outside the corporate limits of the cities of Kansas City and Independence in said county and who are qualified to vote for the members of the Legislature in said county.”

The crux of this case is whether the record shows the county court was without jurisdiction to - order the election. It is not denied that the petition was in proper form and that the number of the petitioners was greater than ten per cent of the number of voters as shown in the poll books of the last general election. But it is contended by respondent that the jurisdiction of the county court to order a local option election is dependent on a previous finding and adjudication by it that the names contained in a petition for such election must be one-tenth of the qualified voters as they are set forth in the poll books of the last previous general election, and that the court would have no jurisdiction to order such election upon a petition signed by one-tenth of the qualified voters of the part of the county entitled to vote at such election.

It is further claimed that the foregoing finding of the county denuded it of any jurisdiction and that the election thereafter held was void.

We are unable to accept either the premises or the conclusion of the respondent. The above quoted statute makes but one condition as to the sufficiency of the petition, which is that it shall be signed by one-tenth in number of the qualified voters who are qualified to vote for members of the Legislature. No question can exist under these terms of the statute, that a petition thus signed and presented to the county court is all that can be done by the petitioners in their assertion of their statutory right and invested the county court with jurisdiction to make a finding and order an election in the manner prescribed in section 7238 of the Revision of 1909. Being thus clothed with power to adjudge the sufficiency of the petition and order an election, the statute further points out to the county court a ready means of determining the sufficiency of the petition by recourse to the poll books of the last general election. All that the language of the provision of the statute to that effect means (in view of the fundamental requisite that the signers of the petition shall be qualified voters who shall reside in the county) is that the county court shall take the presumptive evidence of the poll books that the names truly set forth the qualified voters who reside in the locality entitled to hold the election. It would be repugnant to the primary prerequisite of qualification and residence which is made .the basis of the right to petition for the election, to hold that the right thus given and to secure which the law was enacted, could be taken away from the citizens who had in all respects complied with the statute by the omission of the county court to look to the poll books as evidence that the petitioners possessed the statutory qualification and residence.

The law confers certain rights in respect to the holding of such elections upon the qualified voters and residents, not upon the mere names contained in the polling list. If the latter proposition was true then a petition which was a replica of one-tenth of such names would be sufficient although the actual facts were shown to be that the names on the petition were not one-tenth of the qualified voters then residing in the county. The poll books may often exceed the qualified voters owing to death and removals. In that event such an election could not be called without obtaining a greater number of signers to the petition than one-tenth of the actual voters. This, however, would be absurd under the statutory hypothesis that one-tenth’ of the resident qualified voters have the absolute right to petition for the calling of such an election and that upon a finding of that number of signers the court must order the election. It is clear, therefore that the purpose of the statute was simply to point out, as an aid to the finding of the court, an accessible and presumptively correct list of voters which it could use without further inquiry as evidence of the number of qualified voters then living in the county.

This interpretation harmonizes the section as an entirety and avoids a construction which would defeat its specific object, and is in accordance with the time-tested rule that the end had in view and the paramount intention of the lawmaker, affords a strong reason for harmonizing the language of the statute. Or put differently, a construction which defeats the chief object of the law will never be forced upon it by giving its terms a meaning beyond what is expressly stated. No such necessity arises in this case, for although the proviso requires that the county court “shall determine the sufficiency of the petition by the poll books,” yet it does not in totidem verbis say that this shall be the only method of ascertaining who are the qualified voters. We know judicially, and the Legislature knew, that the poll books are not, and cannot in the nature of things be, an infallible enumeration of the qualified voters in any county where registration previous to voting is not prescribed by law. What the provision intended was that nothing else appearing the county court must find by poll books whether or not the petition was sufficient to show that it was signed by one-tenth of the qualified voters residing’ in the county. For it was to them the statute gave the right by proper application to compel the calling of an election. To simplify the investigation which the county court is directed to make and to further the object of the petitioners to put the issues of local option before the people, the statute inserted the proviso that the county court should consider the prima-facie evidence of the poll hooks as to the qualifications and number of the petitioners, but it nowhere in words or by necessary implication confined the view of the county court to the poll books alone.

Our conclusion is that the explicit finding of the county court in the case at bar that the petitioners embraced one-tenth of the qualified voters residing in the county, was a substantial compliance with the statute and vested that court with ample authority to order an election and give due notice thereof, as the record shows was done. There is nothing to the contrary in the remark contained in State ex rel v. Carter, 257 Mo. l. c. 85. The learned writer of that opinion was construing another statute and remarked en passant that the statute then under review, unlike the present statute, contained no language referring to an official place or basis for computation of petitioners for an election, but he wholly refrained from intimating that the court under the present statute could look to nothing as evidence of the number and character of the petitioners except the poll books. On the contrary the whole trend of the correct reasoning in the case cited, is in harmony with what has been said heretofore in the discussion of the meaning of the present statute.

II.

It must be borne in mind in considering the present statute -that its main provisions have been the law since 1887; that its constitutionality has been established against continuous and many-sided attacks; that it is the embodiment of enlightened public policy, and permits the people to decide for themselves in what locality spirituous and intoxicating liquors shall be sold. The great object of the law was to make this issue one quickly determinable by the preponderance of local public sentiment; hence, the statute has provided for its prompt submission to tbe will of the> people as expressed in tbe ballot box.

In tbe instant case there is not the faintest suggestion that the result of that election does not reflect the unbiased choice of the voters in that part of Jackson county outside the cities of Kansas City and Independence. It is not denied that the opponents of the proposition secured every hostile ballot obtainable in the territory, nor that the election was free from any form of attack for fraud or unfairness, nor that it expresses the deliberate choice of the people.

If the genius of the English chart of liberty found concrete expression when twelve men were put in a jury box, then it is no less true that the highest ideal of the American Republic is realized when the thought of the people is expressed in an uncorrupted ballot which has been honestly counted and truthfully announced. The sanctity of the ballot box is the basic principle of the evolution of all free government; for all of its powers, faculties and activities, for good or evil, are directed and controlled by the votes of an enlightened citizenry. The whole philosophy of liberty of thought in life and society finds its raison d’etre in the sacred right of each citizen to express his mind and purpose by his voluntary ballot. When this is done not only is the highest duty of citizenship performed, but the dynamic which moves the entire machinery of government in a free State or community is instantly and resistlessly applied, and the “will of the people expressed in the ballot box, becomes the supreme law.” The choice of the people thus expressed should be subject to no attack which does not go to the integrity of the election.

It has been well said in a leading case in this State, “Courts justly consider the chief purpose of such laws, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal steps to reach that end; and, in order not to defeat the main design, are frequently led to ignore such innocent irregularities of election officers as are free of fraud and have not interfered with a full and fair expression of'the voter’s choice.” [Bowers v. Smith, 111 Mo. 45.]

None of the contentions of learned counsel for respondents go to the vital question of the fairness and the authoritative force of the election by the people of a part of Jackson county whereat it was decreed that spirituous and intoxicating liquors should no longer be sold in that locality. It is not the province of the court to set aside that result on account of mere irregularities not essential to the valid holding of the election. The contrary view was taken by the learned trial judge. This judgment was manifestly erroneous and should be, and is, revérsed.

All concur except Woodson, C. J., not sitting.