Opinion oar the court by
CHIEF JUSTICE GUFFYReversing.
The appellants were the acting trustees or members of the *482board of education of the city of Ludlow, a city of the fourth class. It appears that the appellees were elected by secret ballot at the November election, 1901, as irnstees or members of the board of education of the said city. The appellants instituted suit in the Kenton circuit court to enjoin the appellees from interfering with them in the discharge of their duties as trustees aforesaid. The appellees also' instituted an action against the appellants in the same court, claiming that they were the actual, duly elected and qualified trustees or members of the board, and seeking a mandatory injunction and other relief against these appellants. By agreement the cases were consolidated and heard together, and upon final hearing 1he circuit court adjudged that the appellees were entitled to the offices in question, and from that judgment this appeal is prosecuted.
Various arguments are urged in support.of the contention of the parties. It clearly appears that appellees were elected as members of said board by secret ballot, their names being, as we understand the record, placed on the regular ballots voted at the regular election for other offices. Tt is also in evidence that a very full vote was cast for trustees, and that the names of these appellants, or some of them, were also upon the ballots, and voted for at the same time; and the appellees received a majority of the votes casi, and the election commissioners’ gave them the certificate of election. It also appears that the city council, some time after the election, assumed to elect appellees io the said offices. Tt is argued for appellees that the appellants, having been voted for by secret ballot, and knowing that the election was being so held, and making no objection 'thereto at the time, are now estopped from questioning the validity thereof. It is also argued that the appellants were elected sometime before in the same manner, and accepted and entered upon *483the discharge of their duties thereunder, and for that reason can not now be heard to assert a right to continue in office. IVe do not think either of these contentions is tenable. It is certain that the appellants were dc facto officers in possession of the office and discharging the duties thereof, and were, as against persons having no legal right thereto, entitled to continue in office. Nor do we think that a party, by consenting or participating in a void election, deprives himself of his right to dispute the validity. A few men, or eveu the entire public, can not make valid an election held in direct violation of a mandatory statute. It seems to us that there are two vital questions involved. The first is whether or not members of the board of education in question can be elected by secret ballot. It seems to us that this question has been clearly decided in Moss v. Riley, 102 Ky. 1, 19 R., 993, 43 S. W., 421. The Constitution and statutes in relation to this question were fully considered by the court, and it was' clearly held that trustees or members of the board of education in cities of the fourth class must be elected by viva voce voting. We quote as follows from the syllabus of the case supra-. “Under the provisions of the charter for cities of the fourth class (section 3000, Kentucky Statutes'), such cities each constitute one common school district, and as the charter for such cities does not provide the manner in which the members of its board of education shall be elected, and the common-school law (section 4-134, Kentucky Statutes), provides that the vote in electing school trustees shall be taken viva vocc, and as the members- of the board of education perform the duties of trustees, they should be elected in the same way. The whole question as to the manner of electing school trustees was left by the Constitution to the General Assembly. The provision in the charter for cities of the fourth class that *484the members of the board of education shall be elected ‘by the qualified voters of the city/ means those of the city who are qualified to vote under the general school law, which confers the right of suffrage on widows, etc., in such elections.” It is said by appellees that this decision is not conclusive of the question, because in the case supra there was a controversy between persons claiming to be elected by viva voce vote and those claiming to be elected by ballot. Rot, in our opinion, that fact does not at all affect the decision as to the validity of an election by ballot. Nor is the opinion in City of Cynthiana v. Board of Education, 21 R., 731 (52 R. W., 969), in conflict with the case supra. In the case last cited the trustees or board of education'had been elected by ballot, and were engaged in the discharge of .their duties, and the appellant in that case had refused to pay over certain moneys to the board of education, and the court held that the question of the election of the board could not be successfully attacked in such a proceeding; or, in otlier words, upon the record as presented it was the duty of the appellant to pay over to the appellee the money in question. In some respects the decision would seem to support the contention of the appellant in the case at bar. It is true that some statutes regarding the management, conducting, or ascertaining the result of an election has been held to be mandatory, but, if the statute requires an election to be viva voce, such statute must, of necessity, be mandatory, and the holding of the same by secret ballot is In no sense a compliance with the statute. If the contention of appellees should prevail, and become the settled law of the Rtate, it would follow that the parties at any election precinct might determine to hold an election viva voce, or else hold it by ballot, and each man prepare his own ballot; and, if there was a full vote, and no objection, and *485no fraud perpetrated, the returns must be accepted and counted the same as if the election had been held according to law. Tt would also follow that in Louisville, for instance,' at some precincts the election for school trustees might be conducted by ballot, and at other precincts the vote might be counted vira, voce', and the same may be said as to the different school districts throughout the State. Some might hold their elections by ballot and some viva voce. Manifestly, no such construction of the election law; can be toler ■ ated. In our opinion, the election of school trustees or members of the board of education held by secret ballot is absolutely void. It therefore follows that the appellees acquired no right by virtue of the election held in November, 1901. • -
The next question for decision is as to the effect of the action of the common council of Ludlow. As before stated, it is the contention of appellees that, if there was a failure to elect in November, the city council had the power to fill the vacancy; and we are referred to section 3606, Kentucky Statutes, in support of this contention. It will be seen from section 3588 that there maybe maintained in cities of the fourth class a system of public schools at which all the children residing in the city between the ages of 6 and 20 may be taught at the public expense. It is further provided that the school shall be under the control of a board to be styled the “board of education,” consisting of two trustees from each ward in the city, to be elected at the general November election, 1893, by the qualified voters of the city at large. Many other provisions are contained in the section, not necessary to mention. Section 3589 reads as follows: “Said board of education shall determine the qualification of its members. It shall have the power to fill, until the next general election, all vacancies in said board *486occasioned by death, removal or other cause.” It is provided in section 3606 that any city of the fourth class in which said system of public schools shall be established and maintained shall constitute one common school district. The lat.ter clause of said section reads as follows: “Whenever the board of council of any city of this class shall determine by ordinance to establish and maintain a system of public schools therein under the provisions of the act mentioned in the title of this act, or in case there was a failure at the last election provided for in said act to elect a board of educa-' tion in any city of the fourth class, the board of council shall have the power and authority to appoint trustees f.or such school, to serve until the election and qualification of trustees as provided in section three thousand five hundred and eighty-eight of said act, as amended herein.” Taking the entire act together, it seems clear that the provision, supra, was only intended to apply to a vacancy accruing by reason of a failure to elect trustees at the November election of 1893, and that it has no application whatever to the controversy in this case. Section 1520, Kentucky Statutes, defines the term “'vacancy in office,” and among the definitions given is, “Or when there has been no election to fill the office at the time appointed by law.” If the board of education in office prior to November, 1901, was not authorized to continue in office until the election and qualification of a successor, — which is not now decided, — it follows that they would, in a case of vacancy, be authorized to fill the same, and, there being no legal election in 1901, the vacancy would exist. In either event, the claim of appellees must fail.
For the reasons1 indicated, the judgment appealed from is reversed, and cause remanded, with directions to perpetually epjoin- and restrain the appellees from in any manner in*487terfering with appellants in the discharge of the duties of the board of education, and also enjoin the appellees from in any manner attempting to exercise the powers, duties, or privileges pertaining to the board of education of the city of Ludlow, and for proceedings consistent with this opinion.
Judges RuReile, White, and Hobson, dissenting.