This appeal was first heard in division 1, and a conclusion announced, November 9, 1891, as reported in 17 S. W. Rep. 761.
After a motion for- rehearing was denied, plaintiff moved to transfer the cause to the court in banc. The motion was ultimately sustained, upon the entry of a dissent by one of the judges to the decision of the first division.
The case was then fully reargued before the whole court.
It is a statutory contest to determine the respective rights of the parties to the office of sheriff of Pettis county.
The election in question took place November 4, 1890. Mr. Bowers is the contestant. For convenience, he will be called the plaintiff, and his opponent, Mr. Smith, who is the contestee, the defendant.
*51Plaintiff’s notice of contest assigned several distinct grounds, in as many paragraphs, in the nature of counts, or causes of action. After it was served, defendant gave plaintiff a counter-notice, which (besides denying the plaintiff’s charges) alleged a number of objections to the original count of the ballots, and claimed that corrections, to defendant’s advantage, should be made therein in a number of particulars.
The circuit court of Pettis county sustained motions to strike out some parts of plaintiff’s notice. Exceptions were saved to that ruling.
The case then came to trial. As will appear, the real issues were finally resolved into questions of law, and upon them the trial court found for the defendant.
Plaintiff then appealed, after the usual motions.
After the formal contest began, plaintiff applied for, and obtained a recount, by the county clerk, of the original ballots east at all the precincts in the county. The recount was conducted as provided by the statute on that subject. Revised Statutes, 1889, secs. 4721-4726. It resulted in an exhibit that defendant had a plurality over the plaintiff of thirty-three votes in the county, and that no less than three thousand voters had cast their ballots in the city of Sedalia at that election.
Both parties rely on the recent statute concerning elections (Revised Statutes, 1889, secs. 4756-4794), commonly known as the “Australian Ballot Law,” as first enacted in this state. It is thus conceded to apply to Sedalia as a city of over five thousand population. The points of difference to be determined relate to features of the election in that city, held under that law.
We need not pause to state the particulars of the rulings in the trial court, raising the material questions *52involved, but shall proceed at once to the merits of the dispute.
Plaintiff’s contention is that the entire returns from Sedalia should be thrown out of the final count, for several reasons.
I. He claims that the official ballots, printed by the county clerk for use at the voting places in that city, contained (among others) the names of the nominees of the Union-Labor party, and that that political party had not polled three per cent, of the entire vote at the last previous general election, as required by section 4760, Revised Statutes, 1889.
Conceding (without investigating) the fact on which that claim rests, does it follow that the vote of the precinct should be discarded!
In interpreting the statute in question, it must be remembered that its adoption here brings it into subordination to the fundamental law of Missouri, and that prior decisions, elsewhere, construing enactments on the same general topic, cannot properly be followed if inconsistent with that fundamental law.
By our constitution general elections are held at certain fixed dates, and the right of suffrage is expressly secured to every citizen possessing the requisite qualifications. The new ballot law cannot properly be construed to abridge the right of voters to name their public servants at such elections, or to limit the range of choice (for constitutional offices) to persons nominated in the modes prescribed by it. Nominations under it entitle the nominees to places upon the official ballots, printed at public expense; but the Missouri voter is still at liberty to write on his ballot other names than those which may be printed there.
The statute recognizes this right by requiring sufficient blank space for such writing, next to the *53printed names of candidates for each office. Eevised Statutes, 1889, sec. 4773.
In this respect our law differs from the English act of 1872, under which no actual poll of voters is held, unless more candidates are formally nominated than there are vacancies to be filled.
These observations seem necessary to guard against the supposed effect of adjudications in other states or countries, construing features of such laws differing from those in force in this state.
The living question which this case presents is what construction shall be given to the Missouri statute on this subject, and to what extent the constitutional rights of voters depend upon the correctness of action of the county clerk in preparing and printing the official ballots.
The act of the clerk which is called in question consisted of admitting names to the ballot, not of excluding any.
There is a substantial difference, in principle and in effect, between admitting and excluding such names.
The practical consequence of erroneously adding a name to the ticket is merely to enlarge the voter’s range of choice among candidates on the official list. In Missouri any voter may add such a name for himself in the blank provided on the ballot for that purpose.
How then are errors of this sort to be’ treated?
Plaintiff insists that they vitiate the whole return; that every such error of judgment is a sufficient ground to disfranchise the voters of the locality where such ballots are used.
The law in question presents a number of points at which errors may be expected of the most faithful and conscientious officers. It will often require nice judgment to determine (among other things) whether party candidates have been regularly nominated; how *54declinations should be treated; whether certificates of independent nominations have the necessary signatures; whether the signers are “resident electors;” whether nomination certificates are formally sufficient under the law; or whether acknowledgments thereof have been “executed with the formalities prescribed for the execution of an instrument affecting real estate.” Revised Statutes, 1889, secs. 4756-4763.
It is declared to be the duty of the county clerk to provide the ballots, and that all others than those printed by him according to the provisions of this law “shall not be cast or counted in any election.” The plain meaning and purpose of this expression can be seen from the context in the section in which it occurs and that which next follows. Revised Statutes, 1889, secs. 4772-3. The design is to preclude the voter and his party friends from supplying his own ballot (as was the former practice), and to compel him to use only that furnished by the state, through the county clerk. The latter is directed to print no other names on the voting papers than those of the candidates nominated according to the provisions of that law. The title of the original act (Session Acts, 1889, p. 105) and its opening lines show that uniformity in the printing and appearance of the ballots is one of the main objects aimed at. The prohibitions above noted are inserted to further that object; .but they give no countenance to the notion, advanced by the plaintiff, that their purpose or effect is to nullify the result of every election at which the county clerk may make some error in publishing or printing the names on the only ballots that can be used.
Legislative language should be clear and unequivocal to justify an inference that such consequences were intended to flow from it. Rutherforth on Institutes [2 Am. Ed.] p. 413.
*55The printing of the ballots “according to the provisions of this” law, and the antecedent making up of a ticket to be printed (by acting on the nominations submitted) are two distinct official duties. The county clerk prints all the ballots. But he does not act originally on all the nomination papers.
Some of the latter are submitted to the secretary of state and he certifies certain nominees to the county clerk. Revised Statutes, 1889, sec. 4767.
Errors in omitting or adding names to the list of candidates, by rulings on the nominating documents, are distinguished from errors made in the mere printing of ballots, by the terms of the law itself. Section 4778 provides a summary remedy to correct any “error or omission in the publication of the names or description of candidates nominated for office, or in the printing of the ballots.” So that the language of section 4772, forbidding other ballots than “those printed by the respective clerks of the county courts according to the provisions of this article” to be cast or counted, obviously carries no such meaning as to nullify ballots, printed by county clerks as directed by the law, and cast by voters in conformity thereto, but incorrectly made up beforehand by the secretary of state or the county clerk by erroneously admitting some candidate’s name to a place on the ballot.
The suffrage is regarded with jealous solicitude by a free people, and should be so viewed by those intrusted with the mighty power of guarding and vindicating their sovereign rights. Such a construction of a law as would permit the disfranchisement of large bodies of voters, because of an error of a single official, should never be adopted where the language in question is fairly susceptible of any other. Wells v. Stanforth (1885), 16 Q. B. Div. 245.
*56Or, as a very able judge once tersely said: “All statutes tending to limit the citizen in Ms exercise of this right [of suffrage] should be liberally construed in Ms favor.” Owens v. State ex rel. (1885), 64 Tex. 509.
It is proper, and often necessary, to consider the effect and consequences of a proposed interpretation of a law to ascertain what is probably its true intent. State v. Hope (1889), 100 Mo. 361; 8 L. R. A. 608. The consequences which would inevitably follow the acceptance of the reading proposed by the plaintiff are so far-reaching and disastrous that they constitute a vigorous argument against adopting it.
More than that, section 4778 clearly discloses a legislative design to provide for the correction of just such errors as we are considering, at the instance of any elector (including every one interested) before the election. The process is so summary that the inference is irresistible that the errors it is designed to reach should be rectified by prompt action then, so as not to subject voters to the risk of losing their votes by reason of those errors.
“Sec. 4778. "Whenever it shall appear by affidavit that an error or omission has occurred in the publication of the names or description of candidates nominated for office, or in the printing of the ballots, the circuit court of any county, or the judge thereof in vacation, or if the circuit judge is then absent from the county, a judge of the county court, may, upon application by any elector, by order, require the clerk of the county court to correct such error, or to show cause why such error should not be corrected.”
In connection with this section, it should be remembered that, “at least seven days before an election,” the county clerk is required to cause the list of nominations, “ arranged in the order and form in *57■which they will he printed upon the ballot,” to be published in the newspapers as provided in sections 4768-9. Thus every one in interest is apprised of the names of all candidates, as determined by the clerk, at least one week before election day, to the end that steps may be taken, if desired (as indicated by the language quoted), to supply any omissions or to correct other errors in that list as published. If full effect be given to that section, the injustice and unfairness which otherwise would result in the practical working of the statute will be avoided.
This “ballot reform law” was intended to improve the methods for giving expression to the popular will in the choice of public officers. It should be construed so as to promote, not destroy, the great objects in view in its passage. It resembles and, in the main, follows statutes elsewhere on the same subject; but is not identical with its models at all points. A glance at these models, however, will show how foreign to the reason and spirit of such legislation is the idea that the unwary voter is to be subjected, in the name of “reform,” to the risk of losing the right of suffrage every time an error in admitting a name to the official ballot is made by an officer passing upon the regularity of nominating' papers, when no objection to his ruling is made before the election. Section 4778 was evidently framed with the view to avert such risk. It coincides with part of section 19 of the New York law of 1890. It is not found in the English statute, but there we read that “the returning officer shall decide on the validity of every objection made to a nomination paper, and his decision, if disallowing the objection, shall be final; but, if allowing the same, shall be subject to reversal on petition questioning the election or return.” 35 & 36 Vict. (1872), ch. 33, sched. 1, sec. 13, p. 214, This provision applied at first to parliamentary elections *58only; but, after the decision in Northcote v. Pulsford (May 8, 1875), 10 C. P. (L. R.) 476, it was extended to municipal elections (the kind considered in that case) by the amendment of July 19, 1875. 38 & 39 Vict., ch. 40, sec. 1, p. 283.
So that, in England and New York to-day, the erroneous' addition of a name to the official list of nominees, though not corrected before the election, is harmless in its effect upon the voter’s right to use the official ballot without fear of possible disfranchisement. This, we consider, is also the proper meaning to be' placed upon the law of Missouri. Any other would metamorphose the supposed ‘ ‘reform” into a gigantic trap where the inoffensive citizen might readily be deprived of his most valuable right as a freeman by political manoeuvres in the form of “errors,” the force of which he could not foresee until too late to avoid their consequences.
A single case appears to antagonize the conclusion we have reached on this point, namely Price v. Lush (1890), 10 Mont. 61. With all respect due to the court that decided it, we think it embodies a misapplication of the English precedents which it cites. It entirely omits to mention or consider the effect of section 19 of the Montana statute (General Laws Montana, 1889, p. 140, substantially the same as our section 4778), which should be given some significance to prevent such unjust consequences to voters as have been explained, and which are impossible under the English ballot act, which that case purports to follow and expound.
Some other decisions, however, are supposed to cast light on the present discussion, and will, therefore, be touched upon.
In Talcott v. Philbrick (1890), 59 Conn. 472, the supreme court of Connecticut had to deal with a statute *59so unlike the Missouri law that it does not even provide for printing the list of candidates at public expense; but it requires the secretary of state to furnish at cost (to all persons applying for them) blank slips of paper, of uniform size, color, etc., indorsed (in print) “official ballot,” and upon these papers the respective politicial parties may cause the names of their own nominees to be printed, under provisions declaring that “in addition to the official indorsement the ballots shall contain only the names of the candidates, the office voted for, and the name of the political party issuing the same” (Public Laws, Conn. 1889, sec. 1, p. 155); and, further, that “all ballots cast in violation of the foregoing provisions, or which do not conform to the foregoing requirements shall be void and not counted.” Same Act, sec. 12.
The case showed that some ballots, in a local election, had been issued by the Republican party, but were headed “Citizens;” yet so loth was the court to disfranchise a few persons, who had voted for an aider-man in Hartford, that the ruling, pronouncing the “citizens” ballots illegal, was made by three judges only, the other two dissenting.
The exact value of such a decision in enlightening the case at bar we need not pause to measure. The reader can probably as well determine that for himself.
In People ex rel. v. Board of Canvassers (1891), 129 N. Y. 395, the statute required a certain uniform official indorsement on all ballots, cast at any one polling place, to preclude identification of any particular vote or class of votes, and declared that “no ballot that has not the printed official indorsement shall be counted.” The facts were that certain ballots, having an indorsement different from others properly used at the precinct in question, were voted by twelve hundred and fifty-two electors; and the court rejected the ballots *60mentioned, but only by the concurrence of four judges, three others dissenting.
■ We mention these cases neither to approve nor to disapprove them; but to indicate how inapplicable they are to the case in hand, and to show that, even with language as positive as that they construe, how reluctant are the courts to adopt an interpretation, the effect of which is to deprive a large number of their fellow-citizens of the electoral franchise.
Having regard to the spirit and purpose of the Missouri statute, and to the general principles governing the treatment of popular elections by the courts in this country, we think it should be held that where a candidate for public office causes no timely objection to be made before the election (as permitted by section 4778), he should be regarded as having waived all objections that may exist to the presence on the official ballot of any names of nominees not properly entitled to be there. Compare Reg. v. Bradburn (1876), 6 Ont. Pr. 308, and Allen v. Glynn (1892), 29 Pac. Rep. (Colo.) 670; s. c., 17 Col. 338.
II. It is next charged that the “Union-Labor” list of names of candidates was not legally certified to the county clerk.
How it was certified is not stated. That it was not certified at all is not alleged. From what appears it is evident that the pleader is giving merely his views of the certificate, of which neither the language, substance nor legal import is mentioned, so that the court cannot judge whether it was “legally certified” or not.
In addition, therefore, to the reasons already assigned for declining to review in this proceeding the alleged errors of the county clerk in preparing and printing the ballot, the application of a familiar rule of code pleading makes it unnecessary to discuss as a fact such *61a legal conclusion, as alludes to the certification of the “Union-Labor” ticket.
III. It is next asserted that the votes from Sedalia should be excluded because they were received at two polling places instead of at one.
It appears that the county court had designated Sedalia city as one election district, but had further provided two voting places therein for holding this election, with one set of judges at each, as hereafter more particularly described. This was done by orders to that effect before the election. Both of the voting precincts were at the courthouse in that city.
At one, the voters whose surnames began with the letters “A” to “K” voted; at the other, those with the letters “L” to “Z.” Each poll was reached by way of a window, and the two were only seventy-five feet apart. The windows fronted on one portico of the court building. Through them, passways led to the polling booths in the rooms within, where the election judges were stationed and received the ballots.
Assuming that these arrangements involved the irregularity of receiving the vote at two places instead of at one, does it nullify the will of the people so expressed, the election having been regular in other respects?
Undoubtedly some irregularities are of so grave a nature as to invalidate the whole return of the precinct at which they occur; as, for example, the omission of registration. Zeiler v. Chapman (1874), 54 Mo, 502. In determining which are of that kind, the courts aim merely to give effect to the intent of the law-makers in that regard, aided by established rules of interpretation.
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. *62Ledbetter v. Hall (1876), 62 Mo. 422. 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.
It has been sometimes said, in this connection, that certain provisions of election laws are mandatory, and others directory. These terms may, perhaps, be convenient to distinguish one class of irregularities from the other. But, strictly speaking, all provisions of such laws are mandatory in the sense that they impose the duty of obedience on those who come within their purview. But it does not, therefore, follow that every slight departure therefrom should taint the whole proceedings with a fatal blemish.
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- voters’ choice.
Thus, in Davis v. State ex rel. (1889), 75 Tex. 420, the law required that each ward in a town should “constitute an election precinct;”, yet, in San Marcos, a town incorporated with four wards, the county commissioners established two precincts only (without reference to ward lines), and each included parts of the adjacent country; but the court-, after full discussion of the general subject, held that the election at those precincts was not avoided by the irregularity.
*63In Stemper v. Higgins (1888), 38 Minn. 222, a general election was conducted in the village of Madeliaby its officers, as though it constituted a district separate from the township in which it was situated, where also a precinct was open; whereas the law declared that “every organized township, and every ward of an incorporated city, is an election district;” yet the court held the returns from the village valid, despite the irregularity indicated.
These cases find support in others, illustrating the same principle. Gass v. State (1870), 34 Ind. 425; Dale v. Irwin, (1875), 78 Ill. 180; Wheelock’s case (1876), 82 Penn. St. 297; Preston v. Culbertson (1881), 58 Cal. 209; Farrington v. Turner (1884), 53 Mich. 27; and Peard v. State (1892), 51 N. W. Rep. (Neb.) 828, a case under a ballot reform statute.
Such rulings are not peculiar to election proceedings, but result, logically, from the application to them of a time-tested rule of interpretation which requires that the general design and object of a law be kept in view and effectuated, even if it be necessary, in so doing, to restrict somewhat the force of subsidiary provisions that otherwise would conflict with the paramount intent. Cortis v. Waterworks Co. (1827), 7 B. & C. 330.
Elections under the “Australian ballot” statutes fall within reach of the principle above stated.
In the English law of 1872 it is enacted that “no election shall be declared invalid by reason of a noncompliance with the rules contained in the first schedule to this act, or any mistake in the use of the forms in the second schedule to this act, if it appears to the tribunal having cognizance of the question that the ■election was conducted in accordance with the principles laid down in the body of this act, and that such non-compliance or mistake did not affect the result of *64the election.” Ballot Act, 1872, 35 & 36 Vict., ch. 33, sec. 13, p. 200.
(The rules and schedules prescribe the forms of nomination papers, and the procedure for conducting the election.)
It has been judicially determined in that country that the language just quoted is merely declaratory of the common law of England. Woodward v. Sarsons (1875), 10 C. P. L. R. 751.
It certainly goes no further, as a curative power, than the accepted general principles of the law of elections in this country, as expounded by the courts.
"We consider that they have a just and proper application to the facts now in judgment. It is not asserted, on this appeal, that the supposed irregularity, of having two voting booths instead of one, had any bearing upon the result of the election to the prejudice of plaintiff, and we are unable to conjecture how it could, in any wise, have redounded to his disadvantage. We believe it furnishes no sufficient reason for excluding the vote of the two precincts in the circumstances.
IV. We conclude that *a reasonable and natural construction of the law forbids us to repudiate, for any such reasons as have been presented, the three thousand votes cast in Sedalia in 1890.
If for every error of a county clerk, or harmless irregularity in election procedure, citizens, having no control over either, are [to lose their right of choosing public officers, the “reform ballot act,” instead of being found an improvement of the machinery of popular government, will justly be denounced as a “snare to entrap the unsuspecting voter.” Gumm v. Hubbard (1889), 97 Mo. 319. Such a result, however, was never, contemplated in its enactment, and should not be brought about by a narrow and technical reading of it.
*65“Where any particular construction which is given to an act leads to gross injustice' or absurdity, it may generally be said that there is fault in the construction, and that such an end was never intended or suspected by the framers of the act.” Peckham, J., in People ex rel. v. Board of Canvassers (1891), 129 N. Y. 395.
While it is well enough to insist on a proper and strict performance of duty by officers conducting elections, we are not of the number of those who imagine that such performance will be promoted by disfranchising the whole body of electors in any locality where errors, such as are here charged, occur. The legislature has not plainly declared such a purpose, and wo think it should never be imported into a statute by construction.
It seems to us, after full reconsideration of the case, that the decision of Judge Field on the circuit, in favor of defendant, was right, and should bo affirmed.
Black, Bbace and Maceablane, JJ., concur; Shebwood, C. J., and Gantt, J., dissent. Thomas,-J., will express his views in a separate opinion.