(dissenting). — I concur in the result reached by my brother Uantt on the second point discussed in his opinion, but I fear he has stated the principles upon which he bases that result too broadly. I am not prepared to say that a county clerk’s action in preparing a ticket under our election laws can be reviewed by the courts after the election in all cases, nor am I willing to say that it cannot be reviewed in any case. That would, in my judgment, depend on circumstances.
Under the specifications in the notice of contest in this case which were stricken out on motion of the contestee, the contestor would have had the right to introduce evidence to show that the Union-Labor party had no existence in Pettis county; that Sappington had not *90been nominated by any party, or by any number of electors; that Ms nomination had not been certified to the clerk at all, and that the tclerk arbitrarily put his name on the official ballot without deciding or attempting to decide anything, simply because he was requested to put it there, and in that case the ballot would have been void.
I fully concur in what was said by Shebwood, P. J., in division number 1, in State ex rel. v. Lesueur, 103 Mo. 253, that the secretary of state does not occupy ‘ ‘the attitude of a mere figurehead or automaton, moved about at the whim or touch of every eager applicant who desires the performance of duties which pertain to his office. When applied to for the discharge of such duties, although his discretion may not reach the height known as judicial, * * * yet it cannot be doubted that some portion of the qualities and attributes of discretion necessarily inhere in the discharge of his official duties, requiring him to consider before acting, and to search and inquire before reaching and announcing a conclusion.”
These remarks are as applicable to the county clerk under our election statutes as to the secretary of state, but I do not believe the power of the secretary of state or clerk in preparing the official ballot is wnlimited. It would be a pernicious doctrine for the courts to assert that the county clerk can arbitrarily and ad libitum put names on the official ballot that ought not to be put on it, and that the candidates who have a legal right to have their names on it must resort to the courts before the election or lose their remedy. On the other hand, if the clerk should receive the certificate of nomination, should examine into the facts in regard to it, should decide that the names of the parties mentioned therein ought to go on the official ballot, and should print and publish it as required by law, and no objection to it *91should he made prior to the election, the courts, in a contest arising in regard to it after the election, might very well refuse to interfere with the clerk's decision and hold the ballot good, though it should turn out that certain names were improperly printed on it. But the courts should hold the ballot void if it appears that names were illegally printed on it, unless it should be proved that the clerk did consider before acting, and that he did search and inquire before reaching a conclusion; that he did exercise hip judgment and discretion, and that he did not arbitrarily, and without a pretense of authority or right, print the unauthorized names on the ballot.
I take the position that the clerk has not a ca/rte blanche to put the name of every eager applicant, who may so request, on the official ballot, nor should a ballot be declared void in every case in which a name is on it which ought not to be on it, where the clerk exercised a sound discretion in preparing it. This leaves the courts to review the action of the clerk, and to adjudicate the issue as the very right of each case may demand.
The' court below ought to have refused to strike out the portions of the notice of contest it did strike out; ought to have heard the evidence in regard to how and why the names of the Union-Labor candidates were printed on the ballot, and to have disposed of the issue on the evidence.
I fully agree with my brother Barclay in what he has said in his opinion in regard to the election precincts in Sedalia. Eor the reasons given above, I think the judgment of the lower court ought to be reversed, and the cause remanded for new trial on the merits.