(dissenting).
In the third section of the foregoing learned opinion, our brother G-antt holds that nearly fifty voters must lose their votes cast at the election of 1896. All these voters had prepared and voted ballots on which the entire Republican ticket remained unscratched, and on which were noted their votes upon the several constitutional amendments, in the same (the Republican) column. All the other tickets on the papers were crossed out by pencil marks, except the “Independent Ticket,” on the extreme right of the ballot.
(It appears elsewhere in the case that the same ruling will probably annul a large number of Democratic ballots, marked in a similar way. Those ballots will be again referred to.)
The so-called “Independent Ticket” consisted of the name of one candidate for sheriff, printed near the bottom of the column. The column was otherwise totally blank. Yet because that “ticket” was- not erased, the votes of all those who overlooked or ignored it (and who thought they had expressed their votes for other offices by proper marks on the ballot-paper) are to be totally nullified by the ruling of our learned associates. To such a judgment we enter our most respectful but emphatic dissent. It seems to us a de*408parture from valuable principles (heretofore announced in this State and elsewhere) governing the exercise of the electoral franchise.
Whenever a ruling is proposed, the effect of which is to deprive a large number of citizens of their highest privilege as freemen, any court should, before indorsing it, be very sure indeed that the ruling is sound, and that it correctly declares the true intent of the law that is supposed to point to such a result.
1. Section 4781 (as amended by Laws of 1893, p. 156) has been already quoted. It directs the voter how to indicate the vote which he is entitled to cast. The prime object of the section is to point out how the voter may express his choice on all “the questions submitted.” Its object is not to set a trap to catch him and prevent his voting. The gist of the legislation (as to the mode of marking the ballot) is found in the statement that the voter is to prepare his ballot so that the part which remains “shall express his vote upon the questions submitted.” He is directed to put his vote into one column, with a view, no doubt, to facilitate the labors of the election officers in counting the votes. But the law does not say that if the voter leaves any names in other columns he is to'lose his entire vote. On the contrary, he is authorized in positive terms to leave plenty of unscratehed names on other columns of the paper, if he makes a “partial erasure” of those columns. The law says further that he may express his intent to reject the other “groups,” “in any other manner than by the erasure of a name to substitute another.” A rejection of part of a column (other than that indicating the voter’s choice) “is to be taken as a rejection of the whole group.”
The amendments of section 4781 in 1891 and in 1893 disclose that the legislative intent has been directed toward diminishing the risk of disfranchising *409citizens on account of omissions to conform strictly to the letter of the law in marking their ballots.
As the statute now reads, the vital and paramount ideas of section 4781 are that the voter shall clearly indicate some one column as the one of his choice, and in marking his choice shall have the right to vote (in that one column) on all questions submitted.
In the case in hand, the purpose of these citizens to vote the republican ticket is perfectly clear, unless the failure to erase the Kage “group” defeats that purpose. If each of these voters had proceeded to draw a pencil mark lengthwise along some part of the blank space in the Kage “group,” we presume that the supreme difficulty which has been experienced in discovering the voter’s intention would disappear. But the voters did not apprehend the importance of such an act. Not being posted in the niceties of election law, nor appreciating the possibilities involved in its construction, they did not take the precaution to erase any part of the blank of which that column was chiefly composed. Hence they are now told that they must lose their votes for the important state and national offices which the blank space on the Kage “group” is supposed to represent. These voters lose their votes, not only as to the one county office named in that “group,” but also as to all other offices which they had a right to take part in choosing at that election.
"Just here it may be proper to inquire what was the true standing of the “Independent ticket” on which Mr. Kage’s name appeared. In the learned opinion of our associate it is held that the name and the caption constitute a “group” (within the meaning of section 4781) the failure to erase some part of which renders the whole ballot null and void. In our opinion that “ticket” is simply what it purports to be, namely, an *410official statement of an independent nomination for sheriff. It is not a column printed for use in voting for any other office than the one mentioned therein. Leaving that name ‘unerased, on a ballot otherwise correct (in indicating an intent to vote another column) certainly amounts to nothing worse than a vote for two persons for the office of sheriff. It ought not to annul the vote as to other offices not referred to in the so-called “Independent ticket.”
Under the election law in force in Missouri before the Australian ballot system was adopted, a ballot containing a vote for two persons for the same office was considered invalid only as to that office. R. S. 1889, sec. 4678. While the section just cited may, perhaps, be superseded by the new statute under which the ballots are furnished by the State and not by the voter, yet the above mentioned principle of construction of ballots is nothing more than the statement of a just general rule in the American law of elections, and is as applicable to the “Australian law” as it was applicable to similar language on ballots under the former law, in the absence of anything in the existing statutes to show a different purpose. Attorney-Gen. v. Ely, 4 Wis. 420; Perkins v. Carraway (1881) 59 Miss. 222.
Section 4773 [as amended by Laws of 1891, p. 134], provides how the ballots shall be printed. It makes a plain distinction between “groups” of nominations and the separate names required to be printed in case of independent candidacies. The officer who prepared the ballots in question in this case evidently did not consider the separate name of Mr. Kage as a full ticket. The election was to choose a great number of public officers. 'Every voter was entitled to vote for federal electors and congressman, as well as for state and county officers. Every voter was entitled to the privilege of having the ballots printed so that he might *411exercise that right. But the Kage ticket contains no other names whatsoever. It does not even contain blanks for votes for any of the other offices to he filled. It has no provisions for any vote on the proposed amendments to the organic law. Yet the latter are required to be printed on each ballot to be voted. Laws 1895, p. 171, sec. 4753. That section also contains a useful hint of legislative intent, touching the effect of errors in preparing ballots, by the declaration that ballots not prepared in conformity to the requirements as to constitutional amendments “shall not be counted on the proposition thereby submitted;” implying that such error shall not make the ballot invalid as to the other issues submitted at the same time.
It is manifest that the officer who made up the “Independent ticket” and caused it to be printed did not intend to multiply Mr. Kage into the dimensions of. a national, state, and county “group.” Had the officer entertained such a purpose, would he not have put upon that ticket the necessary printed matter for votes on “all the questions submitted,” which is the only limit of the voter’s range of choice in the column (or “group”) he is entitled to vote at a general election? Can the voters be justly blamed (and condemned to lose their votes for other offices) because they took the same view of the Kagd ticket that the official who arranged the ballot did? It is expressly declared by the ballot law (R. S. 1889, sec. 4765) that no person shall be “published as a candidate for more than one office.” Surely Mr. Kage was not in the political field for every office to be then filled. On his column all the other offices were represented by blank space only. To hold that such blank space is a “group” (as to the many offices then subject to vote) seems to do violence to the very terms of section 4781 which sanctions such a marking of the official ballot actually voted *412as shall show the voter’s choice on all “the questions submitted.”
In the Cape Girardeau cases now before the court it is not claimed by anyone that votes of the kind under discussion are valid for the office of sheriff. It is only insisted that they. are good as' to the other offices in the full column duly indicated as the choice of each voter. In our opinion they are good to that extent at least.
The acknowledged spirit of the American law, before the acceptance of the Australian system, required effect to be given to the intention of the voter as depicted on his ballot, even though the expression of that intent might be in some degree irregular, unless the irregularity violated some fundamental principle of the secret ballot or was expressly declared by law to be fatal to the vote. Gumm v. Hubbard (1889) 97 Mo. 311 (11 S. W. Rep. 61); Brown v. McCollum (1889) 76 Iowa, 479 (41 N. W. Rep. 197).
The new law gives no. sign of any purpose to change that just and fair rule for dealing with the very serious topic of popular elections. On the contrary, the leading decisions construing that law in other jurisdictions indicate that its true spirit and purpose are best expressed by adhering to that rule. Hence it has been held that the intent exhibited by irregular ¿narking of the ballot will be respected, provided it does not infringe on the prohibition against distinguishing marks, and is not distinctly forbidden. Both the foreign and American courts have sanctioned many irregular markings, in obedience to the well recognized doctrine that the paramount object of such a law is to get at and effecuate the intention of the voter.' Reg v. Bagley (1870) Mac. (N. Z.) 836; Phillips v. Goff (1886) 17 Q. B. D. 805; Miller v. Pennoyer (1893) 23 Ore. 364 (31 Pac. Rep. 830); Coleman v. Gernet (1893) 3 *413Pa. Dist. 500; Johnson v. Board of Casnovia (1894) 101 Mich. 187 (59 N. W. Rep. 412); Boyd v. Mills (1894) 53 Kan. 594 (37 Pac. Rep. 16); Parker v. Orr (1895) 158 Ill. 609 (30 L. R. A. 227; 41 N. E. Rep. 1002); Page v. Kuykendall (1896) 161 Ill. 319 (32 L. R. A. 656, 43 N. E. Rep. 1114).
In the very case at bar the learned opinion of the majority of the court declares (in the fifth paragraph) that the fact that judges of election entered the booths and assisted electors to prepare their ballots can not be shown with a view to invalidate any part of the vote cast. Yet such action by the election judges is expressly forbidden by section 4784 as amended by the laws of 1893, p. 164. And in the fourth paragraph of the same learned opinion the omission of the oath required of voters is held to have no prejudicial bearing on the result, although such oath is positively commanded by the terms of the section last above cited.
We believe the same general principle of aiming at the substance instead of mere form, in dealing with elections, should also be so applied as*to preserve the rights of those citizens whose eyes were not keen enough to notice that there was something in the deep blank of the Kage ticket that demanded their attention, under penalty of disfranchisement.
2. We would further respectfully insist that the view above given of this case is but an application of the principle announced by a majority of the court in banc in the twelfth paragraph of the opinion in Langford v. Gebhardt (1895) 130 Mo. 621 (32 S. W. Rep. 1127). We think that principle is correct and that it should not be discarded.
3. It is claimed by respondent that even if the republican ballots (whose effect we have discussed) are counted, the respondent would still be elected, because he received some forty odd democratic ballots, *414which were rejected in the final figures, on account of a like failure of the voters to cross out the Kage ticket. The difficulty with that contention is that the ballots needed, to produce the result claimed are not before this court. They are not called for by the bill of exceptions, nor are they referred to therein in a way to disclose the facts relied upon by respondent. So we can not consider them, unless the return of the county clerk to the order for a recount of the ballots may be looked at as part of the record proper in the cause, which respondent thinks is permissible. The county clerk’s return is mentioned as being before the circuit court at the trial, but its terms are not recited (nor is enough of its purport given) in the bill of exceptions to show how many democratic votes were rejected on a similar ground to that which caused the rejection of the republican votes already mentioned.
The return to an order for a recount is not of itself a part of the record proper. It is evidence for certain purposes (R. S. 1889, sec. 4726) but can be made available on appeal only by taking the appropriate steps to bring it into the record. We can not tell (with the certainty necessary to a .final count) how many democratic ballots (on which the Kage ticket was not scratched) were rejected at the trial. And hence the record does not show that the error of rejecting the republican ballots was harmless.
We believe that the circuit judgment should be reversed and the cause remanded for a new trial, and therefore dissent from the judgment announced by the majority of the court in banc.
Macearlane and Robinson, JJ., join in this opinion.