(concurring). — I shall not attempt +o review the statutes discussed by my learned brother Woodson, nor to give an expression to an opinion thereon.
*346Contestant filed a blanket notice of contest. It covers a vast number of charges, most of which were never after adverted to in the case. It should be added that this voluminous notice nowhere alleges that con‘testee, Powers, had accepted the office or was in fact claiming the same. This may be by the wayside.
Contestee’s answer was a denial of the things charged in the notice of contest. This was preceded, however, by a challenge to the jurisdiction, which challenge has been kept alive all through the ease.
Void Ballots. Upon the first report of the Election Commissioners, contestee had a majority of 54. The circuit court directed a recount and comparison of the ballots, and upon such recount, by the report of the Election Commissioners, the contestee still had a majority of six. The circuit court after having gone through all of the ballots to which objections were made by either side finally found that .contestant Turpin had been elected by 27 votes. In a memorandum filed with his judgment he states in detail his reasons for counting and rejecting the different classes of challenged votes. If therefore it appears that he has improperly counted more than 27 votes for Turpin, the majority for Turpin is gone, and the contestee should win. There is one class of 38 ballots, which were rejected by the election judges in the court for this office, and which were counted by the learned circuit judge for contestant Turpin, which in my judgment settles this case. The learned trial judge says that on 36 of these 38 votes, the name of the voter appears on the bottom of the ballot, and that on two of them the name of the voter appears to be written on the dotted line under the name of Turpin.
A reading of the record shows a sparring match between counsel for the respective parties as to these ballots, and the finding of the learned trial judge, shows some sparring also. Counsel for contestant when offering the ballot would call it a ballot with the name of the voter written on the bottom of it. The position of counsel for contestee was that the extra name was written under the caption “Constable” and that made three *347names thereunder, when the voter could not vote for but two, and that under the express terms of the statute, the votes were invalid. Their position is thus stated:
“Mr. Lashly: It is our position that the Board of. Election Commissioners has no power to refer to the poll books for the purpose of finding out whether the name written was the name of the voter or of some other person, that the order of the court for re-count expressly forbade that, that the law forbids it, that even if the Election Board should determine whether the name under the caption ‘constable’ was the name of the voter or not, and even if it should appear that it was the name of a voter, a man has a right to vote for himself, and if he writes his name under the caption for the office in contest it constitutes three votes for that contested office, and therefore under the statute the ballot cannot be counted for either party.”
This objection was carried throughout the record, as to this class of votes. The court in his findings fails to find that the last caption on the ticket was that of constable. We have before us photographs of both the Democratic and Republican tickets used in this election. Upon each, the last caption reads: “For constable, 4th District (vote for two).” This caption is near the bottom of the ticket. Below it on the Republican ticket appears the name of “Floyd E. Bush” and “Charles H. Turpin” and below each name is a dotted line. Just below the name of Charles H. Turpin, and the dotted line thereunder, is a small blank space, before the bottom or end of the paper ballot is reached. It will be noticed that Turpin’s name is the last upon the ballot. In 36 of these' 38 ballots the extra name was written below the dotted line, and in two of them on the dotted line just beneath Turpin’s name, but in all 38 the extra name was in fact under the caption on the ticket. These facts fully explain the sparring of counsel. Under these facts, if we had a ballot upon which the name of Turpin had been erased and the name of Powers had been written thereunder, although not on *348the exact dotted line, there would he no question that Powers would he entitled to the vote.
The question here is, does the addition of this extra name, leaving the other two unscratched, invalidate the ballot.
We think so. Section 5909, Revised Statutes 1909. reads:
“If a ballot should be found to contain a greater number of names for any office than the number of persons required to fill such office, it shall be considered as fraudulent as to the whole of the names designated to fill such office, but no further; but no ballot shall be considered fraudulent for containing a less number of names than are authorized to be inserted.”
In each of these 38 ballots appears three names under the caption of constable, when there should have been but two, and under the statute, supra, the ballots are fraudulent and should not have been counted for Turpin. Our statute, supra, is but the expression of a general rule of law. Thus in McCrary on Elections, section 533, it is said:
“It is well settled that where a limited number of persons are to be chosen to fill a given office — as, for instance, where the law provides for the election by the same constituency of two Representatives in the State Legislature — a ballot containing the name of a greater number for that office is void. It was accordingly held in People v. Loomis, 8 Wend. 396, that where the number of constables to be chosen was limited to four, ballots containing the names of five persons designated as voted for for that office cannot be canvassed, but must be rejected.
Nebraska has practically the same statute as ours, and in State ex rel. Valentine v. Griffey, 5 Neb. l. c. 166, it is said:
“Again, each one of these ballots contains the names of two persons, and as this is a greater number than is required to fill the office, it is fatal to the validity of the ballots. The act entitled ‘an act to provide a general election law,’ in section thirteen, provides that *349‘whenever a ballot shall contain a greater number of names for any one office than the number of persons required to fill that office, it shall be deemed fraudulent as to the whole of the names for that office.’ ”
To like effect are, People v. Loomis, 8 Wend. 396; Clark v. Robinson, 88 Ill. 498; Blankinship v. Israel, 132 Ill. 514.
That there were but two constables to be elected for the district is clear. That there were three unscratched names under the title “For Constables, 4th District” upon each of these thirty-eight ballots there is no question. That the ballots can not be counted for either of the three, under both our statute- and the general rule is likewise clear. Rejecting these 38 votes counted for Turpin by the learned trial judge, as we think they must be rejected, Powers would be elected by eleven, votes.
The learned trial judge predicates his ruling' in counting these votes on the case of Lankford v. Gebhart, 130 Mo. 621. In that case the voters had written their names on the back of the ballots. This was the sole point ruled there. That this case is no authority here is too plain for argument. In the instant case these 38 voters had the right to write under the caption “For Constables, 4th District” the name of any person or persons that they desired to cast their ballot for at such election. This has been consistently ruled since Bowers v. Smith, 111 Mo. l. c. 52, whereat we said:
“By our Constitution general elections are held at certain fixed dates, and the right of suffrage is expressly secured to very 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 entitled the nominees to places upon the official ballots, printed at public expense; but the Missouri *350voter is still at liberty to write on Ms ballot other names than those which may be printed there.”
Whilst he may write on other names, if he wants his ballot to be effective he must not leave under the caption a greater number than is necessary to fill the office. In the instant case each of the ballots would have been legal had the voter, when he wrote under the caption the name he did write, taken the trouble to scratch the name of. Charles H. Turpin. He did not do it, and thus left three names under the caption, when there should not have been but two.
But it is urged that the names thus written under the caption were the names of the respective voters, and that .this changes the situation. It does not change the legal situation in the least. Each voter had the right to vote for himself for constable, if he so desired. He had the right to write his own name for that office under the caption for that office, and had he scratched the name of Turpin, there would be a legal ballot, with one vote each for Bush, the other candidate with Turpin, and for the voter who wrote in his own name under that of Turpin. This is clear. That the three names on the ballot were under the caption for constable is clear from numerous photographs of ballots, in the record. These 38 votes were wrongfully counted for Turpin.
A casual examination of other contested votes impresses us that there were many more than the thirty-eight votes, supra, counted for Turpin, that were wrongfully counted for him, but we shall not go further, because these are decisive. We therefore concur in /that portion of Judge Woodson’s opinion wherein he says that there is no merit in contestant’s claim of election, and think that to end a long drawn out fight, judgment should be entered here in favor of the contestee, holding that he was legally elected to the office, and against contestant for costs-. It is so ordered.
All concur in these views.