This is a proceeding to invalidate certain school bonds. There was a judgment for - defendants, and the plaintiff has appealed.
On April 4, 1916, a proposition to issue $20,000 in bonds of the above-named school district for building purposes was legally submitted at the annual school election. There were 214 ballots cast at this election, of which 204 voted on said proposition, 136 being in favor of same. The judges first counted 69 votes against the proposition and announced that the proposition was lost, such result being subsequently published in the local paper. On the same day, and before leaving the polling place, the judges of the election interrogated Carl Palmer who had voted against the proposition in regard to the period of his residence in the district, and got such other information as they could at the time and decided that Palmer had not been a resident of the district for sixty days and that he was not a legal voter. They erased the figures “69” on the tally sheets as the total vote against the proposition and in place thereof wrote the figures “68,” having first ascertained that Palmer had voted against the proposition. The judges at once certified the returns of that election as to all matters except as to the vote on that proposition. As to the proper course to pursue in reference to the vote on said proposition as it involved the Palmer vote, they called for advice from the office of the Attorney-General and from local counsel, and, on April 17, 1916, certified the vote on the said proposition as 136 for and 68 against the same. Whereupon the bonds were duly prepared and have been contracted to the defendant, the Fidelity Trust Company, their delivery being held up awaiting the result of this suit.
*592The plaintiff herein is a resident taxpayer in said district. On the trial counsel on both sides and the court proceeded on the theory, by them stated to be the law, that the question as to who were legal voters at that election could not be tried in this case. However, both sides offered evidence on the question as to the competency of certain ones who had voted at that election. The court heard some of the evidence and excluded some. The plaintiff offered evidence tending to prove that Carl Palmer was a legal and competent voter at that election, but, on the objection of defendants, the evidence was excluded.
It is conceded that Mr. Bryant, a member of the school board, and its legal adviser, advised Mr. Adams, the school district clerk, not to let Mr. Franklin see the school records showing the proceedings in controversy, and the clerk, pursuant to such advice, refused to let Mr. Franklin see such records. No reason was given for such refusal, and there is nothing to show that such refusal was for improper purposes, and there is no dispute as to the relevant facts in this case. There is no evidence in the case tending to show any fraudulent intent on the part of any one in connection with the matter.
Trial Theory.
I. Plaintiff has no right to complain of the exclusion of, the evidence offered for the purpose of showing that Carl Palmer was a legal voter. All parties, including the court, tried the case on the theory that such an inquiry could not be made in this case. The case must be decided here on the same theory as that on which it was tried by the parties below. [Huss v. Bakery Co., 210 Mo. l. c. 52; St. Louis v. Wright Con. Co., 210 Mo. 491.]
Excluding Illegal Vote.
II. ■ Appellant contends that' the judges of the election, after having received Palmer’s ballot and placed it in the box, and after counting it against the proposition, had no right to throw it out, and deduct it from the total vote against the proposition. It has been held that the judges do have the right to exclude an illegal ballot after it has *593been received unchallenged and placed in the ballot box. [Hehl v. Guion, 155 Mo. 76.] The'mere fact that it has been marked on the tally sheet against the proposition does not deprive the judges of election of the power of revising their work in accordance with the facts as determined by them.
Two-Thirds of Voters.
III. It is claimed that 136 votes for the proposition is not two-thirds of the total of 214 voting at such election. It is exactly two-thirds of those voting on that proposition, and we think is sufficient to authorize the issuing of the bonds. Section 12 of article 10 of our State Constitution requires “the assent of two-thirds of the voters thereof voting at an election to be held for that purpose.” That section, in the respect now under discussion has never been construed. Similar provisions in the States of Kentucky and Washington have been construed by the courts of those states as meaning that the result is to be determined by the number of votes cast on the particular proposition.
In Montgomery County Fiscal Court v. Trimble, 104 Ky. 629, a similar provision of the constitution of that state was held to require only two-thirds of the votes of those voting on the proposition. That ease overruled three prior eases and has been followed in frequent cases since. [Board of Education v. City of Winchester, 120 Ky. 591; City of Marion v. Haynes, 164 S. W. (Ky.) 79; Fowler v. City of Oakdale, 166 S. W. (Ky.) 195.]
In Fox v. City of Seattle, 86 Pac. (Wash.) 379, it was said:
“The Constitution, it will be noted, does not provide for either general or special elections so termed, but provides only for an election to be held for that purpose, and .that purpose, of course, is a special purpose. The provision in the charter that such proposition shall have then received the assent of three-fifths of the voters voting at such election construed with reference to the constitutional provision, evidently means thre%fifths of the voters who are expressing an opinion on the question *594discussed in the ordinance; and the question discussed in the ordinance was the question of the loan and the issuance of the bonds.”
The Constitution must be so construed as to' give effect to all its terms. If it be construed to mean two-thirds of all votes cast at an election where other matters are voted upon, then the words “for that purpose” are, in effect, stricken out of the Constitution.
The judgment is affirmed.
White, C., concurs. PER CURIAM:The foregoing opinion of Roy, C., is adopted as the opinion of the court.
All of the judges concur.