(after stating the facts). — We care to add but little to the foregoing opinion. Apparently several points were urged in the court below against the validity of the election which are not insisted on herе. The main contention of the appellants in this court is that the secrecy of the ballot was violated by the judges and clerks of the election when they notified the voters that the “outside” ballots werе probably illegal; thus compelling voters either to refrain from voting or use the ballots prepared by the election officers. There is nothing in this argument; for voters were at liberty to take from the judges bоth forms of the regular ballot and vote the one they desired, whether it was for or against selling intoxicating liquor, without the election officers knowing which one was deposited. No citizen would have been compelled to disclose how he voted if he used one of the regular ballots. But in truth the judges did not decline to receive the outside ballots, but notified the voters they might be thrown out of the count as illegal, instead of being counted. This was simply a caution or expression of opinion by the judges, intended to apprise the voters that they took some risk in voting other ballots than the official ones.
Elections undеr the local option statute are to be conducted in accordance with the law governing municipal elections. R. S. 1899, sec. 3028. The central fact to be shown in an election contest, in order to annul the result, is that some mandatory statute was violated or that the election was conducted in such an illegal manner that the true sentiment of the electors was not expressed by it, or that it is imрossible to know whether their true sentiment was expressed. That is to say, unless some positive mandate of the law was ignored, it must appear that the result of the election was changed by the irregular mode in which it was conducted, or that it is impossible to know, on account of irregularities or delinquencies in the conduct of the election, what the
The point is pressed that the election was invalid because the board of aldermen fixed the polling places and appointed the judges and clerks on June 6, 1903, one week before the election, instead of doing so two weeks before аs provided by section 4 of Ordinance No. 43 in regard to general elections. That course was taken by a special Ordinance (No. 211) relating to this particular election, which the board of aldеrmen were at liberty to enact for the desired purpose in lieu of the general ordinance; and it did not invalidate the election unless it was plainly unreasonable or prevented a full and fair vоte. The existence of a general ordinance regulating the mode of doing some municipal business does not stand in the way of the adoption of a different method by a subsequent ordinance. Strassheim v. Jerman,
“The main purpose of a warrant for meetings for such elections is to remind legal voters of their right and duty to vote, and of the officers to bе elected, and at the same time to give them notice of the place where the election will be held, and of the hour when the polls will be open and when they will be closed. If this election at Gay Head be declared void, there can be no new election for county commissioner at Gay Head, and
“If this negligence is such that there may not have been a full, free and fair vote, or such that the result of the election there сan not be accurately ascertained, this, effect may be unavoidable; but such conclusion ought not to be reached unless the construction of the statutes clearly requires it, or the manner in whiсh the election was called has possibly resulted in depriving some legal voter of his vote, or has influenced or rendered uncertain the result of the election; for this is an election held at the timе, in the place and for the purposes prescribed by law, and by the officers authorized by law to hold such an election. The provisions of the statutes which have been disregarded in this case, we think, аre not the essence of the thing required to be done, by complying with whiqh jurisdiction or authority to hold an election was obtained; but they regulate the form and manner in which the meeting for an election required by law then and there to be held should be called.”
We feel justified in view of the very large vote, in holding that Ordinance No. 211 was valid and gave the voters sufficient notice of the polling places. In a small town voters have no difficulty in learning where polling places are, unless the polls are concealed or the voters misled; and it'is not asserted that either of those things was done in this instance.
The point that gave us the most difficulty, though it has not been insisted on in appellants’ brief, was the refusal of some of the judges and clerks to certify the poll-books. This refusal was because certain outside ballots wеre not counted in casting up the result. An examination of the cases bearing on this question has convinced us that the canvassing officers were empowered to canváss the returns from those precincts and take account of them in ascertaining the total result, there being no question made against the integrity of the poll-books,
It was held in Mayo v. Freeland, 10 Mo, 630, that in an election contest the court may examine the judges and clerks of the election and the pollbooks and correct errors in the returns, so as to determine the result in accordance with the votes cast: that is to, say, may look behind the returns. By parity of reasoning the court may gather the true result by looking behind a defective return.
In Sanders v. Lacks,
. In this contest the trial court counted the outside ballots in favor of the sale of intoxicating liquоrs to ascertain the result of the election and it is clear that, nevertheless, the vote was against the sale of intoxicants. The petition for the special election was admittedly sufficient to justify action by the city council. The council took action by an order for an election and not by an ordinance. That mode of calling such an election was approved in State ex rel. Church v. Weeks,
The judgment is affirmed.