The opinion
*579 CONCURRING OPINION.
LAMM, J.
I concur in all either said or decided in the principal opinion, and add a few observations, dum fervet opus. The cases overruled were by no means intended to make a sanctuary for fraud, but, as pointed out by my brother Graves, they resulted that way. By lifting high the secrecy of the ballot and putting it on a pinnacle as the very be-all and end-all of the law, by so interpreting the law that secrecy became the central and controlling thought in our election laws, the vital matter of the chastity and integrity of the ballot was lowered away and made of mere secondary moment. As if, withal, it was more precious to. a free citizen to have for whom he voted kept secret than to have his vote counted at all or counted as cast. It is a upse precept of the law everywhere allowed as true that the greatest incitement to guilt is the hope of sinning with impunity. That precept it seems to me was ignored in the cases overruled. To do just and right is the chief commandment of the law. That great commandment was laid out of view it seems to me in those eases. "When this court adopted the new view that fraud could worm itself into and find a sanctuary in the ballot box, that the ballot box could be nailed up with its possible abominable secret of fraud safely hid away in its bowels, we thereby unintentionally put a barrier not to be overleaped in the way of proving fraud in elcetion contests. Whereby the law, which abhors fraud, which delights to follow it relentlessly high and low and snatch away its fruits from its doers, which thereunto permits a wide and minute search for it, which is fond of declaring that fraud vitiates everything polluted by its dirty hands, supinely permitted itself to stand baffled, helpless, puzzle-headed and paralyzed before fraud in the ballot box. Messieurs, the assassins of the ballot, might well smile when they awoke to that view of it. Not only so, but *580 to protect the mere secrecy of the ballot an anomalous and dangerous ingenuity of device sprang up. For example, in State ex rel. v. Hough, 193 Mo. l. c. 632-3, we approved an order in a contested election case requiring the election commissioners of St. Louis to exclude not only the parties to the contest and their attorneys, but all other persons from their office, while comparing the nmnbers appearing on the ballot with the numbers appearing on the poll books, etc. What was that but prescribing a secret inquisition strange to the laws of a self-governing people? What was that but a vital step in the dark taken in a law suit in disobedience to the constitutional mandate that courts of justice should be open? In counties outside of St. Louis, with no election commissioners, it became the practice under that construction of the law to make an order in election contests allowing the county clerk to make such comparisons and compile data in secret, away from the eye of witnesses, the court or opposing counsel, and his certification of the result of this secret inquest was allowed deep significance by the trial judge. As if enormous temptations did not dog the footsteps of secret power! As if the trial judge could trust the county clerk with the secrets of the ballot and could not trust himself or the attorneys, officers of his court In one notable case, Hale v. Simpson, 198 Mo. 134 , the records in our files will show that the county clerk in his certificate of facts, so secretly got at in the dark, entirely reversed the returns of one precinct, thereby electing his political friend by a majority of two votes. Now, this same county clerk had subscribed $50 to a fund to pay attorneys and costs to aid that very contest. He had retained counsel and the new doctrine permitted him to act as judge in the same case and so act alone, in secret, unchecked by any human eye or agency. It is indeed difficult to use the calm and venerable language of jurisprudence in dealing with a situation of that sort.
*581 When we made the original order in the instant ease permitting attorneys to be present when the election commissioners were making their comparisons and preparing their data for the certificate made by them in this case we practically overruled State ex rel. v. Hough, supra, in that particular. By now overruling State ex rel. v. Spencer, 164 Mo. 23 , in the matter discussed by my learned brother Graves, and overruling all cases following it, we put the investigation of fraud in an election case precisely on the foot of any other investigation of fraud so far as we can. Our ruling does not mean that the secrecy of the ballot should be exposed except in so far as it may be absolutely necessary, under the allegation of the pleadings in an elec-' tion contest, to show fraud, if any, and to that extent neither the Constitution nor the statutes protects the secrecy' of the ballot. In such ruling we but return to the practice in vogue for many years before State ex rel. v. Spencer engrafted an unsound and anxious innovation on the law. The opinion of our brother opens the door to a full search for fraud and that is right. It leaves contestants to carry the burden of the charges of fraud they make in their petitions, and that is right, too. It leaves to us to see whether when the proof is all in, the justice of the case is with contestants or contestees and such result is also right.
Ferriss, Wood-son, and Graves, JJ., concur; Kennish and Broivn, JJ., not sitting.