The opinion
DISSENTING- OPINION.
VALLIANT, C. J.
This court has never decided that the secrecy of the ballot, which the Constitution requires, can be invoked to cover up or protect a ballot that has been cast by a man who had no lawful right to vote.
The decision in the case of State ex rel. v. Spencer, 164 Mo. 23 , does not so decide, although it has been so interpreted... What was said in the opinion in that case must be understood as referring to the facts in that case. There the contestant had challenged in his petition the legality of practically all the ballots cast in the city at that election and had filed as an exhibit to his petition as a list of illegal voters a copy of the poll books with only a few names erased. So sweeping was his charge of illegality against the whole voting population of the city that he included even his own name. The order of the circuit court was as broad as the contestant’s demand; it ordered the board of election commissioners “to proceed to open, examine, count and compare with the list of voters in your office all the ballots that were cast at the general election aforesaid for the office of coroner for the term above mentioned. ’ ’ The result of that examination was to be certified to the court and become a’public record and thereby make public how every man in the city voted, whether he was a legal or illegal voter. This court decided that that was an unwarranted order. If it is thought we ought to overrule that case, then in my opinion we ought to wait doing so until a case comes to us involving the same principle.
*583 In tlie majority opinion it is said: ‘ ‘ The framers of onr Constitution in providing for a secret ballot never dreamed that they were erecting’ a bulwark behind which fraud could lurk and propagate, and eventually run rampant through the land.” I concur in that as a proper construction of our Constitution on that point, but if that is intended as announcing a doctrine contrary to the former decisions of this court on that subject it is in my opinion founded on a misconception of what those decisions are and an oversight of what this court has expressly said on that subject. In Montgomery v. Dormer, 181 Mo. 5 , the evidence showed that thirteen persons who were non-residents had voted and the judges of election having testified for whom the ballots of those persons were cast, the question was as to the legality of that testimony; on that point this court said: “Our Constitution and statutes (Sec. 3, art. 8, Constitution; Sec. 6995, R. S. 1899) expressly forbid election officers ‘to disclose how any voter shall have voted.’ But the voter there referred to is one who has voted when he had a right to vote, and not one who has voted in violation of the law. There is nothing in our law designed to guard the secrecy of a ballot that has been cast by one who had no right to vote. The law has no protection for a dishonest or illegal voter. Therefore, when it is first shown to the satisfaction of the court that a man has voted when he had no right to do so, it may be shown for whom he voted and his vote will be withdrawn from the candidate to whom it was given. ’’ That is the last utterance of this court on that subject and there is nothing in the reports to the contrary.
In the cases at bar the counsel on both sides have presented to the court an agreed statement of facts showing that certain persons voted at the November, 1910, election concerning whom certain facts appear in the evidence already taken. Counsel agreeing as to the facts, disagree as to the law applicable; counsel *584 for the contestants contending that those facts show that those persons were not legal voters, and therefore the contestants have a right to go to the poll hooks to get the voting numbers of those persons and then go to the ballots to see for whom they were cast. Counsel for contestees contend that those facts do not show that those persons were not legal voters and hence the contestants have no right to know; for whom they voted.
In my opinion it is the duty of this court to consider those points of contention now, and if the court should decide that the facts so shown impeach the legality of the voter it should make an appropriate order to ascertain for whom his ballot was cast, and if the. court should decide that the facts so shown do not impeach the legality of the voter, then it should say so and refuse to make the order and that would end the contests. The court is' as prepared now as it will ever be to decide whether the facts shown in evidence by the contestants is sufficient to impeach the validity of the ballots challenged, and no good can result to either party by delaying.