"(1) It is conceded that a proper petition was presented to the board of aldermen of the city of Kirkwood, under section 3028 of the Missouri statutes (1899) for an election to determine whether or not spirituous or intoxicating liquors shall be sold within the limits of said city. Upon this petition the said board on the 8th day of May, 1903, made and entered in the record of its proceedings an order as follows: The matter of local option petition was taken up, and on motion a special election was ordered to be held on the 13th day of June to vote on the question of local option, and the clerk was instructed to publish the necessary legal notices. There was no other or further order or resolution, or any bill or ordinance directing such election.
"(2) In pursuance of such order the city clerk published a notice, signed by himself, that such special election would be held on the 13th day of June, 1903, `in pursuance to article 3, c. 22, of the Revised Statutes of 1899 of the state of Missouri, to determine whether or not spirituous or intoxicating liquors shall be sold within the limits of the city of Kirkwood, Missouri,' a copy of which said notice is in evidence. This notice was published in the Weekly Courier, a newspaper published in the said city of Kirkwood and St. Louis county, Missouri, for four consecutive weeks; the last insertion being on the 6th day of June, 1903.
"(3) Since February 19, 1900, there has been in force in said city an ordinance entitled `An ordinance relating to general city elections.' This ordinance contains the following (among other) provisions:
"Sec. 4. (In substance.) At least two weeks before an election, the board of aldermen shall, by ordinance, or otherwise, fix the place of holding the election, and appoint four judges of election for each ward.
"Sec. 5. (In substance.) The legal voters assembled at the opening of the polls may appoint a judge or judges to act in the place of those failing to appear.
"Sec. 7. (In substance.) Four clerks of election shall be appointed at the same time and in the same manner.
"`Sec. 12. The judge to whom any ticket shall be delivered shall, upon receipt thereof, pronounce in an audible voice the name of the voter; and if the judges shall be satisfied that the person offering to vote is a legal voter, his ticket shall be numbered and placed in the ballot box without inspecting the names written or printed thereon, or permitting any other person or persons to do so; and the clerks of election shall enter the names of voters and the numbers of the ballots in the order in which they were received in the pollbooks; and no ballot not so numbered shall be counted. At the close of the polls the pollbooks shall be signed by the judges and attested by the clerks, and after the names therein contained shall be counted, as provided, the number shall be set down at the foot of the pollbooks, in the manner provided in the form of the pollbooks.
"`Sec. 13. At the close of each election the judges shall transmit one of their pollbooks to the city clerk within two days thereafter; if the pollbooks be not returned in the time provided, the city clerk shall have power to send the marshal or a messenger for said books; the other pollbook shall be retained in the possession of the judges of election— open to the inspection of all persons. The city clerk shall within two days thereafter take to his assistance one member of the board of aldermen from each ward, and examine the pollbooks and ascertain therefrom the votes given to each candidate, and as soon thereafter as practicable, give to those having the highest number of votes, commissions under the seal of the city, signed by the mayor, and designating their respective offices; and he shall in examining the returns, do it publicly, in the police court room of this city, first giving notice of the same by public proclamation at the door of the courtroom.'
"Sec. 16. (In substance.) The city clerk shall deliver a copy of Ordinance No. 43 to one of the judges in each ward at least one day previous to the election.
"(4) An ordinance was passed by said board of aldermen, June 6, 1903, being Ordinance No. 211, designating the polling places for said election, being one in each of the four wards of said city, and naming four judges and four clerks of election for each polling place. This was the only act or proceeding of said board designating such polling places, judges, and clerks.
"(5) The city clerk failed to notify the judges and clerks designated three days before the day of election, although required by section 9 of said ordinance to so notify them. It is not shown that they did not have notice of their appointment, or that failure of any of them to attend resulted in the selection of any improper person for those positions. This failure of the clerk was not specified as a ground of contest in either of the notices.
"(6) The city clerk failed to deliver a copy of Ordinance No. 43 to any judge of election one day previous to the election, but did supply the judges of election at each polling place with one copy thereof, with the pollbooks and other papers necessary for holding said election, at or shortly before the time of opening the polls at each polling place.
"(7) On June 6, 1903, the board of aldermen made and caused to be entered in the record of their proceedings the following order: `The clerk was instructed to procure 1,500 ballots as provided by law for the election.'
"(8) The said special election was held on
the 13th of June, 1903, during the hours required by law, and at the polling places designated in said Ordinance No. 211, and was conducted according to section 12 of said Ordinance No. 43, and in the manner required for holding elections by article 1 of chapter 60 of the Revised Statutes of Missouri of 1889, and section 3, p. 67, Laws 1895, as amended by Laws 1899, p. 92, except in so far (if at all) as the following facts, or any of them, may show to the contrary: In the First Ward, three of the judges and two of the clerks designated by the board failed to serve, and the qualified voters present at the opening of the polls elected others to take their places, and they served, so that four judges and four clerks served as such at the polling place in said ward. In the Second Ward all the appointed judges and clerks served. In the Third Ward all the appointed judges and clerks served. In the Fourth Ward three of the judges and two of the clerks appointed by the board served, but the others failed, and the qualified voters present at the opening of the polls elected others in their places, who did serve, so that four judges and four clerks served as such at the polling place in said ward. The selection of judges and clerks was such that one-half of each at each poll were upon one side and one-half upon the opposite side of the question voted upon at said election, and, so far as appears, the judges and clerks who conducted the election remained so evenly divided during the election. The city clerk furnished, with the polling books, before the opening of the election, tickets for use at the election, all being upon white paper, or uniform size, about 3 or 4 inches long and about 2½ or 3 inches wide, with the printed matter in small capital letters printed upon one side of, and nearly in the center of, each ticket; one-half of said tickets having printed on the same words, `For the sale of intoxicating liquors.' and the other one-half of the same the words, `Against the sale of...
