Elliott, &c. v. Burke, &c. (1) Was the election of the members of the school board held in November, 1901, by secret ballot void as contended by appellants? (2) If void, had the city council the right to fill the vacancies caused by said void election? (3) Did the action of McNeal, Moss and Jewett participating in the election estop the appellants from contending, in equity, that the election was void? We say the election was not void: (a) Because no voter was deprived of his vote. (b) Because no attempt was made to disqualify any person from voting. (c) Because the manner of voting did not affect the result, but the will of the people was clearly expressed without let or hindrance. 2. We contend that even if the election was absolutely void, the city council had the right to fill the vacancies, and that it has done so, carrying out the will of the people by electing exactly the same men who were elected by the people at the November election. 3. The proof shows that appellant, T. J. McNeal was the cause of the election being held in the manner it was held, and that the appellants, Moss and Jewett, in their petitions, requested the county clerk to put their names upon the ballot for secret election, and by these acts we contend they are estopped from coming into a court of equity and asking relief from their own acts. AUTHORITIES CITED. 1. was the election by secret ballot void? Moss v. Riley, 19 R., 993; Kentucky Statutes, secs. 3588 and 1446; Kentucky Constitution, secs. 144, 154, 155; Cynthiana v. Board of Ed., 21 R., 731; McCrary on Elections, (4th ed.) secs. 228, 167, 172; Andrews v. Saucier, 13 La. Ann. Rep., 301, &c.; 10 Am. & Eng. Ency. of Law (2d ed.), p. 708, 567, 690; People v. Porley, 80 N. Y., 624; Russel v. McDowell, 83 Cal., 77. 2. Had the council the right to fill the vacancy? Kentucky Statutes, secs. 3606, 3552. 3. Are the appellants estopped? Andrews v. Saucier, 13 La. Annual Rep., 302; 10 Am. & Eng. Ency. of Law (2 ed.), 714. OPINION OF THE COURT BY CHIEF JUSTICE GUFFY-REVERSING. The appellants were the acting trustees or members of the Vol. 113-31 Elliott, &c. v. Burke, &c. board of education of the city of Ludlow, a city of the fourth class. It appears that the appellees were elected by secret ballot at the November election, 1901, as trustees or members of the board of education of the said city. The appellants instituted suit in the Kenton circuit court to enjoin the appellees from interfering with them in the discharge of their duties as trustees aforesaid. The appellees also instituted an action against the appellants in the same court, claiming that they were the actual, duly elected and qualified trustees or members of the board, and seeking a mandatory injunction and other relief against these appellants. By agreement the cases were consolidated and heard together, and upon final hearing the circuit court adjudged that the appellees were entitled to the offices in question, and from that judgment this appeal is prosecuted. Various arguments are urged in support of the contention of the parties. It clearly appears that appellees were elected as members of said board by secret ballot, their names being, as we understand the record, placed on the regular ballots voted at the regular election for other offices. It is also in evidence that a very full vote was cast for trustees, and that the names of these appellants, or some of them, were also upon the ballots, and voted for at the same time; and the appellees received a majority of the votes cast, and the election commissioners gave them the certificate of election. It also appears that the city council, some time after the election, assumed to elect appellees to the said offices. It is argued for appellees that the appellants, having been voted for by secret ballot, and knowing that the election was being so held, and making no objection thereto at the time, are now estopped from questioning the validity thereof. It is also argued that the appellants were elected sometime before in the same manner, and accepted and entered upon Elliott, &c. v. Burke, &c. the discharge of their duties thereunder, and for that reason can not now be heard to assert a right to continue in office. We do not think either of these contentions is tenable. It is certain that the appellants were de facto officers in possession of the office and discharging the duties thereof, and were, as against persons having no legal right thereto. entitled to continue in office. Nor do we think that a party, by consenting or participating in a void election, deprives himself of his right to dispute the validity. A few men, or even the entire public, can not make valid an election held in direct violation of a mandatory statute. It seems to us that there are two vital questions involved. The first is whether or not members of the board of education in question can be elected by secret ballot. It seems to us that this question has been clearly decided in Moss v. Riley, 102 Ky. 1, 19 R., 993, 43 S. W., 421. The Constitution and statutes in relation to this question were fully considered by the court, and it was clearly held that trustees or members of the board of education in cities of the fourth class must be elected by vira voce voting. We quote as follows from the syllabus of the case supra: "Under the provisions of the charter for cities of the fourth class (section 3606, Kentucky Statutes), such cities each constitute one common school district, and as the charter for such cities does not provide the manner in which the members of its board of education shall be elected, and the common-school law (section 4434, Kentucky Statutes), provides that the vote in electing school trustees shall be taken rira roce, and as the members of the board of education perform the duties of Trustees, they should be elected in the same way. The whole question as to the manner of electing school trustees was left by the Constitution to the General Assembly. The provision in the charter for cities of the fourth class that Elliott, &c. v. Burke, &c. the members of the board of education shall be elected 'by the qualified voters of the city,' means those of the city who are qualified to vote under the general school law, which confers the right of suffrage on widows, etc., in such elections." It is said by appellees that this decision is not conclusive of the question, because in the case supra there was a controversy between persons claiming to be elected by riva voce vote and those claiming to be elected by ballot. But, in our opinion, that fact does not at all affect the decision as to the validity of an election by ballot. Nor is the opinion in City of Cynthiana v. Board of Education, 21 R.. 731 (52 S. W., 969), in conflict with the case supra. In the case last cited the trustees or board of education had been elected by ballot, and were engaged in the discharge of their duties, and the appellant in that case had refused to pay over certain moneys to the board of education, and the court held that the question of the election of the board could not be successfully attacked in such a proceeding; or, in other words, upon the record as presented it was the duty of the appellant to pay over to the appellee the money in question. In some respects the decision would seem to support the contention of the appellant in the case at bar. It is true that some statutes regarding the management, con Jucting, or ascertaining the result of an election has been held to be mandatory, but, if the statute requires an elec tion to be viva voce, such statute must, of necessity, be mandatory, and the holding of the same by secret ballot is in no sense a compliance with the statute. If the conten tion of appellees should prevail, and become the settled law of the State, it would follow that the parties at any election precinct might determine to hold an election riva voce, or else hold it by ballot, and each man prepare his own ballot; and, if there was a full vote, and no objection, and Elliott, &c. v. Burke, &c. no frand perpetrated, the returns must be accepted and counted the same as if the election had been held according to law. It would also follow that in Louisville, for instance, at some precincts the election for school trustees might be conducted by ballot, and at other precincts the vote might be counted vira voce; and the same may be said as to the different school districts throughout the State. Some might hold their elections by ballot and some viva voce. Mani festly, no such construction of the election law can be toler ated. In our opinion, the election of school trustees or menbers of the board of education held by secret ballot is ab solutely void. It therefore follows that the appellees acquired no right by virtue of the election held in November, 1901. The next question for decision is as to the effect of the action of the common council of Ludlow. As before stated, it is the contention of appellees that, if there was a failure to elect in November, the city council had the power to fill the vacancy; and we are referred to section 3606, Kentucky Statutes, in support of this contention. It will be seen from section 3588 that there may be maintained in cities of the fourth class a system of public schools at which all the children residing in the city between the ages of 6 and 20 may be taught at the public expense. It is further provided that the school shall be under the control of a board to be styled the "board of education," consisting of two trustees from each ward in the city, to be elected at the general November election, 1893, by the qualified voters of the city at large. Many other provisions are contained in the section, not necessary to mention. Section 3589 reads as follows: "Said board of education shall determine the qualification of its members. It shall have the power to fill, until the next general election, all vacancies in said board |