majority">WOODSON, J.

— This suit was begun in the circuit court of the city of St. Louis by the plaintiff against the defendant to contest the election of the latter to the office of constable in the Fourth District of said city. The judgment below was' for the plaintiff and the defendant appealed to this court.

At the November election in 1914, Charles H. Turpin, the plaintiff, and Floyd E. Bush were the Republican candidates and A. W. Powers and Lawrence Daly were the Democratic candidates for that office, this being one of the districts in which there are two justices and two constables to be elected. Upon the face of the returns Bush and Powers were elected. In due time Turpin brought his contest against Powers. On the contestant’s motion an order was made by the court on the Board of Election Commissioners of the city of St. Louis to open the ballot boxes and recount the ballots. In pursuance of the order of recount, the board prepared and *342filed in the circuit court a list of the votes, with the numbers thereon, in each precinct in the district, showing for whom such votes were cast, as well as a tabulated statement of the result. This also showed the plaintiff was duly elected to the office mentioned. When the case came on to be heard in the circuit court each ballot claimed by either party was taken up and considered, the court heard such testimony as was offered, and finally rendered a judgment holding the plaintiff had received the'majority of lawful ballots cast in the district and that he was lawfully elected to the office. The judgment followed the usual form and required the contestee to surrender the office, together with the records thereof.

Abstract I. Counsel for plaintiff insists that the judgment of the circuit court should be affirmed because the abstract of the record does not conform to the rules of this court. After a careful examination of the abstract, in connection with the -stipulations made between counsel and the documents filed in pursuance thereof, we are satisfied that there is no merit in this insistance and it is disallowed.

II. Counsel for defendant asks this court to reverse the judgment of ouster for the reason assigned that the circuit court had no jurisdiction to hear and try the cause. This position is stated in this language:

“Respondent has undertaken to prosecute, this election contest under authority of section 5924, Revised Statutes 1909, but that section enumerates and specifies 60 nomine the offices it was intended to cover, and the office of constable is excluded.”

Jurisdiction After a careful consideration of that statute we are satisfied that the position of counsel is correct, and ^ does n(A confer jurisdiction upon the circuit court to try a contested election case for- the office of constable; but counsel for plaintiff does not seem to question the soundness of that position, but bases the jurisdiction of the circuit court upon sections 7633 and 2757, Revised Statutes 1909. They read as follows:

*343“Sec. 7633. In the city of St. Lonis, the duties and services required by chapter 28, Revised Statutes of 1909, of the county clerk shall be performed by the register of said city, and those required to- be performed by the county court shall be performed by the mayor of said city, except in case of a tie or contested election, which shall be tried in "the circuit court; and, so far as applicable, said city shall be considered as a county; and likewise a district in said city shall be held to be the same as a township in said chapter.

“Sec. 2757. At the general election to be held in 1890, and at each general election every two years thereafter, the qualified voters of each township in every county in this State shall elect a constable, who shall be a resident of the township for which he is elected, and who shall hold his office for two years and until his successor be elected and qualified: Provided, that in townships that now contain or may hereafter contain a city of over one hundred thousand and less than three hundred thousand inhabitants, and which has been or may hereafter be divided into justice of the peace districts, the constabulary districts of said township shall be made to conform to and be coextensive with such justice districts; the county court shall appoint an additional constable for each of said districts, who shall, in addition to his other qualifications as herein provided, be a resident of the district for which he is appointed or elected, who shall hold his office until the next general election, at which time there shall be elected in all such townships a constable for each of said districts. The judges and clerks of election shall certify the same to the clerk of the county court, and in case of a tie or contested election, it shall be determined by that tribunal.”

In considering these statutes it should be borne in mind that when the county government of a part of St. Louis County was abolished and the city of St. Louis substituted therefor through the means of the Scheme and Charter, they were enacted as a part of the law carrying those changes into effect and prescribing what *344existing duties should be performed by State and city officers which were formerly performed in that territory by State and county officers. By reading the first section quoted it will be seen that the design of the Legislature in enacting the statute was, not to create new duties, but only to designate the officers whose duty it was made to perform the services which had been previously created by chapter 28, Revised Statutes 1909. That statute in express terms provides that within the city of St. Louis all of the services required to be performed by the county clerk shall be performed by the city register and those required to be done by the county court shall'be performed by the mayor of the city except in case of a tie or contested election, which shall be tried in the circuit court.

It will be observed that this statute did not provide for contesting the election of a constable or any other officer, but simply that the- trial in such cases shall be had in the circuit court. In other words, that statute does not create an action to contest the election of a constable in the city of St. Louis, but simply provides that such action (if it exists) shall be brought in the circuit court. That is too clear for argument; and if the action exists it must be found in some other statute of the State.

Nor does section 2757, before quoted, have any application to the case at bar. That section expressly limits its operation to townships having a city of over one hundred thousand and less than three hundred thousand inhabitants. That statute could only apply to St. Joseph and Kansas City and not -to the city of St. Louis, for we will take judicial notice of the fact that the latter city has a population far in excess of three hundred thousand, yea twice, if not three times, that number.

A similar question came before this court in the' case of State ex rel. v. Hopkins, 87 Mo. 519, l. c. 527. In that case the Legislature, without conferring jurisdiction upon justices of the peace to try cases enforcing tax liens in favor of the State, simply assumed they *345possessed such jurisdiction and enacted that “in all eases before justices of the peace where suit is brought for the enforcement of liens as above, where summons shall have been issued against any defendant,” he not having been found, then an order of publication to issue, etc. In discussing that question the court, in speaking through Norton, .T., said: “The amendment thus made does not confer any jurisdiction - upon justices of the peace, but simply provides the mode of ■ exercising a jurisdiction which the General Assembly took for granted had been conferred, but which in fact had not been conferred,” etc. The court then held the judgment void because the justice had no authority to try the cause. The same doctrine is announced in the following cases: State ex rel. v. Slover, 126 Mo. 652, l. c. 663-4; Postmaster General v. Early, 12 Wheat. l. c. 148, opinion by Chief Justice Marshall.

Under this view of the case as previously stated the circuit court of the city of St. Louis had no jurisdiction over the subject-matter of this suit.

III. Independent of the foregoing, I have carefully gone through this record, read the briefs and arguments of counsel and investigated the authorities cited, and as a result thereof I am clearly of the opinion that there is no merit in plaintiff’s case and that the defendant was duly elected to the said office of constable.

We have been cited to no other statute creating this character of action, or, as counsel for defendant puts it, providing any machinery for such a contest; nor have we been able to find such a statute after a careful search therefor.

For the reasons stated the judgment is reversed and the petition for the contest is dismissed.

Walker, J., concurs; Graves, C. J., concurs in separate opinion in which all concur.

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