?l4 'i.'HE SUPKD.IE COURT OF THE STATE OF MONTANA 

THE S'IAIJ~ 3P YONTAIa ex rel. WILLIAM F. CASHMOKE, M.D. , and 

STANLEY "C . BURGE3, 

Rela tor, 

FOKKES'L H. ANDERSON, as GOVERNOR OF THE STATE OF MONTANA, 

Respondent. 

j)r igi~id l Proceedings. 

"ourisel of Record: 

For Relators : 

Paul T. Keller argued, Helena, Montana, 

Paul T. Keller, Paul F. Reynolds, Charles E. Petaja 

and P. Keith Keller, Helena, Montana. 

Mcrrow, Nash and Sedivy, Bozeman, Montana, 

{dmund P. Sedivy argued, Bozeman, Montana. 

Duuglas Freeman argued, Hardin, Montana. 

?. F. Hibbs argued, Billings, Montana, 

For Pespondent : 

Forrest H. Anderson, Governor, Helena, Montana. 

'tobert L. Woodahl, Attorney General, Relena , Montana. 

Charles C. Lovell, Assistant Attorney General, Great Falls, 

Montana, arsued. 

William Jensen argued, Assistant Attorney General, Helena, 

Montana. 

I' ,;ugenc H, Mahoney argued, Thompson Falls, Montana. 

Randall Swanberg argued, Great Falls, Montana. 

James E. Murphy argued, Kalispell, Montana. 
Amicus Curiae : 

John A. Layne III argued, Helena, Montana. 

Filed: AUG 18 I~ 

Submitted: July 17, 1972 

~ecided: AUG 18 

I 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court, 

This original proceeding seeks a judicial determination 

by this Court whether the proposed 1972 Montana Constitution 

was approved and adopted by the electors at the special election 

of June 6, 1972. 

The essential facts are undisputed. The 1969 Montana 

Legislature provided for a referendum election on the calling 

of a constitutional convention. Article XIX, Section 8, Montana 

Constitution; Chapter 65, Session Laws 1969. This election was 

held on November 3, 1970, at which time the electors approved 

the calling of a constitutional convention to revise, alter, 

or amend the present Montana Constitution. Thereafter, the 1971 

Legislature enacted the necessary enabling act for such constitutional convention. Chapter 1, Extraordinary Session Laws 1971. 

The delegates to the constitutional convention were duly elected 

at the election held op November 2, 1971, The convention convened, held hearings, debated, and eventually agreed upon a 

proposed 1972 Constitution to be submitted to the electors for 

their approval or rejection at a special election to be held in 

conjunction with the primary election on June 6, 1972. 

The separate constitutional election ballot is herewith 

set forth: 
'' INSTRUCTIONS TO VOTERS: PLACE AN "X" IN THE BOXES WHICH 

EXPRESS YOUR PREFERENCES. THE FULL TEXT OF THE PROPOSED 

CONSTITUTION AND THE SEPARATE PROPOSITIONS IS AVAILABLE FOR 

INSPECTION AT YOUR POLLING PLACE. IF THE PROPOSED CONSTITCPTlON FAILS TO RECEIVE A MAJORITY OF THE VOTES CAST, ALTERNATE ISSUES ALSO FAIL. 

OFFICIAL BALLOT 

PROPOSED CONSTITUTION 

PLEASE VOTE ON ALL FOUR ISSUES 

1. 

(Vote for One) 

FOR the proposed Constitution. 

0 AGAINST the proposed Constitution. 

The proposed Constitution will include a bicameral (2 houses) legislature unless r mrjority of those voting in this election vote for a unicameral ( 1 house) legislature in Issue 2. 

2. 

(Vote for One) 

ZA FOR a unicameral (1 house) legislature. 

n 

2B. FOR a bicameral (2 houses) legislature. 

3. 

(Vote for One) 

n 

] 3A FOR allowing the people or the legislature 

to authorize gambling. 

a 3B AGAINST allowing the people or the legislature 

to authorize gambling. 

4. 

(Vote for One) 

n 

( 4A. FOR the death penalty. 

48 AGAINST the death penalty. H u 
Following he election, the election returns were canvassed by the state canvassing board and the results of that 

canvass were contained in a certificate of the abstract of the 

voces by the Secretary of State as follows: 

"FOR the proposed Constitution. 116,415 

"AGAINST the proposed Constitution. 113,883 

"ZA, FOR a unicameral (1 house) Legislature 95,259 

"2B. FOR a bicameral (2 houses) legislature 122,425 

"3~, FOR allowing the people or the 

legislature to authorize gambling. 139,382 

"35. AGAINST allowing the people or the 

legislature to authorize gambling. 88,743 

"4~ FOR the death penalty. 

"40 AGAINST the death penalty. 

"~otal number of electors voting. 237,600" 

Thereupon the Governor proclaimed the proposed 1972 

Montana Gonstitution approved and adopted. 

Relators filed the instant action as an original proceeding 

in this Court seeking a declaratory judgment that the proposed 

1972 Montana Constitution was not ratified and adopted because 

11 i.t was not approved by a majority of the electors voting at 

the election" as required by Article XIX, Section 8 of the present 

Molrtana Constitution. Relators also sought appropriate remedial 

writs ancillary thereto, The Governor was named as sole defendant 

in relators ' action. 

This Court accepted original jurisdiction, ordered the 

;rparate actions filed by the two relators consolidated, and set 

she consolidated action for adversary hearing. Prior to the 

Ledring an answer was filed by the Governor, a complaint in 

inicervention was filed by six individuals, the Attorney General 

intervened as an additional respondent and filed a separate answer, and answers were filed to intervenorsf complaint. In all, 
cwenty written briefs were filed by the parties, intervenors, 

and amici curiae. Oral argument was heard on behalf of all 

interested parties, including amici curiae. This case was 

exhaustively briefed and argued, 

The ultimate issue for determination can be simply 

stated: Was the proposed 1972 Montana Constitution "approved 

by a majority of the electors voting at the election" of June 6, 

1972, as required by Article XIX, Section 8, of the present 

Montana Constitution? 

The principal contentions of relators and others who 

contend the proposed 1972 Montana Constitution did not receive 

the required majority approval can be summarized in this manner: 

They contend the phrase "approved by a majority of the electors 

voting at the election" as provided in Article XIX, Section 8, 

of the present Montana Constitution means a majority of the 

electors who cast a valid ballot on any of the four questions on 

the ballot; that the quoted language speaks for itself and there 

is nothing for this Court to construe; that the legislature, the 

constitutional convention commission, and the constitutional 

~mvention itself all understood what the constitutional language 

meant as evidencedby their official acts; and their own interpretation can not be changed now after the election has been held 

dnd the vote has become known. They also point out that the 

Secretary of state's certification of 237,600 as the total number 

of electors voting is presumptively correct by statute and as 

there is nothing to indicate such figure is incorrect, the presuinption controls. They conclude that because the provisions 

the present Constitution on determining approval. or rejection 

-tL the proposed constitution are mandatory and exclusive, and 

5rcause 237,600 electors voted at the election and less than half 

~f that number (116,415) voted for the proposed 1972 Constitution, 

it lacked the required majority approval to take effect. 
On the other hand, the basic thrust of respondents and 

those who contend the proposed 1972 Constitution received the 

required majority approval and became effective according to its 

provisions can be summarized in these words: They take the position 

that the phrase "approved by a majority of the electors voting 

at the election" means a majority of electors voting on approval. 

13r rejection of the proposed 1972 Constitution, and does not 

include the electors voting only on one or more of the alternative proposals. 

Respondents argue that there is no valid basis for considering nonvotes on approval or rejection of the proposed cmstitution as votes against its approval, which would be the effect 

of including as part of the required majority those ballots containing a vote on one or more of the alternative questions which 

did not contain a vote "for" or "against" the proposed c~nstitution 

itself. They contend the figure of 237,600 represented as the 

total number of electors voting in the Secretary of State's 

certificate is incorrect; that in fact it represents the total 

number of ballots issued which includes blank ballots, totally 

void ballots, partially void ballots, and the like; that such 

ballots cannot be counted in determining the total number of 

electors voting at the election in computing the required majority 

vote, but only valid ballots cast can be counted, The Attorney 

~etleral alternatively argues that if the required majority means a 

gnajority of the electors voting on any of the four issues, then 

rhe evidence before this Court is insufficient to make that deter- 

(nirlation; or this Court should use the issue receiving the largest 

number of votes (the approval or rejection of the proposed constitution) as a basis for determining the necessary majority; or 

oiherwise those voting in favor of the proposed constitution are 

denied "due process" and "equal protection of the laws" by dilution 
of their vote by those not voting on that question in contravention of the Fourteenth Amendment to the United States Constitution. 

At the outset we need not concern ourselves with any 

technical legal question concerning the parties, procedure, the 

acceptance of original jurisdiction by this Court, and related 

matters. This Court has previously accepted jurisdiction of this 

cause, no issues have been raised by the parties on these subjects, 

and such matters are irrelevant to our decision here. Instead, 

we direct our exclusive attention to determination of the substantive issue here involved. 

Neither do we consider the pleading conflict raised by the 

Attorney General concerning the meaning and effect of the Secretary 

of State's certification of the "total number of electors voting" 

germane. The facts speak for themselves and only legal questions 

remain for our determination. 

Directing our attention to the substantive issue, we observe 

that Article XIX, Section 8, of the present Montana Constitution 

provides for a separate election where a constitutional convention 

submits a proposed new constitution to the voters for their 

approval or rejection. We quote Article XIX, Section 8, in full, 

!:he underlined words being the portion thereof which we are called 

upon to constrrie: 

11 The legislative assembly may at any time, by a 

vote of two-thirds of the members elected to each 

house, submit to the electors of the state the 

question whether there shall be a convention to 

revise, alter, or amend this constitution; and if 

a majority of those voting on the question shall 

kclare in favor of such convention, the legislative 

~ssembly shall at its next session provide for the 

calling thereof. The number of members of the convention shall be the same as that of the house of 

representatives, and they shall be elected in the same 

'uanner, at the same places, and in the same districts. 

rhe legislative assembly shall in the act calling the 

-onvention designate the day, hour and place of its 

i~eeting, fix the pay of its members and officers, and 

provide for the payment of the same, together with the 

~lecessary expenses of the convention. Before proceeding, 
the members shall take an oath ro stppowt the constitution of the United States and of the state of Montana, 

and to faithfully discharge their duties as members 

3f the convention. The qualifications of members shall 

3e the same as of the members of the senate, and vacancies 

occurring shall be filled in the manner provided for 

ifilling vacancies in the legislative assembly. Said 

convention shall meet within three months after such 

dlection and prepare such revisions, alterations or 

dmendments to the constitution as may be deemed necessary, which shall be submitted to the electors for their 

ratification or rejection at an election appointed by 

the convention for that purpose. not less than two nor 

illore than six months aftkr the adjournment thereof; and 

unless so submitted and approved by a majority of th7 

electors voting at the election, no such revision, 

alteration or amendment shall take effect,"(Emphasis 

added). 

The crux of the issue is whether the underlined quoted language 

requires a majority of electors voting on approval or rejection of 

the proposed constitution or whether it requires some other majority. 

Relators and others espousing their vi.ew contend that the 

quoted constitutional language is clear and ~7e must declare what 

it plainly says. They argue that the use of different language 

in various election provisions of Sections 8 and 9 of Article XIX 

indicates an intent by the framers of the Montana Constitution to 

require something more than a simple majority to approve a proposed 

constitution submitted by a constitutional convention. They conclude that a majority of the total number of electors voting on 

any of the four questions on the ballot is required to approve 

the proposed 1972 Montana Constitution. 

We note that all parties agree that the act of voting 

consists of marking a valid ballot that is deposited in the ballot 

box and counted in the election. Goodell v. Judith Basin County, 

70 Mont. 222, 224 P. 1110; Maddox v. Board of State Canvassers, 

116 Mont, 217, 149 P. 2d 112, stand for the proposition that voting 

is the affirmative act of marking the ballot and depositing it 

in the ballot box in conformity with the election laws. Neither 

signing the registry of voters, nor being issued a ballot, nor 

having one's name appear on the poll book is enough, standing 

alone, to constitute the act of voting. 
The issue before us is a narrow one but its solution is 

noc simple. We recognize that there are two distinct and opposing 

Lines of authority in other jurisdictions having the same or 

similar constitutional language. Earlier cases are collected in 

the Annotation appearing at 131 A.L.R. 1382. For examples of later 

cases see: State ex rel. Witt v. State Canvassing Board, 78 N.M. 

582, 437 P.2d 143; In re Todd, 208 Ind. 168, 193 N,E. 865; 

Stoliker v. Waite, 359 Mich. 65, 101 N.W.2d 299. These.cases are 

cited merely to indicate the two conflicting lines of authority 

but are not relied upon or determinative of our decision in the 

instant case, We prefer to look to Montana statutes and cases 

for guidance in interpreting the meaning of our own constitutional. 

provisions. 

The rules of statutory construction are equally applicable 

to interpretation of the meaning of provisions in the Montana 

Constitution. State ex rel. Gleason v. Stewart, 57 Mont, 397, 

188 P. 904; Vaughn & Ragsdale C0.v. State Board, 109 Mont. 52, 

96 P.2d 420. In construing the meaning of a statute, the intent 

of the framers, i.e., the legislature, is paramount. Section 

93-401-16, R.C.M. 1947, In determining legislative intent, 

resort must first be made to the plain meaning of the words used. 

Dunphy v. Anaconda Co., 151 Mont.76, 438 P.2d 660, and Montana 

cases cited therein. In construing a statute, the function of 

the court is simply to ascertain and declare what is in terms or 

substance contained therein, not to insert what has been omitted 

nor to omit what has been inserted. Section 93-401-15, R.C,M. 1947, 

A statute must be read and considered in its entirety and the 

Legislative intent may not be determined from the wording of any 

particular section or sentence, but only from a consideration of 

the whole, Home Bldg. & Loan v. Bd. of Equalization, 141 Mont. 

113, 375 P.2d 312. 
Applying these rules to the quoted constitutional language, 

a Literal construction would seem to support relators. The quoted 

I I language speaks of approval by a majority of electors voting at 

the election". But voting on what? The constitutional language 

does not expressly answer this. However, the substance of the 

language of the entire provision indicates that it refers to voting 

on approval or rejection of the proposed constitution, and it is 

to that question that the quoted language is directed. There is 

absolutely nothing to indicate that the framers had in mind a 

multiple issue ballot wherein contingent alternative issues would 

be submitted to the electors in addition to the primary question 

of approval or rejection of the proposed constitution itself, 

The best that can be said for relators is that the quoted language 

is ambiguous when read in connection with the entire constitutional 

provision relating to submission of the proposed constitution to 

the electors. 

We are mindful of the principle that when a statute 

is equally susceptible of two interpretations, one in favor of 

ndtural right and the other against it, the former is to be 

adopted. Section 93-401-23, R.C,M. 1947. Majority rule i-s a 

rratural right and fundamental tenet of government in a democracy, 

and only the strongest evidence that something more than a majority, 

i-.e., an extraordinary majority, is required in a given situation 

will suffice. Here no such evidence exists. 

Nor, in our view, is the difference in language employed 

in different election provisions of Article XIX controlling, or 

indicative of an intent by the framers of our Constitution to 

require approval of a proposed constitution by an extraordinary 

,xajority. The first part of Section 8 relating to calling a 

11 dc~nstitutional convention requires a referendum vote by a majority 

sf those voting on the question"; Section 9 dealing with submis- 

;ion of individual constitutional amendments by the legislature 
requires referendum to the qualified electors a~xd approval 

II by a majority of those voting thereon", That part of Section 8 

we are called upon to construe requires submission of the proposed 

11 constitution to the electors at an election appointed by the 

convention for that purpose, not less than two nor more than 

six months after the adjournment thereof" and approval by "a 

majority of the electors voting at the election". 

The reason for the difference in language between these 

three provisions is readi-ly apparent. The referendum to the voters 

on the calling of a constitutional convention is normally held 

at a general election as was done here; consequently, the phrase 

I I requiring a majority of those voting on the question" was 

employed to distinguish the constitutional referendum question 

from other general election issues. The language of Section 9 

m:el.ating to submission to the electors of individual constitutional amendments proposed by the legislature must be at a general 

election where up to three such amendments can be submitted at the 

I I same election, thus the language approved by a majority of those 

voting thereon" is used. The language of Section 8, that we 

mst construe --- I I a majority of the electors voting at the 

election" was used because a separate election is required for 

dpproval or rejection of a constitution proposed by a constitutional convention and there is no need to differentiate between 

approval or rejection of a proposed constitution at such separate 

dlection and issues at some other election held at the same time. 

Accordingly, these differences in the language employed by the 

tramers of our Constitution in the different election provisions 

qf Sections 8 and 9 of Article XIX are no evidence of a differing 

il~ilent on the part of the framers, but are the result of inherent 

ct311stitutional differences in the elections themselves, which 

L~L turn requires different language. 
Finally, iL the framers 0.2 Cunstitution had intei1Jec3 

CL) require an extraordinary majority for approval of a proposed 

t:onstitution submitted by an elected constitutional convention, 

':hey could easily have said so. Our Constitution contains severai 

provisions requiring extraordinary majorities, but wherever such 

requirement is imposed the language is loud, clear and unaml~iguous. 

Examples of such provisions are: Changing the seat of government 

cequiring "a vote of two-thirds of all the qualified electors 

af the state", (Article X, Section 3); overriding the governor's 

veto of a legislative act which requires that such act shall 

"be repassed by two-thirds of both houses" in order to become 

2Efective, (Article V, Section 40) and a specific detailed prozedure therefor (Article VII, Section 12); submission by the 

legislature to the electors the question of calling a constitutional 

I I convention which requires a vote of two-thirds of the members 

elected to each house", (Article XIX, Section 8); submission by the 

Legislature to the electors of individual legislative proposed 

constitutional amendments which require a vote of "two-thirds of 

rile members elected to each house", (Article XIX, Section 9). 

We must also consider the effect of requiring an extra- 

~rdinary majority in an election by counting the electors who 

~ote on issues other than approval or rejection of the proposed 

;onstitution. In 18 counties of this state more electors voted 

<Jn the gambling issue than voted on approval or rejection of the 

proposed constitution, If we interpret the constitutional prosision in question as requiring the inclusion of these nonvoters 

?>~i the proposed constitution in determining the required majority 

:or its approval, we are in effect holding that the framers of our 

donstitution intended to give such abstainers the status of 

 lectors voting against the proposed constitution. This we refuse 

to do in the absence of a clear and unmistakable requirement of 

an extraordinary majority vote. 
Additionally, we must consider the policy and philosophy 

of government contained in our Constitution as enunciated in 

numerous cases including Tinkel v. Griffin, 26 Mont, 426, 431, 

68 P. 859. There the Court said: 

11 The expression 'majority of the electors thereof 

voting at an election,' etc., clearly means a 

majority of those who vote, of 

all of the electors of the county, or of those who 

vote upon any other issue, at the same or some other 

time." (Emphasis added). 

The philosophy of our Constitution was further explained 

in this language from Tinkel: 

"It is the theory of our government that those 

electors control public affairs who take a sufficient interest therein to give expression to their 

views. Those who refrain from such expression are 

deemed to yield acquiescence, 

"In a recent case the court of appeals of Kentucky, 

having under consideration a similar constitutional 

;~rovision, said: '1t is a fundamental principle in 

,>ur system of government that its affairs are controlled by the consent of the governed, and, to 

that end, it is regarded as just and wise that a 

majority of those who are interested sufficiently 

LO assemble at places provided by law for the purpose shall, by the expression of their opinion, direct 

 he manner in which its affairs shall be conducted. 

When majorities are spoken of, it is meant a majority 

af those who feel an interest in the government, and 

who have opinions and wishes as to how it shall be 

conducted, and have the courage to express them. 

Lt has not been the policy of our government, in order 

to ascertain the wishes of the people, to count those 

who do not take sufficient interest in its affairs 

to vote upon questions submitted to them, It is a 

rilajority of those who are alive and active, and express their opinion, who direct the affairs of the 

government, not those who are silent and express no 

opinion in the manner provided by law, if they have 

any. Before reaching a conclusion that those who 

framed our fundamental law intended to change a wellsettled policy by allowing the voter who is silent 

dnd expresses no opinion on a public question to be 

counted, the same as the one who takes an interest in 

3nd votes upon it, we should be satisfied that the 

Language used clearly indicates such a purpose, t 

(Montgomery County Fiscal Court v. Trimble, 47 SOW. 

!73, 42 L.R.A. 738.)" 

This Court reaffirmed the rule of Tinkel in Morse v. 

Srasiitr Sounty, 44 Mont. 78, 119 P. 286. 
We consider the constitutional philosophy expressed therein 

concerning the Montana Constitution as valid today as it was when 

*riginally expressed three generations ago. We extend that 

constitutional philosophy to the instant case involving Article 

the is sue 

XIX, Section 8, and/multiple/election here involved. Here, we 

are simply not satisfied that the framers of our Constitution 

intended to require more than a simple majority vote on approval 

of the proposed constitution. 

Accordingly, we hold that "approval by a majority of electors 

voting at the election'' as used in Article XIX, Section 8, of the 

Montana Constitution means approval by a majority of the total 

number of electors casting valid ballots on the question of 

approval or rejection of the proposed 1972 Montana Constitution. 

We hold that it does not refer to or include those electors who 

failed to express an opinion by a vote on that issue. The Secretary 

of State's certificate shows 116,415 votes in favor of the proposed constitution and 113,883 votes against the proposed constitution and no one contends these figures are incorrect, As 

these figures carry a presumption of correctness by statute, 

section 93-1301-7(15), R.C,M, 1947, and as there is nothing to 

indicate otherwise, we hold that the proposed 1972 Montana Constitution was approved by the required majority and the over nor's 

proclamation thereof was correct. 

Even under relators' interpretation of the constitutional 

requirement in question which we expressly reject, relators still 

cannot prevail. Relators would require an extraordinary majority 

to approve the proposed 1972 Montana Constitution, i.e., a 

ri~ajority of the total number of electors voting at the special 

constitutional election on any issue. The Secretary of State's 

certificate of the abstract of votes as determined by the state 

11 canvassing board shows Total number of electors voting. 237,600" 

which relators contend must be accepted as correct by statute. 
This figure is clearly incorrect even under relators ' interpretdtion of Article XIX, Section 8. 

The Secretary of State by letter dated June 2, 1972, 

i-ns~iucted the county clerks and recorders of each county to 

''enter the total number of electors who are listed on the poll 

books for the separate election on the proposed c'onstitution on 

the front of the abstract book for that election". The affidavit 

of the members of the state canvassing board indicates that 

the phrase "'Total number of electors voting', as used in said 

canvass and certificate, refers to the total number of electors 

dppearing at the polls and receiving ballots, plus the number 

VJ~ electors receiving and re turning absentee ballots. " The 

~2fidavit of the Secretary of State is to the same effect, 

An "elector" is a person possessing the legal qualifica5~'~s that entitle him to vote. State ex rel. Lang v. Furnish, 

$3 Mont. 28, 134 P, 297. The word "voting" means the affirmative 

ac; of marking one's ballot properly and depositing it in the 

bdLlot box in conformity with the election laws. Goodell v. 

~dith Basin County, 70 Mont. 222, 224 P. 1110; I4addox v. Board 

<J: State Canvassers, 116 Mont, 217, 149 P.2d 112. Thus "electors 

~oting in the election" within the meaning of Article XIX, Section 

3, of the Montana Constitution means those persons entitled to 

vote who cast a properly marked ballot which is counted in the 

election. Electors casting blank ballots, unintelligible ballots, 

I I fuuled, void, or illegal ballots are not included as electors 

vvting in the election" because their ballots are not entitled 

to be counted in the election. See section 23-4002(4) and 

;ection 23-4003(5), R.C.M. 1947; Peterson v. Billings, 109 Mont. 

390, 96 P.2d 922; Heyfron v. Mahoney, 9 Mont. 497, 24 P. 93. 

L'hus, it is not the total number of electors appearing at the polls 

and receiving ballots as listed in the poll books that constitutes 

the total number of "electors voting in the election", but the 
idid1 number of electors casting properly rnarked ballots that 

Ire counted in the election. Accordingly, the figure of 237,600 

!abeled "total number of electors voting at the election" on the 

Secretary of State's certificate is demonstrably incorrect, and 

the disputable statutory presumption of correctness of such 

figure (Section 93-1301-7(15)) must yield to the facts. 

What then, under relators ' interpretation of Article XIX, 

Section 8, is the correct figure on the total number of electors 

voting at the election? We can make that determination on the 

~uaterials before us. If we take the total number of electors 

wha cast ballots that were counted on the issue receiving the 

iargest total vote, this should approximate the total number of 

electors voting in the election. On a statewide basis, the issue 

of approval or rejection of the proposed constitution received 

the highest total. vote, 116,415 "for" and 113,883 "against", or 

total vote of 230,298. 

However, the Secretary of State's printed report of the 

sificial canvass, county by county, discloses that the electors 

in 18 of Montana's 56 counties cast a higher total vote on the 

gambling issue than on the issue of approval or rejection of the 

proposed constitution, In those 18 counties 290 more electors 

cast valid votes that were counted on the gambling issue than 

upon the issue of the proposed constitution; no other issue on 

the ballot in the special constitutional election received more 

~otal votes cast and counted in any county, with this exception. 

l'hese 290 electors must be added to the statewide total of 

eiectors voting on approval or rejection of the proposed constitution (230,298) in order to get the total number of electors 

voring in the election, 230,588. As more than one-half of 

this 230,588 figure voted "for" the proposed constitution (116,415), 
"a majority of the electors voting at the election" voted for 

the proposed 1972 Montana Constitution, even under relatorsf 

interpretation of Article XIX, Section 8, of ~ontana's present 

Cunstitution. 

The other issues raised not being germane to our decision 

herein they need not be discussed nor determined in this opinion, 

Associate Justice 

We Concur: 

-I_-_---------------------------- 

-Chief Justice 

................................. Associate Justices. 
Xr. Chief Justice James T. Harrison and Mr. Justice Wesley 

Castles dissenting: 

We dissent. 

The majority opinion states h he crux of the issue is 

whether the underlined quoted language requires a majority of 

electors voting on approval or rejection of the proposed constitution or whether it requires some other majority." We would 

hold that the quoted language "a majority of the electors voting 

at the election", means just what it says. The majority opinion 

goes on to say h here is absolutely nothing to indicate that the 

framers had in mind a multiple issue ballot wherein contingent 

alternative issues would be submitted to the electors in addition 

to the primary question of approval or rejection of the proposed 

constitution itself. The best that can be said for relators is 

that the quoted language is ambiguous when read in connection 

with the entire constitutional provision relating to submission 

of the proposed constitution to the electors. r I 

The majority opinion then goes on to say the language 

is not ambiguous but is clear, and that the reason for the difference in language between the three provisions in Article XIX, 

I I Sections 8 and 9 of the Montana Constitution is readily apparent". 

This is the fourth case to be before this Court involving 

izhe effort to amend, revise, or alter the Constitution of this 

state. The interpretation and language of each of the previous 

three cases was consistent. But now, we depart from that consistency. 

The three previous are: 42nd Leg. Assembly v. Lennon, 156 Mont. 416, 

427, 431, 481 P.2d 330; Mahoney v, Murray, Mon t . , 496 

P.2d 1120, 29 St.Rep. 289; State ex rel. Kvaalen v. Graybill, 

--A 

Mont . , 496 P.2d 1127, 29 St. Rep. 313. 

In Lennon, Mr. Justice Haswell had this to say: 
It kt issue is whether the phrase requiring that 

I constitutional delegates be elected in the same 

s members of the house of representatives 

appearin nanner /~rticle XIX, section 8 of the Constitution 

refers only to constitutional requirements for the 

dlection of state representatives, or whether it encompasses both constitutional and statutory require- 

~ients for election of state representatives. We hold 

1 chat the phrase elected in the same manner' means 

~xactly what it plainly says---- that constitutional 

delegates are required to be elected by the same 

llection procedures applicable to election of members 

df the house of representatives without limitation as 

to the source of such election procedures be they constitutional or statutory, Had the framers of the 

Constitution intended to limit this phrase to constitutional requirements only, they would hardly have used 

this particular language knowing that the Constitution 

contained only broad requirements for elections in 

general without specific constitutional procedures 

applicable to election of representatives. By their 

language coupled with the absence of specific constitutional procedures applicable to the election of 

representatives, the framers of our Constitution must 

have intended the requirement to apply to statutory 

election procedures for representatives to be subsequently enacted by the legislature and amended from 

time to time. We remain unimpressed with the applicability to Montana of three cited cases from other 

states to the contrary: Livingston v. Ogilvie, 43 I11.2d 

9, 250 N.E.2d 138; Baker v. Moorhead, 103 Neb. 811, 174 

il.W. 430; and In re Opinion of the Justices, 76 N.H. 586, 

79 A. 29. These holdings are understandable under their 

particular state history and their particular constitutional provisions, but their application to Montana in 

the light of its history and constitutional provisions 

is entirely unwarranted." 

And further: 

"A further observation, albeit unsolicited, is that 

1 since the referendum uses the language revise, alter, 

or amend the constitution' it must have been contemplated that the work of the convention might be partial 

or total and that the individual parts might be submitted to the people. Therefore each Article might be 

separately submitted. I I 

Yet here, in the majority opinion, Mr. Justice Haswell 

states that there is nothing to indicate the framers had in mind 

a multiple issue ballot. He must have forgotten what he wrote in 

Lennon. Also, he must have ignored the plain meaning of the language 

in Sections 8 and 9, Article X.IX. 

Following is our view of the law and our resolution of the 

problem at issue. The issue is a narrow one but the solution is 

difficult. 
Article XIX, Section 8, states: 

r I The legislative assembly may at any time, by a 

vote of two-thirds of the members elected to each 

house, submit to the electors of the state the 

question whether there shall be a convention to 

revise, alter, or amend this constitution; and 

if a majority of those voting on the question shall 

declare in favor of such convention, the legislative 

assembly shall at its next session provide for the 

calling thereof. The number of members of the convention shall be the same as that of the house of 

representatives, and they shall be elected in the 

same manner, at the same places, and in the same 

districts. The legislative assembly shall in the 

act calling the convention designate the day, hour 

and place of its meeting, fix the pay of its members 

and officers, and provide for the payment of the 

same, together with the necessary expenses of the 

convention. Before proceeding, the members shall 

take an oath to support the constitution of the 

United States and of the state of Montana, and to 

faithfully discharge their duties as members of the 

convention. The qualifications of members shall be 

the same as of the members of the senate, and vacancies occurring shall be filled in the manner provided 

for filling vacancies in the legislative assembly. 

Said convention shall meet within three months after 

such election and prepare such revisions, alterations 

or amendments to the constitution as may be deemed 

necessary, which shall be submitted to the electors 

for their ratification or rejection at an election 

appointed by the convention for that purpose, not 

less than two nor more than six months after the 

adiournment thereof; and unless so submitted - and 

qroved by a majority of the electors voting atthe 

election, no such revision, alteration or amendment 

shall take effect," (Emphasis supplied) 

Article XIX, Section 9, states: 

"Amendments to this constitution may be proposed 

in either house of the legislative assembly, and 

if the same shall be voted for by two-thirds of 

the members elected to each house, such proposed 

amendments, together with the ayes and nays of each 

house thereon, shall be entered in full on their 

respective journals; and the secretary of state shall 

cause the said amendment or amendments to be published in full in at least one newspaper in each 

county (if such there be) for three months previous 

to the next general election for members to the 

legislative assembly; and at said election the said 

amendment or amendments shall be submitted to the 

qualified electors of the state for their approval 

or rejection and such as are approved by a majority 

of those voting thereon shall become part of the 

constitution. - Should more amendments than one be 

submitted at the same election, they shall be so 

prepared and distinguished by numbers or otherwise that 

each can be voted upon separately; provided, however, 

that not more than three amendments to this constitution shall be submitted at the same election." (Emphasis 

supplied) 
In the foregoing quoted Sections 8 and 9 of Article XIX, 

the unJ.erlined portions show these distinct language differences: 

Section 8. In a call for a convention---- those voting 

13n the question. 

Section 8. In approval of a revision---- the electors 

voting at the election. 

Section 9, In approval of amendments ---- Those voting 

thereon. 

Our constitutional provisions on voting in different types 

of elections have oth.er examples of varying language used, e.g.: 

Article X, Section 2,concerning the permanent seat of 

I I government---- the majority of all the votes upon said question1'; 

Article X, Section 3 concerning a change of the seat of 

government - - - - "a vote of two-thirds of all the qualified electors 

of the state voting on that question"; 

Article XII, Section 9,concerning a statewide tax rate of 

2 mills---- I I a majority of all votes cast for and against it"; 

Article XIII, Section 2, concerning debt limit ---- I I a 

incljority of the votes case for and against it1'; 

Article XIII, Section 5, concerning county debt limit ---- 

!'a majority of tb~ electors thereof, voting at an election to be 

?rovided by law"; 

Article XVI, Section 2, concerning removal of a county seat 

----- I I a majority of the qualified electors of the county at a 

general election on a proposition to remove the county seat, shall 

vOte therefor"; 

Article XVI, Section 8, concerning consolidation of counties 

---- I1 a majority vote of +: ;? f: electors in each county fc 9: expressed at a general or special election held ;? ;? ;?". 

The basic issue before this Court should require us to 

determine the intent of the framers of the Montana Constitution 

when they adopted Section 8 of Article XTX at the constitutional 
convention, August 17, 1889. That section reads in part: 

11,l- J; J; ,, and unless so submitted and approved by 

a majority of the electors voting at-the eleckion, 

no such revision, alteration or amendment shall 

fake effect. I I 

The traditional rules construction in cases of this 

kind have been succinctly set forth in the classic decision Knight 

v. Shelton, (E.D.Ark.1305), 134 Fed. 423, 426, wherein the court 

was confronted with the construction of the constitutional provision of the Arkansas Constitution concerning amendment to its 

constitution. There the court summarized: 

"1. There are certain rules of law which are so 

well settled that it is unnecessary to refer to 

authorities to sustain them. Among these are the 

following: A Constitution can be amended only in 

fhe mode therein prescribed. The construction of 

constitutional provisions is governed by the same 

rules which apply to the construction of statutes. 

The language used is to be given the natural 

signification that the words imply, in the order 

and grammatical arrangement in which the framers 

used them, and if, thus regarded, the words convey 

a definite meaning which involves no absurdity, and 

no contradiction between parts of the same writing, 

then the meaning apparent upon the face of the instrument is the one which alone courts are at liberty 

LO say was intended to be conveyed. If there is no 

ambiguity in the language used, there is nothing to 

construe, and courts must follow the letter of the 

Constitution. It is only when the language used is 

not clear or unambiguous that courts are permitted to 

resort to the rules of construction which govern 

courts in ascertaining the intent of the framers. 

If any of the provisions are unjust, so that their 

enforcement will work a hardship to any class of 

persons, the remedy must come from the people who 

have adopted them. Construction can furnish no 

remedy under our system of government. I I 

Under Section 8, the natural significance of the phrase 

"majority of the electors voting at the election" is that to determine whether the proposed constitution was adopted, you count the 

total number of electors voting at the election, and one-half plus 

one must have voted for the measure or it fails. 

We shall analyze this interpretation on which, at first blush, 

the au~horities may seem to be split, but there is something we 

feel reconciles any apparent variance in the cases. That point is 
that Nontana in the recent election of June 6, 1972, treated the 

vote on the proposed constitution and the three matters submitted 

with it as a separate election from the regular primary. The fact 

that the constitutional election was a separate one is conclusively 

established by the mandatory requirement of Article XIX, Section 8, 

which states the ratification or rejection by the people must be 

by an election "for that purpose. I 1 This is more clearly pointed 

out when it is found that the poll books disclose more people voted 

in the regular primary than voted on the constitutional issue. 

Also, the facts are that there was a great variance in the number 

of people who voted on the other three matters referred and on 

the proposed constitution itself, so it would be pure conjecture 

to determine who voted on the constitution and who did not. 

All briefs touching the point at issue here discuss two 

PIontana cases, Tinkel v. Griffin, 26 Mont. 426, 68 P. 859 and 

Morse v. Granite County, 44 Mont. 78, 119 P. 286. We shall discuss 

these cases later after first turning our attention to other authorities. 

State ex rel. Hayman v. State Election Board, (1938), 181 

Okla. 622, 75 P.2d 861,862,864, is a case in which a constitutional 

amendment was submitted to the voters, and the constitution of 

Oklahoma provided, in part: 

"If a majority of all the electors voting at 

such election shall vote in favor of any amendment thereto, it shall thereby become a part of 

the Constitution. I1 

OIclahoma also has a statute which makes every precinct election 

board return to the county election board the total number of 

electors voting at the election so the state election board could 

certify the total number of ballots cast at the particular election. 

The same statute requires the county election boards to record the 

number of ballots spoiled or not voted, all of which is reported 

to the state election board. The proposed amendment received a 

affirmative vote of 379,405, and a negative vote of 219,996. The 
total votes cast as shown by the certificate was 767,745 votes, 

and the election board determined that the amendment did not pass. 

An action was brought, and the Oklahoma Supreme Court held that 

the election board was correct. The Supreme Court refused to 

issue the writ to change what the election board had reported, 

and among other things made the following observation: 

"Under this suggested method, no elector would 

be considered who did not vote on the office or 

measure receiving the highest vote, thereby 

eliminating many voters who, irk the instant case, 

voted only State, county, or precinct ballots. 

The inaccuracy and fallibility of this method 

are conspicuously apparent. They assert that 

this number should arbitrarily be considered as 

I representing the number of electors voting at 

such election.' This is predicated upon a presumption which is significant:ly contrary to the 

actual and admitted facts as presented in this 

case. By this method every voter appearing at 

the polls who did not see fit to cast a vote for 

presidential electors, but who may have voted for 

every other State officer, or county or precinct 

officer, or on the submitted amendment itself, is 

I eliminated from consideration as an elector voting 1 at such election. This is in direct discord with 

the theory conceded by all parties to this proceeding 

that every voter appearing at the polls and casting 

a vote for or against any candidate or measure submitted is to be considered in determining the total 

number of 'electors voting at such election."' 

(Emphasis supplied). 

In People v. Stevenson, (1917), 281 Ill. 17, 117 N.E. 747, 

749, a constitutional amendment had been submitted to the voters 

by the legislature. The canvassing board returned that 1,343,381 male 

electors voted at the election; 656,782 voted for the proposed amendment, and 295,782 voted against it. The canvassing board then 

determined the highest number of votes cast for the members of the 

legislative assembly, and since the vote on the constitutional 

amendment was more than half of the vote for the members of the 

assembly, as figured by their formula, the canvassing board determined that the amendment had been adopted. The trial court reviewed the decision of the canvassing board and determined that the 

amendment had not been adopted. In affirming this decision, the 

appellate court discussed the 1818 Constitution of Illinois and the 

1848 Constitution of Illinois. The decision was given under Section 
Article 14, of the Constitution of 1870, which provided that 

"if a majority voting at the electionr' voted for the amendment, it 

was carried. The Court made the following observations: 

"It seems to us that the people who read and voted 

on the adoption of the Constitution would not have 

understood it to mean that an election at v~hich a 

constitutional amendment was voted on, whether it 

was adopted or rejected, was to be determined by the 

vote of those,only, who voted for members of the 

;enera1 Assembly. A more reasonable understanding, 

requiring no construction or conjecture, would seem 

to be that the amendment must receive a majority of 

che votes cast at the election. 

"The intention to which force is given in construing 

constitutional provisions is that vihich is embodied 

and expressed in the language of the provisions. 

1 1 As a Constitution is dependent upon adoption by 

che people, the language used will be understood 

in the sense most obvious to the common understanding. 

"The language and words of a Constitution, unless they 

be technical words and phrases, will be given effect 

according to their usual and ordinary signification, 

and courts will not disregard the plain and ordinary 

meaning of the words used, to search for some other 

conjectural intention. 6 R.C.L. 52; Law v. People, 

87 Ill. 385; Hills v. City of Chicago, 60 111.86." 

The Wyoming Supreme Court in State ex rel. Blair v. 

Srooks, (1909), 17 Wyo. 344, 99 P. 874, considered a vote on a 

constitutional amendment. The Wyoming Constitution, in Article 20, 

Section 1, requires that an amendment receive a majority of the 

electors. It appeared that 37,561 votes were cast at an election 

on a constitutional amendment and 12,160 voted in favor of the 

amendment, and 1,3G3 voted against the amendment. The Court observed that the cases are in conflict, but that the language used 

in the Wyoming Constitution referred to the electors of the state 

sa that the matter must carry by more than a majority of those 

voting on the proposition, and it must be a majority of those who 

showed themselves to be electors. 

In Green v. State Board of Canvassers, (1896), 5 Ida. 130, 

47 P. 259,260, the Supreme Court of Idaho had before it a constitutional amendment which was voted upon by the electorate of Idaho 
to give women suffrage,; 12,126 voted for and 6,282 voted against. 

The board of canvassers reported the amendment as not being adopted 

and an action ensued. The Idaho State Constitution contains a 

I I provision that amendments are approved if a majority of the 

electors shall ratify the same". Idaho also has in Article 20, 

Section 3, a provision similar to ours, "if a majority of all the 

electors voting at said election shall have voted for a convention 

-7- .>a 

sb 7k. The Idaho Court made a great distinction between the 

meaning of the two provisions and made the following observation 

which is important here because of the similarity of the language 

cons trued that to be construed in the instant case: 

"If they were, as counsel for defendants contend, 

intended to mean the same thing, why was not the 

same language used? We know of no rule of construction, nor has our attention been called to any, that 

would warrant us in arbitrarily saying that the language 

used in the two sections was intended to mean the same 

thing. On the contrary, the reason seems to us to be 

the other way. We can understand why the makers of the 

constitution should apply a different and more stringent 

rule in the adoption of a call for a constitutional convention from what they would in the matter of a mere 

amendment, It is true, the amendment under consideration is one of vast importance, but so, likewise are 

the other amendments submitted at he same time. With 

the character or importance of the amendment we have 

nothing to do in this consideration. Was the amendment 

adopted as required by the terms and provisions of the 

constitution? To hold that it was not is virtually to 

say that no amendment of the constitution is practicable. 

In fact, counsel do not strenuously contend for a construction involving such a conclusion, but rather insist 

I that the words 'majority of the electors, in section 1, 

should be construed to mean the same as the words 'majority 1 of all the electors voting at such election, in section 

3. Even the authorities cited by counsel do not go to 

such an extent to sustain such a conclusion." 

The reasoning and construction of the Idaho Court is proper 

and logical. It is a maxim of statutory construction, no less 

applicable to constitutional law, that "where there are several 

provisions or particulars, such a construction is, if possible, 

to be adopted as will give effect to all." Section 93-401-15, 

R.C.M. 1947. Moreover, the intent of the framers must be determined from the language used in the document. The reasoning of 

the Idaho Court is consistent with these principles for it gives 
effect to two differently worded sections "majority of the electors" 

and "majority of all electors voting at said election. l1 The apparent intent of the framers to impose a stricter requirement in 

convening a convention than in ratifying an amendment is also 

considered. 

In Lee v. State of Utah, (1962), 13 Utah 2d 15, 367 P.2d 

861, a constitutional amendment relating to wartime and emergency 

powers of the legislature was submitted to the voters and thereafter was attacked on the grounds that a majority of the electors 

registered had not voted, The Supreme Court of Utah held that as 

the majority of electors voting thereon, as provided by their 

constitution, had voted in favor, the amendment had been ratified. 

In Town of Pine Bluffs v. State Board of Equalization, (19581, 

79 Wyo. 262, 333 P.2d 700, it was contended that a constitutional 

amendment was not properly adopted because it was not supported by 

a majority of the electors of the state although it got a majority 

of those voting on the proposition. However, it did have a majority 

also of those voting at that particular election. The argument was 

that there were more franchised voters in the state taking into 

consideration all the people who were registered, and as a consequence, it did not receive the support of a majority of the electors. 

The Court there held, citing Indiana, that a sensible construction 

had to be applied, and the wording "all electors of the state" are 

the electors voting at the particular election, 

Article XIX, Section 8, of the 14ontana Constitution relating 

to the ratification of constitutional revisions after a convention, 

It provides in part that such ratification must be by a majority 

of the electors voting at the election." Section 9, relating to 

the ratification of amendments proposed by the legislature, provides 

11 in part that such amendments must be approved by a majority of 

those voting thereon." It is this difference in language which 

dictates that the proposed constitution may have failed. "[floting 
thereon" as interpreted by the Idaho Court in Green, may be ~aken 

to mean a count of ayes and nays. " [~loting at the election" 

must mean something different and more; that is, all those who 

cast ballots whether ayes, or nays, on any one of the four issues 

submitted. 

In fact, in Stoliker v. White (1960), 359 Mich. 65, 101 

N.W.2d 299, 300,304, the Court based its decision on such a distinction: 

"The question before us is this: Does the 

Constitution require a different vote for the 

call of a constitutional convention than it 

requires for the adoption of an amendment to the 

Constitution? 

"What the Constitution actually says is that the 

adoption of a constitutional amendment requires 

a majority of the electors 'voting thereon,' 

whereas a call for a constitutional convention 

1 requires a a majority of such electors voting 

at such election.' 

I I In short, we are now asked to hold that the people 

did not clearly understand what they were thus doing. 

We are asked to hold that, despite the 1899 opinion 

of the Attorney General upon the very issue here 

presented, despite the unsuccessful legislative attempt to overcome it immediately thereafter, despite 

the ruling of the Board of State Canvassers that the 

1904 proposition had failed to carry for lack of the 

necessary majority, and despite the re-enactment in 

the new Constitution of the very language over which 

all of this turmoil had raged, the people did not 

really understand the clear meaning of the words they 

were using, once again, in their new Constitution. 

(Constitution of 1850, article 20,§2: 

+ ;? in case 

a majority of the electors so qualified, voting at 

such election, shall decide in favor of a convention 

,. 

.Pa -*- 

,, -1- ,, . ' Constitution of 1908, article 17, $4: ' "" ,. ,, " ,. 

In case a majority of such electors voting at such 

election shall decide in favor of a convention ;k 2'; ik. ') 

iqe are to hold that when they required to pass a 

constitutional amendment a majority of the votes cast 

!:hereon, and when they required to call a constitutional 

zonvention a majority of the votes cast at such election, 

they were actuall-y prescribing no difference between 

the two votes but were in fact merely calling for the 

same vote on each. All of this we decline to do. 

The understanding of our people is not so meager. Their 

Aistinguished leaders who framed the Constitution were 

not so inept, so thoughtless, so blind to the issues 

35 the day. From the language used it is clear that 
they mean2 to distinguisl~ between the votes 

required for a simple amendment and those required to call a constitutional convention, 

and our holding is that they did so distinguish, 

"We have thus relied upon the contemporaneous 

~nderstanding of the people. Their understanding 

i-s as relevant today as it was a half-century ago 

2nd it has a direct applicability to the situation 

'3efore us. When the people went to the polls in 

!958 to vote upon the question of a constitutional 

.zonvention, they went with the contemporaneous 

aderstanding that a failure to vote upon the constitutional question would have the practical effect 

3f a vote in the negative thereon. Such is not only 

she clear phrasing of the Constitution but the highest 

court in the State had unanimously so ruled with 

respect thereto. We have no way of knowing how many 

~f the 900,000 electors who failed to vote on the 

Lssue would have ,voted in the affirmative thereon, 

had they voted, or how many who failed to vote did so 

3ecause of reliance upon the practical effect of their 

failure to vote. Obviously we cannot say that the 

r~roposition carried nor can we command the Board of 

State Canvassers, as plaintiff wishes 'to certify 

chat the revision question carried. 1 11' 

There are two Montana cases construing the election provisions of the current Constitution concerning voting on bond 

elections. In Tinkel v. Griffin, (1902), 26 Mont. 426,431, 68 P. 

559, the Supreme Court had before it a vote in Flathead County 

Eor the building of a new county courthouse and jail. The county 

commissioners had regularly submitted to the voters the matter 

af the loan. That election was held under Article XIII, Section 

5, of the Constitution which contains the following language: 

"* ;';? No county shall incur any indebtedness 

or liability for any single purpose to an 

amount exceeding ten thousand dollars ($10,000) 

without the approval of a majority of the 

electors thereof voting at an election to be 

provided by law. ?I 

This language is somewhat different than the language in Sections 

8 and 9, Article XIX, of the Constitution. The question arose as 

to what constituted a majority of fhe electors of the county voting. 

The Court pointed out that the election could have been held by 

itself or at any time. As a consequence, the majority of the electors 

voting at the election to be provided by law would be only those 

who voted on the bonds themselves. 
The Supreme Court treated the election on bonding the 

county as a special election, although it was held at the same 

time as the general election. Thus there were two elections the 

same day. The Court in Tinkel said this: 

"~t appears that the highest number of votes 

cast for any office voted upon at the election 

was 2,400, that 1,000 were cast in favor of 

the issuance of the bonds, and that 462 were 

cast against it. It thus clearly appears, counsel 

say, that the proposition did not receive a majorlty of the electors voting, within the meaning of Section 

5, Article XIII, of the Constitution. 

"1t will be observed that the requirement is that 

the approval must be by a majority of the electors 

of the county voting, not at a general election, 

but at an election to be provided by law, 

I1 As we have seen, such an election has been provided 

by law to be held at any time it may be deemed necessary by the board of commissioners, It happens, also, 

that the manner of holding it is the same as that prescribed for general elections. Thus it nay, with 

perfect propriety, be held at the same time at which 

a general election is held; but the fact that this 

is the case does not require a different standard of 

estimating the maj ority necessary from that which 

would govern if the election is held on a different 

day. The evident meaning of the constitution is that 

the approval must be the result of an expression of 

a majority of those voting, The expression 'majority 1 of the electors thereof voting at an election, etc., 

clearly means a majority of those who vote, and not 

a majority of all the electors of the county, or of 

those who vote upon any other issue at the same or 

some other time. If the election on the issue of a 

loan had been upon another day, there would have 

been no question but that it would have had a majority 

of the electors of the county who voted. It was none 

the less a special election, within the meaning of 

the law, though in this particular instance it was 

held, for convenience, on the day fixed for a general 

election. It 

The Court felt that only those who voted on the bond issue 

should have been counted in determining whether a majority voted 

for or against the bonds. We have no argument with that philosophy. 

The same argument is applicable to the case at bar because the total 

number of votes for the proposed constitution may have been less 

than a majority of those who voted on that separate issue. 

Tinkel was followed by Morse v. Granite County, (1911), 44 

Mont, 78, 95, 119 P, 286. There, the county commissioners called 
an election to submit to the voters the matter of borrowing 

$50,000 to build a courthouse. The district court of Granite County 

ruled inter alia that not sufficient voters had voted in favor of 

the bond and held the bond issue void and ordered an injunction to 

issue. The Court cited Tinkel with approval: 

11 f The evident meaning of the Constitution is that 

the approval must be the result of an expression 

of a majority of those voting. The expression 

1 I majority of the electors thereof voting at an 

11 election, etc., clearly means a majority of those 

who vote, and not a majority of all the electors of 

the county, or of those who vote upon any other 

issue at the same or some other time. 111 

The Court then went on to say that the laws and the Constitution 

should be so interpreted as to become useful. A majority of the 

electors who voted at the election on June 6, 1972, may not have 

voted - for the proposed constitution, the same as the Court held in 

the two Montana cases just cited. 

We would find then that "positive assent" is the same as 

1 I a majority of the electors voting at the election". This positive 

assent is referred to by many writers and courts as an extraordinary 

ma j ori ty . 

The question in the instant case is a majority of what 

group? Clearly, that of "electors voting at the election" is 

required, What that means under the facts here is the problem. 

As related heretofore, the relators' position is simply 

that the Secretary of state's certified number voting is 237,600 

and that answers the question. 

But does it? 

1 I The respondent says simply that the group voting at the 

election1' is confined to those voting on issue ?/ I, or as he puts it 

the "main issue" and that answers the question. 

But does it? 

We should then attempt to analyze the figure certified by 

the Secretary of State. The Secretary of State recited that he had 
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From the Secretary of state's certificate of canvass it 

is ~bvious that some electors did not vote for or against all 

22 the issues on the ballot. A total of 230,298 electors voted 

~il the first issue, 217,684 electors voted on the second issue, 

228,125 electors voted on the third issue, and 224,756 electors 

voted on the fourth issue. The total number of electors voting was 

,2ertified as 237,600. In a compilation of votes by counties 

prepared by the Secretary of State from the abstracts, on issue 

#3 there were 18 counties which had more votes than on issue #I, 

by a total of 290 votes. This fact,, standing alone, demonstrates 

conclusively that electors voted on the ballot (thus at the election) 

but did not all vote on issue #1. But of the 7,302 votes difference 

between the number voting on issue /I1 and the total number certified 

as voting at the election, it is impossible on the record before 

us to determine how many of that number are actual votes cast or 

just ballots issued. In other words, does 237,600 represent a 

nec voting figure or a gross figure of those receiving ballots? 

Section 23-4002(4), R.Ce1f. 1947, provides: 

"A ballot which is not endorsed by the official 

scamp is void and shall not be counted. A ballot 

or part of a ballot is void and sh.all not be counted 

if the elector's choice cannot be determined. If a 

part of a ballot is sufficiently plain to determine 

the elector's intention, the election judges shall 

count that part. 11 

it is clear that the "number voting" should be the net 

figure. Further proof of this statement can be found by examining 

the voting process under our statutes. Since the general election 

laws are to be followed, sections 23-3601 through 23-3618, R.C.M. 

1947, set the procedure for voting. The voting on the proposed 

constitution was treated as a special election and special poll 

books were kept on the voting. Section 23-3610 provides that the 

person's name must be recorded in the poll book as he voted; 

provides for che keeping of records for the list of all voters 

who voted, and a certification by each precinct as to tirho voted; 
and provides that the clerk of elections shall keep a list of 

persons voting. The name of each person who votes must be entered 

 hereon and numbered in the order voting. Such list is lcnown as 

and recorder 

the poll book. From these poll books each county clerk,/should 

know exactly how many persons voted on the constitution. If the 

oEficials followed the law, section 23-3605 provides that unmarked 

ballots should be returned to the election judges. Section 23- 

3606 provides that a voter shall receive a new ballot for a spoiled 

one. 

As to the counting and canvassing of the count, sections 

23-4001 through 23-4019, R.C.Pf, 1947, make the provisions. Section 

23-4002 provides for a method of handling spoiled or voided ballots 

and for an actual tally of the number of voters who cast ballots. 

If the provisions of the law were followed meticulously, the 

number of votes counted would be all good ballots and result in 

a net figure. 

On the other hand, we have previously set forth in full 

the Secretary of state's directive or instructions dated June 2, 

11 1972. There he states: In preparing ik ;k ik the abstracts 9: ;k 9: 

(I) Check all totals against precinct entries. f: 9: i'i(4) It is very 

important that you enter the total number of electors who are 

listed on the poll books for the separate election on the proposed 

constitution on the front of he abstract book for that el-ection. 

Please check n this figure carefully for accuracy. i\ 9: "" 

Note the underlined instructions---- electors listed. Is 

that consistent with the figure required by the statutes, electors 

who voted a valid ballot after the tally of he poll books was 

adjusted? 

We were assured when we assumed jurisdiction of this 

iiiatter that - no factual dispute existed. Yet, the overn nor's answer 

admits the allegation of the petition that 237,600 electors voted 
at the special election and then files with his brief, through 

the Attorney General, an affidavit of himself, the Secretary of 

State, and the State Treasurer, constituting the state canvassing 

board, whick asserts that the figure 237,600 was the total number 

receiving ballots plus absentees, thus a gross figure rather than 

a net figure as is seemingly admitted in the answer. This presents a fact issue as disc~lssed before---in fact the critical, 

controlling fact figure. 

&mining the tabulation by counties of the two separate 

elections held on the same day and judged, counted, and canvassed 

by the same election officials, it appears that in the primary 

election a total of 238,215 votes were cast, while in the special 

constitutional election 237,600 votes were cast. Out of those 

total votes cast, 24 counties show differences between the primary 

and special election totals, while, significantly, 32 counties 

show identical totals! Using one example, in Lewis and Clark 

County, the seat of the State Capitol, 13,867 votes were cast in 

the primary and 13,867 votes were cast in the special. Can these 

be possible net figures? Was nat a' single ballot mutilated or 

voided for some reason in one or the other election? 

Or taking another example from Beaverhead County, the first 

county listed alphabetically, the total votes cast in the two 

separate elections is recorded as 2,832, identical in each. Yet 

in the partisan races for nominations to the United States Senate 

where two men, including incumbent Senator Metcalf, vied for the 

Democratic nomination and four men vied for the Republican nomination, a total of 2,392 votes was tallied. 441 voters either did 

not vote at all on that important race or their ballots were not 

properly accounted for. In that same county with nine candidates 

running for the nomination for governor, a total of 2,686 votes cast 

was tallied. 146 votes reported as voting on that important office 

were not accounted for but significantly 295 more voters expressed 
a preference here than in the senatorial race. This example 

demonstrates that voters do not vote on all offices or all 

issues, but nevertheless do vote, and the total number of electors 

voting at an election cannot be measured by a single issue or 

office in that particular election. 

These questions pose other questions. Did the precinct 

and county election officials follow the election laws by adjusting or balancing their poll books with the valid ballots? 

Or, did they follow the Secretary of State's instructions by 

inserting the number of electors listed in their poll boolcs? 

It appears beyond a doubt that some precincts and some counties 

did it each tiray! TITUS the figure of 237,600 certified by the 

Secretary of State likely reflects a combination among counties 

of net and gross figures. It is a critical fact question that 

no analysj-s short of a recanvass by precinct can answer. 

It is noted here that no suggestion of fraud, bad faith, 

irregularity or anything of that nature has been reported or 

urged in any of the 981 precincts in the entire state. That the 

election result on the proposed constitution was close is selfapparent----a difference of only 2,532 votes, The proposed constitution was approved in 12 counties and defeated in 44 counties, 

Would a recanvass affect the result? Who knows, without the 

correct figure in the formula? 

The foregoing should pose a dilemma for this Court. We 

are aware that the briefs argue on burden of proof and presumptions 

of law. Each side applies these legal arguments to prove its 

position. But from our previous discussion it is clear that to 

change such a basic document as our Constitution, a clear cut will 

of the people expressed within the rules laid out in Article XIX, 

Section 8, is mandatory and should not rest on the niceties and 

subtleties of the rules on burden of proof and presumptions of law. 

We are here concerned with hard, cold, mathematical facts which 

can be determined. This Court has the responsibility to see that 

the facts are determined. 
We would find that the only solution to this problem is to 

grant a writ of mandamus to compel a recanvass by precinct of the 

votes cast in the June 2, 1972 election. A canvassing board cannot 

evade its duties by adjourning without taking the action required 

by law, and mandamus lies to compel its members to reassemble and 

perform their duty. A partial or incomplete canvass is viewed in 

the same manner as a total failure to make a canvass in the first 

instance, and a writ may issue to compel the board to reassemble 

and make a complete and accurate canvass of all the returns. This 

is supported by ample statutory and case law. 

In this analysis the first point that must be considered 

is the statutory law. Sections 23-4007 and 23-4008, R.C.M. 1947, 

state: 

"23-4007. Disposition of items by registrar. (1) 

When the registrar receives the packages or envelopes, 

he shall file those containing the ballots voted and 

detached stubs and the unused ballots and keep them 

unopened for twelve (12) months. After twelve (12) 

months, if there is no contest begun in a court or 

no recount, he shall burn the envelopes without opening 

them or examining their contents. 

"(2) The registrar shall file the envelopes or 

packages containing the precinct registers, certificates of registration, pollbooks, tally sheets, and 

oaths of election officers. He shall keep them unopened until the commissioners meet to canvass the 

returns. The commissioners shall open the envelopes 

or packages. 

"(3) Immediately after the returns are canvassed, 

the registrar shall file the pollbooks, election 

records, and the papers delivered to the commissioners. " 

"23-4008, Disposition of items in event of contest. 

If there is a contest within twelve (12) months, the 

registrar shall keep the envelopes or packages unopened 

until the contest is finally determined and then destroy 

them. If the court hasmtody of the envelopes or packages as evidence, they are in the custody of the court 

and the registrar shall not destroy them." 

There is no dispute that the issue before the Court is an 

election contest. Did the proposed constitution pass or fail? 

This contest was filed in this Court and the above cited statutes 

explicitly and implicitly grant the Court the authority to compel 
a reexamination of the original canvass in .~rder co determine 

Zhe exact number of votes, both gross and net, that were cast 

It "for" or against" the proposed constitution. 

We recognize the argument that the time for a recount 

ias 2xpired. However, the legislature has provided exact instruccions by which a recount may be held, and this Court readily 

submits to those instructions. 

The legislature has provided for the retention of ballots 

for a period of 12 months in the event a dispute may arise as to 

the exact outcome of a given election. This is the case at hand, 

therefore, the requisite power and means exist for a recanvassing 

of the June 2, 1972, special election, in order to determine the 

I I nxact number of electors voting for" or "against" in that election. 

A recanvass is not a new or unusual remedy. In State 

ex rel. Lynch v. Batani, 103 Mont 353, 362, 62 P.2d 565, we 

stated: 

"we think what the court said in the similar case 

of Capper v. Anderson, 88 Kan. 385, 128 Pac. 207, 

is applicable here. 

1 here it was recorded: A canvassing board, in 

ascertaining and registering the effect of the 

returns, acts in a purely ministerial capacity, 

and is subject to control by mandamus. * * 

The power to compel a canvass implies the power 

to compel a correct one. A ministerial duty wrongly 

performed is not performed at all. The correction 

of an erroneous computation can, of course, be 

compelled by a court. The mistakes here complained 

of are substantially of that character. They consist of treating the face of the poll books and 

tally sheets as indicating a result which a proper 

consideration of the entire document shows beyond 

a question to be wrong. Whatever might be the rule 

in a situation admitting of a substantial difference 

of opinion, when a court can determine with certainty 

that the poll books and tally sheets show a certain 

number of votes to have been cast and counted for a 

particular candidate, it can require a board of 

canvassers to give proper effect to that determinacion. 11 

Sase law from other jurisdictions supports the principle 

expressed in Lynch. The following cases stand for the single 

proposition that a board of canvassers can be reconvened to 
correctly, accurately, and truly ascertain the result of an 

election. State v. Mills, 132 W.Va.580, 53 S.E.2d 416; Eaton 

v. County Court of Cabell County, 140 W.Va. 498, 85 S.E.2d 648; 

Kane v. Registrars of Voters of Fall River, 328 Mass. 511, 105 

N.E.2d 212; Dotson v. Ritchie, 211 Ark. 789, 202 S.W.2d 603; 

Mahoney v. Board of Supervisors of Elections, 205 Md. 325, 108 

A.2d 143; State v. County Court of Logan County, 145 W.Va. 581, 

116 S.E.2d 125; and State v. Mercer County Court, 129 W.Va. 584, 

41 S.E.2d 855. The list is endless, but the simple proposition 

exists that this Court has the power through the statutes heretofore cited, and the means, through the granting of a writ, to 

order a recanvass of the precincts of Montana to determine the 

total number voting at the special election on the proposed 

constitution. 

We would order the Secretary of State to immediately take 

action by issuing instructions to the fifty-six county clerk and 

recorders in Montana to conduct a recanvass by precinct to balance 

the poll books with the valid ballots to determine the total number 

of electors voting at the special election. 

In filing the foregoing dissent, we recognize the futility 

of it. By a three to two vote this Court is declaring a new 

majority 

constitution to have been adopted. We believe thelapinion to be 

wrong; and therefore dis.sent. 

We are aware that under our proposed solution a recanvass 

might reveal the same result; that is, that it would show a majority 

of those voting at the election did approve. If that were to occur,