?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, Relator,

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

j)rigi~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. 'tobertL. 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:

## AUG18 

## I~ Submitted: July 

### 17, 1972 ~ecided: 

## AUG18

I

### Mr. Justice Frank 

### I. Haswell delivered the Opinion of the Court,

This originalproceeding seeks a judicial determination by this Court whether the proposed 1972Montana Constitution

was approved and adopted by the electors at the special election of June 6,1972. The essential facts are undisputed. 

### The 1969Montana Legislatureprovided for a referendum election on the calling of a constitutional convention. Article 

### XIX, Section 

### 8,Montana Constitution;Chapter 

### 65, Session Laws 1969. This electionwas 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 electionheld 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 conjunctionwith the primary election on June 6, 1972. The separate constitutional electionballot isherewith set forth:

# '' INSTRUCTIONS TO VOTERS: PLACE AN "X" INTHE BOXES WHICH EXPRESS YOUR PREFERENCES. THE FULL TEXT OF THE PROPOSED CONSTITUTIONANDTHESEPARATEPROPOSITIONSISAVAILABLEFOR INSPECTIONATYOUR POLLINGPLACE. IFTHE PROPOSEDCONSTITCPTlON FAILS TO RECEIVEA MAJORITY OF THE VOTES CAST, ALTERNATE ISSUES ALSO FAIL. 

# OFFICIAL 

# BALLOT PROPOSEDCONSTITUTION PLEASE VOTE ONALL FOUR ISSUES 1. (Vote for One) FOR the proposed Constitution. 

# 0 AGAINST the proposed Constitution.

The proposed Constitution will include a bicameral (2houses) legislature unless r mrjority of those voting inthis electionvoteforaunicameral (1 house) legislatureinIssue2. 2. (Vote for One) ZA FOR a unicameral (1 house) legislature. 

### n 2B. FOR a bicameral (2houses) 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

uFollowing 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 "AGAINSTthe proposed Constitution. 113,883 "ZA, FOR a unicameral (1house) Legislature 

### 95,259 "2B. FOR a bicameral (2houses) legislature 122,425 "3~,FOR allowing the people or the legislature toauthorize 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 originalproceeding in this Court seeking a declaratoryjudgment that the proposed 1972Montana Constitution was not ratified and adopted because

11 i.t was not approved by a majority of the electorsvoting 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 filedby the two relators consolidated, and set she consolidated action for adversary hearing. Prior to the Ledring an answer was filedby the Governor, a complaint in inicervention was filedby sixindividuals, theAttorney General intervened as an additional respondent and filed a separate answer, and answers were filed tointervenorsf complaint. In all,cwenty writtenbriefs were filedby 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 1972Montana Constitution "approved by 

### a majority of the electorsvoting atthe election" of June 6, 1972, asrequired by Article

### XIX, Section 

### 8, of the present Montana Constitution? The principal contentions of relators and others who contend the proposed 1972Montana Constitution did not receive the required majority approval can be summarized inthismanner: They contend the phrase "approved by a majority of the electors voting atthe election" as provided inArticle XIX, Section 

### 8, of the present Montana Constitutionmeans a majority of the electors who cast a valid ballot on any of the four questions on theballot; that the quoted language speaks for itself and there isnothing for this Court toconstrue; that the legislature, the constitutional convention commission, and the constitutional ~mvention itself allunderstood what the constitutional language meant as evidencedby their official acts; and their own interpretation can not be changed now after the electionhas been held dnd the vote has become known. They alsopoint out that the Secretary of state's certification of 237,600 as the totalnumber of electorsvoting 

### ispresumptively correctby statute and as there isnothing toindicate such figure is incorrect, the presuinption controls. They conclude thatbecause the provisions the present Constitution on determining approval. or rejection -tL the proposed constitution are mandatory and exclusive, and 5rcause 237,600 electorsvoted atthe election and less than half ~f that number (116,415) voted for the proposed 1972 Constitution, it lacked the required majority approval totake effect.

### On the other hand, the basic thrust of respondents and those who contend the proposed 1972 Constitutionreceived the required majority approval and became effective according to its provisions can be summarized inthesewords: They take the position that the phrase "approved by a majority of the electorsvoting atthe election" means 

### a majority of electorsvoting on approval.

13rrejection of the proposed 1972 Constitution, and does not include the electors voting only on one ormore of the alternative proposals. Respondents argue that there isno valid basis for consideringnonvotes on approval or rejection of the proposed 

### cmstitution asvotes against itsapproval, 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 totalnumber of electorsvoting inthe 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, partiallyvoid ballots, and the like; that such ballots cannot be counted in determining the totalnumber of electorsvoting atthe election incomputing the required majority vote, but onlyvalid 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 dilutionof 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 originaljurisdiction by this Court, and related matters. This Court has previously acceptedjurisdiction 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 issuehere 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 electorsvoting" 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 tothe voters for their approval or rejection. We quote Article XIX, Section 

### 8, infull, !:he underlined words being the portion thereof which we are called upon toconstrrie:

11

The legislative assembly may atany 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 shallbe a convention to revise, alter, or amend this constitution; and if a majority of those voting on the question shall kclarein favor of such convention, the legislative ~ssembly shall atitsnext session provide for the calling thereof. The number of members of the convention shallbe the same as that of the house of representatives, and they shallbe elected in the same 'uanner, atthe same places, and in the same districts. rhe legislative assembly shall

### inthe act calling the -onvention designate the day, hour and place of its i~eeting, fixthe pay of 

### itsmembers 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 shallbe filled in the manner provided for ifilling vacancies in the legislative assembly. Said convention shallmeet within three months after such dlection and prepare such revisions, alterations or dmendments to the constitution asmay be deemed necessary, which shallbe submitted to the electors for their ratification or rejection atan election appointed by the convention for that purpose. not less than two nor illore than sixmonths 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 iswhether the underlined quoted language requires a majority of electorsvoting on approval or rejection of the proposed constitution orwhether itrequires some other majority. Relators and others espousing their vi.ew contend that the quoted constitutional language isclear and ~7e must declarewhat it plainly says. They argue that theuse 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 totalnumber of electors voting on any of the four questions on the ballot isrequired toapprove the proposed 1972 Montana Constitution. We note that allparties 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 StateCanvassers, 

### 116 Mont, 217, 

### 149 P.2d 112, stand for the proposition that voting is the affirmative act of marking theballot and depositing it in the ballot box in conformitywith the election laws. Neither signing the registry of voters, nor being issued a ballot, nor having one's name appear on the pollbook 

### isenough, standing alone, to constitute the act of voting.The issue before us isa narrow one but its solution is

noc simple. We recognize that there are two distinct and opposing Lines of authorityinotherjurisdictions having the same or similar constitutional language. Earlier cases are collected in the Annotation appearing at 131A.L.R. 1382. For examples of later

cases see: State ex rel. Wittv. State Canvassing Board, 78 N.M. 582, 437 P.2d 143; In reTodd, 208 Ind. 168, 193N,E. 865; Stoliker v. Waite, 359 Mich. 65, 101N.W.2d 299. These.cases are citedmerely to indicate the two conflicting lines of authority but arenot relied upon or determinative of our decision in the instant case, We prefer to look toMontana statutes and cases for guidance ininterpreting 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. StateBoard, 109 Mont. 

### 52, 96 P.2d 420. In construing the meaning of a statute, the intent of the framers, i.e., the legislature, isparamount. Section 93-401-16, R.C.M. 1947, In determining legislative intent, resort must firstbe made to the plain meaning of the words used. Dunphy v. Anaconda Co., 151Mont.76, 438 P.2d 660, and Montana

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

### is simply to ascertain and declarewhat isin terms or substance contained therein, not to insertwhat has been omitted

nor toomit what has been inserted. Section 93-401-15, R.C,M. 1947, A statutemust be read and considered in itsentirety and the Legislative intent may not be determined from thewording of any particular section or sentence, but only from 

### a consideration of thewhole, Home Bldg. & Loan 

### v. Bd. of Equalization, 141Mont. 113, 375 P.2d 312.Applying these rules to the quoted constitutional language,

a Literal constructionwould seem to support relators. The quoted

II language speaks of approval by a majority of electorsvoting 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 tovoting

on approval orrejection of the proposed constitution, and it 

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

### is absolutelynothing toindicate that the framers had inmind a multiple issueballot wherein contingent alternative issueswould be submitted to the electors inaddition tothe primary question of approval orrejection of the proposed constitution itself, The best that can be said forrelators 

### is that the quoted language isambiguous when read inconnection with the entire constitutional provision relating to submission of the proposed constitution to the electors. We aremindful of the principle that when a statute is equally susceptibleof two interpretations, one in favor of ndtural right and the other against it, the former 

### is tobe adopted. Section 93-401-23, R.C,M. 1947. Majority rule 

### i-sa 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, isrequired ina given situation willsuffice. Here no such evidence exists. Nor, inour view, is the difference inlanguage employed in different election provisions of Article XIXcontrolling, or indicative of an intentby the framers of our Constitution to require approval of a proposed constitutionby an extraordinary ,xajority. The firstpart of Section 

### 8 relating tocalling

### 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 legislaturerequires referendum to the qualified electors a~xd approval

II

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

we are calledupon 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 

### sixmonths after the adjournment thereof" and approval by "a majority of the electorsvoting atthe election". The reason for the difference in language between these three provisions 

### isreadi-lyapparent. The referendum to the voters

on the calling of a constitutional convention isnormally held ata general election as was done here; consequently, the phrase

II 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 electionwhere up tothree such amendments can be submitted at the

II same election, thus the language approved by a majority of those voting thereon" isused. The language of Section 

### 8, that we mst construe

# --- I Ia majority of the electors voting at the election" was used because a separate election isrequired for dpproval or rejection of a constitutionproposed by a constitutional convention and there isno need to differentiatebetween approval or rejection of a proposed constitution at such separate dlection and issues at some other electionheld at the same time. Accordingly, these differences inthe language employed by the tramers of our Constitution inthe different election provisions qf Sections 8 and 

### 9 of Article XIX areno 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 easilyhave said so. Our Constitution contains severai provisions requiring extraordinary majorities, but wherever such requirement isimposed the language isloud, clear and unaml~iguous. Examples of such provisions are: Changing the seat of government cequiring "a vote of two-thirds of allthe qualified electors af the state", (ArticleX, Section 

### 3);overriding the governor's veto of a legislative actwhich requires that such act shall "be repassed by two-thirds of both houses" inorder tobecome 2Efective, (ArticleV, Section

### 40) and a specific detailed prozedure therefor (Article

### VII, Section 12); submissionby the legislature to the electors the question of calling a constitutional

II convention which requires a vote of two-thirds of the members elected to each house", (ArticleXIX, Section 

### 8); submission by the Legislature to the electors of individual legislativeproposed constitutional amendments which require a vote of "two-thirds of rile members elected to each house", (ArticleXIX, Section 

### 9). We must also consider the effect of requiring an extra- ~rdinary majority in an electionby counting the electorswho ~ote on issues other than approval or rejection of the proposed ;onstitution. In 18 counties of this statemore electorsvoted <Jnthe gambling issue than voted on approval or rejection of the proposed constitution, Ifwe interpret the constitutional prosision inquestion as requiring the inclusion of these nonvoters

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

:or its approval, we are ineffectholding that the framers of our donstitution intended togive such abstainers the status of lectors voting against the proposed constitution. This we refuse
to do inthe absence of a clear and unmistakable requirement of

an extraordinary majority vote.Additionally, we must consider the policy and philosophy of government contained inour 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 atan election,' etc., clearly means 

### a majority of those who vote, of allof the electors of the county, or of those who vote upon any other issue, atthe 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 affairswho take a sufficient interest therein to give expression to their views. Those who refrain from such expression are deemed toyield acquiescence, "In a recent case the court of appeals of Kentucky, having under consideration a similar constitutional ;~rovision, said: '1t isa fundamental principle in ,>ursystem of government that its affairs are controlledby the consent of the governed, and, to that end, it isregarded asjust and wise that a majority of those who are interested sufficiently LO assemble atplaces provided by law for the purpose shall, by the expression of their opinion, direct he manner inwhich itsaffairs shallbe conducted. When majorities are spoken of, it

### ismeant a majority af those who feel an interest inthe government, and who have opinions and wishes as tohow it shallbe conducted, and have the courage toexpress them. Lthas notbeen the policy of our government, 

### inorder to ascertain the wishes of the people, to count those who do not take sufficient interest in

### its affairs tovote 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 policyby allowing the voter who is silent dnd expresses no opinion on a public question tobe 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 inMorse v. Srasiitr Sounty, 44 Mont. 78, 119 P. 286.We consider the constitutional philosophy expressed therein concerning the Montana Constitution asvalid today as itwas when *riginally expressed three generations ago. We extend that constitutionalphilosophy to the instant case involvingArticle the 

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

are simply not satisfied that the framers of our Constitution intended torequire more than a simple majority vote on approval of the proposed constitution. Accordingly, we hold that "approval by a majority of electors voting atthe election'' asused inArticle

### XIX, Section 

### 8, of the Montana Constitutionmeans approvalby 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 electorswho failed toexpress an opinion by a vote on that issue. The Secretary of State's certificate shows 116,415 votes infavor of the proposed constitution and 113,883votes against the proposed constitution and no one contends these figures are incorrect, As these figures carry a presumption of correctnessby statute, section 93-1301-7(15), R.C,M, 1947, and as there isnothing to indicate otherwise, we hold that the proposed 1972Montana Constitutionwas approved by the required majority and the

### over nor's proclamation thereof was correct. Even under relators' interpretation of the constitutional requirement inquestion which we expressly reject, relators still cannot prevail. Relators would require an extraordinary majority
to approve the proposed 1972Montana Constitution, i.e., a ri~ajority of the totalnumber of electorsvoting atthe special constitutional election on any issue. The Secretary of State's certificate of the abstract of votes as determined by the state

11 canvassingboard shows Totalnumber of electors voting. 237,600" which relators contend must be accepted as correct by statute.This figure isclearly incorrect even under relators

## ' interpretdtion of Article XIX, Section 8. The Secretary of Stateby letter dated June 2, 1972, i-ns~iucted the county clerks and recorders of each county to ''enter the totalnumber of electorswho are listed on the poll books for the separate election on the proposed c'onstitution on the front of the abstractbook for that election". The affidavit of the members of the state canvassingboard indicates that the phrase "'Total number of electors voting', as used in said

canvass and certificate, refers to the totalnumber of electors dppearing atthe polls and receivingballots, 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" isa person possessing the legal qualifica5~'~s that entitlehim tovote. 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 inconformity 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 ArticleXIX, Section 3, of the Montana Constitution means those persons entitled to vote who cast a properly marked ballot which iscounted in the election. Electors castingblank ballots, unintelligible ballots,

II fuuled, void, or illegalballots arenot 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, 109Mont. 390, 

### 96 P.2d 922; Heyfron v. Mahoney, 9Mont. 497, 24 P. 93. L'hus, it 

### isnot the totalnumber of electors appearing atthe polls and receiving ballots as listed in the poll books that constitutes the total number of "electors voting in the election", but theidid1number of electors casting properly rnarked ballots that Ire counted inthe election. Accordingly, the figure of 237,600 !abeled "total number of electorsvoting at the election" on the Secretary of State's certificateis demonstrably incorrect, and the disputable statutory presumption of correctness of such figure (Section 93-1301-7(15)) must yield tothe facts. What then, under relators

## ' interpretation of Article XIX, Section 

### 8, is the correct figure on the totalnumber of electors voting atthe election? We can make that determination on the ~uaterials before us. If we take the totalnumber of electors wha cast ballots that were counted on the issue receiving the iargest totalvote, this should approximate the totalnumber of electorsvoting in the election. On a statewidebasis, the issue of approval or rejection of the proposed constitutionreceived the highest total.vote, 116,415 "for" and 113,883 "against", or totalvote 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 totalvote 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 thatwere counted on the gambling issue than upon the issue of the proposed constitution; no other issue on the ballot inthe special constitutional election received more ~otal votes cast and counted in any county, with this exception. l'hese 290 electorsmust be added to the statewide total of eiectors voting on approval or rejection of the proposed constitution (230,298) inorder to get the totalnumber of electors voring inthe 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 1972Montana Constitution,even under relatorsf interpretationofArticle 

### XIX, Section 

### 8,of ~ontana'spresent 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 isabsolutelynothing to indicate that the framers had inmind a multiple issueballotwherein contingent alternative issues would be submitted to the electors inaddition 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 isambiguous when read inconnection with the entire constitutional provision relating to submission of the proposed constitution tothe electors.rI The majority opinion then goes on to say the language isnot ambiguous but isclear, and that the reason for the difference in language between the three provisions inArticle XIX,

I I Sections 8 and 9 of the Montana Constitution is readily apparent". This isthe fourth case tobe 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, Mont

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

# .
--A 

## , 496 P.2d 1127, 29 St. Rep. 313. In Lennon, 

### Mr. Justice Haswell had this to say:It 

### kt issue iswhether the phrase requiring that I 

### constitutional delegatesbe 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 encompassesboth constitutional and statutory require- ~ientsfor election of state representatives. We hold 1 

### chat the phrase elected in the samemanner' means ~xactly what it plainly says---- that constitutional delegates are required to be elected by the same llectionprocedures 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 constitutionalprocedures 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 electionprocedures for representatives to be subsequently enacted by the legislature and amended from time to time. We remainunimpressed with the applicability to Montana of three cited cases from other states to the contrary: Livingstonv. Ogilvie, 43 I11.2d 

### 9,250N.E.2d 138;Bakerv. 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 itshistory and constitutionalprovisions is entirely unwarranted." And further: "A further observation,albeit unsolicited, is that 1 

### since the referendumuses the language revise, alter, or amend the constitution' it must have been contemplated that the work of the conventionmight 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. JusticeHaswell states that there is nothing to indicate the framershad in mind a multiple issue ballot. He must have forgottenwhat he wrote in Lennon. Also, he must have ignored the plain meaning of the language in Sections 

### 8and 9,Article X.IX. Following is our view of the law and our resolution of the problem at issue. The issue is a narrow onebut the solution is difficult.Article XIX, Section 

### 8, states:

rI

The legislative assembly may atany 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 shallbe 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 atitsnext sessionprovide for the calling thereof. The number of members of the convention shallbe the same as that of the house of representatives, and they shallbe elected inthe same manner, atthe same places, and inthe same districts. The legislative assembly shallinthe act calling the convention designate the day, hour and place of itsmeeting, fixthe pay of itsmembers 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 asmembers of the convention. The qualifications of members shallbe the same as of the members of the senate, and vacancies occurring shallbe filled inthe manner provided for fillingvacancies inthe legislative assembly. Said convention shallmeet within three months after such election and prepare such revisions, alterations or amendments to the constitution as may be deemed necessary, which shallbe submitted tothe electors for their ratification or rejection atan election appointed by the convention for that purpose, not less than two nor more than sixmonths after the adiournment thereof; and unless so submitted - and qrovedby 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 constitutionmay be proposed ineitherhouse of the legislative assembly, and if the same shallbe voted forby two-thirds of the members elected to each house, such proposed amendments, together with the ayes and nays of each house thereon, shallbe entered infull on their respective journals; and the secretary of state shall cause the said amendment or amendments tobe published in full inat least one newspaper ineach county (if such there be) for three months previous to the next general election formembers to the legislativeassembly; and at said election the said amendment or amendments shallbe 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 shallbecome part of the constitution. Should more amendments than one be

- submitted atthe same election, they shallbe so prepared and distinguished by numbers or otherwise that each can be voted upon separately; provided, however, that not more than three amendments tothis constitution shallbe submitted atthe 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 13nthe question. Section 

### 8. In approval of a revision---- the electors voting atthe election. Section 

### 9, In approval of amendments 

# ---- Those voting thereon. Our constitutional provisions on voting indifferent types of elections have oth.erexamples of varying language used, e.g.: Article X, Section 2,concerning the permanent seat of

I I government---- the majority of allthe votes upon said question1'; Article X, Section

### 3 concerning a change of the seat of government

# ---

# -"a vote of two-thirds of allthe qualified electors of the statevoting on that question"; ArticleXII, Section 9,concerning a statewide tax rate of 2 mills---- I Ia majority of allvotes cast for and against it"; ArticleXIII, Section 2, concerning debt limit

# ----IIa incljority of the votes case for and against it1'; Article XIII, Section 

### 5, concerning county debt limit

# ---- !'a majority of tb~ electors thereof, voting atan election tobe ?rovided by law"; Article XVI, Section 2, concerning removal of a county seat


## ----- IIa majority of the qualified electors of the county ata general election on a proposition toremove the county seat, shall vOte therefor"; Article XVI, Section 8, concerning consolidation of counties



## ---- I1 a majority vote of +: ;? f: electors ineach county fc 9: expressed ata general or special electionheld ;? ;? ;?". The basic issuebefore this Court should require us to determine the intent of the framers of the Montana Constitution when they adopted Section 

### 8 of Article XTX atthe constitutionalconvention, August 17, 1889. That sectionreads inpart:

11,l- J; J;

,, and unless so submitted and approved by a majority of the electors voting at-theeleckion, no such revision, alteration or amendment shall fake effect.II 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 certainrules of law which are so well settled that it isunnecessary torefer 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 tobe given the natural signification that the words imply, in the order and grammatical arrangement inwhich the framers used them, and if, thus regarded, thewords 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 intendedtobe conveyed. If there isno ambiguity inthe language used, there isnothing 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 inascertaining the intent of the framers. If any of the provisions areunjust, so that their enforcement 

### willwork a hardship to any class of persons, the remedy must come from the people who have adopted them. Construction can furnishno remedy under our system of government. II Under Section 

### 8, the natural significance of the phrase "majority of the electors voting atthe election" is that to determine whether the proposed constitutionwas adopted, you count the totalnumber of electorsvoting atthe election, and one-half plus

one must have voted for the measure or it fails. We shallanalyze this interpretation on which, at firstblush, the au~horities may seem tobe split, but there is something we feelreconciles any apparent variance inthe cases. That point isthat Nontana inthe 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 electionwas a separate one isconclusively established by the mandatory requirement of Article XIX, Section 8, which states the ratification or rejectionby the people must be by an election "for that purpose. I1 This ismore clearly pointed out when it isfound that the pollbooks disclose more people voted inthe regular primary than voted on the constitutional issue. Also, the facts are that therewas 

### a great variance inthe number of people who voted on the other three matters referred and on the proposed constitution itself, so itwould be pure conjecture to determine who voted on the constitution and who did not. Allbriefs touching the point atissuehere 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. Stateex rel. Hayman v. StateElection Board, (1938), 181 Okla. 622, 75 P.2d 861,862,864, is a case inwhich a constitutional amendment was submitted to the voters, and the constitution of Oklahoma provided, inpart: "If a majority of allthe electors voting at such election shallvote infavor of any amendment thereto, it shall thereby become a part of the Constitution.I1 OIclahoma alsohas a statutewhich makes every precinct election board return to the county electionboard the totalnumber of electors voting at the election so the state electionboard could certify the totalnumber of ballots cast atthe particular election. The same statuterequires the county electionboards torecord the number of ballots spoiled or not voted, allof which isreported to the state electionboard. The proposed amendment received a affirmative vote of 379,405, and a negative vote of 219,996. Thetotalvotes cast as shown by the certificatewas 767,745 votes, and the electionboard determined that the amendment did not pass. An actionwas brought, and the Oklahoma Supreme Court held that the electionboard was correct. The Supreme Court refused to issue the

### writ tochange what the electionboard 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 eliminatingmany voterswho, irkthe instant case, voted only State, county, or precinct ballots. The inaccuracy and fallibilityof this method are conspicuously apparent. They assert that thisnumber should arbitrarilybe considered as I representing thenumber of electorsvoting at such election.' This ispredicated upon a presumption which is significant:ly contrary to the actual and admitted facts as presented inthis case. By thismethod every voter appearing at the polls who did not see fitto 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 isindirect discord with the theory conceded by allparties to this proceeding that everyvoter appearing atthe polls and casting a vote for or against any candidate or measure submitted is tobe considered indetermining 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 tothe voters by the legislature. The canvassingboard returned that 1,343,381 male electorsvoted 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 canvassingboard determined that the amendment had been adopted. The trialcourt 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 SectionArticle 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 tous that the people who read and voted on the adoption of the Constitution would not have understood it tomean that an election atv~hich a constitutional amendment was voted on, whether it was adopted or rejected, was tobe determined by the vote of those,only, who voted formembers 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 atthe election.

"The intention towhich force isgiven inconstruing constitutional provisions isthat vihich isembodied and expressed inthe language of the provisions.

11

As a Constitution isdependent upon adoptionby che people, the language used willbe understood in the sense most obvious to the common understanding. "The language and words of 

### a Constitution, unless they be technical words and phrases, willbe given effect according to their usual and ordinary signification, and courtswillnot disregard the plain and ordinary meaning of the words used, to search for some other conjectural intention. 6R.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), 

### 17Wyo. 344, 99 P. 874, considered a vote on a constitutional amendment. The Wyoming Constitution, inArticle 20, Section 1, requires that an amendment receive a majority of the electors. It appeared that 37,561votes were cast atan election

on a constitutional amendment and 12,160 voted infavor of the amendment, and 1,3G3 voted against the amendment. The Court observed that the cases are inconflict, but that the language used inthe Wyoming Constitution referred to the electors of the state

sa that the matter must carryby more than a majority of those voting on the proposition, and it must be a majority of those who showed themselves tobe electors. In Green v. StateBoard 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 Idahotogive 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 shallratify the same". Idaho alsohas inArticle 20, Section 3, a provision similar to ours, "if a majority of allthe electors voting at said election shallhave voted for a convention

-7- .>a sb 7k. The Idaho Court made a great distinctionbetween the meaning of the two provisions and made the following observation which 

### isimportant here because of the similarity of the language

construed that tobe construed inthe instant case: "If theywere, as counsel for defendants contend, intended tomean 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 inarbitrarily saying that the language used in the two sections was intended tomean the same thing. On the contrary, the reason seems tous tobe the otherway. We can understand why the makers of the constitution should apply a different and more stringent rule inthe adoption of a call for a constitutional convention fromwhat they would inthe matter of a mere amendment, It 

### is true, the amendment under consideration isone of vast importance, but so, likewise are the other amendments submitted athe 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 itwas not isvirtually to say that no amendment of the constitution ispracticable. In fact, counsel do not strenuously contend for a construction involving such a conclusion, but rather insist I that thewords 'majority of the electors, in section 

### 1, should be construed tomean the same as the words 'majority 1 of allthe electorsvoting at such election, in section 3. Even the authorities citedby counsel do not go to such an extent to sustain such a conclusion." The reasoning and construction of the Idaho Court isproper and logical. It isa maxim of statutory construction, no less applicable to constitutional law, that "where there are several provisions or particulars, such a construction is, ifpossible,
tobe adopted as willgive 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 isconsistent with these principles for it giveseffect to two differently worded sections "majority of the electors" and "majority of allelectors voting at said election.l1 The apparent intent of the framers to impose a stricterrequirement in convening a convention than inratifying an amendment is also considered. InLee v. State of Utah, (1962), 13Utah 2d 15, 367 P.2d 861, a constitutional amendment relating towartime and emergency powers of the legislature was submitted to the voters and thereafterwas 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 electorsvoting thereon, as provided by their constitution, had voted in favor, the amendment had been ratified. In Town of Pine Bluffs v. StateBoard of Equalization, (19581, 79 Wyo. 262, 333 P.2d 700, itwas contended that a constitutional amendment was not properly adopted because itwas not supported by

a majority of the electors of the state although it got a majority of those voting on the proposition. However, it didhave a majority also of those voting at that particular election. The argument was that there were more franchised voters inthe state taking into consideration allthe people who were registered, and as a consequence, it didnot receive the support of a majority of the electors. The Court thereheld, citing Indiana, that a sensible construction had tobe applied, and the wording "all electors of the state" are the electorsvoting at the particular election, Article XIX, Section 8, of the 14ontana Constitution relating to the ratification of constitutional revisions after a convention,

It provides inpart that such ratification must be by a majority of the electorsvoting atthe election." Section 9, relating to the ratification of amendments proposed by the legislature, provides

11 inpart that such amendments must be approved by a majority of those voting thereon." It isthis difference in language which dictates that the proposed constitution may have failed. "[flotingthereon" as interpreted by the Idaho Court inGreen, may be ~aken tomean a count of ayes and nays. 

## "[~loting atthe election" must mean something different and more; that 

### is, allthose who castballots whether ayes, ornays, 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 itsdecision on such a distinction: "The question before us 

### is this: Does the Constitutionrequire a different vote forthe 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 electorsvoting at such election.'

IIIn short, we arenow asked tohold that the people did not clearly understand what theywere thus doing. We areasked tohold that, despite the 1899 opinion of the Attorney General upon the very issue here presented, despite the unsuccessful legislativeattempt to overcome it immediately thereafter, despite the ruling of the Board of StateCanvassers 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 allof this turmoil had raged, the people did not reallyunderstand the clear meaning of thewords they were using, once again, in their new Constitution. (Constitution of 1850, article 20,§2: '+ ;? incase a majority of the electors so qualified, voting at such election, shalldecide in favor of a convention

.Pa -*- -1- 

## ' 

# ,. ,, ,,

# . Constitution of 1908, article 17, $4:

## ' "" ,. ,, 

### " 

# ,. In case a majority of such electorsvoting at such election shall decide in favor of a convention ;k 2'; ik. ') iqe are tohold thatwhen they required to pass a constitutional amendment a majority of the votes cast !:hereon, and when they required to calla constitutional zonvention a majority of the votes cast at such election, they were actuall-yprescribing no difference between the two votes but were in fact merely calling for the same vote on each. Allof thiswe decline to do. The understanding of our people isnot so meager. Their Aistinguished leaders who framed the Constitutionwere not so inept, so thoughtless, so blind to the issues 35 the day. From the language used it isclear thatthey mean2 todistinguisl~ between the votes required for a simple amendment and those required to call a constitutional convention, and our holding isthat they did so distinguish, "We have thus relied upon the contemporaneous ~nderstanding of the people. Their understanding i-s as relevant today as itwas a half-century ago 2nd ithas a direct applicability to the situation '3efore us. When the people went to the polls in



### !958 tovote upon the question of a constitutional .zonvention, they went with the contemporaneous aderstanding that a failure tovote upon the constitutional question would have the practical effect 3f a vote inthe negative thereon. Such 

### isnot only she clear phrasing of the Constitutionbut the highest court inthe Statehad unanimously so ruled with respect thereto. We have no way of knowing how many ~f the 900,000 electors who failed tovote on the Lssue would have,voted in the affirmative thereon, had they voted, orhow many who failed tovote did so 3ecause of reliance upon the practical effect of their failuretovote. Obviously we cannot say that the r~roposition carried nor can we command the Board of StateCanvassers, asplaintiff 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. InTinkel v. Griffin, (1902), 26 Mont. 426,431, 

### 68 P. 

### 559, the Supreme Court had before it a vote inFlathead 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 electionwas 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 atan election tobe provided by law. ?I This language issomewhat different than the language in Sections 8 and 9, Article XIX, of the Constitution. The question arose as towhat constituted a majority of fhe electors of the county voting. The Court pointed out that the election could have been held by itself or atany time. As a consequence, the majority of the electors voting at the election tobe 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 itwas held atthe same time as the general election. Thus therewere two elections the

same day. The Court inTinkel said this: "~t appears that the highest number of votes cast for any office voted upon atthe election was 2,400, that 1,000 were cast infavor 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 willbe observed that the requirement 

### is that the approval must be by a majority of the electors of the county voting, not ata general election, but atan election tobe provided by law,

I1

As 

### we have seen, such an electionhas been provided by law tobe held atany time it may be deemed necessaryby the board of commissioners, It happens, also, that themanner of holding it isthe same as that prescribed for general elections. Thus it nay, with perfect propriety, be held atthe same time atwhich a general election isheld; but the fact that this isthe case does not require a different standard of estimating the majoritynecessary from that which would govern if the election isheld 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 atan election, etc., clearly means a majority of those who vote, and not a majority of allthe electors of the county, or of those who vote upon any other issue atthe same or some other time. If the election on the issue of a loan had been upon another day, therewould have been no question but that itwould 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 inthis particular instance itwas 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 indetermining whether a majority voted for or against the bonds. We have no argument with that philosophy. The same argument is applicable to the case atbar 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. Tinkelwas followedby Morse v. Granite County, (1911), 

### 44 Mont, 78, 95, 119 P, 286. There,the county commissioners calledan election to submit to the voters the matter of borrowing $50,000 tobuild a courthouse. The district court of Granite County ruled inter alia thatnot sufficientvoters had voted in favor of thebond and held the bond issuevoid and ordered an injunction to issue. The Court cited Tinkelwith approval:

11fThe evident meaning of the Constitution

### isthat the approval must be the result of an expression of a majority of those voting. The expression 1Imajority of the electors thereof voting at an 11 election, etc., clearly means a majority of those who vote, and not a majority of allthe electors of the county, or of those who vote upon any other issue atthe same or some other time. 111 The Court then went on to say that the laws and the Constitution shouldbe so interpreted as tobecome useful. A majority of the electorswho voted atthe 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

1Ia majority of the electorsvoting atthe election". This positive assent isreferred toby many writers and courts as an extraordinary

ma jori ty

# .

The question inthe instant case isa majority of what group? Clearly, that of "electors voting atthe election" 

### is required, What that means under the factshere isthe problem. As relatedheretofore, the relators' position 

### is simply that the Secretary of state's certifiednumber voting 

### is 237,600 and that answers the question. But does it?

1I The respondent says simply that the group voting atthe election1'isconfined to those voting on issue 

### ?/I, or ashe puts it the "main issue" and that answers the question. But does it? We should then attempt to analyze the figure certifiedby the Secretary of State. The Secretary of State recited that he had--C . 

# - --.



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## .-

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### - 

## ed Constitrriion

.I

ELECTIO:.: I:3RTHC CATIFICATION

### OR REJECTION OF TI4E PROPOSALS 

### OF THE CONSiITUTIOMAL CON\'ENTION, JUNE 6, 1972 

# CQ-SC~C~~~ For

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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 theballot. A total of 230,298 electorsvoted

~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 totalnumber of electors voting was ,2ertifiedas 237,600. In a compilation of votes by counties prepared by the Secretary of State from the abstracts, on issue 

### #3 therewere 18 counties which had more votes than on issue

### #I, by a total of 290 votes. This fact,, standing alone, demonstrates conclusively that electorsvoted on the ballot (thus atthe election) but did not allvote on issue #1. But of the 7,302 votes difference between the number voting on issue/I1 and the totalnumber certified

as voting atthe election, it isimpossible on the record before

us todetermine how many of that number are actualvotes 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 

### isnot endorsed by the official scamp isvoid and shallnot be counted. A ballot orpart of a ballot isvoid and sh.allnotbe counted ifthe elector's choice cannot be determined. If a part of a ballot issufficiently plain to determine the elector's intention, the electionjudges shall count that part. 11 it isclear 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 tobe followed, sections 23-3601 through 23-3618, 

### R.C.M. 1947, set the procedure for voting. The voting on the proposed constitutionwas treated as a special election and specialpoll books were kept on the voting. Section 23-3610 provides that the person's name must be recorded inthe poll book ashe voted; provides for che keeping of records for the 

### list of allvoters who voted, and a certification by each precinct as totirho 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 inthe order voting. Such listislcnown as and recorder the poll book. From these pollbooks each county clerk,/should know exactlyhow many persons voted on the constitution. If the oEficials followed the law, section 23-3605 provides that unmarked ballots should be returned to the electionjudges. Section 23- 

### 3606 provides that a voter shallreceive 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 allgood 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: Inpreparing ik ;k ik the abstracts 9: ;k 9: (I) Check alltotals against precinct entries. f: 9: 

### i'i(4) It isvery important that you enter the totalnumber of electors who are listed on the pollbooks for the separate election on the proposed constitution on the front of he abstractbook for that el-ection.

n Please check 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 tallyof 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 electorsvotedatthe special election and then fileswith his brief, through the Attorney General, an affidavit of himself, the Secretary of State, and the StateTreasurer, constituting the state canvassing board, whick asserts that the figure 237,600 was the totalnumber 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 tabulationby 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 totalvotes cast, 24 counties show differences between the primary and special election totals, while, significantly, 32 counties show identical totals! Using one example, inLewis 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'singleballot 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 totalvotes cast in the two separate elections isrecorded as 2,832, identical in each. Yet inthe 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 forbut significantly 295 more voters expresseda preference here than inthe senatorialrace. This example demonstrates that voters do not vote on alloffices or all issues, but nevertheless do vote, and the totalnumber of electors voting atan election cannot be measured by a single issue or office inthat particular election. These questions pose other questions. Did the precinct and county election officials follow the election laws by adjusting orbalancing their pollbooks with the validballots? Or, did they follow the Secretary of State's instructionsby inserting the number of electors listed intheir pollboolcs? It appearsbeyond a doubt that some precincts and some counties did it eachtiray! TITUSthe figure of 

### 237,600 certifiedby the Secretary of State likely reflects a combination among counties of net and gross figures. It isa critical fact question that

no analysj-s short of a recanvass by precinct can answer. It isnoted here that no suggestion of fraud, bad faith, irregularity or anything of that nature has been reported or urged inany of the 981 precincts inthe entire state. That the election result on the proposed constitutionwas close 

### is selfapparent----a difference of only 

### 2,532 votes, The proposed constitutionwas approved in 12 counties and defeated in

### 44 counties, Would a recanvass affect the result? Who knows, without the correct figure inthe 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 toprove its position. But from our previous discussion it is clear that to change such a basic document as our Constitution, a clear cutwill of the people expressed within the rules laid out inArticle XIX, Section 

### 8, ismandatory and should not rest on the niceties and subtleties of therules on burden of proof and presumptions of law. We arehere concerned with hard, cold, mathematical factswhich can be determined. ThisCourt 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 ofmandamus to compel a recanvass by precinct of the votes cast in the June 2, 1972 election. 

### A canvassing board cannot evade its dutiesby 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 isviewed in the samemanner as a total failure to make a canvass in the first instance,and awrit may issue to compel the board to reassemble and make a completeand accurate canvass of all the returns. This is supportedby ample statutory and case law. In this analysis the first point that must be considered is the statutory law. Sections 23-4007and 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 shallburn the envelopeswithout 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 shallkeep them unopened until the commissionersmeet 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 shallkeep the envelopes or packages unopened until the contest is finally determined and then destroy them. 

### If the courthasmtody of the envelopes or packages as evidence, they are in the custody of the court and the registrar shallnot destroy them." There is no dispute that the issue before the Court is an election contest. Did the proposed constitutionpass or fail? This contest was filed in this Court and the above cited statutes explicitly and implicitly grant the Court the authority to compela 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 legislaturehas provided exact instruccions by which a recount may be held, and this Court readily submits to those instructions. The legislaturehas 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 isthe case athand, therefore, the requisite power and means exist for a recanvassing of the June 2, 1972, special election, inorder to determine the

I I nxact number of electors voting for" or "against" in that election. A recanvass isnot a new or unusual remedy. In State

ex rel. Lynch v. Batani, 103Mont 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, isapplicablehere.

1 

### here it was recorded: A canvassing board, in ascertaining and registering the effect of the returns, acts ina 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 isnot performed atall. 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 pollbooks and tally sheets as indicating a result which a proper consideration of the entire document shows beyond a question tobe wrong. Whatever might be the rule ina situation admitting of a substantial difference of opinion, when a court can determine with certainty that the pollbooks and tally sheets show a certain number of votes tohave 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 otherjurisdictions supports the principle expressed inLynch. The following cases stand for the single proposition that a board of canvassers can be reconvened tocorrectly, accurately, and truly ascertain the result of an election. Statev. Mills, 132W.Va.580, 53 S.E.2d 416; Eaton

v. County Court of Cabell County, 140W.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, 211Ark. 789, 202 S.W.2d 603; Mahoney v. Board of Supervisors of Elections, 205 Md. 325, 108 A.2d 143; Statev. County Court of Logan County, 145W.Va. 581, 116 S.E.2d 125; and Statev. Mercer County Court, 129 W.Va. 584, 41 S.E.2d 855. The listisendless, but the simple proposition exists that this Court has the power through the statutesheretofore cited, and the means, through the granting of a writ, to order a recanvass of the precincts of Montana todetermine the totalnumber voting atthe special election on the proposed constitution. We would order the Secretary of State to immediately take actionby issuing instructions to the fifty-six county clerk and recorders inMontana toconduct a recanvass by precinct tobalance the pollbooks with the validballots todetermine the totalnumber of electors voting atthe special election. In filing the foregoing dissent, we recognize the futility of it. By a three to two vote this Court 

### isdeclaring a new majority constitution tohave been adopted. We believe thelapinion tobe wrong; and therefore dis.sent. We are aware that under our proposed solution a recanvass might reveal the same result; that is, that itwould show a majority of those voting at the electiondid approve. If that were tooccur,