No. 13076 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

THE STATE OF MONTANA, ex 

### re1 JUANITA BROWNE

## , Petitioner,

THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR 

### THE COUNTY OF POWELL AND THE HON. ROBERT J. BOYD, DISTRICT JUDGE, Defendants

# .

ORIGINAL PROCEEDING:

Counsel of Record: For Petitioner: William R. Taylor argued, Deer Lodge, Montana Greg J. Skakles argued, Anaconda, Montana For Defendants: Hon. Robert J. Boyd, Anaconda, Montana Ted L. Mizner argued, Deer Lodge, Montana

Submitted: July 15, 1975

Decided: 

## AllG

## 8 

## 1975 Filed: 

### 9PJG

### 8 

## 9975

### Mr. Justice John Conway Harrison delivered the Opinion of the Court

# . In this original proceeding petitioner Juanita Browne seeks a determination by this Court to set aside the findings of fact, conclusions of law and judgment of the district court, county of Powell, declaring StanleyN. Smith a successful candidate atthe election for trustee of the Board of Trustees, Powell County High School District. These undisputed facts
are the basis of this petition: On April 

### 1, 1975, an electionwas held inPowell County for the election of a trustee to the Board of Trustees of Powell County High School District. Petitionerwas seekingreelection to the office and her name, and her name alone, was printed
on the officialballot. Contestant Stanley

### N. Smith, M.D., conducted a write-in campaign for the office of trustee. The board of canvassers following such election, returned Juanita Browne as the successful candidate, holding that she received 

### 437 votes as compared to424 votes cast for StanleyN. Smith. Subsequent to such election StanleyN. Smith filed a petition forrecount which action was later dismissed. Thereafter, Smith filed a petition tocontest petitioner's election alleging the electionjudges and the board of canvassers ignored and refused to count forhim approximately 25 write-in votes in thename of Dr. Smith, Dr. Stan Smith, Dr. G. Smith and Dr. M. Smith, instead of StanleyN. Smith. The petition prayed that the court declare the election of Juanita Browne void and that a certificate of electionbe issued to Stanley N. Smith. Juanita Browne filed an answer, raising two affirmative defenses: (1) That even if the 

### 25 votes were counted for Stanley N. Smith, he would stillnot be entitled to the office of trustee,
as 

### a number of illegalnotes were erroneously counted forhim, which number if taken from his total count would reduce hisnumber of legal votes below the number of votes given Juanita Browne and therefore her election could not be set asideunder the provisions of section 23-4764, R.C.M. 1947. (2) That StanleyN. Smith was not entitled to such officebecause of violation of section 23-4753, R.C.M. 1947, which provides: "It shallbe unlawful for any person atany place on the day of any election to ask, solicit, or inany manner try to induce or persuade any voter on such election day tovote for or refrain from voting for any candidate 

# *

# *."
The matter came on forhearing before Hon. Robert J. Boyd, Judge of theThird Judicial District. Every ballot castwas stipulated into evidenceby segregating into separate groups ballots containing similar characteristics and each then being considered an exhibit. The 434 votes cast forJuanita Browne were not atissue; Stanley N. Smith's candidacy was by write-in vote. As

### a part of his campaign, stickerswere printed and distributedwhich contained the name StanleyN. Smith, 

### M.D., and containing a box with a small 

### x printed inside thebox. On the day of the election, April 

### 1, 1975, the election committee supporting' Stanley N. Smith, parked a truck approximately 300 feet from the Deer Lodge precinct polling place bearing two signs reading "Stickers for Doctor smith" orwords to that effect. Of the votes counted for Smith, approximately 180 ballots contained the sticker referred to above and were not placed over thename of Juanita Browne and contained no X or mark by the voter. In addition, 10ballots counted for Smith contained his name written inby hand but contained no X in the box in front of the name of Juanita Browne or StanleyN. Smith. These ballots counted for Stanley N. Smith did not conform to the requirements of section 23-3606(2), 

### (4), R.C.M. 1947, which provide:

### "(2) He shall prepare his ballot by marking I 

### an XI 

### in the squarebefore the name of the person orpersons forwhom he intends to vote.
"(4) The electormay write in theblank spaces, or paste over any other name, thename of any person forwhom he wishes tovote, and vote for that person by marking an 'XI 

### before the name. II 

### After thehearing proposed findings of fact and conclusions of law and memorandum in support were submittedby both parties. On June 3, 1975, Hon. Robert J. 

### Boyd issued his findings of fact and conclusions of law holding that the electionjudges impmpei!lycounted the votes referred to above for Stanley N. 

### Smith; that he received a majority of the votes cast at such election and was entitled to the office of trustee. He then ordered that the findings of fact and conclusions of law constituted thejudgment in such matter and ordered the Board of Trustees of Powell County High School District to forthwith issue to StanleyN. 

### Smith a certificateof election. Here, petitioner asks this Court todetermine whether
or not the stickerwith a premarked 

## "x" is a legal marked ballot.Defendant districtcourt argues this Court must determine and carry into effect the expressed 

### willof the majority of the legal voters, as indicated by their vote, not regarding technicalities or errors, and citesHeyfron v. Mahoney, 9Mont. 497, 24 

### P. 93 and Peterson v. Billings, 109Mont. 390, 394, 96 P.2d 922. In Peterson this Court noted: "'1t 

### has always been held in this statethat if 

### the intention of the voter can be fairlyascertained from the ballot, though not in strictconformity with the law, effect will

### be given to that intention. 

# * *."' Further, defendant argues holding to strict compliance with the lawwas either expressly or implicitly overruled by Peterson and that Peterson holds the method of marking theballot 

### is directory and not mandatory, for it 

### allowed ballots tobe counted

### which were not only "~d" outside the squarebefore the canI1 I1 

### didate!k name, but also counted ballots marked with a V 

### mark. Peterson and two earlier cases cited asbeing either expressly or implicitly overruled, Dickerman v. Gelsthorpe, 19 Mont. 249, 47 P. 

### 999; Corwile v. Jones, 38 Mont. 590,101 P. 

### 153, discussed the marking of theballot and in each therehad been
a distinctmarking of theballot by 

### a voter. Here, the mark on
some 180 votes was the mark of a printer. The 1969Montana legislativeassembly enacted Chapter 368, whereby the election laws of the statewere rewritten. The laws
were not copied nor taken from another source or state. Chapter 368, Laws 1969, enacted these sections of the Montana code relative to the manner inwhich an elector casts
a vote or marks a ballot: "23-3506. Registrar to provide printed ballots--marking by electors--other ballots ineffective. Except as otherwise provided in this act:
11

### (1) The registrar shallprovide printed ballots for every election forpublic officers. He shallprint on theballot thenames of allcandidates, including candidates for chief justice and associatejustices of the supreme court, and judges of the district courts; "(2) 

### An elector may write or paste on hisballot thename of any person forwhom he desires to vote for any office, but must mark it 

### asprovided in section 23- 3606. When theballot ismarked in this manner it 

### must be counted the same as though the name isprinted upon theballot and marked by the voter; "(3) Ballots other than those printed by the registrars may not be cast or counted in any election.II 

### "23-3515. Stub, sizeand contents. (1) The ballot shallbe printed on the same leaf with a stub, and separated by 

### a perforated stub.
"(3) Upon the face of the stub shallbe printed, in type calledbrevier capitals, the following: "(a) 

### his ballot should be marked with 

### an 

### "Xu in the squarebefore the names of each person or candidatefor whom the elector intends tovote. The elector may write inblank spaces, or paste over another name, thename of a EeEson forwhom he wishes tovote, and vote 

# ,. by marking an X 

### in the squarebefore thename. '9~ ""23-3606. Xethod of voting. (1)On receipt of his ballot, the elector must immediately retire to one of the booths and prepare his ballot.

I "(2) He shall prepare hisballot by marking an X' in the square before the name of the person or persons for whom he intends tovote.

"(4) The elector may write in the blank spaces, or paste over any other name, thename of any person forwhom he wishes tovote, and vote for that person by marking an 

## 'x'before the name. 11 In Dunphy v. Anaconda Co., 151Mont. 76, 79, 438 P.2d 

### G60, this Court discussed construction of statutes and held: "9; ;'c +< 

### In construing a statute, the intention of the Legislature iscontrolling. +: 9: -'- 4b Although various rules of statutory construction have been developed and employed in diverse cases that have come before this court in the past, we consider the following tobe applicable to the instant case in determining legislative intent. The incention of the Legislature must firstbe determined from the plain meaning of the words used, and if interpretation of the statutecan be so determined, the courts may not go further and apply any other means of interpretation.



# ** 9: Where the language of a statute isplain, unambiguous, direct and certain, the statute speaks for itself and there isnothing left for the court to construe. 

# ** The function of the court is simply toascertain and declarewhat in terms or in substance is contained in the statuteand not to insertwhat has been omitted. 

# ** In short, it is simply the duty of the Supreme Court to construe the law as it finds it.

# * it

# *."

In a recent opinion on the question of what constitutes the act of voting this Court held that voting isthe affirmative act of marking the ballot. State ex rel. Cashmore v. Anderson, 160Mont. 175, 500 P.2d 921. When applied to the school election here in question section 75-5915, R.C.M. 1947, provides: "Conduct of Election and Ballot.

# *** The trustee election ballots shallbe substantially in the following form: "OFFICIAL BALLOT "SCHOOL TRUSTEE ELECTION "1NSTKIJCTIONS TO VOTERS: Make an X or similar mark in the vacant square before the name of the candidate forwhom you wish tovote. 

# ** *I'L'he scatute calls for flhe vocer to make '?is mark; an asfirmative
ac~ is called for to signifyhis selection, not a premarked ballot :uark of a printer. We note that some 1-73stickers were improperly placed dn the ballot which in itself is 

### a failure tocomply with the election laws. Where stickers areused section 

### 23-3606 (4), x.C.M. 1947, provides: 

### "(4) The elector may write 

### in theblank spaces, or paste over any other name, the name of any person Eor whom he wishes tovote, and note for that person by marking an 'X' before thename. 11 !.mproprr application of these stickers totkballots renders them invalid. The provisions of ~ontana's election laws as to the marking of rhe ballot and theuse of stickers aremandatory and not directory. Here, while the voters may have intended to vote tor Smith, this Court isnot at liberty tovalidate those Sallotswhen voters failtomark them in the manner provided by statute. Having determined the matter on the above discussed issue,
we firrd no need toconsider the question raised by petitioner as co the conduct of the campaign on election day. The findings of fact, conclusions of 

### lawand judgment of defendant district court are ordered vacated and the matter rerurned tothat court for entry of judgment in conformity herewith.

thief Justice 'l.-J."

### Yr. Jus~ice Tdesley Zascles dissenting:

L dissent. !think the majority opinion is much too narrow in cor~struing the election laws. I would look to the intent mdact of the voter in pasting on the sticker. Judge Boyd
was correct in every detail, and I would affirm.

Justice. 

# U