No. 13076 

IN THE 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, IN AND 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 : All G 8 1975 

Filed : 

9PJ G 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 Stanley N. Smith a successful 

candidate at the 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 election was held in Powell County 

for the election of a trustee to the Board of Trustees of Powell 

County High School District. Petitioner was seeking reelection 

to the office and her name, and her name alone, was printed 

on the official ballot. 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 to 424 votes cast for Stanley N. Smith. 

Subsequent to such election Stanley N. Smith filed a 

petition for recount which action was later dismissed. Thereafter, 

Smith filed a petition to contest petitioner's election 

alleging the election judges and the board of canvassers ignored 

and refused to count for him approximately 25 write-in votes 

in the name of Dr. Smith, Dr. Stan Smith, Dr. G. Smith and 

Dr. M. Smith, instead of Stanley N. Smith. The petition prayed 

that the court declare the election of Juanita Browne void and 

that a certificate of election be 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 still not be entitled to the office of trustee, 

as a number of illegal notes were erroneously counted for him, 

which number if taken from his total count would reduce his 
number of legal votes below the number of votes given Juanita 

Browne and therefore her election could not be set aside under 

the provisions of section 23-4764, R.C.M. 1947. (2) That 

Stanley N. Smith was not entitled to such office because of 

violation of section 23-4753, R.C.M. 1947, which provides: 

"It shall be unlawful for any person at any 

place on the day of any election to ask, solicit, 

or in any manner try to induce or persuade any 

voter on such election day to vote for or refrain 

from voting for any candidate * *." 

The matter came on for hearing before Hon. Robert J. 

Boyd, Judge of the Third Judicial District. 

Every ballot cast was stipulated into evidence by 

segregating into separate groups ballots containing similar 

characteristics and each then being considered an exhibit. 

The 434 votes cast for Juanita Browne were not at issue; 

Stanley N. Smith's candidacy was by write-in vote. As a part 

of his campaign, stickers were printed and distributed which 

contained the name Stanley N. Smith, M.D., and containing a 

box with a small x printed inside the box. 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" or words to that effect. 

Of the votes counted for Smith, approximately 180 

ballots contained the sticker referred to above and were not 

placed over the name of Juanita Browne and contained no X or 

mark by the voter. In addition, 10 ballots counted for Smith contained his name written in by hand but contained no X in the 

box in front of the name of Juanita Browne or Stanley N. 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 square before the name of the 

person or persons for whom he intends to vote. 

"(4) The elector may write in the blank spaces, 

or paste over any other name, the name of any 

person for whom he wishes to vote, and vote for 

that person by marking an 'XI before the name. I I 

After the hearing proposed findings of fact and conclusions of law and memorandum in support were submitted by both 

parties. On June 3, 1975, Hon. Robert J. Boyd issued his 

findings of fact and conclusions of law holding that the election judges 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 the judgment in such matter and ordered the 

Board of Trustees of Powell County High School District to 

forthwith issue to Stanley N. Smith a certificate of election. 

Here, petitioner asks this Court to determine whether 

or not the sticker with a premarked "x" is a legal marked 

ballot. 

Defendant district court argues this Court must determine 

and carry into effect the expressed will of the majority of the 

legal voters, as indicated by their vote, not regarding technicalities or errors, and cites Heyfron v. Mahoney, 9 Mont. 

497, 24 P. 93 and Peterson v. Billings, 109 Mont. 390, 394, 

96 P.2d 922. In Peterson this Court noted: 

"'1t has always been held in this state that if the 

intention of the voter can be fairly ascertained from 

the ballot, though not in strict conformity with the 

law, effect will be given to that intention. * *. "' 

Further, defendant argues holding to strict compliance with 

the law was either expressly or implicitly overruled by Peterson 

and that Peterson holds the method of marking the ballot is 

directory and not mandatory, for it allowed ballots to be counted 
which were not only "~d" outside the square before the canI1 I1 didate!k name, but also counted ballots marked with a V mark. 

Peterson and two earlier cases cited as being 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 the ballot and in each there had been 

a distinct marking of the ballot by a voter. Here, the mark on 

some 180 votes was the mark of a printer. 

The 1969 Montana legislative assembly enacted Chapter 368, 

whereby the election laws of the state were 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 in which 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 shall provide printed ballots 

for every election for public officers. He shall print 

on the ballot the names of all candidates, including 

candidates for chief justice and associate justices of 

the supreme court, and judges of the district courts; 

"(2) An elector may write or paste on his ballot 

the name of any person for whom he desires to vote for 

any office, but must mark it as provided in section 23- 

3606. When the ballot is marked in this manner it must 

be counted the same as though the name is printed upon 

the ballot and marked by the voter; 

"(3) Ballots other than those printed by the 

registrars may not be cast or counted in any election. I I 

"23-3515. Stub, size and contents. (1) The ballot 

shall be printed on the same leaf with a stub, and 

separated by a perforated stub. 

"(3) Upon the face of the stub shall be printed, 

in type called brevier capitals, the following: 

"(a) his ballot should be marked with an "Xu 

in the square before the names of each person or candidate for whom the elector intends to vote. The elector 

may write in blank spaces, or paste over another name, 

the name of a EeEson for whom he wishes to vote, and vote 

by marking an X in the square before the name. '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 his ballot by marking 

an X' in the square before the name of the person 

or persons for whom he intends to vote. 

" (4) The elector may write in the blank 

spaces, or paste over any other name, the name of any 

person for whom he wishes to vote, and vote for that 

person by marking an 'x' before the name. 11 

In Dunphy v. Anaconda Co., 151 Mont. 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 is controlling. +: 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 to be applicable to the 

instant case in determining legislative intent. The incention of the Legislature must first be determined from 

the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may 

not go further and apply any other means of interpretation. * * 9: Where the language of a statute is plain, unambiguous, direct and certain, the statute speaks for itself 

and there is nothing left for the court to construe. * * 

The function of the court is simply to ascertain and declare what in terms or in substance is contained in the 

statute and not to insert what 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 is the affirmative 

act of marking the ballot. State ex rel. Cashmore v. Anderson, 

160 Mont. 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 shall be 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 

for whom you wish to vote. * * *I' 
L'he scatute calls for flhe vocer to make '?is mark; an asfirmative 

ac~ is called for to signify his selection, not a premarked ballot 

:uark of a printer. 

We note that some 1-73 stickers were improperly placed 

dn the ballot which in itself is a failure to comply with the 

election laws. Where stickers are used section 23-3606 (4), 

x.C.M. 1947, provides: 

"(4) The elector may write in the blank spaces, 

or paste over any other name, the name of any person 

Eor whom he wishes to vote, and note for that person 

by marking an 'X' before the name. 11 

!.mproprr application of these stickers totk ballots renders 

them invalid. 

The provisions of ~ontana's election laws as to the marking 

of rhe ballot and the use of stickers are mandatory and not 

directory. Here, while the voters may have intended to vote 

tor Smith, this Court is not at liberty to validate those 

Sallots when voters fail to mark them in the manner provided by 

statute. 

Having determined the matter on the above discussed issue, 

we firrd no need to consider the question raised by petitioner as 

co the conduct of the campaign on election day. 

The findings of fact, conclusions of law and judgment of 

defendant district court are ordered vacated and the matter rerurned to that 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 

md act of the voter in pasting on the sticker. Judge Boyd 

was correct in every detail, and I would affirm. 

Justice. U