I dissent. It is not important as to which of the parties of this controversy shall prevail except as it affects their own fortunes, but it is vitally important that this court observe legislative mandates as to the construction of statutory provisions, and it is likewise vital that we conform to the rule of stare decisis and not overrule former decisions of this court unless the reasoning in such cases is clearly unsound and the construction *Page 403 of statutes clearly erroneous. This much we owe to the many eminent jurists whose learning and profound reasoning we find in many decisions in the Montana Reports.
Time after time this court, like the good mariner who keeps the chart showing his correct course ever before him, has repeated either literally or in substance the solemn admonition of our section 10519, Revised Codes, which is to the effect that in the construction of a statute or an instrument it is not the office of the judges, whether they be judges of election or judges of the courts, to "insert what has been omitted, or omit what has been inserted." (Siuru v. Sell, 108 Mont. 438,91 P.2d 411, 413, 123 A.L.R. 423.) In that case we said: "We have neither the power nor the right to read the word `originally' or language of similar import into the statute. Our office `is simply to ascertain and declare what is in terms or in substance contained therein.'"
Section 696, Revised Codes, provides amongst other things that the "[voter] 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." In reversing the district court it was necessary for the majority to disregard the plain letter of this statute and in addition overrule a former well-reasoned and frequently cited case by this court — Carwile v. Jones,38 Mont. 590, 101 P. 153, 155.
As to Exhibits 5 and 9, it appears perfectly clear to me that the majority opinion has sacrificed the plain and mandatory requirements of the statute in an unwarranted effort to give effect to the apparent intention of the voter. The ballot represented as Exhibit 5 discloses an "X" having its intersecting lines without the square. This is clearly not in accord with the statutory requirement and directly in conflict with the rule laid down in Carwile v. Jones, supra. The language used in that decision is held by the majority to be dictum wherein it says: "At least the point of intersection of the two lines forming the cross must be within the square before the candidate's name." *Page 404
Instead of being dictum, it was of the very essence of the matter there under consideration. The decisive question at issue being whether an "X" without the square before the candidate's name constituted a vote for that particular candidate. Admitting, contrary to the fact, however, that that part of the opinion referred to by the majority in the Carwile Case was dictum in that case, there can be no question that in the case at bar it is sound law and supported by ample authority and sound reasoning. To be sure the "X" in the ballot, which the majority said should be counted for the contestant, was close to the square provided on the ballot, but close is at best but a relative and flexible term, and if the cross may be outside the square, the question immediately arises, How far outside before it shall not be counted? Under the reasoning of the majority, if it were at the other side of the ballot there would still be room for assuming that it was the voter's intention to vote for the particular candidate. The rule laid down in the Carwile Case provides a definite and certain criterion for the guidance of election officers and the voters, and when the rule is departed from we at once enter the realm of speculation and conjecture as to the intention of the voter.
It seems most unfortunate that this court should feel disposed at this time to abrogate plain statutory requirements and the able precedent of the Carwile Case, which the present decision certainly overrules in two particulars, namely, the "X" may be outside the square and the "X" may be dispensed with and another mark used. If the requirements of the statute are harsh or too technical, a view I do not entertain, the remedy is with the legislature.
I have frequently heard former prominent members of this court say that when the number of our Supreme Court Reports should reach 100 that we would seldom have occasion to go abroad to find authority to aid the court in arriving at a decision. This is a practice that is followed very generally by the courts of the older states; i.e., they are first guided by their own laws and decisions and it is only when questions are new and have not been fully determined in the home jurisdiction *Page 405 that authorities are sought from others. And it seems to me if that practice is ever going to be applied in this jurisdiction, certainly the case at bar is one where it should be observed in view of the fact that we have a plain statutory provision and a clear, well-reasoned decision of this court on the very points at issue in the action at bar.
However, as the majority has disregarded our own statute and our own decision directly in point (Carwile v. Jones, supra), heretofore mentioned, I shall likewise cite some authorities from other jurisdictions. The matter was aptly and logically stated inVallier v. Brakke, 7 S.D. 343, 64 N.W. 180, cited in Murray v. Waite, 113 Me. 485, 94 A. 943, Ann. Cas. 1918A, 1128, 1139, wherein the court said: "There was much discussion on the argument and in the briefs of counsel as to the duty of judges of election and courts to carry out the intention of the voter. This is true to a certain extent; but, as the legislature has requiredthe elector to express his intention by certain well-definedmarkings upon his ballot, his intention must be determined bythese markings, and not by the uncertain and undefined ideas ofthe judges of election, or by the courts, as to his intention. [Italics supplied.] The legislature has clearly and precisely defined the manner in which the elector may designate the candidates for whom he desires to vote, and has prescribed definite and fixed rules to govern the voter in designating such candidates. As before stated, the system is simple, and there is no difficulty in the elector's complying with the rules. In our view, it is neither the duty of judges of election nor the courts to fritter away the benefits of the system by strained efforts to get at the intention of the voter in any manner other than by following the rules prescribed by the legislature. If the elector does not take interest enough in his vote to follow these simple and easily understood rules, he can complain of no one if his vote is not counted. A system so simple and plain, and which can be comprehended by any elector of ordinary intelligence in a few minutes, must be followed. There can be no excuse for not following it." *Page 406
As further indicative of the fact that the legislature intended that voters should evidence their choice of candidates exclusively in the manner prescribed by statute are sections 698 and 699, Revised Codes. These sections expressly provide the remedies for voters in the event emergencies arise at elections where ballots are spoiled by improper markings or erasures, or where by reason of some physical or mental disability a voter is unable to mark his ballot. As properly stated by the Utah Supreme Court in Evans v. Reiser, 78 Utah, 253, 2 P.2d 615, 625: "If a voter does not know how to prepare his ballot, he may call upon the judges of election to assist him. If perchance through accident or mistake a ballot is spoiled, defaced, or improperly marked, ample provision is made for the voter to secure a second and a third ballot." Montana voters are equally as well provided for by the express statutory provisions mentioned, and it is needless therefore, for anyone to run the chance of casting an improperly marked ballot when such readily available remedies are theirs for the asking.
After citing various authorities pro and con it was said in a note in Ann. Cas. 1918A, page 1136, "The majority rule, however, seems to be that a statute prescribing the marks to be used by a voter in indicating his choice is mandatory."
Some fourteen states are given as authority for this rule.
In the case of Allen v. Fuller, 332 Ill. 304,163 N.E. 675, 679, it was said:
"The lines forming the cross in Respondent's Exhibit 44 extend partly within and partly without the square. The lines must cross within the square to comply with the requirement that the voter indicated his preference by a cross in the square. (Grubb v.Turner, 259 Ill. 436, 102 N.E. 810; Sievers v. Hannah,296 Ill. 593, 130 N.E. 361.) A careful examination of the ballot shows that the lines cross within the square, though the ends of two of the lines extend outside of it. The objection was properly overruled.
"The lines in Respondent's Exhibit 46 cross outside the square, and for that reason the objection to it should have been sustained, instead of overruled, as it was; and for the *Page 407 same reason the objection to Exhibit 65 was properly sustained."
In the case of Donlan v. Cooke, 212 Iowa, 771,237 N.W. 496, 498, it was said: "In some of the ballots, crosses were placed thereon which were not placed in the square as required by law. It is conceded by all parties that these ballots should not be counted."
In the case of Wiggins v. State, 106 Fla. 793, 144 So. 62,63, it was said: "Only ballots where the voter has indicated his choice by the use of an X-mark, that is, by a cross-mark of some character, should be counted. The use of any other mark than a cross-mark could be used as the vehicle of fraud and identification of the ballot. Therefore, we hold that the provision of the statute which requires the use of a cross-mark to indicate the choice of the voter is mandatory. Neither will the fact that a voter has placed his cross-marks opposite the names of two candidates where only one is to be nominated vitiate the ballot, as it applies to other candidates properly voted for."
In Sweetser v. Pacheco, 172 Cal. 137, 155 P. 639, 641, it was said: "The trial court did not err in refusing to count as a vote for Sweetser either ballot `Novato 1-15' or ballot `Novato 2-8.' On the former all the crosses, including the only cross opposite Sweetser's name, were stamped in the rectangular space at the right of the name, but none of the stamps was either wholly or partly within the voting square. Under the law as it now is and has been ever since the year 1903, the only way in which a voter can indicate his intent to vote for a particular candidate is by stamping a cross in, or at least partly in (see section 1211, Pol. Code), the voting square, the provisions of section 1205, Political Code, being mandatory in this regard. Any other method is legally ineffectual to express an intent to vote for a particular candidate, by reason of the express language of this section providing how, and how only, the intent shall be indicated. This is made manifest by what is said by this court as to the mandatory character of section 1205, Political Code, in regard to the method of indicating a *Page 408 vote, in Tebbe v. Smith, 108 Cal. [101] 109, 41 P. 454, 29 L.R.A. 673, 49 Am. St. Rep. 68, Huston v. Anderson, 145 Cal. [320], 333, 78 P. 626, and Tout v. Hawkins, 143 Cal. 104,106, 76 P. 897. As that section now is, the voter who has omitted to stamp his cross in, or at least partly in, the voting square, opposite the printed name of a particular candidate, has not voted for that candidate. The case is simply one of no vote. As to ballot `Novato 2-8,' all the crosses, including that in the voting square opposite Sweetser's name, were made with a lead pencil. What we have already said applies also to this ballot. In view of the provisions of section 1205, Political Code, the intent of the voter to vote for a particular candidate whose name is printed on the ballot can be expressed only by stamping a cross in, or at least partly in, the voting square. Lacking such stamped cross, the ballot cannot be counted for such candidate, even though the courts may feel that the voter in fact intended so to vote. The express language of the law forbids it."
What has been said above by other jurisdictions in regard to the voter being required to place the cross within the square applies to a great extent to the other of the two ballots that I think are vitally defective, the two ballots being designated as Exhibits 5 and 9. In Exhibit 5 it will be noted, as shown in the majority opinion, the cross was outside the square, while in No. 9 there was merely a check mark made within the square. The case of Donlan v. Cooke, supra, applies to the check mark voting as well as the cross. In regard to the check mark it was there said, "three ballots were marked with a check mark instead of a cross. These ballots cannot be counted."
The majority opinion instead of construing sections 696 and 777, Revised Codes as in pari materia, have given section 777, under which the majority assume to determine what the intention of the voter was, dominating control to the complete elimination of the provisions of section 696, while it appears clear that exactly the reverse should be the mode of construction; i.e., *Page 409 the intention of the voters must be determined by their compliance with the plain wording of the last named section.
In that connection, we think the reasoning in Evans v.Reiser, 78 Utah, 253, 2 P.2d 615, 624, is particularly pertinent. It is there said:
"It is inconceivable that the legislature would lay down rules to be followed in the counting of ballots which are merely directory as to what ballots shall be rejected and what ballots shall be counted. If such were the case, the result of an election might well depend upon the whim or caprice of those whose duty it is to count the ballots. The provisions of our statute which directs that `any ballot marked by the voter in any other manner than as authorized in this chapter shall be rejected' is plain, certain, and definite. It is not in conflict with or modified by any other provisions of the election law, and it is mandatory. Under such circumstances there is no room for construction and it is our plain duty to give it effect. As illustrative of the duty of the courts under such circumstances, we quote the following language from Black on Interpretation of Laws, Hornbook Series (2d Ed.) pp. 51-53:
"`Where the language of a statute is plain and unambiguous, and conveys a definite and sensible meaning, it is the duty of the court to enforce it according to the obvious meaning of the words employed, without attempting to change it by adopting a different construction, based upon some supposed policy of the legislature with reference to the subject matter, or upon considerations of injustice or inconvenience resulting from the literal interpretation of the statute, or even to give the law that efficiency and due effect which it will lack when taken literally as it stands.'"
The majority opinion also quotes at length from Dickerman v.Gelsthorpe, 19 Mont. 249, 47 P. 999, to sustain its contention that we must liberally construe our statutes. This is not only a rule of this court, but such rule is enjoined by statute — section 4, Revised Codes. But the case cited gives no support when read as a whole to the application made by the majority. At pages 255 and 256 of 19 Mont., 47 P. at page *Page 410 1002 of that opinion, we read, "The distinctive feature of the Australian ballot system is the use of the mark in connection with the names of the candidates and questions to be voted on; and, of course, unless the mark is employed to indicate thechoice of the voter in his ballot, the ballot he casts is anullity, however clearly that choice might otherwise beexpressed. (See Martin v. Miles, 46 Neb. 772, 65 N.W. 889)." Thus is the conclusion of the majority giving preference to assumed intention of the voter over the plain wording of the statute, repudiated by a former decision of this court that the majority has quoted to sustain its position as to use of the check mark instead of the cross.
Ballots designated Exhibits Nos. 5 and 9 are clearly illegal under a rational construction of our statutes, a former decision of this court, and by the majority rule in other jurisdictions, and should not be counted, and the judgment of the district court should be affirmed.
Rehearing denied December 19, 1939. MR. JUSTICE MORRIS dissenting.