While I agree with the majority that the provision calling for the second canvass of votes which comes too late to allow Montana to effectively vote for president and vice-president of the United States is unconstitutional in that it deprives the voters of this state of that right and while I agree that by reason of the saving clause in the statute we may declare a part of the Act ineffective and still retain the balance, I cannot agree with the court's final conclusion that only the votes of soldiers which are actually deposited in the ballot boxes in the various precincts on election day, may be counted. The majority does not question the right of the legislature to make provision for the counting of ballots which are not received until after election day. There is no constitutional interdiction to prevent the legislature from making such a provision. The majority reaches this result *Page 230 through its interpretation of section 21 of Chapter 101, providing, "Nothing in this Act shall be deemed to repeal or amend any of the provisions of law now existing relating to election, but this Act shall be construed as supplementary to all such laws and designed to carry into effect the purposes herein expressed."
In the first place it seems to me that the provision for the counting of ballots received after election day is merely supplementary to the general election law, but if it could be said that the effect of Chapter 101 was to amend the existing election laws, then the last three lines of the section 21 show a very clear intention on the part of the legislature that the specific provision in sections 12 and 13 of Chapter 101 shall control. Those sections provide for the canvass of votes received after the date of the election. The legislature had clearly in mind the vast distances the ballots must travel, the difficulties attendant on mail service and in the plainest possible English language said that so long as the soldier casts his ballot on or before election day and so long as the ballot was received within the limits fixed by the statutes it should be counted. It is the province of this court, so often repeated by it that no citation of authorities is necessary, solely to determine the legislative intention where there is no constitutional problem presented. Here the majority on the basis of that part of section 21 which it has chosen to emphasize and ignoring the balance of the section, has stricken all this provision of the law from the books. It has gone contrary to the express language of the Act, specifically setting up the provision allowing for the canvassing of votes received after election day and it has also ignored the saving clause in section 21 which makes abundantly clear the intention of the legislature that in the event there is a conflict between the general laws already in existence and this special law dealing only with the votes of our servicemen and women, then the general must give way to the special. The obvious purpose of section 21 was to leave the general election law in effect as to everyone else and as to matters not covered by *Page 231 Chapter 101. That Chapter dealt with only the voting of Montanans in war service and section 21 was enacted to show that purpose.
The majority opinion is in effect an indictment of the wisdom of the legislature in passing such a soldiers' vote law as we have before us. I am in agreement that the present law is so hemmed around with restrictions and requires so many interchanges of correspondence between the state of Montana and our soldier citizens spread throughout the world that it will be difficult for our servicemen and women to effectively cast their ballots in our Montana election. That situation is not bettered by the interpretation placed upon the Act by the majority. In many cases, under the present interpretation of the statute, servicemen will have to cast their ballots many weeks in advance of the election day in order to comply with the law as it is now set up by the majority. The majority does not say how ballots received after the five-day period immediately preceding the election shall be disposed of. Under the law, as it was written by the legislature, ballots could only be forwarded to the local voting precincts that were received at least five days before the general election. May this court judicially declare that it is the duty of the secretary of state, in spite of the strict injunction of the legislature to the contrary, to forward to the various counties all ballots received during the five days preceding the election day? Under the interpretation of the majority that result would be desirable, but has this court the power to so decree?
The majority is very much concerned also with the possibility of fraud in the canvass of votes received after the date of election. That is a matter so exclusively within the province of the legislative wisdom that to me it seems incredible that this court can consider it here at all. If the method set up for canvassing and counting these ballots received after election day is unwise and defective the only cure for these provisions as well as many others that appear cumbersome is by special legislative session. Such a session could establish a method for canvassing these *Page 232 ballots received after election day in a manner so that there could be no possibility of the fraud the majority is concerned about. While of course there may be a possibility of fraud in the canvass of the votes, this court should not presuppose it any more than the legislature did and to me it seems more important that servicemen be given every opportunity to vote than to deny them that right because of the possibilities of fraud that may appear. The important thing however about the whole matter is that the legislature has spoken within its authority and whether wisely or unwisely is not our province here to determine. I therefore dissent from that part of the majority decision holding that ballots received too late to deposit in the ballot boxes at the various polling places on election day may not be counted.