(concurring). — The determination of this proceeding by an order for the issuance of a peremptory writ of mandate was concurred in by all the members of this court, but upon a question of practice raised, and as to what constitutes “election returns” under the provisions of the statute, there appears to be some difference of views. At the commencement of the proceeding, on the affidavit of the relator, an order was made by the chief justice of this court, at chambers, in vacation, for the issuance of the alternative writ of mandate, returnable to the court, for hearing and determination by the court at a time designated. The question of practice comes by way of motion to quash the proceeding, on the ground that the court has no jurisdiction thereof for hearing, because the preliminary order for the alternative writ was issued by one justice instead of being issued by the court, convened and sitting as such. The writ of mandamus, as defined by the statute of this state, is a mandate by a court of competent jurisdiction “to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Comp. Stats. Mont. § 566, Code Civ. Proc.) The statute provides that the proceeding for mandamus shall be commenced “ upon affidavit, on the application of the party beneficially interested,” and prescribes two methods of bringing on the hearing of the application before the court. One method prescribed is by the applicant giving at least ten days’ notice to the party about to be complained of that application for the writ will be made to the court at the time and place stated in *41the notice. (Code Civ. Proc. § 569.) This brings on the final hearing of the application by the court, and, if a writ is granted on such hearing, the same is made final and peremptory. The other method prescribed by statute for bringing on the hearing of the application is the issuance of an alternative writ on the affidavit and application of the party beneficially interested. This preliminary process is addressed to the party complained of, and states “generally the allegations against him,” and requires of him the performance of the duty which appears from the affidavit to have been wrongfully neglected; or that he “show cause before the court at a specified time and place, why he had not done so.” (Code Civ. Proc. § 568.) The effect of this process is merely formal and initiatory, for the statute, after prescribing these two methods of calling upon the alleged delinquent party to appear before the court upon the hearing, provides that: “ The writ shall not be granted by default. The case shall be heard by the court, whether the adverse party appear or not.” (Code Civ. Proc. § 569.) By this statute it seems plain that, in view of the legislature, the alternative writ, while called a writ, was not regarded as anything more than the initiatory process, in case that method of bringing on the hearing was used; for that writ is issued before even a notice is given to the adverse party, and if, in view of the law, that was regarded in the sense of an effective writ, there would be a peculiar contradiction in the statute, because, as we have just seen, the statute provides that “the writ shall not be granted by default. The case shall be heard by the court, whether the adverse party appear or not.” It is significant, too, that the proceeding which comes on for hearing after service of the alternative writ or notice is called in the statute a “case,” and provision is made for the effective writ of command after a hearing of the case by the court, and not otherwise. These provisions of the statute, directing the practice in this proceeding, places the alternative writ, as to its effect, on the same basis as the notice served by the applicant on the adverse party. The office of each process is to bring the proceeding on for hearing. The adverse party may, if he is in fact neglecting to perform such duty, “which the law specially enjoins,” voluntarily perform the same, on receiving either the notice or the alternative writ. *42and answer that he has performed such duty; or he may neither perform the act sought to be compelled, nor answer the alternative writ or notice, nor otherwise appear to show cause for the alleged neglect. He may wait, with the assurance of the statute that on the return of these formal proceedings a hearing must be had by the court, and no final and effective command will be granted without such hearing. Whether the proceeding was instituted by notice given by the applicant before making the application, or by way of the alternative writ sent out as a process of the court, the proceeding is to be heard and determined by the court, after the adverse party has been given the opportunity to answer, and no peremptory command can issue without such hearing and final determination by the court. The question raised is whether it is proper practice, in the initiation of these proceedings, under these provisions of law, to allow the alternative writ to be issued as the court’s process, on the order of one justice, as has-been the practice, or whether the court must hear the application before the adverse party is notified, and before the real hearing of the proceeding, in order to send out the preliminary process to bring on the hearing.
It is made plain from the provision of the statute that the alternative writ amounts to no more, in effect, than to cite the party complained of to appear and show cause, if any he has, why he should not be compelled by mandate to perform the duty in question. Therefore, to hold that the court may not, in its practice, under the provisions of this law, allow the preliminary process to issue upon the order of one justice, is holding the power of the court very narrow in the realm of mere formal practice. If the court may not, through the order of one of its justices, allow the preliminary process to be issued to bring on the hearing, the power of the court in this regard is limited by such construction below that of a private suitor in the proceeding. The applicant may bring on the hearing by notice, on his own motion, without any order or process of the court, and that notice accomplishes the same purpose as the alternative writ. Respondent’s counsel have cited no authority to support the point they contend for. It is urged on hypercritical and extremely narrow construction of terms. The Constitution provides that this court “shall have power, in its *43discretion, to issue, hear, and determine” the writ of mandamus, among other writs specified. This is exactly what the court has done in this proceeding; and no one affirms, nor is it held, that the peremptory writ of mandamus can be issued without hearing and a final order by the court. It does not follow therefrom that the court shall not, through the order of one of its justices, allow the preliminary process to go forth, which effects nothing more than to bring on the hearing. The fact that the Constitution provides that the District “Courts and the judges thereof shall have power also to issue, hear, and determine writs of mandamus,” etc. (art. viii, § 11), does not, in my opinion, tend to establish the proposition that this court must not allow the preliminary process to go out through the order of one justice to bring on the hearing; nor does the provision of the Constitution that one justice of this court may “issue, hear, and determine” writs of habeas corpus and of certiorari in certain cases, have a tendency, in my opinion, to restrict the power of this court in the orderly and convenient shaping of its practice so as to avoid waste of time by superfluous formality in the issuance of the preliminary process to bring on a hearing before the court, in matters where the court must give full hearing before any effectual order can be made. The tendency of those liberal provisions for the use of said writs by one justice of this court and by a lower court, or judge thereof, in the administration of justice, seems to me to point in the other direction. (State ex rel. Macklin v. Rombauer, 104 Mo. 619.) For these reasons I concur in overruling the motion to quash the alternative writ issued in this proceeding. In view of the fact that the practice pursued in this proceeding has been so long established, and followed by able judges, administering the law under the same statute now prevailing, and that such practice, as to the issuance of the preliminary process, does not affect any substantial rights of the parties, I should not regard the point raised as worthy of extended treatment, had it not become the occasion for dissension in the course of this proceeding.
The most important point which arose in this proceeding, in my opinion, was the question as to what documents the county canvassing board may examine as constituting the election returns from the several precincts. An important part of such *44returns is one of the two poll-books kept by the clerks of election, wherein they enter the name of each elector as he appears, and his vote is admitted by the judges; and also showing the result of the canvass of the votes of such precinct by the judges and clerks thereof at the close of the election; which poll-book, duly certified and attested, as required by law, is returned to the county canvassing board. That part of the returns is provided for by sections 1019-1030, inclusive, of the Compiled Statutes. Subsequent to the passage of that statute-an act was adopted by the legislative assembly providing for the registra- ■ tion of all qualified electors, prior to the time of holding each general election; and providing that votes can be received from electors only on a showing of their previous registration, as required in said act. (Sess. Laws, 1889, p. 124.) This law provides that the fact of previous registration must be shown by a “check list” tor each voting precinct, which is a list of the registered voters of such precinct, taken from the official register of the district; or, if the name of the elector whose vote is offered, does not appear on such “check list,” his vote can only be received on his production and surrender of a certificate of registration, issued by a registry agent, under seal of his office. Two classes of such certificates of registration are provided for in the Registration Act. One class comprise certificates issued to qualified electors, who, on account of a vacancy in the office of the registry agent of the district wherein they reside, are authorized to qualify before the registry agent of another registration district of the county, and receive from the latter agent a certificate of registration; and upon the production and surrender of such certificate the vote of the elector holding the same is admitted in his own precinct. This class of certificates is provided for in section 3 of the Registration Act, which reads as follows: “It shall be the duty of the chairman of the board of county commissioners of any connty in Montana, when he shall have received notice from any responsible citizen of the death, disqualification, or resignation of any registry agent, after the opening and prior to the closing of the books of registration, to immediately, without giving notice, appoint some competent person to fill such vacancy, and it shall be the duty of such person so appointed to qualify within two *45days after receiving notice of such appointment. Should such person so appointed fail to qualify within the time herein provided, voters may, upon producing evidence as to their right to vote, be registered in any other district in said county, and any person so registered in'any other district shall, upon presentation and surrender of a certificate of registration, signed by the registry agent of said district, be considered a legal voter in the precinct of the district in which he is a resident: provided, this section shall not be so oonstrued as to interfere with the right of the full board of commissioners to make such appointment, except in cases herein provided. If any person applies to be registered in any district other than the one in. which he resides, and is entitled, upon proof, to a certificate of registration, as provided for in this section, such applicant, in addition to the proof required by this act to entitle him to registration, shall take and subscribe to an oath before the registry agent in substantially the following form:—
“-, Montana,-, 18 — .
“ I do solemnly swear that I make this application for registration in District No. - of -, county of-, Montana, because there is no registry agent within election district No.-, which is the district where I reside and am entitled to vote.
“Subscribed and sworn to before me this-day of -, 18 — .--, Registry Agent.”
Whereupon such person shall receive from the registrjr agent of such district a certificate, which said certificate shall bear the registry seal, and be substantially as follows, to wit: —
“Registration Certificate: I hereby certify that-is a citizen of the United States, or has declared his intention to become such, of the age of-years, and has been a resident of Montana for the past-consecutive months, and a resident of-,-County, for- months, and of the precinct for more than-days, and that he is in all respects a qualified registered elector under the laws; and I further certify that the reason he applies for and that I grant this registration certificate is because within election district "No.-, where he resides, there is no registry agent; and I *46further certify that he is, under the laws, entitled to vote in the ■-- precinct oí election district No.-,-County, Montana.
“Witness my hand and seal of office in election district No. -,-County, Montana.
[seal.] “--, Registry Clerk.
“Election District No.--,-County, Montana.”
The other class of certificates is called in the Registration Act, “State Registry Certificates,” and comprise those issued to an elector after such elector has been registered in the district where he resides, and his name is erased from the register upon his request, and a State certificate of registration is granted to him by the registry agent. Upon presentation and surrender of such certificate the elector holding the same may be registered in another place, where he has established his residence in time to become a qualified voter at the next ensuing election. On being so registered in the latter district, such elector surrenders his registration certificate, and his name goes into the check list of the precinct where he is last registered. But it is further provided in section 11 of the Registration Act that “in case any registered and qualified elector who has had delivered to him a State registration certificate pursuant to this section, and who has for good cause been unable to register the second time anywhere within Montana before the date of the closing of the registration books, may offer to vote at any precinct within the county where he resides and was registered to vote, or in any precinct in the county, but not the precinct where he lives and was registered, the judges of election shall challenge such person peremptorily, and put to him under oath such questions making him prove his identity as the person to whom such certificate is issued, and such other questions as may seem to them proper in order to fully test such person’s qualifications; and if he be , disqualified for any cause, or fail or refuse to answer any question concerning his qualifications, or if he fail to identify himself, he shall not be permitted to vote; but if he be qualified he shall surrender his certificate, and the judges shall enter his name on the lists, and he shall be entitled to vote.” By these provisions it appears that votes may be received of electors whose names are not on the check list of the precinct, but *47such votes must be received on certificates of registration, issued as provided in the aGt, and surrendered to the judges of election.
Now, in relation to the returns of election (in addition to one of the poll-books of the precinct, to be returned to the county canvassiug board, as provided by the general election law), the Registration Act provides as follows: “ The copy of the official register, together with the ‘check lists’ for election precincts, as herein provided, shall be carefully preserved and duly certified to by the registry agent, and delivered, together with affidavits of objection, to some one of the judges of election in each election precinct, at a time not later than the day next preceding that on which such election is to be held, and such ‘check lists’ shall be carefully preserved, and any surrendered certificates which may have come into the hands of such registry agents pursuant to this act, and after election they shall be transmitted by the judges of election to the clerk of the board of county commissioners in connection with and as a part of the ‘election returns,’ as provided by law.” (§ 10, Registration Act.) It seems plain from the provision that the legislature, in requiring the registration of all qualified electors, and that no votes should be received except upon evidence of previous registration, shown by the check lists, or certificates of registration surrendered to the judges, and in further expressly providing that the check lists and certificates of registration which come into the hands of the judges from the registry agent “shall be transmitted by the judges of election to the clerk of the board of county commissioners, in connection with, and as part of, the election returns, as provided by law,” intended to place before the canvassing board, in the returns, the documentary evidence showing the registration of the electors appearing from the poll-book to have been allowed to vote at such precinct. This provision was evideutly made to carry out the spirit and purpose of the Registration Act. The return of the evidence of registration with the poll-book, as part of the returns, would show at once that the vote appearing from the poll-book to have been received and returned was a registered vote, and would thus constitute in some measure a voucher for the regularity of the returns shown by the poll-*48book. But the legislature, while expressly requiring the check lists and certificates of registration which came into the hands of the judges from the registry agent to be returned as “part of the election returns,” omitted, in the details, to require such other certificates of registration on which votes were received by the judges of election to be returned also with the check list. Here is a slight lapse or omission in the matter of details. But is not the intention of the legislature plainly visible? Why provide that the check lists (which would undoubtedly include the names of the great majority of electors lawfully voting at the precinct), and also such certificates of registration as the judges received from the registry agent, should be returned to the canvassing board “as part of the election returns?” If this manifests an intention that the returns should be accompanied by the evidence of registration whereby the judges admitted the votes appearing from the poll-book to have been cast, then that intention should be given effect in construing and applying the law; and that construction would simply be that, because of this manifest intention, the canvassing board should be allowed, not only to look at the check lists, but also to look at certificates of registration surrendered to the judges, on which votes were admitted, for the check list is not the entire evidence of registration on which votes may be lawfully received. This construction allows the provision of the Registration Act, as to such returns, to have effect. Any other construction makes vanity of the provision for sending up the check lists and certificates of registration received by the judges of election from the registry agent, and makes that provision operate to mystify, obscure, and cast doubt or suspicion on the returns shown by the poll-book, because part of the names on the poll-book may not appear from the check list to have been registered, and would be unaccounted for as registered, unless shown to be registered by an examination of the certificates of registration upon which they were admitted. A construction in conformity with the manifest intention of the legislature would construe the provision to mean simply that the county canvassing board may look at, “as part of the election returns,” the evidence of the registration of the electors whose vote3 were received, as appears from the poll-book, and such evidence *49would in a great measure vouch for the genuineness, honesty, and regularity of the vote returned, as having been received in conformity with the registration law. The statute of this State provides that in construing a statute “ where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” (Code Civ. Proc. § 630.) Another rule laid down by our statute is that, “ in the construction of a statute, the intention of the legislature, and, in the construction of the instrument, the intention of the parties, is to be pursued if possible.” (Code Civ. Proc. § 631.)
It being clear that the legislature, by providing that check lists and certificates of registration mentioned should constitute “part of the election returns,” intended that the evidence of registration on which the votes were received as returned by the poll-book should be subject to examination by the canvassing board, as part of the returns, the majority of this court held that such manifest intention should have effect. This was an important point in the case. The canvassing board alleged in its answer as cause for rejecting the returns from said precinct, in effect, that the names of sixteen persons appeared upon the poll-book as having beep allowed to vote at said precinct, who did not appear to have been registered; and that “ it appeared from said returns that said sixteen persons were not entitled to vote at all at said election.” If this was true, more than one third of the forty-six votes returned by the poll-book from said precinct were fraudulent, and did not represent votes cast by registered electors, as appeared from examination of the registration lists.
On demurrer to the answer it was contended that the canvassing board had no right to look at all the evidence of registration on which votes were received, as part of the returns, to see whether the list of electors recorded in the poll-book as having voted were registered. The demurrer was overruled by a concurrence of a majority of the court, and the respondents were thus allowed to substantiate by proof the allegation of their answer as to the great discrepancy between the registration lists and the vote returned by the poll-book. But on the hearing the canvassing board utterly failed to establish such allegation. On bringing in the check lists and certificates of registration *50surrendered to the judges of election, it was found that these documents showed the registration of a greater number of electors than was returned in the poll-book as having voted at said election.' There was no such thing as the registration list-falling short of the voting list by sixteen names, as alleged, or by any number whatever. The only support offered for that allegation was the pointing out of some difference in the spelling of names as written by the registry agent and by the clerks of election, or a difference occurring by way of using initial letters for the Christian name in one case and writing it at length in the other, or the dropping of an initial, as “Henry Brough,” in the registration list, and “Henry S. Brough” as recorded by the clerks of election in the poll-book. However slight was such difference, it was seized upon as ground for alleging that the elector as to whom it occurred was not registered. This was a strong allegation to make and verify by oath on such a pretext. It carried with it the direct implication that the officers of such election precinct had committed a crime by receiving votes from persons not registered, to the extent of more than one third of all the votes received, if intentionally done; and this in a neighborhood where only forty-six votes were east, and very likely every voter was personally known to some of the election officers. But it was disclosed on the hearing, by the evidence of Mr. Rodgers, clerk of the board of county commissioners, and of the canvassing board, that in the rejection of the returns from said precinct neither the check list nor the certificates of registration were examined or sought to be0 examined by the canvassing board, nor were the returns rejected on the grounds of any discrepancy in the spelling of the names as appeared in the registration list and on the poll-book, nor was any such ground considered in the rejection of said returns. The returns were rejected on the untenable grounds set forth in certain affidavits presented to the canvassing board, which the canvassing board had no jurisdiction to inquire into or determine. These features of the case are sufficiently treated in the main opinion prepared by the chief justice. The purpose of this concurring opinion was to more fully treat the question of practice as to the issuance of the alternative writ of mandamus on the order of one justice of this *51court, and tbe question as to what constitutes election returns under the provisions of the statute.