(dissenting from the order denying the motion to quash the writ, on the ground that it toas not issued by the court; that point being passed as decided, of opinion that the demurrer to the answer should be sustained, and peremptory writ thereupon issued).— I am of opinion that one justice in vacation had no authority to order the writ issued. The majority of the court held that the writ was • properly issued. That point being decided, and being now the law of this court, I come to the demurrer to the answer, and the accompanying motion for the peremptory writ forthwith. That demurrer and that motion, I think, should have been sustained. The result of these views is, of course, that I am of opinion that the peremptory writ should have issued without going further in the hearing than overruling the demurrer to the answer. I will state the reasons for my conclusions upon these two points : —
On the third day of December, 1892, the October term of this court adjourned without day. On the sixth day of December, 1892, the December term opened. On the fifth day of December, 1892, the alternative writ in this matter was issued. It is therefore a fact that the writ was issued in vacation. How it came to be issued appears by the following indorsement on the application: —
“Upon reading the foregoing affidavit and application of Eugene E. Leech, it is ordered that the clerk of the Supreme Court issue a writ in the alternative, in accordance with the prayer of the said Leech, returnable before the Supreme Court upon Friday, the ninth day of December, A. D. 1892, at ten o’clock A. m. Henry N. Blake,
“ Chief Justice of the State of Montana.
“Dated December 5, 1892.”
Upon the return day, December 9th, the respondents, the canvassing board, moved to quash the writ for the reason that it was issued without authority. The provision of the Constitution in reference to the issuance of the writ of mandamus (§ 3, art. viii.) is, in full, as follows: “The appellate jurisdiction of the Supreme Court shall extend to all cases at law and in *52equity, subject, however, to such limitations and regulátions as may be prescribed by law. Said court shall have power, in its discretion, to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and injunction, and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction. When a jury is required in the Supreme Court to determine an issue of fact, said court shall have power to summon such jury in such manner as may be provided by law. Each of the justices of the Supreme Court shall have power to issue writs of habeas corpus to any part of the State, upon petition by, or on behalf of, any person held in actual custody, and may make such writs returnable before himself, or the Supreme Court, or before any District Court of the State, or any judge thereof; and such writs may be heard and determined by the justice or court or judge before whom they are made returnable. Each of the justices of the Supreme Court may also issue and hear and determine writs of certiorari in proceedings for contempt in the District Court, and such other writs as may be authorized by law to issue.” It seems to me clear that this writ was not issued by the court, for the court, according to section 5, article viii. of the Constitution, “shall consist of three justices, a majority of whom shall be necessary to form a quorum;” and this writ was not ordered issued by three justices, or a quorum, but by one justice. (See Hobart v. Hobart, 45 Iowa, 501; Lewis v. Hoboken, 42 N. J. L. 377.) As I understand the matter as before us on the motion to quash, it is simply whether the Constitution gives to one justice, in vacation, the authority to order this writ issued. It is my opinion that the words of section 3 do not give this authority to one justice. That view is fortified by reading section 11 of the same article, in which the Constitution gives to the District. Courts, and the judges thereof, power to issue, hear, and determine writs of mandamus, etc. In the District Courts the judges are expressly given this power. In the Supreme Court a justice is not given this power. The distinction in the two courts, it appears to me, is of some significance. Section 3 of article viii. says expressly that the court shall have power to issue, hear, and determine writs of habeas corpus, mandamus, *53and the other writs named. There is the power of the court clearly defined. Then, in the same section, comes a special grant of power to the justices; that is, that each of the justices shall have power to issue, hear, and determine two of the writs, which are named in the general list above, that is, the writ of habeas corpus, and the writ of cei'tiorari in proceedings for contempt in the District Court. It would seem that a writ of habeas corpus and a writ of certiorari in contempt in the District Court were of some special urgency, and I think it apparent that they are urgent writs. The writ of habeas corpus does, and the writ of certiorari in contempt may, involve the immediate personal liberty of the citizen. Therefore I can see a reason why the facility for the issuance, hearing, and determining of these writs should be extended, and why this power is given to a justice, in addition to the power given to the court.
These two writs — that is, habeas corpus, and certiorari in contempt — are singled out from the general list of writs mentioned in section 3, article viii., and the power is given to a justice to issue, hear, and determine them. Why so distinguish them from other writs, among which is mandamus, unless the distinction means something? The Constitution says that the court may issue, hear and determine all the writs. The Constitution says that a justice may issue, hear, aud determine the writs of habeas corpus and certiorari in contempt. I think it is conceded that a justice may not hear and determine a writ of mandamus. But the words “issue, hear and determine” are used together in section 3, article viii. The same construction that holds that a justice may not hear and determine, would hold that he may not issue, the writ. It may be suggested that this is an alternative writ, and that, while one justice may not issue a peremptory writ, he may issue the alternative. But the alternative writ is a writ of mandamus. In the Constitution neither the word “peremptory” nor “alternative” is mentioned. All that we find mentioned is the “ writ of mandamus,” and that writ may be issued by the court only. I do not, therefore, understand where the authority is found in the Constitution for one justice to issue an alternative writ any more than a peremptory writ. Nor does the statute help it. (Code Civ. Proc. tit. 13, ch. 2.) The peremptory and alternative writs are there *54described; but no distinction is there made as to the authority to issue either. The statute (§ 568) says that “the writ shall be either alternative or peremptory; ” that is, the alternative is a writ. The writ may be issued by the court only. (Const, art. viii. § 3.) Perhaps the alternative writ accomplishes nothing more than the notice provided for in section 569, chapter 2, title 13 of the Code of Civil Procedure. If the alternative writ is nothing more than a notice, why go to a justice for it? Why not go to the clerk? But the clerk may not issue it. (People v. Brooks, 57 Ill. 142.) The peremptory writ shall not be granted by default, but the case must be heard. (§ 569.) So I see no cause for importing into the Constitution a construction that a justice may issue the writ, for the hearing and determination must be by the court; and nothing, from this point of view, is accomplished by an alternative writ that would not be by a notice. I see no necessity or policy in giving the Constitution such construction, even if the words of that instrument gave any authority for that construction. But, after all, it is as clear to my mind that the court only may issue the writ as it is that the court only may hear and determine it finally. Such are my views as to the power of one justice to issue the writ. I thiuk the writ should have been quashed.
But, it being decided otherwise by the majority of the court, and also having gotten beyond the matters raised upon the demurrer to the writ, I hold the following opinion as to the demurrer to the answer of respondents: —
The respondents filed an answer, which is their showing of cause why they, as the canvassing board of Choteau County, should not be required to count the vote of Box Elder Precinct. The answer sets up that votes were bought at that precinct, that some of the voters were aliens, and other matter which is not necessary to recite in detail, to the effect that, if true, many of the votes at that precinct were illegal. Matter of this nature, if true, would, of course, be competent and pertinent in an election contest (which this proceeding is not), a contest prosecuted in a court to determine the title to an office other than that of legislator, or a contest prosecuted before a house of the legislature to determine the right of a member to a seat in such house. But, as is held in Pigott v. Board of *55Canvassers of Cascade Co. 12 Mont. 537, and by every other court that ever uttered a syllable upon the subject-matter of this sort, frauds, irregularities, illegal votes, and corrupt practices, back of the apparent result upon the face of the returns, cannot be inquired into by a canvassing board, and constitutes no showing of cause why the board should not be required to count and declare the apparent result of the vote. The only matter in the answer, which, to my mind, is worthy of notice, is the following allegation: “ That it appeared from an inspection of the registration list, and of the list of persons returned as voting at said Box Elder Precinct No. 18, that sixteen names of persons, to wit, Henry E. Schwartz [giving the names of fifteen others], appeared upon the list of persons returned as voting at said Box Elder Precinct, which said sixteen names did not appear to have ever been registered as voters at said precinct; and no surrendered certificates of registration were transmitted by the judges of election to the clerk of the board of county commissioners in connection with, or as a part of, the election returns of said precinct, or in any manner whatever; and it appeared from said returns that said sixteen persons were not entitled to vote at all at said election.” Respondents contend that by this allegation it appears that sixteen persons voted at Box Elder Precinct who were not entitled to vote, and that this appeared upon the face of the returns, and therefore could be noticed by the canvassing board. Whether, if all this be true, it authorized the board to apply the remedy of casting out the whole vote of the precinct, it is not now necessary to decide. But did it appear upon the face of the returns that these sixteen persons were not entitled to vote? I will examine respondent’s allegations from the point of view, of course, on the demurrer, that they are all true. Concede it to be true, then, as alleged, that these sixteen persons did not appear to have been registered as voters at that precinct; also that no surrendered certificates were transmitted by the judges of election to the board of canvassers, does it even then appear by the returns that these sixteen persons were not entitled to vote? That they were not entitled to vote is what must appear by the returns, in order to authorize the board to take cognizance of the fact, if it be a fact.- What had the board before it as returns ? *56The registration list, for one thing. Consider it to be the fact that these sixteen persons did not appear thereon; so far, then, it appeared that they had no right to vote. What else had the board? “The surrendered certificates which may have come into the hands of the registry agent.” (§ 10, Registration Law.) Consider it to be the fact that these sixteen persons did not here appear; so far, then, it appears that they had no right to vote. But had they the right to vote in any other manner if they were not on the registration list of the precinct, and were not among the names on “ surrendered certificates which had come into the hands of the registry agent?” Section 11 of the Registration Law answers this inquiry. I will not cite that section in full. (See p. 131, Laws 16th Sess.) It provides that a registered voter may have his name taken off the official register, and have issued to him a State registration certificate. Upon this State certificate he may be registered in another election district. If 'he does not so re-register, then upon certain conditions and showing, as set out in section 11, to the judges of election, on election day, he may vote upon his State certificate, without re-registration. This State certificate upon which he votes is to be surrendered. (§ 11.) It is not provided that this .surrendered certificate shall be forwarded to the canvassing board, or be a part of the election returns. (§§10,11.) Therefore, the sixteen persons named in respondent’s answer could have voted on State certificates, under the provisions of section 11. If they voted on State certificates, the following facts must be noticed: Their names would not appear upon the registration list of the district in which Box Elder Precinct was, or upon the registration list of any other district in Choteau County, or elsewhere, because the names must have been stricken off in order to obtain the State certificate. Again, their names would not appear upon “surrendered certificates which may have come into the hands of the registry agents” (§ 10), because they had not re-registered. (§11.) So, by an examination of either the registration list or the surrendered certificates required to be returned to the canvassing board, would it appear to the canvassing board that such persons were not entitled to vote; whereas the fact is, they would be entitled to vote upon their State certificates, surrendered on election day (and not to the registry agent, as provided *57in section 10), which State certificates it is not provided shall be sent to the canvassing board, or be part of the returns. Therefore, it did not appear by those papers that are made part of the returns that these sixteen persons were not entitled to vote, and, for all that appears on the returns, they were as fully entitled to vote as any person on the registration list. Therefore, as it did not appear upon the returns that these sixteen persons were not entitled to vote, it was not a matter, even if true, that the canvassing board could, or now can, inquire into. Therefore, the matter set up by the canvassing board, which I have quoted and discussed, was not a showing of cause why the board should not count the vote of Box Elder Precinct. Consequently, the demurrer to the answer should have been sustained. The answer, then, being out of the way, the peremptory writ should have issued. I think that the registration law should provide that State certificates, voted on and surrendered at the time of voting, should be sent in to the convassing boards as part of the returns. The omission so to provide was a grave error, and one to be corrected by the legislature, if it sees fit. I do not find that it is now so provided in the law. In fact the law clearly does not so provide. The only method by which I can see that the law could be construed as so providing is to hold that it ought to so provide; and because it ought to, it does. I concede that it ought to. But I am not yet prepared to hold that what I think a legislature ought to do I shall say it has done. Holding the views that I venture to entertain as to the demurrer to the answer, I see no occasion to express any opinion as to the proceedings in the case subsequent to the overruling of that demurrer.