(concurring specially). I concur in tbe result of tbe opinion filed by Mr. Justice Goss. I do not, however, wish to be understood as concurring in, or expressing an opinion upon, all of the propositions discussed either in the majority or dissenting opinions in this case. Much depends upon the conclusions that are to be derived from the former cases of State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701; State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, and State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360, and as to what was the actual intent of the court in these cases. As I was not a member of this court at the time of the writing of the opinions therein, *291I cannot personally speak as to such actual intention, and prefer to leave that to my associates.
I am, however, clearly satisfied as to two basic propositions, and those are, that there is no showing in this case that the proposition for the creation of the new county of Stevenson was carried either by a majority of the voters who voted upon that proposition, or by a majority vote of the electors who voted upon the question of county division generally. As I understand § 168 of the Constitution, a majority of those who voted upon the question of county division, generally, was necessary; but be that as it may, it is quite clear to me that there is not even a showing that a majority of those who voted upon the particular proposition was obtained. Ido not agree with Mr. Justice Burke in his conclusion as to the nature and effect of the certified copy of the report of the board of canvassers. Mr. Justice Burke seems to be of the opinion that the record shows that such canvassers actually reported that the total number of votes cast upon the proposition was 1,817. He almost goes so far as to intimate that that report should be conclusive in mandamus proceedings. I, on the other hand, am of the opinion that the showing is merely that 1,817 votes were returned by some of the precincts, and that there were still outstanding other precincts from which no returns had been received, and the vote from which had, therefore, not been counted by the canvassers. According to the case of State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, the presumption is that votes were cast pro and con on this proposition in these precincts. To me, therefore, the record shows that there were a number of votes outstanding and uncounted. If this be so, the case is taken out of the rule laid down in State ex. rel Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231, and State ex rel. Davis v. Willis, supra. There being no proof in the record as to how the vote stood in these unreported precincts, the presumption merely being that there was a vote, there is no showing that the proposition was carried by a majority vote, even of those who voted upon the particular Stevenson county proposition. The stipulation that 356 votes were cast, generally, in the omitted precincts, tends also, to strengthen this conclusion.
I am quite clear that the relator has not proved his case, and personally I am of the opinion that § 168 of the Constitution requires a majority vote of all those who voted at the particular election upon the-; *292county division propositions generally, and is not confined to a majority of those who voted on the Stevenson county plan. 15 Cyc. 390; State ex rel. Peacock v. Osakis, 112 Minn. 365, 128 N. W. 295; State ex rel. Cope v. Foraker, 46 Ohio St. 677, 6 L.R.A. 422, 23 N. E. 491; People v. Berkeley, 102 Cal. 298, 23 L.R.A. 838, 36 Pac. 591; Stebbins v. Superior Ct. Judge, 108 Mich. 693, 66 N. W. 594; Hogg v. Baker, 17 Ky. L. Rep. 577, 31 S. W. 726; Enyart v. Hanover Twp. 25 Ohio St. 618; State ex rel. Hocknell v. Roper, 46 Neb. 724, 61 N. W. 753. Such latter conclusion, however, is not necessary to my decision in this .case.