(dissenting). The first proposition to which I desire to call the attention of ■ those persons interested in this case is that the views of Judge Goss in no manner constitute an opinion of this court, having been concurred in by but two of the five members. The only matter in which three members of the court agree is that the county of Stevenson did not receive a majority of the votes cast at the election. Although the syllabus has but two of the five members of this court back 'of it, and is repudiated by three members, yet it is set up as “by the court.” The bar will probably realize, however, that a court holding that 1,006 votes are too few to be a majority of 1,817 will not agree that two is a majority of five.
With the conclusion reached by the majority I wish to take issue, and at the start will say that the views of Judge Goss do not, in my opinion, correctly state the facts. To my mind the issues are simple and the conclusion plain. There was an election in 1908 upon the creation of Stevenson county. The canvassing board of McLean county, under their oaths of office, made a return that there was 1,817 votes cast upon Stevenson county, of which 1,006 were for the new county and 811 against. This statement is stipulated to be true by the attorneys, and a certified copy thereof is in evidence. This finding of the said canvassing board has never been questioned by contest, as required by §§ 693-695, Rev. Codes 1905, and after the time wherein such contest must be taken the said finding became conclusive upon all persons concerned. However, the county auditor of McLean county neglected and refused to make the proper returns to the secretary of state as required by § 2330, Rev. Codes 1905, and this action was brought in *293mandamus to compel bim to do so. To tbis action tbe county auditor bad a right to reply, showing that tbe election itself was void, or that tbe law upon which it was founded was unconstitutional, or that tbe canvassing board was not even a de facto body, or that tbe returns made were forgeries; but be bad no right to reply that tbe vote was not correctly canvassed, for two very good reasons.: First, tbe time for contest bad gone by, tbe ballots were already destroyed, and no bond or notice bad been given, and leave of court bad not been bad; second, tbe auditor was not a party interested in tbe election, and bis attack was therefore collateral. It is very plain to me, therefore, that the statement of tbe canvassing board must prevail as to tbe figures returned by it. Tbe views of Judge Goss would probably be appropriate if someone bad started a contest, but tbis was not done.
As a matter of fact tbe auditor did attack tbe election as void, and succeeded in getting tbis court to bold with bim once (see State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701), but in another appeal it was shown that tbe court was wrong (see State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282) and it is now conceded by all members of tbis court that tbe election itself was valid. As a second ground of attack upon tbe new county tbe auditor asserted and proved that six of tbe fifty-one precincts of McLean county made no return upon tbis proposition. It does not appear that any votes, either for or against tbe new county, were cast in said missing precincts, although it is admitted that, upon other matters, there were cast enough votes that, bad they all voted against Stevenson county, it would have been defeated. Tbis attack and tbis proof are, to my mind, excluded because not brought by contest, and such is tbe bolding of this court in at least seven cases (State ex rel. Dakota Hail Asso. v. Carey, 2 N. D. 36, 49 N. W. 164; State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025; State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958; State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; Dean v. Dimmick, 18 N. D. 397, 122 N. W. 245; Chandler v. Starling, 19 N. D. 144, 122 N. W. 198), and is also tbe views taken by tbe recognized authorities. See 26 Cyc. 257; 19 Am. & Eng. Enc. Law, 2d ed. 769; McCrary, Elections, 358-599; Spelling, Extra. Rem. 55-60; Merrill, Mandamus, 180, and tbe hundreds of cases therein cited.
*294The gist of these decisions being that, while the abstract of votes (or certificate of election) stands, it is binding as to what appears upon its face. 15' Cyc. 387, says: “A certificate of election, whether rightfully or wrongfully given by the board of canvassers, confers upon the person holding it the prima facie right to the office, and must stand until it is set aside by a competent tribunal in a proceeding in which its validity may be directly inquired into. It is conclusive in all cases in which its validity is not drawn directly in question.” And at 26 Cyc. page 255, it is said: “It is a general rule that title to office cannot be adjudicated on an application for mandamus.” And, again, at 15 Cyc. 386: “So, where some . . . proposition is submitted to the vote of the people, it is the duty of the canvassers to issue a certificate declaring the result of the election. This certificate or statement carries with it a like force as a certificate of election furnished to the successful candidate for office, and it makes a prima facie case of the correctness of the matters therein contained.”
Indeed so well settled is the law that my associates seek to avoid its consequences by saying that no complete canvass of the votes was had, and that therefore there is no certificate of the canvassing board in existence. This they assert in the teeth of the stipulation of the attorneys that Exhibit D is a true and correct copy of the original abstract of votes made by the proper officers, and in the teeth of the certified copy of the said abstract of votes duly stipulated into the record. To me it seems that the trouble with Judge Goss is that he has gotten the idea that certain parts of Exhibit D relative to the total number of votes cast in the county is a certificate made by the county auditor, and not by the canvassing board. He is led into this error, because the auditor happened to be the official who made the certified copy of the record of the canvassing board. As a matter of fact, however, Exhibit D is stipulated by the attorneys to be a correct copy of the returns made by the canvassing board, and contains the following extracts: “Total number of voters who voted at the general election on November 3d, 1908, 3,600. Vote cast for governor 3,437; vote cast on Stevenson county 1,811.” If my associates just comprehend that this is a statement made by the canvassing board, who are all acting under their oath of office, I think the fallacy of their position would become apparent to them. When it is remembered that this is a solemn statement or finding of the *295canvassing board, and that it has never been attacked by contest, and has become a finality binding upon all parties concerned, it will be seen that the relator has proven by the only competent evidence in existence that Stevenson county has received a majority of the votes cast upon that proposition. In the case of State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231, a somewhat similar situation arises. Some 258 votes cast by women for the office of superintendent of schools of Walsh county were omitted from the official canvass made by the precinct officers, and it was positively shown that had these votes been counted it would have changed the result, yet because a contest was not taken this court refused relief, and says: “The board is required to act upon the official returns only, and not upon matters lying outside of them. If the returns are false, — and in this case it would seem they were, through the innocent mistake of the precinct officers in not including the women’s vote in their official statement of the election, they could have been overturned by appropriate proceedings to contest the election. But until the prima facie character of the official returns is destroyed in proper judicial proceedings, they determine the result.”
Bor the sake of argument, we can admit that six precincts did not make any returns to the canvassing board. That fact does not appear upon the face of the returns, but is proven by evidence which was only admissible in a contest case. The canvassing board had certified that there were 1,006 votes for Stevenson county, — 811 against it, and a total vote of 1,817 cast thereon. This negatives any presumption which might otherwise arise that there were in fact votes cast upon this proposition in the six missing precincts. Thus, it will be seen that an attempt has been made here to change this mandamus suit into a contest suit without the necessity of having any person start such contest. Sections 693 — 697, Rev. Codes 1905, sets out the procedure necessary to contest the election of a new county as follows: “In any county where there is a vote for . . . changing the county lines thereof, any elector of such county on leave of the district court may contest the validity of such election . . . such elector shall give notice in writing of such contest to the county commissioners or a majority of them, of the county in which such vote was taken, by serving a notice . . . within thirty days after the result of such vote is canvassed. Such notice shall specify the grounds of such contest, and shall be filed with *296the clerk of the district court within ten days' after the service thereof . . . the county commissioners of such county shall appear and defend such contests, but in case they fail to appear and defend the same any elector of such county may at any time before such trial, on leave of the court, appear and defend the same. . . .” Sec. 695: “Any person bringing a contest under the provisions of this article must, before bringing the same, furnish good and sufficient surety for costs, as provided in the Code of Civil Procedure.” It stands to reason that where the legislature has made such full and careful provisions for contesting the election, that it was not intended that these provisions might be ignored in a mandamus suit. While the defendant might show any facts attacking the validity of the election itself at any seasonable time, yet any attack upon the figures found by the canvassing board must be by contest. The case of State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958, relied upon by defendant, does not bear out his contentions. In that case the figures returned by the canvassing board were not attacked, but it was claimed they showed upon their face that Hillsboro did not have two thirds of the votes polled. There is a vast difference between attacking the election itself and the returns of said election. In the case at bar the. defendant, if he did not wish to accept the figures of the canvassing board, had several remedies. He could have mandamused the board to reconvene and count the missing precincts, or he could contest the election. In either case he would have had to appear ex rel. the state, so that all of the citizens of his bailiwick would be bound by an adverse decision. See Dean v. Dimmick, 18 N. D. 397, 122 N. W. 245; State ex rel. Dakota Hail Asso. v. Carey, 2 N. D. 36, 49 N. W. 164. In either event he would have to act promptly while the ballots were still preserved. He would have to give proper notice to all parties interested, and put up a bond for costs. Having done none of these things, and the time for contest having expired, and the ballots having been destroyed as contemplated by law, and a fair trial being no longer possible, then the defendant must be presumed to have accepted the return of the canvassing board as final. In Chandler v. Starling, 19 N. D. 144, 122 N. W. 198, this court said: “It is proper to try in mandamus proceedings all questions relating to the prima facie title.” In State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025, it is stated: “The defendant, *297a private citizen, bas no status wbick entitles him to become the champion of the state;” and again in the same case: “In our view this investigation is inhibited by the rule that forbids the trial of title by mandamus.”
It will thus be seen that Judge Goss’s idea that this action is brought, to determine the result of an election, which is found in the opening-sentence of his opinion, is entirely erroneous. This action was not brought to determine the result of the election. It was brought to compel the county auditor to do a ministerial duty after the voters had determined the election.
Judge Bruce has not concurred in the reasons given by Judge Goss, for holding that no canvass had been made of the votes in McLean county; but he joins in the reversal in this case for the reason, which he alone maintains, that it was not shown that Stevenson county had received a majority of all the votes cast upon all county division propositions. It is conceded there were presented to the voters at the same election three different propositions to create new counties, and that upon the three different propositions there were more than 2,012 votes cast. This, however, is but another phase of the old contention that a proposition of this kind must receive the affirmative vote of a majority of all the voters who attend the polls, whether they vote upon the proposition or not; and I did not know it was longer open to debate in the United States or North Dakota; since practically every court in the United States that has passed upon the question at all has held that, where language like our Constitution and statute is used, the majority of all votes cast means a majority of all votes cast upon the proposition under discussion. In North Dakota alone the proposition has been passed upon at least six times. State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958; State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883; State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360; State ex rel. Davis v. Fabrick, 18 N. D. 402, 121 N. W. 65; Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95. Practically all of the cases in the United States are collected and digested in a note at page 478, vol. 22 L.R.A.(N.S.), which note surely must have escaped the attention of brother Bruce. From these eases it appears to be well settled that when a voter refuses or neglects to cast his vote upon a proposition of this kind, that he is presumed to have delegated *298to the voters who do vote all of his rights of choice. In most of these cases it is merely claimed that the proposition must have a majority of votes cast upon governor, or some other single proposition. Brother Bruce goes even further, and says that this proposition must not only have a majority of the votes which may be cast for governor, but also a majority of all votes cast upon three different propositions. If his views are correct, instead of the voter who has expressed no choice on Stevenson county being deemed to have waived his right to vote, he is held to have voted against Stevenson county.
The decision of the majority in this case in fact holds that 1,006 votes is not a majority of 1,817 votes, and these are the mathematics used to disfranchise the entire electorate of one of the largest counties in our state, and I respectfully decline to become a party to such a procedure.