I concur in the foregoing opinion.
In passing I leave a thought, neither legal nor profound, just a homespun sort of pun.
Is it not strange that the change — from tissue and weed to smoke and ash — can bring so much happiness to so many from naught but cigarette smokers’ cash?
May all our veterans profit from the same source!
*442THE HONORABLE C. B. ELWELL, district judge sitting in place of Mr. Justice Angstman, disqualified:I dissent in this case because, while I am in accord with the decision on one major issue and several minor issues, I am in disagreement on what I consider vital issues in this case.
I am in thorough accord with the decision on the major issue as to whether or not the state of Montana, under its Constitution, can grant servicemen an honorarium. I think that they have properly overruled the case of State ex rel. Mills v. Dixon, 66 Mont. 76, 213 Pac. 227. I believe that the United States cannot be at war and the state of Montana not be involved. I believe that when a citizen of Montana volunteers or is inducted into the United States Army he still retains his identity as a citizen of Montana. I believe there is at least a moral obligation to him on the part of the state of Montana, and that this moral obligation is sufficient to sustain the law now under question. No one has ever questioned the right of the state and its counties to provide burial benefits for veterans, even to those who did not live in Montana at the time of their service. If this honorarium is a pure gift without any obligation, then the burial benefit is a pure gift. I would much prefer to do something •for the service personnel before death than after death. My conclusion is the thing sought to be accomplished by this Act is not unconstitutional provided it is accomplished in a legal way.
On several legal questions, which I consider minor I am in accord with the majority opinion, particularly those which have to do with the technical requirements of the law. I do not think it is fatal that the exact requirements as to certification of the initiative petitions have not been followed. If the secretary of state .can ascertain therefrom what names have been certified, and what names not certified, it is sufficient. I do not think it is fatal that some have not given their full address or in fact any address when signing the petitions, particularly at this stage of the game. If the information given is sufficient to enable the county clerk and recorder to certify them, that is enough. I do not think that the fact that certain signers have *443given post office addresses outside the state is of any moment, as we have many qualified voters who could easily have out-of-state addresses by reason of military service, civil service, or attendance at various schools. I also agree that the secretary of state could not be expected to detect forged signatures on the original petitions. On all these things I am in thorough agreement.
On the question of whether this law contains an appropriation in contravention of the constitutional prohibition against the inclusion of appropriations in initiative measures, it has been repeatedly held by the supreme court of this state that this applies only to appropriations from the general fund. I am not in thorough agreement with all that has been said now or before on this question. It has been upheld so many times in connection with highway and school bond issues that I can see no point in saying anything further other than to state I can see no reason to apply one ruling to highways and schools and a different ruling in this ease. The same is true of the contention that a tax on cigarettes is illegal in its present form. The same kind of tax has repeatedly been held legal on gasoline for highway purposes, and I can see no difference. If one is legal the other is legal.
However, there are questions raised in connection with the calling of the election, and the conduct of the election, which I consider vital.
It is alleged and admitted by the demurrer that the secretary of state counted 149 names not certified by anyone, and that if the 149 signatures had not been counted there would not have been sufficient signatures to entitle the secretary of state to certify the matter for submission to the voters. It is further alleged that certain of the petitions did not carry a correct copy of the title and text of the law as required, and that if such petitions had not been counted, not only would there have been insufficient signatures, but the required number of counties would not have been represented on the petitions. The majority seem to indulge the presumption that they were at one time *444attached and became detached somewhere along the line. I cannot bring myself to the point of indulging this either as a presumption or supposition. If it is true it is a matter of defense which is not before us. In connection with the 149 names to which no certificate was attached they do not indulge in such a presumption, namely that the certificate must have become detached. They state in effect that if the 149 names were not certified and if without them there were not sufficient signatures then the secretary of state would not have been entitled to issue his certificate.
The majority condones this action on the ground that it is too late to raise the question after the election. It must be conceded that the supreme court has so held several times previously. There may be some logic to this in some eases on the ground that after the secretary of state issued his certificate there was sufficient time to raise this question before the election was held. I will concede that as to technical objections this is good law. But as to objections which go to the very foundation for the calling of the election, no such concession should be made. I do not base my decision on this point in the final analysis, but I am loath to shift upon the shoulders of every elector in Montana the burden of following all these legal processes to check and see that our elected and appointed officials obey the laws and particularly the Constitution of the state of Montana. I have no desire to say that a law is clearly unconstitutional before it is voted upon and becomes a contsitutional law after it has been voted on. I fear that this is equivalent to saying that anything is constitutional if you can get away with it.
The final and most damaging claim is that this measure was submitted to the entire voting list and not, as the law and Constitution provides, to the registered voters who were taxpayers on the last assessment rolls, and further that it was not submitted upon a separate ballot, and that the failure to do so was willful on the part of our elected officials. I will deal with the main point that it was not submitted to the proper list of *445voters, which means that many were permitted to vote who were not entitled to vote.
The majority has failed to consider the matter of its submission to the entire electorate, although this is a very vital point, and the court held in Martin v. State Highway Commission, 107 Mont. 603, 88 Pac. (2d) 41, in the case of a gasoline tax that it should not be submitted to the entire voting list. I can see no difference and would hold that it should have been submitted to the limited electorate as provided by the Constitution. Many other questions of much less importance have been discussed at length.
But once more we are confronted by the argument that it is all over, that we did it, and even if we did it in an unconstitutional and illegal way, the objectors are too late, and they can do nothing about it. It must be admitted that the case of Martin v. State Highway Commission, supra, does in effect say so. The reasoning is not sound. In the first place we are not confronted with the argument that the objectors had four months in which to discover this perversion of the law by their elected officials. We have only to consider the average voter. He is entitled to believe that the elected officials of the state will do their duty and that elections will be conducted in the manner directed by law. The overwhelming majority of them do not know until they enter the voting booth whether a bill of this kind will be or should be submitted to the entire voting list or to a list of voters having the qualifications prescribed by law. If he cannot thereafter question the election, we as a court are placing upon him the onerous task of watching his elected officials every minute to see that they do their duty at the risk of losing his constitutional rights.
Now, as to this so-called saving clause in the decision of Martin v. State Highway Commission, supra, giving the taxpayer the right to question the election after it has taken place, provided he can show that a different result would have been reached had the law been followed. It is a hollow and meaningless phrase. It means that the objector will have to check the *446voting lists in all the counties and all the precincts in Montana, no small job. They will have to be checked, not as of today, but with relation to the time of this election. He will then have to check the assessment rolls of each county, not as of now, but once more go back to the time of the election. Then he will have to check the voting list of each precinct in the state to see how many ballots were handed out for voting, to whom given, and whether each voter obtaining a ballot was legally entitled to vote at this election on this measure. Then he must determine how many voted on this measure and how many failed to vote on this measure. If a percentage of the ballots were not voted as to this measure, then by some feat of magic, he must determine how many of those who failed to vote on this measure were qualified voters and how many were unqualified voters. This he must do in a state where the ballot is presumed to be secret. Then he must seek out those unqualified voters who actually used their ballots on this particular measure, and ascertain if he can how many voted for and how many against this particular measure, all the time bearing in mind that upon him is east the burden of proof by this so-called rule, and that .he must be prepared to shoulder the expense and spend the time to get all this proof in shape to present to the court. By the time he can accomplish this he and all his friends will be broke, exhausted, discouraged or dead, and the odds are all against his winning. This so-called exception or saving clause is meaningless.
It would be better logic and law to say that in all this confusion caused by the failure of the officials to observe a plain constitutional provision, and not just some technical procedural provision, there must come a time when a prima facie ease has been made out, and any existing legal burden of proof shifted to those defending the legality of their actions. The showing of the violation of a basic and essential provision of the Constitution should establish a prima facie case for the plaintiff, and the burden should then be upon the defendant to show that the same result would have obtained if the Constitution had been followed.
*447It could be stated more simply by saying tbat we do have a Constitution, and we do have laws, and tbat it is time tbat tbe courts and lawyers devoted a little more attention to following the Constitution and the laws, and considerable less time to finding ways of circumventing them.
Having examined some of the cases cited in support of this theory that the objector must show that a different result would have been reached had the law been followed, it appears that in the beginning it was applied to more or less technical objections, and no doubt some of the writers of such decisions would be astounded to find it now applied to matters which involve plain basic constitutional provisions. In- support of this burden placed on the objector is quoted 29 C. J. S., Elections, sec. 214, p. 308. The opposite could also be supported by quoting from the same paragraph at page 309, as follows: “An election will be vitiated by irregularities which are so numerous that they must be attributed to fraud rather than honest mistake; and although no actual fraud is apparent yet an election will be invalidated where the whole conduct of the election officers shows such gross negligence and disregard of their official duties as to leave the judicial mind in doubt as to how the election resulted, or would have resulted but for such widespread irregularities”. The same paragraph states in effect that where there has been an almost total disregard of the election law, or where the disregard of the law has been so fundamental that it is impossible to distinguish what votes are lawful and what are unlawful, the election would be vitiated.
With a consciousness that there are rules for constitutional interpretation, it must be remembered that the first rule is that where a law is plain and unambiguous, and the same is true of a constitutional provision, there is nothing to interpret, and the law as it is written should be followed. We have been too prone to raise doubts which have no real basis, just for the sake of arguing and construing, where there is nothing to argue about or to construe. We have been too prone to make exceptions to meet what we personally may consider the exi*448geneies or needs of the present, and to make small breaches in the Constitution which tend to grow into large holes and which must ultimately break down our constitutional form of government, or at least leave our Constitution in such shape that it is past all recognition. The bench and the bar have often and loudly lamented the encroachment of one branch of the government upon another branch, while at the same time encroaching on the legislative branch and the Constitution, by amending the laws and the Constitution itself by judicial interpretation, a power which was never granted or intended .to be granted to the judiciary.
I must dissent and would reverse the decision of the lower court and remand this case for further proceedings in conformity with this decision.