(dissenting).
The Ward County Canvassing Board, in the performance of its duties, certified Norma Kuhn as one of the two persons receiving the highest number of votes for the two legislative positions in Legislative District No. 41. Janet Wentz, who received the third highest number of votes, demanded a recount.
When the State Board of Canvassers met, the recount had not been conducted and there was nothing before it to indicate that the results certified to it were incorrect. The Board certified Norma Kuhn as elected and so reported to the Secretary of State. The Secretary of State, upon the advice of the Attorney General, did not issue a certificate of election to Norma Kuhn. Section 16-13-48, N.D.C.C., requires that he do so. It provides:
“After receiving each certified statement and determination made by the state board of canvassers, the secretary of state shall record the same in his office and forthwith shall make out and transmit to each of the persons declared to be elected, a certificate of election as provided in this chapter. . . .”
I
It appears to me that the Secretary of State has violated the peremptory requirement of a mandatory law, on the erroneous advice of the Attorney General.
If the Secretary of State had done his duty, which is not discretionary but ministerial only [see State ex rel. Sathre v. Byrne, 65 N.D. 283, 258 N.W. 121 (1934), which holds that the duties of the State Board of Canvassers and, by inference, the Secretary of State in issuing a certificate of election are ministerial], Norma Kuhn would have a certificate of election which would be assailable only by quo warranto or by a contest. State ex rel. Sathre v. Byrne, supra.
But we are faced now with a situation where the Secretary of State, upon the advice of the highest legal official of the State, has violated the plain requirement of the law. That official now asserts that since the certificate of election is not issued, the State Board of Canvassers may meet again and certify a new winner after a recount held under a statute which I will show justifies a recount but not a recan-vass.
II
The Attorney General makes the argument, and a majority of this Court accepts the argument, that two statutes which were enacted at different times and cover different subjects must somehow be connected with each other because otherwise the recount provided for by one statute would serve no useful purpose and would be for only “the personal satisfaction of a candidate who originally lost and was then found to be the winner.” In other words, simply because a recount does not in and of itself change the result of an election (which can be changed by other means), we must judicially legislate some mechanism unprovided by statute to accomplish that result. I decline to be a party to such a tortured construction of statutory language.
I will set forth the relevant language of the two statutes, followed by discussion of the arguments of the parties.
A. The recanvass statute (§ 16-13-15, N.D.C.C., last amended in 1969 by Ch. 215, 1969 S.L.):
“As soon as the returns are received by the county auditor, but not later than five days after each election, the county canvassing board shall meet and, after taking the oath of office, shall proceed to open and publicly canvass such returns. After the initial meeting of the board as provided in this section, any two or more members may call a meeting of the board and upon approval of a majority of the *358members, the board shall recanvass the results of the election or any portion thereof and may correct any previous canvass or certification or both in regard to such election. Any correction of any previous certification of election results as provided in this section shall be immediately dispatched to the secretary of state who shall call a meeting of the state board of canvassers as provided in section 16-13-36 for the purpose of recanvassing and, if necessary, correcting any previous certification of the election results.”
The language as to recanvassing was added by the 1969 amendment. Before that, the section consisted of only the first sentence of the present section. The 1969 language as to recanvassing was added because of a 100-vote mistake discovered by a county canvassing board after it had reported the election results to the State Board of Canvassers. It was then realized that there was no machinery for correcting such arithmetical errors, and the statute was accordingly amended. It was not amended to allow new evidence as to recounts, since the only recount then permitted was to decide tie votes, and provided for the results to be reported to the county canvassing board which would then deliver the appropriate certificate of election. Sec. 16-13-27, N.D.C.C. The present statute on recounts where there is no tie, Section 16-13-47.1, was passed two years later, in 1971.
B. The recount statute, Section 16-13-47.1, enacted in 1971 as Chapter 227, 1971 Session Laws:
“Any person losing a . general election contest for . election to a . . . legislative office may demand a recount of the ballots cast in the manner and circumstances hereinafter provided. . . . The demand must be made within ten days after the canvass of the votes of such election. . . . After a demand and upon application to a judge of each appropriate district court, such court or courts shall issue orders directing that all ballots pertaining to such office shall be delivered forthwith to the respective court or courts. . The county canvassing board of each county, or such other persons as the court may select, shall recount the ballots in the presence of the court . . . The results of any recount of votes cast in an election of a member of the legislative assembly shall be admissible in either house of the legislative assembly, or before a committee of either house, as evidence to aid in the determination of an election contest pending in that house.”
I come now to the arguments based on the statutes.
1. It is to be noted that the judge before whom the recount is made may appoint either the members of the county canvassing board or “such other persons as the court may select” to do the recounting. How then can it be contended that the action of such a group is the action of a county canvassing board? Only action of a county canvassing board can trigger the recanvass by the State Board of Canvassers under Section 16-13-15.
The makeup of a county canvassing board is prescribed by Section 16-13-13. It is made up of three ex-officio members — the clerk of the district court, the county auditor, the chairman of the board of county commissioners, and one representative of the district committee of each of the two major political parties.
To illustrate my point, if the county canvassing board is made up of individuals A, B, C, D, and E, surely no one could claim that individuals V, W, X, Y, and Z, appointed by the district judge to assist him in a recount, are thereby transformed into the county canvassing board. Yet that is what the Attorney General argues and the majority accepts.
In this particular case it appears that some, but not all, of the persons designated by the district judge were members of the county canvassing board. It is immaterial if they were — they were acting under appointment of a district judge under Section 16-13 — 47.1, not as members of a county canvassing board.
*3592. It must be noted that the word “recount” is nowhere mentioned in the recan-vass statute, and the word “recanvass” is nowhere mentioned in the recount statute. If the Legislature had intended that recounts should be considered by canvassing boards, it surely would have said so in 1971 when it enacted the recount statute, two years after it amended the other statute in 1969 to allow recanvassing.
3. If the Legislature had intended to have recounts considered in canvasses, it surely would have altered the time frame in the státutes. The county canvassing board must meet within five days after the election [§ 16-13-15] and the abstract of votes must be forwarded by the county auditor within eight days after the election [§§ 16-13-20 and 16-13-24]. The State Board of Canvassers must meet not later than fourteen days after the election, and may adjourn for not more than three days’ total [§§ 16-13-36 and 16-13-41]. Upon receipt of the report of the State Board of Canvassers, the Secretary of State is required to issue certificates of election “forthwith” [§ 16-13-48].
But the recount procedure provides for a demand within ten days, and the recount result must be certified within fifteen days thereafter. Thus the recount may take a total of twenty-five days, while the entire canvassing may not consume more than seventeen days, with certification to follow “forthwith.”
Surely the Legislature could have made this same computation, and made appropriate changes in the timetable if it had intended that the recount should be considered in the canvassing and certification procedure.
4. It is said that the recount procedure would be of no use if it were not considered in the canvass or recanvass. But this is a subjective determination, not based on any statutory language. If we were to search for a motivation for providing for a recount unconnected to a recanvass, it would not be hard to find. I think legislatures in the past have seen some members laboriously recounting ballots for days, while all the other members, using up precious legislative days, waited until the recount was completed so that the Legislature could be organized. I, subjectively, suggest that the recount procedure was set up to avoid the delay and waste of time of the whole Legislature by having the recounting done under controlled conditions prior to the convening of the Legislature.
5. It is argued that the last sentence of Section 16-13-47.1 was not intended to be the only way in which the results of a recount could be used, even though no other possible use is mentioned in the statute. If another use were intended, surely the Legislature would have said so.
6. Along the same line, it is argued that use in recanvass must be intended, because Section 16-13 — 47.1 applies to Congressional and State offices as well as legislative offices, and the Legislative Assembly has nothing to do with resolution of disputes as to them. This is true, but disputes as to those other offices can be resolved by use of quo warranto or contest procedures [State ex rel. Butler v. Callahan, 4 N.D. 481, 61 N.W. 1025 (1895)], while as to legislative contests, “Each house shall be the judge of the election returns and the qualifications of its own members.” N.D. Constitution, § 47. It was therefore appropriate for the statute to provide that the results of the recount are admissible in proceedings in the Legislature while omitting the obvious, that the results of a recount of other races would be admissible in quo warranto or contest proceedings.
7. The Attorney General admits that his interpretation of the above statutes is inconsistent with Section 16-13-38, which provides that
“The state board of canvassers, in canvassing to ascertain the result of any election, shall canvass only the regular returns made by the county board of canvassers as provided in this chapter.”
The Attorney General suggests that this section is repealed by implication. I disagree. Repeals by implication are not favored, and the interpretation I have put on all the relevant statutes recognizes the ap*360plicability of all of them, which is the result we must seek if at all possible.
“. . . repeals by implication are not favored. There must be a clear repug-nancy between the provisions of the new law and the old statute to such an extent that a necessary implication arises’ that the legislature by enactment of the latter Act intended to repeal the former, and then only to the extent of its repugnan-cy.” First American Bank & Trust Co. v. Ellwein, 198 N.W.2d 84, 98 (1972), and cases cited.
8. Both sides agree that a canvassing board cannot reconvene and change prior action once it has performed its duty, in the absence of statutory authority to do so. The Attorney General cites 29 C.J.S. Elections § 239, p. 668, and the respondents cite McCrary on Elections, 4th Ed., § 278, p. 209. I agree. Since I can find no statutory authority for reconvening except to deal with a report from a county canvassing board, at the request of two members, and no such meeting of the county canvassing board was held, I would hold that there is no authority to reconvene the State Board of Canvassers.
CONCLUSION
Having considered all the arguments pro and con, I can only conclude that Section 16-13-15 relates to recanvassing to correct mistakes discovered by county canvassing boards at meetings called by two or more members of those boards, according to its plain terms, while Section 16-13-47.1 relates to an entirely different procedure, for a recount of votes which, in the case of legislative recounts, are to be reported via the Secretary of State to the Legislature. The two are separate statutes, not integrated with each other in any way by the Legislature, and not compatible with each other without doing great violence to the English language and the obvious legislative intent.
The interpretation urged by the Attorney General and adopted by the majority treats a board which may consist entirely of nonmembers as if it were a board the makeup of which is prescribed by statute (point 1 above); it tortuously reads words into statutes which are not in them (point 2); it implies that the Legislature ignored the time frames set up by its own statutes (point 3); it reads into the minds of the legislators motives other than the obvious one of saving legislative time by having someone else do the recounting before the session starts (point 4); it assumes that the Legislature meant the recount to be used in more ways than one, although it specified only one (point 5); it ignores the fact that other electoral disputes are resolved by quo warranto proceedings, while the Legislature is the judge of the qualifications of its members (point 6); and it requires that a statute be repealed by implication, which is to be avoided whenever possible (point 7). Finally, since there is no statutory authority to reconvene the State Board of Canvassers to consider the results of a recount and it cannot act without such authority (point 8), the Board cannot be recalled into session.
I would affirm the writ of mandamus to the Secretary of State compelling him to issue a certificate of election to Norma Kuhn and forbidding him to recall the State Board of Canvassers. It can be reconvened only upon certification by a county canvassing board of a mistake. No such certification has been made. Recounts are to be reported to the Legislature. An attack on the absent voters ballots rejected in the recount [the basis of the change of result, we are advised, is the rejection of some 200 absent voters ballots not initialed by the inspector] can be made by action for declaratory judgment or otherwise. Such an action or other proceeding could be, and should be, expedited so as to have a determination before the main session begins in January.
In any ease, the final judgment as to who was elected will be made by the Legislature.