I dissent. I desire as briefly as possible to call attention to numerous authorities that are not in accord with the majority opinion. Some courts have held, as cited by the majority, that one who casts a vote for a dead person throws away his vote or disfranchises himself; other hold that legal votes cast for any *Page 436 person disqualified are protest votes and should be included in the total of the votes in determining whether there has been cast for the person claiming the office the highest number of legal votes. I think the latter rule more in accord with former decisions of this court, as well as in harmony with the spirit of our government and the letter of the Constitution.
Section 13 of Article IX of the Constitution provides: "In all elections held by the people under this constitution, the person or persons who shall receive the highest number of legal votes shall be declared elected."
The word "person" as used in the above provision of the Constitution means of course a "living person" (Brooks v.Boston etc. Ry. Co., 211 Mass. 277, 97 N.E. 760; State ex rel.Bancroft v. Frear, 144 Wis. 79, 128 N.W. 1068, 140 Am. St. Rep. 992), but the 400 votes cast for Gallagher were not illegal votes; they represented more than two-thirds of all the votes cast in Treasure county at the last general election. We find from the records in the office of the secretary of state that the combined total vote for all the candidates for Governor was 613, and that was the highest vote cast in that county for any candidate for a state office; 610 votes were cast for the presidential electors of all parties, and a less number for other candidates. It is obvious that the deceased candidate for clerk of the court received approximately two-thirds of all the votes cast in the county and they were not illegal votes.
It does not appear that when the votes were being cast for Gallagher and other candidates anyone challenged them and they were accepted to make up the total vote of all other candidates without question. Votes cannot be illegal in the sense referred to in the Constitution when cast for one candidate and not illegal when cast for another. An illegal vote is one cast by a person who is not entitled to vote, that is an alien, a non-resident, a minor, one convicted of a felony and not pardoned, etc.
The 613 votes cast in Treasure county at the November election for Governor were cast by the citizens of that county and it was their right to cast them in such manner as they desired. *Page 437 If they chose to register the decisive protest they did against the election of Wolff for clerk of the court, that was a privilege that could not be legally denied them, nor is there any law that classifies such votes as illegal.
Running through all our various and sundry organizations, governmental, corporate, social and in all others where expressions are sought from members of any body entitled to have a part in the determination of any question that arises within the scope of its purposes, affecting the particular body, no question can be determined unless a majority or a plurality of those participating supports the question under consideration, and in many of such bodies, more particularly political bodies, bodies or organizations that have to do with the fundamental element of government, no act or procedure may be authorized except on the vote of a majority of all the members of the particular body, whether present or absent. The Congress of the United States cannot act unless there be a quorum present, and a quorum is a majority of all the members irrespective of the number present; the same is true of our own legislative bodies, both House and Senate; essential matters affecting the property values of corporations cannot be dealt with or any action taken relative thereto without the approval of a majority of all the stockholders. Nowhere, nor in any activity of any nature, under our system of government, can a minority bind the majority when there is present a majority that voices their opposition to the action proposed. If this be not a fundamental principle of American government, then we will have to revise all, not part, but all, of our preconceived notions of government by majority rule.
Decisions of our own court directly in point are meager, but clearly indicate an intent to follow the American rule rather than the "English doctrine" followed by the majority. The principle is quite clearly expressed in the following cases by this court: Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80, 28 L.R.A. 502; Cadle v. Town of Baker, 51 Mont. 176,149 P. 960. The clearest exposition found, I think, appears in 18 Am.Jur., sections 263 and 264, where it is said: *Page 438
"Ineligibility or Death of Candidate Receiving Highest Vote. — While the cases are not in harmony as to the effect of knowledge of the voters at the time of voting that the candidate who actually receives the highest number of votes cast at an election is dead or ineligible, there is no dissent from the broad rule that in the absence of such knowledge, although the candidate voted for by a majority cannot be declared elected because of his ineligibility and the majority vote is thereby rendered ineffective for such purpose, such majority is effective to forbid the election of the candidate having the highest number of votes. [Thus rule is supported by citation of numerous authorities.] The effect is to render the purported election nugatory and to leave a vacancy in the office thus attempted to be filled. Generally, this rule also applies to cases in which the candidate for office dies between the date of nomination and that of election. Votes cast for him are not considered as counted for him, but are taken as against his opponent so far as concerns the latter's right to the office. Laws have been enacted which provide that in the event of the death or ineligibility of the majority candidate, the opposing candidate having the next highest number of votes shall be declared elected, [State exrel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895, 69 A.L.R. 348, is the only decision cited to sustain this rule], but such a provision is invalid where the Constitution provides that the person receiving the highest number of votes shall be elected." McKinney v. Barker, 180 Ky. 526, 203 S.W. 303, L.R.A. 1918E, 581, is cited to sustain this rule.
"The American rule has been broadly stated as making no distinction between votes cast in ignorance of the recipient's ineligibility and those given with full knowledge thereof, the minority candidate being held to be defeated in either case by the majority cast in favor of the ineligible candidate. Many cases, however, applying the so-called "English doctrine," draw a distinction in this connection and hold that voters who, knowing that a person is dead or ineligible to office by reason of any disqualification, give their ballots for him are deemed to throw away their votes and mean not to vote for any one for that office, *Page 439 so that the eligible candidate receiving the next highest vote is elected. * * *"
According to American Jurisprudence it becomes obvious that the majority in the case at bar were governed by the "English doctrine" rather than by the majority American rule. It appears illogical to me to hold that the kind of disqualification is of decisive importance. One who receives the highest number of votes is the choice of a majority of the voters. If he be dead at election time, if he be not of legal age to hold the particular office, if he be not a legal resident of the state, the county, or the district, or if he be a person of foreign birth, and unnaturalized or for any other reason mentioned in the statutes he be not qualified to hold the office he may be ousted if he has assumed to exercise the functions thereof.
There is no logical reason why one sort of disqualification of a candidate such as in the instant case should redound to the advantage of the candidate who received the next highest number of votes than another sort of disqualification. One is qualified or he is not qualified; there are no degrees of disqualification. A and B are contestants for a particular office; A wins but is disqualified, and B, not having received the highest number of votes, cannot have the office. It is not A's disqualification that prevents B from having the office, but the fact that B was not the choice of a majority of the voters voting at the election.
In the case of Saunders v. Haynes, 13 Cal. 145, it was said: "But if a majority of those voting, by a mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him on the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all but for this mistake. The votes are not less legal votes because given to a person in whose behalf they cannot be counted; and the person who is the next to him on the list of candidates does not receive a plurality of votes because his competitor was ineligible. The votes cast for the latter, it is true, cannot be counted for him; but that is no reason why they should, in effect, be counted for the former, *Page 440 who, possibly, could never have received them. It is fairer, more just, and more consistent, with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing to office a man whose pretentions the people had designed to reject."
In Howes v. Perry, 92 Ky. 260, 261, 17 S.W. 575, 576, 36 Am. St. Rep. 591, it was said: "It is a principle of free elections by the people, firmly fixed and understood, that no person is or can be regarded duly elected to an office unless, when only two persons are voted for, he receives a majority of the votes cast for them, or receives a plurality in case there are more than two voted for. Any other rule would be subversive of the fundamental idea of elections by the people under our form of government, which is that only that person shall be entitled to hold an elective office who appears from the records of votes cast to have been the choice of a majority or plurality of those voting in such elections. There is no means of ascertaining whether S.T. Bayse had at the time of his death received more votes than the whole number given to appellant; nor is it necessary to inquire, for it is admitted by appellant he was not the choice of a majority of the qualified voters whose votes were cast in good faith, and recorded in that election, and that is enough to decide the contest against him." To the same effect, see State ex rel. Dunning v. Giles, (Wis.) 2 Pin. 166, 1 Chand. 112, 52 Am. Dec. 149, and note thereto; Patten v.Haselton, 164 Iowa, 645, 146 N.W. 477, 51 L.R.A. (n.s.) 226;Sheridan v. City of St. Louis, 183 Mo. 25, 81 S.W. 1082.
In my opinion the proper course for the county commissioners to have pursued was to declare the attempted election of clerk of court at the November election a nullity, appoint some person to fill the office until an election could be held and proceed to call and hold a special election to fill the office as provided by section 532, Revised Codes.
There is a further question involved that I shall not pause to consider further than to say that granting for the sake of argument that the votes cast for Gallagher were illegal, which *Page 441 is the theory of the majority, it appears to me that this court, by the action taken, infringed upon the powers of the election officials. The county canvassing board, the county commissioners, has no power to revise the poll books as certified by the judges of election. If the judges of election have certified, to the county canvassing board, votes that were accepted by the judges of election as legal votes, mandamus directing the county board to correct the assumed error of election judges can obtain no legal results.
Rehearing denied February 13, 1941.