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at the head of the group of candidates of better-considered authorities the relator herethe Silver Republican party, and not other- | in should not be denied the right to maintain wise, and that each of said ballots so cast this action in the name of the state, under was counted and returned by the election section 1414 of the Code of Civil Procedure, officers as a vote for Fransham for sheriff; wherein it is provided that “a person claimthat if 47 or more of said ballots, marked as ing to be entitled to a publie office, unlawaforesaid, had not been counted for Fran- fully held and exercised by another, by himsham, the relator would have received a self or by an attorney and counselor at law, greater number of votes than Fransham, may bring an action therefor in the name of and would have been elected. The relator the state as provided in this chapter,” etc. makes a further complaint, averring that in Concerning the right to institute a proceeding the precinct of South Bozeman at least 30, in the nature of quo warranto, where there and at the precinct of Chestnut at least 20, exists a statutory method for testing the reballots were cast in which the voters marked

sults of an election, Spelling, in his work on a cross within the circle at the head of the Estraordinary Relief (section 1776), says: list or column headed “Democratic Party,” | Upon the question whether the existence of and also placed a cross at the left of the

a statutory method for testing the results of name of said Fransham where it appeared in an election will constitute a bar to the prothe list headed “Silver Republican Party," ceeding the authorities are not altogether and that all of the ballots so cast were by | harmonious, but nearly all the recent authe judges and clerks of election of said thorities are to the effect that such statutory precincts returned as votes for the said Fran- remedy does not exclude the remedy by quo sham for sheriff, and were included in the

warranto to try title.” McCrary on Elecnumber of votes so found to have been re- tions (section 360) has the following: “A ceived by Fransham by the board of county statute which confers upon any elector of the canvassers. The relator then alleges that proper county the right to contest, at his opthe defendant usurped the office of sheriff tion, the election of any person who has been of Gallatin county, and he demands judg. | declared to be duly elected to a public office, ment against said defendant and in favor of

to be exercised in and for such county, does his own right. To this complaint the de- not oust the jurisdiction of the proper court, fendant demurred generally and specially. on information in the nature of a quo warThe district court sustained the demurrer.

ranto to inquire into the authority of any The relator declined to amend his complaint,

person who assumes to exercise the funcand permitted judgment to go against him.

tions of a public office or franchise, and to A question of jurisdiction is raised in limine remove him therefrom if he be a usurper, by the contention of defendant that this ac- having no legal right thereto." In State v. tion cannot be maintained at all as one in Adams, 65 Ind. 393, it was insisted by the the nature of quo warranto, and that it was

appellee that the court had no original jurisnot instituted within the time allowed by diction over the subject-matter of the suit law for contesting an election for a county , by information for a writ of mandate, beoffice, and that, therefore, the lower court cause the relator had an adequate legal remhad no jurisdiction of the subject matter. edy under an act of that state for contestBy section 2010 et seq., Code Civ. Proc., any ing elections. The Code of Indiana enacted elector may contest the right of any person, that “when any person shall usurp, intrude declared to be elected to an office to be ex

into, or unlawfully hold or exercise any pubercised in a county, town, or city, for any lic office, or any franchise within this state, of four grounds, one of which is on account

or any office in any corporation created by of illegal votes. It is further provided by the authority of this state,” an information section 2015 that, when the reception of il- might be filed against any person or corpolegal votes is alleged as a cause of contest,

ration by the prosecuting attorney, “or by any the party contesting such election must de

other person on his own relation, whenever liver to the opposite party, at least three he claims an interest in the office, franchise days before such trial, a written list of the

or corporation which is the subject of the in. number of illegal votes, and by whom given, formation.” The court said it was clear to which he intends to prove on the trial, and them that the relator might seek the remerly no testimony can be received of any illegal | he asked under the statute; and that while votes, except such as are specified in such it was also clear, as a general principle, that list. It would seem, therefore, as if by the a party is not entitled to a writ of mandate use of the words “illegal votes” in a proceed- when he has any other adequate legal reming to contest an election, under the statutes edy, "yet, where the statute expressly gives cited, the legislature meant votes cast by the right by information, we do not think persons disqualified as electors under the con- another statute giving another adequate lestitution and laws of the state, and that no gal remedy will take away the right given reference was intended to contests over the by information." Paine on Elections (secproper method of counting votes confessedly tion 861), citing the Indiana cases, says: “Nor cast by qualified voters. But, if our con- will the adoption of a special statutory prostruction of the statute on this point is too ceeding for the trial of cases of contested narrow, we still find that by the later and l elections, in the absence of express provision to that effect, abrogate the right to a trial , People v. Whitcomb, 55 Ill, 172,-not accesupon an information in the nature of a quo sible to him,-he would have included it in warranto, secured by an unrepealed statute the statement that the cases cited by High of the same date with that which establishes on Extraordinary Legal Remedies (section the statutory proceeding.” People v. Lon- 617) do not exactly warrant his text. doner (Colo. Sup.) 22 Pac. 764. In State v. In People v. Holden, 28 Cal. 124, SanderFrazier (Neb.) 44 N. W. 471, the relator there- son, C. J., for the court, held that the act in brought his original petition in quo war- providing a mode for contesting elections ranto against one Frazier, of Dakota county, conferred upon any elector of the proper alleging substantially that at an election held county the right to contest the election of relator received a majority of all legal votes any person who had been declared duly cast at said election, and was duly elected elected to a public office to be exercised in to the office of county attorney, but that the and for such county; but that this grant of defendant refused to deliver possession of power to the elector could in no way impair the office to relator. The respondent in that the right of the people in their sovereign cacase raised the point that the relator should pacity to inquire into the authority by which be denied his remedy by quo warranto be- any person assumed to exercise the funccause he had an adequate remedy at law, tions of a public office, and to remove him pursuant to certain statutes of Nebraska pro- therefrom if it was made to appear that he viding for contesting elections. Justice Cobb was a usurper and without legal right therediscusses with much learning the argument to. The court then speaks of the remedies of respondent, and thus regards it: “The by information in the nature of a quo war. statute nowhere in terms makes these provi- ranto as a power granted to the people in sions exclusive of all other remedies; so that the right of their sovereignty. But it is to if they are to be so considered it must be be observed that under section 1414 of the by force of that general proposition so often Montana Code of Civil Procedure exactly the invoked, and laid down with more or less same power is given to a person claiming to accuracy, that neither injunction in equity, be entitled to a public office unlawfully held nor mandamus at law, can be resorted to by another, to bring an action in the name of where the party aggrieved can obtain full the state, as is given to the attorney general. and adequate relief in the usual course of So that all that the California court said proceedings at law or by the ordinary forms sustains the proposition that the contested of civil action. Mr. High, in his work on election statute and the remedy by quo warExtraordinary Legal Remedies, at section ranto remain as concurrent remedies. In the 617, says that 'a striking analogy exists be- recent case of Snowball v. People, 147 Ill. tween the remedy by quo warranto informa- 260, 35 N. E, 538, a quo warranto proceeding tion and the extraordinary remedies' above was had to try the title of appellant to the referred to. He also lays down the rule that office of a member of the board of education 'where a specific mode is provided by stat- of a county. It was there also contended ute,

and a specific tribunal is that the proceeding was merely an election created for that purpose, and the method of contest, and that such contests could only be proceeding therein is fixed by law, resort determined by the county court, and not by must be had to the remedy thus provided, the circuit court, in a quo warranto proceedand proceedings by information in the nature ing. The court said: “There seems to be of a quo warranto will not be entertained.' some disagreement among the authorities Id. The author cites to the above: State upon the question whether proceedings by in. v. Marlow, 15 Ohio St. 114; State v. Taylor, formation in the nature of quo warranto are Id. 137; Com. v. Henszey, *81 Pa. St. 101; excluded, where a statute prescribes a spe People v. Every, 38 Mich. 405; State v. Wad-cific mode for contesting elections, and deskins, 1 Rich. Law, 42; People v. Whitcomb, ignates a particular tribunal for determining 55 Ill. 172; People v. Ridgley, 21 Ill. 66; such contests. It has been held in Ohio and Dart v. Houston, 22 Ga. 506; People v. Turn- Pennsylvania, and perhaps in some other pike Co., 2 Johns. 190. I have examined all states, that, where a specific mode of conthe above cases except People v. Whitcomb, testing elections has been provided by stat55 Ill. 172, which I do not find in the library, ute, that mode alone can be resorted to, and and do not find any one of them to sustain that the common-law mode of inquiry by the text, with the exception of State v. Mar- proceedings in quo warranto will not be enlow, 15 Ohio St. 114, which is the case dis- tertained. State v. Marlow, 15 Ohio St. 114; cussed by Chief Justice Lake in Kane v. Com. v. Leech, 44 Pa. St. 332; High, Extr. People, 4 Neb. 509. I am, therefore, of the Leg. Rem. § 617. It will be found upon exopinion that the remedy by contest, under the amination that the decisions which thus hold provisions of the statute above cited, in cases are based upon peculiar statutory and conlike the one at bar, is a cumulative, and not stitutional provisions, which do not exist in an exclusive, one, and that the objections to this state. People v. Hall, 80 N. Y. 117. the procedure by quo warranto, and to the But, independently of such provisions, the iurisdiction of this court to hear and deter- weight of authority is in favor of the posimine it, must be overruled." If the learned tion that the special remedy given by statute judge had been able to read the opinion in in such cases is merely cumulative, and not

exclusive, of the remedy by quo warranto: The general principle is that, in the absence of any controlling constitutional restrictions upon the subject, the jurisdiction of the courts to proceed by information in the nature of quo warranto is not taken away by a statute which prescribes a special proceeding, unless there are express words in the statute itself taking away such jurisdiction, or unless it appears to have been the manifest intention of the legislature to contine the remedy to the prescribed proceeding and to the designated tribunal. 1 Dill. Mun. Corp. (4th Ed.) $ 202 (old section 141), and notes.” See, also, State v. Gallagher, 81 Ind. 558, and State v. Meilike (Wis.) 51 N. W. 875. The case of Gillespie v. Dion, 18 Mont. 183, 44 Pac. 954, was an election contest instituted specially under the Compiled Statutes of 1887, and before the adoption of the Codes of 1895. It was not contended in that case that the action was one brought in the nature of a quo warranto proceeding, and questions herein raised were not involved in that case and were not considered by the court. We think, there. fore, that where the two sections providing for contesting the right of a person to hold 22 office were passed at the same session of the legislature, effect should be given to each, if possible, and that the proper construction of the statutes heretofore referred to is that the remedy of quo warranto is concurrent with the right to institute an election contest.

The case for consideration stands as one of conceded facts. The Silver Republican party was at the election of 1896 in Montana an existing political organization within the state, and within many of the counties of the state. Just prior to its independent existence as a political party its members affiliated with the Republican party, and agreed in convention of the Republican party upon the same state ticket; but immediately thereafter, in the exercise of its independent political rights, It made its own nominations for presidential electors, and effected an organization. It also nominated local candidates for offices in various counties of the state. But in Gallatin county, as a party, the Silver Republicans did not regularly, in convention or otherwise, nomInate local candidates. A number of indi. vidual electors of that county did, however, attempt to nominate as the candidates of the Silver Republican party for local offices the same persons wbom the Republican party had previously nominated as its candidates for such offices. These attempted nominations having been by petition, wherein individual electors sought to make the persons named the candidates of the party whose name they used in the petition of nomination, were invalid and worthless as party nominations. We have already decided in the cases of State v. Rotwitt, 18 Mont. 562, 46 Pac. 370, State v. Tooker, 18 Mont. 540, 46 Pac. 530, and State v. Reek, 18 Mont. 557, 46 Pac. 438, that the statutes do

not permit a nomination of a person as the candidate of a regularly existing political party to be made by petition of unorganized electors, and, furthermore, that a candidate, certified as nominated by electors, is not nominated by a political party, and has no right to be placed on the official ballot as the candidate of an organized existing party. These decisions were made after careful consideration of our statutes, and must stand. It was therefore the duty of the county clerk of Gallatin county to omit from the Silver Republlcan column of the official ballot the names of all persons so attempted to be nominated by electors as the candidates of that party for local offices. But the clerk failed to do his duty, and without authority inserted and published in the official ballot the relator's and other persons' names as candidates for local offices in the Silver Republican column, beneath the names of those candidates for state offices who had been regularly nominated in state convention by the Silver Republican party. The case comes, then, to this: What is the effect of the unauthorized conduct of the county clerk upon the votes cast for the candidate for sheriff by the marking of the ballots within the circle under the caption of the Silver Republican column?

No embarrassment confronts us by reason of the alleged lack of qualification of the voters who voted the ballots presented; nor is the case complicated by any contention on the re. lator's part that the ballots which were marked were not official ballots,-that is, printed ballots prepared and provided by the county clerk, whose duty it was under sections 1351, 1354, 1356, Pol. Code, to cause the ballots to be printed and delivered to the judges of election. Section 1318 of the Political Code requires the county clerk, at least 10 days before an election is held, to publish in one or more newspapers within the county the nomInations to office, certified to him as required by law. The object of this requirement is to authoritatively present to the electors an accurate list of names of the persons who have been duly nominated for offices to be filled by the voters; and, in the absence of any averment in the complaint to the contrary, we will assume that the ballots printed and delivered by the county clerk to the judges of election. and voted by the electors, were the same, in substance and arrangement of columns, and contained the same statement of names of cau. didates, together with the principles or parties represented by such candidates, as were included in the published list of nominations made 10 days before election, as required by the above referred to provisions of the law. So we must conclude that the form of the ballot was regular on its face.

It was apparently the ballot made up exactly as the statute required it should be made up. Now, when a voter called for a ballot, the judges gave such a ballot to him, marked as required by law (section 1360, Pol. Code), with the designation "Official Ballot” stamped therean

The voter, by an examination of the ballot so central points, and whose duties are to vigl. given to him, was entirely unable to tell that

lantly protect their candidates against pos the Silver Republican candidates for local of- sible prejudice or error on the part of all fices never had been legally nominated as the persons, officially or otherwise, taking necescandidates of that party; nor was it patent sary or important or active part in connecthat the county clerk of Gallatin county, in tion with election affairs. Candidates, too, making up the official ballot, had not done are usually alert to protest against any inhis duty by inserting the names of any candi- fringement of the law whereby they may be dates not nominated according to law. Pol. put to disadvantage. In order to give to them, Code, $ 1354. The error in them could not as well as to all others, the clearest unbe discerned on inspection; it was latent. The derstanding of what ballot is to be given to ballot was the only one authorized to be hand- the judges of election for electors by the ed to a voter, and to be used by him. He

county clerk, the law has imposed upon that could mark and return no other without vio- official the duty of making proper publicalating the law. The voters were innocent and tion, and simultaneously accorded to any honest in their acts. These propositions are elector a correlatively important right of indisputable.

calling upon the courts to compel the legal But relator now asks the court to throw and proper performance of his duty. But, out the votes of 200 qualified voters, who where there is a neglect on the part of one honestly used ballots furnished for their use to avail himself of this right, he cannot, by the authorities of the county, because the when the result of the election is announced l'ounty clerk vioiated his duty by putting the and he finds himself defeated at the polls, names of candidates who were not legally ask the courts to nullify the expressed will nominated by the Silver Republican party in of voters upon the ground of the error ol the party column of that party. This is a

wrong of the county clerk, which he could by request to have 200 legal votes rejected. He reasonable diligence have had corrected by laises no question of the intent of these 200 invoking the statutory provisions at the voters, or of their methods of voting, but re

proper time. As said by Andrews, C. J., in lies upon the argument that the county

the case of People v. Wood (N. Y. App.) 49 lerk's violation of the law made the oflicial

N. E. 536: "We can conceive of no principle ballot a falsehood, and by the use of the which permits the disfranchisement of Inno. ballot presented the voter was led to vote cent voters for the mistake or even willful for a candidate upon the representation that misconduct of election officers in performing he was the candidate of the party under the the duty cast upon them.” Or it might be title of which his name appeared, when in put in this way: If no ante election objecfact he was not such candidate. Let us tion to a nomination is made, the provisions grant that this is true; yet it cannot avail of the statute are to be treated as directory. the relator in this case. It must always be This principle, although apparently departed remembered that the publication of the nomi- from in Price v. Lush, 10 Mont. 61, 24 Pac. nations for 10 days prior to the election was

749, was none the less the underlying one of an official announcement to the electors as a the late decision in Stackpole v. Hallaban fact that defendant was the candidate of the Mont.) 40 Pac. 80, and is the basis of other Silver Republican party, and was duly nomi- numerous late and well-considered opinions nated by that party for the office of sheriff, | (Bowers v. Smith (Mo. Sup.) 20 S. W. 101; and would be on the official ballot as the Sil

Allen v. Glynn (Colo. Sup.; 1892) 29 Pac. ver Republican candidate, unless, of course, 670; Miller v. Pennoyor [Or.; 1893) 31 Pac. It might after publication be otherwise or

830; Brangdon v. Navarre (Mich.; 1894) 60 dered by the courts. Furthermore, the an- N. W. 277), and the two opinions rendered nouncement was made in order that any er- during the same week in December, 1855, by rors or omissions in the publication of the the courts of Idaho and New York, respecpames or descriptions of the candidates nom

tively (Baker v. Scott, 43 Pac. 76; People v. inated for office, or in the printing of the

Wood, supra). In considering this case we ballots, might, upon application of any elect- acknowledge great aid from the last case or to the district court, be corrected, or cause cited. shown for not making the correction. Pol.

Possibly a case might be conceived of Code, § 1322. This last-cited statute contem- where the official ballot given to the voter plates and authorizes the institution of pro- was not the one published at all by the counceedings to cure, not alone clerical omissions ty clerk; as, for instance, where the county or errors, but likewise extends to instances clerk delivered to the judges at the last moof defects by way of omission of names of ment ballots containing different names from candidates from the ballot, as well as to er- those published as the candidates nominated, roneous insertions of names of persons as and where the misconduct was such that by candidates who are not in fact entitled to be

no possible reasonable effort could it have so regarded, and whose names, unless strick- been prevented, because of the deception and en off the official ballot, will be erroneously misconduct of the officer, It might be that printed thereon.

under such circumstances the rule should be It is well known that the interests of can- relaxed because of the possible inapplicabilldidates of parties are generally managed and ty of the general principle stated; but no Jealously guarded by committees locatel at such case is presented here, and, even if

Silver

there were, it is difficult to see how, under of the name of defendant where it appeared the constitution of our state (section 13, art. in the column headed "Silver Republican 9), the person who receives the highest num- Party"? ber of votes cast by qualitied voters can be denied the constitutional right to the office

Democratic Party. to which he has been so elected. There is

Republican Party. wisdom in that construction of election laws which holds rigidly to the doctrine that in

O our country, where the will of the people is

For Governor.

For Governor, supreme when clearly expressed, it cannot

Robert B. Sanith.

Alex. C. Botkin. be defeated by a claim that an official neg

For Sheriff of lected to properly make up the ballot pub

For Sheriff of

Gillatiu ('ounty. X Gallatin County, lished and voted. A party or candidate may

W.Randoiph Brooks. William J. Fransham. be defeated by an official's wrong, but the electors must be secure in the knowledge This feature of the case becomes material, that their votes, when legally cast, will be for the reason that relator alleges that at counted. And we cannot hold to the con- least 50 ballots so marked were counted and trary, unless compelled to do so by manda- returned as votes for Fransham, and were tory provisions of law and construction re- counted and included in the sum total of his quiring such votes to be held void, not in 1,080 votes. Inasmuch as relator received our constitution or codes. The argument 1,034 votes, it follows that if Fransham was that the ballot was a falsehood, and that no allowed 50 votes not legally cast for him it person should protit by it, has considerable would reduce his votes to 1,030, or 4 less force, we admit; but it is not strong enough, than the relator received. The learned disunder the facts admitted by the demurrer to trict judge was of the opinion that the dethe complaint herein, to outweigh the more fendant was properly credited with votes important controlling principle that the marked for him as above indicated, construelectors, who do not make up the ballot, ing the intention of the voter who so marked must rely with perfect assurance and safety his ballot to be to vote for all the Democratic upon the official ballots given them, and that candidates except for sheriff, and for that their ballots will be counted as marked, and office he voted for defendant, the Silver Rethat their legally expressed will cannot be publican candidate. This construction was overthrown where they are not at fault, al- founded upon section 1103 of the Political though it should turn out that the public Code, which is fully quoted and discussed in officer who had to do with the preparing of Dickerman v. Gelsthorpe, 18 Mont.

--, 47 the ballot voted may have neglected his Pac. 999. In that case we held that section duty.

1403 was intended to modify sections 1354 and The relator's complaint is wholly insuffi- 1361 of the Political Code, and that they must cient in its averment of fact to warrant us be construed together. It was further decidin concluding that the defendant instigated ed, as applied to the ballot just illustrated, the county clerk to commit the error that marking in the circle at the head of the wrong of publishing the Silver Republican Democratic list is, under the law,-so far as candidates' names in the manner he did, or the legal intent of the voter is concerned,that the clerk did so with the actual knowl- equivalent to placing a cross opposite the edge and consent of the defendant. We, name of each and every candidate in the list therefore, find it unnecessary to construe any under said circle. In other words, we think possible effect upon the result of the election that the permission to the voter to mark in that sections 60, 103, 111, Corrupt Prac. Act the circle at the head of the Democratic list (Pen. Code), may have.

was simply, in effect, saying to him: "You We think, too, that the excuses offered by may, instead of making crosses opposite the the relator for lying by and waiting until names of each and every candidate on this election was over are too trivial for serious list, make one cross in the circle at the top, consideration. If Judge Armstrong was a and by doing so you express your intent to candidate, and thus disqualified from issuing vote for each and every candidate of the orders in the premises, relator could easily Democratic party, just as fuily and as spehave gone to another district judge, and ob- cifically as if you marked opposite the names tained an order of correction or to show of each and every such one." “The legal incause. He does not pretend that he made tent," says Justice Buck in that opinion, any real effort to cure the error.

“from the cross in the circle, is not subordiThese views dispose of the first branch of nate to the intent manifested by marking the case, and lead to our approval of the rul- crosses opposite the naines of particular can'ing of the district court thereon.

didates in other lists." The second ground of contest raises this This being the law, therefore, we find that question: How should a ballot be counted the averment of relator's complaint is to the where, as is shown by the illustration below, effect that at least 50 voters, by marking a a voter marked a cross within the circle at cross in the circle at the top of the Demothe head or the column marked “Democratic cratic column, expressed an intent to vote Party,” and also placed a cross at the left for Brooks, but by also marking a cross

or

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