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Full text of "Election laws of the State of Montana, 1968"

^-?f '. "f STATE JOCUMENTS 



ELECTION LAWS 



OF THE 



STATE OF MONTANA 



1968 



Arranged and Compiled from the Revised 

Codes of Montana of 1947, 

as Amended 



Compiled by 

Frank Murray, Secretary of State 

Helena, Montana 

January, 1968 





Montana State Ubrary 



3 0864 1004 2461 6 




ELECTION LAWS 

OF THE 

STATE OF MONTANA 

1968 



Arranged and Compiled from the Revised 

Codes of Montana of 1947, 

as Amended 



Compiled by 

Frank Murray, Secretary of State 

Helena, Montana 

January, 1968 




Copyright © 1967 

The Allen Smith Company 

Indianapolis, Indiana 



Publishers of the 
REVISED CODES OF MONTANA, 1947 



TABLE OF CONTENTS 



CONSTITUTION PAGE 

Article III. A Declaration of Eights of the People of the State of Mon- 
tana 1 

V. Legislative Department 1 

VI. Apportionment and Representation 4 

VII. Executive Department 5 

VIII. Judicial Departments 6 

IX. Rights of Suffrage and Qualifications to Hold Office 8 

X. State Institutions and Public Buildings 10 

XI. Education 10 

XII. Revenue and Taxation 10 

XIII. Public Indebtedness 11 

XVI. Counties — Municipal Corporations and Of&ces 12 

XIX. Miscellaneous Subjects and Future Amendments 15 

TITLE 1. AERONAUTICS 

Chapter 8. Establishment of Airports by Counties and Cities — Municipal 

Airports Act 16 

TITLE 4. ALCOHOLIC BEVERAGES 

Chapter 1. State Liquor Control Act of Montana 17 

3. Montana Beer Act 18 

4. Montana Retail Liquor License Act 20 

TITLE 9. CEMETERIES 

Chapter 2. Public Cemetery District Act 22 

TITLE 11. CITIES AND TOWNS 

Chapter 2. Classification and Organization of Cities and Towns 27 

3. Changes in Classification of Cities and Towns 29 

4. Additions of Platted Tracts to Cities and Towns 29 

5. Alteration of Boundaries, Exclusion and Inclusion of Terri- 

tory 30 

7. Officers and Elections 33 

9. Powers of City and Town Councils 38 

10. Powers of City and Town Councils (continued) 40 

11. Ordinances — Initiative and Referendum 43 

12. Contracts and Franchises 48 

17. Municipal Courts 50 

20. Fire Protection in Unincorporated Towns — Fire Wardens, Com- 
panies and Districts 50 

22. Special Improvement Districts 52 

23. Municipal Bonds and Indebtedness 57 

24. Municipal Revenue Bond Act of 1939 61 

25. Abatement of Smoke Nuisance 62 

31. Commission Form of Government 64 

32. Commission-Manager Form of Government 79 

33. Commission-Manager Form of Government (continued) 97 

34. City and County Consolidated Government 98 

35. City and County Consolidated Government (continued) 105 

36. Metropolitan Sanitary Districts, Repealed — Section 14, Chapter 

185, Laws of 1957 112 

37. Off-street Parking Facilities 112 

39. Urban Renewal Law 113 



TABLE OF CONTENTS 

TITLE 16. COUNTIES PAGE 
Chapter 3. Removal of County Seats 115 

4. Location of County Seats 118 

5. Creation of New Counties by Petition and Election 123 

8. General Powers and Limitations upon Counties 134 

10. General Powers and Duties of County Commissioners 135 

11. Special Powers and Duties of County Commissioners 135 

12. County Printing Commission 135 

19. County Budget System 136 

20. County Finance — Bonds and "Warrants 139 

23. Vote Necessary on Proposal to Raise Money 142 

24. County Officers — Qualifications — General Provisions 144 

39. County Manager Form of Government 146 

40. Abandonment of Counties 148 

43. Public Hospital Districts 154 

45. County Water and Sewer Districts 156 

TITLE 19. DEFINITIONS AND GENERAL PROVISIONS 

Chapter 1. Definitions and Construction of Terms — Holidays — Other General 

Provisions 167 

TITLE 23. ELECTIONS 

Chapter 1. Time of Holding Elections — Proclamations 169 

2. Publication of Questions Submitted to Popular Vote 172 

3. Qualifications and Privileges of Electors 173 

4. Election Precincts 177 

5. Registration of Electors 180 

6. Judges and Clerks of Elections 199 

7. Election Supplies 204 

8. Nomination of Candidates for Special Elections by Convention 

or Primary Meetings or by Electors 208 

9. Party Nominations by Direct Vote — The Direct Primary 219 

10. Political Parties 241 

11. Ballots, Preparation and Form 243 

12. Conducting Elections — The Polls — Voting and Ballots 250 

13. Voting by Absent Electors 260 

14. Voting by Absent Electors in United States Service 272 

15. Registration of Electors Absent from County of Their Resi- 

dence 276 

16. Voting Machines — Conduct of Election When Used 277 

17. Election Returns 290 

18. Canvass of Election Returns — Results and Certificates 295 

19. Failure of Elections — Proceedings on Tie Vote 300 

20. Nonpartisan Nomination and Election of Judges of Supreme 

Court and District Courts . 302 

21. Presidential Electors, How Chosen — Duties 307 

22. Members of Congress — Elections and Vacancies 309 

23. Recount of Ballots — Results 311 

24. Conventions to Ratify Proposed Amendments to Constitution 

of the United States 321 

25. Electronic Voting Systems 324 

TITLE 32. HIGHWAYS, BRIDGES AND FERRIES 

Chapter 29. Board of County Commissioners Responsibility for Bridges and 

Ferries 329 

36. County Tax Levies for Road and Bridge Construction 329 

TITLE 37. INITIATIVE AND REFERENDUM 

Chapter 1. Initiative and Referendum 330 

TITLE 43. LEGISLATURE AND ENACTMENT OF LAWS 

Chapter 1. Senatorial, Representative and Congressional Districts 337 

2. The Legislative Assembly 339 

TITLE 44. LIBRARIES 

Chapter 2. County and Regional Free Libraries 341 



TABLE OF CONTENTS 



TITLE 62. PARKS AND PUBLIC RECREATION PAGE 
Chapter 2. City, Town and School District Civic Centers, Parks and Recre- 
ational Facilities 341 

TITLE 75. SCHOOLS 

Chapter 13. The Public Schools — Superintendent of Public Instruction 342 

15. County Superintendent of Schools 343 

16. School Trustees 344 

17. Budget System 350 

18. School Districts 352 

31. Schoolhouse Sites and Construction 357 

34. Transportation of Pupils 358 

37. Finance 358 

38. Extra Taxation for School Purposes 359 

39. Bonds 362 

41. High Schools — County — Junior and District — Joint School Sys- 

tems 369 

42. High Schools — County — Junior and District — Joint School Sys- 

tems Continued — Vocational Education 377 

44. Community College Districts 380 

45. High School Budget Act 388 

46. High School Districts— Public Works 389 

TITLE 82. STATE OFFICERS, BOARDS AND DEPARTMENTS 

Chapter 5. Clerk of Supreme Court 395 

TITLE 84. TAXATION 

Chapter 47. Cities and Towns — Taxation and License 395 

TITLE 89. WATERS AND IRRIGATION 

Chapter 13. Irrigation Districts — Board of Commissioners, Powers, Duties 

and Elections 397 

23. Drainage Districts — Commissioners — Election — Organization — Re- 
ports 403 

33. County and Municipal Participation in Flood Control and Water 

Conservation 405 

TITLE 93. CIVIL PROCEDURE 

Chapter 2. Supreme Court 405 

3. District Courts 407 

4. Justices' and Police Courts 409 

TITLE 94. CRIMES AND CRIMINAL PROCEDURE 

Chapter 14. Election Frauds and Offenses — Corrupt Practices Act 409 

INDEX 439 



CONSTITUTION 



ARTICLE III 

A DECLARATION OF RIGHTS OF THE PEOPLE OF THE STATE OF MONTANA 

Section 2. The people of the state have the sole and exclusive right of 
governing themselves, as a free, sovereign, and independent state, and to 
alter and abolish their constitution and form of government, whenever they 
may deem it necessary to their safety and happiness, provided such change 
be not repugnant to the constitution of the United States. 

Section 5. All elections shall be free and open, and no power, civil or 
military, shall at any time interfere to prevent the free exercise of the right 
of suffrage. 

ARTICLE V 

LEGISLATIVE DEPARTMENT 

Section 1. The legislative authority of the state shall be vested in a 
legislative assembly, consisting of a senate and house of representatives; 
but the people reserve to themselves power to propose laws, and to enact or 
reject the same at the polls, except as to laws relating to appropriations of 
money, and except as to laws for the submission of constitutional amend- 
ments, and except as to local or special laws, as enumerated in article V, 
section 26, of this constitution, independent of the legislative assembly; 
and also reserve power, at their own option, to approve or reject at the 
polls, any act of the legislative assembly, except as to laws necessary for 
the immediate preservation of the public peace, health, or safety, and ex- 
cept as to laws relating to appropriations of money, and except as to laws 
for the submission of constitutional amendments, and except as to local or 
special laws, as enumerated in article V, section 26, of this constitution. 
The first power reserved by the people is the initiative and eight per cent, 
of the legal voters of the state shall be required to propose any measure 
by petition ; provided, that two-fifths of the whole number of the coun- 
ties of the state must each furnish as signers of said petition eight per 
cent, of the legal voters in such county, and every such petition shall 
include the full text of the measure so proposed. Initiative petitions 
shall be filed with the secretary of state, not less than four months be- 
fore the election at which they are to be voted upon. 

The second power is the referendum, and it may be ordered either by 
petition signed by five per cent, of the legal voters of the state, pro- 
vided that two-fifths of the whole number of the counties of the state 
must each furnish as signers of said petition five per cent, of the legal 
voters in such county, or, by the legislative assembly as other bills are 
enacted. 

Referendum petitions shall be filed with the secretary of state, not 
later than six months after the final adjournment of the session of the 
legislative assembly which passed the bill on which the referendum is 



Art. V, § 2 election laws 

demanded. The veto power of the governor shall not extend to meas- 
ures referred to the people by the legislative assembly or by initiative 
referendum petitions. 

All elections on measures referred to the people of the state shall be 
had at the biennial regular general election, except when the legislative 
assembly, by a majority vote, shall order a special election. Any meas- 
ure referred to the people shall still be in full force and effect unless 
such petition be signed by fifteen per cent, of the legal voters of a ma- 
jority of the whole number of the counties of the state, in which case 
the law shall be inoperative until such time as it shall be passed upon 
at an election, and the result has been determined and declared as pro- 
vided by law. The whole number of votes cast for governor at the 
regular election last preceding the filing of any petition for the initia- 
tive or referendum shall be the basis on which the number of legal 
petitions and orders for the initiative and for the referendum shall be 
filed with the secretary of state; and in submitting the same to the 
people, he, and all other officers, shall be guided by the general laws 
and the act submitting this amendment, until legislation shall be espe- 
cially provided therefor. The enacting clause of every law originated by 
the initiative shall be as follows: 

"Be it enacted by the people of Montana." 

This section shall not be construed to deprive any member of the 
legislative assembly of the right to introduce any measure. (As amend- 
ed by Ch. 61, Laws 1905, effective December 7, 1906.) 

Section 2. Senators shall be elected for the term of four years, and 
representatives for the term of two years, except as otherwise provided 
in this constitution. 

Section 3. No person shall be a representative who shall not have 
attained the age of twenty-one years, or a senator who shall not have 
attained the age of twenty-four years, and who shall not be a citizen of 
the United States, and who shall not (for at least twelve months next 
preceding his election) have resided within the county or district in 
which he shall be elected. 

Sec. 4. 

Repeal states that "there shall be no more than 

This section was repealed by Ch. 273, one senator from each county" is void and 

Laws 1965, adopted at the general elec- unconstitutional in that it violates the 

tion of November 8, 1966, effective under equal protection clause of the fourteenth 

governor's proclamation, December 6, 1966. amendment of the constitution of the 

United States. Herweg v. Thirty Ninth 

Conatltutionallty Legislative Assembly of State of Mon- 

The portion of this provision which tana, 246 F Supp 454. 

Section 9. The senate shall, at the beginning and close of each regular 
session, and at such other times as may be necessary, elect one of its mem- 
bers president pro tempore. The house of representatives shall elect one of 
its members speaker. Each house shall choose its other officers, and shall 
judge of the elections, returns, and qualifications of its members. 



CONSTITUTION OF MONTANA ART. V, § 46 

Section 26. The legislative assembly shall uot pass local or special laws 
in any of the following enumerated cases, that is to say: For granting 
divorces; laying out, opening, altering or working roads or highways; va- 
cating roads, town plats, streets, alleys or public grounds; locating or chang- 
ing county seats; regulating county or township affairs; regulating the 
practice in courts of justice; regulating the jurisdiction and duties of jus- 
tices of the peace, police magistrates or constables; changing the rules of 
evidence in any trial or inquiry; providing for changes of venue in civil 
or criminal cases; declaring any person of age; for limitation of civil ac- 
tions, or giving effect to informal or invalid deeds; summoning or im- 
paneling grand or petit juries; providing for the management of com- 
mon schools ; regulating the rate of interest on money ; the opening or 
conducting of any election or designating the place of voting; the sale 
or mortgage of real estate belonging to minors or others under disabil- 
ity ; chartering or licensing ferries or bridges or toll roads ; chartering 
banks, insurance companies and loan and trust companies; remitting 
fines, penalties or forfeitures; creating, increasing or decreasing fees, per- 
centages or allowances of public officers; changing the laAv of descent; 
granting to any corporation, association or individual the right to lay 
down railroad tracks, or any special or exclusive privilege, immunity or 
franchise whatever; for the punishment of crimes; changing the names 
of persons or places; for the assessment or collection of taxes; affecting 
estates of deceased persons, minors or others under legal disabilities; ex- 
tending the time for the collection of taxes; refunding money paid into 
the state treasury ; relinquishing or extinguishing in whole or in part the 
indebtedness, liability or obligation of any corporation or person to this 
state, or to any municipal corporation therein; exempting property from 
taxation; restoring to citizenship persons convicted of infamous crimes; 
authorizing the creation, extension or impairing of liens; creating offices, 
or prescribing the powers or duties of oflScers in counties, cities, township 
or school districts ; or authorizing the adoption or legitimation of children. 
In all other cases where a general law can be made applicable, no special 
law shall be enacted. 

Sec. 45. 

Bepeal of November 8, 1966, effective under gov- 

This section was repealed by Ch. 273, ernor's proclamation, December 6, 1966. 
Laws 1965, adopted at the general election 

Sec. 46. The legislative assembly in order to insure continuity of state 
and local governmental operations in a period of emergency resulting from 
a disaster caused by enemy attack may enact laws : 

(1) To provide for prompt and temporary succession to the powers 
and duties of elected and appointed public officers who are killed or 
incapacitated. 

(2) To adopt other measures that may be necessary to insure the 
continuity of governmental operations. 

Such laws shall be effective only during the emergency that affects a 
particular office or governmental operation, and such laws may deviate 



Art. VI, § 1 ELECTION LAWS 

from other provisions of the Montana constitution, including but not 
limited to the following sections : 

(1) Section 3, Article X, seat of state government. 

(2) Section 2, Article XVI, seat of county governments. 

(3) Section 16, Article VII, succession to governor. 

(4) Section 4, Article XVI, vacancy on board of county commissioners. 

(5) Section 6, Article XVI, other vacancies in county government. 

(6) Section 45, Article V, vacancies in legislative assembly. 

(7) Section 11, Article VII, special legislative sessions. 

(8) Section 5, Article V, length of legislative session. 

(9) Section 10, Article V, quorum to do business in each house. 

(10) Section 6, Article XIX, location of county offices. 

(11) Section 1, Article VII, duties of executive officers of state. 

(12) Section 7, Article VII, appointments by governor. 

Compiler's Notes the general election of November 8, 1966, 

This constitutes the new section added effective under governor's proclamation, 

to the constitution by act approved March December 6, 1966. 

9, 1965 (Ch. 243, Laws 1965), adopted at 

ARTICLE VI 
APPORTIONMENT AND REPRESENTATION 

Section 1. One representative in the congress of the United States 
shall be elected from the state at large, the first Tuesday in October, 
1889, and thereafter at such times and places, and in such manner as 
may be prescribed by law. "When a new appointment shall be made 
by congress the legislative assembly shall divide the state into congressional 
districts accordingly. 

Sec. 2. (1) The senate and house of representatives of the legislative 
assembly each shall be apportioned on the basis of population. 

(2) The legislative assembly following each census made by the 
authority of the United States, shall revise and adjust the apportionment 
for representatives and senators on the basis of such census. 

(3) At such time as the constitution of the United States is amended 
or interpreted to permit apportionment of one house of a state legisla- 
tive assembly on factors other than population, the senate of the legis- 
lative assembly shall be apportioned on the basis of one senator for each 
county. 

Compiler's Notes effective under governor's proclamation, 

This constitutes sec. 2 of article VI as December 6, 1966. The amendment added 

amended by act approved March 9, 1965 paragraphs (1) and (3) and eliminated 

(Ch. 273, Laws 1965), adopted at the a provision for a state census, 
general election of November 8, 1966, 

Sec. 3. Senatorial and representative districts may be altered from time 
to time as public convenience may require. When a senatorial or repre- 
sentative district shall be composed of two or more counties, they shall be 
contiguous, and the districts as compact as may be. 



CONSTITUTION OF MONTANA 



Art. VII, § 3 



Compiler's Notes 

This constitutes sec. 3 of article VI as 
amended by act approved March 9, 1965 
(Ch. 273, Laws 1965), adopted at the 
general election of November 8, 1966, 
effective under governor's proclamation, 

Sees. 4 to 6. 

Repeal 

These sections were repealed by Ch. 
273, Laws 1965, adopted at the general 
election of November 8, 1966, effective 
under governor's proclamation, December 
6, 1966. 



December 6, 1966. The amendment made 
the section applicable to senatorial dis- 
tricts and eliminated a provision pro- 
hibiting the division of counties in the 
formation of representative districts. 



Constitutionality 

Sections 4 and 5 are void and uncon- 
stitutional in that they violate the equal 
protection clause of the fourteenth amend- 
ment of the constitution of the United 
States. Herweg v. Thirty Ninth Legisla- 
tive Assembly of State of Montana, 246 
F Supp 454. 



ARTICLE VII 

EXECUTIVE DEPARTMENT 

Section 1. The executive department shall consist of a governor, lieu- 
tenant-governor, secretary of state, attorney general, state treasurer, state 
auditor and superintendent of public instruction, each of whom shall hold 
his office for four years, or until his successor is elected and qualified, be- 
ginning on the first Monday of January next succeeding his election, except 
that the terms of ofifice of those who are elected at the first election, shall 
begin when the state shall be admitted into the Union, and shall end on 
the first Monday of January, A. D. 1893. The officers of the executive de- 
partment, excepting the lieutenant-governor, shall during their terms of 
office reside at the seat of government, where they shall keep the public 
records, books and papers. They shall perform such duties as are prescribed 
in this constitution and by the laws of the state. The state treasurer shall 
not be eligible to his office for the succeeding term. 
Crass-References 

Section 46, Article V would permit 
deviation from this section under emer- 
gency conditions. 

Section 2. The officers provided for in section 1 of this article, shall be 
elected by the qualified electors of the state at the time and place of voting 
for members of the legislative assembly, and the persons respectively, having 
the highest number of votes for the office voted for shall be elected ; but if 
two or more shall have an equal and the highest number of votes for any 
one of said offices, the two houses of the legislative assembly, at its next 
regular session, shall forthwith by joint ballot, elect one of such persons for 
said office. The returns of election for the officers named in section 1 shall 
be made in such manner as may be prescribed by law, and all contested elec- 
tions of the same, other than provided for in this section, shall be deter- 
mined as may be prescribed by law. 

Section 3. No person shall be eligible to the office of governor, lieuten- 
ant-governor, or superintendent of public instruction, unless he shall have 



ABT. VIII, § 6 ELECTION LAWS 

attained the age of thirty years at the time of his election, nor to the office 
of secretary of state, state auditor, or state treasurer, unless he shall have 
attained the age of twenty-five years, nor to the ofiBce of attorney general 
unless he shall have attained the age of thirty years, and have been ad- 
mitted to practice in the supreme court of the state, or territory of Mon- 
tana, and be in good standing at the time of his election. In addition to the 
qualifications above prescribed, each of the officers named shall be a citizen 
of the United States, and have resided within the state or territory two 
years next preceding his election. 

ARTICLE VIII 

JUDICLAIi DEPAETMENT8 

8UPBEME COURT 

Section 6. The justices of the supreme court shall be elected by the 
electors of the state at large, as hereinafter provided. 

Section 7. The term of office of the justices of the supreme court, ex- 
cept as in this constitution otherwise provided, shall be six years. 

Section 8. There shall be elected at the first general election, provided 
for by this constitution, one chief justice and two associate justices of the 
supreme court. At said first election the chief justice shall be elected to 
hold his office until the general election in the year one thousand eight 
hundred ninety-two (1892), and one of the associate justices to hold office 
until the general election in the year one thousand eight hundred ninety- 
four (1894), and the other associate justice to hold his office until the gen- 
eral election in the year one thousand eight hundred ninety -six (1896), and 
each shall hold until his successor is elected and qualified. The terms of 
office of said justices, and which one shall be chief justice, shall at the first 
and all subsequent elections be designated by ballot. After said first elec- 
tion one chief justice or one associate justice shall be elected at the general 
election every two years, commencing in the year one thousand eight hun- 
dred ninety-two (1892), and if the legislative assembly shall increase the 
number of justices to five, the first terms of office of such additional justices 
shall be fixed by law in such manner that at least one of the five justices 
shall be elected every two years. The chief justice shall preside at all sessions 
of the supreme court, and in case of his absence, the associate justice having 
the shortest term to serve shall preside in his stead. 

Section 9. There shall be a clerk of the supreme court, who shall hold 
his office for the term of six years, except that the clerk first elected shall 
hold his office only until the general election in the year one thousand 
eight hundred ninety-two (1892), and until his successor is elected and 
qualified. He shall be elected by the electors at large of the state, and his 
compensation shall be fixed by law, and his duties prescribed by law, and 
by the rules of the supreme court. 

Section 10. No person shall be eligible to the office of justice of the 
supreme court, unless he shall have been admitted to practice law in the 

6 



CONSTITUTION OF MONTANA ART. VIII, § 19 

supreme court of the territory or state of Montana, be at least thirty years 
of age, and a citizen of the United States, nor unless he shall have resided 
in said territory or state at least two years next preceding his election. 

DISTRICT COURTS 

Section 12. The state shall be divided into judicial districts, in each of 
which there shall be elected by the electors thereof one judge of the district 
court, whose term of office shall be four years, except that the district 
judges first elected shall hold their offices only until the general election 
in the year one thousand eight hundred and ninety-two (1892), and until 
their successors are elected and qualified. Any judge of the district court 
may hold court for any other district judge, and shall do so when required 
by law. 

Section 13. Until otherwise provided by law judicial districts of the 
state shall be constituted as follows: First district, Lewis and Clark coun- 
ty; second district. Silver Bow county; third district. Deer Lodge county; 
fourth district, Missoula county; fifth district, Beaverhead, Jefferson and 
Madison counties; sixth district, Gallatin, Park and Meagher counties; 
seventh district, Yellowstone, Custer and Dawson counties; eighth dis- 
trict, Choteau, Cascade and Fergus counties. 

Section 16. No person shall be eligible to the office of judge of the 
district court unless he be at least twenty-five years of age and a citizen 
of the United States, and shall have been admitted to practice law in the 
supreme court of the territory or state of Montana, nor unless he shall 
have resided in this state or territory at least one year next preceding his 
election. He need not be a resident of the district for which he is 
elected at the time of his election, but after his election he shall reside in 
the district for which he is elected during his term of office. 

Section 18. There shall be a clerk of the district court in each county, 
who shall be elected by the electors of his county. The clerk shall be 
elected at the same time and for the same term as the district judge. The 
duties and compensation of the said clerk shall be as provided by law. 

COUNTY ATTORNEYS 

Sec. 19. There shall be elected at the general election in each county 
of the state one county attorney, whose qualifications shall be the same 
as are required for a judge of the district court, except that he must be 
over twenty-one years of age, but need not be twenty-five years of age, 
and whose term of office shall be four years, and until their successors are 
elected and qualified. He shall have a salary to be fixed by law, one-half 
of which shall be paid by the state, and the other half by the county for 
which he is elected, and he shall perform such duties as may be required 
by law. 



Art. VIII, § 20 ELECTION LAWS 

Compiler's Note This amendment increased the county at- 

This constitutes sec. 19 of article VIII torneys' term of office from two to four 

as amended by act approved March 6, years and eliminated a provision applica- 

1961 (Ch. 164, Laws 1961), adopted at ble only to the first county attorneys 

the general election of November, 1962. elected under the constitution,' 

JUSTICES OF THE PEACE 

Section 20. There shall be elected in each organized township of each 
county by the electors of such township at least two justices of the peace, 
who shall hold their offices, except as otherwise provided in this constitu- 
tion, for the term of two years. Justices' courts shall have such original 
jurisdiction within their respective counties as may be prescribed by law, 
except as in this constitution otherwise provided; provided, that they 
shall not have jurisdiction in any case where the debt, damage, claim or 
value of the property involved exceeds the sum of three hundred dollars. 

I^opoMd B«peal repeal of sections 20 to 24. Approved 

Section 5, Ch. 121, Laws 1961, proposed March 2, 1961. 

MISCELLANEOUS PROVISIONS 
Section 34. Vacancies in the office of justice of the supreme court, or 
judge of the district court, or clerk of the supreme court, shall be filled by 
appointment, by the governor of the state, and vacancies in the offices of 
county attorney, clerk of the district court, and justices of the peace, shall 
be filled by appointment, by the board of county commissioners of the 
county where such vacancy occurs. A person appointed to fill any such 
vacancy shall hold his office until the next general election and until his 
successor is elected and qualified. A person elected to fill a vacancy shall 
hold office until the expiration of the term for which the person he suc- 
ceeds was elected. 

ARTICLE IX 
BIGHTS OF SUFFRAGE AND QUALIFICATIONS TO HOLD OFFICE 
Section 1. AU elections by the people shall be by ballot. 

Section 2. Every person of the age of twenty-one years or over, 
possessing the following qualifications, shall be entitled to vote at all 
general elections and for all officers that now are, or hereafter may be, 
elective by the people, and, except as hereinafter provided, upon all 
questions which may be submitted to the vote of the people or electors: 
First, he shall be a citizen of the United States; second, he shall have re- 
sided in this state one year immediately preceding the election at which he 
offers to vote, and in the town, county or precinct such time as may be 
prescribed by law. If the question submitted concerns the creation of any 
levy, debt or liability the person, in addition to possessing the qualifications 
above mentioned, must also be a taxpayer whose name appears upon the 
last preceding completed assessment roll, in order to entitle him to vote 
upon such question. Provided, first, that no person convicted of felony 
shall have the right to vote unless ho has been pardoned or restored to 

8 



CONSTITUTION OF MONTANA AET. IX, § 11 

citizenship by the governor: provided, second, that nothing herein con- 
tained shall be construed to deprive any person of the right to vote who 
has such right at the time of the adoption of this constitution; provided, 
that after the expiration of five years from the time of the adoption of this 
constitution, no person except citizens of the United States shall have the 
right to vote. (As amended by Ch. 101, Laws 1931, effective December 9, 
1932.) 

Section 3. For the purpose of voting no person shall be deemed to have 
gained or lost a residence by reason of his presence or absence while em- 
ployed in the service of the state, or of the United States, nor while engaged 
in the navigation of the waters of the state, or of the United States, nor 
while a student at any institution of learning, nor while kept at any alms- 
house or other asylum at the public expense, nor while confined in any 
public prison. 

Section 4. Electors shall in all cases, except treason, felony or breach 
of peace, be privileged from arrest during their attendance at elections 
and in going to and returning therefrom. 

Section 5. No elector shall be obliged to perform military duty on the 
days of election, except in time of war or public danger. 

Section 6. No soldier, seaman or marine in the army or navy of the 
United States shall be deemed a resident of this state in consequence of 
being stationed at any military or naval place within the same. 

Section 7. No person shall be elected or appointed to any office in this 
state, civil or military, who is not a citizen of the United States, and who 
shall not have resided in this state at least one year next before his elec- 
tion or appointment. 

Section 8. No idiot or insane person shall be entitled to vote at any 
election in this state. 

Section 9. The legislative assembly shall have the power to pass a 
registration and such other laws as may be necessary to secure the purity 
of elections and guard against abuses of the elective franchise. 

Section 10. All persons possessing the qualifications for suffrage pre- 
scribed by Section 2 of this article as amended and such other qualifi- 
cations as the legislative assembly may by law prescribe, shall be eligible 
to hold the office of county superintendent of schools or any other school 
district office. (As amended by Ch. 97, Laws 1923, effective December 9, 
1924.) 

Section 11. Any person qualified to vote at general elections and for 
state officers in this state, shall be eligible to any office therein except as 
otherwise provided in this constitution, and subject to such additional quali- 
fications as may be prescribed by the legislative assembly for city offices 
and offices hereafter created. 



Art. IX, § 12 election laws 

Section 12. Upon all questions submitted to the vote of the taxpayers 
of the state, or any political division thereof, women who are taxpayers and 
possessed of the qualifications for the right of suffrage required of men by 
this constitution, shall equally with men have the right to vote. 

Section 13. 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. 

ARTICLE X 
STATE INSTITUTIONS AND PUBLIC BUILDINGS 

Section 2. At the general election in the year one thousand eight hun- 
dred and ninety-two, the question of permanent location of the seat of gov- 
ernment is hereby provided to be submitted to the qualified electors of the 
state, and the majority of all the votes upon said question shall determine 
the location thereof. In case there shall be no choice of location at said 
election, the question of choice between the two places for which the highest 
number of votes shall have been cast shall be, and is hereby, submitted in 
like manner to the qualified electors at the next general election thereafter ; 
provided, that until the seat of government shall have been permanently 
located the temporary seat of government shall be and remain at the city 
of Helena. 

Section 3. When the seat of government shall have been located as 
herein provided the location thereof shall not thereafter be changed, except 
by a vote of two-thirds of all the qualified electors of' the state voting on 
that question at a general election at which the question of the location of 
the seat of government shall have been submitted by the legislative as- 
sembly. 

Cross-Befereuces 

Section 46, Article V would permit 
deviation from this section under emer- 
gency conditions. 

ARTICLE XI 
EDUCATION 

Section 10. The legislative assembly' shall provide that all elections for 
school district oflBcers shall be separate from those elections at which state 
or county oflBcers are voted for. 

ARTICLE XII 

REVENUE AND TAXATION 

Section 9. The rate of taxation on real and personal property for state 
purposes, except as hereinafter provided, shall never exceed two and one- 
lialf mills on each dollar of valuation; and whenever the taxable property of 

10 



CONSTITUTION OF MONTANA ART. XIII, § 6 

the state shall amount to six hundred million dollars ($600,000,000.00) the 
rate shall never exceed two (2) mills on each dollar of valuation, unless the 
proposition to increase such rate, specifying the rate proposed and the time 
during which the rate shall be levied shall have been submitted to the 
people at the general election and shall have received a majority of all 
votes cast for and against it at such election ; provided, that in addition to 
the levy for state purposes above provided for, a special levy in addition 
may be made on live stock for the purpose of paying bounties on wild 
animals and for stock inspection, protection and indemnity purposes, as 
may be prescribed by law, and such special levy shall be made and levied 
annually in amount not exceeding four mills on the dollar by the state 
board of equalization, as may be provided by law. (As amended by Ch. 4, 
Laws 1909, effective December 6, 1910.) 

ARTICLE Xin 
PUBLIC INDEBTEDNESS 

Section 2. The legislative assembly shall not in any manner create 
any debt except by law which shall be irrepealable until the indebtedness 
therein provided for shall have been fully paid or discharged; such law 
shall specify the purpose to which the funds so raised shall be applied and 
provide for the levy of a tax sufficient to pay the interest on, and extin- 
guish the principal of such debt within the time limited by such law for 
the payment thereof; but no debt or liability shall be created which shall 
singly, or in the aggregate with any existing debt or liability, exceed the 
sum of one hundred thousand dollars ($100,000) except in case of war, to 
repel invasion or suppress insurrection, unless the law authorizing the 
same shall have been submitted to the people at a general election and shall 
have received a majority of the votes cast for and against it at such election. 

Section 5. No county shall be allowed to become indebted in any man- 
ner, or for any purpose, to an amount, including existing indebtedness, in 
the aggregate, exceeding five (5) per centum of the value of the taxable 
property therein, to be ascertained by the last assessment for state and 
county taxes previous to the incurring of such indebtedness, and all bonds 
or obligations in excess of such amount given by or on behalf of such county 
shall be void. No county shall incur any indebtedness or liability for any 
single purpose to an amount exceeding ten thousand dollars ($10,000) 
without the approval of a majority of the electors thereof, voting at an 
election to be provided by law. 

Section 6. No city, town, township, school district or high school dis- 
trict shall be allowed to become indebted in any manner or for any purpose 
to an amount, including existing indebtedness, in the aggregate exceeding 
five per centum (5%) of the value of the taxable property therein, to be as- 
certained by the last assessment for state and county taxes previous to 
the incurring of such indebtedness, and all bonds or obligations in excess 
of such amount given by or on behalf of such city, town, township, school 
district or high school district shall be void; and each school district and 

11 



Art. XVI, § 2 election laws 

each high school district shall have separate and independent bonding 
capacities within the limitation of this section ; provided, however, that the 
legislative assembly may extend the limit mentioned in this section, by 
authorizing municipal corporations to submit the question to a vote of the 
taxpayers affected thereby, when such increase is necessary to construct a 
sewerage system or to procure a supply of water for such municipality which 
shall own and control said water supply and devote the revenues derived 
therefrom to the payment of the debt. (As amended by Ch. 193, Laws 1949, 
effective December 6, 1950; Ch. 161, Laws 1957, effective December 8, 1958.) 

ARTICLE XVI 
COUNTIES— MUNICIPAL CORPORATIONS AND OFFICES 

Section 2. The legislative assembly shall have no power to remove the 
county seat of any county, but the same shall be provided for by general 
law; and no county seat shall be removed unless a majority of the quali- 
fied electors of the county, at a general election on a proposition to remove 
the county seat, shall vote therefor; but no such proposition shall be sub- 
mitted oftener than once in four years. 

Cross-References 

Section 46, Article V would permit 
deviation from, this section under emer- 
gency conditions. 

Section 4. In each county there shall be elected three county commis- 
sioners, whose term of office shall be six years; provided that each county 
in the state of Montana shall be divided into three commissioner districts, 
to be designated as commissioner districts, numbers one, two and three, 
respectively. 

The board of county commissioners shall in every county in the state of 
Montana, at their regular session, on the first Monday in May, 1929, or as 
soon thereafter as convenient or possible, not exceeding sixty days there- 
after, meet and by and under the direction of the district court judge or 
judges of said county, divide their respective counties into three commis- 
sioner districts as compact and equal in population and area as possible, 
and number them respectively, one, two and three, and when such division 
has been made, there shall be filed in the oflSce of the county clerk and re- 
corder of such county, a certificate designating the metes and bounds of 
the boundary lines and limits of each of said commissioners districts, which 
certificate shall be signed by said judge or judges; provided, also that at 
the first regular session of any newly organized and created county, the 
said board of county commissioners, by and under the direction of the 
district court judge or judges of said county, shall divide such new county 
into commissioner districts as herein provided. 

Upon such division, the board of county commissioners shall assign its 
members to such districts in the following manner; each member of the 
said board then in service shall be assigned to the district in which he is 
residing or the nearest thereto; the senior member of the board in service 

12 



CONSTITUTION OF MONTANA ART. XVI, § 5 

to be assigned to the commissioner district No. 1, the next member in 
seniority to be assigned to commissioner district No. 2, and the junior mem- 
ber of the board to be assigned to commissioner district No. 3; provided, 
that at the first general election of any newly created and organized coun- 
ty, the commissioner for district No. 1, shall be elected for two years, for 
No. 2, for four years, and for No. 3, for six years, and biennially thereafter 
there shall be one commissioner elected to take place of the retiring com- 
missioner, who shall hold his office for six years. 

That the board of county commissioners by and under the direction of 
the district court judge or judges of said county, for the purpose of equal- 
izing in population and area such commissioner districts, may change the 
boundaries of any or all of the commissioner districts in their respective 
county, by filing in the office of the county clerk and recorder of such coun- 
ty, a certificate signed by said judge or judges designating by metes and 
bounds the boundary lines of each of said commissioner districts as 
changed, and such change in any or all the districts in such county, shall 
become effective from and after filing of such certificate ; provided, however, 
that the boundaries of no commissioner district shall at any time be changed 
in such a manner as to affect the term of office of any county commissioner 
who has been elected, and whose term of office has not expired ; and pro- 
vided, further, that no change in the boundaries of any commissioner dis- 
trict shall be made within six months next preceding a general election. 

At the general election to be held in 1930, and thereafter at each general 
election, the member or members of the board to be elected, shall be selected 
from the residents and electors of the district or districts in which the 
vacancy occurs, but the election of such member or members of the board 
shall be submitted to the entire electorate of the county, provided, however, 
that no one shall be elected as a member of said board, who has not resided 
in said district for at least two years next preceding the time when he shall 
become a candidate for said office. 

When a vacancy occurs in the board of county commissioners the judge 
or judges of the judicial district in which the vacancy occurs, shall appoint 
someone residing in such commissioner district where the vacancy occurs, to 
fill the office until the next general election when a commissioner shall be 
elected to fill the unexpired term. (As amended by Ch. 72, Laws 1927, 
effective December 8, 1928.) 

Cross-Beferences 

Section 46, Article V would permit 
deviation from this section under emer- 
gency conditions. 

Section 5. There shall be elected in each county the following county 
officers who shall possess the qualifications for suffrage prescribed by sec- 
tion 2 of article IX of this constitution and such other qualifications as may 
be prescribed by law : 

One county clerk who shall be clerk of the board of county commission- 
ers and ex-officio recorder ; one sheriff ; one treasurer, who shall be collector 
of the taxes, provided, that the county treasurer, shall not be eligible to his 
office for the succeeding term; one county superintendent of schools; one 

13 



Art. XVI, § 6 ELECTION LAWS 

county surveyor; one assessor; one coroner; one public administrator. Per- 
sons elected to the different ofiBces named in this section shall hold their 
respective offices for the term of four (4) years, and until their successors 
are elected and qualified. Vacancies in all county, township and precinct offi- 
ces', except that of county commissioners, shall be filled by appointment by 
the board of county commissioners, and the appointee shall hold his office 
until the next general election ; provided, however, that the board of coun- 
ty commissioners of any county may, in its discretion, consolidate any two 
or more of the within named offices and combine the powers and the duties 
of the said offices consolidated ; however, the provisions hereof shall not be 
construed as allowing one (1) office incumbent to be entitled to the salaries 
and emoluments of two (2) or more offices; provided, further, that in con- 
solidating county offices, the board of county commissioners shall, six (6) 
months prior to the general election held for the purpose of electing the 
aforesaid offices, make and enter an order, combining any two (2) or more 
of the within named offices, and shall cause the said order to be published 
in a newspaper, published and circulated generally in said county, for a 
period of six (6) weeks next following the date of entry of said order. (As 
amended by Ch. 93, Laws 1937, effective December 2, 1938.) 

Section 6. The legislative assembly may provide for the election or ap- 
pointment of such other county, township, precinct and municipal officers 
as public convenience may require and their terms of office shall be as pre- 
scribed by law, not in any case to exceed two years, except as in this con- 
stitution otherwise provided. 

Cross-Beferencos 

Section 46, Article V would permit 
deviation from this section under emer- 
gency conditions. 

Section 7. The legislative assembly may, by general or special law, 
provide any plan, kind, manner or form of municipal government for coun- 
ties, or counties and cities and towns, or cities and towns, and whenever 
deemed necessary or advisable, may abolish city or town government and 
unite, consolidate or merge cities and towns and county under one 
municipal government, and any limitations in this constitution not- 
withstanding, may designate the name, fix and prescribe the number, 
designation, terms, qualifications, method of appointment, election or 
removal of the officers thereof, define their duties and fix penalties for 
the violation thereof, and fix and define boundaries of the territory so 
governed, and may provide for the discontinuance of such form of govern- 
ment when deemed advisable ; provided, however, that no form of govern- 
ment permitted in this section shall be adopted or discontinued until after 
it is submitted to the qualified electors in the territory affected and by them 
approved. (As enacted by Ch. 113, Laws 1921, effective December 14, 1922.) 

Section 8. Any county or counties in existence on the first day of Janu- 
ary, 1935, under the laws of the state of Montana or which may thereafter be 
created or established thereunder shall not be abandoned, abolished and/or 
consolidated either in whole or in part or at all with any other county or 

14 



CONSTITUTION OF MONTANA ART. XIX, § 8 

counties except by a majority vo'te of the duly qualified electors in each 
county proposed to be abandoned, abolished and/or consolidated with any 
other county or counties expressed at a general or special election held 
under the laws of said state. (As added by Ch. 102, Laws 1935, effective 
December 2, 1936.) 

ARTICLE XIX 
MISCELLANEOUS SUBJECTS AND FUTURE AMENDMENTS 

Section 1. Members of the legislative assembly and all ofiicers, execu- 
tive, ministerial or judicial, shall, before they enter upon the duties of 
their respective offices, take and subscribe the following oath or aflRrma- 
tion, to-wit: "I do solemnly swear (or affirm) that I will support, protect 
and defend the constitution of the United States, and the constitution of 
the state of Montana, and that I will discharge the duties of my office with 
fidelity; and that I have not paid, or contributed, or promised to pay or 
contribute, either directly or indirectly, any money or other valuable thing 
to procure my nomination or election (or appointment) except for neces- 
sary and proper expenses expressly authorized by law; that I have not 
knowingly violated any election law of this state, or procured it to be done 
by others in my behalf; that I will not knowingly receive, directly, or in- 
directly, any money or other valuable thing for the performance or non- 
performance of any act or duty pertaining to my office other than the 
compensation allowed by law, so help me God." And no other oath, decla- 
ration or test shall be required as a qualification for any office or trust. 

Section 8. The legislative assembly may at any time, by a vote of two- 
thirds of the members elected to each house, submit to the electors of the 
state the question whether there shall be a convention to revise, alter, or 
amend this constitution; and if a majority of those voting on the question 
shall declare in favor of such convention, the legislative assembly shall 
at its next session provide for the calling thereof. The number of mem- 
bers of the convention shall be the same as that of the house of representa- 
tives, and they shall be elected in the same manner, at the same places, 
and in the same districts. The legislative assembly shall in the act calling 
the convention designate the day, hour and place of its meeting, fix tho 
pay of its members and officers, and provide for the payment of the same, 
together with the necessary expenses of the convention. Before proceed- 
ing, the members shall take an oath to support the constitution of the 
United States and of the state of Montana, and to faithfully discharge 
their duties as members of the convention. The qualifications of members 
shall be the same as of the members of the senate, and vacancies occurring 
shall be filled in the manner provided for filling vacancies in the legislative 
assembly. Said convention shall meet within three months after such 
election and prepare such revisions, alterations or amendments to the con- 
stitution as may be deemed necessary, which shall be submitted to the 
electors for their ratification or rejection at an election appointed by the 
convention for that purpose, not less than two nor more than six months 
after the adjournment thereof; and unless so submitted and approved by 

15 



Art. XIX, § 9 ELECTION LAWS 

a majority of the electors voting at the election, no such revision, altera- 
tion or amendment shall take effect. 

Section 9. Amendments to this constitution may be proposed in either 
house of the legislative assembly, and if the same shall be voted for by 
two-thirds of the members elected to eaah house, such proposed amend- 
ments, together with the ayes and nays of each house thereon, shall be 
entered in full on their respective journals; and the secretary of state shall 
cause the said amendment or amendments to be published in full iu at least 
one newspaper in each county (if such there be) for three months previous 
to the next general election for members to the legislative assembly; and 
at said election the said amendment or amendments shall be submitted to 
the qualified electors of the state for their approval or rejection and such 
as are approved by a majority of those voting thereon shall become part 
of the constitution. Should more amendments than one be submitted at 
the same election, they shall be so prepared and distinguished by numbers 
or otherwise that each can be voted upon separately; provided, however, 
that not more than three amendments to this constitution shall be submitted 
at the same election. 

Proposed Amendment months previous to the next general elec- 
tion for members to the legislative as- 

Chapter 315, Laws 1967, proposes to sembly; and at said election the said 

amend this section to read as follows: amendment or amendments shall be sub- 

"Section 9. Amendments to this con- mitted to the qualified electors of the 

stitution may be proposed in either house state for their approval or rejection and 

of the legislative assembly, and if the such as are approved by a majority of 

same shall be voted for by two-thirds those voting thereon shall become part of 

(2/3) of the members elected to each the constitution. Should more amend- 

house, such proposed amendments, to- ments than one (1) be submitted at the 

gether with the ayes and nays of each same election, they shall be so prepared 

house thereon, shall be entered in full on and distinguished by numbers or other- 

their respective journals; and the secre- wise that each can be voted upon sepa- 

tary of state shall cause the said amend- rately; provided, however, that not more 

ment or amendments to be published in than six (6) amendments to this consti- 

full in at least one (1) newspaper in each tution shall be submitted at the same 

county (if such there be) for three (3) election." 

TITLE 1 
AERONAUTICS 



CHAPTER 8 



ESTABLISHMENT OP AIRPORTS BY COUNTIES AND CITIES- 
MUNICIPAL AIRPORTS ACT 

Section 1-804. Tax levy for establishment and operation of airports. 

1-804, (5668.38) Tax levy for establishment and operation of airports. 

For the purpose of establishing, constructing, equipping, maintaining and 
operating airports and landing fields under the provisions of this act the 
county commissioners of the city or town council may each year assess and 
levy in addition to the annual levy for general administrative purposes, a 
tax of not to exceed two (2) mills on the dollar of taxable value of the 

16 



ALCOHOLIC BEVERAGES 4-142 

property of said county, city or town. In the event of a jointly established 
airport or landing field, the county commissioners and the council or coun- 
cils involved shall determine in advance the levy necessary for such purposes 
and the proportion each political subdivision joining in the venture shall 
pay, based upon the benefits it is determined each shall derive from the 
project. Provided that if it be found that the levy hereby authorized will be 
insufficient for the purposes herein enumerated, the commissioners and coun- 
cils acting are hereby authorized and empowered to contract an indebted- 
ness on behalf of such county, city or town, as the case may be, upon the 
credit thereof by borrowing money or issuing bonds for such purposes, 
provided that no money may be borrowed and no bonds may be issued for 
such purpose until the proposition has been submitted to the taxpayers 
affected thereby, and a majority vote be cast therefor. 

History: En. Sec. 4, Ch. 108, L. 1&29; 
amd. Sec. 4, Cli. 64, L. 1941; amd. Sec. 1, 
Cli. 54, L. 1946. 

TITLE 4 

ALCOHOLIC BEVERAGES 



CHAPTER 1 



STATE LIQUOR CONTROL ACT OF MONTANA— LICENSING— SALE 
OF ALCOHOLIC BEVERAGES BY STATE LIQUOR STORES 

Section 4-142. Local option law — petition — ^time for election. 

4-143. Notice of election. 

4-144. Ballots, what to contain. 

4-145. Election, how held. 

4-146. Dealing in intoxicating liquors prohibited if majority of vote against 

sale. 

4-147. No election more than once in two years. 

4-148. Sale of liquors prohibited. 

4-149. Election, how contested. 

4-142. (2815.96) Local option lavr — petition — time for election. Elec- 
tion to be ordered upon application of one-third of the voters of any county. 
Upon application by petition, signed by one-third of the voters who are 
qualified to vote for members of the legislative assembly in any county in 
the state, the board of county commissioners must order an election to be 
held at the places of holding elections for county officers, to take place 
within forty days after the reception of such petition, to determine whether 
or not any spirituous or malt liquors, wine, or cider, or any intoxicating 
liquors or drinks may be sold within the limits of the county. No election, 
under this section must take place in any month in which general elections 
are held. The board of county commissioners must determine on the suf- 
ficiency of the petition presented from the roll of registered electors of the 
territory affected. 
History: En, Sec. 37, Ch. 1Q5, L. 1933. 

17 



4-143 ELECTION LAWS 

4-143. (2815.97) Notice of election. The notice of election must be 
published once a week for four weeks in such newspapers of the county 
where the election is to be held as the board of county commissioners may 
think proper. 

History: En. Sec. 38, Ch. 105, L. 1933. 

4-144. (2815.98) Ballots, what to contain. The county clerk must fur- 
nish the ballots to be used at such election, as provided in the general 
election law, which ballots must contain the following words: "Sale of in- 
toxicating liquors, yes" ; "Sale of intoxicating liquors, no" ; and the elector 
in order to vote must mark an X opposite one of the answers. 
History: En, Sec. 39,' C?h. 105, L. 1933. 

4-145. (2815.99) Election, how held. The polling places must be estab- 
lished, the judges and other officers to conduct the election must be desig- 
nated, and the election must be held, canvassed and returned in all respects 
in conformity to the laws of the state. 
History: En. Sec. 40, Ch. 105, L. 1933. 

4-146. (2815.100) Dealing in intoxicating lienors prohibited if majority 
of vote against sale. If a majority of the votes cast are "Sale of intoxi- 
cating liquors, no," the board of county commissioners must publish the 
result once a week for four weeks in the paper in which the notice of the 
election was given. The provisions of this act shall take effect at the expira- 
tion of the time of the publication of the notice, and thereupon all existing 
licenses shall be cancelled. 
History: En. Sec. 41, Oh. 105, L. 1933. 

4-147. (2815.101) No election more than onoe in two years. No election 
must be held in the same county oftener than once in two years thereafter. 
History: En. Sec. 42, Ch. 105, L. 1933. 

4-148. (2815.102) Sale of liquors prohibited. If a majority of the votes 
at the election are, "Sale of intoxicating liquors, no," it shall not be lawful 
for any person within the county in which the vote was taken, to sell, either 
directly or indirectly, or give away, to induce trade at any place of business, 
or furnished to any person, any alcoholic, spirituous, malt, or intoxicating 
liquors. 

History: En. Sec. 43, Oh. 105, L. 1933. 

4-149. (2815.103) Election, how contested. Any election held under 
the provisions of this act may be contested in the same manner as provided 
by the general laws. 
History: En. Sec. 44, Oh. 106, L. 1933. 

CHAPTER 3 

MONTANA BEER ACT— LICENSING SALE OF BEER UNDER SUPERVISION 
OF STATE LIQUOR CONTROL BOARD 

Section 4-303. Closing hours for licensed retail beer establishments. 

4-350. Election to determine whether or not beer should be sold in county to 
be ordered upon application of one-third of the voters. 

18 



ALCOHOLIC BEVERAGES 4-352 



4-351. Notice of election. 

4-352. Ballots — what to contain. 

4-353. Election — how held. 

4-354. Effect when vote is against sale of beer. 

4-355. No election more than once in two years. 

4-356. Election — how contested. 

4-303. Closing hours for licensed retail beer establishments. Hereafter 
all licensed establishments wherein beer as defined by subsection (b) of 
section 4-302, is sold, offered for sale or given away at retail shall be closed 
during the following hours : 

(a) Sunday from two A. M. to one P. M. ; 

(b) On any other day between two A. M. and eight A. M. ; 

(c) On any day of a biennial general or primary election at which state 
and national officers are elected, during the hours when the polls are open, 
but not upon the day of any other election ; provided, however, that when 
any municipal incorporation has by ordinance further restricted the hours 
of sale of beer, then the sale of beer is prohibited within the limits of any 
such city or town during the times such sale is prohibited by this act and 
in addition thereto during the hours that it is prohibited by such ordinance. 

History: En. Sec. 1, Ch. 161, L. 1943; 
amd. Sec. 1, Ch. 162, L. 1959. 

4-350. (2815.53) Election to determine whether or not beer should be 
sold in county to be ordered upon application of one-third of the voters. 

Upon application by petition, signed by one-third (1/3) of the voters who 
are qualified to vote for members of the legislative assembly in any county 
in the state, the board of county commissioners must order an election to be 
held at the places of holding elections for county ofiicers, to take place 
within forty (40) days after the reception of such petition, to determine 
whether or not the sale of beer as herein provided for shall be permitted 
within the limits of the county. No election, under this section must take 
place in any month in which the general elections are held. It shall be the 
duty of the board of county commissioners to determine the sufficiency of 
the petitions presented from an examination of the roll of qualified electors 
within the county. 
History: En. Sec. 60, Ch. 106, L. 1933. 

4-351. (2815.54) Notice of election. The notice of election must be 
published once a week for four (4) weeks in such newspapers of the county 
where the election is to be held as the board of county commissioners may 
think proper. 
History: En. Sec. 61, Oh. 106, L. 1933. 

4-362. (2815.55) Ballots — what to contain. The county clerk must fur- 
nish the ballots to be used at such election, as provided in the general elec- 
tion laws, which ballots must contain the following words: "Sale of beer, 
yes"; "Sale of beer, no." And the elector in order to vote must mark an 
"X" opposite one (1) of the answers. 
History: En. Sec. 62, Ch. 106, L. 1933. 

19 



4-353 ELECTION LAWS 

4-353. (2815.56) Election — ^how held. The polling places must be estab- 
lished, the judges and other officers to conduct the election must be desig- 
nated, and the election must be held, canvassed and returned in all respects 
in conformity to the general election laws of the state of Montana. 
History: En. Sec. 53, Oh. 106, L. 1933. 

4-354. (2815.57) Effect when vote is against sale of beer. If a majority 
of the votes cast are against the sale of beer the board of county commis- 
sioners must publish the result once a week for four (4) weeks in the 
newspapers in which the notices of election were published, and from the 
date of the election no further licenses to vend beer in the county shall be 
issued by the board of equalization, and after the publication of notice 
proclaiming the result of the election as against the sale of beer, all 
licenses then existing shall be cancelled by the state board of equalization, 
and thereafter it shall be unlawful to sell any beer in any such county. 
History: En. Sec. 54, Oh. 106, L. 1933. 

4-355. (2815.58) No election more than once in two years. No election 
shall be held in the same county oftener than once in any two (2) years. 
History: En. Sec. 55, Oh. 106, L. 1933. 

4-356. (2815.59) Election — how contested. Any election held under 
the provisions of this act may be contested in the same manner as other 
elections under the laws of this state. 
History: En. Sec. 56> Oh. 106, li. 1933. 

CHAPTER 4 

MONTANA EETAIL LIQUOB LICENSE ACT— SALES BY LICENSEES OF BOARD 

Section 4-414. Hours for sale of liquor. 

4-431. Act when effective — protests — elections. 

4-432. Publication notice of election. 

4-433. Form of ballots. 

4-434. Polling places — conduct of elections. 

4-435. Effect of election — penalty — liquor store sales not affected. 

4-436. Contest of election. 

4-437. Restriction on holding second election. 

4-414, Hours for sale of liquor. No liquor shall be sold, offered for 
sale or given away upon any premises licensed to sell liquor at retail during 
the following hours : 

(a) Sunday, from two A. M. to one P. M. ; 

(b) On any other day between two A. M. and eight A. M. ; 

(c) On any day of a biennial general or primary election at which state 

and national officers are elected, during the hours when the polls are open, 

but not upon the day of any other election ; provided, however, when any 

city, or incorporated or unincorporated town has any ordinance further 

restricting the hours of sale of liquor, such restricted hours shall be the 

hours during which the sale of liquor at retail shall not be permitted within 

the jurisdiction of any such city or town. 

History: En. Sec. 12, Oh. 84, L. 1937; 
amd. Sec. 2, Ch. 162, L. 1959. 

20 



ALCOHOLIC BEVERAGES 4-435 

4-431. Act when effective — protests — elections. The provisions of this 
act as to the issuance of licenses as herein provided shall be effective thirty 
(30) days after the passage and approval of this act. In the event that 
during the said period of thirty (30) days, a duly verified petition in writing 
signed by not less than thirty-five per centum (35%) of the registered 
qualified electors of any county file with the board of county commissioners 
their protest against the issuance of any licenses as herein provided by the 
Montana liquor control board under the provisions of this act, then the 
said Montana liquor control board shall not issue any license or licenses 
within said county, except as herein provided. 

The board of county commissioners must within five (5) days after the 
filing of said petition, meet and determine the sufficiency of the petition 
presented by ascertaining whether or not at least thirty-five per centum 
(35%) of the signers of said petition are registered electors of the territory 
or county affected. The board of county commissioners must within ten 
(10) days after the filing of such petition, if such petition be sufficient 
therefor make an order calling an election to be held within the county 
in the manner and at the places of holding an election for county offices 
in such county. Such election to be held on a day fixed by the board of 
county commissioners not more than thirty (30) days after the filing of 
such petition for the purpose of determining whether or not any license 
for the sale of spirituous liquors may be sold within the limits of the county 
as provided by the provisions of this act. 
History: En. Sec. SO, Oh. 84, L. 1937. 

4-432. Publication notice of election. The notice of election must be 
published once a week for four (4) weeks in such newspapers in the county 
where the election is to be held as the board of county commissioners may 
think proper. 
History: En. See. SI, Oh. 84, L. 1937. 

4-433. Form of ballots. The county clerk must furnish the ballots to be 
used at such election, as provided in the general election law, which ballots 
must contain the following words : "Sale of Alcoholic Beverages, Yes," "Sale 
of Alcoholic Beverages, No," and the elector in order to vote must mark an 
"X" opposite one of the answers. 
History: En. Sec. 32, Oh. 84, L. 1937. 

4-434. Polling places — conduct of elections. The polling places must 
be established, the judges and other officers to conduct the election must be 
designated, and the election must be held, canvassed and returned in all 
respects in conformity to the laws of the state. 
History: En. Sec. S3, Ch. 84, L. 1937. 

4-435. Effect of election — penalty — ^liquor store sales not affected. If 

a majority of the votes cast are "Sale of Alcoholic Beverages, Yes," the 
provisions of this act shall take effect immediately. If a majority of the 
votes cast are "Sale of Alcoholic Beverages, No," the board of county com- 
missioners must publish the result once a week for four (4) successive weeks 
in the paper in which the notice of election was given, and at the expiration 

21 



4-436 ELECTION LAWS 

of the time of the publication of such notice all existing licenses shall be 
cancelled and it shall thereupon be unlawful to sell, either directly or in- 
directly, any liquor in such county under penalty of a fine of not more than 
five hundred dollars ($500.00) or by imprisonment in the county jail for a 
period not exceeding six (6) months, or by both such fine and imprison- 
ment ; provided, however, that nothing herein contained shall be construed 
to prevent or prohibit the sale of liquor at or by a state liquor store under 
the liquor control act. 
History: En. Sec. 34, Cb. 84, L. 1937. 

4-436. Contest of election. Any election held under the provisions of 
the act may be contested in the same manner as provided by the general 
election laws. 
History: En. Sec. 35, Cb. 84, L. 1937. 

4-437. Restriction on holding second election. If no petition protesting 
against the issuance of licenses as herein provided be filed with the board of 
county commissioners within thirty (30) days after the passage and approval 
of this act, or if a majority of the votes cast at any election held in pur- 
suance of the filing of said petition as herein provided, are "Sale of Alcoholic 
Beverages, No," then there shall not be submitted to the qualified electors 
of said county any other or further question as to the sale of alcoholic 
beverages within said county for a period of two (2) years from and after 
the date of the filing of said petition protesting the issuance of said license 
as herein provided with the board of county commissioners. 
History: En. Sec. 36, Ch. 84, L. 1937. 

TITLE 9 

CEMETERIES 



CHAPTER 2 

PUBLIC CEMETERY DISTRICT ACT 

Section 9-201. Public cemetery district act. 

9-202. Petition to board of county commissioners. 

9-203. Hearing. 

9-204. Final hearing. 

9-205. Order of board as respects election. 

9-206. Favorable vote — commissioners to organize district. 

9-207. Government of district — appointment and terms of trustees. 

9-208. Powers of district. 

9-209. Budget and tax levy. 

9-209.1. Disbursement of tax proceeds. 

9-209.2. Validating act. 

9-209.3. Payment of validated warrants. 

9-210. Regulations. 

9-211. Withdrawal of portion of district, petition for. 

9-212. Hearing. 

9-213. Alteration of boundaries. 

9-214. Notice, publication of, 

9-215. Power of county commissioners. 

22 



CEMETERIES 9-205 

9-201. Public cemetery district act. There is hereby deemed and de- 
clared a public cemetery district act for the state of Montana. A cemetery 
district may contain the entire territory embraced within a county or any 
portion or subdivision thereof. 

History: En. Sec. 1, Ch. 221, L. 1943; 
amd. S«c. 1, Ch. 16, L. 1945. 

9-202. Petition to board of county commissioners. Whenever a peti- 
tion, signed by not less than twenty (20%) per cent of the citizens who are 
owners of land located within a proposed cemetery district, whose names 
appear as such owners of land upon the last completed assessment roll of 
the county in which said proposed district is situated, which petition shall 
definitely describe the boundaries of the proposed district and request that 
the territory within said boundaries be organized into a public cemetery 
district, the petition shall be presented to the board of county commissioners 
of the county in which the proposed district is situated, at a regular or 
special meeting of said board. The said board of county commissioners, by 
resolution, shall fix a time for the hearing of said petition at not less than 
two (2) nor more than five (5) weeks from the time of presentation thereof, 
and shall cause notice to be given of the time and place of said hearing by 
publication as prescribed by law, for not less than two (2) weeks prior to 
the time of said hearing. Said notice shall state that any person residing in 
or owning property within said proposed district or within any existing 
cemetery district, any part of the territory of which is described in said 
petition, may appear before said board at the hearing and show cause why 
the said district should not be created or the proposed boundaries changed. 

History: En. Sec. 2, Ch. 221, L. 1943; 
amd. Sec. 2, Ch. 16, L. 1946. 

9-203. Hearing. At the time fixed for said hearing, the board shall de- 
termine whether or not it complies with the requirements hereinbefore set 
forth and whether or not the notice required herein has been published as 
required, and must hear all competent and relevant testimony offered in 
support of or in opposition thereto. Said hearing may be adjourned from 
time to time for the determination of said facts, not to exceed two (2) 
weeks in all. 

History: En. Sec. 3, Ch. 221, L. 1943; 
amd. Sec 3, Ch. 16, L. 1945. 

9-204. Final hearing. If the board of county commissioners shall de- 
termine that the petitioners have complied with the requirements herein set 
forth and that the notice required has been published, it shall thereupon pro- 
ceed to a final hearing of the matter. Said board shall make such changes 
in the boundaries of the proposed district as it may deem advisable and 
shall define and establish such boundaries, as described in the petition and 
shall call an election. 

History: En. Sec. 4, Oh. 221, L. 1943; 
amd. Sec. 4, Oh. 16, L. 1945. 

9-205. Order of board as respects election. The board, must in its 
order, designate whether or not a special election shall be held, or whether 

23 



9-206 ELECTION LAWS 

the matter shall be determined at the next general election. If a special 
election is ordered, the board must, in its order, specify the time and place 
for such election, the voting place, and shall in said order appoint and desig- 
nate judges and clerks therefor. The election shall be held in all respects as 
nearly as practicable in conformity with the general election laws : and 
provided, further, that the polls shall be open from eight (8) o'clock A. M. 
to six (6) P. M., on the day appointed for such election. At such election, 
the ballots must contain the words "Cemetery District, Yes" and "Cemetery 
District, No." The judges of the election shall certify to the board of 
county commissioners the results of said election. 

History: En. Sec. 5, Ch. 221, L. 1943; 
amd. Sec. 5, Ch. 16, L. 1945. 

9-206. Favorable vote — commissioners to orgunize district. In the event 
that a majority of the votes cast are in favor of the formation of said ceme- 
tery district, the board of county commissioners shall proceed with the 
organization thereof as herein specified. 

History: En. Sec. 6, C7h. 221, It. 1943; 
amd. Sec. 6, Ch. 16, L. 1946. 

9-207. (Government of district — appointment and terms of trustees. 

Said cemetery district shall be governed and managed by three (3) trustees, 
appointed by the board of county commissioners. The trustees shall be ap- 
pointed from the freeholders residing within said district for terms of one 
(1), two (2) and three (3) years respectively, and until their successors 
shall be appointed and qualified. Annually thereafter the board of county 
commissioners shall appoint one trustee for a term of three (3) years or 
until his successor shall be appointed and qualified. The trustees at their 
first meeting shall adopt by-laws for the government and management of 
the district. They shall serve without pay. 

History: En. Sec. 7, Ch. 221, L. 1943; 
amd. Sec. 7, Oh. 16, L. 1945. 

9-208. Powers of district. Said district may maintain a cemetery or 

cemeteries within said district; may hold title to property by grant, gift, 

devise, lease, or any other method ; and perform all acts necessary or proper 

for the carrying out of the purposes of this act, including the selling or 

leasing of burial lots. 

History: En. Sec. 8, Ch. 221, I*. 1943; 
amd. Sec. 8, Ch. 16, L. 1945. 

9-209. Budget and tax levy. The board of cemetery trustees shall an- 
nually present a budget to the board of county commissioners at the 
regular budget meetings as prescribed by law. The board of county commis- 
sioners must annually, at the time of levying county taxes, fix and levy 
upon all property within said cemetery district, sufficient to raise the 
amount certified by the board of cemetery trustees to be raised by a tax 
on the property of said district. The tax so levied shall not exceed two 
(2) mills on each dollar of taxable valuation on the property of said district. 
Expenditures made, liabilities incurred, or warrants issued by or in behalf 
of any cemetery district in excess of the annual budget presented to the 

24 



CEMETERIES 9-209.3 



board of county commissioners as provided herein and the amount appro- 
priated for and authorized to be expended for each item in the budget shall 
not be a liability of the cemetery district. Insofar as the same can be made 
applicable, the county budget system, sections 16-1901 to 16-1911, shall 
govern the operation of cemetery districts created under this act. 

History: En. S«c. 9, Cli. 221, L. 1943; 
amd. Sec. 9, Ch. 16, L. 1945; amd. Sec. 1, 
Oh. 93, L. 1951 ; amd. Sec. 1, Ch. 4, L. 1955. 

9-209.1. Disbursement of tax proceeds. The proceeds of taxes collected 
by the county treasurer for the public cemetery fund shall be disbursed to 
the various cemetery districts upon the submission of a claim by said 
cemetery districts to the board of county commissioners for their pro rata 
share of the proceeds of the taxes collected. Upon approval of said claim 
by the board of county commissioners the county clerk shall issue a trust 
fund warrant drawn upon the public cemetery fund and payable to each 
claimant. 
History: En, Sec. 1, Ch. 94, L. 1951. 

9-209.2. Validating act. All warrants heretofore issued by any ceme- 
tery district for services actually rendered or goods, wares, merchandise or 
material actually furnished to said cemetery district are hereby validated, 
ratified, approved and confirmed, notwithstanding any lack of power of 
such cemetery district to authorize or issue such warrants by reason of non- 
compliance with any budget act or their being in excess of any cemetery 
district budget or because of failure to include provision for the same in 
any cemetery district budget or otherwise and said warrants so issued for 
value received by said cemetery district shall be binding, legal, valid and 
enforceable obligations of such cemetery district. 
History: En. Sec. 2, Oh. 4, L. 1955. 

9-209.3. Payment of validated warrants. AH cemetery district war- 
rants validated, ratified, approved and confirmed by the provisions of this 
act shall be paid by the cemetery district which issued the same from any 
funds which the cemetery district may have on hand which are not appro- 
priated for other purposes. Any such cemetery district is also authorized 
and directed to make provision for the payment of said warrants by in- 
cluding in its budget each year in which such warrants remain outstanding 
an item providing for the payment of such warrants as can be paid within 
the proceeds of the two (2) mill maximum levy on each dollar of taxable 
valuation of the property of said district specified in section 9-209, taking 
into consideration other income of the cemetery district and after having 
provided for the other budget requirements submitted by the board of 
cemetery trustees to the board of county commissioners and such maximum 
two (2) mill levy shall be made annually until said warrants are paid, 
provided, that no interest or other charges for the use of the money repre- 
sented by said warrants shall be paid by the cemetery district. All cemetery 
district warrants validated, ratified, approved and confirmed by the pro- 
visions of this act shall be listed by the cemetery district having issued 
the same in the order in which they were issued by said cemetery district 

25 



9-210 ELECTION LAWS 

and the warrants shall be paid in the order in which they were issued as 
funds become available for the payment thereof under the provisions of 
this act. 
History: En. Sec. 3, Ch. 4, L. 1956. 

9-210. Regulations. The trustees shall make proper rules and regula- 
tions for the management of the cemeteries. The procedure of the collecting 
of the tax and the distribution of the funds shall be in accordance with the 
existing laws of the state of Montana. 

History: En. Sec. 10, Oh. 221, L. 1943; 
amd. Sec. 10, Ch. 16, L. 1946. 

9-211. Withdrawal of portion of district, petition for. Any portion of 

a public cemetery district may be withdrawn therefrom as in this section 

provided, upon receipt of a petition signed by fifty (50) or more freeholders 

residing in, or owning property within the portion desired to be withdrawn 

by any public cemetery district or by a majority of such freeholders, if 

there are less than one hundred (100) residing within the portion sought 

to be withdrawn, on the grounds that such portion will not be benefited by 

remaining in said district. The board of county commissioners shall fix a 

time for the hearing of such withdrawal petition which shall not be more 

than sixty (60) days after the receipt thereof. The said board shall, at least 

thirty (30) days prior to the time so fixed, publish a notice of such hearing 

for two (2) issues as provided by law. 

History: En. Sec. 11, Cli. 221, L. 1943; 
amd. Sec. 11, Ch. 16, L. 1946. 

9-212. Hearing. Any person interested may appear at said hearing and 

present objections to the withdrawal of said portion from said district. The 

board shall consider all objections, pass upon the merits thereof and make 

an order in accordance therewith. This order is subject to review by any 

court of competent jurisdiction. 

History: En. Sec. 12, Ch. 221, L. 1943; 
amd. Sec. 12, Ch. 16, L. 1946. 

9-213. Alteration of boundaries. The boundaries of any such public 
cemetery district may be altered and outlying districts be annexed thereto 
in the following manner: A petition signed by fifty (50) or more freeholders 
within the territory proposed to be annexed, or by a majority of such free- 
holders if there are less than one hundred (100) residing within the portion 
proposed to be annexed, designating the boundaries of such contiguous 
territory proposed to be annexed and asking that it be annexed to said 
public cemetery district, shall be presented to the board of county commis- 
sioners of the county in which said public cemetery district is situated. 

History: En. Sec 13, Oh. 221, L. 1943; 
amd. Sec. 13. Oh. 16, L. 1946. 

9-214. Notice, publication of. At the first regular meeting after the 
presentation of said petition, said board of county commissioners shall cause 
notice of said petition to be published according to law for two (2) weeks 
prior to the date to be fixed by said board for the hearing of said petition. 
Upon the date fixed for such hearing or continuance thereof said board shall 

26 



CITIES AND TOWNS 11-203 

take up and consider said petition and any objections which may be filed to 

the inclusion of any property in said district. 

History: En. Bee. 14, Oh. 221, L. 1943; 
amd. Sec. 14, Oil. 16, L. 1945. 

9-216. Power of county commissioners. Said board of county commis- 
sioners shall have the power by order entered on its minutes to ^ant said 
petition either in whole or in part, and by order entered on its minutes to 
alter the boundaries of said public cemetery district and to annex thereto, 
all, or such portion of said territory described in said petition as will be 
benefited thereby. This territory shall become and be a part of such public 
cemetery district and shall be taxed, together with the remainder of said 
district, for all taxes to be thereafter levied by said board of county com- 
missioners for the operation and maintenance of said public cemetery 
district. 

History: En. Sec. 16, Oh. 221, L. 1943; 
amd. Sec 16, Ob. 16, L. 1946. 

TITLE 11 

CITIES AND TOWNS 



CHAPTER 2 
CLASSIFICATION AND OBGANIZATION OF CITIES AND TOWNS 

Section 11-203. Organization of cities and tovras — petition and census. 

11-204. Election — how condncted. 

11-205. First election for officers. 

11-206. Officers elected and conduct of election. 

11-209. Old officers continue in office — election. 

11-203. (4961) Organization of cities and towns — petition and census. 
"Whenever the inhabitants of any part of a county desire to be organized into 
a city or town, they may apply by petition in writing, signed by not less 
than fifty qualified electors, residents of the state, and residing within 
the limits of the proposed incorporation, to the board of county commis- 
sioners of the county in which the territory is situated, which petition 
must describe the limits of the proposed city or town, and of the several 
wards thereof, which must not exceed one square mile for each five hundred 
inhabitants resident therein. The petitioners must annex to the petition a 
map of the proposed territory to be incorporated, and state the name of 
the city or town. The petition and map must be filed in the oflBce of the 
county clerk. Upon filing the petition, the board of county commissioners, 
at its next regular or special meeting, must appoint some suitable person to 
take a census of the residents of the territory to be incorporated. After 
taking the census, the person appointed to take the same must return the 
list to the board of county commissioners, and the same must be filed by it 
in the county clerk's office. No municipal corporation must be formed unless 
the number of inhabitants is three hundred or upwards. 

27 



11-204 ELECTION LAWS 



History: First general municipal in- torical comparisons of the several sections 

corporation act was that of Feb. 17, 1881 cannot be made. This section en. Sec. 315, 

(L. 1881, pp. 13-38); superseded by Sees. 5th Div. CJomp. Stat. 1887; re-en. Sec. 4720, 

315-440, 6th Div. Comp. Stat. 1887. Many Pol. 0. 1895; re-en. Sec. 3208, Rev. C. 1907; 

of the provisions of this act are so differ- amd. Sec. 1, Ch. 56, L. 1909; re-en. Sec. 

ent from the present law that exact his- 4961, B. 0. M. 1921. 

11-204. (4962) Election — how conducted. After filing the petition and 
census, if there be the requisite number of inhabitants for the formation of a 
municipal corporation, as required in the preceding section, the county 
commissioners must call an election of all the qualified electors residing 
in the territory, described in the petition. Said election must be held at 
a convenient place within the territory described in the petition, to be 
designated by the board, notice of which election must be given by publica- 
tion in some newspaper published within the limits of the territory to be 
incorporated, or, if none be published therein, by posting notice in three 
public places within said limits. The notice must be published thirty days 
prior to the election, and must specify the time and place when and where 
the same is held, and contain a description of the boundaries of the city or 
town. The board must appoint judges and clerks of election, who must 
qualify as required by law, and after the election they must report the 
result to the board, together with the ballots cast at said election. The bal- 
lots used at the election must be "For incorporation" or "Against incorpo- 
ration," and all elections must be conducted as provided in Title 23 of 
this code. 

History: En. Sec. 316, 5th Div. Comp. 3209, Eev. C. 1907; re-en. Sec. 4962, R. 
Stat. 1887; amd. Sec. 2, p. 178, L. 1889; C. M. 1921. 
re-en. Sec. 4721, Pol. C. 1895; re-en. Sec. 

11-205. (4963) First election for oflBcers. When the incorporation of a 
city or town is completed, the board of county commissioners must give 
notice for thirty days in a newspaper published within the limits of the city 
or town, or, if none be published therein, by posting notices in six public 
places within the limits of the corporation, of the time and place or places 
of holding the first election for offices of the corporation. At such election 
all the electors qualified by the general election laws of the state, and who 
have resided within the limits of the city or town for six months, and within 
the limits of the ward for thirty days preceding the election, are qualified 
electors and may choose officers for the city or town, to hold office as pre- 
scribed in the next succeeding section. 

History: Ap. p. Sec. 318, 5th Div. Oomp. 3210, Bev. 0. 1907; re-en. Sec. 4963, B. C. 
Stat. 1887; amd. Sec. 2, p. 178, L. 1889; re- M. 1921. 
en. Sec. 4722, PoL 0. 1895; re-en. Sec. 

11-206. (4964) Officers elected and conduct of election. At such elec- 
tion there must be elected, in a city of the first class, a mayor, a police judge, 
a city attorney, a city treasurer, a city marshal, and two nldcrmen from each 
ward into which the city may be divided ; in a city of the second class, a 
mayor, a police judge, a city treasurer, a city marshal, and two aldermen 
from each ward ; in a town, a mayor, and two aldermen from each ward, 
who hold office until the first Monday of May after the first annual elec- 

28 



CITIES AND TOWNS 11-405 

tion, and until their successors are elected and qualified. The persons so 

elected must qualify in the manner prescribed by law for county officers. 

The board of county commissioners must appoint judges and clerks of 

election, and canvass and declare the result thereof. The election must be 

conducted in tiie manner required by law for the election of county officers. 

History: En, Sec. 318, Bth Dlv. Comp. 3211, Rev. C. 1907; re-en. Sec. 4964, R. 
Stat. 1887; amd. Sec. 2, p. 178, L. 1889; C. M. 1921. 
re-en. Sec. 4723, PoL C. 1896; re-en. Sec. 

11-209. (4967) Old officers continue in office — election. All officers of 
such city or town holding office at the time of the adoption of this code 
remain in office until the next annual election and the first Monday of May 
next ensuing thereafter, and until their successors are elected and qualified. 
The duties and compensation of such officers and the liabilities of sureties 
on official bonds remain the same. All elections must be held under the pro- 
visions of this code relative to the government of cities and towns. 

History: En, Sec. 5034, PoL 0. 1895; 
re-en. Sec. 3483, Rev. 0. 1907; re-eii. Sec. 
4967, R. 0. M. 1921. 

CHAPTER 3 
CHANGES IN CLASSIFICATION OF CITIES AND TOWNS 
Section 11-303. New officers — election. 

11-303. (4971) New officers — election. The first election of officers of 
the new municipal corporation organized under the provisions of this chap- 
ter must be at the first annual municipal election after such proceedings, 
and the old officers remain in office until the new officers are elected and 
qualified. 

History: En. Sec. 4952, Pol. 0. 1895; 
re-en. Sec. 3449, Rev. O. 1907; re-en. Sec. 
4971, R. C. M. 1921. 

CHAPTER 4 
ADDITIONS OF PLATTED TRACTS TO CITIES AND TOWNS 
Section 11-405. Election on the question of annexation. 

11-406. (4979) Election on the question of annexation. When a city or 
town desires to be annexed to another and contiguous city or town, the 
council of each thereof must appoint three commissioners to arrange and 
report to the municipal authorities respectively, the terms and conditions on 
which the annexation can be made, and if the city or town council of 
the municipal corporation to be annexed approves of the terms thereof, it 
must by ordinance so declare, and thereupon submit the question of an- 
nexation to the electors of the respective cities or towns. If a majority of 
the electors vote in favor of annexation, the council must so declare, and a 
certified copy of the proceedings for annexation and of the ordinances must 
be filed with the clerk of the county in which the cities or towns so annexed 
are situated, and when so filed the annexation is complete, and the city or 
town to which the annexation is made has power, in addition to other powers 

29 



11-506 ELECTION LAWS 

conferred by this title, to pass all necessary ordinances to carry into effect 

the terms of the annexation. Such annexations do not affect or impair any 

rights, obligations, or liabilities then existing, for or against either of such 

cities or towns. 

History: En. Sec, 322, 5th Div. Oomp. re-en. Sec. 3215, Kev, C. 1907; re-en. Sec. 
Stat. 1887; re-en. Sec. 4727, Pol. C. 1895; 4979, R. C. M. 1921. 

CHAPTER 5 
ALTERATION OF BOUNDARIES, EXCLUSION AND INCLUSION OF TERRITORY 

Section 11-506. Alteration of boundaries of cities and towns — inclusion of territory — 

petition and election. 
11-507. Submission of question of annexation — election, how conducted and 

returned — annexation when complete. 
11-508. Territory which may not be annexed. 
11-509. Lands used for certain purposes may not be annexed. 
11-510. Act applicable to cities of what population. 

11-506. Alteration of boundaries of cities and towns — inclusion of terri- 
tory — petition and election. (1) The boundaries of any incorporated town 
or city, whether heretofore or hereafter formed, may be altered and new 
territory or territories annexed thereto, incorporated and included therein, 
and made a part thereof, upon proceedings being had and taken as in this 
act provided. The council, or other legislative body of any such municipal 
corporation, upon receiving a written petition therefor containing a descrip- 
tion of the new territory or territories asked to be annexed to such corpo- 
ration, and signed by not less than thirty-three and one-third per cent 
(333^%) of the resident free holder electors of the territory proposed to 
be annexed must, without delay, submit to the electors of such municipal 
corporation and to the electors residing in the territory or territories pro- 
posed by such petition to be annexed to such corporation, the question 
whether such new territory or territories shall be annexed to, incorporated 
in, and made a part of said municipal corporation. 

(2) Such question may be so submitted at the next general municipal 
election to be held in such municipal corporation, or it may be so submitted 
prior to such general election, either at a special election called therein for 
that purpose, or at any other municipal election therein, except an election 
at which the submission of such question is prohibited by law ; and such 
council or legislative body is hereby empowered to and it shall be its duty to 
cause notice to be given of such election by the publication of a notice 
thereof in a newspaper printed and published in such municipal corporation 
at least once a week for a period of three (3) successive weeks next preced- 
ing the date of such election, or if there is no newspaper printed in such 
municipal corporation, then such notice shall be published in like manner for 
a like period in the nearest town or city in the county in which said territory 
or territories to be annexed is situated, in which such newspaper is printed. 
Such notice shall distinctly state the proposition to be submitted, i. e., that 
it is proposed to annex to, incorporate in, and make a part of such municipal 
corporation the territory or territories sought to be annexed, specifically 
describing the boundaries thereof ; and in said notice the qualified electors 
of said municipal corporation, and the qualified electors residing in said 

30 



CITIES AND TOWNS 11-507 

territory or territories so proposed to be annexed, shall be invited to vote 
upon such proposition by placing upon their ballots the words "for annexa- 
tion" or "against annexation," or words equivalent thereto. 

(3) Such council or legislative body is hereby empowered, and it shall 
be its duty, to establish, and in such notice of election designate the voting 
precinct or precincts, the date of said election, the place or places at which, 
and the hours between which the polls will be opened for such election, and 
such other information regarding said election as the said council or legisla- 
tive body may deem proper. Such place or places shall be that or those 
commonly used as voting places within such municipal corporation, and 
also that or those commonly used by the electors residing in such new 
territory or territories. 
History: En. Sec. 1, Oh. 168, L. 1945. 

11-507. Submission of question of annexation — election, how conducted 
and returned — annexation when complete. (1) If the question of annexa- 
tion is submitted at a special election called for such purpose, the city or 
town council, or other legislative body, shall fix the hours through which 
the polls are to be kept open, which shall be not less than eight (8), and 
which must be stated in the notice of election, and may appoint a smaller 
number of judges than is required at a general city or town election, but 
in no case shall there be less than three (3) judges in a precinct and such 
judges shall act as their own clerks. If the question of annexation is sub- 
mitted at a general city or town election, the polls shall be kept open during 
the same hours as are fixed for the general election, and the judges and 
clerks for such general election shall act as the judges and clerks thereof. 

(2) Whenever the question of annexation under this title is submitted 
at either a general city or town election, or at a special election, separate 
ballots, white in color and of convenient size, shall be provided therefor. 
The election shall be conducted, and the returns made in the same manner 
as other city or town elections ; and all election laws governing city and 
town elections shall govern insofar as they are applicable, but if such 
question be submitted at a general city or town election, the votes thereon 
must be counted separately, and separate returns must be made by the 
judges and clerks at such election. If the said annexation election is held 
at the same time as a general city or town election, then the returns shall be 
canvassed by the city or town council at the same time as the returns for 
such general election; but if the question of annexation is submitted at a 
special election, then the city or town council shall meet within ten (10) 
days after the date of the holding of such special election and canvass the 
returns. 

(3) If it is found that a majority of such votes were cast in favor of 
the annexation, the city or town council, or other legislative body shall, at a 
regular or special meeting held within thirty (30) days thereafter, pass 
and adopt a resolution providing for such annexation. Such resolution 
shall recite that a petition has been filed with the said council or other 
legislative body with a sufficient number of signatures of thirty-three and 
one-third per cent (33>S%) of the resident free holder electors of the 
territory proposed to be annexed ; a description of the boundaries of the 

31 



11-508 ELECTION LAWS 

territory or territories to be annexed ; a copy of the resolution ordering a 
general or special election thereof, as the case may be ; a copy of the notice 
of such election; the time and result of the canvass of the votes received in 
favor of annexation, and the number thereof cast against annexation ; and 
that the boundaries of such city or town, by such resolution, shall be ex- 
tended so as to embrace and include such territory or territories as the 
same are described in the petition for annexation, which said resolution 
shall be incorporated in the minutes of said council or legislative body. 

(4) The clerk or other officer performing the duties of clerk of such 
council or legislative body, shall promptly make and certify under the seal 
of said municipal corporation, a copy of said record so entered upon said 
minutes, which document shall be filed with the clerk of the county in which 
the city or town to which said territory or territories are sought to be 
annexed, is situated. From and after the date of the filing of said document 
in the office of the said county clerk, the annexation of such territory or 
territories so proposed to be annexed shall be deemed and shall be complete 
and thenceforth such annexed territory or territories shall be, to all intents 
and purposes, a part of said municipal corporation, and the said city or 
town to which the annexation is made, has the power to pass all necessary 
ordinances pertaining thereto. 
History: En. Sec 2, Ch. 168, L. 1945. 

11-508. Territory which may not be annexed. No territory which, at 
the time such petition for such proposed annexation is presented to such 
council or legislative body, forms any part of any incorporated town or 
city, shall be annexed under the provisions of this act. 
History: En. Sec. 3, Ch. 168, L. 1945. 

11-509. Lands used for certain purposes may not be annexed. No 

parcel of land which, at the time such petition for such proposed annexation 
is presented to such council or legislative body, is used in whole or in part 
for agricultural, mining, smelting, refining, transportation, or any industrial 
or manufacturing purpose or any purpose incident thereto, shall be annexed 
under the provisions of this act. 
History: En. Sec. 4, Cb. 168, L. 1945. 

11-510. Act applicable to cities of what population. This act shall not 
be applicable to cities having a population, as shown by the last preceding 
federal census of less than twenty thousand (20,000) and not more than 
thirty-five thousand (35,000) and shall not repeal section 11-403 having 
reference to extension of the corporate limits of cities of the first, second 
and third classes to include contiguous land, but is intended and does 
provide an alternative method for the annexation of territory or territories 
to municipal corporations. When any proceedings for annexation of terri- 
tory or territories to any municipal corporation are commenced under this 
act the provisions of this act and of such amendments thereto as may 
thereafter be adopted, and no other, shall apply to such proceedings. 
History: En. Sec. 5, Oh. 168, L. 1945. 

32 



CITIES AND TOWNS 11-703 

CHAPTER 7 

OFFICERS AND ELECTIONS 

Section 11-701. Officers of city of the first class. 

11-702. Officers of city of second and third classes. 

11-703. Officers of towns. 

11-707. City or town to be divided into wards. 

11-708. Division of cities and towns into wards. 

11-709. Annual elections in cities and towns — terms of of&ce. 

11-710. Qualification of mayor. 

11-711. Terms of aldermen — how decided. 

11-712. Terms of office — when to begin. 

11-713. Who eligible. 

11-714. Qualification of aldermen. 

11-715. Registration of electors. 

11-716. Qualifications of electors. 

11-717. Election judges and clerks — voting places. 

11-718. Canvass — when and how made. 

11-719. Oath and bonds — vacancy. 

11-720. When duties of office begin. 

11-721. Vacancies — how filled — removal of officer. 

11-701. (4995) Officers of city of the first class. The officers of a city 
of the first class consist of one mayor, two aldermen from each ward, one 
police judge, one city treasurer, who may be ex-officio tax collector, who 
must be elected by the qualified electors of the city as hereinafter provided. 
There may also be appointed by the mayor, with the advice and consent of 
the council, one city attorney, one city clerk, one chief of police, one asses- 
sor, one street commissioner, one city jailer, one city surveyor, and when- 
ever a paid fire department is established in such city, a chief engineer and 
one or more assistant engineers, and any other officers necessary to carry 
out the provisions of this title. The city council may, by ordinance, pre- 
scribe the duties of all city officers and fix their compensation, subject to 
the limitations contained in this title. 

History: En. Sec. 4740, Pol. C. 1895; 
re-«n. Sec. 3216, Bev. C. 1907; re-en. Sec. 

4995, B. C. M. 1921. 

11-702. (4996) Officers of city of second and third classes. The officers 
of a city of the second and third classes consist of one mayor, two aldermen 
from each ward, one police judge, one city treasurer, who may be ex-officio 
tax collector, who must be elected by the qualified electors of the city as 
hereinafter provided. There may also be appointed bj' the mayor, with the 
advice and consent of the council, one city clerk, who is ex-officio city 
assessor, one chief of police, one city attorney, and any other officer neces- 
sary to carry out the provisions of this title. The city council may prescribe 
the duties of all city officers, and fix their compensation, subject to the 
limitations contained in this title. 

History: En. Sec. 4741, PoL 0. 1895; 
re-en. Sec. 3217, Bey. 0. 1907; re-«n. Sec. 

4996, B. 0. M. 1921. 

11-703. (4997) Officers of towns. The officers of a town consist of one 
mayor and two aldermen from each ward, who must be elected by the 
qualified electors of the town as hereinafter provided. There may be ap- 

33 



11-707 ELECTION LAWS 



pointed by the mayor, with the advice and consent of the council, one 
clerk, who may be ex-oflficio assessor and a member of the council, and one 
treasurer, who may be ex-officio tax collector, and one marshal, who may 
be ex-officio street commissioner, and any other officers necessary to carry 
out the provisions of this title. The town council may prescribe the duties 
of all town officers, and fix their compensation, subject to the limitations 

contained in this title. 

History: En. Sec. 4742, Pol. C. 1895; 
re-en. Sec. 3218, Bev. C. 1907; re-en. Sec. 
4997, B. C. M. 1921. 

11-707. (5001) City or town to be divided into wards. The first city or 
town council elected under the provisions of this title must divide the city 
or town into wards for election and other purposes, having regard to popula- 
tion so as to make them as nearly equal as possible. 

History: En. Sec. 4746, Pol. O. 1896; 
re-en. Sec. 3222, Bev. 0. 1907; re-en. Sec. 
5001. B. 0. M. 1921. 

11-708. (5002) Division of cities and towns into wards. Cities of the 
first class must be divided into not less than four nor more than ten wards ; 
cities of the second class into not less than three nor more than six wards ; 
and cities of the third class into not less than two nor more than four 
wards; and towns into not less than two nor more than three wards. Pro- 
vided, however, that the town council may by ordinance reduce the number 
of wards in a town to only one if it so desires. All changes in the number 
and boundaries of wards must be made by ordinance, and no new ward 
must be created unless there shall be within its boundaries one hundred and 
fifty electors, or more. 

History: En. Sec. 4747, PoL 0. 1895; Oh. 74, L. 1909; re-en. Sec. 5002, B. C. M. 
re-en. Sec. 3223, Bev. 0. 1907; amd. Sec. i, 1921; amd. Sec. 1, Ch. 39, L. 1943. 

11-709. (5003) Annual elections in cities and towns — ^terms of office. 
On the first Monday of April of every second year a municipal election must 
be held, at which the qualified electors of each town or city must elect a 
mayor and two aldermen from each ward, to be voted for by the wards 
they respectively represent; the mayor to hold office for a term of two (2) 
years, and until the qualification of his successor; and each alderman so 
elected to hold office for a term of two (2) years, and until the qualifi- 
cation of his successor; and also in cities of the first, second and third 
class, a police judge and a city treasurer, who shall hold office for a term 
of two (2) years, and until the qualification of their successors; provided, 
however, that in all cities and towns when the term of office of the incum- 
bent mayor, alderman, police judge or city treasurer will not expire until 
the first Monday in May, 1936, a special election must be held on the first 
Monday in April, 1936, at which election a successor to such mayor, alder- 
man, police judge or city treasurer shall be elected for a term of one (1) 
year, and thereafter no election shall be held for the election of city officers, 
except every second year. 

History: Ap. p. Sec. 4, p. 122, L. 1893; 3224. Bev. 0. 1907; re-en. Sec. 5003, B. 
amd. Sec. 4748, PoL 0. 1895; re-en. Sec. 0. M. 1921; ankl. Sec. 1. Oh. 60. L. 1935. 

34 



CITIES AND TOWNS 11-715 

11-710. (5004) Qualification of mayor. No person shall be eligible 
to the office of mayor unless he shall be at least twenty-five (25) years 
old and a taxpaying freeholder within the limits of the city or town, and 
a resident of the state for at least three years, and a resident of the city 
or town or an area which has been annexed by the city or town for which 
he may be elected mayor two years next preceding his election to said 
office, and shall reside in the city or town for which he shall be elected 
mayor during his term of office. 

History: En. S«c. 8, p. 65, Ex. L. 1887; 3226, B«v. O. 1907; re-en. Sec. 6004, B. 0. 
amd. Sec. 4749, Pol. C. 1895; re-en. Sec. M. 1921; amd. Sec. 1, Cii. 76, L. 1961. 

11-711. (5005) Terms of aldermen — ^how decided. At the first annual 

election held after the organization of a city or town under this title, the 

electors of such city or town must elect two aldermen from each ward, who 

must, at the first meeting of the council, decide by lot their terms of office, 

one from each ward to hold for a term of two years, and one for the term of 

one year, and until the qualification of their successors. 

History: En. Sec. 4760, Pol. C. 1896; 
re-en. Sec. 3226, Bev. C. 1907; re-en. Sec. 
6006, B. C. M. 1921. 

11-712. (5006) Terms of oflSce — when to hegiit. The terms of all 

officers elected at a municipal election are to commence on the first Monday 

in May after such election. 

History: En. Sec. 4761, Pol. C. 1895; 
re-en. Sec. 3227, Bev. 0. 1907; re-en. Sec. 
6006, B. C. M. 1921. 

11-713. (5007) Who eligible. No person is eligible to any municipal 

office, elective or appointive, who is not a citizen of the United States, and 

who has not resided in the town or city or an area which has been annexed 

by such town or city for at least two years immediately preceding his 

election or appointment, and is not a qualified elector thereof. 

History: En. Sec. 366, 6tli Div. Oomp. 6007, B. 0. M. 1921; amd. Sec. 2, Oh. 76, 
Stat. 1887; amd. Sec. 4752, Pol. 0. 1896; j^ 1961. 
re-en. Sec. 3228, Bev. C. 1907; re-en. Sec. 

11-714. (5008) Qualification of aldermen. No person shall be eligible 
to the office of alderman unless he shall be a taxpaying freeholder within 
the limits of a city, and a resident of the ward so electing him, or a resi- 
dent of an area which has been annexed by the city or town and placed 
in a ward, for at least sixty (60) days preceding such election. 

History: En. Sec. 366, 5th Div. Comp. 50O8, B. C. M. 1921; amd. Sec. 3, Ch. 76, 
Stat. 1887; amd. Sec. 4763, Pol. 0. 1896; L. 1961; amd. Sec. 1, Ch. 144, L, 1967. 
re-en. Sec. 3229, Bev. C. 1907; re-en. Sec. 

11-715. (5009) Registration of electors. The council must provide by 
ordinance for the registration of electors in any city or town, and may pro- 
hibit any person from voting at any election unless he has been registered : 
but such ordinance must not be in conflict with the general law providing 
for the registration of electors, and must not change the qualifications of 
electors except as in this title provided. However, when an area is annexed 
by a city or town after the date for registration has expired, opportunity 

35 



11-716 ELECTION LAWS 



must be provided for residents of such area to register, if otherwise qualified, 
for all future elections. 

History: En. Sec. 4754, Pol. O. 1896; 6009, R. C. M. 1921; amd. Sec. 4, Oil. 76, 
re-en. Sec. 3230, Eev. C. 1907; re-en. Sec. L. 1961. 

11-716. (5010) Qualifications of electors. All qualified electors of the 
state who have resided in the city or town or an area which has been an- 
nexed by such city or town for six months and in the ward or an area 
which has been annexed and placed in a ward for thirty days next preced- 
ing the election are entitled to vote at any municipal election, including 
elections involving or held under the commission form of government, 
commission-manager plan or other form of municipal government. 

History: En. Sec. 4766, Pol. 0. 1895; 5010, B. C. M. 1921; amd. Sec. 5, Cb. 76, 
re-en. Sec. 3231, Key. 0. 1907; re-en. Sec. L. 1961. 

11-717. (5011) Election judges ajid clerks — voting places. The coun- 
cil or other governing body must appoint judges and clerks of election, and 
places of voting. Where the city or town is divided into wards there must 
be at least one (1) voting place in each ward and there may be as many 
more as the council or other governing body shall fix, and the elector must 
vote in the ward in which he resides. In cities and towns divided into 
wards the election precincts must correspond with the wards, but a ward 
may be subdivided into several voting precincts, and when so divided the 
elector shall vote in the precinct in which he resides. In cities and towns 
operating under the commission, or the commission-manager plan of mu- 
nicipal government, where there are no wards for election purposes and the 
officers of the city or town are elected at large, the election precincts shall 
correspond with the election precincts in such city or town as fixed by the 
board of county commissioners for state and county elections, but such 
precincts may be by the city commission divided into as many voting 
precincts, to facilitate the voting and counting of the vote, as the city 
commission shall by ordinance provide, and the elector shall vote in the 
voting precinct so designated, in which he resides. For all municipal elec- 
tions the city council or other governing body may appoint a second or ad- 
ditional board of election judges for any voting precinct in which there 
were cast three hundred and fifty (350) or more votes in the last general 
city election or in which council or other governing body believes as many 
as three hundred and fifty (350) ballots will be cast in the next general city 
election, and such additional board of election judges shall have the same 
powers and duties, and under the same conditions, as the second or addi- 
tional board of election judges for general elections appointed by boards of 
county commissioners under the provisions of section 23-601. Provided 
that in municipal corporations of less than one thousand five hundred 
(1,500) population, as determined by the last official census, the council or 
other governing body may by ordinance provide that there shall be but 
one polling or voting place for municipal elections, notwithstanding the 
number of wards or precincts in the municipality otherwise provided for. 
All municipal elections must be conducted in accordance with the general 
laws of the state of Montana relating to such election. 

36 



CITIES AND TOWNS 11-721 



History: En. S«c. 1, Oh. 187, L. 1907; 1921; amd. Sec. 1, Oh. 19, L. 1939; amd. 
Sec. S232, Bev. 0. 1907; amd. Sec. 1, Oh. Sec. 1, Oh. 86, L. 1941; amd. Sec. 1, Oh. 
69, L. 1909; rfr-en. Sec. 5011, R. O. M. 124, L. 1947; amd. Sec. 1, Oh. 14, I* 1955. 

11-718. (5012) Canvass — when and how made. On the Monday follow- 
ing any election, the council must convene and publicly canvass the result, 
and issue certificates of election to each person elected by a plurality of 
votes. When two or more persons have received an equal and highest 
number of votes for any one of the ofiBces voted for, the council must there- 
after, at its first regular meeting, decide by vote between th? parties which 
is elected. If the council from any cause fails to meet on the day named, 
the mayor must call a special meeting of the council within five days there- 
after, and, in addition to the notice provided for calling special meetings, 
must publish the same on two successive days in some newspaper published 
in such city or town. If the mayor fails to call said meeting within said 
five days, any three councilmen may call it. At such special meeting all 
elections, appointments, or other business may be transacted that could 
have been on the day first herein named. 

History: En. Sec 4767, PoL 0. 1896; 
re-en. Sec. 3233, Bev. 0. 1907; re-en. Sec. 
5012, B. 0. M. 1921. 

11-719. (5013) Oath and bonds — vacancy. Each officer of a city or 
town must take the oath of office, and such as may be required to give bonds, 
file the same, duly approved, within ten days after receiving notice of his 
election or appointment ; or, if no notice be received, then on or before the 
date fixed for the assumption by him of the duties of the office to which he 
may have been elected or appointed, but if any one, either elected or ap- 
pointed to office, fails for ten days to qualify as required by law, or enter 
upon his duties at the time fixed by law, then such office becomes vacant ; 
or if any officer absents himself from the city or town continuously for ten 
days without the consent of the council, or openly neglects or refuses to dis- 
charge his duties, such office may be by the council declared vacant; or if 
any officer removes from the city or town, or any alderman from his ward, 
such office must be by the council declared vacant. 

History: En. Sec 4768, PoL O. 1895; 
re-en. Sec. 3234, Bev. 0. 1907; re-en. Sec. 
6013, B 0. M. 1921. 

11-720. (5014) When duties of office begfin. The officers elected enter 

upon their duties the first Monday of May succeeding their election, and 

officers appointed by the mayor, with the advice and consent of the council, 

within ten days after receiving notice of their appointment. 

History: En. Sec. 4759, PoL 0. 1895; re- 
en. Sec. 3235, Bev. 0. 1907; re-en. Sec 
5014, B. 0. M. 1921. 

11-721. (5015) Vacancies — ^how filled — removal of officer. When any 
vacancy occurs in any elective office, the council, by a majority vote of the 
members, may fill the same for the unexpired term, and until the qualifica- 

37 



11-964 ELECTION LAWS 



tion of the successor. A vacancy in the office of alderman must be filled 

from the ward in which the vacancy exists, but if the council shall fail to 

fill such vacancy before the time for the next election, the qualified electors 

of such city or ward may nominate and elect a successor to such office. The 

council, upon written charges, to be entered upon their journal, after notice 

to the party and after trial by the council, by vote of two-thirds of all the 

members elect, may remove any officer. 

History: En. Sec. 1, Oil. 72, L. 1903; 
n-tOL Sec. 3236, Bey. O. 1907; re-en. Sec. 
5015, B. O. M. 1921. 

CHAPTER 9 
POWEES OF CITY AND TOWN COUNCILS 

Section 11-964. Disposal or lease of city property — approval of electors, when required. 

11-966. Purposes for which indebtedness may be incurred — limitation — addi- 
tional indebtedness for sewer or water system — procuring water sup- 
ply and system — jurisdiction of public works appurtenances. 

11-988. Power of cities and towns to acquire natural gas and distributing sys- 
tem therefor. 

11-964. (5039.61) Disposal or lease of city property — approval of elec- 
tors, when required. The city or town council has power ; to sell, dispose of, 
or lease any property belonging to a city or town, provided, however, that 
such lease or transfer be made by ordinance or resolution passed by a two- 
thirds vote of all the members of the council ; and provided further that if 
such property be held in trust for a specific purpose such sale or lease there- 
of be approved by a majority vote of taxpayers of such municipality cast 
at an election called for that purpose ; and provided further that nothing 
herein contained shall be construed to abrogate the power of the board of 
park commissioners to lease all lands owned by the city heretofore acquired 
for parks within the limitations prescribed by subdivision 5 of section 
62-204. 

History: JSsi. Subd. 62, Sec. 6039, B. C. amd. Sec 1, Ch. 20, L. 1927; amd. Sec. 
M. 1921; amd. Sec. 1. Oh. 115, L. 1925; 1, Ch. 35, L. 1937. 

11-966. (5039.63) Purposes for which indebtedness may be incurred — 
limitation — additional indebtedness for sewer or water system — procuring 
water supply and system — jurisdiction of public worlM appurtenances. 

The city or town council has power: (1) To contract an indebtedness on 
behalf of a city or town, upon the credit thereof, by borrowing money 
or issuing bonds for the following purposes, to-wit: Erection of public 
buildings, construction of sewers, sewage treatment and disposal plants, 
bridges, docks, wharves, breakwaters, piers, jetties, moles, waterworks, 
reservoirs and reservoir sites, lighting plants, supplying the city or town 
with water by contract, the purchase of fire apparatus, street and other 
equipment, the construction or purchase of canals or ditches and water 
rights for supplying the city or town with water, building, purchasing, 
constructing and maintaining devices intended to protect the safety of 
the public from open ditches carrying irrigation or other water, to acquire, 
open and/or widen any street and to improve the same by constructing, 

38 



CITIES AND TOWNS 11-966 

reconstructing and repairing pavement, gutters, curbs and vehicle park- 
ing strips and to pay all or any portion of the cost thereof, and the funding 
of outstanding warrants and maturing bonds; provided, that the total 
amount of indebtedness authorized to be contracted in any form, including 
the then existing indebtedness, must not, at any time, exceed five per 
centum (5%) of the total value of the taxable property of the city or 
town, as ascertained by the last assessment for state and county taxes, 
said words "value of the taxable property" being used herein in the 
same sense as in section 6 of article XIII of the constitution ; provided, 
that no money must be borrowed on bonds issued for the construction, 
purchase, or securing of a water plant, water system, water supply, sewage 
treatment and disposal plant, or sewerage system, until the proposition 
has been submitted to the vote of the taxpayers affected thereby of the 
city or town, and the majority vote cast in favor thereof; and, further 
provided, that an additional indebtedness shall be incurred, when neces- 
sary, to construct a sewerage system or procure a water supply for the 
said city or town, which shall own or control said water supply and 
devote the revenue derived therefrom to the payment of the debt. 

(2) The additional indebtedness authorized, including all indebtedness 
theretofore contracted, which is unpaid or outstanding, for the construction 
of a sewerage system, or for the procurement of a water supply, or for 
both such purposes, shall not exceed in the aggregate ten per centum (10% ) 
over and above the five per centum (5%) heretofore referred to, of the total 
valuation of the taxable property of the city or town as ascertained by the 
last assessment for state and county taxes; and, provided further, that the 
above limit of five per centum (5%) shall not be extended, unless the ques- 
tion shall have been submitted to a vote of the taxpayers affected thereby^ 
and carried in the affirmative by a vote of the majority of said taxpayers 
who vote upon such question. 

(3) It is further provided, that whenever a franchise has been granted 
to, or a contract made with, any person or persons, corporation or corpora- 
tions, and such person or persons, corporation or corporations, in pursuance 
thereof, or otherwise, have established or maintained a system of water 
supply, or have valuable water rights or a supply of water desired by the 
city or town for supplying the said city or town with water, the city or 
town granting such franchise or entering in such contract or desiring 
such water supply, shall, by the passage of an ordinance, give notice to 
such person or persons, corporation or corporations, that it desires to 
purchase the plant and franchise and water supply of such person or 
persons, corporation or corporations, and it shall have the right to so 
purchase the said plant or water supply, upon such terms as the parties 
agree ; in case they cannot agree, then the city or town shall proceed 
to acquire the same under the laws relating to the taking of private 
property for public use, and any city or town acquiring property under 
the laws relating to the taking of private property for public use, shall 
make payment to the owner or owners of the plant or water supply of the 
value thereof legally determined, within six (6) months from and after final 
judgment is entered in the condemnation proceedings. For the purpose of 

39 



11-988 ELECTION LAWS 

providing the city or town with an adequate water supply for municipal and 
domestic purposes, the city or town council shall procure and appropriate 
water rights and title to the same, and the necessary real and personal prop- 
erty to make said rights and supply available, by purchase, appropriation, 
location, condemnation, or otherwise. 

(4) Cities and towns shall have jurisdiction and control over the ter- 
ritory occupied by their public works, and over and along the line of 
reservoirs, streams, trenches, pipes, drains, and other appurtenances used 
in the construction and operation of such works, and also over the source of 
stream for which water is taken, for the enforcement of its sanitary ordi- 
nances, the abatement of nuisances, and the general preservation of the 
purity of its water supply, with power to enact all ordinances and regula- 
tions necessary to carry the powers hereby conferred into effect. For this 
purpose the city or town shall be authorized to condemn private property 
in the manner provided by law, and shall have authority to levy a just and 
equitable tax on all consumers of water for the purpose of defraying the 
expenses of its procurement. 

History: En. Subd. 64, Sec. 5039, R. C. 1953; amd. Sec. 1, Ch. 34, L. 1955; amd. 

M. 1921; amd. Sec. 1, Ch. 115, L. 1925; Sec. 1, Ch. 38, L. 1969; amd. Sec. 1, Ch. 

amd. Sec. 1, Ch. 20, L. 1927; amd. Sec. 1, 158, L. 1963. See also history of Sec. 

Ch. 35, L. 1947; amd. Sec. 1, Ch. 152, L. 11-901. 

11-988. (5039.85) Power of cities and towns to acquire natural gas and 
distributing system therefor. The city or town council has power to con- 
tract an indebtedness of a city or town upon the credit thereof by borrow- 
ing money or issuing bonds for the construction, purchase or development of 
an adequate supply of natural gas, and to construct or purchase a system of 
gas lines for the distribution thereof to the inhabitants of said city or town 
or vicinity ; provided, that the total amount of indebtedness authorized to be 
contracted in any form, including the then existing indebtedness must not 
at any time exceed three per centum (3%) of the total assessed valuation 
of the taxable property of the city or town as ascertained by the last assess- 
ment for state and county taxes, and provided further, that no money must 
be borrowed or bonds issued for the purposes herein specified until the 
proposition has been submitted to the vote of the taxpayers affected thereby 
of the city or town, and the majority vote cast in favor thereof. 
History: En. Sec. 1, Ch. 128, L. 1927. 

CHAPTER 10 

POWERS OF CITY AND TOWN COUNCILS (continued) 

Section 11-1008. Public baths, 

11-1015. Parking meters in cities or towns of 2,500 population or less. 

11-1016. Referendum on parking meters required before ordinance. 

11-1017. Existing meters and ordinances unaffected. 

11-1019. Operation of bus lines — contracting indebtedness. 

11-1020. Operation subject to Motor Carrier Act — exception. 

11-1021. Contracts or lease arrangements with independent carriers of pas- 
sengers — when authorized — levy of tax. 

11-1022. Bids for service — operation of carriers. 

40 



CITIES AND TOWNS 11-1017 

11-1008. (5045) Public baths. All cities or towns incorporated under 
the laws of the state of Montana, in addition to other powers conferred upon 
them, are hereby empowered and authorized to establish and maintain a 
public bathing place within said city or town, and to defray the cost and 
expense of maintaining said public bathing place, said city or town is hereby 
authorized and empowered to contract an indebtedness, upon behalf of said 
city or town, upon the credit thereof, by borrowing money or issuing bonds ; 
provided, that no money may be borrowed, and no bonds may be issued for 
said purpose, until the proposition has been submitted to the vote of the tax- 
payers affected thereby of the city or town, and a majority vote be cast 
therefor. 

History: En. Sec. 1, Oh. 12, L. 1905; 
re-en. Sec. 32d4, Bev. C. 1907; re-em. Sec. 
5046, R. C. M. 1921. 

11-1015. Parkiiig meters in cities or towns of 2,500 population or leas. 

Any city or town council of any incorporated city or town of twenty-five 
hundred (2500) population or less is hereby empowered to enact an ordi- 
nance or ordinances : 

(a) To purchase, rent, lease or otherwise acquire coin operating park- 
ing meters, or other devices, or instruments used for the purpose of measur- 
ing the duration of time an automobile or other vehicle is parked. 

(bj To install, maintain and operate said meters, devices or instruments 
at or near any public street, highway, avenue or other public place within 
the corporate limits of such city or town. 

(c) To provide for such regulations as necessary to govern the use of 
its public streets, highways, avenues or other public places for the purpose 
of parking automobiles or other vehicles, and the use of said meters, devices 
or instruments in conjunction therewith, including the establishment and 
designation of zones or areas where said meters, devices or instruments are 
to be used. 
History: En. Sec. 1, Ch. 91, L. 1949. 

11-1016. Referendum on parking meters required before ordinance. 

Provided, however, that no ordinance or ordinances providing for the pur- 
chasing, renting, leasing or otherwise acquiring or installing, maintaining, 
operating or using such parking meters, devices or instruments shall be 
enacted until and unless the question of whether or not such ordinance 
or ordinances shall be enacted has been submitted to the qualified electors 
of such city or town at a general election or special election called for that 
purpose, and unless at such election a majority of the votes cast for and 
against the question shall have been in favor of the enacting of said ordi- 
nance or ordinances. 
History: En. Sec. 2, Ch. 91, L. 1949. 

11-1017. Existing meters and ordinances unaffected. Nothing herein 
contained shall affect the validity of any ordinance relating to parking 
meters or similar devices or instruments heretofore adopted by any city or 
town, or any extension thereof hereafter made. 
History: En. Sec. 3, Oh. 91, I<. 1949. 

41 



11-1019 ELECTION LAWS 

11-1019. Operation of bus lines — contracting indebtedness. Whenever 
a city or town is not being served by a bus company or operator, operating 
on a regular schedule, and under the jurisdiction of the Montana railroad 
and public service commission or if such service is to be or is likely to be 
discontinued in the immediate future, the city or town council of any 
incorporated city or town shall have the power to contract an indebtedness 
of any such city or town upon the credit thereof by borrowing money or 
issuing bonds for the purchase, development, operation or leasing of motor 
buses and bus lines for the transportation of passengers within the corpo- 
rate limits of such cities and towns, and to operate the same to any point 
or points beyond said limits not to exceed eight (8) miles, measured along 
the route of said bus line ; provided that the total amount of indebtedness 
authorized to be contracted in any form, including the then existing in- 
debtedness must not at any time exceed five per centum (5%) of the total 
assessed valuation of the taxable property of the city or town as ascer- 
tained by the last assessment for state and county taxes, and provided 
further, that no money must be borrowed or bonds issued for the purposes 
herein specified until the proposition has been submitted to the vote of 
the taxpayers affected thereby of the city or town, and the majority vote 
cast in favor thereof. 

History: En. Sec. 1, Oil. 101. L. 1951; 
amd. Sec. 1, Oh. 211, L. 1956; amd. Sec. 1, 
Oh. 120, L. 1957. 

11-1020. Operation subject to Motor Carrier Act — exception. The said 

city or town council or commission shall have authority to provide for the 

management and operation of said system ; and to do all the things necessary 

for the successful operation of said transportation system. Such operations 

shall be subject to all the provisions of the Motor Carrier Act (sections 8-101 

to 8-129, Revised Codes of Montana, 1947) except that such municipality 

may be issued a certificate of public convenience and necessity without 

proof of the existence of public convenience and necessity, and except that 

the municipality shall be exempt from the payment of fees provided by 

sections 8-116 and 8-127, Revised Codes of Montana, 1947. 

History: En. Sec. 2, Oh. 101, L. 1951; 
amd. Sec. 1, Oh. 211, L. 1955; amd. Sec. 1, 
Oh. 120, L. 1957. 

11-1021. Contracts or lease arrangements with independent carriers of 
passengers — when authorized — levy of tax. Whenever a city or town is 
not being served by a bus company or operator, operating on a regular 
schedule, and under the jurisdiction of the Montana railroad and public 
service commission or if such service is to be, or is likely to be, discontinued 
in the immediate future, the city or town council of any incorporated 
city or town shall have the power to enter into a contract or contracts, or 
to enter into a lease or a lease and operating agreement, with an independ- 
ent carrier or independent carriers for the transportation of passengers 
by bus within the corporate limits of such city or town and to and from 
any point or points beyond said limits not to exceed eight (8) miles 
measured along the route of said bus line or lines ; and for the purpose of 

42 



CITIES AND TOWNS 11-1104 

raising the necessary moneys to defray the cost of such transportation 
service pursuant to such contract or contracts, lease or lease and operating 
agreement, with such independent carrier or carriers the city or town 
council shall have power to annually levy a tax on the taxable value of 
all taxable property within the limits of such city or town ; provided, 
however, that whenever the council of such city or town shall deem it 
necessary to raise money by taxation for such purpose in excess of the 
levy now allowed by law the council of such city or town shall in the manner 
prescribed by law, submit the question of such additional levy to the legal 
voters of such city or town who are taxpaying freeholders therein, either 
at the regular annual election held in said city or town, or at a special 
election called for that purpose by the council of such city or town ; pro- 
vided, however, that such additional levy in excess of the levy now allowed 
by law shall not exceed one and one-half (11/2) mills. 

History: En. Sec. 3, Ch. 211, L. 1956; 
amd. Sec. 1, Ch. 120, L. 1957. 

11-1022. Bids for service — operation of carriers. The said city or town 
council shall have power and authority to call for bids from independent 
carriers for such transportation service, and to do all things necessary or 
proper for establishment and maintenance of such transportation service 
by contract, lease or lease and operating agreement. 

History: En. Sec. 4, Ch. 211, L. 1956; 
amd. Sec. 1, Oh. 120, L. 1967. 

CHAPTER 11 
ORDINANCES— INITIATIVE AND BETEBENDUM 

Section 11-1104. Initiative in cities — petition. 

11-1105. Submission of question at regular election. 

11-1106. No ordinance to be effective until thirty days after passage. 

11-1107. Beferendum petition. 

11-1108. Beferendum to be had at regular election. 

11-1109. Special election may be ordered. 

11-1110. Proclamation of election. 

11-1111. Ballots and method of voting. 

11-1112. Qualifications of voters. 

11-1113. Forms of petitions and conduct of proceedings. 

11-1114. To what ordinances applicable. 

11-1104. (5058) Initiative in cities — petition. (1) Ordinances may be 
proposed by the legal voters of any city or town in this state, in the 
manner provided in this act. Fifteen per cent (15%) of the legal voters 
of any city or town may propose to the city or town council an ordinance 
on the subject within the legislative jurisdiction and powers of such city 
or town council, or an ordinance amending or repealing any prior ordi- 
nance or ordinances. Such petition shall be filed with the city or town 
clerk. It shall be the duty of the city or town clerk to present the same 
to the council at its first meeting next following the filing of the petition. 
The council may, within sixty (60) days after the presentation of the 
petition to the council, pass an ordinance similar to that proposed in the 
petition, either in exact terms or with such changes, amendments, or 

43 



11-1104 ELECTION LAWS 



modifications as the council may decide upon. If the ordinance proposed 
by the petition be passed without change, it shall not be submitted to the 
people, unless a petition for referendum demanding such submission shall 
be filed under the provisions of this act. 

(2) If the council shall have made any change in the proposed ordi- 
nance, a suit may be brought in the district court in and for the county 
in which the city or town is situated, to determine whether or not the 
change is material. Such suit may be brought in the name of any one or 
more of the petitioners. The city shall be made the party defendant. Any 
elector of the city or town may appear in such suit in person or by 
counsel on the hearing thereof, but the court shall have the power to 
limit the number of counsel who shall be heard on either side, and the 
time to be allowed for argument. It shall only be necessary to state in 
the complaint that a petition for an ordinance was filed in pursuance of 
this act ; that the city council passed an ordinance on the subject different 
from that proposed in the petition; and that the plaintiff desires a con- 
struction of the ordinance so passed to determine whether or not it differ 
materially from that proposed. The petition and the ordinance proposed 
thereby, and the ordinance actually passed, may be set out in the com- 
plaint, or copies thereof annexed to the complaint. The names to the 
petition need not be set out. Such cases shall be advanced and brought 
to hearing as speedily as possible, and have precedence over other cases, 
except criminal and taxation cases. 

(3) The court shall have jurisdiction in such cases to determine 
whether or not the change made by the city council is material, and also 
whether the petition was regular in form or substance, and shall also 
have power to decide, if the fact be put in issue by the defendant, whether 
or not the petition was signed by a sufficient number of voters and was 
regular in form. If the court shall decide that the change was material 
and that the petition was regular in form and signed by a sufficient 
number of legal voters, then the ordinance proposed by the petition shall 
be submitted to the people as provided in this act. If the court shall decide 
that the ordinance passed by the council was not materially different from 
that proposed in the petition, or the petition was not regular in form, or 
not signed by a suflScient number of legal voters, the ordinance shall not 
be submitted to the people. If the court shall decide that the changes 
made by the council were material, but that the petition was irregular for 
some reason, or not properly or sufficiently signed, a new petition, regular 
in form, may be presented by the required number of legal voters, asking 
the council to submit such ordinance to the people, and thereupon the 
same shall be so submitted as provided in this act. 

(4) If the council shall not, within sixty days, pass an ordinance 
on the subject of the ordinance proposed in the petition, then the ordinance 
proposed by the petition shall be submitted to the people. Before sub- 
mitting such ordinance to the people, the mayor or city or town council 
may direct that a suit be brought in the district court in and for the county, 
in the name of the city or town, to determine whether the petition and 
ordinance are regular in form, and whether the ordinance so proposed 

44 



CITIES AND TOWNS 11-1106 

would be valid and constitutional. The complaint shall name as defendants 
not less than ten nor more than twenty of the petitioners. In addition to 
the names of such defendants, in the caption of the complaint, there shall 
be added the words, "and all petitioners whose names appear on the petition 

for an ordinance filed on the day of , in the year 

," stating the date of filing. The summons shall be similarly 

directed and shall be served on the defendants named therein, and in addi- 
tion thereto shall be published at least once, at the expense of the city, in 
at least one newspaper published in the city or town. 

(5) In all suits brought under this section the decision of the district 
court shall be final except in cases where it shall decide that the proposed 
ordinance would be unconstitutional or invalid as being beyond the powers 
of the city or town council, and in such excepted cases the petitioners, 
or any of them, may appeal to the supreme court as in other cases, but 
shall not be required to give any bond for costs. The decision of the 
district court holding such ordinance valid or constitutional shall not, 
however, prevent the question being raised subsequently, if the ordinance 
shall be passed and go into effect, by anyone affected by the ordinance. 
No costs shall be allowed to either side in suits or appeals under this section. 

(6) If an ordinance shall be repealed pursuant to a proposal initiated 
by the legal voters of a city or town, as in this section provided, the city 
or town council may not, within a period of two years thereafter, re-enact 
such ordinance or any ordinan-ce so similar thereto as not to be materially 
different therefrom. If during such two-year period the council shall enact 
an ordinance similar to the one repealed pursuant to initiative of the voters, 
a suit may be brought to determine whether such new ordinance be a re- 
enactment without material change of the one so repealed, and the pro- 
visions of subsections 2 and 3 hereof shall apply to such suit and determina- 
tion of the issues arising thereon. Nothing herein contained shall prevent 
exercise of the initiative herein provided for, at any time, to procure a re- 
enactment of an ordinance repealed pursuant to initiative of the voters. 

History: En. Ch. 167, L. 1907; Sec. R. C. M. 1921; amd. Sec. 1, Ch. 24, L. 

3266, Rev. 0. 1907; re-en. Sec. 6058, 1951; amd. Sec. 1, Ch. 126, L, 1967. 

11-1105. (5059) Submission of question at regfidar election. Any ordi- 
nance proposed by petition as aforesaid, which shall be entitled to be sub- 
mitted to the people, shall be voted on at the next regular election to be held 
in the city or town, unless the petition therefor shall ask that the same be 
submitted at a special election, and such petition be signed by not less than 
fifteen per cent of the electors qualified to vote at the last preceding munici- 
pal election. 

History: En. Oh. 167, L. 1907; Sec. 

3267, Rev. 0. 1907; re-en. Sec. 5059, R. C. 
M. 1921. 

11-1106. (5060) No ordinance to be effective until thirty days after 
passage. No ordinance or resolution passed by the council of any city or 
town shall become effective until thirty days after its passage, except gen- 
eral appropriation ordinances providing for the ordinary and current ex- 

45 



11-1107 ELECTION LAWS 

penses of the city or town, excepting also emergency measures, and in the 
case of emergency measures the emergency must be expressed in the pre- 
amble or in the body of the measure, and the measure must receive a two- 
thirds vote of all the members elected. In emergency ordinances the resolu- 
tions shall include only such measures as are immediately necessary for the 
preservation of peace, health, and safety, and shall not include a franchise 
or license to a corporation or individual, nor any provisions for the sale of 
real estate, nor any lease or letting of any property for a period exceeding 
one year, nor the purchase or sale of personal property exceeding five thou- 
sand dollars in value. 

History: En. Cli. 167, L. 1907; Sec. 
3268, Rev. 0. 1907; re-en. Sec. 6060, B. C. 
M. 1921. 

11-1107. (5061) Referendum petition. During the thirty (30) days 

following the passage of any ordinance or resolution, ten per cent (10%) 

of the qualified electors of the city or town may, by petition addressed to 

the council and filed with the clerk of the city or town, demand that such 

ordinance or resolution, or any part or parts thereof, shall be submitted 

to the electors of the city or town. 

History: En. Ch. 167, L. 1907; re-en. 
Sec. 3269, Rev. C. 1907; re-en. Sec. 5061, 
R. C. M. 1921; amd. Sec. 1, Ch. 94, L. 
1967. 

11-1108. (5062) Beferendum to be had at r^fnlar election. Any meas- 
ure on which a referendum is demanded under the provisions of this act shall 
be submitted to the electors of the city or town at the next municipal elec- 
tion; provided, the petition or petitions shall have been filed with the city 
clerk at least thirty days before such election. If such petition or petitions 
be signed by not less than fifteen per cent of the qualified electors of the 
city or town, the measure shall be submitted at a special election to be held 
for the purpose. 

History: En. Oh. 167, L. 1907; re-en. 
Sec. 3270, Rev. 0. 1907; re-en. Sec. 5062, 
R. O. M. 1921. 

11-1109. (5063) Special election may be ordered. The city or town 

council may in any case order a special election on a measure proposed by the 

initiative, or when a referendum is demanded, or upon any ordinance 

passed by the city or town council, and may likewise submit to the electors, 

at a general election, any ordinance passed by the city or town council. 

History: En. Oh. 167, L. 1907; r»-en. 
Sec. 3271, Rev. 0. 1907; re-en. Sec. 5063, 
R. O. M. 1921. 

11-1110. (5064) Proclamation of election. Whenever a measure is 
ready for submission to the electors, the clerk of the city or town shall, in 
writing, notify the mayor thereof, who, forthwith, shall issue a proclamation 
setting forth the measure and the date of the election or vote to be had 
thereon. Said proclamation shall be published four days in four consecu- 
tive weeks in each daily newspaper in the municipality, if there be such, 

46 



CITIES AND TOWNS 11-1113 

otherwise in the weekly newspapers published in the city or town. In case 

there is no weekly newspaper published, the proclamation and the measure 

shall be posted conspicuously throughout the city or town, 

History: En. Oil. 167, L. 1907; re-en. 
Sec. 3272, Rev. C. 1907; re-en. Sec. 6061, 
B. C. M. 1921. 

11-1111. (5065) Ballots and method of voting. The question to be bal- 
loted upon by the electors shall be printed on the initiative or referendum 
ballot, and the form shall be that prescribed by law for questions submitted 
at state elections. The referendum or initiative ballots shall be counted, 
canvassed, and returned by the regular board of judges, clerks, and officers, 
as votes for candidates for office are counted, canvassed, and returned. 
The returns for the questions submitted by the voters of the municipality 
shall be on separate sheets, and returned to the clerk of the municipality. 
The returns shall be canvassed in the same manner as the returns of regular 
elections for municipal officers. The mayor of the municipality shall issue 
his proclamation, as soon as the result of the final canvass is known, giving 
the whole number of votes cast in the municipality for and against such 
measure, and it shall be published in like manner as other proclamations 
herein provided for. A measure accepted by the electors shall take effect 
five days after the vote is officially announced. 

History: En. Sec. 167, L. 1907; re-en. 
Sec. 3273, Bev. 0. 1907; re-en. Sec. 6065, 
B. C. M. 1921. 

11-1112. (5066) Qualifications of voters. The qualifications for voting 

on questions submitted to the electors, under the provisions hereof, shall be 

the same as those required for voting at municipal elections in the city or 

town at elections for mayor or aldermen thereof. And where, by the laws of 

the state, or by ordinance of the city or town made in pursuance thereof, 

electors are required to register in order to be qualified to vote at municipal 

elections, the registration book or books shall be prima facie evidence of 

the right to sign any petition herein provided for. 

History: En. Oh. 167, L. 1907; re-en. 
Sec. 3274, Bev. 0. 1907; re-en. Sec. 6066^ 
B. 0. M. 1921. 

11-1113. (5067) Forms of petitions and conduct of proceedings. The 

form of petitions and the proceedings under this act shall conform as nearly 

as possible, with the necessary changes as to details, to the provisions of 

the laws of the state relating to the initiative and referendum, and be 

regulated by such laws, except as otherwise provided in this act. The city 

clerk shall perform the duties which, under the state laws, devolve upon 

the county clerk and secretary of state, insofar as the provisions relating 

thereto may be made to apply to the case of the city or town clerk ; but it 

shall not be necessary to mail or distribute copies of the petitions or 

measures to the electors of the city or town. 

History: En. Oh. 167, L. 1907; re-en. 
Sec. 3276, Bev. O. 1907; re-en. Sec. 5067, 
B. O. M. 1921. 

47 



11-1114 ELECTION LAWS 



11-1114. (5068) To what ordinances applicable. The provisions of this 
act regarding the referendum shall not apply to ordinances which are re- 
quired by any other law of the state to be submitted to the voters or the 
electors or taxpayers of any city or town. 

History: En. Ch. 167, L. 1907; re-«n. 
Sec. 3276, Rev. C. 1907; re-en. Sec. 6068, 
R. C. M. 1921. 



CHAPTER 12 

CONTRACTS AND FRANCHISES 

Section 11-1202. Awarding contracts — advertisement — limitations — installments — sales 
of supplies — construction of buildings — purchases from government 
agencies — exemptions. 

11-1206. Franchise, how granted. 

11-1207. Grant of franchise must be submitted to tax-paying freeholders. 

11-1208. Same — notice of election. 

11-1209. When voted, council must pass ordinance. 

11-1202. (5070) Awarding^ contracts — advertisement — limitations — in- 
stallments — sales of supplies — construction of buildings — purchases from 
government agencies — exemptions. All contracts for work, or for sup- 
plies, or for material, or for the construction of any building, for which 
must be paid a sum exceeding one thousand dollars ($1,000.00), must be 
let to the lowest responsible bidder after advertisement for bids; provided 
that no contract shall be let extending over a period of three (3) years 
or more without first submitting the question to a vote of the taxpaying 
electors of said city or town. Such advertisement shall be made in the 
official newspaper of the city or town, if there be such official newspaper, 
and if not it shall be made in a daily newspaper of general circulation 
published in the city or town, if there be such, otherwise by posting in 
three (3) of the most public places in the city or town. Such advertise- 
ment if by publication in a newspaper shall be made once each week for 
two consecutive weeks and the second publication shall be made not 
less than five (5) days nor more than twelve (12) days before the con- 
sideration of bids. If such advertisement is made by posting, fifteen (15) 
days must elapse, including the day of posting, between the time of the 
posting of such advertisement and the day set for considering bids. The 
council may postpone action as to any such contract until the next reg- 
ular meeting after bids are received in response to such advertisement, 
may reject any and all bids and readvertise as herein provided. The pro- 
visions of this section as to advertisement for bids shall not apply upon 
the happening of any emergency caused by fire, flood, explosion, storm, 
earthquake, riot or insurrection, or any other similar emergency, but in 
such case the council may proceed in any manner which, in the judgment 
of three-fourths (%) of the members of the council present at the meet- 
ing, duly recorded in the minutes of the proceedings of the council by 
aye and nay vote, will best meet the emergency and serve the public 
interest. Such emergency shall be declared and recorded at length in the 

48 



CITIES AND TOWNS 11-1207 

minutes of the proceedings of the council at the time the vote thereon is 
taken and recorded. 

When the amount to be paid under any such contract shall exceed one 
thousand dollars ($1,000.00) the council may provide for the payment of 
such amount in installments extending over a period of not more than 
three (3) years; provided that when such amount is extended over a 
term of two (2) years at least forty per centum (40%) thereof shall be 
paid the first year and the remainder the second year, and when such 
amount is extended over a term of three (3) years, at least one-third (1/3) 
thereof shall be paid each year; provided that at the time of entering into 
such contract, there shall be an unexpended balance of appropriation in 
the budget for the then current fiscal year available and sufficient to meet 
and take care of such portion of the contract price as is payable during 
the then current fiscal year, and the budget for each following year, in 
which any portion of such purchase price is to be paid, shall contain an 
appropriation for the purpose of paying the same. 

Old supplies or equipment may be sold by the city or town to the 
highest responsible bidder, after calling for bid purchasers as herein set 
forth for bid sellers, and such city or town may trade in supplies or old 
equipment on new supplies or equipment at such bid price as will result 
in the lowest net price. 

Also a city or town may, without bid, when there are sufficient funds 
in the budget for supplies or equipment, purchase such supplies or equip- 
ment from government agencies available to cities or towns when the 
same can be purchased by such city or town at a substantial saving to 
such city or town. 

All necessary contracts for professional, technical, engineering and 
legal services are excluded from the provisions of this act. 

History: En. Sec. 1, Ch. 48, L. 1907; Sec. 1, Ch. 59, L. 1941; amd. Sec. 1, Ch. 

re-en. Sec. 3278, Bev. C, 1907; re-en. Sec. 153, L. 1947; amd. Sec. 1, Ch. 139, L. 1949; 

5070, R. C. M. 1921; amd. Sec. 1, Ch. 22, amd. Sec. 1, Ch. 220, L. 1959; amd. Sec. 

I*. 1927; amd. Sec. 1, Ch. 18, L. 1939; amd. 1, Ch. 26, K 1963. 

11-1206. (5074) Franchise, how granted. The council must not grant 
a franchise or special privilege to any person save and except in the manner 
specified in the next section. The powers of the council are those only ex- 
pressly prescribed by law and those necessarily incident thereto. 

History: En. Sec. 4813, PoL C. 1896; Ch. 29, L. 1921; re-en. Sec. 5074, R. C. M. 
re-en. Sec. 3290, Rev. 0. 1907; amd. Sec. 1, 192L 

11-1207. (5075) Grant of franchise must be submitted to tax-paying 

freeholders. No franchise for any purpose whatsoever shall be granted by 

any city or town, or by the mayor or city council thereof, to any person or 

persons, association, or corporation, without first submitting the application 

therefor to the resident freeholders whose names shall appear on the city 

or county tax-roll preceding such election. 

History: En, Sec. 1, Ch. 86, L. 1903; 5076, R. C. M. 1921. 
re-eiL Sec. 32dl, Rev. O. 1907; re-en. Sec. 

49 



11-1208 ELECTION LAWS 

11-1208. (5076) Same — ^notice of election. A notice of such election 
must be published at least in one daily newspaper, if there be one published 
in the city or town, and if not, in some weekly newspaper of general circula- 
tion, at least once a week for three successive weeks, and such notice must 
be posted in three public places in the city or town. The notice must state 
the time and place of holding the election, and the character of any such 
franchise applied for, and the valuable consideration, if any there be, to be 
derived by the city. At such election the ballots must contain the words, 
"For granting franchise," "Against granting franchise," and in voting, 
the elector must make a cross thus, "X," opposite the answer he intends to 
vote for. Such election must be conducted and canvassed and the return 
made in the same manner as other city or town elections. 

History: En. Sec 2, Oh. 85, L. 1903; 
re-en. Sec. 3292, Eev. C, 1907; re-en. Sec. 

5076, B. C. M. 1921. 

11-1209. (5077) When voted, council must pass ordinance. If the 
majority of the votes cast at the election be "For granting franchise," the 
mayor and city council must thereupon grant the same by the passage and 
approval of a proper ordinance. 

History: En. Sec. 3. Ch. 85, L. 1903; 
re-en. Sec. 3293 Bev. 0. 1907; re-en. Sec. 

5077, E. C. M. 1921. 

CHAPTER 17 
MUNICIPAL COURTS 
Section 11-1703. Election of judges — term of office. 

11-1703. (5094.3) Election of judges— term of office. There shall be 
elected at the general city election in the year 1936 in all cities with a popu- 
lation of twenty thousand (20,000) and over, one judge of municipal court. 
The term of such judge so elected shall commence on the first Monday in 
May, 1936, and terminate on the first Monday in May, 1938. Thereafter, 
judges of municipal courts shall be elected at the general city elections in 
all even numbered years. Such judges shall hold office for the term of 
two years from the first Monday of May in the year in which they are 
elected and until their successor is elected and qualified. All elections of 
municipal judges shall be under and governed by the laws applicable to 
the election of city officials, except that the names of candidates for munici- 
pal judge shall be placed on the ballot to be used at such election without 
any party designation or any statement, measure or principal which the 
candidate advocates or any slogan after his name. 
History: En. Sec. 3, Ob. 177, L. 1935. 

CHAPTER 20 

FIEE PBOTECTION IN UNINCORPOEATED TOWNS— FIRE WARDENS, 

COMPANIES AND DISTRICTS 

Section 11-2010. Trustees of fire districts — mutual aid agreements. 

11-2010. (5149) Trustees of fire districts— mutual aid agreements. 

(a) Whenever the board of county commissioners shall have established 

50 



CITIES AND TOWNS 11-2010 

a fire district in any unincorporated territory, town or village, said com- 
missioners may contract with a city, town or private fire company to 
furnish fire protection for property within said district, or shall appoint 
five qualified trustees to govern and manage the affairs of the fire district, 
who shall hold oflSce until their successors are elected and qualified, as 
hereinafter provided. Qualifications of electors and trustees, terms of office, 
vacancies, manner and date of elections, shall, as far as possible, be the 
same as provided in the school election laws for school districts of the 
second class; except, that only electors who are taxpayers affected by the 
special fire district levies may vote at such elections, and be qualified to 
serve as trustees; and except, also, there need be no special registration 
of electors. 

(b) Power of trustee. The trustees shall organize by choosing a chair- 
man, and appointing one member to act as secretary. They shall prepare 
and adopt suitable by-laws; appoint and form fire companies that shall 
have the same duties, exemptions, and privileges as other fire companies. 
The trustees shall have the authority to provide adequate and standard 
fire-fighting apparatus, equipment, housing and facilities for the protection 
of the district; and shall prepare annual budgets and request special levies 
therefor. The budget laws relating to county budgets, shall, as far as 
applicable, apply to fire districts. 

(c) The trustees of such fire district may contract with the council 
of any city or town, or with the trustees of any other fire district estab- 
lished in any unincorporated territory, town or village, lying within five 
(5) miles of the farthest limits of the district, whether such city or town 
or other fire district shall lie within the same county or another county, 
for the extension of fire protection service by such city or town, or by 
such other fire district, to property included within the district, and may 
agree to pay a reasonable consideration therefor, provided, that the owners 
of ten per cent (10%) of the taxable value of the property in any fire 
district may elect to make a contract with the city fire department for 
fire protection, or to be included in the fire district protection facilities. 
Likewise, the trustees may contract to permit the fire district equipment 
and facilities to be used by or for such cities or towns lying within the 
district, or by such cities, towns, or other fire districts lying within five 
(5) miles of the farthest limits of the district. 

(d) A mutual aid agreement is an agreement for protection against 
natural or man-made disasters. Fire district trustees may enter such 
agreements with the proper authority of 

(1) other fire districts 

(2) unincorporated municipalities 

(3) incorporated municipalities 

(4) state agencies which have fire prevention services 

(5) private fire prevention agencies 

(6) federal agencies. 

History: En. Sec. 1, Ch, 107, K 1911; amd. Sec. 2, Ch. 75, L. 1953; amd. Sec. 2, 

amd. Sec. 1, Ch. 19, L. 1921; re-en. Sec. Ch. 77, L. 1969; amd. Sec. 1, Ch. 118, L. 

5149, R. C. M. 1921; amd. Sec. 1, Ch. 130, 1959; amd. Sec. 1, Ch. 2, L. 1965. 
K 1925; amd. Sec. 3^ Ch. 97, L. 1947; 

51 



11-2217 ELECTION LAWS 

CHAPTER 22 
SPECIAL IMPROVEMENT DISTRICTS 

Section 11-2217. Cities and towns may establish sewage treatment and disposal plants 
and systems and water supply and distribution systems. 

11-2218. May issue revenue bonds — sinking fund — refunding revenue bonds. 

11-2271. Loans from revolving fund for paying improvement district warrants 
— authorization by electors. 

11-2275. Creation and maintenance of fund. 

11-2276. Issuance of bonds — submission to electors. 

11-2217. Cities and towns may establish sewag-e treatment and disposal 
plants and systems and water supply and distribution systems. Any city 

or town may when authorized so to do by a majority vote of the qualified 
electors voting on the question establish, build, construct, reconstruct 
and/or extend a storm and/or sanitary sewerage system and/or a plant or 
plants for treatment or disposal of sewage therefrom, or a water supply 
and/or distribution system, or any combinations of such systems, and may 
operate and maintain such facilities for public use, and in addition to all 
other powers granted to it, such municipality shall have authority, by 
ordinance duly adopted by the governing body to charge just and equitable 
rates, charges or rentals for the services and benefits directly or indirectly 
furnished thereby. Such rates, charges or rentals shall be as nearly as 
possible equitable in proportion to the services and benefits rendered, and 
sewer charges may take into consideration the quantity of sewage produced 
and its concentration and water pollution qualities in general and the cost 
of disposal of sewage and storm waters. The sewer charges may be fixed 
on the basis of water consumption or any other equitable basis the govern- 
ing body may deem appropriate and, if the governing body determines that 
the sewage treatment and/or storm water disposal prevents pollution of 
sources of water supply, may be established as a surcharge on the water 
bills of water consumers or on any other equitable basis of measuring the 
use and benefits of such facilities and services. In the event of nonpayment 
of charges for either water or sewer service and benefits to any premises, 
the governing body may direct the supply of water to such premises to be 
discontinued until such charges are paid. 

In this act "qualified electors" shall mean registered electors of the 
municipality whose names appear upon the last preceding assessment roll 
for state and county taxes as taxpayers upon property within the munici- 
pality. The question of building, constructing, reconstructing or extending 
the system, plant or plants and the question of issuing and selling revenue 
bonds for such purpose may be submitted as a single proposition or as 
separate propositions. Any election under this act may be called by a 
resolution of the governing body which it may adopt without being pre- 
viously petitioned to do so. 

History: En. Sec. 1, Oh. 149, L 1943; 
amcL Sec. 1, OIl 100, L. 1947; amd. Sec. 1, 
Oh. 98, L. 1966. 

11-2218. May issue revenue bonds — sinking fund — refunding revenue 
bonds. (1) Any such municipality may issue and sell negotiable revenue 

52 



CITIES AND TOWNS 11-2218 

bonds for the construction of any such water or sewer system or combined 
water and sewer system when authorized so to do by a majority vote of 
the qualified electors voting on the question at an election called by the 
city council or other governing body of the municipality for that purpose, 
and noticed and conducted in accordance with the provisions of sections 
11-2308 to 11-2310, inclusive; which bonds shall bear interest at a rate or 
rates and shall be sold at a price resulting in an average net interest cost, 
computed to the stated bond maturity dates, of not more than six per cent 
(6%) per annum and all bonds shall mature within forty (40) years from 
date of bonds, and may be registered as to ownership of principal only with 
the treasurer of said municipality, if so directed by the governing body. No 
bonds shall be sold for less than par, and each of said bonds shall state 
plainly on its face that it is payable only from a sinking fund, naming said 
fund and the ordinance and resolution creating it, and that it does not 
create an indebtedness within the meaning of any charter, statutory or 
constitutional limitation upon the incurring of indebtedness. 

(2) Prior to the issuance of said bonds the city council or other 
governing body of such municipality shall adopt an ordinance or resolu- 
tion authorizing the issuance and sale of said bonds, and must create a 
sinking fund for the payment of the bonds and the interest thereon and 
charges of the fiscal agency for making payment of the bonds and interest 
thereon. 

(3) At or before the issuance and sale of any such bonds, the govern- 
ing body shall, by resolution or ordinance, set aside to such sinking fund 
and pledge to the payment of the bonds and the interest thereon the net 
income and revenues of the system, including all additions thereto and 
replacements and improvements thereof subsequently constructed or ac- 
quired, up to an amount sufficient to provide for the payment of the prin- 
cipal and the interest on the bonds as such principal and interest shall 
become due and payable, and to accumulate and maintain reserves securing 
such payments in such amount as shall be deemed by the governing body 
to be necessary and expedient. 

(4) The said net income and revenues above-mentioned shall be 
construed to mean all the gross income from said system less normal, 
reasonable and current expenses of operation and maintenance thereof. 

(5) Said payments above-mentioned shall constitute a first and prior 
charge and lien on the entire net income and revenues derived from the 
operation of said system, provided that the governing body shall have 
power from time to time to establish the relative priority of the liens of 
successive issues of bonds upon said net income and revenues, subject 
to any restrictions contained in the ordinances or resolutions authorizing 
bonds of prior issues, 

(6) Any such municipality, by ordinance or resolution adopted by 
its governing body, and without an election, may issue and sell negotiable 
revenue bonds in the manner provided in this section, to refund bonds 
previously issued for any of the foregoing purposes, whether issued under 
authority of this section or any other applicable law. Refunding bonds 
may, with the consent of the holders of the bonds to be refunded thereby, 

53 



11-2218 ELECTION LAWS 

be exchanged at par plus accrued interest for all or part of such bonds, or 
may be sold at a price not less than par plus accrued interest, but nothing 
herein shall require the holder of any outstanding bond to accept pay- 
ment thereof or the delivery of a refunding bond in exchange therefor, 
except in accordance with the terms of such outstanding bond. Bonds 
may be issued to refund interest as well as principal actually due and 
payable if the revenues pledged therefor are not sufficient, but not to re- 
fund any principal or interest due which can be paid from revenues then 
on hand. 

(7) Any municipality having issued bonds payable from net revenues 
of its water and sewer system or combined water and sewer systems, 
whether under authority of this section or otherwise, may issue additional 
bonds after authorization by the qualified electors in the manner herein- 
above provided, to finance the reconstruction and improvement of such 
system and the construction of additions thereto, and may provide that 
such additional bonds shall be payable from said net revenues on a parity 
with the outstanding bonds of such previous issues, subject to any re- 
strictions upon such issuance which may be imposed by the resolutions 
or ordinances authorizing said outstanding bonds; or the governing body 
may provide for the issuance of refunding bonds, without an election, to 
retire such outstanding bonds and may, if desired, combine such refund- 
ing issue with the issue authorized by the electors for reconstruction, 
improvements and additions, or may include the amount required for such 
refunding in the amount of such additional issue when submitted to the 
electors. 

(8) Refunding bonds may bear interest at a rate lower or higher than 
the bonds refunded thereby, if they are issued to refund matured prin- 
cipal or interest for the payment of which revenues on hand are not 
suflficient, or if the refunding bonds are combined with an issue of new 
bonds for reconstruction, improvements and additions and the lien of such 
new bonds upon the revenues of the system or systems must be junior 
and subordinate to the lien of the outstanding bonds refunded, under the 
terms of the ordinances or resolutions authorizing the outstanding bonds, 
as applied to circumstances existing on the date of refunding. Except as 
authorized in the preceding sentence, refunding bonds shall not be issued 
unless their average annual interest rate, computed to their stated ma- 
turity dates and excluding any premium from such computation, is at least 
three-eighths of one per cent (3/8 of 1%) less than the average annual 
interest rate on the bonds refunded thereby, computed to their respective 
stated maturity dates. 

(9) In any case where refunding bonds are issued and sold six (6) 
months or more before the earliest date on which all bonds refunded 
thereby mature or are prepayable in accordance with their terms, the 
proceeds of the refunding bonds, including any premium and accrued 
interest, shall be deposited in escrow with a suitable bank or trust com- 
pany, having its principal place of business within or without the state, 
which is a member of the Federal Reserve System and has a combined 
capital and surplus not less than one million dollars ($1,000,000), and 

54 



CITIES AND TOWNS 11-2271 

shall be invested in such amount and in securities maturing on such dates 
and bearing interest at such rates as shall be required to provide funds 
suflScient to pay when due the interest to accrue on each bond refunded 
to its maturity or, if it is prepayable, to the earliest prior date upon which 
such bond may be called for redemption, and to pay and redeem the prin- 
cipal amount of each such bond at maturity, or, if prepayable, at its 
earliest redemption date, and any premium required for redemption on 
such date; and the resolution or ordinance authorizing the refunding 
bonds shall irrevocably appropriate for these purposes the escrow fund 
and all income therefrom, and shall provide for the call of all prepayable 
bonds in accordance with their terms. The securities to be purchased 
with the escrow fund shall be limited to general obligations of the United 
States, securities whose principal and interest payments are guaranteed 
by the United States, and securities issued by the following United States 
government agencies: Banks for Cooperatives, Federal Home Loan Banks, 
Federal Intermediate Credit Banks, Federal Land Banks, and the Federal 
National Mortgage Association. Such securities shall be purchased simul- 
taneously with the delivery of the refunding bonds. 

(10) Revenues and other funds on hand, in excess of amounts pledged 
by ordinances and resolutions authorizing outstanding bonds for the pay- 
ment of principal and interest currently due thereon and reserves securing 
such payment, may be used to pay the expenses incurred by the municipality 
for the purpose of such refunding, including but without limitation the 
cost of advertising and printing refunding bonds, legal and financial advice 
and assistance in connection therewith, and the reasonable and customary 
charges of escrow agents and paying agents. Revenues and other funds on 
hand, including reserves pledged for the payment and security of outstand- 
ing revenue bonds, may be deposited in an escrow fund created for the 
retirement of such bonds and may be invested and disbursed as provided in 
subsection (9) hereof, to the extent consistent with the ordinances or reso- 
lutions authorizing such outstanding bonds. 

History: En. Sec. 2, Ch. 149, L. 1943; 
amd. Sec. 1, Ch. 146, L. 1951; amd. Sec. 
2, Ch. 98, L. 1955; amd. Sec. 1, Ch. 38, 
L. 1957; amd. Sec. 1, Ch. 51, L. 1963. 

11-2271. (5277.3) Loans from revolving fund for paying improvement 
district warrants — authorization by electors. (1) Whenever any special 
improvement district bond or warrant, or any interest thereon, shall be, 
at the time of the passage of this act, or shall thereafter become due and 
payable, and there shall then be either no money or not sufficient money in 
the appropriate district fund with which to pay the same, an amount suffi- 
cient to make up the deficiency may, by order of the council, be loaned by 
the revolving fund to such district fund, and thereupon such bond or war- 
rant or such interest thereon, or in case of such bonds or warrants due at 
the time of the passage of this act, such part of the amount due on such 
bond or warrant, whether it be for principal or for interest or for both as 
the council may in its discretion elect or determine, shall be paid from the 
money so loaned or from the money so loaned when added to such insuffi- 

55 



11-2275 ELECTION LAWS 

cient amount, as the case may require ; provided, however, that the above 
provisions of sections 11-2269, 11-2270 and 11-2271 of this code shall not ap- 
ply to any district or districts heretofore created, unless and until, at an 
election, either the regular annual municipal election or a special election 
called by the council, a majority of the electors whose names appear as the 
owners of property in the city or town on the last completed tax roll of the 
county in which the city or town is situated, shall authorize the city or 
town council to proceed thereunder, such election to be called and con- 
ducted in the manner and under such regulations as the council may pro- 
vide. At such election no person other than such qualified elector and 
taxpayer shall vote on said question, and a majority of those voting thereat 
shall be sufficient to determine, and shall determine, the question whether 
the council be authorized or not to proceed under sections 11-2269, 11-2270 
and 11-2271 of this code. 

(2) In connection with any public offering of special improvement 

district bonds or warrants, the city or town council may undertake and 

agree to issue orders annually authorizing loans or advances from the 

revolving fund to the district fund involved in amounts sufficient to make 

good any deficiency in the bond and interest accounts thereof to the extent 

that funds are available, and may further undertake and agree to provide 

funds for such revolving fund pursuant to the provisions of section 11-2270 

by annually making such tax levy (or, in lieu thereof, such loan from the 

general fund) as the city or town council may so agree to and undertake, 

subject to the maximum limitations imposed by said section 11-2270, which 

said undertakings and agreements shall be binding upon said city or town 

so long as any of said special improvement district bonds or warrants so 

offered, or any interest thereon, remain unpaid. 

History: En. Sec. 3, Ch. 24, L. 1929; 
amd. Sec. 1, CTh, 179, L. 1945. 

11-2275. Creation and maintenance of fund. A supplemental revolving 
fund may be created by ordinance subject to the approval of a majority of 
the qualified electors voting upon the question at a general or special elec- 
tion. As used in this act "qualified electors" shall mean registered electors 
whose names appear upon the last preceding assessment roll for state and 
county taxes as taxpayers upon property within the municipality. The 
supplemental revolving fund shall be created and maintained solely from 
the net revenues of parking meters and the ordinance may pledge to said 
fund all or any part of the said net revenues of parking meters which may 
be then owned or leased or rented or thereafter acquired by the city or town. 
Said ordinance shall contain such provisions in respect to the purchase, 
control, operation, repair and maintenance of parking meters, including 
rates to be charged, and the application of the net revenues therefrom and 
the management and use of the supplemental revolving fund as the council 
shall deem necessary. 
History: En. Sec. 2, Ch. 260, L. 1947. 

11-2276. Issuance of bonds — submission to electors. At any time after 
the award of the contract for any of the improvements described in section 

56 



CITIES AND TOWNS 11-2306 

11-2274 and prior to the issuance of bonds or warrants therefor under the 
provisions of section 11-2231 the council may by resolution determine that 
such improvement is of a character that bonds may be issued hereunder 
in lieu of bonds under said section 11-2231, and may submit to the qualified 
electors of the city or town the question whether such bonds shall be issued. 
The proposal to issue bonds may be submitted at the same election as the 
proposal to create the supplemental revolving fund and must be approved 
by a majority of the qualified electors voting on the question. 
History: En. Sec. 3, Ch. 260, L. 1947. 

CHAPTER 23 
MUNICIPAL BONDS AND INDEBTEDNESS 

Section 11-2301. Creation of indebtedness — submission to taxpayers. 

11-2306. Petition for election — form — proof. 

11-2307. Consideration of petition — calling election. 

11-2308. Notice of election — election hours — election officers. 

11-2309. Form of ballots and conduct of election. 

11-2310. Who are entitled to vote — registration of electors. 

11-2311. Percentage of voters required to authorize the issuing of bonds. 

11-2312. Canvass of election returns — resolution for bond issue. 

11-2301. (5278.1) Creation of indebtedness — submission to taxpayers. 

Whenever the council or commission of any city or town having a corporate 
existence in this state, or hereafter organize under any of the laws thereof, 
shall deem it necessary to issue bonds for any purpose whatever, under its 
powers as set forth in any statute or statutes of this state, or amendments 
thereto, the question of issuing such bonds shall first be submitted to the 
electors of such city or town who are qualified to vote on such question, in 
the manner hereinafter set forth; provided, however, that it shall not be 
necessary to submit to such electors the question of issuing refunding bonds 
to refund bonds theretofore issued and then outstanding: provided further 
that no refunding bonds shall be issued unless such refunding bonds shall 
bear interest at a rate of at least one-half of one per cent (^/^ of 1%) less 
than the interest rate of the outstanding bonds to be refunded. In order 
to issue bonds to refund bonds theretofore issued and outstanding it shall 
only be necessary for the council, at a regular or duly called special meet- 
ing, to pass and adopt a resolution setting forth the facts with regard to the 
indebtedness to be refunded, showing the reason for issuing such refunding 
bonds, and fixing and determining the details thereof, giving notice of sale 
thereof in the same manner that notice is required to be given of sale of 
bonds authorized at an election and then following the procedure in this 
act for the sale and issuance of such bonds. 

History: En. Sec 1, Ch. 160, L. 1931; 1937; amd. Sec. 1, Ch. 15, L. 1943; amd. 
amd. Sec 1, Oh. 100, L. 1933; amd. Sec. 1, Sec. 1, Ch. 62, L. 1946. 
Oh. 12, L. 1937; amd. Sec. 1, Ch. 108, L. 

11-2306. (5278.6) Petition for election — form — proof. No bonds shall 
be issued by a city or town for any purpose, except to fund or refund war- 
rants or bonds issued prior to and outstanding on July first, 1942, as author- 
ized in section 11-2301, unless authorized at a duly called special or general 
election at which the question of issuing such bonds was submitted to the 

57 



11-2307 ELECTION LAWS 



qualified electors of the city or town, and approved, as hereinafter provided, 
and no such election shall be called unless there has been presented to the 
city or town council a petition, asking that such election be held and ques- 
tion submitted, signed by not less than twenty per centum (20%) of the 
qualified electors of the city or town who are taxpayers upon property with- 
in such city or town and whose names appear on the last completed assess- 
ment roll for state and county taxes, as taxpayers within such city or town. 
Every petition for the calling of an election to vote upon the question of 
issuing bonds shall plainly and clearly state the purpose or purposes for 
which it is proposed to issue such bonds, and shall contain an estimate of 
the amount necessary to be issued for such purpose or purposes. There may 
be a separate petition for each purpose, or two (2) or more purposes may 
be combined in one (1) petition, if each purpose with an estimate of the 
amount of bonds to be issued therefor is separately stated in such petition. 
Such petition may consist of one (1) sheet, or of several sheets identical in 
form and fastened together, after being circulated and signed, so as to form 
a single complete petition before being delivered to the city or town clerk, 
as hereinafter provided. The petition shall give the street and house num- 
ber, if any, and the voting precinct of each person signing the same. 

Only persons who are qualified to sign such petitions shall be qualified 
to circulate the same, and there shall be attached to the completed petition 
the aflfidavit of some person who circulated, or assisted in circulating, such 
petition, that he believes the signatures thereon are genuine and that the 
signers knew the contents thereof before signing the same. The completed 
petition shall be filed with the city or town clerk who shall, within fifteen 
(15) days thereafter, carefully examine the same and the county records 
showing the qualifications of the petitioners, and attach thereto a certificate, 
under his oflBcial signature, which shall set forth : 

(1) The total number of persons who are registered electors and whose 
names appear upon the last completed assessment roll for state and county 
taxes, as taxpayers within such city or town. 

(2) Which, and how many of the persons whose names are subscribed 
to such petition, are possessed of all of the qualifications required of signers 
to such petition. 

(3) Whether such qualified signers constitute more or less than twenty 
per centum (20%) of the registered electors Avhose names appear upon the 
last completed assessment roll for state and county taxes, as taxpayers with- 
in such city or town. 

History: En. Sec. 6, Oh. 160, L. 1981; amd. S«c. 2, Oh. 108, L. 1937; amd. Sec. 2, 

Oh. 16, L. 1943. 

11-2307. (5278.7) Consideration of petition — calling election. When 
such petition has been filed with the city or town clerk and he has found it 
has a sufficient number of signers qualified to sign the same, he shall place 
the same before the city or town council at its first meeting held after he 
has attached his certificate thereto. The council shall thereupon examine 
such petition and make such other investigation as it may deem necessary. 

If it is found the petition is in proper form, bears the requisite number 
of signatures of qualified petitioners, and is in all other respects sufficient, 

58 



CITIES AND TOWNS 11-2309 

the council shall pass and adopt a resolution which shall recite the essen- 
tial facts in regard to the petition and its filing and presentation, the pur- 
pose or purposes for which the bonds are proposed to be issued, and fix 
the exact amount of bonds to be issued for each purpose, which amount 
may be less than but must not exceed the amount set forth in the petition, 
determine the number of years through which such bonds are to be paid, 
not exceeding the limitations fixed in section 11-2303, and making provi- 
sion for having such question submitted to the qualified electors of the 
city or town at the next general city or town election, or at a special 
election which the council may call for such purpose. 
History: En. Sec. 7, Cb. 160, L. 1931. 

11-2308. (5278.8) Notice of election — election hours — election officers. 

•Whether such election is held at the general city or town election, or at a 
special election, separate notice shall be given thereof. Such notice shall 
state the date when such election will be held, the hours between which the 
polls will be open, the amount of bonds proposed to be issued, the purpose 
thereof, the term of years through which the bonds will be paid, and such 
other information regarding the election and the proposed bonds as the 
board may deem proper. If the bonds proposed to be issued are for two 
(2) or more purposes, each purpose and the amount thereof must be sep- 
arately stated. Such notice shall be posted in each voting precinct in the 
city or town at least ten (10) days prior to the date for holding such 
election, and must also be published once a week for a period of not less 
than two (2) consecutive weeks immediately preceding the date for hold- 
ing such election in some newspaper published in the city or town, if 
there be one, and if not then in a newspaper published in the state at a 
point in the state nearest to the city or town, and designated by the city 
or town council. 

If the question of issuing bonds is submitted at a special election called 
for such purpose, the city or town council shall fix the hours through 
which the polls are to be kept open, which shall be not less than eight (8), 
and which must be stated in the notice of election, and may appoint a 
smaller number of judges than is required at a general city or town elec- 
tion, but in no case shall there be less than three (3) judges in a precinct 
and such judges shall act as their own clerks. 

If the question of issuing bonds is submitted at a general city or town 
election, the polls shall be kept open during the same hours as are fixed 
for the general election and the judges and clerks for such general elec- 
tion shall act as the judges and clerks thereof. 
History: En. Sec. 8, Ch. 160, L. 1931. 

11-2309. (5278.9) Form of ballots and conduct of election. Whenever 
the question of issuing bonds is submitted at either a general city or town 
election, or at a special election, separate ballots shall be provided therefor. 
Such ballots shall be white in color and of convenient size, being only large 
enough to contain the printing herein required to be done and placed there- 
on, and shall have printed thereon in fair-sized, legible type and black ink, 

59 



11-2310 ELECTION LAWS 

in one (1) line or more, as required, the word "FOR" (stating the propo- 
sition and the terms thereof explicitly and at length), and thereunder the 
word "AGAINST" (stating the proposition and terms in like manner as 
above) ; and there shall be before the word "FOR" and before the word 
"AGAINST," each, a square space of sufficient size to place a plain cross or 
X therein, and such arrangement shall be in the following manner : 

□ FOR (stating the proposition) 

n AGAINST (stating the proposition) 

If bonds are sought to be issued for two (2) or more separate purposes, 
then separate ballots must be provided for each purpose or proposition. 

The election shall be conducted, and the returns made, in the same 
manner as other city or town elections; and all election laws governing 
city and town elections shall govern, insofar as they are applicable, but 
if such question be submitted at a general city or town election the votes 
thereon must be counted separately and separate returns must be made 
by the judges and clerks at such election. Returns must be made separately 
for each proposition or question submitted at such election. 
History: En. Sec. 9, Ch. 160, I*. 1931. 

11-2310. (5278.10) Who are entitled to vote — registration of electors. 

Only such registered electors of the city or town whose names appear upon 
the last preceding assessment roll for state and county taxes, as taxpayers 
upon property within the city or town, shall be entitled to vote upon any 
proposition of issuing bonds by the city or town. Upon the adoption of the 
resolution calling for the election the city or town clerk shall notify the 
county clerk of the date on which the election is to be held and the county 
clerk must cause to be published in the official newspaper of the city or 
town, if there be one, and if not in a newspaper circulated generally in the 
said city or town and published in the county where the said city or town 
is located, a notice signed by the county clerk stating that registration for 
such bond election will close at noon on the fifteenth (15th) day prior to 
the date for holding such election and at that time the registration books 
shall be closed for such election. Such notice must be published at least 
five (5) days prior to the date when such election books shall be closed. 

After the closing of the registration books for such election the county 
clerk shall promptly prepare lists of the qualified electors of such city or 
town who are taxpayers upon property therein and whose names appear 
on the last completed assessment roll for state, county and school district 
taxes and who are entitled to vote at such election and shall prepare pre- 
cinct registers for such election as provided in section 23-515 and deliver 
the same to the city or town clerk who shall deliver the same to the 
judges of election prior to the opening of the polls. It shall not be neces- 
sary to publish or post such lists of qualified electors. 

History: En. Sec. 10, Ch. 160, L. 1931; 
amd. Sec. 1, Ch. 182, L. 1939; amd. Sec. 
17, Ch. 64, L. 1959. 

11-2311. (5278.11) Percentagfe of voters required to authorize the issu- 
ing of bonds. Wherever the question of issuing bonds for any purpose is 

60 



CITIES AND TOWNS 11-2404 

submitted to the qualified electors of a city or town, at either a general or 
special election, not less than forty per centum (40%) of the qualified elec- 
tors entitled to vote on such proposition or question must vote thereon, 
otherwise such proposition shall be deemed to have been rejected ; provided, 
however, that if forty per centum (40%) or more of such qualified electors 
do vote on such proposition or question at such election, and a majority of 
such votes shall be cast in favor of such question or proposition, then such 
proposition or question shall be deemed to have been adopted and approved. 
History: En. Sec. 11, Oh. 160, L. 1931. 

11-2312. (5278.12) Cajivass of election returns — resolution for bond 
issue. If the bonding election is held at the same time as a general city or 
town election, then the returns shall be canvassed by the city or town coun- 
cil at the same time as the returns from such general election; but if the 
question of issuing bonds is submitted at a special election then the city 
or town council shall meet within ten (10) days after the date of holding 
such special election and canvass the returns. If it is found that at such 
election forty per centum (40%) or more of the qualified electors of the 
city or town entitled to vote on such question or proposition voted thereon, 
and that a majority of such votes were cast in favor of the issuing of 
such bonds, the city or town council shall, at a regular or special meeting 
held within thirty (30) days thereafter, pass and adopt a resolution pro- 
viding for the issuance of such bonds. Such resolution shall recite the 
purpose for Avhich such bonds are to be issued, the amount thereof, the 
maximum rate of interest the bonds may bear, the date they shall bear, 
the period of time through which they shall be payable, and that any 
thereof may be redeemed in full, at the option of the city or town, on any 
interest payment date from and after ten (10) years from the date of 
issue ; and provide for the manner of the execution of the same. It shall 
provide that preference shall be given amortization bonds but shall fix 
the denomination of serial bonds in case it shall be found advantageous 
to issue bonds in that form, and shall adopt a form of notice of the sale 
of the bonds. 

The board may, in its discretion, provide that such bonds may be issued 
and sold in two (2) or more series or installments. 
History: En. Sec. 12, Oh. 160, L. 1931. 

CHAPTER 24 
MUNICIPAL BEVENTJE BOND ACT OP 1939 
Section 11-2404. Authorization of undertaking— form and contents of bonds. 

11-2404. Authorization of undertaking— form and contents of bonds. 
The acquisition, purchase, construction, reconstruction, improvement, bet- 
terment or extension of any undertaking may be authorized under this 
chapter, and bonds may be authorized to be issued under this chapter by 
resolution or resolutions of the governing body of the municipality, when 
authorized by a majority of the taxpayers voting upon such question at 
a special election noticed and conducted as provided in sections 11-2308 

61 



11-2404 ELECTION LAWS 

to 11-2310, inclusive, and said special election shall be held not later than 
the next municipal election held after the council or governing body of 
the municipality has by resolution or resolutions approved the acquisition, 
purchase, construction, reconstruction, improvement, betterment or ex- 
tension of any undertaking as in this chapter provided and ordered said 
special election; provided, that the issuance of refunding revenue bonds 
may be authorized by resolution or resolutions of the governing body of 
the municipality without an election. 

Said bonds shall bear interest at such rate or rates not exceeding six 
per centum (6%) per annum, payable semiannually, may be in one or 
more series, may bear such date or dates, may mature at such time or 
times not exceeding forty (40) years from their respective dates, may 
be payable in such place or places, may carry such registration privileges, 
may be subject to such terms of redemption, may be executed in such 
manner, may contain such terms, covenants and conditions, and may be 
in such form, either coupon or registered, as such resolution or subsequent 
resolutions may provide. Said bonds shall be sold at not less than par. 
Said bonds may be sold at private sale to the United States of America 
or any agency, instrumentality or corporation thereof. Unless sold to the 
United States of America or agency, instrumentality or corporation thereof, 
said bonds shall be sold at public sale after notice of such sale published 
once at least five (5) days prior to such sale in a newspaper circulating in 
the municipality and in a financial newspaper published in the city of New 
York, New York, or the city of Chicago, Illinois, or the city of San Fran- 
cisco, California, except that, in the event the bond issue is in an amount of 
less than one hundred fifty thousand dollars ($150,000), the bond issue shall 
be advertised at least five (5) days prior to such sale in daily newspapers 
circulating in Montana cities of 10,000 population or over, in lieu of ad- 
vertising in a financial newspaper in New York, Chicago, or San Francisco, 
and also in a newspaper as specified in section 16-1201 if that newspaper 
is different from the daily newspapers circulating in Montana cities of 
10,000 population or over. Pending the preparation of the definitive bonds, 
interim receipts or certificates in such form and with such provisions as the 
governing body may determine may be issued to the purchaser or purchasers 
of bonds sold pursuant to this chapter. Said bonds and interim receipts or 
certificates shall be fully negotiable, as provided by the Uniform Commercial 
Code — Investment Securities. 

History: En. Sec. 4, Ch. 126, L. 1939; Compiler's Notes 

amd. Sec. 2, Ch. 145, L. 1951; amd. Sec. Section 16-1201, referred to in the sec- 

2, Ch. 38, Ii. 1957; amd. Sec. 1, Ch. 52, oj^j paragraph of this section, has been 

Ii. 1963; amd. Sec. 11-106, Ch, 264, L. repealed. For similar provisions in cur- 

1963. rent law, see sec. 16-1230. 

CHAPTER 25 
ABATEMENT OP SMOKE NUISANCE 

Section 11-2504. Bonds. 

11-2505. Election. 

11-2506. Notice of election. 

11-E511. Proviaions concerning election. 

62 



CITIES AND TOWNS 11-2506 

11-2504. (5292) Bonds. For the purpose of raising moneys to meet the 
payments under the terms and conditions of said contract, and other neces- 
sary and proper expenses in and about the same, and the approval or dis- 
approval thereof, it shall be the duty of the board of county commissioners, 
if the petition be presented to it within thirty days thereafter, to ascertain 
the existing indebtedness of the county in the aggregate, and within sixty 
days after ascertaining the same to submit to the electors of such county 
the proposition to approve or disapprove the said contract, and the issuance 
of bonds necessary to carry out the same, which shall not exceed five per 
centum of the value of the taxable property therein, inclusive of the exist- 
ing indebtedness thereof, to be ascertained by the last assessment for state 
and county taxes previous to the issuance of said bonds and incurring said 
indebtedness; and if said petition be presented to the council of any in- 
corporated city or town, then within thirty days thereafter they shall 
ascertain the aggregate indebtedness of such city or town, and, within 
sixty days after ascertaining the same, submit to the electors of such city 
or town the proposition to approve or disapprove said contract, and the 
issuance of bonds necessary to carry out the same, which shall not exceed 
three per centum of the value of the taxable property therein, inclusive of 
the existing indebtedness thereof, to be ascertained in the manner herein- 
before provided, and if disapproved, the expenses of such election shall be 
paid out of the general fund of such county, city, or town, as the case may 
be. 

History: Bn. Sec. 4, p. 143, L. 189d; 8433, Rev. 0. 1907; re-en. Sec. 6292, B. C. 
re-en. Sec. 4834, Pol. C. 1895; re-eii. Sec. M. 1921. 

11-2505. (5293) Election. The vote upon such proposition shall be had 

at an election for that purpose to be held, conducted, counted, and results 

ascertained and determined in the manner and by the same officers provided 

by law for general elections, except as otherwise herein provided, and the 

proposition to be submitted shall be upon printed tickets or ballots, upon 

each of which shall be printed the following : "For the contract and bonds," 

"Against the contract and bonds," the former above the latter, and the 

elector shall indicate his vote by a cross opposite the one or the other for 

which he votes; and if it appears from the result of such election that a 

majority of the votes cast were "For the contract and bonds," then said 

contract shall be in full force and effect, and the said bonds shall be issued 

and disposed of in the manner hereinafter provided. If it shall appear from 

the result of such election that there was a tie, or a majority of said votes 

were cast "Against the contract and bonds," then the said contract and 

bond given for its fulfilment shall be null and void and of no effect, and 

said bonds and none thereof shall be issued. 

History: En. Sec. 6, p. 144, L. 1893; 3434, Rev. C. 1907; re-en. Sec. 5293, R. 0. 
re-en. Sec. 4835, FoL C. 1895; re-en. Sec. M. 1921. 

11-2506. (5294) Notice of election. The board of county commissioners 
of the county in which such election is to be held, or the council of the incor-. 
porated city or town, as the case may be, shall give notice of such election, 
stating the objects thereof, the time and place of holding the same, such 

63 



11-2511 ELECTION LAWS 

conditions of the contract as in their judgment are proper and necessary 
to enatle the electors to vote intelligently upon the proposition submitted 
to them, the amount of bonds proposed to be issued, when payable, and 
the interest they are to bear, with a description of the tickets or ballots 
to be used, in some newspaper printed and published and circulated in the 
county, or city, or town, as the case may be, in which such election shall be 
held, at least three times a week for at least six consecutive weeks next 
preceding such election, and if no newspaper be printed, published, and cir- 
culated therein, then in some newspaper printed and published in some 
county nearest thereto. 

History: En. Sec. 6, p. 144, L. 1893; 3435, R©v. C. 1907; re-en. Sec. 6294, R. C. 
re-en. Sec. 4836, Pol. O. 1895; re-€n. Sec. M. 1921. 

11-2511. (5299) Provisions concerning election. No registration under 
the election laws of this state shall be required for the purposes of the elec- 
tion herein provided for, and the registration had at the last election pre- 
ceding the same shall govern and control as if especially had and done for 
the purposes of the election to be held under this act. 

History: En. Sec. 11, p. 146, L. 1893; 3440, Eev. C. 1907; re-en. Sec. 6299, E. 0. 
re-en. Sec. 4841, PoL C. 1895; re-en. Sec. M. 1921. 

CHAPTER 31 
COMMISSION FOEM OF GOVERNMENT 

Section 11-3101. Any city may reorganize under commission form. 

11-3102. Submission to electors — petition and order of election. 

11-3103. Proclamation of election. 

11-3104. Ballots— form. 

11-3105. Certificate of result of election — no further election for two years. 

11-3106. Calling of election to elect city officers. 

11-3107. Manner of conducting election — canvassing votes. 

11-3108. Laws governing city — ordinances — territorial limits and property. 

11-3109. Number of councilmen — vacancies, how filled. 

11-3110. Beginning of term of office. 

11-3111. Tenure of office — expiration of term. 

11-3112. Nomination of candidates — primary election. 

11-3113. Receipt of majority of all votes cast at primary election elects candi- 
date and dispenses with general election, when. 

11-3114. Penalty for working for candidate. 

11-3115. Fees for filing for office. 

11-3116. Bribery — false answers concerning qualifications of elector — voting by 
disqualified person. 

11-3126. Ordinances and franchises — how adopted or granted. 

11-3127. Officers not to be interested in contracts, receive passes, or do elec- 
tioneering. 

11-3128. Civil service. 

11-3132. Recall of elective officers. 

11-3133. Ordinance — how submitted — petition and election. 

11-3134. Taking effect and suspension of ordinances. 

11-3135. Abandonment of commission form. 

11-3136. Requirements of petitions. 

11-3137. Effect of act upon existing laws. 

11-3101. (5366) Any city may reorganize under commission form. 

Any city may abandon its organization and reorganize under the provisions 

of this act, by proceeding as hereinafter provided. 

History: En. Sec. 1, Ch. 57, L. 1»11; 
re-en. S«:. 5366, B. 0. M. 1921. 

64 



CITIES AND TOWNS 11-3105 

11-3102. (5367) Submission to electors — petition and order of election. 

Upon a petition being filed with the city council, signed by not less than 
twenty-five per cent of the qualified electors of such city registered for the 
last preceding general city election, praying that the question of reorganiza- 
tion under this act be submitted to the qualified electors of such city, said 
city council shall thereupon, and within thirty days thereafter, order a 
special election to be held, at which election the question of reorganization 
of such city, under the provisions of this act, shall be submitted to the quali- 
fied electors of such city. 

Such order of the city council shall specify therein the time when such 
election shall be held, which must be within ninety days from the date of 
the filing of such petition. 

History: En. 8«c. 2, Oh. 67, L. 1911; 
amd. Sec. 1, Ch. 2, L. 1915; re-en. Sec. 
5367, R. 0. M. 1921. 

11-3103. (5368) Proclamation of election. Upon the city council order- 
ing such special election to be held, the mayor of such city shall issue a 
proclamation setting forth the purpose for which such special election is 
called, and the date of holding such special election, which proclamation 
shall be published for ten consecutive days in each daily newspaper pub- 
lished in said city, if there be such, otherwise once a week for two consecu- 
tive weeks in each weekly newspaper published therein, and such proclama- 
tion shall also be posted in at least five public places within such city. 

History: En. Sec. 3, Ob. 57, L. 1911; 
re-en. Sec. 5368, B. O. M. 1921. 

11-3104. (5369) Ballots — form. At such election the ballots to be used 
shall be printed upon plain, white paper, and shall be headed "Special elec- 
tion for the purpose of submitting to the qualified electors of the city of 

the question of reorganization of the city of 

under chapter (name of chapter containing this 

act) of the acts of the twelfth legislative assembly," and shall be substan- 
tially in the following form :. 

For reorganization of the city of under chapter 

(name of chapter containing this act) of the act of the twelfth legislative 
assembly. 

Against reorganization of the city of under chapter 

(name of chapter containing this act) of the acts of the twelfth legislative 
assembly. 

Such election shall be conducted and vote canvassed and result declared 

in the same manner as provided by law in respect to other city elections. 

History: En. Sec. 4, Oil. 57, L. 19U; 
re-en. Sec. 5369, E. O. M. 1921. 

11-3105. (5370) Certificate of result of election— no further election for 
two years. If such proposition is adopted, the mayor shall transmit to the 
governor, to the secretary of state, and to the county clerk and recorder, 
each, a certificate stating that such proposition was adopted. 

65 



11-3106 ELECTION LAWS 



If such proposition shall not be adopted at such special election, such 

proposition shall not again be submitted to the electors of such city within 

a period of two years thereafter. 

History: En. Sec. 6, Oh. 67, L. 1911; 
re-en. S«c. 6370, B. 0. M. 1921. 

11-3106. (5371) Calling of election to elect city ofllcerfl. If a majority 
of the votes cast at such election shall be in favor of such proposition, the 
city council must, at its first regular meeting held thereafter, order a special 
election to be held for the purpose of electing a mayor and the number of 
councilmen to which such city shall be entitled, which order shall specify 
the time of holding such election, which must be within ninety days after 
the making of said order, and the mayor shall thereupon issue a proclama- 
tion setting forth the purposes for which such special election is called and 
the day of holding the same, which proclamation shall be published for ten 
successive days in each daily newspaper published in such city, if there 
be such, otherwise once a week for two consecutive weeks in each weekly 
newspaper published therein, and a copy thereof shall also be posted at each 
voting place within said city, and also in at least ten of the most public 
places in said city. 

History: En. Bee. 6, Oh. 67, L. 1911; 
amt. Sec. 2, Oh. 2, L. 1916; re-en. Sec. 
6371, K. 0. M. 1921. 

11-3107. (5372) Manner of conducting election — canvassing vot«s. 

Such election shall be conducted, the vote canvassed, and result declared in 

the same manner as provided by law in respect to other city elections. 

History: En. Sec. 7, Oh. 67, L. 1911; 
re-en. Sec. 6372, E. 0. M. 1921. 

11-3108. (5373) Laws governing city — ordinances — ^territorial limita 
and property. All laws governing cities of the first, second, and third 
classes, and not inconsistent with the provisions of this act, shall apply to 
and govern cities organized under this act. All by-laws, ordinances, and 
resolutions lawfully passed and in force in any such city under its former 
organization shall remain in force until altered or repealed by the council 
elected under the provisions of this act. The territorial limits of such city 
shall remain the same as under the former organization, and all rights and 
property of every description, which were vested in any such city under its 
former organization, shall vest in the same under the organization herein 
contemplated, and no right or liability either in favor of or against it, 
existing at the time, and no suit or prosecution of any kind shall be af- 
fected by such change, unless otherwise provided for in this act. 

History: En. Sec. 8, Oh, 57, L. 1911; 
re-en. Sec. 5373, E. 0. M. 1921. 

11-3109. (5374) Number of councilmen — vacancies, how filled. In 
every city of the third class, there shall be a mayor and two councilmen ; in 
every city of the second class, a mayor and two councilmen ; in every city 
of the first class having a population of less than twenty-five thousand 
(25,000), a mayor and two (2) councilmen, and in every city of the first 
class having a population of twenty-five thousand (25,000), or more, a 

66 



CITIES AND TOWNS 11-3111 



mayor and four (4) councilmen, and the mayor and all councilmen shall be 
elected at large. 

Vacancies in the ofifice of mayor or councilmen shall be filled by appoint- 
ment made by a majority vote of the remaining members of the council, 
and if, in filling such vacancy, a tie vote should occur, then the person to fill 
said vacancy shall be determined by lot in such manner as said council may 
provide. A person appointed to fill any such vacancy shall hold his office 
until the next general election and until his successor is elected and quali- 
fied. A person elected to fill a vacancy shall hold office until the expiration 
of the term for which the person he succeeds was elected. 

History: En. Sec. 9, Cli. 67, L. 1911; 
re-«n. Sec. 6370, B. C. M. 1921; amd. Sec. 
1, Oh. 18, L. 1946. 

11-3110. (5375) Begfinning of term of oflBce. The mayor and council- 
men elected at such special election shall qualify, and their terms of office 
shall begin on the first Monday after their election, and the terms of office of 
the mayor and councilmen or aldermen in such city in office at the beginning 
of the term of office of the councilmen first elected under the provisions 
of this act shall then cease and determine, and the terms of office of 'all 
their appointed officers in force in such city, except as hereinafter pro- 
vided, shall cease and determine as soon as the council shall by resolution 
declare. 

History: En. Sec. 10, Oh. 67, L. 1911; 
re-en. Sec. 6376, B. 0. M. 1921. 

11-3111. (5376) Tenure of office — expiration of term. The terms of 
office of the mayor and all councilmen elected at such special election shall 
expire on the first Monday in May of the year following their election. At 
the first regular city election held in the year in which the terms of office 
of the mayor and councilmen elected at such special election shall expire, a 
mayor and two councilmen shall be elected in cities having a population 
of less than twenty-five thousand. The mayor elected at such first general 
city election shall hold office for two years; one of the councilmen elected 
at such first city election shall hold office for one year; and the other 
of such councilmen elected at such first general city election shall hold 
office for two years, beginning with the first Monday in May of that year; 
a mayor and four councilmen shall be elected in cities having a population 
of twenty-five thousand or more ; and the mayor elected at such first 
general city election shall hold office for two years. Two of the council- 
men elected at such first general city election shall hold office for one year, 
and the other two of the councilmen elected at such first general city elec- 
tion shall hold office for two years, beginning with the first Monday in 
May of that year ; and the terms of office of the mayor and all councilmen 
thereafter elected shall be two years. 

The councilmen elected at the first general city election shall decide 
by lot in such manner as they may select, which thereof shall hold the office 
of councilman the term of which expires one year thereafter, and which 

67 



11-3112 ELECTION LAWS 



thereof shall hold the office of councilman, the term of which expires two 

years thereafter. 

History: En. Sec. 11, Oh. 57, L. 1911; 
re-en. Sec. 6376, B. C. M. 1921. 

11-3112. (5377) Nomination of candidates — primary election. (1) 
Candidates to be voted for at all general municipal elections at which a 
mayor or councilmen are to be elected under the provisions of this act shall 
be nominated by a primary election, and no other names shall be placed 
upon the general ballot except those selected in the manner hereinafter pre- 
scribed. The primary election for such nominations shall be held on the 
second Monday preceding the municipal election. The judges of election 
appointed for the municipal election shall be the judges of the primary 
election, and it shall be held at the same places, as far as possible, and the 
polls shall be opened and closed at the same hours, with the same clerks as 
are required for said general municipal election. 

(2) Any qualified elector of said city who is the owner of any real 
estate situated therein, desiring to become a candidate for mayor or coun- 
cilman, shall, at least ten days prior to said primary election, file with the 
city clerk a statement of such candidacy in substantially the following 
form: 

State of Montana, ] 

}-ss. 
County of J 

I, , being first duly 

sworn, say that I reside at street, 

city of , county of 

state of Montana; that I am a qualified voter therein; that I am a candi- 
date for nomination to the office^ of (mayor or councilman) to be voted 

upon at the primary election to be held on the Monday of , 

19 , and I hereby request that my name be printed upon the official 

primary ballot for nomination by such primary election for such office. 

(Signed) 

Subscribed and sworn to (or affirmed) before me by 

on this day of , 19 

(Signed) 

and shall at the same time file therewith the petition of at least twenty-five 
qualified voters requesting such candidacy. Each petition shall be verified 
by one or more persons as to qualifications and residence, with street num- 
ber, of each of the persons so signing the said petition, and the said petition 
shall be in substantially the following form : 

(3) Petition accompanying nominating statement. 

The undersigned, duly qualified electors of the city of 

, and residing at the places set opposite our respective 

names hereto, do hereby request that the name of (name of candidate) be 
placed in the ballot as a candidate for nomination for (name of office) at 
the primary election to be held in such city on the Monday of 

68 



CITIES AND TOWNS 11-3112 

, 19 We further state that we know him to be a 

qualified elector of said city and a man of {3:ood moral character, and 
qualified, in our judgment, for the duties of such office. 

Names of qualifying electors. Number. Street. 



(4) Each signer of a nomination paper shall sign but one such nomina- 
tion paper for the same office, except where more than one officer is to be 
elected to the same office, in which case he may sign as many nomination 
papers as there are officers to be elected, and only one candidate shall be 
petitioned for or nominated in the same nomination paper. 

(5) Immediately upon the expiration of the time of filing the state- 
ments and petitions for candidates, the said city clerk shall cause to be pub- 
lished for three consecutive days in all the daily newspapers published in 
the city, in proper form, the names of the persons as they are to appear 
upon the primary ballots, and if there be no daily newspaper, then in two 
issues of any other newspapers that may be published in said city ; and 
the said clerk shall thereupon cause the primary ballots to be printed, 
authenticated with a facsimile of his signature. Upon the said ballot the 
names of the candidates for mayor, arranged alphabetically, shall first be 
placed, with a square at the left of each name, and immediately below the 
words, "Vote for one." Following these names, likewise arranged in alpha- 
betical order, shall appear the names of the candidates for councilmen, with 
a square at the left of each name, and below the names of such candidates 
shall appear the words, "Vote for (giving the number of persons to be 
voted for)." The ballot shall be printed upon plain substantial, white paper, 
and shall be headed : 

Candidates for nomination for mayor and councilmen of the city of 

at the 

Primary Election ; 
but shall have no party designation or mark whatever. The ballots shall 
be in substantially the following form: (Place a cross in the square preced- 
ing the names of the parties you favor as candidates for the respective 
positions). 

OflScial Primary Ballot. 
Candidates for nomination for mayor and councilmen of the city of 

at the 

Primary Election. 

For Mayor. 

(Name of candidate.) 

(Vote for one.) 

For councilman. 

(Name of candidate.) 

(Vote for (Giving number to be voted for). 

Official ballot attest: 

(Signature) 

City Clerk. 

69 



11-3112 ELECTION LAWS 

(6) Having caused said ballots to be printed, the said city clerk shall 
cause to be delivered at each polling place a number of said ballots equal 
to twice the number of such voters registered in such polling place at the 
last general municipal election. The persons who are qualified to vote 
at the general election shall be qualified to vote at such primary election 
and any person offering to vote may be orally challenged by any elector 
of the city upon any or all of the grounds set forth and specified in section 
23-1220 of these codes, and the provisions of sections 23-1221 to 23-1228, 
inclusive, of these codes shall apply to all challenges made at such election. 
Judges of election shall immediately upon the closing of the polls count 
the ballots and ascertain the number of votes cast in such precinct for each 
of the candidates for mayor and councilman, and make return thereof 
to the city clerk upon the proper blanks to be furnished by the city clerk 
within six hours of the closing of the polls. On the day following the 
primary election the city clerk shall canvass said returns so received from 
all the polling precincts, and shall make and publish in all the newspapers 
in said city, at least once, the result thereof. Said canvass by the city 
clerk shall be publicly made. 

(7) If a mayor is to be elected at such municipal election, the two per- 
sons reciving the highest number of votes shall be the candidates for mayor. 
If one councilman is to be elected at such municipal election, the two per- 
sons receiving the highest number of votes shall be the candidates for coun- 
cilmen. If two councilmen are to be elected at such general municipal elec- 
tion, the four persons receiving the highest number of votes shall be the 
candidates for councilmen, and if three councilmen are to be elected at such 
municipal election, the six persons receiving the highest number of votes 
shall be the candidates for councilmen, and if four councilmen are to be 
elected at such general municipal election, the eight persons receiving the 
highest number of votes shall be candidates for councilmen at such general 
election, and these shall be the only candidates for mayor and councilmen 
at such general election. 

(8) All electors of cities under this act, who, by ordinances governing 
cities incorporated under the general municipal incorporation law, or by 
charter, would be entitled to vote for the election of oflScers at any general 
municipal election in such cities, shall be qualified to vote at all elections 
under this act; and the ballots to be used at such general municipal elec- 
tion shall be in the same general form as for such primary elections so far 
as applicable, and in all elections in such cities the election precincts, 
voting places, method of conducting the elections, canvassing of votes, and 
announcing the results shall be the same as by law provided for the elec- 
tion of officers in such cities so far as the same are applicable and not in- 
consistent with the provisions of this act. 

(9) Every person who has been declared elected mayor or councilman, 
shall, within ten days thereafter, take and file with the city clerk his oath of 
oflBce in the form and manner provided by law, and shall execute and give 
sufficient bond to the municipal corporation in the sum of ten thousand 
dollars, conditioned for the faithful performance of the duties of his office, 
which bond shall be approved by the judge of the district court of the 

70 



CITIES AND TOWNS 11-3116 

county in which such city is situated, and filed with the clerk and recorder 

of the county in which such city is situated. 

History: En. Sec. 12, Oh. 57, L. 1911; the bonds of mayor and councilmen at 

re-en. Sec. 6377, B. C. M. 1921. $10,000.00 is superseded by Sec. 1, Ch. 9, 

NOTE.— Par, 9 of this section fixing Laws 1943 (11-3124) fixing them at $5,000. 

11-3113. (5377.1) Receipt of majority of all votes cast at primary 
election elects candidate and dispenses with general election, when. 

Whenever, in any city operating under a commission form of government, 
at a primary election held in accordance with section 11-3112, a councilman 
or councilmen or a mayor and councilman or councilmen are to be elected, 
one person or candidate for any office to be filled shall receive a majority of 
all votes cast for such office, then such person or persons shall be deemed 
duly elected to the respective office or offices for which he or they receive 
such majority vote. If at such primary election more than two (2) persons 
are candidates for the same office and no one person receives a majority of 
all votes cast for such office then the names of the two persons receiving 
the highest number of votes shall be placed upon the general municipal 
election ballot under the provisions of section 11-3112. If, in any year, all 
officers to be elected are thus elected by a majority vote at such primary 
election, then, in that event, no general municipal election shall be held in 
said city for said year. 
History: En. Sec. 1, Oh. IS, L. 1933. 

11-3114. (5378) Penalty for working for candidate. Any person who 
shall agree to perform any services in the interest of any candidate for any 
office provided in this act, in consideration of any money or other valuable 
thing for such services performed in the interest of any candidate, shall 
be punished by a fine not exceeding three hundred dollars or be impris- 
oned in the county jail not exceeding thirty days. 

History: En. Sec. 13, Ch. 57, L. 1911; 
re-en. Sec. 5378, R. C. M. 1921. 

11-3115. (5378.1) Fees for filing for office. Every candidate for mayor 
and every candidate for councilman in cities operating under the commis- 
sion form of government shall, at the time of filing his nominating petition 
pay the following fees to the city clerk as filing fee : A candidate for mayor 
shall pay twenty dollars ($20.00), and a candidate for councilman shall pay 
fifteen dollars ($15.00). 
History: En. Sec. 1, Oh. 137, L. 1933. 

11-3116. (5379) Bribery — false answers concerning qualiflcations of 
elector — voting by disqualified person. Any person offering to give a bribe, 
either in money or other consideration, to any elector, for the purpose of 
influencing his vote at any election provided in this act, or any elector en- 
titled to vote at any such election receiving and accepting such bribe or 
other consideration; any person who agrees, by promise or written state- 
ment, that he will do, or will not do, any particular act or acts, for the 
purpose of influencing the vote of any elector or electors at any election 
provided in this act ; any person making false answer to any of the pro- 
visions of this act relative to his qualifications to vote at such election ; any 

71 



11-3126 ELECTION LAWS 

person wilfully voting or offering to vote at such election who has not been 
a resident of this state for one year next preceding said election, or who is 
not twenty-one years of age, or is not a citizen of the United States, or 
knowing himself not to be a qualified elector of such precinct where he of- 
fers to vote ; any person knowingly procuring, aiding, or abetting any vio- 
lation hereof, shall be deemed guilty of a misdemeanor, and, upon convic- 
tion, shall be fined in a sum not less than one hundred dollars nor more than 
five hundred dollars; and be imprisoned in the county jail not less than 
ten nor more than ninety days. 

History: En. Sec. 14, Oh. 57, L. 1911; 
re-eai. Sec. 5379, E. C. M. 1921. 

11-3126. (5388) Ordinances and franchises— how adopted or granted. 
Every ordinance or resolution appropriating money, or ordering any street 
improvement or sewer, or making or authorizing the making of any con- 
tract, or granting any franchise or right to occupy or use the streets, 
highways, bridges, or public places in the city for any purpose, shall be 
complete in the form in which it is finally passed, and remain on file 
with the city clerk for public inspection at least one week before the 
final passage or adoption thereof. No franchise or right to occupy or use 
the streets, highways, bridges, or public places in any such city shall be 
granted, renewed, or extended, except by ordinance, and every franchise 
or grant for interurban or street railways, gas, or water-works, electric 
light, or power plant, heating plant, telegraph or telephone systems, or 
other public service utilities, or renewal or extension of any such franchise 
or grant within such city, must be authorized or approved by a majority 
of the electors voting thereon at a general or special election, as provided 
in sections 11-1207, 11-1208 and 11-1209 of this code. 

History: En. Sec. 23, Oh. 57, L. 1911; 
re-en. Sec. 5388, £. C. M. 1921. 

11-3127. (5389) OflScers not to be interested in coaitracts, receive 
passes, or do electioneering. No officer or employee elected or appointed in 
any such city shall be interested, directly or indirectly, in any contract or 
job for work or materials, or the profits thereof, or materials, supplies, or 
services to be furnished or performed for the city; and no such officer or 
employee shall be interested, directly or indirectly, in any contract or job 
for work or materials, or the profits thereof, or services to be furnished or 
performed for any person, firm, or corporation operating interurban rail- 
way, street railway, gas-works, water-works, electric light or power plant, 
heating plant, telegraph line, telephone exchange, or other public utility 
within the territorial limits of said city. No such officer or employee shall 
accept or receive, directly or indirectly, from any person, firm, or corpora- 
tion operating within the territorial limits of said city, any interurban rail- 
way, street railway, gas-works, water-works, electric light or power plant, 
heating plant, telegraph line, or telephone exchange, or other business using 
or operating under a public franchise, any frank, free pass, free ticket, or 
free service, or accept or receive, directly or indirectly, from any such per- 
son, firm, or corporation, any other service upon terms more favorable than 
is granted to the public generally. Any violation of the provisions of this 

72 



CITIES AND TOWNS 11-3128 

section shall be a misdemeanor, and every such contract and agreement 
shall be void. 

Such prohibition of free transportation shall not apply to policemen or 
firemen in uniform; nor shall any free service to the city officials here- 
tofore provided by any franchise or ordinance be affected by this section. 
Any officer or employee of such city who, by solicitation or otherwise, shall 
exert his influence, directly or indirectly, to influence other officers or 
employees of such city to adopt his political views, or to favor any par- 
ticular person or candidate for office, or who shall in any manner con- 
tribute money, labor, or other valuable thing to any person for election 
purposes, shall be guilty of a misdemeanor, and, upon conviction, shall be 
punished by a fine not exceeding three hundred dollars, or by imprison- 
ment in the county jail not exceeding thirty days. 

History: En. Sec. 24, Ch, 57, L. 1911; 
re-«n. Sec. 5389, IL C. M. 1921. 

11-3128. (5390) Civil service. (1) Immediately after organizing, the 
council shall, by ordinance, appoint three civil service commissioners, who 
shall hold office, one until the first Monday in April in the second year, one 
until the first Monday in April of the fourth year, and one until the first 
Monday in April of the sixth year after his appointment. Each succeeding 
council shall, as soon as practicable after organizing, appoint one commis- 
sioner for six years, who shall take the place of a commissioner whose term 
of office expires. The chairman of the commission for each biennial period 
shall be the member whose term first expires. No person while on the said 
commission shall hold or be a candidate for any office of public trust. Two 
of said members shall constitute a quorum to transact business. The com- 
missioners must be citizens of Montana and residents of the city for more 
than three years next preceding their appointment. 

(2) The council may remove any of said commissioners during their 
term of office for cause, a majority of councilmen voting in favor of such 
removal, and shall fill any vacancy that shall occur in said commission 
for the unexpired term. The city council shall provide suitable rooms in 
which the said civil service commission shall hold its meetings; it shall 
have a clerk, who shall keep a record of all its meetings, such city to 
supply the said commission with all necessary equipment to properly attend 
to such business, 

(3) Before entering upon the duties of his office, each of said commis- 
sioners shall take and subscribe an oath, which shall be filed and kept in the 
office of the city clerk, to support the constitution of the United States 
and of the state of Montana, and to obey the laws, and to aid to secure 
and maintain an honest and efficient force, free from partisan distinction 
or control, and to perform the duties of his office to the best of his ability. 

(4) Said commission shall, on the first Monday of April and October of 
each year, or oftener if it shall be deemed necessary, under such rules 
and regulations as may be prescribed by the council, hold examinations 
for the purpose of determining the qualifications of applicants for posi- 
tions, which examination shall be practical, and shall fairly test the 

73 



11-3128 ELECTION LAWS 



fitness of the persons examined to discharge the duties of the position to 
which they seek to be appointed. Such commission shall, as soon as 
possible after such examination, certify to the council double the num- 
ber of persons necessary to fill vacancies, who, according to the records, 
have the highest standing for the position they seek to fill as a result of 
such examination, and all vacancies which occur that come under the civil 
service, prior to the date of the next regular examination, shall be filled 
from said list so certified; provided, however, that should the list for any 
cause be reduced to less than three for any division, then the council or 
the head of the proper department may temporarily fill a vacancy, but 
not to exceed thirty days. 

(5) All persons subject to such civil service examination shall be sub- 
ject to removal from office or employment by the council for misconduct or 
failure to perform their duties under such rules and regulations as it may 
adopt, and the chief of police, chief of the fire department, or any super- 
intendent or foreman in charge of municipal work, may peremptorily sus- 
pend or discharge any subordinate then under his direction for neglect of 
duty or disobedience of his orders, but shall, within twenty-four hours 
thereafter, report such suspension or discharge, and the reason therefor, to 
the superintendent of his department, who shall thereupon affirm or revoke 
such discharge or suspension, according to the facts. Such employee (or 
the officer discharging or suspending him) may, within five days of such 
ruling, appeal therefrom to the council, which shall fully hear and deter- 
mine the matter. 

(6) The council shall have the power to enforce the attendance of wit- 
nesses, the production of books and papers, and power to administer 
oaths in the same manner and with like effect, and under the same pen- 
alties, as in the case of magistrates exercising criminal or civil jurisdiction 
under the statutes of Montana. 

(7) Said commissioners shall make an annual report to the council, and 
it may require a special report from said commissioners at any time ; and 
said council may prescribe such rules and regulations for the proper con- 
duct of the business of the said commission as shall be found expedient 
and advisable, including restrictions on appointment, promotions, removals 
for cause, roster of employees, certificates of records to the auditors, and 
restrictions on payment to persons improperly employed. 

(8) The council of such city shall have power to pass ordinances im- 
posing suitable penalties for the punishment of persons violating any of the 
provisions of this act relating to the civil service commission. 

(9) The provisions of this section shall apply to all appointive officers 
and employees of such city, except those especially named in section 11-3121 
of this code, commissioners of any kind, laborers whose occupation requires 
no special skill or fitness, election officials, and mayor's secretary and as- 
sistant attorney, where such officers are appointed. 

(10) All officers and employees in any said city shall be elected or ap- 
pointed with reference to their qualifications and fitness, and for the good 
of the public service, and without reference to their political faith or party 
affiliations. 

74 



CITIES AND TOWNS 11-3132 

(11) It shall be unlawful for any candidate for office in any such city, 
directly or indirectly, to give or promise any person or persons any office, 
position, employment, benefit, or anything of value for the purpose of in- 
fluencing or obtaining the political support, aid, or vote of any person or 
persons. 

(12) Every elective officer in any such city shall, within thirty days 
after qualifying, file with the city clerk, and publish at least once in the 
daily newspaper of general circulation, or weekly, if there be no daily news- 
paper published, his sworn statement of all his election and campaign ex- 
penses, and by whom such funds were contributed. 

Any violation of the provisions of this section shall be a misdemeanor, 

and give ground for the removal from office. 

History: En, Sec. 25, Ch. 57, L. 1911; 
re-en. Sec. 5390, B. 0. M. 1921. 

11-3132. (5394) Recall of elective officers. (1) The holder of any 
elective office may be removed at any time by the electors qualified to vote 
for a successor of such incumbent. The procedure to effect the removal of 
an incumbent of an elective office shall be as follows : A petition signed by 
twenty-five per cent of all qualified electors registered for the last preced- 
ing general municipal election, demanding an election of a successor of 
the person sought to be removed, shall be filed with the city clerk, which 
petition shall contain a general statement of the grounds for which the 
removal is sought. The signatures to the petition need not be appended 
to one paper, but each signer shall add to his signature his place of 
residence, giving the street and number. One of the signers of such paper 
shall make oath before an officer competent to administer oaths that the 
statements therein are true as he believes, and that each signature to the 
paper appended is the genuine signature of the person whose name it pur- 
ports to be. 

(2) Within ten days from the date of filing such petition the city clerk 
shall examine, and from the voters' register ascertain whether or not sai^ 
petition is signed by the requisite number of qualified electors, and, if 
necessary, the council shall allow him extra help for that purpose ; and he 
shall attach to said petition his certificate, showing the result of said ex- 
amination. If, by the clerk's certificate, the petition is shown to be insuffi- 
cient, it may be amended within ten days from the date of said certificate. 
The clerk shall, within ten days after such amendment, make like ex- 
amination of the amended petition, and if his certificate shall show the same 
to be insufficient, it shall be returned to the person filing the same ; without 
prejudice, however, to the filing of a new petition to the same effect. If the 
petition shall be deemed to be sufficient, the clerk shall submit the same to 
the council without delay. If the petition shall be found to be sufficient, the 
council shall order and fix a date for holding said election, not less than 
seventy days nor more than eighty days from the date of the clerk's cer- 
tificate to the council that a sufficient petition is filed. 

(3) The council shall make, or cause to be made, publication of notice 
and all arrangements for holding such election, and the same shall be con- 

75 



11-3133 ELECTION LAWS 

ducted, returned, and the result thereof declared, in all respects as are 
other elections. 

(4) As far as applicable, except as otherwise herein provided, nomina- 
tions hereunder shall be made without the intervention of a primary elec- 
tion by filing with the clerk, at least ten days prior to said special election, a 
statement of candidacy accompanied by a petition signed by electors 
entitled to a vote at said special election, equal in number to at least ten 
per cent of the entire number of persons registered to vote at the last 
preceding general municipal election, which said statement of candidacy 
and petition shall be substantially in the form set out in section 11-3112 of 
this code, so far as the same is applicable, substituting the word "special" 
for the word "primary" in such statement and petition, and stating therein 
that such person is a candidate for election instead of nomination. 

(5) The ballot for such special election shall be in substantially the fol- 
lowing form: 

Official Ballot. 

Special election for the balance of the unexpired term of 

as for 

(Vote for one only.) 

(Name of candidates.) 

Name of present incumbent. 

Official ballot attest. 

(Signature) , 

City Clerk. 

(6) The successor of any officer so removed shall hold office during the 
unexpired term of his predecessor. Any person sought to be removed may 
be a candidate to succeed himself, and unless he requests otherwise in 
writing, the clerk shall place his name on the official ballot without nomi- 
nation. In any such removal election, the candidate receiving the highest 
number of votes shall be declared elected. At such election, if some other 
person than the incumbent receives the highest number of votes, the in- 
cumbent shall thereupon be deemed removed from the office upon the 
qualification of his successor. In case the party who receives the highest 
number of votes should fail to qualify within ten days after receiving 
notification of the election, the office shall be deemed vacant. If the in- 
cumbent receive the highest number of votes, he shall continue in office. 
The said method of removal shall be cumulative, and additional to the 
methods heretofore provided by law. 

History: En. Sec. 29, Ch. 57, L. 1911; 
amd. Sec. 3, Ch. 2, L. 1916; re-em. Sec. 
5394, B. C. M 1921. 

11-3133. (5395) Ordinance — how submitted — petition and election. 

Any proposed ordinance may be submitted to the council by petition signed 
by electors of the city equal in number to the percentage hereinafter re- 
quired. The signature, verification, inspection, certification, amendment, 
and submission of such petition shall be the same as provided for petition 
under the preceding section. If the petition accompanying the proposed 

76 



CITIES AND TOWNS 11-3134 

ordinance be si^ed by electors equal in number to twenty-five per centum 
of the entire number of persons registered to vote at the last preceding gen- 
eral election, and contains a request that the said ordinance be submitted to 
a vote of the people, if not passed by the council, such council shall either: 

(a) Pass each ordinance without alteration within twenty days after 
the attachment of the clerk's certificate to the accompanying petition; or, 

(b) Forthwith, after the clerk shall attach to the petition accompany- 
ing such ordinance his certificate of sufficiency, the council shall call a 
special election, unless a general municipal election is fixed by law within 
thirty days thereafter, and at such special or general municipal election, 
if one is so fixed, such ordinance shall be submitted to the vote of the 
electors of such city. 

But if the petition is signed by not less than ten nor more than twenty- 
five per centum of the electors, as above defined, then the council shall, 
within twenty days, pass said ordinance without change, or submit the 
same at the next general city election occurring after the clerk's certifi- 
cate of sufficiency is attached to said petition. 

The ballots used when voting upon said ordinance shall contain these 
words: "For the ordinance" (stating the nature of the proposed ordinance), 
and "Against the ordinance" (stating the nature of the proposed ordinance). 
If a majority of the qualified electors voting on the proposed ordinance shall 
vote in favor thereof, such ordinance shall thereupon become a valid and 
binding ordinance of the city; and any ordinance proposed by the petition 
of which shall be adopted by a vote of the people cannot be repealed or 
amended except by a vote of the people. 

Any number of proposed ordinances may be voted upon at the same 
election, in accordance with the provisions of this section; but there shall 
not be more than one special election in any period of six months for such 
purposes. 

The council may submit a proposition for the repeal of any such ordi- 
nance, or for amendments thereto, to be voted upon at any succeeding 
general city election; and should such proposition so submitted receive a 
majority of the votes cast thereon at such election, such ordinance shall 
thereby be repealed or amended accordingly. Whenever any ordinance or 
proposition is required by this act to be submitted to the voters of the city 
at any election, the city clerk shall cause such ordinance or proposition to 
be published once in each of the daily newspapers published in such city, 
and if there be none, then one time in each weekly newspaper published 
therein ; such publication to be not more than twenty nor less than five days 
before the submission of such proposition or ordinance to be voted on. 

History: En. Sec 30, Oh. 67, L. 1911; 
re-«n. Sec. 6396, B. 0. M. 1921. 

11-3134. (5396) Taking effect and suspension of ordinances. No ordi- 
nance passed by the council, except when otherwise required by the general 
laws of this state or the provisions of this act, except an ordinance for the 
immediate preservation of the public peace, health, or safety, which contains 
a statement of its urgency, and is passed by a two-thirds vote of the council, 

77 



11-3135 ELECTION LAWS 

shall go into effect before ten days from the time of its final passage ; and 
if, during said ten days, a petition signed by electors of the city equal 
in number to at least twenty-five per centum of the entire number of per- 
sons registered to vote at the last preceding general municipal election, pro- 
testing against the passage of such ordinance, be presented to the council, 
the same shall thereupon be suspended from going into operation, and it 
shall be the duty of the council to reconsider such ordinance; and if the 
same is not entirely repealed, the council shall submit the ordinance, as is 
provided by subdivision (b) of the preceding section, to the vote of the 
electors of the city, either at a general election or at a special municipal 
election to be called for that purpose ; and such ordinance shall not go into 
effect or become operative unless a majority of the qualified electors voting 
on the same shall vote in favor thereof. Said petition shall be in all re- 
spects in accordance with the provisions of the preceding section, except as 
to the percentage of signers, and be examined and certified to by the clerk 
in all respects as therein provided. 

History: En. Sac. 31, Oli. 57, L. 1911; 
re-en. Sec. 6S96, B. 0. li. 192L 

11-3135. (5397) Abandonment of commission form. Any city which 
shall have operated for more than one year under the provisions of this 
act may abandon such organization hereunder and accept the provisions 
of the general law of the state then applicable to cities of its population. 

Upon the petition of not less than ten per cent (10%) of the electors 
of such city registered for the last preceding general election, the following 
proposition shall be placed upon the ballot at the next regular city elec- 
tion, provided the petition be filed at least sixty (60) days prior to the 
date of such election: 

"Shall the city of (name of city) abandon its organization under 
chapter 57 of the acts of the twelfth legjislative assembly and become a city 
under the general law governing cities of like population; or if formerly 
organized under special charter shall resume said special charter?" 

If the majority of the votes cast at such election be in favor of such 
proposition, the officers elected at the next succeeding biennial election 
shall be those then prescribed by the general law of the state for cities 
of like population, and upon the qualification of such officers such city 
shall become a city under such general law of the state, but such change 
shall not in any manner or degree affect the property, rights, or liabilities 
of any nature of such city, but shall merely extend to each change in 
its form of government. 

The sufficiency of such petition shall be determined, the election ordered 
and conducted, and the results declared, generally as provided for by 
section 11-3132 of this code, insofar as the provisions thereof are appli- 
cable; or if now organized under special charter, may resume said special 
charter. Whenever the form of government of any city is determined by 
a vote of the people under the provision of this section, the same question 
shall not be submitted again for a period of two (2) years, and any 
ordinance adopted by a vote of the people shall not be repealed or the 
same question submitted for a period of two (2) years. 

78 



CITIES AND TOWNS 11-3137 



History: En. 8«c. 32, Oh. 57, L. 1911; 6397, R. 0. M. 1921; amd. Sec. 1, Ob. 105, 
amd. B«c. 1, Oh. 128, L. 1813; re-en. Sec. L. 1951. 

11-3136. (5398) Requirements of petitions. Petitions provided for in 

this act shall be signed by none but legal voters of the city. Each petition 

shall contain, in addition to the names of the petitioners, the street and 

house number in which the petitioner resides, his length of residence in 

the city. It shall also be accompanied by the affidavit of one or more 

legal voters of the city, stating that the signers thereof were, at the time 

of signing, legal voters of said city, and the number of signers at the 

time the affidavit was made. 

History: En. Sec. S3, Oh. 67, L. 1911; 
re-en. Sec. 5398, B. 0. M. 1921; amd. Bee. 
2, Oh. 106, L. IML 

11-3137. (5399) Effect of axjt upon existing laws. All acts and parts of 
acts, and all laws, not inconsistent with any of the provisions of this act, 
now in force or hereafter enacted relative to municipal corporations, are 
hereby continued in full force and effect, and shall be considered and con- 
strued as not repealed by this act, except insofar as the same may be in 
conflict or inconsistent with the provisions of this act. 

History: En. Sec. 34, Oh. 57, L. 1911; 
re-en. Sec. 5399, R. 0. M. 1921. 

CHAPTER 32 
COMMISSION-MANAGER FORM OF GOVERNMENT 

Section 11-3201. Any city may reorganize under commission-manager form. 

11-3202. Submission of question to electors — ^petition and order of election. 

11-3203. Proclamation of election. 

11-3204. Ballots — form. 

11-3205. Certificate of result of election — election not to be held within two 
years after failure to adopt. 

11-3206. Special election for electing commissioners. 

11-3207. Manner of conducting election — canvassing votes. 

11-3208. Laws governing city — ordinances — territorial limits and property. 

11-3209. Organization of communities or groups of communities as municipality 
— election proclamation— election of commissioners. 

11-3210. Powers of municipalities under commission-manager plan. 

11-3211. Form of government to be known as commission-manager plan — com- 
position of commission — powers. 

11-3212. Qualification of commissioners — tenure of office — expiration of terms. 

11-3213. Filling of vacancies in commission. 

11-3214. Qualifications of commissioners — holding other public office forbidden 
— interest in contracts not allowed — accepting gratuities forbidden. 

11-3215. Nomination of candidates — primary election. 

11-3216. Ballots — form, contents and distribution — qualification of electors — 
conduct of election. 

11-3217. Arrangement of names of candidates on ballot. 

11-3218. Date of holding regular elections — special elections. 

11-3218.1. Dispensing of general election. 

11-3219. Filing of election expenses of candidates — penalty for violations. 

11-3220. Recall of commissioners — petition for recall. 

11-3221. Issuance of petition papers. 

11-3222. Signatures and affidavit to petition papers. 

11-3223. Assembling and filing of petition papers. 

11-3224. Notification of officer — recall election. 

79 



11-3201 ELECTION LAWS 



11-3225. Ballots at recall election — requirements — nomination of candidates to 
fill vacancies. 

11-3226. Effect of majority vote for or against recall. 

11-3227. Limitation upon time of filing recall petition. 

11-3228. Working for candidate forbidden. 

11-3229. Bribery^ — false answers concerning qualifications of elector — voting by 
disqualified person. 

11-3230. Proposed ordinances — how submitted — requirements of petition to 
submit. 

11-3231. Signatures and affidavit to petitions. 

11-3232. Assembling and filing of petition papers — hearing upon proposed ordi- 
nances — submission to electors. 

11-3233. Submission of petition and proposed ordinance to clerk. 

11-3234. When proposed ordinance is to be submitted to electors. 

11-3235. Contents of ballot — when proposed ordinance becomes effective. 

11-3236. Bepealing ordinances — publication, amendment and repeal of initiated 
ordinances. 

11-3237. When ordinances of commission take effect — petition for repeal sus- 
pends effect unless law is complied with. 

11-3238. Beconsideration of ordinance — submission to electors — failure to ap- 
prove operates as repeal. 

11-3239. Contents and requirements of referendum petitions — ballots. 

11-3240. Other ordinances subject to referendum. 

11-3241. Highest affirmative vote prevails when referendum ordinances conflict 

11-3242. Emergency ordinances subject to referendum — rules applicable. 

11-3243. Ordinances providing for expenditures, bond issues, public improve- 
ments submitted to electors — preliminary steps prior to election — 
qualifications of electors. 

11-3244. Oath and bond of commissioners. 

11-3245. Designation of mayor — procedure in case of tie vote — vacancy in 
office of mayor — powers and duties of mayor. 

11-3246. Selection of successor to mayor in event of his recall — mayor when 
all commissioners are recalled. 

11-3247. Quorum of commissioners — recording votes and proceedings. 

11-3248. Compensation of commissioners and mayor. 

11-3249. Meetings of commission — unauthorized absence creates vacancy — 
meetings and minutes to be public — rules and order of business. 

11-3201. (5400) Any city may reorganize under commission-manager 
form. Any municipality may abandon its organization and reorganize un- 
der the provisions of this act, by proceeding as hereinafter provided. 

History: En. Sec. 1, Ch. 152, L. 1917; 
re-en. Sec. 5400, R. C. M. 1921. 

11-3202. (5401) Submission of question to electors — petition and order 
of election. Upon a petition being filed with the city or town council, 
signed by not less than twenty-five per cent of the qualified electors of such 
municipality registered for the last preceding general municipal election, 
praying that the question of reorganization under this act be submitted 
to the qualified electors of such municipality, said city or town council 
shall thereupon, and within thirty days thereafter, order a special election 
to be held, at which election the question of reorganization of such munici- 
pality under the provisions of this act shall be submitted to the qualified 
electors of such municipality. 

Such order of the city or town council shall specify therein the time 

when such election shall be held, which must be within ninety days from 

the date of filing of such petition. 

History: En. Sec. 2, Ch. 152, L. 1917; 
re-en. Sec. 5401, B. C. M. 1921. 

80 



CITIES AND TOWNS 11-3206 

11-3203. (5402) Proclamation of election. Upon the city or town coun- 
cil ordering such special election to be held, the mayor of such municipality 
shall issue a proclamation setting forth the purpose for which such special 
election is held, and the date of holding such special election, which procla- 
mation shall be published for ten consecutive days in each daily newspaper 
published in said municipality, if there be such, otherwise once a week for 
two consecutive weeks in each weekly newspaper published therein, and 
such proclamation shall also be posted in at least five public places within 
such municipality. 

History: En. Sec. 3, Ch. 152, L. 1917; 
re-en. Sec. 6402, B. 0. M. 1921. 

11-3204. (5403) BaJlots — form. At such election, the ballots to be used 
shall be printed on plain white paper, and shall be headed "Special election 
for the purpose of submitting to the qualified electors of (city, town) of 
(name of city or town) under chapter (name of chapter containing this act) 
of the acts of the fifteenth legislative assembly," and shall be substantially 
in the following form: 

For reorganization of the (city, town) of (name of city or town) 
under chapter (name of chapter containing this act) of the acts of the 
fifteenth legislative assembly. 

Against reorganization of the (city, town) of (name of city or town) 
under chapter (name of chapter containing this act) of the acts of the 
fifteenth legislative assembly. 

Such election shall be conducted, and vote canvassed and result de- 
clared in the same manner as provided by law in respect to other municipal 
elections. 

History: En. Sec. 4, Ch. 152, L. 1917; 
re-en. Sec. 5403, S. 0. M. 1921. 

11-3205. (5404) Certificate of result of election— election not to be 
held within two years after failure to adopt. If such proposition is adopted, 
the mayor shall transmit to the governor, to the secretary of state and to 
the county clerk and recorder, each a certificate stating that such proposi- 
tion was adopted. If such proposition shall not be adopted at such special 
election, such proposition shall not again be submitted to the electors of 
such municipality within a period of two years from the date of the last 
submission. 

History: En. Sec. 5, Oh. 152, L. 1917; 
re-en. Sec. 6404, S. C. M. 1921; amd. Sec. 
1, Ch. 31, L. 1923. 

11-3206. (5405) Special election for electin^r commissioners. If the 

majority of the votes cast at such election shall be in favor of such propo- 
sition, the city or town council must hold a meeting within one week there- 
after and at such meeting order a special election to be held for the purpose 
of electing the number of commissioners to which such municipality shall 
be entitled, which order shall specify the time of holding such election, 
which must be within ninety days after the making of such order, and the 
mayor shall thereupon issue a proclamation setting forth the purpose for 
which such special election is held and the day of holding the same, which 

81 



11-3207 ELECTION LAWS 

proclamation shall be published for ten successive days in each daily news- 
paper published in such municipality if there be such, otherwise for two 
successive weeks in each weekly newspaper published therein, and a copy 
thereof shall also be posted at each voting place within said municipality 
and also in five of the most public places in said municipality. 

History: ^n- S«c. 6, Oh. 162, L. 1917; 
r»-«n. S*c. 5405, B. 0. M. 1921; amd. Sec. 
2, Oh. 31, L. 1923. 

11-3207. (5406) Majmer of conducting election — canvassing votes. 

Such election shall be conducted, the vote canvassed, and the result declared 

in the same manner as provided by law in respect to other municipal 

elections. 

History: En. Sec. 7, Oh. 162, L. 1917; 
re-en. Sec. 5406, B. 0. M. 1921. 

11-3208. (5407) Laws governing city — ordinances — territorial limits 
and property. All laws governing municipalities of like population, and 
not inconsistent with the provisions of this act, shall apply to and govern 
municipalities organized under this act. All by-laws, ordinances, and reso- 
lutions lawfully passed and in force in any such municipality under its 
organization, not in conflict herewith, shall remain in force until altered or 
repealed by the commission under the provisions of this act. The terri- 
torial limits of such municipality shall remain the same as under the former 
organization, and all rights and property of every description which were 
vested in any such, municipality under its former organization shall vest in 
the same under the organization herein contemplated, and no right or 
liability either in favor of or against it, existing at the time, and no suit 
or prosecution of any kind, shall be affected by such change, unless otherwise 
provided for in this act. 

History: En. Sec. 8, Oh. 152, L. 1917; 
re-en. Sec. 5407, B. O. M. 1921. 

11-3209. (5408) Organization of communities or groups of communities 
as municipality — election proclamation — election of commissioners. When- 
ever the inhabitants of any community or group of communities in any 
county, whether separately incorporated in whole or in part, or unincor- 
porated, which are situated in such proximity or location with reference 
to each other as to make single municipal control necessary or desirable, 
shall desire to be organized into or annexed to an incorporated city or 
town under the provisions of this act, the board of county commissioners 
of such county may, or upon the presentation of a petition signed by not 
less than twenty-five per cent of the qualified electors in such community 
or group of communities must, issue a proclamation ordering a special 
election to be held, at which election the question of the organization of 
such community or group of communities as a municipality under the 
provisions of this act shall be submitted to the qualified electors within the 
proposed municipal district. Said proclamation shall specify the time when 
and the places where such election shall be held, which must be within 
ninety days from the date of filing such petition, and shall define the bound- 

82 



CITIES AND TOWNS 11-3210 

aries of said proposed municipal district, which shall include all such com- 
munities and cities, and such additional adjacent territory as shall, in the 
judgment of the board of county commissioners, provide for future urban 
growth. 

If a majority of the legal voters at said election vote in favor of the 
organization of such municipal district, or in favor of annexation to an 
incorporated city or town, then the board of county commissioners shall 
declare the result of said elections, and immediately thereafter shall give 
notice for thirty days in a newspaper published within the proposed muni- 
cipal district, or if none be published therein, by posting notices in six 
public places within the limits of said district of the time and place or 
places of holding the first election for commissioners of such municipal 
district under this law. At such election all electors qualified by the general 
election laws of the state who have resided within the limits of the municipal 
district for six months are qualified electors. The board of county commis- 
sioners must appoint judges and clerks of election, and canvass and de- 
clare the result thereof. The election must be conducted in the manner pre- 
scribed by law for the election of county officers, and the commissioners so 
elected must qualify in the manner prescribed by law.for county officers. 

History: En. Sec. 9, Oh. 152, L. 1917; 
amd. Sec. 1, Ch. 44, L. 1919; re-en. Sec. 
6408, S. 0. M. 1921. 

11-3210. (5409) Powers of municipa.lities under commission-manager 
plan. The inhabitants of any municipality, coming under the provisions 
of this act, as its limits now are, or may hereafter be, shall be a body 
politic and corporate and have a corporate name, and as such shall have 
perpetual succession, and may use a corporate seal. Through its duly elected 
officers, it may sue and be sued ; may acquire property in fee simple or lesser 
interest, or estate by purchase, gift, devise, appropriation, lease, or lease 
with the privilege to purchase for any municipal purpose; may sell, lease, 
hold, manage, and control such property, and make any and all rules and 
regulations by ordinance or resolution which may be required to carry 
out fully all provisions of any conveyance, deed, or will, in relation to any 
gift or bequest, or the provisions of any lease by which it may acquire 
property; may acquire, construct, own, lease, and operate and regulate 
public utilities; may assess, levy, and collect taxes for general and special 
purposes on all the subjects or objects which the municipality may lawfully 
tax ; may borrow money on the faith and credit of the municipality by the 
issue or sale of bonds or notes of the municipality; may appropriate money 
of the municipality for all lawful purposes; may create, provide for, con- 
struct, regulate and maintain all things of nature of public works and im- 
provements ; may levy and collect assessments for improvement districts and 
other local improvements; may license and regulate persons, corporations, 
and associations engaged in any business, occupation, profession, or trade ; 
may define, prohibit, abate, suppress, and prevent all things detrimental to 
the health, morals, comfort, safety, convenience, and welfare of the in- 
habitants of the municipality, and all nuisances and the causes thereof ; may 
regulate the construction, height, and the material used in all buildings, and 

83 



11-3211 ELECTION LAWS 

the maintenance and occupancy thereof; may regulate and control the use, 
for whatever purpose, of the streets and other public places; may create, 
establish, abolish, and organize offices, and fix the salaries and compensa- 
tions of all officers and employees; may make and enforce local sanitary 
and police and other regulations ; and may pass such ordinances as may be 
expedient for maintaining and promoting peace, good government, and 
welfare of the municipality, and for the performance of the functions there- 
of. The municipality shall have all powers that now are or hereafter may be 
granted to municipalities by the constitution or laws of Montana; and all 
such powers, whether expressed or implied, shall be exercised and enforced 
in the manner prescribed by this act, or when not prescribed therein, in such 
manner as shall be prescribed by the ordinances or resolutions of the 
commission. 

History: En. Sec. 10, Ch. 152, L. 1917; 
re-en. Sec. 6409, R. C. M. 1921. 

11-3211. (5410) Form of govemment to be known as oommission- 
manaiger plan — composition of commission — powers. The form of govern- 
ment provided for in this chapter shall be known as the "commission- 
manager plan," and shall consist of a commission of citizens, who shall be 
elected at large in the manner hereinafter provided. The commission shall 
consist of three (3) commissioners for all municipalities having a population 
of less than fifteen thousand (15,000) and five (5) commissioners for all 
cities having a population of fifteen thousand (15,000) or more. The commis- 
sion shall constitute the governing body, with powers as hereinafter pro- 
vided, to pass ordinances, adopt regulations and appoint a chief administra- 
tive officer to be known as the "city manager," and exercise all powers as 
hereinafter provided. 

History: En, Sec. 12, Ch. 152, L. 1917; 
re-en. Sec. 5410, R. C. M. 1921; amd. Sec. 
1, Cli. 60, L. 1943. 

11-3212. (5411) Qnaliflcation of commissioners — ^tenure of office — ex- 
piration of terms. The commissioners elected at the first election shall 
qualify and their terms of office shall begin on the first Monday after their 
election, and the terms of office of the mayor and councilmen or aldermen in 
such city or town in office at the beginning of the term of office of the com- 
missioners first elected under the provisions of this act shall cease and 
terminate, and the terms of office of all their appointed officers, and of all 
of the employees of such city or town, shall cease and terminate as soon 
as the commissioners shall by resolution declare. 

All commissioners shall serve for a term of four years and until their 
successors are elected and have qualified; except that at the first election 
the two candidates having the highest number of votes shall hold office 
for a period of four years, less the time elapsed since the 31st day of 
December of the odd numbered year last preceding. The terms of office of 
all other candidates shall expire on the 31st day of December in any odd 
numbered year following the special election provided for in this act, at 
which the first commissioners are elected. 

History: En. Sec. 13, Ch. 152, L. 1917; 
re-en. Sec. 5411, B. C. M. 1921; amd. Sec. 
3, Ch. 31, L. 1923. 

84 



CITIES AND TOWNS 11-3215 

11-3213. (5412) Filling of vacancies in commission. Vacancies in the 
commission shall be filled by the commission for the remainder of the unex- 
pired term, but any vacancy resulting from a recall shall be filled in the 
manner provided in such case. 

History: En. Sec. 14, Oh. 152, L. 1917; 
re-«n. Sec. 5412, R. C. M. 1921. 

11-3214. (5413) Qualifications of commissioners — holding other public 
office forbidden — interest in contracts not allowed — accepting gratuities for- 
bidden. Members of the commission shall be residents of the city or town 
and have the qualifications of electors, and own real estate situated therein 
to the assessed value of not less than one thousand dollars. Commissioners 
and other officers and employees shall not hold any other public office or 
employment, except in the state militia, as school trustees, or notary 
publics, and shall not be interested in the profits or emoluments of any 
contract, job, work, or service for the municipality. Any commissioner who 
shall cease to possess any of the qualifications herein required, shall forth- 
with forfeit his oflSce, and any such contract in which any member is or may 
be interested, may be declared void by the commission. 

No commissioner or other officer or employee of said city or town shall 

accept any frank, free ticket, pass or service directly or indirectly, from 

any person, firm or corporation upon terms more favorable than are granted 

to the public generally. Any violation of the provisions of this section 

shall be a misdemeanor and shall also be sufficient cause for the summary 

removal or discharge of the offender. Such provisions for free service shall 

not apply to policemen or firemen in uniform or wearing their official 

badges, where the same is provided by ordinance, nor to any commissioner, 

nor to the city manager, nor to the city attorney, upon oflBcial business, 

nor to any other employee or official of said city on official business who 

exhibits written authority signed by the city manager. 

History: En. Sec. 16, Ch. 152, L. 1917; 
re-en. Sec. 5413, B. C. M. 1921; amd. Sec. 
4, Ch. 31, L. 1923. 

11-3215. (5414) Nomination of candidates — primary election. (1) Can- 
didates to be voted for at all general municipal elections at which com- 
missioners are to be elected under the provisions of this act shall be nomi- 
nated by a primary election, and no other names shall be placed upon 
the general ballot except those nominated in the nianner hereinafter pre- 
scribed. The primary election for such nominations shall be held on the 
last Tuesday of August of the odd-numbered years. 

(2) Any qualified elector of the municipality, who is the owner of real 
estate situated therein to the value of not less than one thousand dollars, 
desiring to become a candidate for commissioner, shall, at least ten days 
prior to said primary election, file with the clerk of the commission a 
statement of such candidacy in substantially the following form: 

State of Montana, ^ 

County of J 

85 



11-3215 ELECTION LAWS 

I, , being first duly sworn, say that I reside 

at street, (city, town) of , county 

of , state of Montana; that I am a qualified voter 

therein; that I am a candidate for nomination to the oflBce of commis- 
sioner to be voted upon at the primary election to be held on the last 

Tuesday of August, 19 , and I hereby request that my name be 

printed upon the official primary ballot for nomination by such primary 

election for such office. 

(Signed) 

Subscribed and sworn to (or affirmed) before me by 

on this day of , 19 

(Signed) 

And shall at the same time file therewith the petition of at least twenty- 
five qualified voters requesting such candidacy. Each petition shall be 
verified by one or more persons as to qualifications and residence, with 
street number, of each of the persons so signing the said petition, and 
the said petition shall be in substantially the following form : 

(3) Petition Accompanying Nominating Statement. 

The undersigned duly qualified electors of the (city, town) of 

, and residing at the places set opposite our 

respective names hereto, do hereby request that the name of (name of 
candidate) be placed on the ballot as a candidate for nomination to 
the office of commissioner at the primary election to be held on the last 

Tuesday of August, 19 We further state that we know him to be a 

qualified elector of said (city, town), and a man of good moral character, 
and qualified, in our judgment, for the duties of such office, and we indi- 
vidually certify that we have not signed similar petitions greater in 
number than the number of commissioners to be chosen at the next gen- 
eral municipal election. 

Names of Qualifying Electors. Number. Street. 

(Space for Signatures.) 

State of Montana, ] 

County of J 

, being duly sworn, deposes and 

says, that he knows the qualifications and residence of each of the per- 
sons signing the appended petition, and that such signatures are genuine, 
and the signatures of the persons whose names they purport to be. 

(Signed) 

Subscribed and sworn to before me this day 

of , 19 



Notary Public. 

This petition, if found insufficient, shall be returned to 

at No street, 

, Montana. 

(4) Immediately upon the expiration of the time of filing the state- 
ments and petition for candidates, the clerk of the commission shall cause to 

86 



CITIES AND TOWNS 11-3216 

be published for three consecutive days in all the daily newspapers pub- 
lished in the municipality in proper form, the names of the persons that 
are to appear upon the primary ballots, and if there be no daily news- 
paper, then in two issues of any other newspaper that may be published 
in said municipality, and the said clerk shall thereupon cause the primary 
ballots to be printed, and authenticated with a facsimile of his signature. 
(5) In the event the number of legally qualified candidates for the 
office of commissioner at such primary election does not exceed twice the 
number of vacancies in the commission to be filled, no municipal primary 
election for the nomination of candidates for the office of commissioner 
shall be held in said city for said year and such legally qualified candi- 
dates shall be deemed duly nominated and shall be placed on the general 

ballot. 

HiHtory: En. Sec. 16, Ch. 152, L. 1917; 
re-en. Sec. 5414, B. C. M. 1921; amd. Sec. 
1, Ch. 36, L. 1961. 

11-3216. (5415) Ballots — form, contents and distribution — qualification 
of electors — conduct of election. (1) All ballots used in all elections held 
under authority of this act shall be without party mark or designation. The 
ballots shall be printed on plain, substantial white paper. 

(2) Except that the crosses here shown shall be omitted, and that in 
place of the names of persons here shown, there shall appear the names of 
the persons who are candidates for nomination, the primary ballots shall 
be substantially as hereinafter designated. Primary, regular and special 
election ballots provided under authority of this act for the nomination or 
election of commissioners shall not bear the name of any person or persons 
or any issue other than those of candidates for the nomination or election 
to the office of commissioner. 

Official Primary Ballot. 

Vote for (insert here a number equal to the number of persons to be 
elected to the office of commissioner at the next regular municipal election.) 

If you wrongly mark, tear or deface this ballot, return it and obtain 
another. 

Candidates for nomination to the office of commissioner at the primary 
election. 



X 



John Doe 



X Henry Smith 



X George Jones 



X 



James Richards 



X 



Richard Doe 



Official Ballot Attest : 

87 



11-3217 ELECTION LAWS 
(Signature) 



Clerk of the Commission. 



(3) Having caused said ballots to be printed, the clerk of the commis- 
sion shall cause to be delivered at each polling place a number of said 
ballots, ten per cent in excess of the number of such voters registered in 
such polling place at the last general municipal election. The persons who 
are qualified to vote at the general election, shall be qualified to vote at 
such primary election, and any person offering to vote, may be orally chal- 
lenged by any elector of the municipality upon any or all grounds set forth 
and specified in section 23-1220, and the provisions of sections 23-1221 to 
23-1228, inclusive, shall apply at all challenges made at such election. Judges 
of election shall immediately upon the closing of the polls, count the ballots 
and ascertain the number of such vfttes cast in such precinct for each of the 
candidates, and make return thereof to the clerk of the commission upon 
proper blanks to be furnished by the clerk of the commission within twelve 
hours of the closing of the polls. Not later than the first legal day after 
he shall have received such returns, the clerk of the commission shall can- 
vass said returns so received from all the polling precincts and shall make 
and publish in all the newspapers in said municipality, at least once, the 
result thereof. Said canvass by the clerk of the commission shall be made 
publicly. 

(4) The candidates for nomination to the office of commissioner who 
shall have received the greatest vote in such primary election shall be placed 
on the ballot at the next regular municipal election, in number not to 
exceed double the number of vacancies in the commission to be filled. 

(5) Except as otherwise in this act provided all electors of municipali- 
ties under this act, who, by ordinances governing cities and towns incor- 
'porated under the general municipal incorporation law, or by charter, 
would be entitled to vote for the election of officers at any general municipal 
election in such cities or towns, shall be qualified to vote at all elections 
under this act ; and the ballots to be used at such general municipal elections, 
shall be in the same general form as for such primary election so far as 
applicable, and in all elections in such municipalities, the election precincts, 
Voting places, method of conducting the elections, canvassing of votes and 
announcing the results, shall be the same as by law provided for the 
election of officers in such cities or towns so far as the same are applicable 
and not inconsistent with the provisions of this act. 

History: En. Sec. 17, Ch. 152, I#. 1917; 
re-en. Sec. 5415, B. C. M. 1921; amd. Sec. 
5, Ch. 31, L. 1923. 

11-3217. (5416) Arrajigemeiit of names of candidates on ballot. The 

names of candidates on all ballots used in any election held under the 
authority of this act shall be printed in rotation, as follows: 

The ballot shall be printed in as many series as there are candidates 
for the office of commissioner. The whole number of ballots to be printed 
shall be divided by the number of series, and the quotient so obtained 



88 



CITIES AND TOWNS 11-3220 

shall be the number of ballots in each series. In printing the first series 
of ballots, the names of candidates shall be arranged in alphabetical order. 
After printing the first series, the first name shall be placed last and the 
next series printed, and the process shall be repeated until each name in 
the list shall have been printed first an equal number of times. The bal- 
lots so printed shall then be combined in tablets, so as to have the fewest 
possible ballots having the same order of names printed thereon together 
in the same tablet. 

History: En. Sec. 18, Ch. 152, L. 1917; 
re-en. Sec. 5416, R. C. M. 1921. 

11-3218. (5417) Date of holding regular elections — ST>ecial elections. A 

regular election for the choice of commissioners, provided for in this act, 
shall be held on the first Tuesday after the first Monday in November of 
any odd-numbered year, and on the first Tuesday after the first Monday in 
November in each second year thereafter. Elections so held shall be known 
as regular municipal elections. All other elections held under the provisions 
of this act, excepting those for the nomination of candidates for the office 
of commissioner, shall be known as special municipal elections, 

ffistory: En. Sec. 19, Oh. 152, L. 1917; 
re-en. Sec. 5417, R. C. M. 1921. 

11-3218.1. Dispensing of general election. Whenever, in any city op- 
erating under a commission-manager form of government at a primary elec- 
tion held in accordance with section 11-3215, the number of nominees shall 
not exceed the number of officers to be elected, then such nominees shall 
be deemed duly elected to the respective offices. Then, in that event, no gen- 
eral municipal election shall be held in said city for said year. All matters, 
other than the election of officers, upon which the general public shall vote 
shall be disposed of at the primary election unless a special election is held 
for that purpose. 
History: En. Sec. 1, Ch. 75, L. 1955. 

11-3219. (5418) Filing of election expenses of candidates — ^penalty for 
violations. Every candidate for commissioner shall, within thirty (30) days 
after the election, file with the clerk of the commission his sworn statement 
of all his election and campaign expenses, and by whom such funds were 
contributed. 

Any violation of the provisions of this section, shall be a misdemeanor 

and if committed by a successful candidate, give ground for the removal 

from office. 

History: En. Sec. 20, Ch. 182, L. 1917; 
re-en. Sec. 5418, R. C. M. 1921; amd. Sec. 
6, Ch. 31, L. 1923. 

11-3220. (5419) Recall of commissioners — petition for recall. Any or 

all of the commissioners provided for in this act may be removed from 
office by the electors. The procedure to effect such removal, shall be as 
follows : 

A petition demanding that the question of removing such officers be 
submitted to the electors shall be filed with the clerk of the commission. 

89 



11-3221 ELECTION LAWS 

Such petition for the recall of any or all of the commissioners shall be 
signed by at least twenty-five per cent of the total number of registered 
voters in the municipality. 

The signature to such petition need not be appended to any one paper. 

History: En. Sec. 21, Oh. 1S2, I*. 1917; 
re-«u. Sec. 5419, S. 0. M. 1921. 

11-3221. (5420) Issuance of petition papers. Petition papers shall be 

procured only from the clerk of the commission, who shall keep a sufficient 

number of such blank petitions on file for distribution as herein provided. 

Prior to the issuance of such petition papers, an affidavit shall be made by 

one or more qualified electors and filed with the clerk of the commission, 

stating the name and the office of the officer or officers sought to be removed. 

The clerk of the commission, upon issuing any such petition papers to 

an elector, shall enter in a record, to be kept in his office, the name of 

the elector to whom issued, the date of such issuance, and the number of 

papers issued, and shall certify on such papers the name of the elector to 

whom issued, and the date issued. No petition papers so issued shall be 

accepted as part of the petition unless it bears such certificate of the 

clerk of the commission, and unless it be filed as provided herein. 

History: En. Sec. 22, Ch. 162, L. 1917; 
re-en. Sec. 6420, B. 0. M. 1921. 

11-3222. (5421) Signatures and affidavit to petition papers. Each 
signer of a recall petition shall sign his name in ink or indelible pencil, 
and shall place thereon, after his name, his place of residence by street and 
number. To each such petition paper there shall be attached an affidavit of 
the circulator thereof, stating the number of signers to such part of the 
petition, and that each signature appended to the paper was made in his 
presence and is the genuine signature of the person whose name it pur- 
ports to be. 

History: En. Sec. 23, Ch. 162, L. 1917; 
re-en. Sec. 5421, B. 0. M. 1921. 

11-3223. (5422) Assembling and filing of petition papers. All papers 

comprising a recall petition shall be assembled and filed with the clerk of 

the commission as one instrument within thirty days after the filing with 

the clerk of the commission of the affidavit stating the name and the office 

of the officer sought to be removed. 

History: En. Sec 24, Oh. 152, L. 1917; 
re-en. Sec. 5422, B. O. M. 192L 

11-3224. (5423) Notification of officer — recall election. The clerk of 
the commission shall at once submit the recall petition to the commission, 
and shall notify the officer sought to be recalled of such action. If the 
official whose removal is sought does not resign within five days after such 
notice, the commission shall thereupon order and fix a day for holding a 
recall election. Any such election shall be held not less than seventy nor 
more than eighty days after the petition has been presented to the commis- 
sion, at the same time as any other general or special election held within 

90 



CITIES AND TOWNS 11-3228 

such period ; but if no such election be held within such period, the commis- 
sion shall call a special recall election to be held within the time aforesaid. 

History: En. Sec. 25, Oh. 152, L. 1917; 
re-«n. Sec. 5423, S. C. M. 1921. 

11-3225. (5424) Ballots at recall election — requirements — ^nomination of 
candidates to All vacancies. The ballots at such recall election shall con- 
form to the following requirements: 

With respect to each person whose removal is sought, the question shall 
be submitted, "Shall (name of person) be removed from the office of (name 
of office) by recall?" 

Immediately following each such question, there shall be printed on the 
ballots the two propositions, in the order set forth: 

"For the recall (name of person). 

Against the recall (name of person)." 
Immediately to the left of the proposition shall be placed a square in 
which the electors, by making a cross mark (X), may vote for either of 
such propositions. Under said questions shall be placed the names of can- 
didates to fill the vacancy or vacancies. The name of the officer or officers 
whose removal is sought shall not appear on the ballot as a candidate or 
candidates to succeed himself or themselves. 

Before any such recall election for the removal of commissioners shall 
be had, there shall be nominated candidates to fill the vacancy or vacan- 
cies, the nominations therefor to be made by petition, which petition for 
each candidate shall be signed by at least twenty-five registered electors, 
and shall be filed at least thirty days prior to the date fixed for holding 
such recall election; and the form and requirements for said petition shall 
be the same as hereinbefore provided in the case of primary nominations. 

History: En. Sec. 26, Ch. 152, L. 1917; 
re-en. Sec. 5424, B. 0. M. 1921. 

11-3226. (5425) Effect of majority vote for or against recall. Should 
a majority of the votes cast at a recall election be against the recall of the 
officer named on the ballot, such officer shall continue in the office for the re- 
mainder of his unexpired term, subject to recall as before. If a majority 
of the votes cast at a recall election shall be for the recall of the officer 
named on the ballot, he shall, regardless of any technical defects in the 
recall petition, be deemed removed from office. 

History: En. Sec 27, Ch. 152, L. 1917; 
re-en. Sec. 5425, S. 0. M. 1921. 

11-3227. (5426) Limitation upon time of filing recall petition. No re- 
call petition shall be filed against a commissioner within six months after he 
takes his office, nor, in case of an officer reelected in a recall election, until 
six months after that election. 

History: En. Sec. 28, Ch. 152, L. 1917; 
re-en. Sec. 5426, B. C. M. 192L 

11-3228. (5427) Working for candidate forbidden. Any person who 
shall agree to perform any services in the interest of any candidate for any 
office provided in this act, in consideration of any money or other valuable 

91 



11-3229 ELECTION LAWS 

thing for such services performed in the interest of any candidate, shall be 
punished by a fine not exceeding three hundred dollars, or be imprisoned 
in the county jail not exceeding thirty days, or both such fine and imprison- 
ment. 

History: En. Sec. 29, Cli. 162, L. 1917; 
re-en. Sec. 5427, R. C. M. 1921. 

11-3229. (5428) Bribery — false answers concerning qualifications of 
elector — voting by disqualified person. Any person offering to give a bribe, 
either in money or other consideration, to any elector for the purpose of 
influencing his vote at any election provided in this act, or any elector 
entitled to vote at any such election receiving and accepting such bribe or 
other consideration; any person who agrees, by promise or written state- 
ment, that he will do, or will not do, any particular act or acts, for the 
purpose of influencing the vote of any elector or electors at any election pro- 
vided in this act ; any person making false answer to any of the provisions 
of this act relative to his qualifications to vote at such election ; any person 
wilfully voting or offering to vote at such election, who has not been a 
resident of this state for one year next preceding said election, or who is 
not twenty-one years of age, or is not a citizen of the United States, or 
knowing himself not to be a qualified elector of such precinct where he 
offers to vote ; any person knowingly procuring, aiding, or abetting any 
violation hereof, shall be deemed guilty of a misdemeanor, and, upon con- 
viction, shall be fined a sum of not less than one hundred dollars nor 
more than five hundred dollars, or be imprisoned in the county jail not 
less than ten nor more than ninety days, or both such fine and imprisonment. 

History: En. Sec. 30, Ch. 152, L. 1917; 
re-en. Sec. 5428, E. 0. M. 1921. 

11-3230. (5429) Proposed ordinances — ^how submitted — requirements of 
petition to submit. Any proposed ordinance may be submitted to the com- 
mission by petition signed by at least ten per cent of the total number of 
registered voters in the municipality. All petition papers circulated with 
respect to any proposed ordinance shall be uniform in character and shall 
contain the proposed ordinance in full, and have printed or written thereon 
the names and addresses of at least five electors who shall be officially re- 
garded as filing the petition, and shall constitute a committee of the peti- 
tioners for the purposes hereinafter named. 

History: En. Sec. 31, CTh. 152, L. 1917; 
re-en. Sec. 5429, B. 0. M. 1921. 

11-3231. (5430) Signatures and affidavit to petitions. Each signer of 
a petition shall sign his name in ink or indelible pencil, and shall place on 
the petition papers, after his name, his place of residence by street and 
number. The signatures of any such petition papers need not all be appended 
to one paper, but to each such paper there shall be attached an affidavit by 
the circulator thereof, stating the number of signers to such part of the 
petition, and that each signature appended to the paper is the genuine sig- 

92 



CITIES AND TOWNS 11-3235 



nature of the person whose name it purports to be, and was made in the 

presence of the affiant. 

History: En. Sec. 32, Ch. 152, L. 1917; 
re-en. Sec. 5430, R. C. M. 1921. 

11-3232. (5431) Assembling ajid filing of petition papers — ^hearing upon 
proposed ordinances — submission to electors. All papers comprising a peti- 
tion shall be assembled and filed with the clerk of the commission as one 
instrument, and when so filed, the clerk of the commission shall submit the 
proposed ordinance to the commission at its next regular meeting. Pro- 
vision shall be made for public hearings upon the proposed ordinances. 

The commission shall at once proceed to consider it, and shall take final 

action thereon within thirty days from the date of submission. If the 

commission rejects the proposed ordinance, or passes it in a different form 

from that set forth in the petition, the committee of the petitioners may 

require it to be submitted to a vote of the electors in its original form, or 

that it be submitted to a vote of the electors with any proposed change, 

addition, or amendment, if a petition for such election is presented bearing 

additional signatures of fifteen per cent of the electors of the city or town. 

History: En. Sec. 33, Ch. 152, L. 1917; 
re-en. Sec. 5431, R. O. M. 1921. 

11-3233. (5432) Submission of petition and proposed ordinance to clerk. 

AVhen an ordinance proposed by petition is to be submitted to a vote of the 

electors, the committee of the petitioners shall certify that fact and the 

proposed ordinance to the clerk of the commission within twenty days 

after the final action on such proposed ordinance by the commission. 

History: En. Sec. 34, Oh. 152, It. 1917; 
re-en. Sec. 5432, B. C. M. 1921. 

11-3234. ( 5433 ) When proposed ordinance is to be submitted to electors. 

Upon receipt of the certificate and certified copy of the proposed ordinance, 
the clerk shall certify the fact to the commission at its next regular meeting. 
If an election is to be held not more than six months nor less than thirty 
days after the receipt of the clerk's certificate by the commission, such pro- 
posed ordinance shall then be submitted to a vote of the electors. If no 
such election *is to be held within the time aforesaid, the commission shall 
provide for submitting the proposed ordinance to the electors at a special 
election. 

History: En. Sec. 35, Ch. 152, L. 1917; 
re-en. Sec. 5433, B. C. M. 1921. 

11-3235. (5434) Contents of ballot — ^when proposed ordinance becomes 
effective. The ballots used when voting upon any such proposed ordinance 
shall state the title of the ordinance to be voted on, and below it the two 
propositions, "For the ordinance," and "Against the ordinance." Immedi- 
ately at the left of each proposition there shall be a square, in which, by 
making a cross (X), the voter may vote for or against the proposed ordi- 

93 



11-3236 ELECTION LAWS 



nance. If a majority of the electors voting on any such proposed ordinance 

shall vote in favor thereof, it shall thereupon become an ordinance of the 

municipality. 

History: En. Sec. 36, Oh. 152, L. 1917; 
re-«n. Sec. 5434^ S. O. M. 192L 

11-3236. (5435) Repealing ordinances — publication, amendment and re- 
peal of initiated ordinances. Proposed ordinances for repealing any ex- 
isting ordinance or ordinances, in whole or in p^-rt, may be submitted to 
the commission as provided in the preceding section for initiating ordi- 
nances. Initiated ordinances adopted by the electors shall be published and 
may be amended or repealed by the commission as in the case of other 
ordinances. 

History: En. Sec. 37, Ch. 152, L. 1917; 
re-en. Soc. 5435, &. C. M. 1921. 

11-3237. (5436) When ordinances of commission take effect — ^petition 

for repeal suspends effect unless law is complied with. No ordinance passed 

by the commission, unless it be an emergency measure, shall go into effect 

until thirty days after its final passage by the commission. If at any time 

within the said thirty days, a petition signed by twenty-five per cent of 

the total number of registered voters in the municipality be filed with the 

clerk of the commission, requesting that any such ordinance be repealed 

or submitted to a vote of the electors, it shall not become operative until 

the steps taken herein shall have been taken. 

History: En. Sec. 38, Ch. 152, L. 1917; 
re-en. S«c. 5436, E. C. M. 1921. 

11-3238. (5437) Reconsideration of ordinance — submission to electors 

— ^failure to approve operates as repeal. The clerk of the commission shall 

deliver the petition to the commission, which shall proceed to reconsider the 

ordinance. If, upon such reconsideration, the ordinance be not entirely 

repealed, the commission shall provide for submitting to a vote of the 

electors, and in so doing, the commission shall be governed by the provisions 

herein contained, respecting the time of submission and manner of voting on 

ordinances proposed to the commission by petition. If, when submitted to a 

vote of the electors, any such ordinance be not approved by a majority of 

those voting thereon, it shall be deemed repealed. 

History: En. Sec. 39, Ch. 152, L. 1917; 
re-en. Sec. 5437, B. C. M. 1921. 

11-3239. (5438) Contents and requirements of referendum petitions — 
ballots. Referendum petitions need not contain the text of the ordinance, 
the repeal of which is sought, but shall be subject in all other respects to 
the requirements for petitions submitting proposed ordinances to the com- 
mission. Ballots used in referendum elections shall conform in all respects 
to those provided for in section 11-3235 of this code. 

History: En. Sec. 40. Ch. 152, L. 1917; 
re-en. Sec. 5438, B. C. M. 1921. 

94 



CITIES AND TOWNS 11-3244 

11-3240. (5439) Other ordinances subject to referendum. Ordinances 
submitted to the commission by initiative petition and passed by the com- 
mission without change, or passed in an amended form and not required to 
be submitted to a vote of the electors by the committee of the petitioners, 
shall be subject to a referendum in the same manner as other ordinances. 

History: En. Sec. 41, Oh. 152, L. 1917; 
re-en. Sec. 5439, B. C. M. 1921. 

11-3241. (5440) Highest affirmative vote prevails when referendum 

©(rdinances conflict. If the provisions of two or more ordinances adopted or 

approved at the same election conflict, the ordinance receiving the highest 

affirmative vote shall prevail. 

History: En. Sec. 42, Ch. 162, L. 1917; 
re-en. Sec. 5440, S. 0. M. 1921. 

11-3242. (5441) Emergency ordinances subject to referendum — ^rules 

applicable. Ordinances passed as emergency measures shall be subject to 

a referendum in like manner as other ordinances, except that they shall go 

into effect at the time indicated in such ordinances. If, when submitted to 

a vote of the electors, an emergency measure be not approved by a majority 

of those voting thereon, it shall be considered repealed as regards any 

further action thereunder; but such measure so repealed shall be deemed 

sufficient authority for payment, in accordance with the ordinance, of any 

expense incurred previous to the referendum vote thereon. 

History: En. Sec. 43, Oh. 182, L. 1917; 
re-en. Sec. 5441, R. 0. M. 1921. 

11-3243. (5442) Ordinances providing for expenditures, bond issues, 
public improvements submitted to electors — ^preliminary steps prior to elec- 
tion — quaJiflcations of electors. In case a petition be filed requiring that 
a measure passed by the commission providing for an expenditure of money, 
a bond issue, or a public improvement be submitted to a vote of the 
electors, all steps preliminary to such expenditure, actual issuance of the 
bonds, or actual execution of the contract for such improvement, may be 
taken prior to the election ; and at such election only resident taxpayers of 
such city or town whose names as such appear upon the assessment roll and 
who are also qualified electors of said city or town, shall be entitled to 
vote at such election. And at any and all elections in such city or town 
at which questions relating to bond issues, tax levies, or the expenditure 
of money shall be submitted, no person shall be entitled to vote unless 
qualified as in this section provided. 

History: En. Sec. 44, Oh. 152, L. 1917; 
re-en. Sec. 5442, B. C. M. 1921; amd. Sec. 
7,, Oh 31, L. 1923. 

11-3244. (5443) Oath of commissioners. Every person who has been 

declared elected commissioner, shall within ten (10) days thereafter take 

and file with the clerk of the commission his oath of office in the form 

and manner provided by law. 

History: En. Sec. 45, Ch. 152, L. 1917; 8, Ch. 31, L. 1923; amd. Sec. 9, Ch. 67, 
re-en. Sec. 5443, B. 0. M. 1921; amd. Sec. I». 1967. 

95 



11-3245 ELECTION LAWS 

11-3245. (5444) Designation of mayor — procedure in case of tie vote — 
vacancy in oflBce of mayor — powers and duties of mayor. The mayor shall 
be that member of the commission, who, at the regular municipal election at 
which the commissioners were elected, received the highest number of 
votes. In case two candidates receive the same number of votes, one of them 
shall be chosen mayor by the remaining members of the commission. In 
event of a vacancy in the office of the mayor, by the expiration of his term 
of office, the holdover commissioner having received the highest number of 
votes shall be the mayor. In the event there is a vacancy in the office of the 
mayor for any other cause, the remaining members of the commission shall 
choose his successor for the unexpired term from their own number by lot. 
The mayor shall be the presiding officer, except that in his absence, a presi- 
dent pro tempore may be chosen. The mayor shall exercise such powers 
conferred, and perform all duties imposed upon him by this act, the ordi- 
nances of the municipality and the laws of the state, except that he shall 
have no power to veto any measure. He shall be recognized as the official 
head of the municipality by the courts for the purpose of serving civil proc- 
esses, by the governor for the purposes of the military law, and for all 
ceremonial purposes. 

History: En. Sec. 46, Ch. 152, L. 1917; 
re-en. Sec. 5444, B. C. M. 1921; amd. Sec. 
9, Ch. 31, L. 1923. 

11-3246. (5445) Selection of successor to mayor in event of his recall — 
mayor when all commissioners are recalled. In the event that the commis- 
sioner who is acting as mayor shall be recalled, the remaining members of 
the commission shall select one of their number to serve as mayor for the 
unexpired term. In the event of the recall of all the commissioners, the 
person receiving the highest number of votes at the election held to deter- 
mine their successor shall serve as the mayor. 

History: En. Sec. 47, Cli. 152, L. 1917; 
re-en. Sec. 5445, B. C. M. 1921. 

11-3247. (5446) Quorum of cammissioners — recording votes and pro- 
ceedings. In municipalities having three commissioners, two commissioners 
shall constitute a quorum; and the affirmative vote of two commissioners 
shall be necessary to adopt or reject any motion, resolution, or ordinance, 
or pass any measure unless a greater number is provided for in this act. In 
municipalities having five commissioners, three commissioners shall con- 
stitute a quorum, and the affirmative vote of three commissioners shall be 
necessary to adopt or reject any motion, resolution, or ordinance, or pass 
any measure unless a greater number is provided for in this act. Upon every 
vote, the ayes and the nays shall be called and recorded, and every motion, 
resolution, or ordinance shall be reduced to writing and read before the 
vote is taken thereon. 

History: En. Sec. 48, Ch. 152, L. 1917; 
re-en. Sec. 5446, B. C. M. 1921. 

11-3248. (5447) Compensation of commissioners and mayor. The salary 
of each commissioner may be as follows : For each meeting attended, cities or 

96 



CITIES AND TOWNS 11-3330 

towns with less than twenty-five thousand inhabitants, twenty dollars 
($20.00) ; cities with more than twenty-five thousand inhabitants, not to 
exceed forty dollars ($40.00) ; provided, that not more than one fee shall 
be paid for any one day. The salary of the commissioner acting as mayor 
may be one and one-half times that of the other commissioners. 

History: En. Sec. 49, Ch. 152, L. 1917; 5447, R. C. M. 1921; amd. Sec. 1, Ch. 10, 
amd. Sec. 2, Ch. 44, L. 1919; re-en. Sec. L. 1949; amd. Sec. 1, Ch. 71, L. 1965. 

11-3249. (5448) Meetings of commission — unauthorized absence creates 
vacancy — meeting's and minutes to be public — rules and order of business. 
At ten o'clock a. m. on the first Monday after the first day of January, 
following a regular municipal election, the commission shall meet at the 
usual place for holding the meetings of the legislative body of the munici- 
pality, at which time the newly elected commissioners shall assume the 
duties of their office. Thereafter, the commissioners shall meet at such 
times as may be prescribed by ordinance or resolution, except that in munici- 
palities having less than five thousand inhabitants, they shall meet regularly 
at least once and not more than four times per month, and in municipalities 
having more than five thousand inhabitants, they shall meet not less than 
once every two weeks. Absence from five (5) consecutive regular meetings 
shall operate to vacate the seat of a member, unless such absence be author- 
ized by the commission. 

The commissioner acting as mayor, any two members of the commission 

or the city manager, may call special meetings of the commission upon at 

least twelve (12) hours written notice to each member of the commission, 

served personally on each member or left at his usual place of residence. 

All meetings of the commission shall be public and any citizen shall have 

access to the minutes and records thereof at all reasonable times. The 

commission shall determine its own rules and order of business and shall 

keep a journal of its proceedings. 

History: En. Sec. 50, Ch. 152, L. 1917; 
re-en. Sec. 5448, B. C. M. 1921; amd. Sec. 
10, Ch. 31, L. 1923. 

CHAPTER 33 

COMMISSION-MANAGEE FOEM OF GOVERNMENT (continued) 
Section 11-3330. Abandonment of commission-manager plan — proceedings. 

11-3330. (5514) Abandonment of commission-manager plan — ^proceed- 
ings. Any municipality which shall have operated for more than two years 
under the provisions of this act, may abandon such organization hereunder, 
and accept the provisions of the general law of the state applicable to mu- 
nicipalities of its population. 

Upon the petition of not less than twenty-five per cent of the electors 
of such municipality registered for the last preceding general election, a 
special election shall be called, at which the following proposition only shall 
be submitted: 

"Shall the (city or town) of (name of city or town) abandon its organ- 
ization under (name of this act) and become a (city or town) under the 

97 



11-3401 ELECTION LAWS 

general law governing (cities or towns) of like population; or if formerly 
organized under special charter, shall resume said special charter?" 

If the majority of the votes cast at such special election be in favor 
of such proposition, the officers elected at the next succeeding biennial 
election shall be those then prescribed by the general laws of the state for 
municipalities of like population, and upon the qualification of such officers, 
such municipality shall become a municipality under such general law of 
the state, but such change shall not in any manner or degree affect the 
property, rights, or liabilities of any nature of such municipality, but shall 
merely extend to each change in its form of government. 

The sufficiency of such petition shall be determined, the election ordered 

and conducted, and the results declared, as provided for by the provisions 

of this act, in so far as the provisions thereof are applicable. Whenever 

the form of government of a municipality is determined by a vote of the 

people under the provisions of this section, the same question shall not be 

submitted again for a period of two years, and any ordinance adopted by 

the vote of the people shall not be repealed or the same question submitted 

for a period of two years. 

History: En. Sec. 117, Ch. 152, L. 1917; 
re-en. Sec. 6514, B. C. M. 1921. 

CHAPTER 34 

CITY AND COUNTY CONSOLIDATED GOVERNMENT 

aection 11-3401. Consolidated county and city government authorized. 
11-3402. Petition — signatures required. 

11-3403. Form of petition — certificate of county clerk — special election — notice. 
11-3404. Form of ballot. 
11-3405. Special election of commission — proclamation — nominations — conduct 

of election. 
11-3417. Effective date of ordinances — emergencies — submission to electors of 

measures concerning franchises or special privileges. 
11-3418. Becording and publishing of resolutions and ordinances. 
11-3419. Initiative measures — petition. 
11-3420. Action of commission on initiative petitions. 
11-3421. Submission of initiative measure to electors. 
11-3422. Time for submitting to electors — adoption on favorable vote. 
11-3423. Effective date of initiative measure. 
11-3424. Repealing ordinances may be initiated — publication, amending and 

repealing of initiative measures by commission. 
11-3425. Referendum — petition. 

11-3426. Reconaideration of measure by commission — reference to electors. 
11-3427. Voting on initiative or referendum measures — ballots. 
11-3428. Preliminary acts authorized prior to submission of ordinance to 

electors. 
11-3429. Petitions for initiative, referendum or recall — signatures — affidavit. 
11-3430. Petitions, assembling of papers comprising — clerk's certificate. 
11-3431. Petitions — amendments — filuig new petition not precluded by finding 

of insufficiency. 

11-3401. (5520.1) Consolidated county and city govermnent anthomed. 

The separate corporate existence and government of any county and of each 
and every city and town therein may be abandoned and terminated and such 
county and each and all of the cities and towns therein may be consolidated 
and merged into one municipal corporation and government under this act 
by proceeding as hereinafter provided. 
History: En. Sec. 1, Ob. 121, L. 1923. 

98 



CITIES AND TOWNS 11-3404 

11-3402. (5520.2) Petition — sigrnatures required. The question of the 
abandonment and termination of the separate corporate existence and gov- 
ernment of a county and of each and every city and town therein and the 
consolidation and merging of the existence and government of such c()uiity 
and each and all of the cities and towns therein into one municipal corpo- 
ration and government, under the provisions of this act, shall be submitted 
to the qualified electors of such county if a petition be filed in the office 
of the county clerk of such county, signed by at least twenty per centum 
(20%) of the electors of said county whose names appear on the official 
register of voters of the county on the date of the filing of such petition, 
requesting that such question be submitted to the qualified electors of the 
county. 
History: En. Sec. 2, Ch. 121, L. 1923. 

11-3403. (5520.3) Form of petition — certificate of county clerk — special 
election — ^notice. Such petition shall be substantially in the form and shall 
be signed, verified and filed in the manner prescribed in this act for initi- 
ative, referendum and recall petitions, and shall designate therein the name 
by which such consolidated government is to be known, which must be 
either that of the county or of some one of the cities or towns therein. If 
the county clerk shall find that such petition, or amended petition, so filed, 
is signed by the required number of qualified electors he shall so certify to 
the board of county commissioners of such county at their next regular 
meeting, and such board shall thereupon, and within ten daj's after receiv- 
ing the clerk's certificate, order a special election to be held at which elec- 
tion such question shall be submitted to the qualified electors of the coun- 
ty. Such order shall specify the time when such election shall be held, which 
shall be not less than ninety nor more than one hundred and twenty days 
from and after the day when such order is made, and the board of county 
commissioners shall immediately upon making such order issue a procla- 
mation setting forth the purpose for which such special election is held and 
the date of holding the same, which proclamation must be published and 
posted in the manner prescribed by section 23-105. 
History: En. Sec. 3, Ch. 121, L. 1923. 

11-3404. (5520.4) Form of ballot. At such election the ballots to be 
used shall be printed on plain white paper, shall conform as nearly as pos- 
sible to the ballots used on general elections, and shall have printed thereon 
the following. 

"Shall the corporate existence and government of the County of 

and of each and every city and town therein be consoli- 
dated and merged into one municipal corporation and government under 
the provisions of Chapter (giving the number of this act), Acts of the 
Eighteenth Legislative Assembly of the State of Montana, to be known and 
designated as 'City and County of ?' " 

n YES. 

D NO. 

99 



11-3405 ELECTION LAWS 

Such election shall be conducted, vote returned and canvassed and re- 
sult declared in the same manner as provided by law in respect to general 
elections. 
History: En. Sec. 4, Ch. 121, L. 1923. 

11-3405. (5520.5) Special election of commission — proclamation — nomi- 
nations — conduct of election. If the majority of the votes cast at such 
election shall be in favor of such consolidation and merging, the board of 
county commissioners of such county must, within two weeks after such 
election returns have been canvassed, order a special election to be held for 
the purpose of electing the number of members of the commission to which 
such consolidated municipality shall be entitled, which order shall specify 
the time when such election shall be held, which shall be not less than 
ninety nor more than one hundred and twenty days from and after the day 
when such order is made, and the board of county commissioners, immedi- 
ately upon making such order, shall issue a proclamation setting forth the 
purpose for which such special election is held and the date of holding the 
same, which proclamation must be published and posted in the manner pre- 
scribed by section 23-105, provided, however, that if any general election is 
to be held in such county after three months but within six months from the 
date of the making of such order then such order shall require such special 
election to be held at the same time as such general election. No primary 
election shall be held for the purpose of nominating candidates for members 
of the commission hereinafter provided for, to be voted for at such special 
election, but such candidates shall be nominated directly by petition which 
shall be in substantially the same form and be signed by the same number 
of signers as hereinafter required for primary nominating petitions. Such 
election shall be conducted, vote returned and canvassed and result de- 
clared in the same manner as provided by law in respect to general elections. 
History: En. Sec. 5, Ch. 121, L. 1923. 

11-3417. (5520.17) Effective date of ordinances — emergencies — submis- 
sion to electors of measures concerning franchises or special privileges. 

Ordinances making the annual tax levy, ordinances and resolutions providing 
for local improvements and assessments, and emergency measures shall take 
effect at the time indicated therein. All other ordinances and resolutions 
enacted by the commission shall be in effect from and after thirty days from 
the date of their passage. Ordinances adopted by the electors shall take 
effect at the time fixed therein, or, if no time is specified, thirty days after 
the adoption thereof. An emergency measure is an ordinance or resolution 
to provide for the immediate preservation of the public peace, health or 
safety, in which the emergency claimed is set forth and defined in a preamble 
thereto. The affirmative vote of at least two-thirds of the members of the 
commission shall be required to pass an emergency ordinance or resolution. 
No measure making or amending a grant, renewal or extension of a fran- 
chise or other special privilege shall ever be passed without first submit- 
ting the application therefor to the resident freeholders in the manner pro- 
vided by sections 11-1207 and 11-1208. 
History: En. Sec. 17. Ch. 121, "L. 1923. 

100 



CITIES AND TOWNS 11-3422 

11-3418. (5520.18) Recording and publishing of resolutions and ordi- 
nances. Every ordinance or resolution upon its final passage shall be re- 
corded in a book kept for that purpose and shall be authenticated by the 
signatures of the president and clerk. Within ten days after its final passage 
each ordinance or resolution shall be published at least once in such manner 
as the commission may by ordinance provide, 
mstory: En. Sec. 18, Ch. 121, L. 1923. 

11-3419. (5520.19) Initiative mea-surea — petition. Any proposed ordi- 
nance, except an ordinance making a tax levy or appropriation, may be sub- 
mitted to the commission by petition signed by ten per centum (10%) of the 
qualified electors of the municipality whose names appear on the register of 
voters on the date when the proposed ordinance is submitted to the com- 
mission. All petition papers circulated with respect to any proposed ordi- 
nance shall be uniform in character and shall contain the proposed 
ordinance in full. 

History: En. Sec. 19, Ch. 121, L. 1923. 

11-3420. (5520.20) Action of commission on initiative petitions. If an 

initiative petition, or amended petition be found sufficient by the clerk 
he shall so certify and shall submit the ordinance therein set forth to the 
commission at its next meeting, and the commission shall at once read and 
refer it to an appropriate committee, which may be a committee of the 
whole. Provision shall be made for public hearings upon the proposed ordi- 
nance before the committee to which it is referred. Thereafter the commit- 
tee shall report the ordinance to the commission, with its recommendations 
thereon, not later than sixty days aftfer the date on which such ordinance 
was submitted to the commission by the clerk. Upon receiving the ordi- 
nance from the committee the commission shall proceed at once to consider 
it and shall take final action thereon within thirty days from the date of 
such committee report. 
History: En. Sec. 20, Ch. 121, L. 1923. 

11-3421. (5520.21) Submission of initiative measure to electors. If the 

commission fail to pass an ordinance proposed by initiative petition, or pass 
it in a form different from that set forth in the petition therefor, the com- 
mittee of the petitioners hereinafter provided for may require that it be 
submitted to a vote of the electors either in its original form or with any 
change or amendment presented in writing either at a public hearing before 
the committee to which the proposed ordinance was referred or during the 
consideration thereof by the commission. If the committee of petitioners re- 
quire the submission of a proposed ordinance to a vote of the electors they 
shall certify that fact to the clerk and file in his office a certified copy of the 
ordinance, in the form in which it is to be submitted, within ten days after 
final action on such ordinance by the commission. 
History: En. Sec. 21, Ch. 121, L. 1923. 

11-3422. (5520.22) Time for submitting to electors— adoption on favor- 
able vote. Upon receipt of the certified copy of a proposed ordinance from 
the committee of the petitioners the clerk shall certify the fact to the com- 

101 



11-3423 ELECTION LAWS 

mission at its next regular meeting. If a municipal election is to be held 
within six months but more than ninety days after the receipt of the clerk's 
certificate by the commission, such proposed ordinance shall be submitted to 
a vote of the electors at such election. If no such election is to be held 
within the time aforesaid the commission may provide for submitting the 
proposed ordinance to the electors at a special election to be held not sooner 
than ninety days after receipt of the clerk's certificate. If no municipal 
election be held within six months as aforesaid, and the commission does not 
provide for a special election, the proposed ordinance shall be submitted 
to the electors at the first election held after the expiration of such six 
months. If, when submitted to the electors, a majority of those voting on 
a proposed ordinance shall vote in favor thereof, it shall thereupon be an 
ordinance of the municipality. 
History: En. Sec. 22, Cb. 121, L. 1923. 

11-3423. (5520.23) Effective date of initiative measure. When an ordi- 
nance proposed by initiative petition is passed by the commission in a 
changed or amended form, and the committee of the petitioners require that 
such proposed ordinance be submitted to a vote of the electors as hereinbe- 
fore provided, the ordinance as passed by the commission shall not take 
effect until after such vote, and, if the proposed ordinance so submitted, be 
approved by a majority of the electors voting thereon, the ordinance as 
passed by the commission shall be deemed repealed. 
History: En. Sec. 23, Ch. 121, L. 1923. 

11-3424. (5520.24) Repealing: ordinances may be initiated — ^publication, 
amending and repealing of initiative measures by commission. Proposed 
ordinances for repealing any existing ordinance or ordinances, in whole or 
in part, may be submitted to the commission as provided in the preceding 
sections for initiating ordinances. Initiated ordinances adopted by the elec- 
tors shall be published, and may be amended or repealed by the commission, 
as in the case of other ordinances. 
History: En. Sec. 24, Ch. 121, L. 1923. 

11-3425. (5520.25) Referendum — petition. The electors shall have 
power to approve or reject at the poUs any ordinance passed by the com- 
mission, except an ordinance making a tax levy or an emergency measure, 
such power being known as the referendum. Ordinances submitted to the 
commission and passed by the commission without change, or passed in an 
amended form and not required by the committee of the petitioners to be 
submitted to a vote of the electors, shall be subject to the referendum in the 
same manner as other ordinances. If, within thirty days after the final 
passage of an ordinance, a petition signed by ten per centum (10%) of the 
qualified electors whose names appear on the register of voters on the date 
when such petition is filed, shall be filed with the clerk requesting that the 
ordinance, or any specified part thereof, be either repealed or submitted to a 
vote of the electors, it ahall not become operative until the steps indicated 
herein have been taken. Referendum petitions shall contain the text of 
the ordinance, or part thereof, the repeal of which is sought. 
Hlrtory: En. Sec. 26, Ch. 121, L. 1923. 

102 



CITIES AND TOWNS 11-3429 

11-3426. (5520.26) Reconsideration of measure by commission — refer- 
ence to electors. If a referendum petition, or amended petition, be found 
suflScient by the clerk he shall certify that fact to the commission at its next 
regular meeting and the ordinance or part thereof set forth in the petition 
shall not go into effect, or further action thereunder shall be suspended if it 
shall have gone into effect, until approved by the electors as hereinafter 
provided. Upon receipt of the clerk's certificate the commission shall proceed 
to reconsider the ordinance or part thereof and its final vote upon such 
reconsideration shall be upon the question "Shall the ordinance (or part of 
the ordinance) set forth in the referendum petition be repealed?" If upon 
such reconsideration the ordinance, or part thereof, be not repealed it shall 
be submitted to the electors at the next municipal election held not less 
than ninety days after such final vote by the commission. The commission 
by vote of not less than two-thirds of its members may submit the ordi- 
nance, or part thereof, to the electors at a special election to be held not 
sooner than the time aforesaid. If when submitted to the electors any 
ordinance, or part thereof, be not approved by a majority of those voting 
thereon it shall be deemed repealed. 
History: En. Sec. 26, Oh. 121, L. 1923. 

11-3427. (5520.27) Voting on initiaUve or referendum measures — ^bal- 
lots. Ordinances, or parts thereof, submitted to vote of the electors in ac- 
cordance with the initiative and referendum provisions of this act shall be 
submitted by ballot title which shall be prepared in all cases by the director 
of law. The ballot title may be distinct from the legal title of any such 
proposed or referred ordinance and shall be a clear, concise statement, with- 
out argument or prejudice, descriptive of the substance of such ordinance or 
part thereof. The ballot used in voting upon any ordinance, or part thereof, 
shall have below the ballot title the two following propositions, one above 
the other, in the order indicated: "For the ordinance" and "Against the 
ordinance." Immediately at the left of each proposition there shall be a 
square in which by making a cross mark (X) the elector may vote for or 
against the ordinance or part thereof. Any number of ordinances, or parts 
thereof, may be voted upon at the same election and may be submitted on 
the same ballot, but the ballot used for voting thereon shall be for that 
purpose only. 
History: En. 8«c. 27, Oh. 121, L. 192S. 

11-3428. (5520.28) Preliminary acts authorixed prior to rabmissloii of 
ordinance to electors. In case a petition be filed requiring that an ordinance 
passed by the commission providing for the expenditure of money, a bond 
issue, or a public improvement be submitted to a vote of the electors, all 
steps preliminary to such actual expenditure, actual issuance of bonds, or 
actual execution of the contract for such improvement, may be taken prior 
to the election. 
History: En. Sec. 28, Oh. 121, L 1923. 

11-3429. (5520.29) Petitions for InHiative, referendimi or recall— cigiia- 
tures — afi9.daylt. The signatures to initiative, referendum or recall petitions 
need not all be appended to one paper, but to each separate petition paper 

103 



11-3430 ELECTION LAWS 

there shall be attached an affidavit of the circulator thereof as provided by 
this section. Each signer of any such petition paper shall sign his name in 
ink or indelible pencil and shall indicate after his name his place of resi- 
dence by street and number, or other description sufficient to identify the 
place. There shall appear on each petition paper the names and addresses 
of five electors of the municipality, who, as a committee of the petitioners, 
shall be regarded as responsible for the circulation and filing of the petition. 
The affidavit attached to the petition paper shall be as follows : 

State of Montana, city and county of , 

, being duly sworn, deposes and 

says that he is the circulator of the foregoing paper and that the signatures 
appended thereto were made in his presence and are the genuine signatures 
of the persons whose names they purport to be. 

Signed 

Subscribed and sworn to before me this day of 

,19 



Notary public for the state of Montana. 

Residing at , Montana. 

My commission expires 

History: En. Sec. 29, Oil. 121, L. 1923. 

11-3430. (5520.30) Petitions, assembling of papers comprising — clerk's 
certificate. All petition papers comprising an initiative, referendum or re- 
call petition shall be assembled and filed with the clerk as one instrument. 
Within ten days after a petition is filed the clerk shall determine whether it 
is signed by a sufficient number of electors and shall attach thereto a certifi- 
cate showing the result of his examination. If he shall certify that the 
petition is insufficient he shall set forth in his certificate the particulars in 
which it is defective and shall at once notify the committee of the petition- 
ers of his findings. 
History: En. Sec. SO, Oh. 121, L. 1923. 

11-3431. (5520.31) Petitions — amendments — filing new petition not 
precluded by finding of insufficiency. An initiative, referendum or recall 
petition may be amended at any time within ten days after the making of a 
certificate of insufficiency by the clerk, by filing a supplementary petition 
upon additional papers signed and filed as provided in case of an original 
petition. The clerk shall, within five days after such amendment is filed, 
make examination of the amended petition and, if his certificate shall show 
the petition still to be insufficient, he shall file it in his office and notify the 
committee of the petitioners of his findings and no further action shall be 
had on such insufficient petition. The finding of the insufficiency of a 
petition shall not prejudice the filing of a new petition for the same purpose. 
History: En. Sec. 31, OH. 121, L. 1923. 



104 



CITIES AND TOWNS 11-3531 

CHAPTER 35 

CITY AND COUNTY CONSOLIDATED GOVERNMENT (continued) 

Section 11-3530. Elections— officers to act. ■ ■. » 

11-3531. Municipal primary election — when held — nominees, majority vote 
elects — time for polls to be open — conduct of election. 

11-3532. Nominating petitions. 

11-3533. Form of nominating petition. 

11-3534. Filing of petitions — notification of nominees — entry of names on ballot. 

11-3535. Ballots — party designation forbidden — form. 

11-3536. Ballot — order of names. 

11-3537. Ballots — blank spaces. 

11-3538. Notices — primary election — municipal election — publication. 

11-3539. Ballots at municipal election — what names to appear. 

11-3540. Removal of commissioners — recall petitions. 

11-3541. Recall petitions — signatures — filing — amendment. 

11-3542. Recall election — notice to officer whose removal sought — time for 
holding. 

11-3543. Separate removals require separate petitions — nomination of succes- 
sors. 

11-3544. Recall elections — voting machines not used — form of ballots. 

11-3545. Result of votes — removal — designation of successor. 

11-3546. Resignation pending recall election, result of. 

11-3547. Limitation on filing recall petitions. 

11-3549. Political participation by appointees forbidden. 

11-3550. Penalizing appointees for not participating in politics forbidden — 
appointees not to act as officers of political organization or circulate 
petitions. 

11-3551. Penalty for violations. 

11-3559. Resolution declaring creation of consolidated government — effective 
date of merger — legal status. 

11-3530. (5520.90) Elections — officers to act. For any election held on 
the question of the adoption of this act, and for the first election of members 
of the commission thereunder, if adopted the county clerk and board of 
county commissioners shall exercise the powers and perform the duties 
respecting elections prescribed for county clerks and boards of county com- 
missioners by the general laws of the state. After the adoption of this act 
by the electors of the county, and the election and qualification of a commis- 
sion thereunder, the powers and duties of county clerks and boards of county 
commissioners under the general election laws of the state shall devolve 
upon the clerk and commission of the municipality and, except as otherwise 
provided in this act, the provisions of such laws shall continue to apply to 
all elections held within the municipality. 
History: En. Sec. 89, Ch. 121, L. 1923. 

11-3531. (5520.91) Municipal primary election— when held— nominees, 
majority vote elects — ^time for polls to be open — conduct of election. A 

municipal primary election for the choice of members of the commission 
shall be held on the last Tuesday in April in each year in which members of 
the commission are to be elected. All candidates for the commission re- 
ceiving a majority of the votes cast at the municipal primary election shall 
be deemed and declared elected to the commission. If candidates equal to the 
number of members of the commission to be elected do not receive a majority 
of the votes cast at such primary election, a municipal primary election shall 
be held on the first Tuesday in June next following the election. At all muni- 
cipal elections the polls shall be open from 8 a. m. to 6 p. m. The time, 

105 



11-3532 ELECTION LAWS 

manner and method of establishing election precincts and polling places 
and appointment of judges of election and the method of conducting elec- 
tion, registering voters therefor, counting the votes cast thereat, and can- 
vassing the returns thereof, shall be as prescribed by the general election 
laws of the state. 
History: En. Sec. 90, Oh. 121, L. 1923. 

11-3532. (5520.92) Nominating petitions. Any elector of the munici- 
pality eligible to membership in the commission may be placed in nomina- 
tion therefor by petition filed with the clerk and signed by at least two per 
centum (2%) of the qualified electors whose names appear upon the official 
register of voters of the municipality. The signatures to a nominating 
petition need not all be appended to one paper, but to each separate leaf of 
the petition there shall be attached an affidavit of the circulator thereof 
stating that each signature appended thereto was made in his presence and 
is the genuine signature of the person whose name it purports to be. Each 
signer of a petition shall sign his name in ink or indelible pencil and, after 
his name, shall designate his residence by street and number or other de- 
scription sufficient to identify the place, and give the date when his signature 
was made. No elector shall sign petitions for more candidates for the com- 
mission than the number of places to be filled therein at the forthcoming 
primary election. 
History: En. Sec. 91, Oh. 121, L. 1923. 

11-3533. (5520.93) Form of nominating petition. The form of nomina- 
ting petition papers shall be substantially as follows : 

We, the undersigned electors of the city and county of , 

hereby nominate whose residence is 

for the office of commissioner, to be voted for at the primary election to 

be held on the last Tuesday of April, 19 , and we individually certify 

that we are qualified to vote for candidates for the above office and that 

we have not signed nominating petitions for more than 

candidates for the commission. 

Residence (street and number) or description to identify place. 

Name. Date. 



State of Montana, city and county bf ss. 

, being duly sworn, deposes and says that he 

is the circulator of this petition paper ; that the signatures appended there- 
to were made in his presence and are the genuine signatures of the persons 
whose names they purport to be. 

Signed 

Subscribed and sworn to before me this day of 

,19 

Notary public for the state of Montana, residing at , 

Montana. My commission expires , 19 

mstorr. En. see. 92, at. Ifll. L. 1923. 

106 



CITIES AND TOWNS 11-3538 

11-3634. (5520.94) Filing of petitions — notification of nominees — entry 
of OAmes on ballot. All separate leaves comprising a nominating petition 
shall be assembled and filed with the clerk as one instrument at least thirty 
days prior to the next succeding last Tuesday in April. Within five days 
after the filing of the nomination petition the clerk shall notify the person 
name4 therein as a candidate whether such petition is signed by the required 
number of qualified electors. Any eligible person placed in nomination as 
hereinbefore provided shall have his name printed on the ballots and placed 
upon any voting machine used at the primary election, if within five days 
after such nomination, he shall have filed with the clerk a written accept- 
ance of the nomination. 
History: En. Sec 93, Ch. 121, L. 1923. 

11-3535. (5520.95) Ballota — party designation forbidden — form. No 
party mark or designation shall appear on the ballots, or in connection with 
the names of candidates on any voting machine, used in the election of 
members of the commission. Each elector may vote for as many candidates 
for the commission as there are places to be filled therein; but any ballot 
marked for more candidates than the number of places to be filled shall not 
be counted for any of the candidates for which marked. The ballots shall 
be in form substantially as follows: 

MUNICIPAL ELECTION 

City and county of 

(Month and day of month), 19 

FOR COMMISSIONERS 
Do not vote for more than 



History: En. Sec. 94, Oh. 121, L. 1923. 

11-3536. (5520.96) Ballot — order of names. At 2 o'clock p. m. on the 
tenth day before any election at which members of the commission are to 
be nominated and elected, the clerk shall publicly determine by lot the order 
in which the names of candidates for election to the commission shall be 
printed on the ballots, or appear on any voting machine, to be used at 
such election. 
History: En. Sec. 95, Oil. 121, L. 1923. 

11-3537. (5520.97) Ballots— blank spaces. As many blank spaces shall 
be left on the ballots below the printed names of candidates for the commis- 
sion as there are places to be filled therein. In any such space an elector 
may write the name of any eligible person, and a vote cast for such person 
shall be counted as though for a candidate whose name is printed on the 
ballots. 
History: En. S«c. 96, OIl 121, L. 1923. 

11-3538. (5520.98) Notices — primary election — mtmicipal election — 
publication. On the tenth day prior to the municipal primary election the 
clerk shall cause notice thereof to be published in such daily newspaper or 

107 



11-3539 ELECTION LAWS 

newspapers, printed and published within and of general circulation in the 
municipality as the commission may have designated, and if there be no daily 
newspaper then in such weekly newspaper or newspapers as may be so 
designated. In case the commission fail to designate such newspaper or 
newspapers, the clerk shall cause the notice to be published in such news- 
paper or newspapers printed and published within and of general circulation 
in the municipality as he may select. Such published notice shall contain a 
list of the candidates for the commission nominated as hereinbefore pro- 
vided, and state the time of holding the election. On the tenth day prior 
to a municipal election held on the first Tuesday in June the clerk, under 
like conditions, shall cause a similar notice to be published concerning that 
election. The commission may also provide for giving notice of such elec- 
tions by other means. 
History: En. Sec. 97, Ch. 121, L. 1923. 

11-3539. (5520.99) Ballots at municipal election — what names to ap- 
pear. At any municipal election held for the choice of members of the 
commission of the first Tuesday in June following a municipal primary 
election there shall be printed on the ballots and placed on the voting 
machines the names of the candidates receiving the highest number of votes 
at the municipal primary election, except the names of those elected to the 
commission thereat, and the number of names so printed on the ballots and 
placed on the voting machines shall be equal to double the number of places 
remaining to be filled in the commission. If, by reason of their having re- 
ceived the same number of votes, it cannot be determined which of two or 
more candidates shall have his name, or their names, printed on the ballots 
and placed on the voting machines, then, notwithstanding the foregoing pro- 
visions of this section the names of all such candidates receiving the same 
number of votes shall be printed on the ballots and placed on the voting 
machines. The candidates for the commission at an election held on the 
first Tuesday in June, equal in number to the places remaining to be filled 
in the commission, who receive the highest number of votes shall be declared 
elected. A tie between two or more candidates shall be decided by lot in the 
presence of such candidates and under the direction of the clerk. 
History: En. Sec. 98, Ch. 121, L. 1923. 

11-3540. (5520.100) Removal of commissioners — recall petitions. Any 
member of the commission may be removed from office by the electors of the 
municipality. The procedure for effecting such a removal shall be as 
follows : 

Any elector of the municipality may make and file an affidavit with 
the clerk requesting that petition be issued demanding an election for the 
recall of any member of the commission. Any such affidavit shall state 
the name of the person whose removal from the commission is sought and 
the grounds alleged for such removal. Upon the filing of such an affidavit 
the clerk shall deliver to the elector making the affidavit copies of petition 
papers for demanding such an election, printed copies of which the clerk 
shall keep on file for distribution as herein provided. In issuing any such 
petition paper the clerk shall enter in a record to be kept in his office the 

108 



CITIES AND TOWNS 11-3544 

name of the elector to whom issued, the date of issuance, the number of 
papers issued, and shall certify on each paper the name of the elector and the 
date of issuance. No petition paper shall be accepted as part of a petition 
unless it bear such certification of the clerk and unless filed as hereinafter 
provided. 
Hiijtory: En. Sec. 90, Oh. 121, L. 1923. 

11-3541. (5520.101) Recall petitions — signatures — flling — amend- 
ment. A petition for a recall election to be effective must be returned and 
filed with the clerk within thirty days after the filing of the affidavit as pro- 
vided in last preceding section, and to be sufficient must be signed by at 
least twenty per centum (20%) of the qualified electors of the municipality 
whose names appear on the official register of voters of the municipality 
on the date when such petition is returned and filed with the clerk. If any 
such petition is insufficient as originally filed it may be amended as provided 

in this act. 
History: En. Sec. 100, Cli. 121, L. 1923. 

11-3542. (5520.102) Recall election — ^notice to oflScer whose removal 
sought — ^time for holding. If a petition for a recall election, or an amended 
petition, shall be certified by the clerk to be sufficient, he shall at once sub- 
mit it to the commission with his certificate to that effect and shall notify 
the member of the commission whose removal is sought of such action. 
Unless the member whose removal is sought resign within five days after 
such notice, the commission shall thereupon order and fix a day for holding 
a recall election. Any such election shall be held not less than ninety nor 
more than one hundred and twenty days after the petition has been pre- 
sented to the commission and may be held at the same time- as any other 
election held within such period; but, if no other election be held within 
such period, the commission shall call a special recall election to be held 

within the time aforesaid. 
History: En. Sec. 101, Ch. 121, L. 1923. 

11-3543. (5520.103) Separate removals require separate petitions — 
nomination of successors. The question of recalling any number of mem- 
bers of the commission may be submitted at the same election, but as to 
each member whose removal is sought a separate petition shall be filed and 
provision shall be made for an entirely separate printed ballot. Candidates 
to succeed any person whose removal is sought shall be placed in nomina- 
tion by petition signed, filed and verified as provided for nominating peti- 
tions for a municipal primary election ; except that each petition paper shall 
specify that the candidate named therein is a candidate to succeed a 
particular person whose removal is sought. 
History: En. Sec. 102, Ch. 121, L. 1923. 

11-3544. (5520.104) Recall elections— voting machines not used— form 
of ballots. Voting machines shall not be used in recall elections, and the 
printed ballots shall be in form substantially as follows: 

109 



11-3545 ELECTION LAWS 

RECALL ELECTION 
City and County of 

(Month and day of month) 19. 



SHALL (name of person) BE REMOVED FROM THE COMMISSION 
BY RECALL? 



FOR THE RECALL OF 
(Name of Person.) 



AGAINST THE RECALL OF 
(Name of Person.) 



CANDIDATE 
To succeed (name of person) if recalled. Vote for but one. 



History: En. Sec. 103, Oh. 121, L. 1923. 

11-3545. (5520.105) Result of votes — removal — designation of succes- 
sor. If a majority of the votes cast on the question of recalling a member 
of the commission as hereinbefore provided be against his recall he shall 
continue in oflfice for the remainder of his unexpired term, but subject to 
recall as before. If a majority of such votes be for the recall of such mem- 
ber he shall, regardless of any defect in the recall petition, be deemed re- 
moved from office. When a member is removed from the commission bj' 
recall the candidate to succeed such member who receives the highest num- 
ber of votes shall succeed the member so removed for the unexpired term. 
History: En. Sec. 104, Ch. 121, L. 1923. 

11-3546. (5520.106) Resignation pending recall election, result of. If 

a person in regard to whom a recall petition is submitted to the commission 
shall resign from office after notice thereof no election shall be held and 
some eligible person shall be chosen by a majority vote of the remaining 
members to fill the place for the unexpired term ; but the member so resign- 
ing shall not be chosen by the commission to succeed himself. 
History: En, Sec. 105, Ch. 121, L. 1925. 

11-3547. (5520.107) Limitation on filing recall petitions. No recall 
petition shall be filed in respect to any member of the commission within 
three months after he takes office nor in ease of a member subjected to a 
recnll election and not removed thereby, until at last six months after that 
election. 
History: En. Sec. 106, Ch. 121, L. 1923. 

11-3549. (5520.109) Political participation by appointees forbidden. 

No person holding an appointive office or position in the municipal govern- 
ment shall directly or indirectly solicit or receive, or be in any manner con- 
cerned in soliciting or receiving, any assessment, subscription or contribu- 

110 



CITIES AND TOWNS 11-3559 

tion for any political party or purpose whatever. No person shall orally or 
by letter solicit, or be in any manner concerned in soliciting, any assessment, 
subscription or contribution for any political party or purpose from any 
person holding an appointive office or position in the municipal government. 
No person shall use or promise to use his influence or official authority to 
secure any appointment, or prospective appointment to any position in the 
service of the municipality as a reward or return for personal or partisan 
political service. No person shall take part in preparing any political 
assessment, subscription or contribution with the intent that it should be 
sent or presented to or collected from any person in the service of the 
municipality, nor shall he knowingly send or present directly or indirectly, 
in person or otherwise, any political assessment, subscription or contribution 
to, or request its payment by any person in such service, 
ffistory: En. Sec. 108, Ch. 121, L. 1923. 

11-3550. (5520.110) Penalizing appointees for not participating in 
politics forbidden — appointees not to act as officers of political organization 
or circulate petitions. No person in the service of the municipality shall 
discharge, suspend, lay off, reduce in grade, or in any manner change the 
official rank or compensation of any person in such service or threaten to 
do so, for withholding or neglecting to make any contribution of money or 
service or any valuable thing for any political service. No person holding 
an appointive office or place in the municipal government shall act as an 
officer in a political organization, or serve as a member of a committeee of 
any such organization, or circulate or seek signatures for any petition pro- 
vided for by primary or election laws. 
History: En. Sec. 109, Ch. 121, L. 1923. 

11-3551. (5520.111) Penalty for violations. Any person who, by him- 
self or in cooperation with one or more persons, wilfully or corruptly vio- 
lates any of the provisions of sections 11-3549 and 11-3550 of this act shall 
.be guilty of misdemeanor and shall, upon conviction thereof, be punished by 
a fine of not less than fift5^ dollars nor more than five hundred dollars or by 
imprisonment for a term not exceeding three months, or by both such fine 
and imprisonment, and if he be an officer or employee of the municipality 
he shall immediately forfeit his office or employment. 
History: En. Sec. 110, Ch. 121, L. 1923. 

11-3559. (5520.119) Resolution declaring creation of consolidated gov- 
ernment — effective date of merger — ^legal status. At the first meeting of 
the commission whose members are first elected under the provisions of this 
act, such commission shall adopt a Resolution reciting the filing of the 
petition provided for in section 11-3402, the ordering and holding of a spe- 
cial election as requested in such petition, the result of such election, and 
the holding of the special election for and the election of the members of the 
first commission, and the name and designation of the consolidated munici- 
pality, which resolution must be in duplicate, and signed by all of the 
members of the commission and also entered at length on the journal of 
the commission. One copy of such commission must be filed in the office of 
the clerk of the commission and the other copy thereof must be trans- 
Ill 



11-3601 ELECTION LAWS 



mitted to and filed in the ofiSce of the secretary of state. Immediately upon 
the adoption of such resolution by the commission the separate corporate 
existence of the county and of each and every city and town therein shall 
be deemed to be consolidated and merged into one municipal corporation 
under the name selected, designated and adopted as provided in this act, 
and such consolidated municipality shall thereupon be deemed to have suc- 
ceeded to, and to possess and own all of the property and assets of every 
kind and description and shall, save as herein otherwise provided, become 
responsible for all of the obligations and liabilities of the county, cities and 
towns so consolidated and merged. As a political subdivision of the state, 
such consolidated municipality shall have the status of a county, and for the 
purpose of representation in the legislative assembly, as provided by the 
constitution and laws of this state, and for all other purposes, it shall 
replace and be the successor of the county and shall be attached to the 
same judicial district. 
History: En. Sec. 118, Ci. 121, K 1923. 

CHAPTER 36 

METEOPOLITAN SANITARY DISTEICTS 
(Repealed — Section 14, Chapter 185, Laws of 1957) 

11-3601 to 11-36U. Repealed. 

B«peal ing however, that any metropolitan sani- 

These sections (Sees. 1 to 11, Ch. 292, tary sewer districts established under the 

L. 1947), relating to metropolitan sani- provisions of chapter 292, Laws of 1947, 

tary districts, were repealed by Sec. 14, shall be valid, and any obligations in- 

Ch. 185, Laws 1957. For new provisions curred thereunder shall in nowise be af- 

see 16-4401 to 16-4413. fected by the repeal of said chapter 292, 

The repealing clause also contained a Laws of 1947." 
savings provision. It read: "Chapter 292, 
Laws of 1947, is hereby repealed, provid- 

CHAPTER 37 
OFF-STREET PARKING FACILITIES 

Section 11-3703. Creation of parking commissions — revenue bonds. 

11-3703. Creation of parking commissions — revenue bonds. A city may 
create, as provided for in this section, a public body corporate and politic 
to be known as the "parking commission" of the city. The commission 
of any city shall not transact any business or exercise any powers under 
this act unless and until the legislative body of the city shall by resolution 
declare at any time hereafter that there is need for a parking commission 
to function in such city. The determination as to whether there is need 
for a commission to function may be made by the legislative body on its 
own motion or upon the filing of a petition signed by one hundred (100) 
residents of the city, asserting that there is need for a commission to func- 
tion in such city and requesting that the legislative body so declare. 

In any suit, action or proceeding by or against or in any manner 
relating to a parking commission, the commission shall be conclusively 
deemed to have become established and authorized to transact business 
and exercise its powers upon proof of the adoption of a resolution by the 

112 



CITIES AND TOWNS 11-3906 

legislative body declaring the need for the commission to function. A citj' 
shall not transact any business or exercise any powers of this act unless 
and until the legislative body of the city shall by resolution declare "that 
there is need for such city to exercise the powers of a parking commission 
as provided in this act. 

Either or both such resolutions may be adopted by the legislative body 
of a city. If both such resolutions are adopted they shall clearly specify 
areas within the city less than the whole thereof, within which, or projects 
over which, the commission and the city, respectively, are to have juris- 
diction and control. The division of such jurisdiction and control shall 
be as so specified, but may be changed from time to time by action of both 
the legislative body and the commission, to such extent as may be con- 
sistent with obligations to bondholders assumed under this act. 

The power to issue revenue bonds as provided in this act shall not be 
operative in any city until the legislative body, either at a general or a 
special election, shall submit to the electors, whose qualifications shall be 
the same as those required for voting at municipal elections in the city for 
elective officers thereof, the question as to whether the legislative body, or 
the commission, or both, shall be authorized to adopt the revenue bond 
method of financing projects provided for herein. Such question may be 
placed before the electors and notice thereof given in the same manner 
as provided by law for referring ordinances of the city to the electors. The 
provisions relating to the qualifications of electors and manner of submis- 
sion of the question to the electors for the purposes of this act shall govern 
and be controlling, any provision of law to the contrary notwithstanding. 

History: En. Sec. 3, Ch. 223, L. 1951; 
amd. Sec. 2, Ch. 127, L. 1955. 

CHAPTER 39 

UEBAN EENEWAL LAW 

Section 11-3906. Preparation and approval of urban renewal projects and urban re- 
newal plans. 

11-3906. Preparation and approval of urban renewal projects and 
urban renewal plans, (a) A municipality shall not approve an urban 
renewal project for an urban renewal area unless the local governing body 
has, by resolution, determined such area to be a blighted area and des- 
ignated such area as appropriate for an urban renewal project. The local 
governing body shall not approve an urban renewal plan until a compre- 
hensive plan or parts of such plan for an area which would include an 
urban renewal area for the municipality have been prepared. For this 
purpose and other municipal purposes, authority is hereby vested in every 
municipality to prepare, to adopt, and to revise from time to time, a 
comprehensive plan or parts thereof for the physical development of 
the municipality as a whole (giving due regard to the environs and metro- 
politan surroundings), to establish and maintain a planning commission 
for such purpose and related municipal planning activities, and to make 
available and to appropriate necessary funds therefor. A municipality shall 
not acquire real property for an urban renewal project unless the local 

113 



11-3906 ELECTION LAWS 



governing body has approved the urban renewal project plan in accordance 
with subsection (d) hereof. 

(b) The municipality may itself prepare or cause to be prepared an 
urban renewal plan, or any person or agency, public or private, may 
submit such a plan to the municipality. Prior to its approval of an urban 
renewal project, the local governing body shall submit such plan to the 
planning commission of the municipality for review and recommendations 
as to its conformity with the comprehensive plan or parts thereof for the 
development of the municipalit}' as a whole. The planning commission 
shall submit its written recommendations with respect to the proposed 
urban renewal plan to the local governing body within sixty (60) days 
after receipt of it. Upon receipt of the recommendations of the planning 
commission, or if no recommendations are received within said sixty (60) 
days, then without such recommendations, the local governing body may 
proceed with the hearing on the proposed urban renewal project plan 
prescribed by subsection (c) hereof. 

(c) The local governing body shall hold a public hearing on an urban 
renewal plan after public notice thereof. Such notice shall be given by 
publication once each week for two consecutive weeks not less than ten 
(10) nor more than thirty (30) days prior to the date of the hearing in a 
newspaper having a general circulation in the urban renewal area of the 
municipality and by mailing a notice of such hearing not less than ten 
(10) days prior to the date of the hearing to the persons whose names 
appear on the county treasurer's tax roll as the owner or reputed owner 
of the property, at the address shown on the tax roll. The notice shall 
describe the time, date, place, and purpose of the hearing, shall generally 
identify the urban renewal area affected, and shall outline the general scope 
of the urban renewal plan under consideration. 

(d) Following such hearing, the local governing body may approve 
an urban renewal project if it finds that (1) a workable and feasible plan 
exists for making available adequate housing for the persons who may be 
displaced by the project; (2) the urban renewal plan conforms to the 
comprehensive plan or parts thereof for the municipality as a whole; 
(3) the urban renewal plan will afford maximum opportunity, consistent 
with the sound needs of the municipality as a whole, for the rehabilita- 
tion or redevolpment of the urban renewal area by private enterprise; 
and (4) that a sound and adequate financial program exists for the financing 
of said project. 

Provided, that the local governing body must find the urban renewal 
project area to be blighted area as defined in section 11-3901, subsection (b). 

(e) An urban renewal project plan may be modified at any time by 
the local governing body: Provided, that if modified after the lease or 
sale by the municipality of real property in the urban renewal project area, 
such modification shall be subject to such rights at law or in equity as 
a lessee or purchaser, or his successor or successors in interest may be 
entitled to assert. 

(f) Upon the approval of an urban renewal project by a municipality, 
the provisions of the urban renewal plan with respect to the future use and 

114 



COUNTIES 16-301 

building requirements applicable to the property covered by said plan 
shall be controlling with respect thereto. 

(g) Upon the approval of an urban renewal project by a municipality 
the plan shall be submitted to a vote of the taxpayers of such municipal- 
ity and shall be approved by a majority of those taxpayers voting on 
such question. If the plan or any subsequent modification thereof in- 
volves financing by the issuance of general obligation bonds of the mu- 
nicipality as authorized in section 11-3913, subsection (c), or the financing 
of water or sewer improvements by the issuance of reverue bonds under 
the provisions of Title 11, chapter 24, or of sections 11-2217 to 11-2221, in- 
clusive, the question of approving the plan and issuing such bonds shall be 
submitted to a vote of the taxpayers of such municipality in accordance 
with the provisions of sections 11-2308 to 11-2310, inclusive, at the same elec- 
tion and shall be approved by a majority of those taxpayers voting on such 
question. Aiding in the planning, undertaking or carrying out of an urban 
renewal project approved in accordance with this section shall be deemed a 
single purpose for the issuance of general obligation bonds, and the proceeds 
of such bonds authorized for any such project may be used to finance the 
exercise of any and all powers conferred upon the municipality by section 
11-3907 which are necessary or proper to complete such project in accord- 
ance with the approved plan and any modification thereof duly adopted by 
the local governing body. Sections 11-2306 and 11-2307 shall not be appli- 
cable to the issuance of such bonds. 

History: En. Sec. 6, Ch.. 195, L. 1959; 
amd. Sec. 2, Ch. 38, L. 1965. 

TITLE 16 

COUNTIES 



CHAPTER 3 

REMOVAL OF COUNTY SEATS 

Section 16-301. Removal of county seat — petition. 

16-302. Submission to electors — who are taxpayers. 

16-303. Election, notice of, how held and conducted. 

16-304. Voter to vote for place he prefers. 

16-305. Publication of result. 

16-306. Place chosen to be county seat. 

16-307. Statement of result and notice transmitted. 

16-308. No second election to be held within four years. 

16-309. County seat may be removed from time to time. 

16-301. (4369) Removal of county seat — petition. Whenever the in- 
habitants of any county of this state desire to remove the county seat of a 
county from the place where it is fixed by law, or otherwise, to another 
place, they may present a petition to the board of county commissioners of 
their county praying such removal, such place to be named in the petition, 
and that an election be held to determine whether or not such removal must 

115 



16-302 ELECTION LAWS 



be made. The petition to remove the county seat of the county from the 
place where it is fixed by law to another place must be presented to the 
board of county commissioners at least sixty days prior to any action 
thereon being taken by the board of county commissioners, and action on 
said petition by the board of county commissioners must be had at a regxdar 
meeting of said board of county commissioners. Such petition must be 
filed with the county clerk, and the county clerk, immediately upon the 
filing of said petition, must cause to be printed in every newspaper pub- 
lished within said county a notice to the effect that a petition praying 
for the removal of said county seat has been filed with the county clerk, 
and that said petition is open to the inspection of any and all persons 
interested therein, and that said petition will be presented to the board 
of county commissioners at its next regular session for action thereon. No 
other or additional petition than the one originally filed shall be con- 
sidered by the board of county commissioners, except that at any time on or 
before the date fixed for the hearing, any person having signed the original 
petition for the removal of the county seat may file a statement in writing 
with the county clerk that he desires to have his name withdrawn from 
such petition; provided, that not more than one withdrawal shall be per- 
mitted by the same person. 

History: En. Sec. 4157, Pol. C. 1895; 1915; amd. Sec. 1, Oh. 10, L. 1919; re-en. 
amd. Sec. 1, p. 145, L. 1901; re-en. Sec. Sec. 4369, R. C. M. 1921. Cal. Pol. C. Sec. 
2851, Rev. C. 1907; amd. Sec. 1, Ch. 62, L. 3976. 

16-302. (4370) Submission to electors — who are ta.xpayers. If the 

petition is signed by sixty-five per cent of the taxpayers of such county, 
the board of county commissioners must at the next general election submit 
the question of removal to the electors of the county; provided, that the 
term "taxpayers" used in this section shall be deemed to mean "ad valorem 
taxpayers," and that for the purpose of testing the suflSciency of any peti- 
tion which may be presented to the county commissioners as provided in 
this section, the county commissioners shall compare such petition with the 
poll-books in the county clerk's office constituting the returns of the last 
general election held in their county, for the purpose of ascertaining 
whether such petition bears the names of sixty-five per cent of the tax- 
paying voters listed therein ; and they shall make a similar comparison 
of the names signed to the petition with those appearing upon the listed 
assessment roll of the county for the purpose of ascertaining whether the 
petition bears the names of sixty-five per cent of the ad valorem tax- 
payers as listed in said assessment roll; and if such petition then shows 
that it has not been signed by sixty-five per cent of the voters of the 
county who are ad valorem taxpayers thereof, after deducting from the 
said original petition the names of all persons who may have signed 
such original petition, and who may have filed, or caused to be filed, with 
the county clerk of said county or the board of county commissioners, on 
or before the date fixed for the hearing, their statement in writing of the 
withdrawal of their names from the original petition, it shall be deemed 
insufficient, and the question of the removal of the county seat shall not 
be submitted. 

116 



COUNTIES 16-308 



History: En. Sec. 4158, Pol. C. 1895; 1919; re-en. Sec. 4370, R. C. M. 1921. Cal. 
amd. Sec. 2, p. 146, L. 1901; re-en. Sec. Pol. C. Sec. 3977. 
2852, Rev. C. 1907; amd. Sec. 2, Ch. 10, L. 

16-303. (4371) Election, notice of, how held and conducted. Notice of 

such election, clearly stating the object, must be given, and the election 

must be held and conducted, and the returns made, in all respects in the 

manner prescribed by law in regard to the submitting of questions to the 

electors of a locality under the general election law. 

History: En. Sec. 4159, Pol. C. 1895; 
re-en. Sec. 2853, Rev. C. 1907; re-en. Sec, 

4371, R. C. M. 1921. Cal. Pol. C. Sec. 3979. 

16-304. (4372) Voter to vote for place he prefers. In voting on the 
question, each elector must vote for the place in the county which he pre- 
fers, by placing opposite the name of the place the mark X. 

History: En. Sec. 4160, Pol. C. 1895; 
re-en. Sec. 2864, Rev. C. 1907; re-en. Sec. 

4372, R. C. M. 1921. Cal. PoL C. Sec. 3980. 

16-305. (4373) Publication of result. When the returns have been re- 
ceived and compared, and the results ascertained by the board, if a majority 
of the qualified electors of the county have voted in favor of any particular 
place, the board must give notice of the results by posting notices thereof 
in all the election precincts of the county, and by publishing a like notice 
in a newspaper printed in the county at least once a week for four weeks. 

History: En. Sec. 3, p. 146, L. 1901; Ch. 27, L. 1921; re-en. Sec. 4373, R. 0. M. 
'le-em. Sec. 2855, Rev. C. 1907; amd. Sec. 1, 1921. Cal. Pol. C. Sec. 3981. 

16-306. (4374) Place chosen to be county seat. In the notice provided 

for in the next preceding section, the place selected to be the county seat of 

the county must be so declared from a day specified in the notice not more 

than ninety days after the election. After the day named in the notice, 

the place chosen is the county seat of the county. 

History: En. Sec. 4162, Pol. C. 1895; 
re-en. Sec. 2856, Rev. C. 1907; re-en. Sec. 

4374, R. C. M. 1921. CaL Pol. C. Sec. 3982. 

16-307. (4375) Statement of result and notice transmitted. Whenever 
any election has been held, as provided for in the preceding sections of this 
chapter, the statement made by the board of county commissioners, show- 
ing the result thereof, must be deposited in the office of the county clerk, 
and whenever the board gives the notice prescribed by section 16-306 of this 
code, they must transmit a certified copy thereof to the secretary of state. 

History: En. Sec. 4163, Pol. C. 1895; 
re-en. Sec. 2857, Rev. C. 1907; re-en. Sec. 

4375, R. C. M. 1921. Cal. Pol. 0. Sec, 3983. 

16-308. (4376) No second election to be held within four years. When 

an election has been held and a majority of the votes are not cast for some 

other place than that fixed by law as the former county seat, no second 

election for the removal thereof must be held within four years thereafter. 

History: En. Sec, 4164, Pol, C, 1895; 
re-en. Sec. 2858, Rev. C. 1907; re-en. Sec. 

4376, R. 0. M. 1921, Cal. Pol. C. Sec. 3984. 

117 



16-309 ELECTION LAWS 



16-309. (4377) Coitnty seat may be removed from time to time. When 

the county seat of a county has been once removed by a popular vote of the 

people of the county, it may be again removed from time to time in the 

manner provided by this chapter. 

History: En. Sec. 4, Ch. 146, L. 1901; 
re-en. Sec. 2859, Rev. C. 1907; re-en. Sec. 
4377, R. C. M. 1921. Cal. Pol. C. Sec. 3985. 



CHAPTER 4 

LOCATION OF COUNTY SEATS 

Section 16-401. Meeting and organization of board of commissioners on creation of 

new county — county clerk. 

16-402. Designation of temporary county seat — special election. 

16-403. Proceedings after petition for county seat election. 

16-404. Division of county into registration and polling precincts. 

16-405. Registration of voters. 

16-406. Judges of election — ballots, books and records. 

16-407. Applicability of general election laws. 

16-408. Form of ballot. 

16-409. Canvass of returns — result of election. 

16-410. Ke-election in case of failure to select county seat. 

16-411. Applicability of general laws to new counties and officers. 

16-412. Submission of question of locating permanent county seat to voters — 

elections. 

16-401. (4378) Meeting and organization of board of commissioners on 
creation of new county — county clerk. Whenever a county is created here- 
after in this state by legislative enactment, it shall be the duty of the per- 
sons appointed to the office of county commissioners of such county by the 
act creating it, to meet at some place in the county, to be agreed upon by a 
majority of said county commissioners, within fifteen days after the 
passage of the act creating the county, and then and there organize as a 
board of county commissioners by electing one of their number chairman. 

The person appointed to the office of county clerk in the bill creating 

the county shall be notified in writing by the county commissioners, or 

some one of them, of the time and place of said meeting, and he must 

attend the meeting and act as the clerk thereof and keep a record of the 

proceedings. If no person is appointed to the office of county clerk by 

the act creating the county, the commissioners shall at such meeting 

select some person qualified to hold office of county clerk to act as clerk of 

of such meeting. 

History: En. Sec. 1, Ch. 135, L. 1911; 
re-en. Sec. 4378, R. C. M. 1921. 

16-402. (4379) Designation of temporary county seat — special election. 

(1) Immediately after the organization of the board of county commis- 
sioners, as provided in the preceding section, said board shall, by a resolu- 
tion spread upon the minutes of its proceedings, designate some place within 
said county as and to be the temporary county seat until the permanent 
county seat shall be located as hereinafter in this act provided. The place so 
designated shall be the temporary county seat of said county until the 

118 



COUNTIES 16-402 

permanent county seat is located by the electors of said county at the 
general election to be held on the first Tuesday after the first Monday of 
November of the next even-numbered year after the creation of the county, 
or at a special election as hereinafter provided. 

(2) In the event of a majority of the county commissioners failing to 
agree upon the location of the temporary county seat, then each county com- 
missioner shall v^rite the name of the place he favors as the temporary 
county seat on a slip of paper and said slips be inclosed in envelopes of the 
same size, color, and texture, and shall be deposited in a box or other 
suitable receptacle, and the county clerk, in the presence of said commis- 
sioners, shall draw out one of the said slips. Thereupon the county com- 
missioners shall, by resolution spread upon the minutes, declare the place 
named on the slip so drawn by the county clerk to be the temporary 
county seat of said county. 

(3) At said first general election after the creation of the county, it 
shall be the duty of the board of county commissioners and county clerk to 
have separate official ballots printed and distributed for the use of the 
electors at said election; which ballots shall be in the form and contain 
the same matter as the ballots provided for in section 16-408 of this code, 
and the provisions of section 16-409 of this code shall apply to and govern 
the manner of voting and of canvassing said ballots, and the board of 
county commissioners shall declare the result of such election and the 
location of the permanent county seat, and said county seat shall be lo- 
cated in the manner and according to the provisions of said section 16-409. 

(4) Provided, however, that at any time within six months after the 
passage of an act creating a new county, a petition or petitions may be filed 
with the county clerk of the board of county commissioners of such county 
asking the board to submit the question of the location of the permanent 
county seat to the electors of the county at a special election to be called 
and held in the manner hereinafter in this act provided. Said petition or 
petitions must contain in the aggregate the names of at least one hundred 
taxpayers, whose names appear upon the assessment-books containing the 
last assessment of the property situated in such new county, and whose 
names also appear as registered electors in some registration district estab- 
lished and existing in the territory embraced in the new county at the 
last general election held therein. 

(5) The petition or petitions when filed with the board must also have 
certificates attached thereto from the county clerk of the county in which 
the person or persons signing the petition resided before the creation of 
the new county, certifying that the names of the person signing said peti- 
tion or petitions appear in the last assessment-books of his county, and 
also in the registration-books of his county containing the names of the 
electors registered in the last general election in the districts now embraced 
in the new county. 

History: En. Sec. 2, Ch. 135, L. 1911; 
re-en. Sec. 4379, B. C. M. 1921. 



119 



16-403 ELECTION LAWS 



16-403. (4380) Proceedings after petition for county seat election. 
Upon filing said petition or petitions, duly certified to as provided in the 
preceding section, with the county clerk of the new county, he must im- 
mediately notify the chairman of the board of county commissioners who, 
upon receipt of such notice, must call a meeting of the board to be held 
within ten days after the filing of said petition, for the purpose of consider- 
ing the same. If the board at such meeting finds that said petition conforms 
to the requirements of and is in accordance with the provisions of the pre- 
ceding section, it shall at said meeting, by a resolution spread upon its 
minutes, call a special election of the qualified electors of said county for 
the purpose of voting upon the question of the location of the permanent 
county seat. 

Said election shall be held on Tuesday and not less than forty nor 

more than sixty days after the date of calling the same. The board must 

issue an election proclamation containing a statement of the time of the 

election and the question to be submitted. A copy of this proclamation 

must be published in some newspaper printed in the county, if any, and 

posted at each place of election at least ten days before the election. 

mstory; En. Sec. 3, Ch. 135, L. 1911; 
re^en. Sec. 4380, B. C. M. 1921. 

16-404. (4381) Division of county into registration and polling pre- 
cincts. At the meeting of the board at which the special election is called 
for the purpose of locating the permanent county seat, the board shall, by 
resolution spread upon its minutes, divide the county into registration dis- 
tricts and establish polling precincts in the manner provided by law. It must 
also, at such meeting, make an order designating the house or place within 
each precinct where the election shall be held. It must also at the same 
session of the board appoint registry agents for the several registration 
districts established by it, who must possess the qualifications required by 
law for registry agents. The county clerk must furnish the said registry 
agents with books, blanks, and other stationery required for the proper 
performance of their duties. 

History: En. Sec. 4, Ch. 135, L. 1911; tors held impliedly repealed by Ch. 122, 

re-en. Sec. 4381, R. C. M. 1921. Laws of 1915, sections 23-501 to 23-534 

NOTE.— Sections 16-404 (4381) and 16- (553 to 586). Opinions of Attorney General 

405 (4382) relating to registration of elec- ^ol. 8, Pg. 247. 

16-405. (4382) Registration of voters. The period for the registration 
of electors shall be between the hours of nine a. m. and nine p. m. on all legal 
days from nine a. m. of the fourth Monday prior to the date of said election 
to nine p. m. of the second following Saturday. It shall be the duty of 
each registry agent to publish and post notices of the time and places of 
registration in the manner provided by law for the publication of notices 
of registration for general elections. No person shall be entitled to regis- 
ter and vote at such special election unless he is a qualified voter of the 
state of Montana of the age of twenty-one years, and will have been a 
resident of Montana one year and of the territory embraced within the 
boundaries of the new county for a period of one hundred and eighty days 

120 



COUNTIES 16-408 

on the day next preceding the day of such election, and also takes and 
subscribes to the oath provided in section 479, Revised Codes of Montana. 

The general election laws of this state governing the registration of 
electors and defining the duties of the registry agents shall apply to and 
govern the registration of electors in elections held under this act insofar 
as the same do not conflict herewith. 

History: En. Sec. 5, Ch. 135, L. 1911; was repealed by chapter 113, Laws of 1911. 
re-en. Sec. 4382, R. C. M. 1921. This section held impliedly repealed, see 

NOTE.— Section 479, referred to above, note to sec. 16-404. 

16-406. (4383) Judges of election — ^ballots, books and repords. At the 

same meeting of the board of county commissioners at which the special 

election for the location of the permanent county seat is called, the board 

shall appoint three judges of election for each precinct in the county who 

shall act as the judges at said election. It shall be the duty of the county 

clerk to have printed and distributed to the judges of election the necessary 

ballots, the form of which shall be as provided in sections 16-402, 16-408, and 

16-410 of this code, and also supply the judges with the necessary books, 

records, stationery and ballot-boxes required to hold such election in the 

manner provided by law. 

History: En. Sec. 6, Ch. 135, L. 1911; 
re-en. Sec. 4383, R. C. M. 1921. 

16-407. (4384) Applicability of general election laws. The judges ap- 
pointed for said special election must qualify as required by the general 
election law, and the polls must be opened and closed, the voting done, the 
ballots counted, returns made to the board of county commissioners, and all 
other matters connected with said election carried on and conducted in 
accordance with and as provided by the general election laws of this state. 

History: En. Sec. 7, Ch. 135, L. 1911; 
re-en. Sec. 4384, R. C. M. 1921. 

16-408. (4385) Form of ballot. The form of the ballot used at such 
elections shall be as follows: There shall be a stub across the top of each 
ballot, and separated therefrom by a perforated line. The part above the 
perforated line, designated as the stub, shall extend the entire width of the 
ballot, and shall have a depth of not less than two inches. Upon the face 
of the stub there shall be printed in what is known as brevier capitals the 
following instructions : 

"To vote this ballot the elector will write in the blank space on the 
ballot the name of the town or place at which he desires the permanent 
county seat to be located." 

The ballot below the perforated line shall be in the following form: 

"For the permanent county seat of _ county my choice 

is "; (here insert name of county) 

Provided, that any person who, from any cause, is unable to write, may 

have one of the judges in the presence of another judge write his choice 

on the ballot. 

History: En. Sec. 8, Ch. 135, L. 1911; 
re-en. Sec. 4385, R. C. M. 1921. 

121 



16-409 ELECTION LAWS 



16-409. (4386) Canvass of returns — result of election. When the name 
of a town or place in a county shall be so inserted in the blank space on 
such ballot by an elector, and the ballot has been cast as provided by law, 
the same shall be deemed a vote for the designated town or place as the 
location of the permanent county seat of said county. The board of county 
commissioners of said county shall canvass the returns of said election in 
the manner provided by law for the canvassing of election returns, and 
upon such canvassing of returns the town or place found to have received 
a majority of all votes cast on such questions shall be declared by the 
board the permanent county seat of the county. The order declaring the 
result of such election shall be entered of record in the minutes of the pro- 
ceedings of the board of county commissioners by the county clerk, and 
from the date of the declaration of the results of the election the town or 
place selected shall be and remain, until lawfully changed in the manner 
provided by law, the permanent county seat of such county. Within ten 
days after the declaration of the result of such election, all records and 
county offices of the county, if elsewhere located, must be moved to and 
remain at the place declared the permanent county seat. 

History: En. Sec, 9, Ch. 135, L. 1911; 
re-en. Sec. 4386, B. C. M. 1921. 

16-410. (4387) Re-election in case of failure to select county seat. If 
no town or place receives a majority of all votes cast on such question, 
then the town or place receiving the highest number of votes shall be de- 
clared by the board and immediately become the temporary county seat of 
the county, and at the next general election the two towns or places receiv- 
ing the greatest number of votes at said first election shall be the candidates 
for the permanent county seat. At said next general election, the county 
clerk shall have separate ballots in the form provided for in section 16-408 
of this code printed and distributed as provided by law containing the 
names of said candidates for the permanent county seat. On the stub of 
such ballots shall be printed the following instructions : 

"To vote this ballot the elector will place an X in the square before 
the name of the town he intends to vote for." 

The form of such ballots below the perforated line shall be as follows: 



.for the permanent county seat 



for the permanent county seat 

Of said towns or places the one receiving a majority of all the votes 
cast on such question shall be declared the permanent county seat, and the 
board of county commissioners must canvass the returns and declare the 
result, and the county seat must be located in accordance with the provi- 
sions of this act. 

History: En. Sec. 10, Ch. 135, L. 1911; 
re-en. Sec. 4387, R. 0. M. 1921. 

16-411. (4388) Applicability of general laws to new counties and 
officers. All laws of general nature applicable to the several counties of 
the state of Montana and to the officers thereof, and to their powers and 

122 



COUNTIES 16-412 



duties, shall be applicable to a new county and the oflScers thereof from and 
after the creation of the county, except as otherwise provided in this act, or 
the act creating the county. 

History: En. Sec. 11, Ch. 136, L. 1911; 
re-en. Sec. 4388, E. 0. M. 1921. 

16-412. (4389) Submission of question of locating permanent county 
seat to voters — elections. Any county heretofore created, in which the 
permanent county seat has not been located by valid election held for the 
purpose of locating the permanent county seat of said couniy, may have a 
special election, for the purpose of voting on such question, called and 
held under the provisions of this act, or if no special election is held for 
such purpose, then said question shall be submitted by the county commis- 
sioners at the next general election after the passage of this act and in 
the manner provided herein for the submission of such questions at gen- 
eral elections; provided, however, that no special election shall be called 
for the purpose of submitting such question unless a petition or petitions 
containing in the aggregate the names of one hundred taxpaying electors 
of such county, whose names appear upon the last assessment book, and 
also on the last registration-books of said county, are filed with the clerk 
of the board of county commissioners within six months after the passage 
and approval of this act. 

Upon the filing of such petition or petitions within said time, contain- 
ing the requisite number of taxpaying electors, which must be ascertained 
by the board from the records of said county, said board must immediately 
call such special election as herein provided. 

If registration districts and polling precincts have already been estab- 
lished in said county, they shall remain the same for such special election, 
but a new registration shall be had and said special election conducted 
and the result determined as in this act provided. 

The provisions of this section shall not apply in any case where there 
has been a permanent county seat located and maintained for a period of 
three years from the date immediately subsequent to the date of the 
approval of this act, whether the same was located by a legal election or 
otherwise. 

History: En. Sec. 12, Oh. 135, L. 1911; 
re-en. Sec. 4389, B. C. M. 1921. 

CHAPTER 5 
CREATION OF NEW COUNTIES BY PETITION AND ELECTION 

Section 16-501. Creation of new counties — debts and assets prorated — ^minimum area 

and valuation. 
16-502. Basis of taxation upon creation of new county — ^tenns used in law 

defined. 
16-503. Cities and towns eligible for county seat. 
16-504. Petition for creation of new county — attached affidavits — notice and 

hearing. 
16-505. Duty of commissioners when findings justify new county— division into 

township, road and school districts— change of boundaries of election 

precincts — election — temporary county scat. 
16-506. Measures to be taken after election — officers — effect of adverse vote. 
16-507. Officers of new county — judicial district. 

123 



16-501 ELECTION LAWS 



16-509. Board of county commissioners to be elected. 

16-517. Publication by posting of notice. 

16-519. Misdemeanor and malfeasance in office. 

16-520. Bepealing and saving clause. 

16-501. (4390) Creation of new counties — debts and assets prorated — 
minimum area and valuation. New counties may from time to time be 
formed and created in this state from portions of one or more counties, 
which shall have been created and in existence for a period of more than 
two years, in the manner set forth and provided in this act; provided, how- 
ever, that no new county shall be established which shall reduce any county 
to an assessed valuation of less than twelve million dollars ($12,000,000.00), 
inclusive of all assessed valuation as shown by the last preceding assess- 
ment ; nor shall any new county be established which shall reduce the area 
of any existing county from which territory is taken to form such new 
county, to less than twelve hundred square miles of surveyed land, exclu- 
sive of all forest reserve and Indian reservations within old counties nor 
shall any new county be formed which contains an assessed valuation of 
property less than ten million dollars ($10,000,000.00), inclusive of all as- 
sessed valuation as shown by the last preceding assessment, of the county 
or counties from which such new county is to be established, nor shall any 
new county be formed which contains less than one thousand square miles 
of surveyed land exclusive of all forest reserve land or Indian reservations, 
not open for settlement, nor shall any line thereof pass within fifteen miles 
of the court house situate at the county seat of the county sought to be 
divided ; provided, that such county line may be run within a distance of 
ten miles of a county seat in cases where the natural contour of the county, 
by reason of mountain ranges or other topographical conditions, is such as 
to make it difficult to reach the county seat, and in such cases a petition, 
signed by at least fifty-eight per centum (58%), of the voters in the pro- 
posed new county, shall be presented to the judge of the district court in 
which the county affected is located, asking for the appointment of a com- 
mission of five (5) disinterested persons, who shall determine if the topo- 
graphical conditions are such as to warrant the fixing of the county division 
lines closer than at fifteen miles from the county seat, as such boundaries 
are legally fixed and determined at the date of the filing of the petition or 
petitions referred to in section 16-504 of this code. 

Every county which shall be enlarged or created from the territory 
taken from any other county or counties shall be liable for a prorata pro- 
portion of the existing debts and liabilities of the county or counties from 
which such territory shall be taken, and shall be entitled to a prorata pro- 
portion of the assets of the county or counties from which such territory is 
taken, to be determined as provided by section 16-502, 16-503 and 16-511. 

History: The first new county act was plete new county law esnacteA by Ch. 139, 

Ch. 112, L. 1911. The first four sections L. 1915, which was repealed by Oh. 226, L. 

of this act were amended and the rest re- 1919. This section en. Sec. 1, Ch. 226, L. 

enacted by Ch. 133, L. 1913; Sec. 7 of the 1919; re-en. Sec. 4390, R. 0. M. 1921; amd. 

act was also amended by Ch. 135, L, 1913. Sec. 1, Ch. 106, L. 1929. 
Ail these acts were repealed and a com- 

16-502. (4391) Basis of taxation upon creation of new county — terms 
used in law defined. For the purposes of this act the assessed valuation of 

124 



COUNTIES 16-504 

all property, whether included within the boundaries of a proposed new 
county, or remaining within the boundaries of any existing county or coun- 
ties from which territory is taken, shall be fixed and determined on the same 
basis as is used for the imposition of taxes in the state of Montana, to-wit : 
By taking that percentage of the true and full value of all taxable property 
in any county specified by section 84-302. 

Whenever in this act the term "assessed valuation" or "valuation based 
on the last assessment roll" is used, said terms shall be construed as mean- 
ing taxable valuation determined as herein provided, not the full and true 
valuation of property. 

History: En. Sec. 1, Ch. 16, Ex. L. 
1919; re-en. Sec, 4391, R. C. M. 1921. 

16-503. (4392) Cities and towns eligible for county scat. No city, 
town, or village shall become the temporary or permanent county seat of 
any county organization under the provisions of sections 16-501 to 16-520 
of this code, or created by an act of the legislative assembly, unless such 
city or town shall have been incorporated in the manner provided by law, 
or unless such village shall have been regularly platted and a plat thereof 
filed in the oflSce of the county clerk and recorder, and there be fifty quali- 
fied electors residing within the boundaries of such platted village, and the 
temporary county seat selected upon the organization of such county shall 
remain as such county seat until the permanent county seat shall be estab- 
lished as provided by law. 

History: En. Sec, 1, Ch. 16, Ex. L. 
1919; re-en. Sec, 4392, R. C, M, 1921. 

16-504. (4393) Petition for creation of new county — attached affidavits 
— ^notice and hearing. (1) Whenever it is desired to divide any county or 
counties and form a new county out of a portion of the territory of such 
then existing county or counties, a petition shall be presented to the board 
of county commissioners of the county from which the new county is to be 
formed, in case said proposed new county is to be formed from but one 
county, or to the board of county commissioners of the county from which 
the largest area of territory is proposed to be taken for the formation of 
such new county, in case said new county is to be formed from portions of 
two or more existing counties ; and such board of county commissioners 
shall be empowered and have jurisdiction to do and perform all acts pro- 
vided for to'be done or performed in this act, for each of the several coun- 
ties from which any proposed territory is to be taken, and shall direct that 
a certified copy of all orders and proceedings had before such board of 
county commissioners shall be certified by the county clerk to the board of 
county commissioners of each of the several counties from which any ter- 
ritory is taken by the proposed new county; and all officers of any such 
county shall comply with the orders of the board of county commissioners, 
in the same manner as if said order had been duly made by the board of 
county commissioners of each respective county from which territory is 
proposed to be taken. Such petition shall be signed by at least fifty-eight 
per cent of the qualified electors of the proposed new county, whose names 

125 



16-504 ELECTION LAWS 

appear on the ofificial registration books and who are shown thereon to have 
voted at the last general election preceding the presentation of said peti- 
tion to the board of county commissioners as herein provided ; provided, 
that in cases where the proposed new county is to be formed from portions 
of two or more counties, separate petition shall be presented from the terri- 
tory taken from each county ; and each of said separate petitions shall be 
signed by at least fifty-eight per cent of the qualified electors of each of said 
proposed portions. Such signatures need not all be appended to one paper, 
but may be signed to several petitions which must be similar in form, and 
when so signed the several petitions may be fastened together and shall be 
treated and presented as one petition. 

(2) Such petition or petitions shall contain: 

1. A particular description of the boundaries of the proposed new 
county. 

2. A statement that no line thereof passes within fifteen miles of tlie 
court house situated at the county seat of any county proposed to be di- 
vided, except as hereinafter in this act provided. 

3. A statement of the assessed valuation of such proposed county as 
shown by the last preceding assessment, inclusive of all assessed valuation. 

4. A statement of the surveyed area in square miles which will remain 
in the county or counties from which territory is taken to form such new 
county, after such county is formed, and a statement of the surveyed area 
in square miles which will be in the new county after formed. 

5. The name of the proposed new county. 

6. A prayer that such proposed new county be organized into a new 
county under the provisions of this act. 

There shall be attached and filed with said petition or petitions an affi- 
davit of five qualified electors and taxpayers residing within each county 
sought to be divided, to the effect that they have read said petition and ex- 
amined the signatures affixed thereto, and they believe that the statements 
therein are true, and that it is signed by at least fify-eight per cent of the 
qualified electors as herein provided, of the proposed new county, or of the 
proposed portion thereof, taken from each existing county, where the pro- 
posed new county is to be formed from portions of two or more existing 
counties; that the signatures affixed thereto are genuine; and that each of 
such persons so signing was a qualified elector of such county therein sought 
to be divided, at the date of such signing. Such petition or petitions so veri- 
fied, and the verification thereof, shall be accepted in all proceedings per- 
mitted or provided for in this act, as prima facie evidence of the truth of 
the matters and facts therein set forth. Upon the filing of such petition or 
petitions and affidavits 'vith the clerk of the said board of county commis- 
sioners, said clerk shall forthwith fix a date to hear the proof of the said 
petitions and of any opponents thereto, which date must be not later than 
thirty days after the filing of such petition with the clerk of said board. 
The county clerk shall also, at the same time, designate a newspaper of 
general circulation published in the old counties, but not within the pro- 
posed new county, and also a newspaper of general circulation published 
within the boundaries of the proposed new county, if there be such, in which 

126 



COUNTIES 16-504 

the said county clerk shall order and cause to be published, at least once a 
week for two weeks next preceding the date fixed for such hearing, a notice 
in substantially the following form : 

Notice 

Notice is hereby given that a petition has been presented to the board 
of county commissioners of county (naming the county repre- 
sented by the board of county commissioners with which said petition was 
filed), praying for the formation of a new county out of portion of the said 

county and county (naming the county or counties 

of which it is proposed to form the new county), and that said petition will 
be heard by the said board of county commissioners at its place of meeting 
(designating the city or town and the day and hour of the meeting so to be 
held), and when and where all persons interested may appear and oppose 
the granting of said petition, and make any objections thereto. 

Dated at at Montana. 

, County Clerk. 

Said petitioners shall, on or before the date fixed for said hearing, file 
with the said board of county commissioners a bond to be approved by 
said board, in an amount of five thousand dollars, payable to the county 
in which said petition is filed, conditioned that the obligors named in said 
bond will pay to said county all expenses incurred in the election provided 
for in this act, not exceeding the amount specified in said bond, in the 
event that at the election herein provided for more than forty-two per cent 

of the votes cast at said election are "for the new county of 

(naming the proposed new county)," "No." 

(3) At the time so fixed for said hearing, the board of county commis- 
sioners shall proceed to hear the petitioners and any opponents and pro- 
testants upon the petition or protests filed on or before the time fixed for 
the hearing. No petition or protest or petition for the exclusion of territory 
shall be considered unless the same is filed at least one day before the 
time fixed for the hearing, and such petition for the exclusion of territory 
shall contain the names of not less than fifty per cent of the qualified elec- 
tors who are resident property taxpayers of any territory to be excluded. 
All such territory being excluded must be in one block, and contain an area 
of not less than thirty-six square miles, and be totally within one county, 
and contiguous thereto, and the board of county commissioners may adjourn 
such hearing from time to time, but not for more than ten days after the 
time fixed for the hearing, and shall receive the proof to establish or 
controvert the facts set forth in said petition. No withdrawals of signatures 
to the original petition for the creation of a proposed county shall be filed 
or considered which have not been filed with the county clerk on or before 
the date fixed for the hearing. No withdrawals of any signature from the 
petition for the exclusion of territory shall be received or considered which 
are not filed within five days after the filing of the petition for such ex- 
clusion of territory. 

(4) The board of county commissioners, on the final hearing of such 
petition or petitions, shall, by a resolution entered on its minutes, deter- 
mine : 

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16-504 ELECTION LAWS 

1. The boundaries of the proposed new county, and the boundaries so 
determined by said board of county commissioners shall be the boundaries 
of such proposed new county, if it be created as herein provided. 

2. Whether the said petition contains the genuine signatures of at 
least fifty-eight per cent of the qualified electors of the proposed new 
county as herein required, or in cases where separate petitions are presented 
from portions of two or more existing counties as herein required, whether 
each petition is signed by at least fifty-eight per cent of the qualified 
electors of that portion of each of such existing counties which it is pro- 
posed to take into the proposed new county. 

3. Whether any line of the proposed new county passes within fifteen 
miles of the court-house situate at the county seat of any county proposed 
to be divided, except as hereinbefore provided. 

4. Whether the proposed new county will contain property, according 
to the last preceding assessment, which will equal in amount at least four 
million dollars, inclusive of all assessed valuation. 

5. Whether the area of any existing county from which territory is 
taken to form such new county will be reduced to less than twelve hundred 
square miles of surveyed land, by taking the territory proposed to be taken 
therefrom to form such new county. 

6. Whether the area of the proposed new county will contain at least 
one thousand square miles of surveyed land to form such new county. 

7. The class to which said proposed new county after its creation will 
belong, and the name of said proposed new county, as stated in such pe- 
tition. 

8. Whether the area embraced within the proposed new county will be 
reasonably compact. 

(5) On final hearing the board of commissioners, upon petition of not 
less than fifty per cent of the qualified electors (as shown by the official 
registration books on the day of the filing of any such petition) of any ter- 
ritory lying within said proposed new county contiguous to the boundary 
line of the said proposed new county, and of the old county from which such 
territory is proposed to be taken, and lying entirely within a single old 
county and described in said petition, asking that said territory be not in- 
cluded within the proposed new county, must make such changes in the 
proposed boundaries as will exclude such territory from such new county, 
and shall establish and define such boundaries. On final hearing the board of 
commissioners, upon petition of not less than fifty per cent of the qualified 
electors who are resident property taxpayers of any territory lying outside 
said proposed new county, and contiguous to the boundary line of said pro- 
posed new county, and of the old county or counties from which such 
territory is proposed to be included, asking that said territory be included 
within the proposed now county, must make such changes in the proposed 
boundaries as will include such territory in such new county, and shall 
establish and define such boundaries; provided, however, that the segrega- 
tion of such territory from any old county or counties shall not leave such 
county or counties with less than twelve million dollars of assessed valua- 
tion, based upon the last assessment-roll ; provided, that no t-hange or 

128 



COUNTIES 16-505 

changes so made shall result in reducing the valuation of the proposed new 
county to less than an assessed valuation of ten million dollars, inclusive of 
all assessed valuation; and provided, further, that no change shall be made 
which shall leave the territory so excluded separate and apart from and 
without the county of which it was formerly a part. Petitions for exclu- 
sion shall be disposed of in the order in point of time in which they are 
filed with the clerk of the board of county commissioners, and on final de- 
termination of boundaries no changes in the boundaries originally proposed 
shall be made except as prayed for in said petition or petitions, or to correct 
clerical errors or uncertainties. 

History: En. Sec. 2, Ch. 226, L. 1919; NOTE.— Wording of this section changed 

re-en. Sec. 4393, R. C. M. 1921. to conform to amendment of section IG- 

501 by Sec. 1, Ch. 106, Laws 1929. 

16-505. (4394) Duty of commissioners when findings justify new county 
— division into township, road and school districts — change of boundaries 
of election precincts — election — temporary county seat. (1) If the said 
board of county commissioners determine that the formation of said pro- 
posed new county will not reduce any county from which any territory is 
taken to an assessed valuation of less than twelve million dollars, inclusive 
of the assessed valuation, nor the area thereof to less than twelve hundred 
square miles of surveyed land, and that the proposed new county contains 
property of an assessed valuation of at least ten million dollars, inclusive 
of all assessed valuation, and that the proposed new county has an area 
of at least one thousand square miles of land, and that no line of said pro- 
posed new county passes within fifteen miles of the court house situate at 
the county seat of any county proposed to be divided, except as hereinbe- 
fore provided, and that said petition contains the genuine signatures of at 
least fifty-eight per cent of the qualified electors of the proposed new 
county, or in cases where separate petitions are presented from portions of 
two or more existing counties (as herein required), that each of said pe- 
titions contain the genuine signatures of at least fifty-eight per cent of the 
qualified electors of that portion of the proposed new county from which 
it is taken, then the said board of county commissioners shall divide the 
proposed new county into a convenient number of township, road, and 
school districts, and define their boundaries and designate the names of 
such districts. 

(2) Said board of county commissioners shall also, if necessary for 
the purpose of the election hereinafter provided for, change the boundaries 
of the election precincts in said old county or counties to make the same 
conform to the boundaries of the proposed new county; provided, that the 
boundary lines of no such precinct shall extend beyond the boundary lines 
of the then existing county in which it is located, and from which the terri- 
tory is proposed to be taken ; and said board shall appoint election officers 
to act at said election and to be paid by said board. 

(3) Within two weeks after its determination of the truth of the alle- 
gations of said petition as aforesaid, the said board of county commis- 
sioners shall order and give proclamation and notice of an election to be 
held on a specified day in the territory which is proposed to be taken for the 

129 



16-505 ELECTION LAWS 

new county, not less than ninety days nor more than one hundred ana 
twenty days thereafter, for the purpose of determining whether such terri- 
tory shall be established and organized into a new county ; and for the elec- 
tion of ofiBcers and location of a county seat therefor, in case the vote at 
such election shall be in favor of the establishment and organization of such 
new county. All qualified electors residing within the proposed new county 
who are qualified electors of the county or counties from which territory 
is taken to form such proposed new county, and who have resided within the 
limits of the proposed county for a period of more than six months next 
preceding the day of election, and who are registered under the provisions 
of the registration laws of the state, shall be entitled to vote at said elec- 
tion. Registration and transfers of registration shall be made and shall 
close in the manner and at a time provided by law for registration and 
transfers of registration for a general election in the state of Montana. 

(4) Such proclamation and notice of election shall be published at 
least once a week for three weeks before the holding of such election, in 
some newspaper of general circulation published in the territory which is 
proposed to be taken for the new county, and a copy thereof shall be mailed 
immediately by the county clerk of the county in which the petition is filed 
to the county clerk of each county from which territory is taken for the pro- 
posed new county. Such proclamation and notice shall require the voters 

to cast ballots which shall contain the words, "For the new county of 

(giving the name of the proposed new county)" "Yes," and "For 

the new county of (giving the name of the proposed 

new county)," "No," and each voter desiring to vote for the establishment 
and organization of said new county shall mark a cross (X) opposite the 

words, "For the new county of ," "Yes," in the manner 

now required by law in other elections, and each voter desiring to vote 
against the establishment and organization of said new county shall mark a 

cross (X) opposite the words, "For the new county of ," 

"No," in the manner now required by law in other elections ; and shall 
also contain the names of persons to be voted for to fill the various elective 
offices designated in said proclamation for counties of the class to which 
said proposed county will belong, as determined by the board of county 
commissioners as herein otherwise provided. 

(5) There shall also be printed upon said ballot the words, "For the 
county seat," and the names of all cities or towns which may have filed with 
the county clerk a petition signed by at least twenty-five qualified electors, 
nominating any city or town within the proposed new county for the county 
seat, and the voter shall designate his choice for county seat by marking a 
cross (X) opposite the name of the city or town for which he desires to cast 
his ballot. At the special election to be held, as provided in this act, the 
question of the election of the county seat is hereby provided to be sub- 
mitted to the qualified electors of the proposed new county, and the ma- 
jority of all the votes cast therefor shall determine the election thereon. In 
case any city or town fails to receive a majority of all the votes cast, then 
the city or town receiving the highest number of all votes cast shall be 

130 



COUNTIES 16-506 



designated as the temporary county seat, and in ease any city or town is 
not the choice of the election for the county seat by a majority of all the 
votes cast, the question of choice between the two cities or towns for which 
the highest number of votes shall have been cast shall be submitted in like 
manner to the qualified electors at the next general election thereafter. 
When the county seat shall have been selected as herein provided, it shall 
not thereafter be changed except in the manner provided by law. 

(6) The proclamation calling the election and the notice thereof pro- 
vided for in this act shall be made and given exclusively by the board of 
county commissioners with which is filed the said petition for the formation 
and establishment of such new county, and such board shall cause the clerk 
of said county to furnish to the oflScers of each precinct in such proposed 
new county all ballots, poll list, tally lists, registers for voters' signatures, 
ballot-boxes, and other election supplies and equipment necessary to con- 
duct such election, and which are not hereinafter specifically directed to be 
furnished by the clerk of another county or counties. Such election shall 
be governed and controlled by the general election laws of the state, so far 
as the same shall be applicable, except as herein otherwise provided. The 
returns of all elections for the creation of the county, and for officers and 
for location of the county seat as provided for in this act, shall be made to 
and canvassed by the board of county commissioners of the county from 
which the largest area is taken by the proposed county. 

(7) The county clerk of each county from which territory is taken for 
the proposed new county shall, not less than five days before the date of 
such election, furnish to each board of election within said proposed new 
county, a copy of the official register for the precincts of such proposed 
new county as are within their respective counties, and the copies of indexes 
thereof required by law containing the names of all persons who were 
qualified electors at the last general election before the date of such election. 

All returns of election herein provided for shall be made to the board of 
county commissioners calling such election. 

All nominations of candidates for the office required to be filled at said 
election shall be made in the manner provided by law for the nomination of 
candidates by petition. 

The provisions of the election laws relating to preparation, printing, and 
distribution of sample ballots, except the provisions of said laws relating 
to primary elections in this state, shall have application to any election pro- 
vided for in this act. 

History: En. Sec. 3, Ch. 226, L. 1919; NOTE. — Wording of this section changed 

re-en. Sec. 4394, B. C. M. 1921. to conform to section 16-501. 

16-506. (4395) Measures to be taken after election — officers — effect of 
adverse vote. (1) If, upon the canvass of the votes cast at such election, 
Jt appears that fifty-eight per cent of the votes cast are "For the new county 

of ," "Yes," the board of county commissioners shall, 

by a resolution, entered upon its minutes, declare such territory dub' formed 
and created as a county of this state, of the class to which the same shall 

belong, under the name of county, and that the city 

or town receiving the highest number of votes cast at said election for 

131 



16-507 ELECTION LAWS 



county seat shall be the county seat of said county until removed in the 
manner provided by law, and designating and declaring the person receiv- 
ing respectively the highest number of votes for the several offices to be 
filled at said election, to be duly elected to such offices. Said board shall 
forthwith cause a copy of its said resolution, duly certified, to be filed in the 
office of the secretary of state, and ninety days from and after the date of 
such filing said new county shall be deemed to be fully created, and the 
organization thereof shall be deemed completed, and such officers shall be 
entitled to enter immediately upon the duties of their respective offices upon 
qualifying in accordance with law and giving bonds for the faithful per- 
formance of their duties, as required by the laws of the state. The clerk 
of the board of county commissioners with which said petition was filed, as 
herein provided, must immediately make out and deliver to each of said 
persons so declared and designated to be elected, a certificate of election 
authenticated by his signature and the seal of said county. The persons 
elected members of the board of county commissioners and the county clerk 
shall immediately, upon receiving their certificates of election, assume the 
duties of their respective offices. 

(2) The board of county commissioners shall have authority to provide 
a suitable place for the county officers, and to purchase such supplies as may 
be deemed necessary for the proper conduct of the county government. All 
other officers take office ninety days after the filing of the resolution herein 
provided for with the secretary of state. All the officers elected at said 
election, or appointed under this act, shall hold their offices until the time 
provided by general law for the election and qualification of such officers 
in this state, and until their successors are elected and qualified, and for the 
purpose of determining the term of office of such officers, the years said 
officers are to hold office are to be computed respectively from and in- 
cluding the first Monday after the first day of January following the last 
preceding general election. If, however, upon such canvass it appears that 
more than forty-two per cent of the votes cast at said election are "For 
the new county of ," "No," the board of county com- 
missioners canvassing said vote as provided herein shall pass a resolution 
in accordance therewith, and thereupon the proceedings relating to division 
of such county or counties shall cease ; and no other proceedings in relation 
to any other division of said old county or counties shall be instituted for at 
least two years after such determination. 

History: En. Sec. 4, Oh. 226, L. 1919; 
re-«n. Sec. 4395, R. C. M. 1921. 

16-507. (4396) Officers of new county — judicial district. At the elec- 
tion provided for in section 16-505 of this code, there shall be chosen such 
county, township, and district officers as are now or may hereafter by gen- 
eral law be provided for in counties of the class to which the said new county 
is determined to belong, as herein provided ; provided, that all duly elected, 
qualified and acting officers of the county or counties, who may reside 
witliin the proposed new county, shall be deemed to be officers of said new 
county if they file with the board of county commissioners, whose duty it 
shall be to call the election, within five days after the final hearing and 

132 



COUNTIES 16-517 

determination of said petition for such proposed new county, their intention 
to become officers of said proposed new county, and the board of 
county commissioners issuing the proclamation of any election, as in this 
act provided, shall omit providing for the election of any such officers as 
may have filed their declaration as herein provided ; and provided, also, 
that all duly elected, qualified, and acting justices of the peace and con- 
stables residing within the proposed new county at the time of the division 
of such county into townships, as hereinbefore in section 16-505 provided, 
shall hold office as such justices of the peace or constables in said county 
for the remainder of the term for which they were elected on qualifying as 
justices of the peace or constables for the respective townships in which 
they reside, when said townships are organized as provided in this act ; 
provided, further, that all duly elected, qualified, and acting school trustees 
residing within the proposed new county at the time of the division of such 
county into school districts, as hereinbefore in section 16-505 provided, shall 
hold office as school trustees in said new county for the remainder of the 
term for which they were elected on qualifying as school trustees for the 
respective districts in which they reside, as said districts are organized as 
provided by this act. Each person elected or appointed to fill an office of 
such new county under the provisions of this act shall qualify in the man- 
ner provided by law for such officers, except as herein otherwise provided, 
and shall enter upon the discharge of the duties of his office within such 
time as herein provided, after the receipt of the certificate of his election. 
Each of such officers may take the oath of office before any officers author- 
ized by the laws of the state of Montana to administer oaths, and the bond 
of any officer from which a bond is required shall be approved by any judge 
of the district court of the district to which such new county is attached 
for judicial purposes. The officers elected or appointed under the provisions 
of this act shall each perform the duties and receive the compensation now 
provided by general law for the office to which he has been appointed or 
elected in the counties of the class to which such new county shall have been 
determined to belong, as herein provided under the general classification of 
counties in this state. 

Said new county, when created and organized in pursuance of the pro- 
visions of this act, shall be attached to such judicial district as may be desig- 
nated by the governor of the state of Montana, in a proclamation to be 
issued by him, designating such new county as attached to the particular 
judicial district for judicial purposes. 

History: En. Sec. 5, Ch, 226, L. 1919; 
re-en. Sec. 4396, B. C. M. 1921. 

16-509. (4396.2) Board of county commissioners to be elected. At the 
special election held for the purpose of voting on the question of the creation 
of a new comity, a board of county commissioners shall be elected, who shall 
hold office until the next general election. 
History: En. Sec. 2, Ch. 106, L. 1926. 

16-517. (4404) Publication by posting of notice. Whenever in this act 
publication of any notice is provided for, and no newspaper of general cir- 

133 



16-519 ELECTION LAWS 

culation is published within the territory in which said notice is required to 

be published, notice shall be given by posting copies of such notices in at 

least ten public places in such territories for the same length of time said 

notice was required to be published. 

History: En. Sec. 13, Ch. 226, L. 1919; 
re-en. Sec. 4404, R. C. M. 1921. 

16-519. (4406) Misdemeanor and malfeasance in oflBce. _ Any member of 

the board of county commissioners, or any other officer who unlawfully and 

knowingly violates any of the provisions of this act, or fails or refuses to 

perform any duty imposed upon him hereunder, shall be guilty of a 

misdemeanor and of malfeasance in office, and shall be deprived of his office 

by a decree of a court of competent jurisdiction, after trial and conviction. 

History: En. Sec. 15, Ch. 226, L. 1919; 
re-en. Sec. 4406, R. C. M. 1921. 

16-520. (4407) Repealing and saving clause. All acts and parts of acts 
in conflict herewith are hereby repealed, with the exception : This act shall 
not apply in any cases whereby the election has been held under the act 
passed by the fifteenth legislative session for the creation of counties and a 
majority vote has been cast in favor thereof, but the provisions of this act 
shall be deemed in full force and effect so far as they may affect any pro- 
posed new county now in process of creation, unless said new county can 
comply with the requirements of this act; and it is hereby made the duty 
of the board of county commissioners which may have ordered any election 
in pursuance of existing laws to immediately make an order annulling and 
setting aside all further proceedings in relation to such proposed new 
county, including an order to nullify and set aside any election order there- 
tofore made ; provided, if any order is made nullifying and setting aside 
any election as provided in this section, any bond which may have been 
given in pursuance with the provisions of law relating to the costs of 
election for the creation of any proposed new county shall be deemed void, 
and no liability shall be incurred thereunder. 

History: En. Sec. 16, Ch. 226, L. 1919; 
re-en. Sec. 4407, R. C. M. 1921. 

CHAPTER 8 
GENERAL POWERS AND LIMITATIONS ITPON COUNTIES 
Section 16-807. Limit of indebtedness. 

16-807. (4447) Limit of indebtedness. No county must become in- 
debted in any manner or for any purpose to an amount, including existing 
indebtedness, in the aggregate exceeding five per centum of the value of the 
taxable property therein, to be ascertained by the last assessment for state 
and county taxes previous to the incurring of such indebtedness, and all 
bonds or obligations in excess of such amount given by or on behalf of such 
county are void. No county must incur any indebtedness or liability for 
any single purpose to an amount exceeding ten thousand dollars without 

134 



COUNTIES 16-1230 



the approval of a majority of the electors thereof voting at an election to 

be provided by law. 

History: En, Sec. 4196, Pol. 0. 1895; 
re-en. Sec. 2876, Rev. C. 1907; re-en. Sec. 
4447, R. C. M. 1921. 

CHAPTER 10 
GENERAL POWERS AND DUTIES OF COUNTY COMMISSIONERS 
Section 16-1003. Elections, powers concerning. 

16-1003. (4465.2) Elections, powers ooncemin^. The board of county 
commissioners has jurisdiction and power under such limitations and re- 
strictions as are prescribed by law; 

To establish, abolish and change election precincts, and to appoint judges 
of election, canvass all election returns, declare the result, and issue certifi- 
cates thereof. 

History: En. Subd. 3, Sec. 1, Cli. 100, 
L. 1931. 

CHAPTER 11 
SPECIAL POWERS AND DUTIES OF COUNTY COMMISSIONERS 

Section 16-1156. Board to provide appliances for holding elections and allow expenses. 
16-1157. Issuance of certificates of election as board of canvassers. 

16-1156. (4515) Board to provide appliances for holding elections and 
allow expenses. The board of county commissioners must provide all poll- 
lists, poll-books, blank returns and certificates, proclamations of elections, 
and other appropriate and necessary appliances for holding all elections in 
the county, and allow reasonable charges therefor, and for the transmission 
and return of the same to the proper officers. 

History: En. Sec. 4280, Pol. O. 1895; 
re-en. Sec. 2939, Rev. C. 1907; re-en. Sec. 

4515, R. 0. M. 1921. Oal. PoL C. Sec. 4064. 

16-1157. (4516) Issuance of certificates of election as board of can- 
vassers. Whenever, as canvassers, the board of county commissioners de- 
clares the result of any election held in the county, certificates must be by 
the clerk of the board issued to all persons elected to a county office or to a 
township or district office therein, and such other certificates must be made 
out and transmitted as required by the title relative to elections. 

History: En. Sec. 4281, Pol. C. 1895; 
r»-en. Sec. 2940, Rev. C. 1907; re-en. Sec 

4516, R. C. M. 1921. Cal. Pol. C. Sec. 4065. 

CHAPTER 12 
COUNTY PRINTING COMMISSION 
Section 16-1230. County commissioners to contract for county printing. 

16-1230. County commissioners to contract for county printing. It is 

hereby made the duty of the county commissioners of the several counties 

135 



16-1907 ELECTION LAWS 

of the state of Montana to contract with one (1) newspaper, published at 
least once a week, and of general bona fide and paid circulation with second 
class mailing privileges, published within the county, and having been 
published continuously in such county at least twelve (12) months im- 
mediately preceding the awarding of such contract, to do and perform all 
the printing for which said counties may be chargeable, including all legal 
advertising required by law to be made, and all other printed forms re- 
quired for the use of such counties at not more than the prices set by the 
county printing commission. 

History: En. Sec. 6, Ch. 280, L. 1967. 

CHAPTER 19 
COUNTY BUDGET SYSTEM 

Section 16-1907. Emergency expenditures — notice and hearings — objections by tax- 
payers — appeal — notice and hearing dispensed with in extreme 
cases — emergency warrants — tax levy — lapse of appropriations. 

16-1907. (4613.6) Emergency expenditures — notice and hearings — ob- 
jections by taxpayers — appeal — notice and hearing dispensed with in ex- 
treme cases — emergency warrants — tax levy — lapse of appropriations. (1) 
In a public emergency, other than such as are hereinafter specifically 
described, and which could not reasonably have been foreseen at the time 
of making the budget, the board of county commissioners, by unanimous 
vote of the members present at any meeting, the time and place of which 
all the commissioners shall have had reasonable notice, shall adopt and 
enter upon their minutes a resolution stating the facts constituting the 
emergency and the estimated amount of money required to meet such 
emergency and shall publish the same, together with a notice that a public 
hearing will be held thereon at the time and place designated therein, but 
which shall not be less than one week after the date of said publication, at 
which any taxpayer ma}' appear and be heard for or against the expendi- 
ture of money for such alleged emergency. Such resolution and notice shall 
be published once in the official newspaper of the county, and if there be 
none then in a newspaper of general circulation in the county. 

(2) Upon the conclusion of such hearing, if the commissioners shall 
approve of such emergency expenditure, they shall make and enter upon 
their official minutes, by unanimous vote of all of the members of the 
board present at such meeting, an order setting forth the facts constituting 
such emergency together with the amount of expenditure authorized by 
them therefor, which order, so entered, shall be lawful authorization for 
them to expend such amount, but no more, for such purpose, subject how- 
ever, to the following limitations : No expenditures shall be made or liability 
incurred pursuant to said order until five (5) days, exclusive of the day of 
entry of said order, shall have elapsed, during which time any taxpayer or 
taxpayers of said county feeling aggrieved by said order may appeal there- 
from to the district court for such county by filing with the clerk of such 
court a verified petition, a copy of which shall theretofore have been 
served upon the county clerk and recorder of said county as the clerk of 

136 



COUNTIES 16-1907 

the board of county commissioners. Said petition shall set forth in detail 
the objections of the petitioner or petitioners to said order, giving their 
reasons why the said emergency does not exist. The service and filing of 
such petition shall operate to suspend such emergency order and the 
autJiority to make any expenditure or incur any liability thereunder, until 
final determination of the matter by the court. 

(3) Upon the filing of such petition the court shall immediately fix a 
time for hearing such petition which shall be at the earliest convenient 
time. At such hearing the court shall hear the matter de novo and may take 
such testimony as it deems necessary. Its proceedings shall be summary 
and informal and its determination as to whether an emergency, such as is 
contemplated within the meaning and provisions of this act, exists or not, 
and whether the expenditure authorized by said order is excessive or not 
shall be final. 

(4) The total of all emergency budgets, and appropriations made 
therein, in any one year, to be paid from the county poor fund shall not 
exceed the amount which would be produced by a mill levy equal to the 
difference between the mills levied in that year and the maximum mill 
levy authorized b}^ law to be made for such fund, computed against the tax- 
able value of the property subject to such levy, as shown by the last com- 
pleted assessment roll of the county. 

(5) Upon the happening of an emergency caused by fire, flood, ex- 
plosion, storm, earthquake, epidemic, riot, or insurrection, or for the 
immediate preservation of order or of public health, or for the restoration 
of a condition of usefulness of which has been destroyed by accident, or 
for the relief of a stricken community overtaken by calamity, or in settle- 
ment of approved claims for personal injuries or property damages, ex- 
clusive of claims arising from the operation of any public utility owned 
by the county, or to meet mandatory expenditures required by law, the 
county commissioners may, upon adoption by unanimous vote of all 
members present at any meeting, the time and place of which all members 
shall have had reasonable notice, of a resolution stating the facts con- 
stituting the emergency, and entering the same upon their minutes, make 
the expenditures or incur the liabilities necessary to meet such emergency 
without further notice or hearing; provided, that the aggregate total of 
all expenditures made or liabilities incurred in any fiscal year to meet 
emergencies other than such as are caused by fire, flood, explosion, earth- 
quake, epidemic, riot or insurrection, shall not exceed tJie sum of two 
hundred thousand dollars ($200,000.00) in counties of classifications 1, 2, 3 
and 4, provided, however, that after July 1, 1963, such emergency expendi- 
tures shall not exceed twenty-five thousand dollars ($25,000.00) ; fifteen 
thousand dollars ($15,000.00) in counties of classifications 5 and 6, and 
seven thousand five hundred dollars ($7,500.00) in counties of classification 
7 unless the excess above said sum shall first have been authorized by a 
majority of the taxpaying freeholders of such county, who are registered 
electors therein, voting at a general or special election. The question of 
authorizing such excess expenditure shall be submitted in the following 

137 



16-1907 ELECTION LAWS 

form, inserting in the ballot the amount of the excess proposed to be au- 
thorized and a description of the emergency to be met : 

Shall the board of county commissioners of County, 

Montana be authorized to make additional expenditures and incur addi- 
tional liabilities in the amount of $ over and above the sum 

of , to meet an emergency caused by 

n Yes 

D No 

Notice of such election shall be given by posting notice thereof at least 

fifteen (15) days before such election in three (3) public places in each 

voting precinct within the county and by publishing such notice for not 

less than ten (10) days before the date of such election. 

(6) All emergency expenditures shall be made by the issuance of 
emergency warrants drawn against the fund or funds properly chargeable 
with such expenditures, and the county treasurer is authorized and directed 
to pay such emergency warrants with any money in such fund or funds 
available for such purpose, and if, at any time, there shall not be sufficient 
money available in such fund or funds to pay such warrants then such 
warrants shall be registered, bear interest and be called in for payment in 
the manner provided by law for other county warrants. 

(7) The county clerk and recorder shall include in his annual tabula- 
tion to be submitted to the board of county commissioners the total amount 
of emergency warrants issued during the preceding fiscal year, and the 
county commissioners shall include in their tax levies a levy for each fund 
sufficient to raise an amount equal to the total amount of such warrants, 
if there be any, remaining unpaid at the close of such preceding fiscal year 
because of insufficient money in such fund to pay the same ; provided, 
however, that no levy shall be made for any fund in excess of the levy 
authorized by law to be made therefor ; and provided further, that the board 
of county commissioners may submit the question of funding such emer- 
gency Avarrants at any election, as provided by law, and if at any such 
election the issuing of such funding bonds be authorized it shall not then 
be necessary for any levy to be made for the purpose of paying such 
emergency warrants. 

(8) All appropriations, other than appropriations for incompleted im- 
provements in progress of construction, shall lapse at the end of the fiscal 
year; provided that the appropriation accounts shall remain open for a 
period of thirty (30) days thereafter for the payment of claims incurred 
against such appropriations prior to the close of the fiscal year and re- 
maining unpaid. After such period shall have expired, all appropriations 
except as hereinbefore provided, regarding incompleted improvements, 
shall become null and void, and any lawful claim presented thereafter 
against any such appropriation shall be provided for in the next ensuing 
budget. 

History: En. Sec, 6, Ch. 148, L. 1929; Cross-Eeference 

amd. Sec. 2, Ch. 170, L. 1943; amd. Sec. 1, Temporary authority for emergency tax 

Ch. 159, L. 1953; amd. Sec. 1, Ch. 148, L. levy by county commissioners, sec. 84-3805 

1955; amd. Sec. 1, Ch. 194, L. 1963. note. 

138 



COUNTIES 16-2022 



CHAPTER 20 
COUNTY FINANCE— BONDS AND WARRANTS 

Section 16-2021. Petition and election required for bonds issued for other purposes. 

16-2022. Form, contents and proof of petition. 

16-2023. Consideration of petition — calling election. 

16-2024. Notice of election — election hours — election officers. 

16-2025. Form of ballots and conduct of election. 

16-2026. Who are entitled to vote. 

16-2027. Percentage of electors required to authorize bond issue. 

16-2028. Canvass of election returns — resolution for bond itsue. 

16-2021. (4630.7) Petition and election required for bonds issued for 
other purposes. County bonds for any other purpose than those enumerated 
in section 16-2013 shall not be issued unless authorized at a duly called 
special or general election at which the question of issuing such bonds was 
submitted to the qualified electors of the county and approved, as provided 
in section 16-2027 ; and no such bond election shall be called unless there has 
been presented to the board of county commissioners a petition, asking that 
such election be held and such question be submitted, signed by not less than 
twenty per centum (20%) of the qualified electors of the county, who are 
taxpayers upon property within the county and whose names appear on 
the last completed assessment roll for state and county taxes. 
History: En. Sec. 7, Cli. 188, L. 1931. 

16-2022. (4630.8) Form, contents and proof of petition. Every petition 
for the calling of an election to vote upon the question of issuing county 
bonds shall plainly and clearly state the purpose or purposes for which the 
proposed bonds are to be issued, and shall contain an estimate of the amount 
necessary to be issued for such purpose or purposes. There may be a sep- 
arate petition for each purpose, dr two (2) or more purposes may be com- 
bined in one (1) petition if each purpose, with an estimate of the amount 
of bonds necessary to be issued therefor, is separately stated in such peti- 
tion. Such petition may consist of one (1) sheet, or of several sheets 
identical in form and fastened together after being circulated and signed 
so as to form a single complete petition before being delivered to the 
county clerk as hereinafter provided. The petition shall give the postoffice 
address and voting precinct of each person signing the same. 

Only persons who are qualified to sign such petitions shall be qualified 
to circulate the same, and there shall be attached to the completed petition 
the affidavit of some person who circulated, or assisted in circulating such 
petition, that he believes the signatures thereon are genuine and that the 
signers knew the contents thereof before signing the same. The completed 
petition shall bo filed with the county clerk who shall, within fifteen (15) 
days thereafter, carefully examine the same and the county records show- 
ing the qualifications of the petitioners, and attach thereto a certificate 
under his official signature and the seal of his office, which certificate shall 
set forth : 

(1) The total number of persons who are registered electors and whose 
names appear upon the last completed assessment roll for state and county 
taxes. 

139 



16-2023 ELECTION LAWS 

(2) Which and how many of the persons whose names are subscribed 
to such petition are possessed of all of the qualifications required of signers 
to such petition. 

(3) Whether such qualified signers constitute more or less than twenty 
per centum (20%) of the registered electors whose names appear upon the 
last completed assessment roll for state and county taxes. 

History: En. Sec. 8, Ch. 188, L. 1931. 

16-2023. (4630.9) Consideration of petition— calling election. When 
such petition has been filed with the county clerk and he has found that 
it has a sufficient number of signers, qualified to sign the same, he shall place 
the same before the board of county commissioners at its first meeting held 
after he has attached his certificate thereto. The board shall thereupon 
carefully examine the petition and make such other investigation as it may 
deem necessary. 

If it is found that the petition is in proper form, bears the requisite 
number of signers of qualified petitioners, and is in all other respects suf- 
ficient, the board shall pass and adopt a resolution which shall recite the 
essential facts in regard to the petition and its filing and presentation, the 
purpose, or purposes, for which the bonds are proposed to be issued, and 
fix the exact amount of bonds proposed to be issued for each purpose, which 
amount may be less than but must not exceed the amount set forth in the 
petition, determine the number of years through which such bonds are -to 
be paid, not exceeding the limitations fixed in section 16-2011, and making 
provision for having such question submitted to the qualified electors of the 
county at the next general election, or at a special election which the board 
may call for such purpose. 
History: En. Sec. 9, Ch. 188, L. 1931. 

16-2024. (4630.10) Notice of election — election hours — election officers. 

Whether such election is held at the general election, or at a special election, 
separate notice shall be given thereof. Such notice shall state the date when 
such election will be held, the hours between which the polls will be open, the 
amount of bonds proposed to be issued, the purpose of the issue, the term 
of years through which the bonds are to be paid, and such other informa- 
tion regarding the holding of the election and the bonds proposed to be 
issued as the board may deem proper. If bonds are to be issued for two 
(2) or more purposes, each purpose and the amount therefor must be separ- 
ately stated. Such notice shall be posted in each voting precinct throughout 
the county in the same manner as notices for a general election are required 
to be posted. Such notice must also be published once each week for four 
(4) consecutive weeks preceding the election in the official newspaper of 
the county. 

If the question of issuing bonds is submitted at a special election called 
for such purpose the board of county commissioners shall fix the hours 
through which the polls are to be kept open, which shall be not less than 
eight (8), and which must be stated in the notice of election, and may 
appoint a smaller number of election .judges than is required for a general 

140 



COUNTIES 16-2027 

election, but in no case shall there be less than three (3) judges in the pre- 
cinct, and such judges shall act as their own clerks. 

If the question of issuing bonds is submitted at a general election, the 
polls shall be kept open during the same hours as are fixed for such general 
election and the judges and clerks for such general election shall act aS 
the judges and clerks for sucli bond election. 
History: En. Sec. 10, Ch. 188, L. 1931. 

16-2025. (4630.11) Form of ballots ajid conduct of election. The form 
of ballots shall be as prescribed by section 16-2306; but if bonds are sought 
to be issued for two (2) or more separate purposes, then separate ballots 
must be provided for each purpose. The election shall be conducted in the 
manner prescribed by said section 16-2306, and the general election laws of 
the state shall govern insofar as they are applicable ; but if such question be 
submitted at a general election the votes thereon must be counted separately 
and separate returns must be made by the judges and clerks at such election. 
History: En. Sec. 11, Ch. 188, L. 1931. 

16-2026. (4630.12) Who ar« entitled to vote. In all county bond elec- 
tions hereafter held only qualified registered electors residing within the 
county, who are taxpayers upon property therein and whose names appear 
upon the last completed assessment roll for state, county and school district 
taxes, shall have the right to vote. Upon the adoption of the resolution 
calling for the election, the county clerk must cause to be published in the 
official newspaper of the county a notice, signed by him, stating that regis- 
tration for such bond election will close at noon on the fifteenth day prior 
to the date for holding such election and at that time the registration books 
shall be closed for such election. Such notice must be published at least 
ten (10) days prior to the day when such registration books will be closed. 
After the closing of the registration books for such election the county 
clerk shall promptly prepare lists of the registered electors of such voting 
precinct, who are taxpayers upon property within the county and whose 
names appear on the last completed assessment roll for state, county and 
school district taxes, and who are entitled to vote at such election, and 
shall prepare precinct registers for such election, as provided in section 
23-515, and deliver the same to the judges of election prior to the opening 
of the polls. It shall not be necessary to publish or post such list of qualified 
electors. 

History: En. Sec. 12, Ch. 188, L. 1931; 
amd. Sec. 1, Ch. 138, L. 1939; amd. Sec. 
18. Ch. 64, L. 1969. 

16-2027. (4630.13) Percentage of electors required to authorize bond 
issue. Whenever the question of issuing county bonds for any purpose is 
submitted to the qualified electors of a county, at either a general or special 
election, not less than forty per centum (40%) of the qualified electors en- 
titled to vote on such question must vote thereon, otherwise such propo- 
sition shall be deemed to have been rejected; provided, however, that if 
forty per centum (40%), or more of such qualified electors do vote on such 
question, at such election, and a majority of such votes shall be cast in 

141 



16-2028 ELECTION LAWS 

favor of such proposition, then such proposition shall be deemed to have 
been approved and adopted. 
History: En. Sec. 13, Ch. 188, L. 1931. 

16-2028. (4630.14) Canvass of election returns — resolution for bond 
issue. If the bonding election be held at the same time as a general election, 
then the returns shall be canvassed at the same time as the returns from 
such general election ; but if the bonding election is a special election, then 
the board of county commissioners shall meet within ten (10) days after 
the date of holding such special election and canvass the returns. If it is 
found that at such election forty per centum (40%) or more, of the 
qualified electors entitled to vote at such election voted on such question, 
and that a majority of such votes were cast in favor of the issuing of such 
bonds, the board of county commissioners shall, at a regular or special 
meeting held within thirty (30) days thereafter, pass and adopt a resolu- 
tion providing for the issuance of such bonds. Such resolution shall 
recite the purpose for which such bonds are to be issued, the amount 
thereof, the maximum rate of interest the bonds may bear, the date they 
shall bear, the period of time through which they shall be payable, the 
optional provisions, if any ; and provide for the manner of the execution 
of the same. It shall provide that preference shall be given amortization 
bonds but shall fix the denomination of serial bonds in case it shall be 
found advantageous to issue bonds in that form, and shall adopt a form 
of notice of the sale of the bonds. 

The board may, in its discretion, provide that such bonds may be 
issued and sold in two or more series or installments. 

Provided, however, that if none of said bonds have been sold and 
issued within three years from the date of the bonding election, and no 
vested rights have accrued thereunder, the board of county commissioners 
may rescind the authority to sell and issue such bonds by the passage 
and adoption of a resolution wherein is recited the reason for such rescis- 
sion of authority. 

History: En. Sec. 14, Ch. 188, L. 1931; 
amd. Sec. 1, Ch. 210, L. 1961. 

CHAPTER 23 

VOTE NECESSARY ON PROPOSAL TO RAISE MONEY 

Section 16-2301. Commissioners not to borrow money except as herein provided. 

16-2302. Commissioners to determine amount necessary. 

16-2303. Notice of election to be given. 

16-2304. Ballots — what to contain. 

16-2305. "When loan may be made. 

16-2306. Form of ballots — voting. 

16-2301. (4717) Commissioners not to borrow money except as herein 
provided. The board of county commissioners must not borrow money for 
any of the purposes mentioned in this title, or for any single purpose to an 
amount exceeding ten thousand dollars, without the approval of a majority 
of the electors of the county, and without first having submitted the ques- 

142 



COUNTIES 16-2306 

tion of a loan to a vote of such electors; provided, that it shall not be 

necessary to submit to the electors the question of borrowing money to 

refund outstanding bonds, or for the purpose of enabling any county to 

liquidate its indebtedness to another county incident to the creation of a 

new county or the change of any county boundary lines. 

History: En. Sec. 4270, Pol. C. 1895; 1, Ch. 92, L. 1919; re-en. Sec. 4717, R. C. 
re-en. Sec. 2933, Rev, 0. 1907; amd. Sec. M. 1921. 

16-2302. (4718) Commissioners to determine amount necessary. When- 
ever it is necessary to submit to a vote of the electors of the county the 
question of making a loan, the board must first determine the amount 
necessary to be raised. 

History: En. Sec. 4271, Pol. C. 1895; 
re-en. Sec 2934, Rev. C. 1907; re-en. Sec. 

4718, R. C. M. 1921. 

16-2303. (4719) Notice of election to be given. Notice of the election, 
clearly stating the amount to be raised and the object of the loan, must be 
given, and the election held and conducted, and the returns made in all 
respects in the manner prescribed by law in regard to the submission of ques- 
tions to the electors of a locality under the general election law. 

History: En. Sec. 4272, Pol. C. 1896; 
re-en. Sec. 2936, Rev. C. 1907; re-en. Sec. 

4719, R. C. M. 1921. 

16-2304. (4720) Ballots — what to contain. There must be written or 

printed on the ballots the words "For the loan" and "Against the loan," and 

in voting the elector must vote for the proposition he prefers by making an 

X opposite the proposition. 

History: En. Sec. 4273, Pol. C. 1895; 
re-en. Sec. 2936, Rev. C. 1907; re-en. Sec. 

4720, R. C. M. 1921. 

16-2305. (4721) When loan may be made. If a majority of the votes 

cast are in favor of the loan, then the board may make the loan, issuing 

bonds, or otherwise, as may seem best for the interests of the county. 

History: En. Sec. 4274, Pol. C. 1895; 
re-en. Sec. 2937, Rev. C. 1907; re-en. Sec. 

4721, R. C. M. 1921. 

16-2306. (4722) Form of ballots — voting. Hereafter whenever, in due 
«ourse of law, in the manner and form required by law and according to the 
provisions and requirements of law, any question or proposition of or 
relating to bonded indebtedness, or of issuing bonds or of refunding, in- 
creasing, or creating a bonded indebtedness is submitted, ordered submitted, 
or to be submitted to the electors of any county, at a general or other 
election, when, at the same time, candidates for national, state, or county 
oflBce or offices are to be voted upon or for by the qualified electors of 
such county, such question or proposition relating to bonds or bonded 
indebtedness shall not be placed or printed upon the official ballots fur- 
nished electors at such election for the purpose of voting for candidates 

143 



16-2306 ELECTION LAWS 

for any office or offices, and containing the names of candidates for office 
or offices to be voted for at such election, but the county commissioners 
shall authorize, and the county clerk shall have printed and furnished to 
election judges and officials in each voting precinct of such county, separate 
ballots therefor, equal in number to the official ballots so furnished, and 
containing the names of such candidates for office. Said separate ballots 
shall be white in color and of convenient size, being only large enough to 
coniain the printing herein required to be done and placed thereon, and 
shall have printed thereon in fair-sized, legible type and black ink, in 
one line or more, as required, the words "For" said bonding proposition 
(stating it and the terms thereof explicitly and at length), and there- 
under the words "Against" said bonding proposition (stating it and the 
terms thereof explicitly and at length in like manner, as above) ; and 
there shall be before the word "For" and before the word "Against," 
each, a square space of sufficient size to place a plain cross or X therein, 
and such arrangement shall be in this manner: 



D 



For (stating propositions.) 



D 



Against (stating propositions.) 



Such separate ballots shall be kept, stamped, given out, received, 
counted, returned, and disposed of by election judges in like manner as 
other official ballots herein referred to. Each qualified elector offering to 
vote and permitted to vote shall, at the time he is offered by the election 
judges an official ballot bearing the names of candidates for office, be 
handed one of the separate ballots above described, and he may then and 
there, in a booth as provided by law, and not otherwise, vote on such 
separate ballot for or against said proposition by placing a cross or X 
before the word "For" or the word "Against," in the vacant square 
provided therefor; and such separate ballot shall be returned to the 
election judges by the voter, with said other official ballot, if the voter 
chooses to vote for candidates for office and is entitled to do so. The 
election judges shall deposit said separate ballot on the bonding propo- 
sition, separate from the voter's other official ballot, in the ballot-box. 

History: En. Sec. 1, p. 13, L. 1901; 
r«-«n. Sec. 2938, Eev. C. 1907; re-en. Sec. 
4722, B. C. M. 1921. 

CHAPTER 24 

COUNTY OFFICERS— QUALIFICATIONS— GENERAL PROVISIONS 

Section 16-2401. General qualifications for county office. 

16-2402. Same for district and township offices. 

16-2403. County officers enumerated. 

16-2404. Township officers. 

16-2406. County and other officers, when elected and term of office. 

16-2407, Election and terms of county commissioners. 

16-2408. District judges and justices of the peace — election and term of office. 

144 



COUNTIES 16-2406 

16-2401. (4723) General qualifications far county oflQce. No person is 

eligible to a county office who at the time of his election is not of the age of 

twenty-one years, a citizen of the state, and an elector of the county in 

which the duties of the office are to be exercised, or for which he is elected. 

History: En. Sec. 4310, Pol. C. 1896; 
re-«n. Sec. 2965, Rev. C. 1907; re-en. Sec. 

4723, R. C. M. 1921. CaJ. Pol. C. Sec. 41,01. 

16-2402. (4724) Same for district and township offices. No person is 

eligible to a district or township office who is not of the age of twenty-one 

years, a citizen of the state, and an elector of the district or township in 

which the duties of the office are to be exercised, or for which he is elected. 

History: En. Sec. 4311, Pol. C. 1895; 
r»-en. Sec. 2956, Rev. C. 1907; re-en. Sec. 

4724, R. C. M. 1921. CaL Pol. C. Sec. 4102. 

16-2403. (4725) County officers enumerated. The officers of a county 

are: 

A treasurer; 

A county clerk ; 

A clerk of the district court; 

A sheriff; 

A county auditor, except in the sixth, seventh, and eighth class counties ; 

A county attorney; 

A surveyor; 

A coroner; 

A public administrator; 

An assessor; 

A county superintendent of common schools; 

A board of county commissioners. 

History: En. Sec. 4312, Pol. C. 1895; Ch. 112, L. 1913; re-en. Sec. 4725, R. C. M. 
re-en. Sec. 2967, Rev. C. 1907; anuL Sec. 1, 1921. CaJ. PoL C. Sec. 4103. 

16-2404. (4726) Township officers. The officers of townships are two 

justices of the peace, two constables, and such other inferior and subordinate 

officers as are provided for elsewhere in this code, or by the board of county 

commissioners. 

History: En. Sec. 4313, Pol. O. 1895; 
re-en. Sec. 2968, Rev. C. 1907; re-en. Sec. 
4726, R. C. M. 1921. Cal. Pol. 0. Sec. 4104. 

16-2406. (4728) County and other officers, when elected and term of 
office. There shall be elected in each county the following county officers 
who shall possess the qualifications for sufferage prescribed by the constitu- 
tion of the state of Montana, and such other qualifications as may be pre- 
scribed by law: 

One county clerk who shall be clerk of the board of county commissioners 
and ex officio recorder; one sheriff; one treasurer, who shall be collector of 
the taxes; provided, that the county treasurer shall not be eligible to his 
office for the succeeding term; one county superintendent of schools; one 
county surveyor ; one assessor ; one coroner ; one public administrator. 
Persons elected to the different offices named in this section shall hold their 

145 



16-2407 ELECTION LAWS 

respective oflSces for the term of four (4) years, and until their successors 
are elected and qualified. 

The county attorneys, county auditors, and all elective township officers, 
must be elected at each general election as now provided by law. The 
officers mentioned in this act must take office on the first Monday of January 
next succeeding their election, except the county treasurer, whose term 
begins on the first Monday of March next succeeding his election. 

Vacancies in all county, township and precinct offices, except that of 
county commissioners, shall be filled by appointment by the board of county 
commissioners, and the appointee shall hold his office until the next general 
election ; provided, however, that the board of county commissioners of any 
county may, in its discretion, consolidate any two or more of the within 
named offices and combine the powers and the duties of the said offices con- 
solidated ; however, the provisions hereof shall not be construed as allowing 
one (1) office incumbent to be entitled to the salaries and emoluments of 
two (2) or more offices; provided, further, that in consolidating county 
offices, the board of county commissioners shall, six (6) months prior to 
the general election held for the purpose of electing the aforesaid officers, 
make and enter an order, combining any two (2) or more of the within 
jiamed offices, and shall cause the said order to be published in a newspaper, 
published and circulated generally in said county, for a period of six (6) 
weeks next following the date of entry of said order. 

History: En. Sec. 4315, PoL C. 1895; 4728, R. C. M. 1921; amd. Sec. 1, Oh. 131, 
re-en. Sec. 2960, Rev. C, 1907; re-en. Sec. L. 1939. Cal. Pol. C. Sec. 4109. 

16-2407. (4729) Election and terms of county commissioners. The elec- 
tion and terms of office of county commissioners are provided for in the 
constitution. 

History: En. Sec. 4316, PoL C. 1895; 
re-en. Sec. 2961, Rev. C. 1907; re-en. Sec. 

4729, R. C. M. 1921. 

16-2408. (4730) District judges and justices of the peace — election and 
term of office. The election and terms of office of district judges and jus- 
tices of the peace are provided for in title 93 of this code. 

History: En. Sec. 4317, PoL C. 1895; 
re-en. Sec. 2962, Rev. C. 1907; re-en. Sec. 

4730, R. C. M. 1921. CaL PoL C. Sec. 4110. 

CHAPTER 39 

COUNTY MANAGER FORM OF GOVERNMENT 

Section 16-3901. County manager plan of government may be adopted. 
16-3902. Method of adoption. 
16-3923. The recall of county commissioners. 

16-3901. (4954.1) County manager plan of government may be adopted. 
Any county in the state is hereby authorized to adopt a county manager form 
of government as herein defined, and in accordance with the procedure 
herein specified. 
History: En. Sec. 1, Oh. 109, L. 1931. 

146 



COUNTIES 16-3923 

16-3902. (4954.2) Method of adoption, (a) Upon a petition filed with 
the board of county commissioners signed by not less than 20 per cent of 
the whole number of voters who voted at the last general election asking 
that a referendum be held on the question of adopting the county manager 
form of government, it shall be the duty of the board of county commis- 
sioners to submit the question at the next regular election or call a special 
election for the purpose. If a special election is called it shall be held not 
more than ninety days nor less than sixty days from the filing of the peti- 
tion, but not within thirty days of any general election. The question sub- 
mitted shall be worded: "Shall the county manager form of government be 
adopted in county ?" 

(b) It shall be the duty of the board of county commissioners to publish 
a notice of the referendum in a daily paper twice a week for a period of 
three consecutive weeks, or in case there is no daily paper of wide circula- 
tion in the county, then in a weekly paper for four consecutive weeks. 

(c) If a majority of the votes cast on the question at the election shall 
be in favor of the county manager form of government it shall go into 
effect at a date designated in the petition or resolution. Provided : That 
no elected official then in office, whose position will no longer be filled 
by popular election, shall be retired prior to the expiration of his term of 
office, but that from and after the establishment of such form of govern- 
ment, his duties shall be such duties as are assigned to him by the county 
manager. 

History: En. Sec. 2, Ch. 109, L. 1931; 
amd. Sec. 1, Ch. 56, L. 1933. 

16-3923. (4954.23) The recall of county oommissioners. (1) One or 

more county commissioners may be removed by the electors qualified to vote 
for a successor of such incumbent. A petition of fifty-one per cent of all 
qualified electors registered for the last general election, demanding the 
election of a successor to the person sought to be removed, shall be filed with 
the director of finance of the county, which petition shall contain a general 
statement of the grounds for which the removal is sought. The signatures 
to the petition need not be appended to one paper, but each signer shall 
add to his signature, his place of residence ; one of the signers shall make 
oath before an officer, competent to administer oaths, that the statements 
therein are true, as he believes and that each signature to the paper ap- 
pended is the genuine signature of the person it purports to be. 

(2) On the filing of a sufficient petition, the director of finance shall 
order and fix a date for holding said election, not less than seventy days nor 
more than eighty days from the date of filing of such petition. The director 
of finance shall cause to be made publication of notice and all arrangements 
for holding of such election and the same shall be conducted and returned 
and the results thereof declared, in all respects and in the same manner as 
any other election. Nominations hereunder shall be made by filing with the 
director of finance, at least thirty days prior to such special election, a 
statement of candidacy, accompanied by a petition signed by electors en- 
titled to vote at such special election, equal in number to at least ten per 

147 



16-4001 ELECTION LAWS 

cent of the entire number of persons registered to vote at the last preceding 
general election. 

(3) The ballot for such special election shall be in substantially the 
following form: 

"OFFICIAL BALLOT 
Special election for the balance of the unexpired term of 

for 

(Vote for one only) 
(Name of candidate) 
(Name of present incumbent) 
(Official ballot attest) 

Signature 

Director of finance." 
The successor of any officer so removed shall hold office during the un- 
expired term of his predecessor. 

(4) Any person sought to be removed may be a candidate to succeed 
himself and unless he requests otherwise in writing, the director of finance 
shall place his name on the official ballot without nomination. In case of 
any such removal election, the candidate or candidates receiving the highest 
number of votes shall be declared elected. If the incumbent is not re-elected, 
he thereupon shall be deemed removed from the office, upon the qualification 
of his successor. If the incumbent receives the highest number of votes, or in 
case of a removal election for more than one commissioner, he or they 
receiving a sufficient number of votes so that his or their vote is the highest 
number for said office or offices of commissioner, he or they shall continue in 
office. The said method of removal shall be cumulative and additional to 
the methods herein provided by law. 

History: En. Sec. 7, Ch. 56, L. 1933. 

CHAPTER 40 

ABANDONMENT OF COUNTIES 

Section 16-4001. Abandonment of counties — how. 

16-4002. Petition for abandonment of counties — procedure thereon. 

16-4003. County commissioners to order election — notice — publication. 

16-4004. Commissioners to determine sufficiency of petition — form of resolution. 

16-4005. Governor to call special election — proclamation. 

16-4006. County commissioners to proclaim election — question submitted. 

16-4007. Question to be submitted. 

16-4008. Commissioners to canvass returns — governor to proclaim result. 

16-4009. Result of election determines abandonment. 

16-4001. Abandonment of counties — how. The organization and corpo- 
rate exi.stence of any county organized under the laws of this state may be 
abandoned and abolished and the territory within its boundaries attached 
to and made a part of some adjoining county in the manner provided by 
this act. 
History: En. Sec. 1, Ch. 105, L. 1937. 

16-4002. Petition for abandonment of counties — procedure thereon. 

(1) A petition may be filed with the county clerk of a county, asking that 

148 



COUNTIES 16-4003 

the question of abandoning and abolishing the organization and corporate 
existence of such county and attaching its territory to and making the same 
a part of some adjoining county, be submitted to the qualified electors of 
such county at an election. Such petition shall state the name of the adjoin- 
ing county to which the territory of such county, so to be abandoned and 
abolished, shall be attached and made a part; such petition shall be signed 
by not less than thirty-five per centum (35%) of the qualified electors of 
the county whose names appear upon the registration records of such county, 
shall contain the post oflSce address and voting precinct of each person sign- 
ing the same, and shall state the name and address of three persons to 
whom notice of the insufificiency of the petition shall be sent in the event 
that the petition shall not have the required number of signatures of qualified 
electors signed thereto. 

(2) It shall be the duty of the county clerk, within thirty days after 
the filing of such petition to examine the same, to ascertain and determine 
from the registration records of the county whether such petition is signed 
by the required number of qualified electors. Such clerk may be authorized 
by the board of county commissioners to employ additional help in his office 
to assist him in the work of examining such petition and such board shall 
provide for their compensation. When such examination is completed said 
clerk shall forthwith attach to such petition his certificate, properly dated 
and signed, showing the result of his examination, and if said certificate 
shows that said petition is signed by the required number of qualified elec- 
tors, said clerk shall immediately present said petition to the board of county 
commissioners, if such board be then in session, otherwise at its first regular 
meeting after the date of such certificate. No person, after signing any such 
petition shall be allowed or permitted to withdraw his signature or name 
therefrom. 

History: En. Sec. 2, Ch. 105, L. 1937. 

16-4003. County commissioners to order election — ^notice — publication. 

(1) Whenever any such petition is presented to the board of county com- 
missioners of a county with a certificate of the county clerk attached there- 
to, showing th^.t said petition has been signed by not less than thirty-five per 
centum (35%) of the qualified electors of such county whose names appear 
upon the registration records of said county, as provided in section 16-4002, 
said board of county commissioners shall immediately upon presentation of 
such petition, make and enter an order in its minutes fixing a day for con- 
sidering and taking final action on said petition, which shall be not less 
than thirty (30) nor more than thirty-five (35) days after the date when said 
order is made, and shall cause a notice to be published in the official news- 
paper of the county to the effect that such petition has been presented to 
such board asking for the abandonment and abolishment of the county and 
that said board will meet at the time specified in said order for considering 
and taking final action on said petition, at which time any and all registered 
electors of the county interested therein may appear and be heard thereon. 
Such notice shall be published once a week for two (2) successive weeks im- 
mediately following the making of such order. 

149 



16-4004 ELECTION LAWS 

(2) At any time prior to five (5) days before the date fixed for con- 
sideration and final action on such petition fifty per centum (50%) of the 
registered electors residing within a particular part or portion of such 
county, may file with the county clerk of such county a petition in writing 
signed by them praying that the part or portion of such county within 
which such petitioners reside shall not be attached to the county designated 
in the petition for abandonment but shall be attached to some other adjoining 
county, which petition shall definitely, particularly and accurately describe 
the boundaries of such part or portion of said county which said petitioners 
desire to be attached to such other adjoining county and shall specify and 
name such other adjoining county to which such part or portion is to be 
attached if said county is abandoned and abolished. 

(3) Whenever any such petition is filed the county clerk shall im- 
mediately examine the same and determine from the registration records of 
the county whether such petition has been signed by the required number of 
registered electors and shall attach thereto his certificate showing the total 
number of registered electors residing within the boundaries described in 
said petition and the number thereof whose names appear on said petition, 
and shall deliver such petition with such certificate attached, to the board 
of county commissioners when such board meets to consider and take final 
action on such petition for abandonment, separate and independent petitions 
may be filed by registered electors residing within the boundaries of sep- 
arate and distinct and different parts or portions of such county, praying 
that the territory embraced within the boundaries described therein may be 
attached to and become parts of the same, or different adjoining counties, 
other than the county named and designated in the petition for abandon- 
ment, if said county is abandoned. No person after signing any such peti- 
tion shall be allowed or permitted to withdraw his signature or name there- 
from. 

History: En. Sec. 3, Ch. 105, L. 1937. 

16-4004. Commissioners to determine suflBciency of petition — form of 
resolution. On the day fixed by the board for consideration and final action 
on such petition for abandonment the board shall meet and examine and 
consider all petitions which may have been filed praying that particular 
parts or portions of said county, if abandoned, be attached to an adjoining 
county or counties, other than the county named in such petition for aban- 
donment, and shall determine the sufficiency of each such petition filed, and 
shall enter its findings with regard thereto in its minutes, and said board 
shall thereupon adopt a resolution, which shall be in writing and also entered 
in full in its minutes, and which shall be in substantially the following form : 

Whereas, there has been filed with the clerk of (name) county, Montana, 
a petition asking that the organization and corporate existence of said county 
be abandoned and abolished and its territory attached to and made a part 
of an adjoining county, to wit, the county of (name) Montana; 

And whereas, said petition has been presented to the board of count}' 
commissioners of (name) county, with a certificate of the clerk of said 
county attached thereto showing that said petition has been signed by not 

150 



COUNTIES 16-4005 

less than thirty-five per centum (35%) of the registered electors of said 
county ; 

(If any petition for attaching any part or portion of the county, in ease 
of abandonment to an adjoining county or counties, other than the county 
named in the petition for abandonment, and found to have been signed by 
the required number of registered electors, insert the following for each 
petition) 

And whereas, there has been filed a petition signed by not less than fifty 
per centum (50%) of the registered electors residing within that part or 
portion of said county described as (give description as contained in peti- 
tion) praying that the part or portion of said county within such bound- 
aries be attached to and made a part of the county of (name of county given 
in petition) if said county be abandoned; 

Now therefore be it resolved, that if said (name) county shall be aban- 
doned and abolished the territory embraced within its boundaries shall 
be attached to and become part of the following. (If all to be attached to 
one adjoining county so state, but if parts or portions to any other county 
or counties, then describe the part or portion to go to each adjoining county 
as well as to the county named in the petition for abandonment.) 

And be it further resolved, that the county clerk of (name) county, Mon- 
tana, make copies of this resolution, each with a copy of said petition for 
abandonment, with the signatures omitted therefrom (and copies of petitions 
for attaching parts or portions of said county to adjoining county or coun- 
ties, other than the county named in the petition for abandonment, if any 
were filed and found sufficient, with signatures omitted) and certify to the 
same and affix the seal of the county thereto, and transmit one of said 
copies to the governor of the state of Montana, and one of said copies to the 
clerk of each county to which any part of said county is to be attached, if 
abandoned. 

Said resolution must be signed by the members of the board of county 
commissioners and the county clerk must, within five (5) days thereafter, 
make the certified copies of said resolution, with copy of petition or petitions 
attached, and transmit one copy to the governor of the state of Montana and 
one copy to the county clerk of each county to which any part or portion of 
said county is to be attached, if abandoned. 
History: En. Sec. 4, Ch. 105, L. 1937. 

16-4005. Governor to call special election — proclamation. Upon receipt 
of a certified copy of the resolution provided for in section 16-4004, 
the governor shall, within ten days thereafter, issue his proclamation call- 
ing a special election in the county in which the petition referred to 
in said resolution was filed, and in each county designated in such resolu- 
tion as a county to which any of the territory of such county, if abandoned 
and abolished, shall be attached and made a part, at which election there 
shall be submitted to the qualified electors of the county in which such peti- 
tion was filed the question of whether or not such county shall be abandoned 
and abolished and its territory attached to and made a part of the county 
designated and named for such purpose in said petition, and at which elec- 

151 



16-4006 ELECTION LAWS 

tion there shall be submitted to the qualified electors of each county named 
and designated in such resolution as a county to which a part of the territory 
of the county, proposed to be abandoned and abolished, shall be attached and 
made a part, if such county shall be so abandoned and abolished, the ques- 
tion of whether or not such part of the territory of such county, if abandoned 
and abolished, described in such resolution, shall be attached to and become 
a part of such county. Such proclamation shall fix a day for holding such 
election in such counties, which shall be not less than ninety days nor more 
than one hundred and twenty days after the date of the date of the gover- 
nor's proclamation calling the same ; provided that if a general election will 
be held in said counties within one hundred and twenty days after the date 
of such proclamation, the governor, in such proclamation, shall direct that 
such question be submitted to the qualified electors of said counties at such 
general election. Such proclamation shall be filed in the office of the secre- 
tary of state and copies thereof shall be transmitted by the governor to the 
county clerk of each of the counties in which such election is to be held. 
History: En. Sec. 5, Ch. 105, L. 1937. 

16-4006. County commissioners to proclaim election — question sub- 
mitted. The county clerk of each of such counties after receiving a copy of 
such election proclamation shall present the same to the board of county 
commissioners, if such board is then in session, and if not in session, then at 
the first meeting thereof held after such clerk has received the same, and 
the board of county commissioners of each of such counties shall issue such 
proclamations and give such notices of election as are required by the gen- 
eral laws of this state when questions are to be submitted to the qualified 
electors of a county at an election and which proclamation and notices shall 
include a description of the boundaries of that part of the county proposed 
to be abandoned and to be attached to and made a part of such county, if 
said county be abandoned, and the county clerk of each of such counties 
shall give notice of the closing of the registration books and shall cause the 
same to be closed at the time and in the manner provided by the general 
registration and election laws of this state. 
History: En. Sec. 6, Ch. 105, L. 1937. 

16-4007. Question to be submitted. At such election the question to be 
submitted to the qualified electors of the county in which said petition was 
filed shall be as follows: 

□ For the abandonment and abolishment of the county of (name) and 
attaching the territory within its boundaries to and making the same a part 
of the county or counties of (name). 

□ Against the abondonment and abolishment of the county of (name) 
and attaching the territory within its boundaries to and making the same 
a part of the county or counties of (name). 

And the question to be submitted to the qualified electors of the counties, 
designated in the resolution as the county or counties to which the territory 
of the county proposed to be abandoned and abolished, is to be attached and 
made a part, shall be as follows: 

152 



COUNTIES 16-4009 

n For attaching to and making a part of the county of (name) a part 
of the territory within the boundaries of the county of (name) if the same is 
abandoned and abolished. 

□ Against attaching to and making a part of the county of (name) a 
part of the territory within the boundaries of the county of (name) if the 
same is abandoned and abolished. 

Said election shall be held, voted, counted and returns made and can- 
vassed in the manner provided by the general election laws of this state. 
History: En. Sec. 7, Ch. 105, L. 1937. 

16-4008. Commissioners to canvass returns — governor to proclaim result. 
The board of county commissioners of each county, acting as a canvassing 
board, must within ten (10) days after the holding of such election canvass 
the returns of such election, and within five (5) days thereafter the clerk of 
each such county must make and enter in the records of said board a state- 
ment of the vote in such county and transmit to the secretary of state, by 
registered mail, an abstract thereof, which shall be marked "Election Re- 
turns." Within ten (10) days after receiving such abstracts from all coun- 
ties in which such election was held, and on notice from the secretary of 
state, the board of state canvassers shall meet and canvass, compute and de- 
termine the vote, and the secretary of state, as secretary of such board must 
make and file in his office a statement thereof and transmit a copy thereof 
to the governor. Upon receipt of such copy the governor shall issue a procla- 
mation declaring the result of such election and shall file a copy of such 
proclamation in the office of the secretary of state and transmit a copy of 
such proclamation to the county clerk of each of the counties in which such 
election was held, and each such county clerk shall fde the same in his office 
and present the same to the board of county commissioners of his county, 
if such board is then in session, otherwise at the first meeting of the board 
after the same has been received by such clerk. 
History: En. Sec. 8, Ch. 105, L. 1937. 

16-4009. Result of election determines abandonment. If, at such elec- 
tion a majority of the votes cast in the county in which such petition was 
filed shall be cast in favor of the abandonment and abolishment of such 
county, and a majority of the votes cast in the county, designated in the 
petition for abandonment as the county to which the territory of the aban- 
doned county shaU be attached, shall be in favor thereof, then the organ- 
ization and political and corporate existence of the county in which such 
petition for abondonment was filed shall cease and terminate and said county 
shall be abandoned and abolished and disincorporated and cease to exist and 
its territory shall be attached to and become a part of the counties desig- 
nated in the resolution adopted under section 16-4004, and the term of 
office of each of the officers thereof, and of the members of the board of 
county commissioners thereof, and of its senator and representative in the 
legislative assembly shall cease and terminate at twelve (12:00) o'clock mid- 
night on the thirtieth day of June immediately following; provided that if 
at any such election a majority of the votes cast in anj^ adjoining county 
named in the resolution adopted under section 16-4004, other than the county 

153 



16-4301 ELECTION LAWS 

designated in the petition for abandonment as the county to which the terri- 
tory of the abandoned county shall attach, shall be against the attaching of 
any portion of the territory of the abandoned county to such adjoining 
county, then such portion of such territory described in said resolution shall 
be attached and become a part of the county designated in such resolution 
for abandonment as the county to which the territory of the abandoned 
county shall attach. 
History: En. Sec. 9, Ch. 105, L. 1937. 

CHAPTER 43 
PUBLIC HOSPITAL DISTRICTS 

Section 16-4301. Purpose of act — allowable territory embraced within public hospital 
district. 

16-4302. Petition to board of county commissioners. 

16-4303. Hearing. 

16-4304. Reference of creation of district at election. 

16-4305. Resolution and order of board as respects election. 

16-4306. Favorable vote — commissioners finally to organize district. 

16-4307. Government of district — appointment, election and terms of trustees. 

16-4301. Purpose of act — allowable territory embraced within public 
hospital district. The purpose of this act is to authorize the establishment 
of public hospital districts which shall have power to own and operate 
public hospitals, or to lease and operate public hospitals, or to maintain 
or aid in the maintenance and operation of a public hospital, and in either 
case to supply hospital facilities and services to residents of such districts, 
and as herein authorized, to others. A public hospital district may contain 
the entire territory embraced within a county or any portion or sub- 
division thereof. 
History: En. Sec. 1, Ch. 155, L. 1953. 

16-4302. Petition to board of county commissioners. Whenever a peti- 
tion, signed by not less than thirty per centum (30%) of the citizens who 
are owners of property located within the boundaries of a proposed public 
hospital district, and whose names appear as such property owners upon 
the last completed assessment roll of the county in which said proposed 
district is situated, which petition shall definitely describe the boundaries 
of the proposed district and request that the territory within said bound- 
aries be organized into a public hospital district, shall be addressed and 
presented to the board of county commissioners of the county in which 
the proposed district is situated, at any regular or special meeting of said 
board, it shall file the same and act thereon as herein prescribed. The 
said board of county commissioners, by resolution, shall fix a time for 
a hearing upon said petition at not less than two (2) nor more than four 
(4) weeks from the time of presentation thereof, and shall cause notice 
to be given of the time and place of said hearing by publication in a news- 
paper published in the county in not less than two (2) successive issues of 
said newspaper, the last publication of which notice shall be at least two 
(2) weeks before said hearing. Said notice shall state that any person 
residing in or owning property within said proposed district or any part 

154 



COUNTIES 16-4306 

thereof as described in said petition, may appear before said board at 
the hearing and show cause why the said district should not be created, 
mstory: En. Sec. 2, Ch. 155, L. 1953. 

16-4303. Hearing. At the time fixed for said hearing, the board shall 
determine whether or not the petition complies with the requirements 
hereinbefore set forth and whether or not the notice required herein has 
been published as required. At such hearing the board must hear all com- 
petent and relevant testimony offered in support of or in opposition to 
said petition and the creation of such district. Said hearing may be ad- 
journed from time to time for the determination of said facts, or hearing 
petitioners or objectors, but no adjournment shall exceed two (2) weeks 
in all from and after the date originally noticed and published for the 
hearing. 
History: En. Sec. 3, Ch. 155, L. 1953. 

16-4304. Reference of creation of district at election. If the board of 
comity commissioners shall determine that the petitioners have complied 
with the requirements herein set forth and that the prescribed notice has 
been published, it shall thereupon proceed by resolution to refer the ques- 
tion of the creation of such district to the persons qualified to vote on 
such proposition as in this act prescribed. Said board, in its resolution of 
reference, may make such changes in the boundaries of the proposed dis- 
trict as it may deem advisable, without, however, including any additional 
lands not described in the petition, and shall define and establish the 
boundaries of the district, and it shall call an election, upon the question 
of the creation of the district. 
History: En. Sec. 4, Oh. 155, L. 1953. 

16-4305. Resolution and order of board as respects election. The board 
must, in its resolution, designate whether or not a special election shall 
be held, or whether the matter shall be determined at the next general 
election. If a special election is ordered, the board must, in its order, 
specify the time and place for such election, the voting places, and shall 
in said order appoint and designate judges and clerks therefor. The 
election shall be held in all respects as nearly as practicable in conformity 
with the general election laws ; provided that the polls shall be open from 
eight (8) o'clock A.M. to six (6) o'clock P.M., on the day appointed for 
such election. At such election, the ballots must contain the words "Hos- 
pital District, Yes" and "Hospital District, No." The judges of the elec- 
tion shall certify to the board of county commissioners the results of said 
election. No person shall be qualified to vote at such election who has not 
attained twenty-one (21) years of age, who is not an owner of property 
within the boundaries of said district as defined by the board, and whose 
name does not appear on the last completed assessment roll of the county. 
History: En. Sec. 5, Cta. 155, L. 1953. 

16-4306. Favorable vote — commissioners finally to organize district. 

In the event that a majority of the votes cast are in favor of the creation 
and establishment of said hospital district, the board of couny commis- 

155 



16-4307 ELECTION LAWS 

sioners shall, within ten (10) days after the election, by resolution certify 
such result, and proceed with the organization of such district as herein 
specified. 
History: En. Sec. 6, Ch. 155, L, 1953. 

16-4307. Govermnent of district — appointment, election ajid terms of 
trustees. Said hospital district shall be governed and managed by a board 
of three (3) trustees, elected by the persons within the district who have 
the same qualifications as voters upon the question of "creation of the dis- 
trict." The trustees must be elected from among the freeholders residing 
within said district, and the trustees elected for the first board shall serve 
for terms commencing upon their being elected and qualified and terminat- 
ing one (1) two (2) and three (3) years respectively, from the first Monday 
in May following their election, and until their respective successors shall 
be elected and qualify. Annually thereafter there shall be elected a 
trustee to serve for a term of three (3) years and until his successor shall 
be elected and qualify and such term of three (3) years shall commence on 
the first Monday in May following the said trustee's election. The first 
board of trustees shall be elected at the same election held upon the creation 
of the district, subject to the creation thereof, shall qualify upon the 
organization of the district, if created, and the trustees may be nominated 
and have their names appear upon the ballots upon the tiling with the board 
of county commissioners of a petition signed by any five (5) qualified 
electors of the district. Any elector may sign as many nominating petitions 
as there are persons to be elected. All elections and nominations for election 
of trustees thereafter, shall be conducted by said qualified voters in the 
same manner as provided by the laws of the state of Montana for the elec- 
tion of school trustees of a second or third class school district, provided 
that wherever in the said laws of the state of Montana it is provided that 
certain action shall be performed or filings made with the clerk of the 
school board, the trustees or the board of trustees of the school district or 
the county superintendent of schools, the same shall, for the purposes of 
this act, be taken to refer to the clerk of the board of trustees of the public 
hospital district, the trustees or the board of trustees of the public hospital 
district or the county clerk, respectively. The trustees at their first meet- 
ing shall adopt by-laws for the government and management of the district, 
and shall appoint a qualified person to serve as clerk of the said board, 
who may or may not be one of their number. The trustees shall serve 
without pay. A vacancy upon the board of trustees, or in the office of clerk 
shall be filled by appointment by the remaining members and the ap- 
pointee shall serve until the next ensuing election for trustees. 

History: En. Sec. 7, Ch. 155, L. 1953; 
amd. Sec. 1, Ch. 97. L. 1955. 

CHAPTER 45 

COUNTY WATER AND SEWER DISTRICTS 

Section 16-4501. Organization of county water and/or sewer districts authorized. 
16-4502. Organization of districts. 
16-4503. Petition — boundaries of district — publication. 

156 



COUNTIES 16-4503 

lG-4504. Time of consideration — final hearing. 

16-4505. Proposition submitted — wlio may vote — certificate of secretary of 

state — district deemed incorporated — must hear testimony — suit 

oommeni-od widiin osu- year election. 

16-4506. Election of directors — term of office. 

16-4507. Nomination of officers. 

16-4508. General law to govern. 

16-4509. Officers subject to recall. 

16-4513. Informality not to invalidate. 

16-4517. Bonded indebtedness. 

16-4518. Election. 

16-4519. Notice. 

16-4520. Publication. 

16-4521. Canvass of returns. 

16-4522. Two-thirds vote necessary. 

16-4529. Initiative. 

16-4530. Eeferendum. 

16-4531. Adding to and consolidation of district. 

16-4501. Organization of county water and/or sewer districts author- 
ized. A county water aiid/or sewer district may be organized and incor- 
porated and managed as herein expressly provided and may exercise the 
powers herein expressl.v granted or necessarily implied. 

History: En. Sec. 1, Ch. 242, L. 1957; County of Yellowstone, 140 M 538, 374 P 

amd. Sec. 1, Ch. 263, L. 1967. 2d 328, 333. 

The title of the County Water District 
Constitutionality Act (16-4501 to 16-4534) is not defective 
The County Water District Act (16-4501 because it provides only for the construe- 
to 16-4534) is not unconstitutional on the tion of waterworks since the provisions in 
ground that there is an invalid delegation the body of the act for water tax and 
of power by the legislature because in- bond tax are germane to that part of the 
adequate standards are provided in the title dealing with construction of water- 
act since the provisions of the act are works and such taxes are necessary to 
sufficiently clear, definite, and certain to accomplish the general objects of the 
enable the countv water district to know bill. Parker v. County of Yellowstone, 140 
its rights and ' obligations. Parker v. M 538, 374 P 2d 328, 334. 

16-4502. Organization of districts. The people of any county or coun- 
ties, or portion of a city or a county, or city and county, or any combina- 
tion of these political divisions, whether such portion includes unincor- 
porated territory or not, in the state of Montana, ma.y organize a county 
water and/or sewer district under the provisions of this act by proceeding 
as herein provided. 

History: En. Sec. 2, Ch. 242, L. 1957; 
amd. Sec. 1, Cli. 167, L. 1965; amd. Sec. 1, 
Ch. 263, L. 1C67. 

16-4503. Petition — boundaries of district — publication. A petition, 
which may consist of any number of separate instruments, shall be pre- 
sented at a regular meeting of the board of commissioners of the county in 
which the proposed district is located, signed by the registered voters within 
the boundaries of the proposed district, equal in number to at least ten per 
centum (10%) of the registered voters of the territory included in such 
proposed district. AVhen the territory to be included in such proposed 
district lies in more than one county, a petition must be presented to the 
board of county commissioners of eaeli county in which said territorj^ lies 
and each of said petitions must be signed by at least ten per centum (10%) 
of the registered voters of Hie territory within said county to be included 

157 



16-4504 ELECTION LAWS 

within such proposed district. Such petition shall set forth and describe 
the proposed boundaries of such district, and shall pray that the same be 
incorporated under the provisions of this act, and the text of such petition 
shall be published for ten (10) consecutive days in a daily newspaper or in 
two (2) issues of a weekly newspaper printed and published in every county 
in which said territory lies, together with a notice stating the time of the 
meeting at which same will be presented. The first publication shall be at 
least two (2) weeks before the time at which the petition is to be presented. 
When contained upon more than one (1) instrument, one (1) copy only of 
such petition need be published. No more than five of the names attached 
to said petition need appear in such publication of said petition and notice, 
but the number of signers shall be stated. 

History: En. Sec. 3, Ch. 242, L. 1957; 
amd. Sec. 2, Ch. 167, L. 1965; amd. Sec. 1, 
Ch. 263, L. 1967. 

16-4504. Time of consideration — final hearing. With such publica- 
tion there shall be published a notice of the time of the meeting of the 
board when such petition will be considered and that all persons interested 
therein may then appear and be heard. At such time the board of com- 
missioners shall hear the petition and those appearing thereon together 
with such written protests as shall have been filed with the county clerk 
and recorder prior to such hearing by or on behalf of owners of taxable 
property situated within the boundaries of the proposed district within 
the county and may adjourn such hearing from time to time, not exceed- 
ing four (4) weeks in all. No defect in the contents of the petition or in 
the title to or form of the notice or signatures, or lack of signatures, 
thereto shall vitiate any proceedings thereon, provided such petition or 
petitions have a sufiicient number of qualified signatures attached thereto. 
On the final hearing said board shall make such changes in the proposed 
boundaries which be within the county as may be deemed advisable and 
shall define and establish such boundaries, but said board shall not modify 
said boundaries as to exclude from such proposed district any territory 
which would be benefited by the formation of such district; nor shall any 
lands which will not, in the judgment of said board, be benefited by such 
district be included within such proposed district. Any person whose lands 
are benefited by such district may upon his application, to the board of 
the county in which his lands be in the discretion of said board, have 
such lands included within said proposed district. 

History: En. Sec. 4, Oh. 242, L. 1957; 
amd. Sec. 3, Ch. 167, L. 1965. 

16-4505. Proposition submitted — ^who may vote — certificate of secre- 
tary of state — district deemed incorporated — must hear testimony — suit 
commenced within one year — election. Upon such hearing of said peti- 
tion, the board of commissioners shall determine whether or not said pe- 
tition complies with the requirements of the provisions of this act, and 
for that purpose must hear all competent and relevant testimony offered 
in support of or in opposition thereto. Such determination shall be en- 

158 



COUNTIES 16-4505 

tered upon the minutes of said board of commissioners. A finding of the 
board of commissioners in favor of the genuineness and sufficiency of the 
petition and notice shall be final and conclusive against all persons except 
the state of Montana upon suit commenced by the attorney general. Any 
such suit must be commenced within one (1) year after the order of the 
board of commissioners declaring such district organized as herein pro- 
vided, and not otherwise. Upon the final determination of the boundaries 
of the district the board of commissioners of each county in which said 
district lies shall give notice of an election to be held in said proposed 
district for the purpose of determining whether or not the same shall be 
incorporated, the date of which election shall be not more than sixty (GO) 
days from the date of the final hearing of such petition. Such notice shall 
describe the boundaries so established and shall state the proposed name 
of the proposed incorporation (which name shall contain the words 

" county water and/or sewer district"), and this notice shall 

be published for ten (10) consecutive days in a daily newspaper or in two 
(2) issues of a weekly newspaper printed and published in every county in 
which said district lies. The first publication shall be made at least two (2) 
weeks before the time at which the election is to be held. At such election 
the proposition to be submitted shall be : "Shall the proposition to organize 

county water and/or sewer district under (naming the 

chapter containing this act) of the acts of the session of the 

Montana legislature and amendments thereto be adopted?" And the elec- 
tion thereupon shall be conducted, the vote canvassed and the result de- 
clared in the same manner as provided by law in respect to general elections, 
so far as they may be applicable, except as in this act otherwise provided. 
No person shall be entitled to vote at any election under the provisions of 
this act unless such person possesses all the qualifications required of elec- 
tors under the general election laws of the state, and is the owner of taxable 
real property located within the county in which he proposes to vote and 
situated within the boundaries of the proposed district. Within four 
(4) days after such election the vote shall be canvassed by the board of 
commissione;rs. If a majority of the votes cast at such election in each 
municipal corporation or part thereof and in the unincorporated terri- 
tory of each county included in such proposed district shall be in favor of 
organizing such county district, said board of each such county shall by an 
order entered on its minutes declare the territory enclosed within the 
proposed boundaries duly organized as a county water and/or sewer district 
under the name theretofore designated, and the county clerk of. each such 
county shall immediately cause to be filed with the secretary of state and 
shall cause to be recorded in the ofiice of the county recorder of the county 
or counties in which such district is situated, each, a certificate stating that 
such a proposition was adopted. Upon the receipt of such last-mentioned 
certificate the secretary of state shall, within ten (10) days, issue his 
certificate reciting that the district (naming it) has been duly incorporated 
according to the laws of the state of Montana. A copy of such certificate 
shall be transmitted to and filed with the county clerk of the county or 
counties in which such district is situated. From and after the date of 

159 



16-4506 ELECTION LAWS 

such certificate, the district named therein shall be deemed incorporated, 
with all the rights, privileges and powers set forth in this act and neces- 
sarily incident thereto. In case less than a majority of the votes cast are 
in favor of said proposition the organization fails but without prejudice 
to renewing proceedings at any time in the future. 

History: En. Sec. 5, Ch. 242, L. 1957; 
amd. Sec. 4, Ch. 167, L. 1965; amd. Sec. 1, 
Ch. 263, L. 1967. 

16-4506. Election of directors — term of office. At an election to be 
held within such district under the provisions of this act and the laws 
governing general elections not inconsistent herewitli, the district thus 
organized shall proceed within ninety (90) days after its formation to the 
election of a board of directors consisting, if there are no municipalities 
within the boundaries of said district, of five (5) members. In all cases 
where the boundaries of such district include any municipality or munici- 
palities, said board of directors, in addition to said five (5) directors to be 
elected as aforesaid, shall consist of one (1) additional director for each 
one of said municipalities within such district, each such additional direc- 
tor to be appointed by the mayor of the municipality for which said addi- 
tional director is allowed; and if there be any unincorporated territory 
within said district, one additional director, to be appointed by the board 
of commissioners of each county containing such territory. Any director 
so elected or appointed shall be a qualified freeholder and a resident of 
said district. All directors, elected or appointed, shall hold office until the 
election and qualification or appointment and qualification of their suc- 
cessors. The term of office of directors elected under the provisions of this 
act shall be four (4) years from and after the date of their election; pro- 
vided, that the directors first elected after the passage of this act shall 
hold ofifice only until the election and qualification of their successors as 
hereinafter provided. The term of office of directors appointed by said 
mayor or mayors or by said board of commissioners shall be six (6) years 
from and after the date of appointment. Directors to be first appointed 
under the provisions of this act shall be appointed within ninety (90) days 
after the formation of the district. The election of directors of such district 
shall be in every fourth year after its organization, on the fourth Tuesday 
in March, and shall be known as the "general district election." All other 
elections which may be held by authority of this act, or of the general laws, 
shall be known as special district election. 

History: En. Sec. 6, Ch. 242, L. 1957; 
amd. Sec. 5, Ch. 167, L. 1965; amd. Sec. 1, 
Ch. 263, li. 1967. 

16-4507. Nomination of officers. (1) The mode of nomination and 
election of all elective officers of such district to be voted for at any dis- 
trict election and the mode of appointment of a director or directors by 
said mayor or mayors or by said board of commissioners shall be as 
follows and not otherwise. 

(2) The name of a candidate shall be printed upon the ballot when 
a petition of nomination shall have been filed in his behalf in the manner 
and form and under the conditions hereinafter set forth. 

160 



COUNTIES 16-4507 

(3) The petition of nomination shall consist of not less than twenty- 
five (25) individual certificates, which shall read substantially as folloAvs: 

PETITION OF NOMINATION 
Individual Certificate 

State of ^ 

. ss. 

County of 

Prect. No 

I, the undersigned, certify that I do hereby join in a petition for the 

nomination of , whose residence is at for the office of 

of the district to be voted for at the district 

election to be held in the district on the day of 

, 19.— ; and I further certify that I am a qualified elector 

and freeholder residing within said district, and am not at this time a 
signer of any other petition nominating any other candidate for the 
above named office ; or, in case there are several places to be filled in the 
above named office, that I have not signed more petitions than there are 
places to be filled in the above named office ; that my residence is at No, 

street, , and that my occupation is 

(Signed) 

State of Montana i 

^ ss. 

County of j 

, being duly sworn, deposes and says that he is the person 

who signed the foregoing certificate and that the statements therein are 
true and correct. 

(Signed) 

Subscribed and sworn to before me this day of 19 



Notary Public 

The petition of nomination of which this certificate forms a part shall, 
if found insufficient, be returned to , at , Montana. 

(4) Clerk to furnish forms. It shall be the duty of the county clerk 
to furnish upon application a reasonable number of forms of individual 
certificates of the above character. If the district lies in more than one 
county, the county clerk whose county contains the largest percentage 
of the territory of said district shall fulfill this function. 

(5) Certificates. Each certificate must be a separate paper. All cer- 
tificates must be of uniform size as determined by the county clerk. 
Each certificate must contain the name of one signer thereto and no more. 
Each certificate shall contain the name of one candidate and no more. 
Each signer must be a qualified elector residing within said district, must 
not at the time of signing a certificate have his name signed to any other 
certificate for any other candidate for the same office, or, in case there 
are several places to be filled in the same office, signed to more certificates 
for candidates for that office than there are places to be filled in such 

161 



16-4507 ELECTION LAWS 

office. In case an elector has signed two or more conflicting certificates, 
all such certificates shall be rejected. Each signer must verify his certifi- 
cate and make oath that the same is true, before a notary public. Each 
certificate shall further contain the name and address of the person to 
whom the petition is to be returned in case said petition is found in- 
sufficient. 

(6) Presentation of petition. A petition of nomination, consisting 
of not less than twenty-five (25) individual certificates for any one candi- 
date, may be presented to the county clerk not earlier than forty-five 
(45) days nor later than thirty (30) days before the election. The county 
clerk shall endorse thereon the date upon which the petition was presented 
to him. If the district lies in more than one county, such petition for 
nomination shall be presented to the county clerk whose county contains 
the largest percentage of the territory of said district and said county clerk 
shall fulfill all duties assigned to county clerks in elections under this act. 

(7) Examination of petition. When a petition of nomination is pre- 
sented for filing to the county clerk, he shall forthwith examine the same, 
and ascertain whether or not it conforms to the provisions of this section. 
If found not to conform thereto, he shall then and there in writing 
designate on said petition the defect or omission or reason why such 
petition cannot be filed, and shall return the petition to the person 
named as the person to whom the same may be returned in accordance 
v/ith this section. The petition may then be amended and again pre- 
sented to the clerk as in the first instance. The clerk shall forthwith pro- 
ceed to examine the petition as hereinbefore provided. If necessary, 
the board of commissioners shall provide extra help to enable the clerk 
to perform satisfactorily and promptly the duties imposed by this section. 

(8) Signer may withdraw name. Any signer to a petition of nomi- 
nation and certificate may withdraw his name from the same by filing with 
the county clerk a verified revocation of his signature before the filing 
of his petition by the clerk, and not otherwise. He shall then be at 
liberty to sign a petition for another candidate for the same office. 

(9) Candidate may withdraw. Any person whose name has been 
presented under this section as a candidate may, not later than twenty- 
five (25) days before the day of election, cause his name to be withdrawn 
from nomination by filing with the county clerk a request therefor in 
writing, and no name so withdrawn shall be printed upon the ballot. 
If, upon such withdrawal, the number of candidates remaining docs 
not exceed the number to be elected, then other nominations may be made 
by filing petitions therefor not later than twenty-five (25) days prior to 
such election. 

(10) Petition filed. If either the original or amended petition of 
nomination be found sufficiently signed as hereinbefore provided, the 
clerk shall file the same twenty-five (25) days before the date of the 
election. When a petition of nomination shall have been filed by the 
clerk it shall not be withdrawn or added to and no signatures shall be 
revoked thereafter. 

162 



COUNTIES 16-4507 

(11) Petitions preserved. The county clerk shall preserve in his 
office for a period of two years, all petitions of nomination and all 
certificates belonging thereto, filed under this section. 

(12) List of candidates. Immediately after such petitions are filed, 
the county clerk shall enter the names of the candidates in a list, with 
the offices to be filled, and shall not later than twenty (20) days before 
the election certify such list as being the list of candidates nominated 
as required by the provisions of this act, and the board of commissioners 
of each county in which the district lies shall cause said certified list of 
names and the offices to be filled, to be published in the proclamation 
calling the election at least ten (10) successive days before the election 
in at least one (1) but not more than three (3) newspapers of general 
circulation published in each county in which such district is located. 
Such proclamation shall conform in all respects to the general state law 
governing the conduct of general elections now or hereafter in force, appli- 
cable thereto, except as otherwise herein provided. 

(13) Ballots. Form. The county clerk shall cause the ballots to 
be printed and bound and numbered as provided by said general state 
law, except as otherwise required in this act. The ballots shall contain 
the list of names and the respective offices as published in the proclama- 
tion and shall be in substantially the following form : 

GENERAL (OR SPECIAL) DISTRICT ELECTION 

District, 

(Inserting date thereof.) 
Instructions to Voters: To vote, stamp or write a cross (X) opposite 
the name of the candidate for whom you desire to vote. All marks other- 
wise made are forbidden. All distinguishing marks are forbidden and 
make the ballot void. If you wrongly mark, tear or deface this ballot, 
return it to the inspector of election, and obtain another. 

(14) How printed. All ballots printed shall be precisely on the 
same size, quality, tint of paper, kind of type, and color of ink, so that 
without the number it would be impossible to distinguish one ballot 
from another; and the names of all candidates printed upon the ballot 
shall be in type of the same size and style. A column may be provided 
on the right-hand side for questions to be voted upon at district election, 
as provided for under this act. The names of the candidates for each 
office shall be arranged in alphabetical order, and nothing on the ballot 
shall be indicative of the source of the candidacy or of the support of 
any candidate. 

(15) No candidate omitted. The name of no candidate who has 
been duly and regularly nominated, and who has not withdrawn his 
name as herein provided shall be omitted from the ballot. 

(16) Office. The offices to be filled shall be arranged in the follow- 
ing order : "For director vote for (giving number)." 

(17) Voting squares. Half-inch square shall be provided at the 
right of the name of each candidate wherein to mark the cross, 

163 



16-4508 ELECTION LAWS 

(18) Spaces below printed names. Half -inch spaces shall be left 
below the printed names of candidates for each office, equal in number 
to the number to be voted for, wherein the voter may write the name of 
any person or persons for whom he may wish to vote. 

(19) Votes necessary to elect. In case there is but one person 
to be elected to an office, the candidate receiving a majority of the 
votes cast for all the candidates for that office, shall be declared elected; 
in case there are two or more persons to be elected to an office, as that 
of director, then those candidates equal in number to the number to be 
elected, who receive the highest number of votes for such office shall be 
declared elected. 

(20) Failure to qualify. If a person elected fails to qualify, the 
office shall be filled as if there were a vacancy in such office, as herein- 
after provided. 

(21) Mode of appointment by mayor. The mode of appointment of 
director or directors by a mayor, or by a board of commissioners, shall 
be by certificate of appointment signed by said mayor or mayors, or 
issued by said board of commissioners, and transmitted to the board 
of directors of said district. 

(22) Informality not to invalidate. No informality in conducting dis- 
trict elections shall invalidate the same, if they have been conducted by 
directors to fill a vacancy, or appointed by a mayor or by this act. 

History: En. Sec. 7, Ch. 242, L. 1957; 
amd. Sec. 6, Ch. 167, L. 1965; amd. Sec. 1, 
Ch. 263, L. 1967. 

16-4508. General law to govern. The provisions of the law relating 
to the qualifications of electors, the manner of voting, the duties of 
election officers, the canvassing of returns, and all other particulars in 
respect to the management of general elections, so far as they may be 
applicable, shall govern all district elections, except as in this act other- 
wise provided; provided, however, that where a corporation owns taxable 
real property within the boundaries of the district, the president, vice- 
president or secretary of such corporation shall be entitled to cast a vote 
on behalf of the corporation ; provided also that an elector owning taxable 
real property within the district need not reside within the district in order 
to vote, and provided that the board of commissioners shall canvass the 
returns of the first election and that thereafter, except as herein pro- 
vided, the board of directors shall meet as a canvassing board and duly 
canvass the returns within four (4) days after any district election, includ- 
ing any district bond election. If the district lies in more than one county, 
the board of commissioners whose county contains the largest percentage of 
the territory of said district shall canvass the returns of the first election. 

History: En. Sec. 8, Ch. 242, L. 1957; Ch. 167, L. 1965; amd. Sec. 1, Ch. 263, L. 
amd. Sec. 1, Ch. 258, L. 1959; amd. Sec. 7, 1967. 

16-4509. Officers subject to recall. Every incumbent of an elective 
office, whether elected by popular vote for a full term, or elected by the 
board of directors to fill a vacancy, or appointed by a mayor or by said 

164 



COUNTIES 16-4520 

board of commissioners for a full term, is subject to recall by the 
voters of any district organized under the provisions of this act, in accord- 
ance with the recall provisions of sections 11-3220 to 11-3227, both in- 
clusive, applicable to officers under tlie commissioner-manager plan. 

History: En. Sec. 9, Ch. 242, L. 1957; 
amd. Sec. 1, Ch. 263, L. 1967. 

16-4513. Informality not to invalidate. No informality in any pro- 
ceeding or informality in the conduct of any election, rot substantially 
affecting adversely the legal rights of any citizen, shall be held to in- 
validate thf incorporation of any district, and any proceeding wherein the 
validity of such incorporation is denied shall be commenced within three 
(3) months from the date of the certificate of incorporation, otherwise said 
incorporation and the legal existence of said district, and all proceedings 
in respect thereto, shall be held to be valid and in every respect legal and 
incontestable. 

History: En, Sec. 13, Ch. 242, L. 1957; 
amd. Sec. 1, Ch. 263, L. 1967. 

16-4517. Bonded indebtedness. Whenever the board of directors deem 
it necessary for the district to incur a bonded indebtedness, it shall by a 
resolution so declare and state the purpose for which the proposed debt 
is to be incurred, the land within the district to be benefited thereby, the 
amount of debt to be incurred, the maximum term the bonds proposed 
to be issued shall run before maturity, which shall not exceed forty (40) 
years, and the maximum rate of interest to be paid, which shall not ex- 
ceed seven per cent (7%) per annum, and the proposition to be sub- 
mitted to the electors. 
History: En. Sec. 17, Ch. 242, L. 1957. 

16-4518. Election. The board of directors shall fix a date upon which 
an election shall be held for the purpose of authorizing said bonded in- 
debtedness to be incurred. It shall be the duty of the board of directors to 
provide for holding such special election on the day so fixed, in accord- 
ance with the general election laws of the state, so far as the same shall 
be applicable, except as herein otherwise provided. 
History: En. Sec. 18, Ch. 242, L. 1957. 

16-4519. Notice. Such board of directors shall give notice of the 
holding of such election, which notice shall contain the resolution adopted 
by the board of directors of the district, boundaries of voting precincts, 
which shall include therein only the lands to be benefited, as stated in such 
resolution, the location of polling places, and the names of the officers 
selected to conduct the election, who shall consist of one judge, one inspec- 
tor and two clerks in each precinct. 

History: En. Sec. 19, Ch. 242, L. 1957; 
amd. Sec. 1, Ch. 263, L. 1967. 

16-4520. Publication. Such notice shall be published for ten (10) 
consecutive days in a daily newspaper or in two (2) issues of a weekly 

165 



16-4521 ELECTION LAWS 

newspaper published in each county wherein such district is located, which 

newspaper or newspapers shall be designated by the board of directors. 

Every qualified elector, owning taxable real property, within such voting 

precincts, but no others, shall be entitled to vote at such election. All the 

expenses of holding such election shall be borne by the district. 

History: En. Sec. 20, Ch. 242, L. 1957; 8, Ch. 167, L. 1965; amd. Sec. 1, Ch. 263, 
amd. Sec. 2, Ch. 258, L. 1959; amd. Sec. L. 1967. 

16-4521. Canvass of returns. The returns of such election shall be 
made to and the votes canvassed by said board of directors on the first 
Monday following said election, and the results thereof ascertained and 
declared in accordance with the general election laws of the state, so 
far as they may be applicable, except as herein otherwise provided. The 
secretary of the board of directors, as soon as the result is declared, shall 
enter in the records of such board a statement of such results. No irregu- 
larities or informalities in conducting such election shall invalidate the 
same, if the election shall have otherwise been fairly conducted. In all 
respects not otherwise provided for herein, said election shall be called, 
managed and directed as is by law provided for general elections in this 
state applicable thereto, except as herein otherwise provided. 
History: En. Sec. 21, Ch. 242, L. 1957. 

16-4522. Two-thirds vote necessary. If from such returns it appears 
that more than two-thirds of the votes cast at such election were in favor 
of and assented to the incurring of such indebtedness, then the board 
of directors may, by resolution, at such time or times as it deems proper, 
provide for the form and execution of such bonds and for the issuance of 
any part thereof, and may sell or dispose of the bonds so issued at such 
times or in such manner as it may deem to be to the public interest. 
History: En. Sec. 22, Ch. 242, L. 1957. 

16-4529. Initiative. Ordinances may be passed by the electors of any 

district organized under the provisions of this act in accordance with the 

methods provided by the general laws of the state for direct legislation 

applicable to cities and towns. 

History: En, Sec. 29, Ch. 242, L. 1957; 
amd. Sec. 1, Ch. 263, L. 1967. 

16-4530. Referendum. Ordinances may be disapproved and thereby 

vetoed by the electors of any such district by proceeding in accordance 

with the methods provided by the general laws of the state for protesting 

against legislation by cities and towns. 

History: En. Sec. 30, Ch. 242, L. 1957; 
amd. Sec. 1, Ch. 263, L. 1967. 

16-4531. Adding to and consolidation of district. Any portion of any 
county or any municipality, or both, may be added to any district organized 
under the provisions of this act, at any time, upon petition presented in the 
manner therein provided for the organization of such district, which petition 
may be granted by ordinance of the board of directors of such district. Such 

166 



COUNTIES 16-4531 

ordinance shall be submitted for adoption or rejection to the vote of the 
electors in such district and in the proposed addition, at a general or spe- 
cial election held as herein provided, within seventy (70) days after the 
adoption of such ordinance. If such ordinance is approved, the president 
and secretary of the board of directors shall certify that fact to the secre- 
tary of state and to the county recorder of the county in which such dis- 
trict is located. Upon the receipt of such last mentioned certificate the 
secretary of state shall, within ten (10) days, issue his certificate, reciting 
the passage of said ordinance and the addition of said territory to said 
district. A copy of such certificate shall be transmitted to and filed with the 
county clerk of the county in which such district is situated. From and 
after the date of such certificate the territory named therein shall be 
deemed added to and form a part of said district, with all the rights, 
privileges and powers set forth in this act and necessarily incident thereto. 
Two or more districts organized under the provisions of this act may 
consolidate, at any time, upon petitions submitted to the board of directors 
of each such district. Such petitions shall be in the form required for 
petitions for the organization of districts. Each such petition shall be 
signed by not less than ten per cent (10%) of the registered voters of the 
territory included within said district. Said petitions may be granted by 
ordinance of the board of directors of each of said districts. Such ordi- 
nances shall be submitted for adoption or rejection to the vote of the 
electors in such districts at general or special elections held as herein pro- 
vided within seventy (70) days after the adoption of such ordinances. If 
such ordinances are approved, the president and secretary of the boards of 
directors of each of said districts shall certify that fact to the secretary of 
state and to the county clerk of the county or counties in which such dis- 
tricts are located. Upon the receipt of said certificate the secretary of state 
shall, within ten (10) days, issue his certificate, reciting the passage of said 
ordinances and the consolidation of said districts. A copy of such certificate 
shall be transmitted to and filed with the county clerk of each county in 
which such consolidated district is situated. From and after the date of 
such certificate, the said districts shall be deemed to be consolidated and 
shall consist of one district with all the rights, privileges and powers set 
forth in this act and necessarily incident thereto. The number and manner 
of selection and election of directors of the consolidated district shall be the 
same as the number and manner of selection and election of directors of 
newly organized districts. 

History: En. Sec. 31, Ch. 242, L. 1957; 
amd. Sec. 1, Ch. 263, L. 1967. 

TITLE 19 

DEFINITIONS AND GENERAL PROVISIONS 



CHAPTER 1 



DEFINITIONS AND CONSTRUCTION OP TEEMS— HOLIDAYS— OTHER 

GENERAL PROVISIONS 

Section 19-107. Legal holidays and bnsineu days defined. 

167 



19-107 ELECTION LAWS 

19-107. (10) Legal holidays and business days defined. The follow- 
ing are legal holidays in the state of Montana, to wit: Every Sunday; 
the first day of January (New Year's Day) ; the twelfth day of February 
(Lincoln's Birthday) ; the twenty-second day of February (Washington's 
Birthday) ; the thirtieth day of May (Memorial Day) ; the fourth day of 
July (Independence Day) ; the first Monday of September (Labor Day) ; 
the twelfth day of October (Columbus Day) ; the eleventh day of Novem- 
ber (Veterans' Day) ; the twenty-fifth day of December (Christmas Day) ; 
every day on which a general election is held throughout the state and 
every day appointed by the president of the United States or by the gov- 
ernor of this state for a public fast, thanksgiving or holiday. If any of 
the holidays herein enumerated (except Sunday) fall upon a Sunday, the 
Monday following is a holiday. All other days than those herein mentioned 
are to be deemed business days for all purposes, except as herein pro- 
vided. 

Whenever any bank in the state of Montana elects to remain closed 
and refrains from the transaction of business on Saturday, pursuant to 
authority for permissive closing on Saturdays by virtue of the laws of the 
state, legal holidays for such bank during the year of such election are 
hereby limited to the following holidays, and no other holidays, viz.: 
Every Sunday; the first day of January (New Year's Day) ; the thirtieth 
day of May (Memorial Day) ; the fourth day of July (Independence Day) ; 
the first Monday of September (Labor Day) ; the twenty-fifth day of 
December (Christmas Day) ; and every day appointed by the president 
of the United States of America or by the governor of the state of Mon- 
tana for a public fast, thanksgiving or holiday; provided, however, that 
any bank practicing Saturday closing in compliance with law may remain 
closed and refrain from the transaction of business on Saturdays, not- 
withstanding that a Saturday may coincide with a legal holiday other 
than one of the holidays designated above for banks practicing Saturday 
closing in compliance with law, and provided further that it shall be op- 
tional for any bank, whether practicing Saturday closing or not, to observe 
as a holiday and to be closed on any day upon which a general election 
is held throughout the state of Montana and on the eleventh day of 
November (Veterans' Day) and on any local holiday which historically 
or traditionally or by proclamation of a local executive ofScial or gov- 
erninor body is established as a day upon which businesses are generally 
closed in the community in which the bank is located. 
History: Ap. p. Sec. 10, Pol. C. 1895; 1921; amd. Sec. 1, Ch. 209, L. 1955; amd. 

!r,t^"„,^^^- ^°' ^^^- ^- '^^^'^' ^^^- Sec. 1, Sec. 1, Ch. 6, L. 1965. Cal. Pol. C. Sees. 
Ch. 21, 1921; re-en. Sec. 10, R. C. M. lo-ll 



168 



I 



TITLE 23 

ELECTIONS 

Chapter 1. Time of holding' elections — proclamations, 23-101 to 23-106. 

2. Publication of questions submitted to popular vote, 23-201, 23-202. 

3. Qualifications and privileges of electors, 23-301 to 23-311. 

4. Election precincts, 23-401 to 23-407. 

5. Registration of electors, 23-501 to 23-534. 

6. Judges and clerks of elections, 23-601 to 23-612. 

7. Election supplies, 23-701 to 23-713. 

8. Nomination of candidates for special elections by convention or primary 

meetings or by electors, 23-801 to 23-820. 

9. Party nominations by direct vote — the direct primary, 23-901 to 23-936. 

10. Political parties, 23-1001 to 23-1009, 

11. Ballots, preparation and form, 23-1101 to 23-1117. 

12. Conducting elections — the polls — voting and ballots, 23-1201 to 23-1228. 

13. Voting by absent electors, 23-1301 to 23-1321. 

14. Voting by absent electors in United States service, 23-1401 to 23-1406. 

15. Registration of electors absent from county of their residence, 23-1501 to 

23-1503. 

16. Voting machines — conduct of election when used, 23-1601 to 23-1618. 

17. Election returns, 23-1701 to 23-1715. 

18. Canvass of election returns — results and certificates, 23-1801 to 23-1819. 

19. failure of elections — proceedings on tie vote, 23-1901 to 23-1904. 

20. Nonpartisan nomination and election of judges of supreme court and dis- 

trict courts, 23-2001 to 23-2014. 

21. Presidential electors, how chosen — duties, 23-2101 to 23-2111. 

22. Members of Congress — elections and vacancies, 23-2201 to 23-2206. 

23. Recount of ballots— results, 23-2301 to 23-2323. 

24. Conventions to ratify proposed amendments to constitution of the United 

States, 23-2401 to 23-2411. 

25. Electronic voting systems, 23-2501 to 23-2507. 



CHAPTER 1 

TIME OF HOLDING ELECTIONS— PROCLAMATIONS 

Section 23-101. General elections, when to be held. 

23-102. Special elections — purpose and calling. 

23-103. Election proclamations by the governor. 

23-104. Governor's proclamation, contents. 

23-105. Publication and posting by county commissioners. 

23-106. Election proclamation by county commissioners. 

23-101. (531) General elections, when to be held. There must be held 
throughout the state, on the first Tuesday after the first Monday of No- 
vember, in the year eighteen hundred and ninety-four, and in every second 
year thereafter, an election to be known as the general election. 

History: En. Sec. 1150, Pol. C. 1895; Election law violations, sec, 94-1401 et 

re-en. Sec. 450, Rev. C, 1907; re-en. Sec. seq. 

531, R, C. M. 1921. Cal. Pol. C. Sec. 1041. Initiative and referendum, sec. 37-101 

et seq. 

Cross-References 

Cities and towns, elections of officers. Definition 

sees. 11-701 to 11-734. A general election is one held for the 

Corrupt Practices Act, sees. 94-1427 to election of officers throughout the state. 
94-1474. 

169 



23-102 



ELECTIONS 



State ex rel. Rowe v. Kehoe, 49 M 582, 
591, 144 P 162. 

References 

State ex rel. Patterson v. Lentz, 50 M 
322, 338, 146 P 932; Mulholland v. Ayers, 
109 M 558, 562, 99 P 2d 234; Maddox v. 
Board of State Canvassers, 116 M 217, 223, 



149 P 2d 112; LaBorde v. McGrath, 116 M 
283, 287, 149 P 2d 913; Pioneer Motors, 
Inc. V. State Highway Commission, 118 M 
333, 165 P 2d 796, 800. 

Collaterai References 

Elections®=338. 

29 C.J.S. Elections § 77. 



23-102. (532) Special elections — purpose and calling. Special elections 
are such as are held to supply vacancies in any office, and are held at such 
times as may be designated by the proper officer or authority. The board 
of county commissioners shall be authorized to call a special election at any 
time for the purpose of submitting to the qualified electors of the county a 
proposition to raise money for any public improvement desired to be made 

in the county. 

improvement. State ex rel. Eowe v. Kehoe, 
49 M 582, 591, 144 P 162. 



History: En. Sec. 1151, Pol. C. 1895; 
amd. Sec. 451, Rev. C. 1907; re-en. Sec. 
532, R. C. M. 1921. Cal. Pol. C. Sec. 1043. 



Cross-References 

Airport bonds, sec. 1-804. 

Beer, local option elections, sec. 4-350 
et seq. 

Cities and towns, bond elections, sees. 
11-2301 to 11-2330. 

County bonds and warrants, sees. 16- 
2001 to 16-2050. 

Local option elections, state liquor con- 
trol act, sec. 4-142 et seq. 

Retail liquor licenses, local option elec- 
tion, sees. 4-431 to 4-437. 

School bonds, sees. 75-3901 to 75-3944, 
75-4112, 75-4113, 75-4115 to 75-4118, 75- 
4601 to 75-4606. 

School taxation, sees. 75-3801 to 75-3805. 

Definition 

A special election is one held to supply 
a vacancy in a public office, or one in 
which is submitted to the electors a 
proposition to raise money for any public 



"Vacancy" 

The word vacancy as applied to a pub- 
lic office has no technical meaning, and it 
is not to be taken in a strict technical 
sense in every case. It may be said that an 
office is vacant when it is empty and with- 
out an incumbent who has a right to 
exercise its functions and take its fees or 
emoluments even though the vacancy is 
not a corporal one. "An office without an 
incumbent is vacant." LaBorde v. Mc- 
Grath, 116 M 283, 292, 149 P 2d 913. 

References 

State ex rel. Patterson v. Lentz, 50 M 
322, 338, 146 P 932; Mulholland v. Ayers, 
109 M 558, 562, 99 P 2d 234; Bottomly v. 
Ford, 117 M 160, 163, 157 P 2d 108. 

Collateral References 

Counties<S=>151; Elections<S=>32. 
20 C.J.S. Counties §226; 29 C.J.S. Elec- 
tions § 66. 



23-103. (533) Election proclamations by the g-ovemor. At least sixty 
days before a general election, and whenever he orders a special election to 
fill a vacancy in the office of state senator or member of the house of repre- 
sentatives, at least ten days before such special election, the governor must 
issue an election proclamation, under his hand and the great seal of the 
state, and transmit copies thereof to the boards of commissioners of the 
counties in which such elections are to be held. 

History: En. Sec. 1160, Pol. C. 1895; 
re-en. Sec. 452, Rev. C, 1907; re-en. Sec. 
533, R. C. M. 1921. Cal. Pol. C. Sec. 1053. 



Application of Section 

As this section does not impose upon 
the governor the duty to call an election 
to fill vacancies other than those in the 
offices of state senator and member of the 
house of representatives, and he is not 



presumed to know what, if any, vacancy 
exists in any local county office, apparently 
proclamation by the governor is necessary 
only when an election is to be held to fill 
offices for the next regular term, except 
to fill vacancies in the two offices of state 
senator and member of the house of rep- 
resentatives. State ex rel. Rowe v. Kehoe, 
49 M 582, 591, 144 P 162. 



170 



TIME OF HOLDING ELECTIONS — PROCLAMATIONS 



23-105 



Calling of Special Election by Board of 
County Commissioners 

While the provisions of the codes relat- 
ing to the manner of calling special elec- 
tions arc crude and not in the most appro- 
priate terms to confer the necessary pow- 
ers upon boards of county commissioners, 
they are nevertheless sufficient for this 
purpose. State ex rel. Patterson v. Lentz, 
50 M 322, 343, 146 P 932. 

Notice of Qeneral Election 

The governor issued his proclamation 
giving notice of a general election to be 
held November 8, 1904, under this sec- 
tion and section 23-104, and omitted 
therefrom the mention of an election of 
three judges for the second judicial dis- 
trict, and called for the election of tvi'o 
judges. Upon mandamus proceedings 
against the governor the relator claimed 
that three judges should have been men- 
tioned in the proclamation, and that he 
was elected and entitled to receive from 
the governor a commission as judge. As 
it failed to appear that the electors voted 
for more than two candidates for judge- 
ships, the petition was dismissed. State 
ex rel. Breen v. Toole, 32 M 4, 8, 79 P 
403. 

A statement in the proclamation of the 
governor giving notice of a general elec- 



tion, that among other officers there was 
to be elected "also a district judge, in any 
judicial district where a vacancy may ex- 
ist," was not such a notice of the necessity 
of filling a vacancy by election as required 
by this section. State ex rel. Patterson v. 
Lentz, 50 M 322, 343, 146 P 932. 

The governor's proclamation should 
state the offices to be filled, especially 
where a state office, such as a judgeship, 
held by his appointee, is to be filled; but, 
if the people have actual notice that a 
judge is to be elected and indicate their 
choice, no insufficiency of notice, in the 
governor's proclamation, of a vacancy in 
that office, in any particular district, or 
other informality in the election, will 
suffice to defeat their will, as expressed 
by their votes. State ex rel. Patterson v. 
Lentz, 50 M 322, 343, 146 P 932. 

References 

State ex rel. Wulf v. McGrath, 111 M 
96, 100, 106 P 2d 183; State ex rel. Grant 
v. Eaton, 114 M 199, 209, 133 P 2d 588; 
Herweg v. Thirty Ninth Legislative As- 
sembly of State of Montana, 246 F Supp 
454. 

Collateral References 

Elections€=>40. 

29 C.J.S. Elections § 72. 



23-104. (534) Governor's proclamation, contents. Such proclamation 
must contain : 

1. A statement of the time of election, and the offices to be filled. 

2. An offer of rewards in the following form : "And I do hereby offer 
a reward of one hundred dollars for the arrest and conviction of any per- 
son violating any of the provisions of sections 94-1401 to 94-1426. Such re- 
wards to be paid until the total amount hereafter expended for the purpose 
reaches the sum of five thousand dollars." 



History: En, Sec. 1161, Pol. C, 1895; 
re-en. Sec. 453, Rev. C. 1907; re-en. Sec. 
534, R. C. M. 1921. Cal. PoL C. Sec. 1054. 

References 

State ex rel. Breen v. Toole, 32 M 4, 8, 
79 P 403; State ex rel. Eowe v. Kehoe, 49 
M 582, 591, 144 P 162; State ex rel. Patter- 
son v. Lentz, 50 M 322, 343, 146 P 932; 



Nordquist v. Ford, 112 M 278, 283, 114 P 
2d 1071; Herweg v. Thirty Ninth Legisla- 
tive Assemblv of State of Montana, 246 
F Supp 454. 

Collateral References 

Elections®='41. 

29 CJ.S. Election § 73. 



23-105. (535) Publication and posting by county commissioners. The 

board of county commissioners, upon the receipt of such proclamation, 
may, in the case of general or special elections, cause a copy of the same to 
be published in some newspaper printed in the county, if any, and to be 
posted at each place of election at least ten days before the election ; and in 
case of special elections to fill a vacancy in the office of state senator or 
member of the house of representatives, the board of county commissioners, 
upon receipt of such proclamation, may in their discretion, cause a copy 



171 



23-106 



ELECTIONS 



of the same to be published or posted as hereinbefore provided, except 

that such publication or posting need not be made for a longer period 

than five days before such election. 

tice amply met by distribution of copies of 
the law. Nordquist v. Ford, 112 M 278, 
283, 114 P 2d 1071. 



History: En. Sec. 1162, Pol. 0. 1895; 
re-en. Sec. 454, Rev. C. 1907; re-en. Sec. 
535, K. C. M. 1921. Cal. Pol. C. Sec. 1055. 

Inapplicable to Measures Put to People 
by Legislature 

Contention that because of failure to 
have the governor's proclamation that Ch. 
168, Laws 1939 (omitted), would be sub- 
mitted to the electors at the general elec- 
tion of 1940 published in newspapers as 
required by this section and section 37-104, 
the act is invalid, was not meritorious, 
these sections applying only to measures 
put before the people by their own peti- 
tion, and not by the legislature, and no- 



Beferences 

State ex rel. Rowe v. Kehoe, 49 M 582, 
591, 144 P 162; State ex rel. Cryderman v. 
Wienrich, 54 M 390, 170 P 942; State ex 
rel. Freeze v. Taylor, 90 M 439, 444, 4 P 
2d 479; State ex rel. Wulf v. McGrath, 111 
M 96, 100, 106 P 2d 183. 

Collateral References 

Elections€=342. 

29 C.J.S. Elections § 74. 



23-106. (536) Election proclamation by county commissioners. When- 
ever a special election is ordered by the board of county commissioners, 
they must issue an election proclamation, containing the statement provided 
for in subdivision one of section 23-104, and must publish and post it in the 
same manner as proclamations issued by the governor. 

History: En. Sec. 1163, Pol. C. 1895; Special Election To Fill Vacancies 

re-en. Sec. 455, Rev. C. 1907; re-en. Sec. jj^ case of vacancies in county offices, 

536, R. C. M. 1921. Cal. Pol. C. Sec. 1056. boards of county commissioners have the 



Application of Section 

This section has no reference to elec- 
tions held for raising money for public 
improvements. The power conferred in 
this behalf is exercised under special pro- 
visions on the subject, found in that part 
of the codes relating to county govern- 
ment. State ex rel. Rowe v. Kehoe, 49 M 
582, 592, 144 P 162. 

Notice of Election 

The notice of election does not take the 
place of the election proclamation. Evers 
V. Hudson, 36 M 135, 154, 92 P 462. 



power, and it is their duty to call and pro- 
vide for the holding of special elections to 
fill them. State ex rel. Eowe v. Kehoe, 
49 M 582, 592, 144 P 162. 

References 

State ex rel. Patterson v. Lentz, 50 M 
322, 343, 146 P 932; State ex rel. Cryder- 
man V. Wienrich, 54 M 390, 399,' 170 
P 942. 

Collateral References 

Elections<3=»40-42. 

29 C.J.S. Elections §§ 72-74. 



CHAPTER 2 

PUBLICATION OF QUESTIONS SUBMITTED TO POPULAR VOTE 



Section 23-201. 
23-202. 



Publication and printing of amendments to constitution. 
Advertisement of questions to be submitted. 



23-201. (537.1) Publication and printing- of amendments to constitu- 
tion. Whenever a proposed constitutional amendment or amendments are 
submitted to the people of the state for popular vote, the secretary of state 
shall cause the said proposed amendment or amendments to be published in 
full once a week in one newspaper in each county of the state, if such there 
be, for three (3) months previous to the next general election for members 
of the legislative assembly. Such publication shall not be had in more than 
one paper in any one county in the state. 



172 



QUALIFICATIONS AND PRIVILEGES OF ELECTORS 23-301 

The secretary of state shall also cause to be printed a pamphlet contain- 
ing a true and exact copy of the proposed amendment or amendments, 
and a true and exact copy of the existing constitutional provisions if the 
proposed constitutional amendment or amendments is or are a revision of 
an existing amendment or amendments, and the amendment or amendments 
in the form in which it or they will be printed on the official ballot. The 
said proposed amendment or amendments, printed as herein provided, shall 
then be distributed as provided in section 37-107. The cost of publication 
of said amendment or amendments, and the cost of printing said pamphlet 
or pamphlets shall be a proper charge against the state at the rate, as pro- 
vided for in the statutes for state printing. 

History: En. Sec. 1, Ch. 62, L. 1927; constitutional amendments, indicated its 

amd. Sec. 1, Ch. 104, L. 1945. intent to disperse with publication prior 

to general election of legislative acts re- 
Cross-Reference ferred to the people by the legislature, 
Explanation of initiative, referendum or the governor's proclamation that such 
and constitutional measures to be prepared act would be voted upon at such election, 
by attorney general, sec. 37-104.1. Nordquist v. Ford, 112 M 278, 283, 114 

P 2d 1071. 
Operation and Effect 

Legislature, by repealing section 537, Collateral Kef erences 

B. C. M. 1935 and leaving in effect this Constitutional Law®=59 (1). 

section requiring publication of proposed 16 C.J.S. Constitutional Law § 10. 

23-202. (538) Advertisement of questions to be submitted. Questions 
to be submitted to the people of the county or municipality must be ad- 
vertised by publication in at least one newspaper within the county or 
municipality, once a week for two successive weeks, and one of such publi- 
cations in such newspaper must be upon the last day upon which such news- 
paper is issued before the election. 

History: En. Sec. 1, Ch. 130, L. 1919; CoIlateralBef erences 

re-en. Sec. 538, B. 0. M. 1921. Election8<®=»40 et seq. 

References 29 CJ.S. Elections § 71 et seq. 

State ex rel. Wulf v. McGrath, 111 M 
96, 100, 106 P 2d 183. 

CHAPTER 3 
QUALrFICATIONS AND PRIVILEGES OF ELECTORS 

Section 23-301. Elections to be by ballot. 

23-302. Qualifications of voter. 

23-303. Qualifications of electors at elections on incurring state indebtedness. 

23-304. Lists and precinct registers. 

23-305. Duties of secretary of state and county clerks. 

23-306. Repealing clause — exception. 

23-307. Qualification of electors on elections concerning state tax levy or debt. 

23-308. Privilege from arrest. 

23-309. Exempt from military duty on election day. 

23-310. Idiot or insane. 

23-311. Who are taxpayers. 

23-301. (539) Elections to be by ballot. All elections by the people 
shall be by ballot. 

History: En. Sec. 1180, Pol. 0. 1895; Collateral References 

re-en. Sec. 461, Rev. C. 1907; re-en. Sec. Elections<©='161. 

539, R. C. M. 1921. 29 C.J.S. Elections § 149. 

173 



23-302 



ELECTIONS 



23-302. (540) Qualifications of voter. Every person of the age of 
twenty-one years or over, possessing the following qualifications, if his name 
is registered as required by law, is entitled to vote at all general and spe- 
cial elections and for all officers that now are, or hereafter may be, elective 
by the people, and upon all questions which may be submitted to the vote of 
the people: First, he must be a citizen of the United States; second, he 
must have resided in the state one year and in the county thirty days 
immediately preceding the election at which he offers to vote. No person 
convicted of felony has the right to vote unless he has been pardoned. 
Nothing in this section contained shall be construed to deprive any person 
of the right to vote who had such right at the time of the adoption of the 
state constitution. After the expiration of five years from the time of the 
adoption of the state constitution, no persons except citizens of the United 
States have a right to vote. 



History: En. Sec. 1181, Pol. C. 1895; 
re-en. Sec. 462, Kev. C. 1907; re-en. Sec. 
540, R. C. M. 1921. Cal. Pol. C. Sec. 1083. 

NOTE. — The word "male" appearing 
in the first line of this section as enacted 
in 1895 is omitted from this code to con- 
form to the constitutional amendment. 

Voting Is an Affirmative Act, Vote for 
Deceased Candidate Not Counted as Op- 
posed to Write-In 

The casting of a ballot at an election 
of public officers is an affirmative, not a 
negative act — an act done with intention 
of voting for someone; hence if it is the 
purpose of voters to defeat a certain can- 
didate, that purpose can be accomplished 
only by voting for some person in opposi- 
tion to him, and not by voting for a per- 
son who died some weeks before election 
with the expectation that the vote cast for 
him would be counted as opposed to the 
person sought to be defeated; one who 
has died is no longer a person for whom, 
under section 2, article IX of the con- 
stitution, a voter may cast his ballot. 
State ex rel. Wolff v. Guerkink, 111 M 
417, 426, 109 P 2d 1094, 133 ALE 304. 

References 

State ex rel. Kennedy v. Martin, 24 M 



403, 408, 62 P 588; Sommers v. Gould, 
53 M 538, 544, 165 P 599; State ex rel. 
Henderson v. Dawson County, 87 M 122, 
142, 286 P 125; State ex rel. Durland v. 
Board of County Comnirs. of Yellowstone 
County, 104 M 21, 27, 64 P 2d 1060; State 
ex rel. Van Horn v, Lyon, 119 M 212, 173 
P 2d 891, 892; In re Ingersol's Estate, 128 
M 230, 272 P 2d 1003, 1005. 

Collateral References 

Elections<&='59 et seq. 

29 C.J.S. Elections § 16 et seq. 

25 Am. Jur. 2d 751, Elections, § 58. 

Eeraoval by executive clemency of dis- 
qualification to vote resulting from con- 
viction of crime as applicable in case of 
conviction in federal court or court of an- 
other state. 135 ALE 1493. 

Validity of governmental requirement 
of oath of allegiance or loyalty as applied 
to voters. 18 ALE 2d 329. 

State voting rights of residents of fed- 
eral military establishment. 34 ALE 2d 
1193. 

What constitutes "conviction" within 
constitutional or statutory provision dis- 
enfranchising one convicted of crime. 36 
ALE 2d 1238. 



23-303. Qualifications of electors at elections on incurring state in- 
debtedness. At all elections at which the question submitted is the incur- 
ring of a state debt, the issuance of bonds or debentures by the state, other 
than refunding bonds or debentures, or the levying of a state tax for any 
purpose, only registered electors residing within the state and who are tax- 
payers upon property therein and whose names appear upon the last com- 
pleted assessment roll of some county of the state for state, county and 
school district taxes, shall be qualified to vote on such question. Whenever 
any such question is to be submitted at an election, other than a general 
biennial state election, the county clerk of each county must cause to be 

174 



QUALIFICATIONS AND PRIVILEGES OF ELECTORS 23-304 

published one time in the official newspaper of the county a notice, sijjnod 
by hira, stating that registration will close at noon on the thirtieth day 
prior to the date for the holding of the election at which the question is to 
be submitted, unless the act providing for the submission of the question 
shall fix a different time for the giving of such notice and at that time 
registration shall be closed. Such notice shall be published at least ten (10) 
days prior to the date when registration will be closed, unless the act pro- 
viding for the submission of the question shall fix a different time for such 
closing of registration. Provided, that if the question is to be submitted 
at a general biennial state election then such notice of the closing of regis- 
tration and the closing of registration shall be controlled and governed by 
the laws applying to the giving of such notice and closing of registration 
for such general biennial election. 

History: En. Sec. 1, Ch. 28, L. 1945. of Examiners, 125 M 419, 239 P 2d 283, 

290. 
Objection Must Be Baised before Elec- 
tion References 

The objection that a measure creates Pioneer Motors, Inc. v. State Highway 

a state debt, levy, or liability and that Commission, 118 M 333, 165 P 2d 796, 800. 
therefore it should have been placed upon 

a separate ballot as required by this sec- Collateral References 

tion, is waived if not raised before the Elections<S=*79-83. 

election. State ex rel. Graham v. Board 29 C.J.S. Elections §§ 28, 29. 

23-304. Lists and precinct regfisters. After the closing of registrations 
the county clerk of each county shall promptly prepare lists of registered 
electors of all voting precincts in his county. He shall also prepare the 
precinct register for each precinct in the manner provided by section 23-515, 
and deliver the same to the judges of election prior to the opening of the 
polls. In preparing precinct registers it shall not be necessary for the 
county clerk to make separate precinct registers containing only the 
names of electors who are qualified to vote on the question of the incurring 
of a state debt, the issuance of bonds or debentures by the state or the 
levying of a state tax. In lieu of preparing such a list of electors qualified 
to vote on such question, the county shall stamp the word "TAX- 
PAYER" on the precinct register opposite the name of each qualified elec- 
tor who is a taxpayer and entitled to vote upon any of the questions here- 
inbefore indicated. No other showing shall be required to establish that 
such elector is in fact a taxpayer and entitled to vote as such. 

All of the laws of this state applying to the holding of general biennial 
state elections, in so far as the same are applicable thereto and not in con- 
flict with any of the provisions of this act, shall apply to, and govern and 
control such election and the canvassing and return of the votes cast on 
such question at such election ; and abstracts made by the several county 
clerks shall be returned to the secretary of state in the manner provided 
by sections 23-1812, 23-1813, for the abstract of votes for state officers. 

History: En. Sec. 2, Ch. 28, L. 1945; Collateral References 

amd. Sec. 1, Ch. 92, L. 1949; amd. Sec. 1, Elections<S=>113. 

Ch. 64, L. 1959. 29 C.J.S. Elections § 49. 

175 



23-305 ELECTIONS 

23-305. Duties of secretary of state and county clerks. When any such 
law is to be submitted at a general biennial election, all of the provisions 
of section 37-107, prescribing the duties of the secretary of state and county 
clerks, shall apply to and govern and control the printing and distribu- 
tion of copies of such law. 
History: En. Sec. 3, Ch. 28, L. 1945. 

23-306. Repealing clause — exception. All acts and parts of acts in con- 
flict herewith are hereby repealed ; provided, however, that nothing in this 
act shall be deemed to repeal section 23-307. 
History: En. Sec. 4, Ch. 28, L. 1945. 

23-307. Qualification of electors on elections concerning state tax levy 
or debt. Whenever any question is submitted at any election concerning 
the creation of any tax levy for the state or the creation of any debt or 
liability on the part of the state, all qualified electors who are registered 
and whose names appear upon the last completed assessment roll of any 
county preceding such election, shall be entitled to vote thereon. If any 
elector shall be registered in any county and the name of such elector does 
not appear on such last completed assessment roll for such county, but 
does appear on the last completed assessment roll for any other county in 
the state, such elector shall be entitled to vote on any such question in the 
precinct in which he is registered, if he shall present to the county clerk and 
recorder before the close of registration of the election in which he wishes 
to vote, either a receipt from the treasurer of the county in which his prop- 
erty is assessed on such assessment roll showing the payment of the taxes 
computed against such assessment, or a certificate from the treasurer of 
such county certifying that such elector is assessed with property on such 
assessment roll but tliat the taxes had not been paid at the time of the 
issuance of such certificate. Every such certificate issued by a county 
treasurer shall be dated, numbered, give the name of the elector, a brief de- 
scription of the property assessed to him, with the amount of the taxes 
thereon, and must be signed by such county treasurer, and such treasurer 
must keep a duplicate thereof on file in his office. Whenever any such tax 
receipt or treasurer's certificate is presented by a registered elector to the 
county clerk and recorder he shall enter his name in the pollbook of 
electors entitled to vote on such question, and there shall be entered there- 
in the date and number of the tax receipt or certificate, the county in which 
issued and a description of the property assessed to the elector and amount 
of taxes against the same, as contained in such receipt or certificate, and 
such elector shall thereupon be given the proper ballot and shall vote the 
same in exactly the manner as though his name appeared on such assess- 
ment roll for such county. 
History: En. Sec. 1, Ch. 44, L. 1941. 

23-308. (541) Privilege from arrest. Electors must in all cases, except 
treason, felony, or breach of the peace, be privileged from arrest during 
their attendance at elections, and in going to and returning therefrom. 

176 



ELECTION PRECINCTS 23-401 

History: En. Sec. 1183, Pol. C. 1895; Collateral Keferences 

re-en. Sec. 464, Rev. O. 1907; re-en. Sec. Election8<&=>233. 

541, B. C. M. 1921. CaL Pol. C. Sec. 1069. 09 (j.J.S. Elections § 215. 

Cross-Reference 

Persons exempt from arrest, sec. 95-616. 

23-309. (542) Exempt from military duty on election day. No elector 
is required to perform military duty on the days of election, except in times 
of war or public danger. 

History: En. Sec. 1184, Pol. C, 1895; 
re-en. Sec. 465, Rev. C. 1907; re-en. Sec. 
642, R. C. M. 1921. Cal. Pol. C. Sec. 1070. 

23-310. (543) Idiot or insane. No idiot or insane person is entitled to 
vote at any election in this state. 

History: En. Sec. 1185, Pol. C. 1895; Collateral References 

re-en. Sec. 466, Rev. C. 1907; re-en. Sec. Elections<S=>59. 

543, R. 0. M. 1921. Cal. Pol. C. Sec. 1084. 29 C.J.S. Elections § 16. 

23-311, (544) Who are taxpayers. The payment of a tax upon prop- 
erty by any person assessed therefor on a county or city assessment roll 
next preceding the election at which a question is to be submitted to the 
vote of the taxpayers of the state, or to the vote of the taxpayers of such 
county or city, or any subdivision thereof, constitutes such person a tax- 
payer at such election. 

History: En. Sec. 1188, Pol. C. 1895; i^g the creation or increasing of indebted- 

re-en. Sec. 469, Rev. C. 1907; re-en. Sec. ngss incident to a city water plant, it 

544, R. C. M. 1921. also supersedes this section, and a city no 
NOTE. — Since the constitutional amend- longer may require payment of taxes as a 

ment granting equal rights of suffrage condition to the right of an elector on 

to women, section 468 of the Revised Codes proposals to create or increase city in- 

of Montana, 1907, has been omitted from debtedness. Weber v. City of Helena, 89 

this codification and the last line of sec- M 109, 116, 297 P 455. 

tion 23-311 as enacted has also been omit- 

Iq^^ References 

City of Billings v. Nore, — M — , 417 
Voting on City Indebtedness p 2d 458 464. 

Since Chapter 47, Laws of 1929, im- 
pliedly repeals section 5278, Revised Codes, Collateral References 
1921 (since repealed), providing that only Elections®=>83. 
taxpayers as defined by this section shall 29 C.J.S. Elections § 29. 
be entitled to vote on questions concern- 

CHAPTER 4 

ELECTION PRECINCTS 

Section 23-401. Establishment of election precincts. 

23-402. Change in boundaries of precinct. 

23-403, City council to certify ward boundaries. 

23-404. County surveyor to make map of precincts. 

23-405. City council to prepare map of wards. 

23-406. Board to designate place in precinct for holding elections. 

23-407. Proceedings where place not designated, etc. 

23-401. (545) Establishment of election precincts. The territorial unit 
for the conduct of elections shall be the election precinct. The board of 
county commissioners of each county shall establish a convenient number of 

177 



23-402 ELECTIONS 

election precincts therein having reference to equalizing the number of 
electors in the several precincts as nearly as possible. Precinct boundaries 
shall conform to the wards of incorporated cities of the first, second and 
third class and to the boundaries of school districts of the first class only, 
provided that any ward or school district may be divided into two or more 
precincts and any precinct may be divided into two or more polling places. 
In towns, or municipal corporations other than the cities of the first, sec- 
ond and third class, election precincts may, however, include two or more 
wards, or may comprise the territory included by one or more wards, to- 
gether with contiguous territory lying outside the said incorporated towns. 

History: En. Sec. 2, Ch. 113, L. 1911; Collateral References 
amd. Sec. 2, Ch. 74, L, 1913; amd. Sec. Election8<S=»46 48 
2, Ch. 122, L. 1915; re-en. Sec. 545, R. C. oo n t « ^ +'• ce ^^ s^ 
M. 1921; ^d. Sec. 1, Ch. 25. L. 1929. Cal. ^9 C.J.S. Elections §§ 53, 54. 
Pol. C. Sees. 1127-1132. 

References 

Atkinson v. Roosevelt County, 71 M 
165, 181, 227 P 811. 

23-402. (546) Change in boundaries of precinct. The board of county 
commissioners may change the boundaries of precincts and create new or 
consolidated established precincts, but no precincts shall be changed or 
created between the first day of January and the first day of December in 
any year during which a general election is to be held within the state of 
Montana. All changes, alterations, or modifications in precinct boundaries 
must be certified to the county clerk within three days after the order 
making same shall have been made. All election precincts shall be desig- 
nated by numbers but may also be designated by distinctive names in ad- 
dition to such numbers. 

History: En. Sec. 3, Ch. 113, L. 1911; Collateral References 
amd. Sec. 3, Ch. 74, L. 1913; amd. Sec. 3, Election8<S=»48 
Ch. 122, L. 1916; re-en. Sec. 546, R. C. M. 29 C.J.S. Elections S 54. 
1921. '^ 

References 

Atkinson v. Roosevelt County, 71 M 
165, 181, 227 P 811. 

23-403. (547) City council to certify ward boundaries. The city coun- 
cil of all incorporated cities and towns within the state of Montana shall 
certify to the county clerk and ex officio registrar of the county within 
which such city or town is situated, a description of the boundaries of the 
several wards within such city or town, and in like manner shall certify any 
changes or alterations in such boundaries that may from time to time be 
made, within ten days after the same are made. 

History: En. Sec. 4, Ch. 113, Ii. 1911; References 

amd. Sec. 4, Ch. 74, L. 1913; amd. Sec. 4, Weber v. City of Helena, 89 M 109, 123, 

Ch. 122, L. 1915; re-en. Sec. 547, R. C. M- 097 p 455 
1921. 

23-404. (548) County surveyor to make map of precincts. The county 
surveyor of each county must, within ten days after the board of county 
commissioners shall have established or changed the boundaries of any 

178 



ELECTION PRECINCTS 23-407 

election precincts within such county, deliver to the county clerk of the 
county a map correctly showing the boundaries of all precincts and school 
districts within the county as then existing. 

History: En. Sec. 5, Ch. 113, L. 1911; References 

amd. Sec. 5, Ch. 74, L. 1913; amd. Sec. 5, Atkinson v. Roosevelt County, 71 M 

Ch. 122, L. 1916; re-en. Sec. 548, R. C. M. jgs, 181, 227 P 811. 
1921. 

23-405. (549) City council to prepare map of wards. The city council 
of any incorporated city or town shall, within ten days after the ward lines 
of such city or town shall have been established or changed, deliver or cause 
to be delivered to the county clerk of said county a map correctly showing 
the boundaries of the wards within such city or town as then existing ; such 
map shall also show all streets, avenues, and alleys by name, and the re- 
spective wards by numbers, with the ward boundaries clearly defined 
thereon. 

History: En. Sec. 6, Ch. 113, L. 1911; References 

amd. Sec. 6, Ch. 74, L. 1913; amd. Sec. 6, Weber v. City of Helena, 89 M 109, 

Ch. 122, L. 1915; re-en. Sec. 549, R. C. M. i23, 297 P 455. 
1921. 

23-406. (550) Board to designate place in precinct for holding elec- 
tions. The board must, at the session at which judges of election are ap- 
pointed, make an order designating the house or place within the precinct 
where the election must be held. 

History: En. Sec. 1243, Pol. C. 1895; Collateral References 

re-en. Sec. 497, Rev. C. 1907; re-en. Sec. Elections<3=»203. 

550, R. C. M. 1921. 29 C.J.S. Elections § 193. 



References 

Atkinson v. Roosevelt County, 71 M 
165, 181, 227 P 811. 



26 Am. Jut. 2d 61, Elections, § 228. 



23-407. (551) Proceedings where place not designated, etc. If the 
board fails to designate the house or place for holding the election, or if it 
cannot be held at the house or place designated, the judges of election, or a 
majority of those acting as such in the precinct must, two days before the 
election and by order, under their hand (copies of which they must at once 
post in three public places in the precinct), designate the house or place. 

History: En. Sec. 1244, Pol. C. 1895; re- any reason it cannot be held at the place 

en. Sec. 498, Rev. C. 1907; re-en. Sec. 551, appointed, it will be presumed that official 

R. C. M. 1921. duty was regularly performed by them and 

that they did change it, and the writ 

Changing Designation ^^ isgue commanding action. State ex 

Where a board of county canvassers rel. Moore v. Patch, 65 M 218, 225, 211 P 

refused to canvass election returns from 202. 

a precinct on the ground that it appeared 

upon the face of the returns that the References 

election had not been held at the place Atkinson v. Roosevelt County, 71 M 

designated by the board of county com- 165, 181, 227 P 811. 

missioners, and on application for writ , „ - 

of mandate to compel them to act, noth- Collateral References 

ing was shown affirmatively by pleadings Election8<^=>203. 

or otherwise that the judges of election at 29 C.J.S. Elections § 193. 

the precinct had not pursued this section 26 Am. Jur. 2d 61, 62, Elections §§ 228, 

giving them authority to change the place 229. 

of election upon two days' notice if for 

179 



23-501 ELECTIONS 

CHAPTER 5 
EEGISTKATION OF ELECTORS 

Section 23-501. County clerk as county registrar. 

23-501.1. New-voter lists furnished to political parties. 

23-502. Registry book and card index — affidavit of voter — lost naturalization 
papers. 

23-503. Method of registering. 

23-504. Elector infirm or residing at a distance. 

23-505. Notaries and justices of the peace — deputy registrars — compensation. 

23-506. Penalty for violation of act. 

23-507. Hours of registration — registry cards — duty of clerk. 

23-508. Procedure when applicant not qualified at time of registration. 

23-509. Transfer of registration within county. 

23-510. Inquiry as to previous registrations— procedure. 

23-511. Cancellation of registry for failure to vote — reregistration — exception 
of persons in United States service. 

23-512. Withdrawal from cancellation of registration cards of persons in mili- 
tary service. 

23-513. Close of registration — procedure. 

23-514. Printing and posting of lists of registered electors. 

23-515. Precinct register — combining — when not furnished city or town. 

23-516. Registration during period closed for election. 

23-517. Cancellation of registrations. 

23-518. Cancellation of registration cards, when. 

23-519. Compensation of county clerks. 

23-520. Copies of precinct registers. 

23-521. Challenges and action to be taken thereon. 

23-522. Residence, rules for determining. 

23-523. Certificates of naturalization, presentation to registrar. 

23-524. Voter to sign precinct register books. 

23-525. Compelling entry of names in great register. 

23-526, Name of voter must appear in copy of register — identification of voter. 

23-527. Omission of name from precinct registers — remedy. 

23-528. Authority of deputy county clerk. 

23-529. "Elector" defined. 

23-530. "Election" defined. 

23-531. Violation of act, penalty for. 

23-532. Challenging of elector and administration of oath. 

23-533. Acts constituting violation of law — penalty. 

23-534. County commissioners to supply clerk with help. 

23-501. (553) County clerk as county registrar. The county clerk of 
each county of the state of Montana is hereby declared to be ex officio coun- 
ty registrar of such county, and shall perform all acts and duties in this act 
provided without extra pay or compensation therefor. He shall have the 
custody of all registration books, cards, and papers herein provided for, 
and the register hereinafter provided for to be kept by said county clerk 
is hereby declared to be an official record of the office of the county clerk of 
each county. 

History: En. Sec. 1, Ch. 113, L. 1911; Bawden, 51 M 357, 361, 152 P 761; State 

amd. Sec. 1, Ch. 74, L. 1913; amd. Sec. 1, ex rel. Durland v. Board of County Com- 

Ch. 122, L. 1915; re-en. Sec. 553, R. C. M. mrs. of Yellowstone County, 104 M 21, 

1921. Cal. Pol. Sees. 1094-1119. 28, 64 P 2d 1060. 

References Collateral References 

State ex rel. Kehoe v. Stromme, 49 M Elections<>=>100. 

25, 139 P 1002; State ex rel. Eagye v. 29 C.J.S. Elections § 42. 

23-501.1. New-voter lists furnished to political parties. The county 
clerk in each county shall, not later than thirty (30) days prior to the 

180 



REGISTRATION OF ELECTORS 



23-502 



close of registration for any general election, as provided in section 
23-513, submit to the county chairman of the two major political parties, 
a list of all persons residing in the county, who have reached voting age 
since the last general election. This list shall be prepared from all available 
sources in the county, and it shall be the duty of the other county, city 
and school officials to co-operate with the county clerk in preparing such 
list. The county clerk and other officials shall, in no event, be responsible 
for any honest error or omission in preparing such list. 
History: En. Sec. 5, Ch. 98, L. 1965. 

23-502. (554) Registry book and card index — affidavit of voter — lost 
naturalization papers. The official register of electors in each county shall 
be contained in a book designated "register," which book shall be so 
arranged in precincts and alphabetical divisions suitable to record the full 
and complete information given by each elector, and a card index of which 
the county clerk of such county shall at all times have the custody. 
The cards shall be four by six inches in size, of white calendar stock, and 
shall be so perforated that all cards in any drawer may be fastened in by 
a rod passing through such perforations, which rod shall be kept locked 
except when the clerk shall be making necessary changes in the register. 
The registry book herein provided shall be in such form as shall be 
designated by the secretary of state of the state of Montana. The registry 
card shall be substantially in the following form : 

(Face.) 

State of Montana,! 
County of j 

Number Date Name Sex 

Where born Date of birth Height Occupation 

Ft.-In. 

Naturalized when Where 

Residence Post office Sec. Twp. Rg. 

Length of time in Precinct Ward School Dist. 

State County City 

Date canceled Date registered Disability, if any 

Place where last registered 

State of Montana, 1 
County of „ J ^' 

181 



23-503 ELECTIONS 

, being duly sworn says: I am the elector 

whose name appears on the face of this card; the several statements 
thereon contained affecting my qualifications as an elector are true ; I 
am able to mark my ballot (or I am unable to mark my ballot by reason 
of the physical disabilities on this card specified), and I am not registered 
elsewhere within the state of Montana and claim no right to vote else- 
where than in the precinct on this card specified, so help me God. 



Subscribed and sworn to before me this day of 

19 



County Clerk and Ex officio Registrar. 
By Deputy. 

(Back.) 
Affidavit of Lost Naturalization Papers. 

State of Montana, "| 
County of J 

, being duly sworn on oath, says: I am the 

elector named on the face of this card ; I am a naturalized citizen of the 
United States; my certificate of naturalization is lost or destroyed, or 
beyond my present reach, and I have no certified copy thereof; I came to 

the United States in the year ; I was admitted to citizenship 

in the state (or territory) of county of , by the 

court during the year ; I last saw my certificate 

of naturalization, or a certified copj^ thereof, at 



Subscribed and sworn to before me this day of , 19. 



County Clerk and Ex officio Registrar. 

By Deputy. 

History: En. Sec. 7, Ch. 113, L, 1911; Propriety of test or question asked ap- 

amd. Sec. 7, Ch, 74, L. 1913; ajnd. Sec. 7, plicant for registration as voter other than 

Ch. 122, L. 1915; re-en. Sec. 554, R. C. M. formal questions relating to specific con- 

1921; amd. Sec. 1, Ch. 98, L. 1965. ditions of his right to registration. 76 ALR 

1238. 

Collateral References Constitutionality of statutes in relation 

ElectionsC^lOe 110. ^^ registration before voting at election 

29 CJ.S. Elections §§ 39, 46, 47. or primary. 91 ALR 349. 

25 Am. Jur. 2d 784, Elections, § 95. Nonregistration as affecting legality of 

votes cast by persons otherwise qualified. 

"Validity of statute requiring informa- 101 ALR 657. 
tion as to age, sex, residence, etc., as a 
condition of registration. 14 ALB 260. 

23-503. (555) Method of registering. Any elector residing within the 
county may register by appearing before the county clerk and ex officio 
registrar and making correct answers to all questions propounded by the 
county clerk touching the items of information called for by such registry 

182 



REGISTRATION OF ELECTORS 23-505 

card, and by signing: and verifying or affirming the affidavit or affidavits 
on the back of such card. Any elector in the United States service who is 
absent from the state of Montana and the county of which he or she is 
a resident may register either (a) by mailing such registry card filled 
out and signed under oath to the county clerk of the county in which said 
elector resides, or (b) by mailing the federal post card application filled 
out and signed under oath to said county clerk. 

If any person shall falsely personate another and procure the person so 
personated to be registered, or if any person shall represent his name to 
the county clerk or to the registration clerk or to any other person qualified 
to register an elector, to be different from what it actually is, and cause 
such name to be registered, or if any person shall cause any name to be 
placed upon the registry lists otlierwise than in the manner provided in 
this act, he shall be guilty of a felony, and upon conviction be imprisoned 
in the state penitentiary for not less than one (1) nor more than three (3) 
years. 

History: En. Sec. 8, Ch. 122, L. 1915; Collateral References 

re-en. Sec. 555, R. C. M. 1921; amd. Sec. Electioiis©=>98, 106, 312. 

4, Ch. 172, L. 1937; amd. Sec. 1, Cli. 83, 29 C.J.S. Elections 8S 39, 40, 46, 326. 

L. 1953; amd. Sec. 1, Ch. 18, L. 1959; sa ' » > 

amd. Sec. 2, Ch. 98, L. 1965. 

23-504. (556) Elector infirm or residing at a distance. If any elector 
resides more than ten miles distant from the office of the county clerk, he 
may register before the deputy registrar within the precinct where such 
elector resides. If by reason of physical infirmity the elector is unable to 
appear before the county clerk or any deputy registrar, he may send written 
notice to the county clerk or to the deputy registrar of such disability, with 
the request that his registration be made at his residence. Upon receipt of 
such notice and request it shall be the duty of the county clerk or deputy 
registrar, as the case may be, to make the registration of such elector at his 
residence; provided, that no greater sum than twenty-five cents may be 
charged or received by any officer or person for taking the registration 
of the elector herein provided for ; and provided further, that no officer or 
person shall be entitled to receive from any county in the state of Montana 
any charge for expenses incurred by reason of the provisions of this section. 

History: En. Sec. 15, Ch. 74, L. 1913; Collateral References 

amd. Sec. 9, Ch. 122, L. 1915; re-en. Sec. Elections<&=>106. 

556, R. C. M. 1921. 29 C.J.S. Elections §§ 39, 46. 

23.505. (557) Notaries and justices of the peace — deputy re^trars 
— compensation. All notaries public and justices of the peace are desig- 
nated as deputy registrars in the county in which they reside, and may 
register electors residing in any precinct within the county and shall re- 
ceive as compensation for their services the sum of twenty-five cents 
(25$:) for each elector registered by them, provided that they shall receive 
no compensation for their services where the elector resides less than ten 
(10) miles from the county courthouse. The county commissioners shall 
appoint two deputy registrars, one from each of the two major political 
parties in this state, other than notaries public and justices of the peace, 

183 



23-506 ELECTIONS 

for each precinct in the county. Such deputy registrar shall be a qualified, 
taxpaying resident elector in the precinct for which he is appointed and 
shall register electors in that precinct, and shall receive as compensation 
for his services the sum of twenty-five cents (25fi) for each elector regis- 
tered by him. Each deputy registrar shall forward by mail, within two 
(2) days, all registration cards filled out by him to the county clerk and 
recorder. 

History: En. Sec. 10, Ch. 122, L. 1915; Collateral References 

amd. Sec. 1, Ch. 38, L. 1917; re-en. Sec. ElectionsiS^lOO 

557, R. C. M. 1921; amd. Sec. 5, Ch. 172, 09 c j,g Elections 8 42. 

L. 1937; amd. Sec. 1, Ch. 51, L. 1941; amd. '^ 

Sec. 1, Ch. 80, L. 1955; amd. Sec. 3, Ch. 
98, L. 1965. 

23-506. Penalty for violation of act. Any person who shall make false 

answers, either for himself or another, or shall violate or attempt to violate 

any of the provisions of this act, or knowingly encourage another to violate 

the same, or any public officer or officers, employees, deputies, or assistants, 

or other persons whomsoever, upon whom any duty is imposed by this act, 

or any of its provisions, who shall neglect such duty, or mutilate, destroy, 

secrete, alter or change any such registry books, cards or records required, 

or shall perform it in such way as to hinder the objects and purposes of 

this act, shall be deemed guilty of a felony, shall, upon conviction thereof, 

be punished by imprisonment in the state prison for a period of not less 

than one (1) year or more than ten (10) years, and if such person be a 

public officer, shall also forfeit his office, and never be qualified to hold 

public office, either elective or appointive, thereafter. 

History: En. Sec. 6, Ch. 172, L. 1937. Collateral References 

Elcctions<2=>312. 

29 C.J.S. Elections § 326. 

23-507. (558) Hours of registration — registry cards — duty of clerk. 
The office of the county clerk shall be open for registration of voters be- 
tween the hours of nine a. m. and five p. m. on all days except legal 
holidays. Registry cards shall be numbered consecutively in the order of 
their receipt at the office of the county clerk ; provided, however, that elec- 
tors who are registered upon the registry books in use in any county prior 
to the passage and approval of this law shall retain upon their registry 
cards the same number as they have severally had upon such books; and 
provided also that such electors need not again appear at the office of the 
county clerk to register, but the county clerk is hereby authorized to fill 
out from such registry books registry cards for all electors entitled to vote 
at the time of the passage and approval of this law, transcribing from such 
books the data called for by such cards. The cards so filled out from the 
registry books shall be marked "transcribed" by the county clerk, 
and shall constitute part of the official register, and shall entitle the elector 
represented by each such card to vote in the same manner as if the card 
had been filled out, signed and verified by such elector. The countj^ clerk 
shall classify registry cards according to the precincts in which the 
several electors reside, and shall arrange the cards in each precinct in al- 

184 



REGISTRATION OF ELECTORS 23-509 

phabetical order. The cards for each precinct shall be kept in a separate 
filing case or drawer which shall be marked with the number of the pre- 
cinct. The county clerk shall, immediately after filling out the card index or 
registry cards as herein provided, enter upon the official register of the 
county in the proper precinct the full information given by said elector. 

History: En. Sec. 11, Ch. 122, L. 1915; Collateral References 

re-en. Sec. 558, R. C. M. 1921. Electionse^JlOS, 109, 110. 

29 C.J.S. Elections §§ 39, 47. 

23-508. (559) Procedure when applicant not qualified at time of regis- 
tration. If any applicant for registration applies to be registered who has 
not resided within the state of Montana, or the county or city, for the re- 
quired length of time, and who shall be entitled to and is qualified to 
register on or before the day of election, provided he answers the question 
of the county clerk in a satisfactory manner, and it is made to appear to 
the county clerk that he will be entitled to become a qualified elector by 
the date upon which the election is to be held, the county clerk shall ac- 
cept such registration. If any person applies to be registered who is not 
a citizen of the United States, but states that he will be qualified to be 
registered as a citizen of the United States before the date upon which the 
election is to be held, the county clerk shall accept such registration, but 
shall place opposite the name of such person the words, "to be challenged 
for want of naturalization papers," and such person shall not be entitled 
to vote unless he exhibits to the judges of election his final naturalization 
papers. 

History: En. Sec. 12, Ch. 113, L. 1911; Collateral References 

amd. Sec. 12, Ch. 74, L. 1913; amd. Sec. Elections<©=106. 

12, Ch. 122, L. 1915; re-en. Sec. 659, R. C. 29 C.J.S. Elections §§ 39, 46. 

M. 1921. 

23-509. (560) Transfer of registration within county. Every elector, 
on changing his residence from one precinct to another within the same 
county, may cause his registry card to be transferred to the register of the 
precinct of his new residence, by executing in person a registry card as 
described in section 23-502 before the deputy registrar of the new precinct 
or before a notary public or justice of the peace residing within the county, 
provided that the deputy registrar, notary public or justice of the peace will 
receive no compensation for this service, or by a request in writing to the 
county clerk of such county, in the following form : 

I, the undersigned elector, having changed my residence from Precinct 

No. to Precinct No. in the County of , State 

of Montana, herewith make application to have my registry card transferred 
to the precinct register of the precinct of my present residence. My regis- 
tration number is . 

Dated at , on the day of , 19 — . 

Whenever it shall be more convenient for any elector residing outside 
of an incorporated city or town to vote in another precinct in the same 
political township in the county, such elector may cause his registry card 
to be transferred from the precinct of his residence to such other precinct, 

185 



23-510 ELECTIONS 

by filing in the office of the county clerk of such county, at least thirty (30) 
days prior to any election, a request in writing in the following form : 

I, the undersigned elector, herewith make application to have my regis- 
try card transferred from Precinct No. , to the register of Precinct 

No. , in the County of , State of Montana. The reason 

why it is more convenient for me to vote in said Precinct No. is that 



Dated at on the day of , 19 

"When the elector desires to change his place of registration within a 
county by a request in writing to the county clerk as provided above, the 
county clerk shall compare the signature of the elector upon such written 
request, with the signature upon the registry card of the elector as indi- 
cated, and may question the elector as to any of the information contained 
upon such registry card, and if the county clerk is satisfied concerning the 
identity of the elector and his right to have such transfer made, he shall 
endorse upon the registry card of such elector the date of the transfer and 
the precinct to which transferred, and shall file said card in the register 
of the precinct of the elector's present residence, or of the precinct to 
which he has requested that his registry card be transferred, and the 
county clerk shall in each case make a transfer of the elector's name, to- 
gether with all data connnected therewith, to the proper precinct in the 
register. 

Where the elector changes his place of registration within a county by 
executing a new registry card in the presence of a deputy registrar, notary 
public or justice of the peace as provided in the first paragraph of this 
section, the county clerk shall file said new card in the register of the pre- 
cinct of the elector's present residence and shall make a transfer of the 
elector's name, together with all data connected therewith, to the proper 
precinct in the register. The old registry card shall be marked "canceled" 
and placed in the "canceled file" described in section 23-511. 

History: En. Sec. 17, Ch. 113, L. 1911; Collateral References 

amd. Sec. 17, Ch. 74, L. 1913; amd. Sec. 13, ElectionsC=>119. 

Ch. 122, L. 1915; amd. Sec. 1, Ch. 29, L. 29 C.J.S. Elections § 52. 

1919; re-en. Sec. 560, R. C. M. 1921; amd. 25 Am. Jur. 2d 794, Elections. 8 107. 

Sec. 2, Ch. 80, L. 1955. ' ' * 

23-510. (561) Inquiry a^ to previous registrations — procedure. That 
in the case of all future registrations, as required by the election laws of 
the state of Montana, it shall be the duty of the clerk to question each per- 
son registering, and ascertain whether or not he has previously registered 
in the state of Montana. If the person desiring to register has previously 
registered, the county clerk shall enter his name in a separate file for such 
purpose, which said file shall be indexed by counties. Cards for such pur- 
pose shall be substantially in the following form : 

NAME RESIDENCE 

(City) (County) 

BIRTHPLACE _ AGE 

186 



REGISTRATION OF ELECTORS 23-511 

PREVIOUS RESIDENCE 

(City) (County) 

In compliance with the election laws of the State of Montana, I am 
hereby submitting, for your information, the above named elector, who has, 

on , 19 , rej^istered as a resident entitled to vote 

in county, in order that his registration may be can- 
celed from the records in county, as provided by the 

elections laws of the State of Montana. 

Signature of elector: 

Clerk and Recorder and ex officio regis- 
trar 

County 

Immediately, and not later than three (3) days after the closing of the 
registration books, the clerk shall forward the above forms to the clerk in 
the county in which applicant previously voted, either by registered mail 
or express, and receipt of delivery demanded, said receipt to be kept on file 
with other election records. 

Upon receiving such notice, it will be the duty of the clerk to im- 
mediatel}' cancel the registration of the elector in his county, being the 
county in which said elector previously voted. This must be done by draw- 
ing a red line through the elector's name in the register, and also through his 
name on the registration card. 

History: En. Sec. 14, Ch. 122, L. 1915; CoUateral References 

re-en. Sec, 561, E. C. M. 1921; amd. Sec. Elections<5=5ll9. 

■6, Cli. 172, li. 1937. 29 C.J.S. Elections § 52. 

23-511. (562) Cancellation of registry for failure to vote — reregistra- 
tion — exception of persons in United States service. Immediately after 
every general election, the county clerk of each county shall compare the 
list of electors who have voted at such election in each precinct, as shown 
by the official poUbooks, with -the official register of said precinct, and he 
shall remove from the official register herein provided for the registry cards 
of all electors who have failed to vote at such election, and shall mark each 
of said cards with the word "canceled," and shall place such canceled 
cards for the entire county in alphabetical order in a separate drawer to be 
known as the "canceled hie"; but any elector whose card is thus removed 
from the official register may reregister in the same manner as his original 
registration was made, and the registration card of any elector who thus 
reregisters shall be filed by the county clerk in the official register in the 
same manner as original registration cards are filed. The county clerk 
shall, at the same time, cancel, by drawing a red line through the entry 
thereof, the name of all such electors who have failed to vote at such 
election. 

All electors whose registry cards are so removed and marked 
"canceled," shall within thirty (30) days thereafter, be notified by the 
county clerk in writing of such removal, by sending a notice to such 

187 



23-512 ELECTIONS 

elector to his or her post-office address, as appearing on the registration 
books, cards indexes, and register of electors. 

In the case of an elector in the United States service who shall fail to 
vote his or her registry card shall not be canceled, except for causes 
designated under section 23-518. 

History En Sec. 15, Ch. 122, L. 1915; ty Commrs. of Yellowstone County, 104 
re-en Sec! 562, E. C. M. 1921; amd. Sec. M 21, 28, 64 P 2d 1060; Taylor v. Taylor, 
1 Ch. 147, L. 1937; amd. Sec. 1, Ch. 144, 125 M 341, 238 P 2d 904, 906. 
L. 1941; amd. Sec. 1, Ch. 177, L. 1943; 
amd. Sec. 2, Ch. 18, L. 1959; amd. Sec. 4, 
Ch. 98, L. 1965. Elections<&='108. 



References 

State ex rel. Durland v. Board of Coun- 



Collateral References 

Elections<S='108. 

29 C.J.S. Elections § 48. 



23-512. Withdrawal from cancellation of registration cards of persons 
in military service. It shall be the duty of the county clerk of each county, 
on or before the close of registration before any election to be held in the 
state of Montana following the general election held in November of 1942, 
to withdraw from the "canceled file" the registration card of any person 
serving in the land or naval forces of the United States, including the 
members of the army nurse corps, the navy nurse corps, the women's navy 
reserve, and the women's army auxiliary corps, and such other branches of 
the land and naval forces as may be organized hereafter by the government 
of the United States including persons engaged in the actual service of the 
American national red cross association, or the united service organizations 
or any similar organizations auxiliary to the land and naval forces recog- 
nized by the government of the United States whose registry card has been 
removed from the official register since the date of the general election held 
in November of 1942, and return such card to the official register and enter 
the name of such elector upon the proper registration rolls, provided that — 
on or before the close of registration before any election to be held in the 
state of Montana following the general election held in November of 1942 — 
the county clerk is furnished an affidavit or affidavits by at least two (2) 
registered electors of the county in which such elector serving in the land or 
naval forces of the United States, including persons of the army nurse 
corps, the navy nurse corps, the women's naval reserve, the women's array 
auxiliary corps, and such other branches of the land and naval forces as 
may be organized hereafter by the government of the United States includ- 
ing persons engaged in the actual service of the American national red 
cross association, or the united service organizations or any similar organ- 
izations auxiliary to the land and naval forces recognized by the govern- 
ment of the United States was registered at the time of such election, set- 
ting forth the affiants are personally acquainted with such elector and 
are informed and have reason to believe such elector was engaged in active 
service in the land or naval forces of the United States, including persons 
of the army nurse corps, the navy nurse corps, the women's navy reserve, 
the women's army auxiliary corps, and such other branches of the land and 
naval forces as may be organized hereafter by the government of the 
United States including persons engaged in the actual service of the Ameri- 

188 



REGISTRATION OF ELECTORS 



23-514 



can national red cross association, or the united service organizations or 
any similar organizations auxiliary to the land and naval forces recognized 
by the government of the United States on the day of sucli elect i(m and his 
residence is still witliin the county where he is registered ; provided f urtJier, 
however, this shall not apply to those registration cards which have been 
canceled for any of the causes designated under section 23-518. 
History: En. Sec. 2, Ch. 177, L. 1943. 

23-513. (566) Close of registration — procedure. The county clerk 
shall close all registration for the full period of forty (40) days prior to 
and before any election. He shall immediately transmit to the secretary 
of state a certificate showing the number of voters registered in each 
precinct in said county. The county clerk of each county must cause to 
be published in a ncAvspaper within his county, having a general circula- 
tion therein, for twenty (20) daj's before which time when such registra- 
tion shall be closed for any election, a notice signed by him to the effect 
that such registration will be closed on the day provided by law, and 
which day shall be specified in such notice ; and must also state that 
electors may register for the ensuing election by appearing before the 
county clerk at his office, or by appearing before a deputy registrar or 
before any notary public or justice of the peace in the manner provided 
by law. The publication of such notice must continue for the full period 
of twenty (20) days. At least twenty (20) days before the time when 
the official register is closed for any election, the county clerk shall cause 
to be posted in each voting precinct at such election, notice of the time 
when the official register will close for such election. 



History: En. Sec. 18, Ch. 113, L. 1911; 
amd. Sec. 18, Ch. 74, L. 1913; amd. Sec. 
16, Ch. 122, L. 1915; amd. Sec. 1, Ch. 97, 
L. 1919; re-en. Sec. 566, R. C. M. 1921; 
amd. Sec. 3, Ch. 156, L. 1965. 

References 

State ex rel. Cryderman v. Wienrich, 54 



M 390, 399, 170 P 942; State ex rel. Van 
Horn V. Lyon, 119 M 212, 173 P 2d 891, 

892. 

Collateral References 

Elections<S='105. 

29 C.J.S. Elections § 39. 



DECISIONS UNDER FOEMER LAW 



Duty of County Clerk 

Section 566, R. C. M. 1921, impliedly 
adopted by chapter 47, Laws of 1929 (84- 
4711) and sections 567, 568 and 571, R. C. 
M. 1921, incorporated therein by reference, 
relating to the duties of the county clerk 
in connection with the registration of 
electors, control in an election on propos- 
als to create or increase city indebtedness. 



Weber v. City of Helena, 89 M 109, 112, 
297 P 455. 

Time for Holding Election 

Under this section, as amended in 1915, 
a period of not less than sixty days was 
required to elapse between the time an 
election was called and the time it was 
held. State ex rel. Eagye v. Bawden, 51 M 
357, 361, 152 P 761. 



23-514. (567) Printing and posting of lists of registered electors. The 

county clerk shall, at least ten (10) days preceding any election, cause to 
be printed and posted a list of all electors entitled to be registered as 
shown by the official register of the county, and who are on the precinct 
registers as entitled to vote in the several precincts of such county, city 
or town, or school district of the first class, provided, that if the city clerk 



189 



23-515 ELECTIONS 

of any city or town shall, in writing, certify to the county clerk, not less 

than twenty-five (25) days before the date fixed by law for the holding of 

any primary nominating election, that no petitions for nomination under the 

direct primary election law for any office to be filled at the next ensuing 

annual city election have been filed with such city or town clerk, not less 

than thirty (30) days before the date fixed by law for the holding of the 

primary nominating election, then the county clerk shall not cause to be 

printed or posted such list of registered electors for such city or town. 

Such printed list of registered electors shall contain the name of the 

elector in full, together with his residence, giving the number and street, 

or the name of the house, ( ) and in all cases 

where the elector resides outside of the city or town, such printed list 

shall contain the post-office address of such elector, as shown by the 

official register card of the elector, and the registry number. The expense 

of printing said list shall be paid by said county, city or town, or school 

district, in which the election is to be held. The county clerk shall cause to 

be posted at each precinct in the county, not less than ten (10) daj's before 

any election, as in this act provided for, a copy of the list of registered 

voters herein provided for, and shall retain sufficient number of said 

printed lists of registered voters in his office as may be necessary for the 

convenience of the public. He shall furnish to any qualified elector of any 

county, city or town or school district applying therefor a copy of the 

same. When the list of registered voters herein provided for has been 

printed and posted for any primary election, the same may be posted and 

used for the general election, but only if a supplemental list giving the 

names of electors who may have registered after the first list was prepared 

is printed and posted therewith. 

History: Ap. p. Sec. 24, Ch. 113, L. 5i M 300, 399. 170 P 942; Weber v. City 

1911; amd. Sec. 24, Ch 74, L. 1913; amd. of Helena. 89 M 109, 112, 297 P 455; State 

Sec. 11, Ch. 122, L. 1915; amd. Sec. 2, .•>; lel. Fisher v. School District No. 1, 97 

Ch. 97, L. 1919; amd. Sec. 1, Ch. 235, L. AI 358, 3(55, 34 P 2d 522; State ex rel. 

1921; re-en. Sec. 567, E,. C. M. 1921; amd. Wulf v. McGrath, 111 M 96, 100, 106 P 2d 

Sec. 1, Ch. 61, L. 1933; amd. Sec. 1, Ch. 183. 

167, L. 1945; amd. Sec. 4, Ch. 156, L. 1965. 

Collateral References 

References Elections<£='109. 

State ex rel. Cryderman v. Wienrich, 29 C.J.S. Elections § 47. 

23-515. (568) Precinct register — combining — when not furnished city 
or town. During the time intervening between the closing of the official 
register and the day of the ensuing election, the county clerk shall prepare 
for each precinct a book to be known as the "precinct register" which 
shall be for the use of the clerks and judges of election in each such pre- 
cinct. Such books shall be arranged for the listing of the names of the 
electors in alphabetical divisions, each division to be composed of ruled 
columns with appropriate headings, under which the information contained 
upon the registry card of each elector shall be transcribed, excepting the 
oath of the elector, and the certified copy of the precinct registers so pre- 
pared shall be delivered to the judges of the election at or prior to the 
opening of the polls in each precinct. Where the precincts in municipal 
elections, or in elections in school districts of the first class, include more 

190 



REGISTRATION OF ELECTORS 23-517 

than one county precinct, the county clerk shall combine into one precinct 
register the names of all electors in the several precinct registers of the 
precincts of which such municipal or school district precinct is composed. 
The county clerk sliall omit from the list of names of all certified voters 
so inserted in the precinct register herein provided for, the names and 
registry of all electors which it is the duty of the county clerk to cancel 
under the provisions of section 23-518, provided that the requirements 
contained in the provisions of said section shall have been brought to the 
attention of the county clerk not less than twenty days preceding the 
election. If the city clerk of any city or town shall, in writing, certify to 
the county clerk, not less than twenty-five days before the date fixed by 
law for the holding of any primary nominating election, that no petitions 
for nomination under the direct primary election law for any office to be 
filled at the next ensuing annual city election have been filed with such 
city clerk, not less than thirty days before the date fixed by law for the 
holding of the primary nominating election, then the county clerk shall 
not prepare for the city any precinct register or precinct registers for that 
year. 

History: En. Sec. 23, Ch. 113, L. 1911; References 

amd. Sec. 23, Ch. 74, L. 1913; amd. Sec. Weber v. City of Helena, 89 M 109, 112, 

18, Ch. 122, L. 1915; amd. Sec. 3, Ch. 97, 297 P 455. 
L. 1919; re-en. Sec. 568, R. C. M. 1921; 

amd. Sec. 2, Ch. 61, L. 1933; amd. Sec. 2, Collateral References 

Ch. 64, L. 1959. Elections<S=5212. 



29 C.J.S. Elections § 197. 

23-516. (569) Registration during period closed for election. When- 
ever the period during which the official registry is closed preceding any 
election shall occur during the time within which any elector is entitled to 
register for another election, such elector shall be permitted to register for 
such other election, but the county clerk shall retain his registry card in a 
separate file until the official register is again open for filing of cards, at 
which time all cards in such temporary file shall be placed in their proper 
position in the official register. 

History: En. Sec. 19, Ch. 122, L. 1915; Collateral References 

re-en. Sec. 569, R. C. M. 1921. ElectionsC^lOC. 

29 C.J.S. Elections § 39. 

23-517. Cancellation of registrations. In all counties within the state of 
Montana, the county clerk and ex officio "registrar" shall, within five (5) 
days after the first day of June, 1937, cancel all registrations of electors in 
the county and shall burn all "card indexes," "registry cards" and "affi- 
davits" theretofore executed and signed by any elector for the purpose 
of registration; also, all copies of the registration books used at any 
elections theretofore held and shall preserve the "register" theretofore used 
as a permanent file of the office of the county clerk. 

The county clerk must cause to be published in a newspaper of general 
circulation, published in the county, a notice which shall state that all regis- 
trations of electors will be canceled as of the first day of June, 1937, and 
that duly qualified electors desiring to vote at any subsequent election in 

191 



23-518 ELECTIONS 

the state of Montana, are required to register in the manner and form pro- 
vided for under the general registration laws, and laws amendatory thereto, 
of the state of Montana. Said notice shall be published once a week for a 
period of four consecutive weeks. Failure to publish said notice shall not 
affect a registration of electors, nor of any election thereafter held. 
History: En. Sec. 1, Ch. 172, L. 1937. Collateral References 

References Elcctions^lOS. 

Keierences 2^ ^j^ Elections § 48. 

Wilson V. Hoisington, 110 M 20, 22, 98 
P 2d 369. 

23-518. (570) Cancellation of registration cards, when. The county 
clerk must cancel any registry card in the following cases : 

1. At the request of the party registered. 

2. ^Yhen he has personal knowledge of the death or removal from the 
county of the person registered, or when duly authenticated certificate of 
the death of any elector is filed in the names of vital statistics in his office. 

3. "When there is presented and filed with the county clerk the separate 
affidavit of three qualified registered electors residing within the precinct, 
which affidavit shall give the name of such elector, his registry number 
and his residence, and which affidavit shall show that of the personal knowl- 
edge of the affiant, that any person registered does not reside or has removed 
from the place designated as the residence of such elector. 

4. When the insanity of the elector is legally established. 

5. Upon the production of a certified copy of a final judgment of 
conviction of any elector of felony. 

6. Upon the production of a certified copy of the judgment of any court 
directing the cancellation to be made. 

7. Upon the cancellation of the registration of any elector as herein pro- 
vided, the county clerk shall immediately remove from the official register 
herein provided for the registry of voters and shall deface the name of 
such elector on the official register by drawing a line through said entry in 
red ink and the county clerk shall mark the registry card of such elector 
across the face thereof in red ink with the word "canceled" and shall place 
such canceled cards with the "canceled file," as provided for in section 
23-511. 

All persons whose names are so removed, except as provided in section 
23-517, and stricken from the said registration books, card indexes, and 
register of electors, shall within forty-eight hours thereafter, be notified by 
the county clerk in writing of such removal, by sending a notice to such 
person to his or her post-office address, as appearing on such registration 
books, card indexes, and register of electors. If any persons, whose names 
are so removed, can and do prove to the county clerk that they are in fact 
citizens of the United States and otherwise qualified to vote, as provided by 
law of the state of Montana, then, and in that case, they shall be entitled to 
reregister as voters. 

History: En. Sec. 19, Ch. 113, L. 1911; Collateral References 

amd. Sec. 19, Ch. 74, L. 1913; amd. Sec. 20, Elections<S=>108. 

Ch. 122, L. 1915; amd. Sec. 4, Ch. 97, L. 29 C.J.S. Elections § 48. 

1919; re-en. Sec. 570, R. C. M. 1921; amd. 
Sec. 2, Ch. 172, L. 1937. 

192 



REGISTRATION OF ELECTORS 23-521 

23-519. (571) Compensation of county clerks. The county clerks shall 
receive, for the use and benefit of the county, from every city or town, or 
from every school district of the first class, (to which the precinct registers 
referred to in the last section have been furnished), the sum of three ($0.03) 
cents for each and every name entered in such precinct registers, and in 
addition he shall receive in like manner the amount of the actual expense 
incurred in printing and posting the lists of electors, and in publishing the 
notices required by this law, and any other expense incurred on account 
of any such municipal or scliool district election. It shall be the duty of 
the cit}' or town council, or board of school trustees, to order a warrant 
drawn for such sum as may be due to the county clerk under the provisions 
of this section, within thirty (30) days after the presentation of the account 
to them by said county clerk, provided, however, that in event of the elec- 
tion of candidates at municipal primary elections, as provided for in 
section 11-3113, and no general municipal election is required to be held, 
the county clerk shall prepare no precinct registers for such general munici- 
pal election and shall make no charge therefor; provided further, that in 
elections of school districts of the first class if only as many candidates are 
nominated as there are vacancies to be filled, the county clerk shall fur- 
nish no precinct registers and make no charge therefor to such school 
district. 

It shall be the duty of the city clerk or the clerk of the school district 
to notify the county clerk in such case as above-mentioned, where no pre- 
cinct registers are required, immediately after the facts become known to 
the city council or the board of trustees of the school district, which makes 
unnecessary the furnishing of such precinct registers. 
History: En. Sec. 29, Ch. 113, L. 1911; References 

T^n^.^^%o^^4 ?oiJ*' ^- ^l^^' ^^Vn Weber v. City of Helena, 89 M 109, 

21, Ch. 122, L. 1915; re-en. Sec. 571, R. C. ,,„ „„„ p .r^ 

M. 1921; amd. Sec. 1, Ch. 71, L. 1935; ■'^^' """ ^ '"''• 

amd. Sec, 3, Ch. 64, L. 1959. Collateral References 

Compiler's Note Countie3®=>78 (1); Elections<©=>212. 

The words "last section" appearing in .20 C.J.S. Counties §117; 29 CJ.S. Elec- 

the first paragraph of this section appar- tions § 197. 
ently refer to section 23-515. 

23-520. (572) Copies of precinct registers. The county clerk shall 
furnish to any person or persons who in writing may so request, a copy of 
the official precinct registers of any county, city or school district precinct, 
and upon delivery thereof shall charge and collect for the use and benefit 
of the county the sum of five cents for each and every name entered in such 
official precinct register. 

History: En. Sec. 30, Ch. 113, !•. 1911; Collateral References 

amd. Sec. 30, Ch. 74, L. 1913; amd. Sec. Electious<&='lll. 

22, Ch. 122, L. 1915; re-en. Sec. 572, R. C. 29 C.J.S. Elections 8 50. 
M, 1921. ^ 

23-521. (573) Challenges and action to be taken thereon. At any time 
not later than the tenth day prior to any election, a challenge may be filed 
with the county clerk, signed by a qualified elector in writing, and duly 

193 



23-522 ELECTIONS 

verified by the affidavit of the elector, that the elector designated therein 
is not entitled to register. Such affidavit shall state the grounds of chal- 
lenge, objection and disqualification. The county clerk shall file the affi- 
davit of challenge in his office as a record thereof. The county clerk must 
deliver a true and correct copy of any and all of such affidavits so filed, 
challenging the right of any elector to vote who has been so registered at 
the same time, and together with the copy of the precinct registers and 
check lists, and other papers required by this act to be delivered to the 
judges of election, as in this act provided, and he must write distinctly 
opposite to the name of any person to whose qualification as an elector 
objections may be thus made, the words, "to be challenged." It shall be the 
duty of the judges of election, if on election day such person who has 
been objected to and challenged applies to vote, to test, under oath, his 
qualifications. Notwithstanding the elector is registered, his right to vote 
may be challenged on the day of election by any qualified registered elector, 
orally stating, to the judges of election, the grounds of such objection or 
challenge to the right of any registered elector to vote. 

It is the duty of the judges of election, Avhen it appears that any 
elector offers to vote and is either challenged by a duly qualified regis- 
tered elector, on election day, or if an affidavit of objection to the right 
of such elector to vote has been filed with the county clerk and the copy 
of the precinct registers furnished to the judges of election have endorsed 
thereon, opposite to the name of such elector, "to be challenged," to test 
the qualifications of the elector and ask any questions that such judges 
may deem proper, and shall compare the answers of the elector to such 
questions with the entries in the precinct register books, and if it be 
found that said elector is disqualified, or that the answers given by such 
elector to the questions propounded by the judges do not correspond to 
the entry in the precinct registers, or that said elector is disqualified from 
any cause under the law, or if he refuses to take an oath as to his qualifi- 
cations, he shall not be permitted to vote. The judges of election, in their 
discretion, may require such elector to produce before them one or more 
freeholders of the county, as they may deem necessary, and have them 
examined under oath as to the qualifications of the elector. 
History: En. Sec. 20, Ch. 113, L. 1911; Collateral References 
amd. Sec. 20, Ch. 74, L. 1913; amd. Sec. Elections<3='^''3 
23, Ch. 122, L. 1915; re-en. Sec. 573, E. C. 39 C.J.S. EleVtions § 209. 
M. 1921. 

References 

Weber v. City of Helena, 89 M 109, 125, 
297 P 455. 

23-522. (574) Residence, rules for determimng. For the purpose of 
registration or voting, the place of residence of any person must be gov- 
erned by the following rules as far as they are applicable : 

1. That place must be considered and held to be the residence of a 
person in which his habitation is fixed, and to which, whenever he is absent, 
he has the intention of returning. 

194 



REGISTRATION OF ELECTORS 23-522 

2. A person must not be held to have gained or lost a residence by 
reason of his presence or absence while employed in the service of the 
United States, or of this state, nor while a student at any institution of 
learning, nor while kept at any almshouse or other asylum at the public 
expense, nor while confined in any public prison, nor while residing on any 
military reservation. 

3. No soldier, seaman, or marine in the army or navy of the United 
States shall be deemed a resident of this state in consequence of being sta- 
tioned at any military or naval place within the same. No person shall be 
deemed to have acquired a residence in the state of Montana by reason of 
being employed or stationed at any United States Civilian Conservation 
Corps Camp within the state of Montana or at any transient camp main- 
tained for relief purposes by the government of the United States within 
the state of Montana. 

4. A person must not be considered to have lost his residence who 
leaves his home to go into another state, or other district of this state, for 
temporary purposes merely with the intention of returning, provided he 
has not exercised the right of the election franchise in said state or district. 

5. A person must not be considered to have gained a residence in any 
county into which he comes for temporary purposes merely without the 
intention of making such county his home. 

6. If a person removes to another state with the intention of making 
it his residence, he loses his residence in this state. 

7. If a person removes to another state with the intention of remaining 
there for an indefinite time, and as a place of present residence, he loses 
his residence in this state, notwithstanding he entertains an intention of 
returning at some future period. 

8. The place where a man's family resides is presumed his place of 
residence, but any man who takes up or continues his abode with the inten- 
tion of remaining, or a place other than Avhere his family resides, must be 
regarded as a resident of the place where he so abides. 

9. A change of residence can only be made by the act of removal 
joined with intent to remain in another place. There can only be one resi- 
dence. A residence cannot be lost until another is gained. 

10. The term of residence must be computed by including the day of 

election. 

History: En. Sec. 21, Ch. 113, L. 1911; larations in disparagement of his riglit 

amd. Sec. 21, Ch. 74, L. 1913; amd. Sec. to vote, if made at or before the election, 

24, Ch. 122, L. 1915; amd. Sec. 1, Ch. 58, may be received in evidence. Sommers v. 

L, 1919; re-en. Sec. 574, R. C. M. 1921; Gould, 53 M 538, 544, 165 P 599. 
amd. Sec. 1, Ch. 25, L. 1935. Cal. Pol. C. 

Sec 1239 Inapplicable to Licensing of Automo- 

biles 
Acts and Intent of Voter This section, prescribing the conditions 

The residence of a voter is to be deter- determining the right to vote with respect 

mined from his acts and intent; but this to residence of the voter, had no bearing 

fact, like any other fact involved in a civil upon the situs of one's property (an 

action or proceeding, may be established automobile) or the ownership thereof for 

by circumstantial evidence, and any dec- purpose of taxation, or licensing. Valley 

larations of the voter touching the subject, County v. Tliomas, 109 M 345, 380, 97 

if a part of the res gestae, or any dec- P 2d 345. 

195 



23-523 ELECTIONS 

Presumption M 25, 30, 238 P 582; Wilson v. Hoisington, 

Subdivision 8 of this section is in real- HO M 20, 24, 98 P 2d 369. 

ity a rule of evidence. Carwile v. Jones, collateral References 

38 M 590, 602, 101 P 153. oouaterai iceierences 

Election8<&=72. 

References 29 C.J.S. Elections § 20. 

Stephens v. Nacey, 49 M 230, 237, 141 P 25 Am. Jur. 2d 758, Elections, § 66. 

649; State ex rel. Johnson v. Kassing, 74 

23-523. (575) Certificates of naturalization, presentation to registrar. 

When a naturalized citizen applies for registration his certificate of naturali- 
zation, or a certified copy thereof, must be produced and stamped, or writ- 
ten in ink by the registry agent, with such registry agent's name and the 
year and day and county where presented ; but if it satisfactorily appears to 
the registry agent, by the affidavit of the applicant (and the affidavit of 
one or more credible electors as to the credibility of such applicant when 
deemed necessary), that his certificate of naturalization, or a certified 
copy thereof, is lost or destroyed, or beyond the reach of the applicant 
for the time being, said registry agent must register the name of said 
applicant, unless he is by law otherwise disqualified ; but in case of fail- 
ure to produce the certificate of naturalization, or a certified copy thereof, 
the registry agent must propound the following questions : 

1. In what year did you come to the United States? 

2. In what state or territory, county, court, and year were you finally 
admitted to citizenship? 

3. Where did you last see your certificate of naturalization, or a certi- 
fied copy thereof? 

History: En. Sec. 22, Ch. 113, L. 1911; CoUateral References 

amd. Sec. 22, Ch. 74, L. 1913; amd. Sec. 25, EIections<S=5l06. 

Ch. 122, L. 1915; re-en. Sec. 575, R. C. M. 29 C.J.S. Elections § 46. 

1921. 

23-524. (576) Voter to sign precinct register books. The judges of 
election in each precinct, at every general or special election, shall, in the 
precinct register book, which shall be certified to them by the county clerk, 
mark a cross (X) upon the line opposite to the name of the elector, before 
any elector is permitted to vote the judges of election shall require the 
elector to sign his name upon one of the precinct register books, desig- 
nated by the county clerk for that purpose, and in a column reserved in 
the said precinct books for the signature of electors. If the elector is 
not able to sign his name he shall be required by the judges to produce two 
freeholders who shall make an affidavit before the judges of election, or 
one of them, in substantially the following form : 

State of Montana, | 

County of j 

"We, the undersigned witnesses, do swear that our names and signa- 
tures are genuine, and that we are each personally acquainted with 

, (the name of the elector) and that we know that 

he is residing at , and that we believe that he is 

entitled to vote at this election, and that we are each freeholders in the 
county," which affidavit shall be filed by the judges, and returned by them 

196 



REGISTRATION OF ELECTORS 23-527 

to the county clerk, with the return of the election ; one of the judges 
shall thereupon write the elector's name, and note the fact of his inability 
to sign, and the names of the two freeholders who made the affidavit here- 
in provided for. If the elector fails or refuses to sign his name and if un- 
able to write fails to procure two freeholders who will take the oath herein 
provided, he shall not be allowed to vote. Immediately after the election 
and canvass of the returns, the judges of election shall deliver to the county 
clerk the copy of said official precinct register sealed, with the election 
returns and pollbook, which have been used at said election. 

History: En. Sec. 26, Ch. 113, L. 1911; mary election, was the fault of the judges 

amd. Sec. 26, Cli. 74, L. 1913; amd. Sec. and not of the electors, and that therefore 

26, Ch. 122, L. 1915; re-en. Sec. 576, R. C. their votes were legal and properly count- 

M. 1921. ed. Thompson v. Chapin, 64 M 376, 383, 

209 P 1060. 
Failure To Sign 

Held, that failure of the election judges Collateral References 

of a precinct to require the electors to sign Elections<3='212. 

the registry books before voting at a pri- 29 C.J.S. Elections § 197. 

23-525. (577) Compelling' entry of names in great register. In any 
action or proceeding instituted in a district court to compel the county clerk 
to make and enter the name of any elector in the precinct register, as many 
persons may be joined as plaintiffs for cause of action and as many persons 
as there are causes of action against may be joined as defendants. 

History: En. Sec. 32, Ch. 113, L. 1911; Collateral References 

re-en. Sec. 32, Ch. 74, L. 1913; re-en. Sec. E]ections<3=3l07. 

27, Ch. 122, L. 1915; re-en. Sec. 577, R. C. 29 C.J.S. Elections S 46. 
M. 1921. '^ 

23-526. (578) Name of voter must appear in copy of register — identifi- 
cation of voter. No person shall be entitled to vote at any election men- 
tioned in this act unless his name shall, on the day of election, appear in 
the copy of the official precinct register furnished by the county clerk 
to the judges of election, and the fact that his name so appears in the copy 
of the precinct register shall be prima facie evidence of his right to vote ; 
provided, that when the judges shall have good reason to believe, or when 
they shall be informed by a qualified elector that the person offering to 
vote is not the person Avho was so registered in that name, the vote of such 
person shall not be received until he shall have proved his identity as the 
person who was registered in that name by the oath of two reputable 
freeholders within the precinct in which such elector is registered. 

History: En. Sec. 35, Ch. 113, L. 1911; Collateral References 

amd. Sec. 35, Ch. 74, L. 1913; amd. Sec. 28, Elections<3=5ll8 

Ch. 122, L. 1915; re-en. Sec. 578, R. C. M. 29 C.J.S. Elections S 38. 
1921; amd. Sec. 1, Ch. 139, L. 1967. " 

23-527. (579) Omission of name from precinct registers — remedy. Any 

elector whose name is erroneously omitted from any precinct register 
may apply for and secure from the county clerk a certificate of such error, 
and stating the precinct in which such elector is entitled to vote, and upon 
the presentation of such certificate to the judges of election in such precinct, 
the said elector shall be entitled to vote in the same manner as if his name 

197 



23-528 ELECTIONS 

had appeared upon the precinct register. Such certificate shall be marked 

"voted" by the judges, and shall be returned by them with the precinct 

register. 

History: En. Sec. 29, Ch. 122, L. 1915; 
re-en. Sec. 579, R. C. M. 1921; amd. Sec. 
4, Ch. 64, L. 1959. 

23-528. (580) Authority of deputy county clerk. Wherever in this 
act the word "county clerk" appears, it shall be construed as extending and 
giving authority to any regularly appointed deputy county clerk. 

History: En. Sec. 36, Ch. 113, L. 1911; Collateral References 

re-en. Sec. 36, Ch. 74, L. 1913; re-en. Sec. Countic.sC=582 

30, Ch. 122, L. 1915; re-en. Sec. 580, R. C. oq c.j.S. Counties 8 133. 

M. 1921. 

23-529. (581) "Elector" defined. The word "elector" as used in this 
law, whether used with or without the masculine pronoun, shall apply 
equally to male and female electors. 

History: En. Sec. 31, Ch. 122, L. 1915; Collateral References 

re-en. Sec. 581, R. C. M. 1921. ElcctionsC='63-G5. 

29 C.J. S. Elections § 30. 

23-530. (582) "Election" defined. The word "election," as used in this 

law, where not otherwise qualified, shall be taken to apply to general, 

special, primary nominating, and municipal elections, and to elections in 

school districts. 

History: En. Sec. 32, Ch. 122, L. 1915; Chapin, C4 M 376, 384, 209 P 1060; Weber 
re-en. Sec. 582, R. C. M. 1921; amd. Sec. v. City of Helena, 89 M 109, 117, 297 P 
2, Ch. 139, L. 1967. 455. 

References Collateral References 

State ex rel. Cryderman v. Wienrich, 54 ElectionsC=>31, 32. 

M 390, 399, 170 P 942; Thompson v. 29 C.J.S. Elections § 66. 

23-531. (583) Violation of act, penalty for. Any person or persons, or 
any officer of any county, city or town, or school district, who, under the 
provisions of this act, are required to perform any duty, who shall will- 
fully or knowingly fail, refuse, or neglect to perform such duty, or to com- 
ply with the provisions of this act, shall, upon conviction, be fined in the 
sum of not less than three hundred dollars, nor more than one thousand 
dollars, or by imprisonment in the county jail for a period of not less 
than three months and no more than one year. Upon the conviction of any 
officer of the violation of the provisions of this act, the judge of the district 
court hearing such proceeding shall, at the time of rendering judgment of 
conviction, include in such order of conviction an order of the court 
that such officer be removed from office. 

History: En. Sec. 37, Ch. 113, L. 1911; Collateral References 

re-en. Sec. 37, Ch. 74, L. 1913; re-en. Sec. EleetionsC=5309. 

33, Ch. 122, L. 1915; re-en. Sec. 583, R. C. 29 C.J.S. Elections §§324, 334. 

M. 1921. 

23-532. (584) Challenging of elector and administration of oath. If 

any person ofi'ering to vote at any primary election be challenged by a 
judge or any qualified elector at said election, as to his right to vote there- 

198 



REGISTRATION OF ELECTORS 23-534 

at, an oath shall be administered to him by one of the judges that he will 
truly answer all questions toucliing his right to vote at such election, and 
if it appear that he is not a qualified voter under the provisions of this 
act, his vote shall be rejected; and if any person whose vote shall be so 
rejected shall offer to vote at the same election, at any other polling place, 
he shall be deemed guilty of a misdemeanor. 

History: En. Sec. 38, Ch. 113, L. 1911; Collateral References 

re-en. Sec. 38, Ch. 74, L. 1913; re-en. Sec. EIcctioiise=='^23. 

34, Ch. 122, L. 1915; re-en. Sec. 584, R. C. 09 C.J.S. Elections § 209. 

M. 1921. 26 Am.'JMr. 2d G7, Elections, §237. 

23-533. (585) Acts constituting violation of law — penalty. Any per- 
son who shall make false answers, either for himself or another, or shall 
violate or attempt to violate any of the provisions of this act, or knowingly 
encourage another to violate the same, or any public officer or officers, 
or other persons upon whom any duty is imposed by this act, or any of 
its provisions, who shall willfully neglect such duty, or shall Avillfully 
perform it in such way as to hinder the objects and purposes of this act, 
shall, excepting where some penalty is provided by the terms of this act, 
be deemed guilty of a felony, and upon conviction thereof shall be pun- 
ished by imprisonment in the state prison for a period of not less than 
one year or more than fourteen years, and if such person be a public 
officer, shall also forfeit his office. 

History: En. Sec. 39, Ch. 113, L. 1911; Collateral References 

re-en. Sec. 39, Ch. 74, L. 1913; re-en. Sec. Elections©=i309, 318. 

35, Ch. 122, L. 1915; re-en. Sec. 585, R. C. 29 C.J.S. Elections §§ 324, 331, 334. 
M. 1921. 

23-534. (586) County commissioners to supply clerk with help. It 
shall be the duty of the board of county commissioners of each county to 
provide the county clerk thereof wdth sufficient help to enable him to 
properly perform the duties imposed upon him by this act, and the cost 
of the stationery, printing, publishing, and posting to be furnished or pro- 
cured by the county clerk by the provisions of this law shall be a proper 
charge upon the county. 

History: En. Sec. 40. Ch. 74, L. 1913; Collateral References 

amd. Sec. 36, Ch. 122, L. 1915; re-en. Sec. CountiesC=134. 

586, R. C. M. 1921. 20 C.J.S. Counties § 209. 

CHAPTER 6 

JTTDGES AND CLERKS OF ELECTIONS 

Section 23-601. Judges of election — how appointed. 
23-602. Number of judges to be appointed. 
23-603. Number appointed in new precincts. 

23-604. Not more than a majority to be from any one political party. 
23-604.1. Candidates and relatives ineligible. 
23-604. 2. School district elections — precinct elections. 
23-605. Compensation of election officers. 
23-606. Clerk to give notice to judges of appointment — electors to elect judges 

in case of vacancy. 
23-607. Judges to choose clerks and to serve until others appointed. 
23-60S. Clerks to mail to judges notices of election — form of notices. 

199 



23-601 ELECTIONS 

23-609. Notices to be posted by the judges. 

23-610. Oath of judges and clerk. 

23-611. Judges and clerks may administer oaths. 

23-612. Instructions of judges of elections. 

23-601. (587) Judges of election — how appointed. The board of 
couuty commissioners of the several counties at the regular session next 
preceding a general election, must appoint five judges of election for each 
precinct in which the voters therein, by the last registration, were two 
hundred or more and three judges of election for each precinct in which 
such registration was less than two hundred, provided that in all election 
precincts in which there were cast three hundred and fifty or more ballots 
in the last general election or in which the board of county commissioners 
believe that as many ballots as three hundred and fifty will be cast in the 
next general election, the board of county commissioners may appoint a 
second or additional board consisting of five judges for each such pre- 
cinct, who shall possess the same qualifications as the first board herein 
mentioned. The judges constituting the second board for each precinct, 
if such second board shall have been appointed, shall meet at their re- 
spective polling places, as designated in the order appointing them, at 
the time the polls are closed and at said hour or as soon as the first board 
has completed their duties in regard to the voting, the second board 
shall take charge of the ballot boxes containing the ballots and shall pro- 
ceed to count and tabulate the ballots cast as they shall find them de- 
posited in the ballot boxes. In the event that the count is not completed 
by eight o'clock a. m. of the next following day, the first board shall 
reconvene and relieve the second board and continue said count until 
eight o'clock p. m., when if the count is not yet completed, the second 
board shall reconvene and again relieve the first board, and so, alternately 
until said board shall have fully completed the count and certified the re- 
turns. The judges constituting the several boards shall number the ballots 
and count the tallies upon the tally sheets and so indicate upon the tally 
sheets as to distinctly show the work of each board separately. The board 
completing the count shall make such certification of returns as is required 
by law. 

The board of county commissioners, notwithstanding the foregoing 
provisions in this section contained, may however, appoint a single board 
of judges for each precinct in the county, when, in the judgment of said 
board of county commissioners, a second or additional board is unnecessary. 

History: En. Sec. 1260, Pol. C. 1895; 29 C.J.S. Elections §§ 57-59, 61, 62, 224 

re-en. Sec. 500, Rev. C. 1907; re-en. Sec. et seq. 
587, R. C. M. 1921; amd. Sec. 1, Ch. 43, 

L. 1923; amd. Sec. 1, Ch. 61, L. 1937; amd. Immunity of election officer from cnmi- 

Sec. 1, Ch. 40, L. 1943. «al arrest. 1 ALR 1160. 

Result of election as affected by lack of 

Collateral References title or by defective title of election offi- 

Eloction8<3=>51, 241 et seq. cers. 1 ALR 1535. 

23-602. (588) Number of judges to be appointed. The board of coun- 
ty commissioners, notwithstanding the registration, may appoint five 
judges of each precinct in which upon information obtained by them they 
have reason to believe contains two hundred voters or more and three 

200 



JUDGES AND CLERKS OF ELECTIONS 23-605 

judges of election in precincts which upon information obtained by them, 

they have reason to believe was less than two hundred. 

History: En. Sec. 1261, Pol. C. 1895; re- R. C. M. 1921; amd. Sec. 2, Ch. 43, L. 
en. Sec. 501, Rev. C. 1907; re-en. Sec. 588, 1923. 

23-603. (589) Number appointed in new precincts. In any new pre- 
cinct established, the board of county commissioners must, in like manner, 
appoint five or three judges of election, according to the estimated number 
of voters therein, as required by the two next preceding sections. 

History: En. Sec. 1262, Pol. C. 1895; 
re-en. Sec. 502, Rev. C. 1907; re-en. Sec. 

589, R. C. M. 1921. 

23-604. (590) Not more than a majority to be from any one political 
party. In making the appointment of judges of election, such judges must 
be chosen from a list of qualified electors to be submitted by the county 
central committee of the two (2) major political parties in the county at 
least thirty-five (35) days prior to the regular session of the board of 
county commissioners, next preceding a primary nominating election, a 
general or special election, such list to contain at least twice the number 
of judges to be appointed and not more than a majority of such judges 
must be appointed from any one political party for each precinct and such 
appointee shall be deemed to belong to the political party upon whose 
list his name appears, provided that the board of county commissioners 
may appoint such judges as in case of vacancy or in case any major 
political party fails to submit a list of judges within the time herein pro- 
vided. 

History: En. Sec. 1263, Pol. C. 1895; Collateral References 

re-en. Sec. 503, Rev. C. 1907; re-en. Sec. Elections«S='52. 

590, R. C. M. 1921; amd. Sec. 1, Ch. 85, L. 29 C.J.S. Elections S 60 
1941. Cal. Pol. C. Sec. 1143. ^ 

23-604.1. Candidates and relatives ineligible. No person shall be ap- 
pointed to serve as an election judge or election clerk who is a candidate, 
spouse of a candidate or one who is related to a candidate for ofiice at 
such election within the second degree of consanguinity. 
History: En. Sec. 1, Ch. 99, L. 1961. 

23-604.2. School district elections — precinct elections. The provisions 
of section 23-604.1 and this section shall not apply to school district elec- 
tions nor to candidates for precinct committeeman and committeewoman. 
History: En. Sec. 2, Ch. 99, L. 1961. 

23-605. (591) Compensation of election officers. The compensation of 
members of boards of election, including judges and clerks, shall be fixed 
by the board of county commissioners at not to exceed one dollar twenty- 
five cents ($1.25) per hour for the time actually on duty, and must be 
audited by the board of county commissioners and paid out of the county 
treasury. 

201 



23-606 ELECTIONS 

History: En. Sec. 1173, Pol. C. 1895; Ch. 12, L. 1951; amd. Sec. 1, Ch. 46, L. 
re-en. Sec. 459, Rev. C. 1907; amd. Sec. 1963. Cal. Pol. C. Sec. 1072. 
1, Ch. 101, L. 1917; re-en. Sec. 591, R. C. 

M. 1921; amd. Sec. 1, Ch. 49, L. 1945; Collateral References 

amd. Sec. 1, Ch. 117, L. 1947; amd. Sec. 1, Elections€=>53. 

29 C.J.S. Elections § 63. 

23-606. (592) Clerk to give notice to judges of appointment — electors 
to elect judges in case of vacancy. The clerk of the board must make out 
and forward by mail, immediately after the appointment of the judges, a 
notice thereof in writing, directed to each of them. In case there is no 
post office in any one or more of the precincts in any county, the clerk 
must forward notices of such appointment by registered mail to the post 
office nearest such precinct, directed to the judges aforesaid. If, in any 
of the precincts, an}^ of the judges refuse or neglect to serve, the electors 
of such precinct may elect a judge or judges to fill vacancies on the morn- 
ing of the election, to serve at such election. 

History: En. Sec. 1264, Pol. C. 1895; 
re-en. Sec. 504, Rev. C. 1907; re-en. Sec. 
592, R. C. M. 1921. 

23-607. (593) Judges to choose clerks and to serve until others ap- 
pointed. The judges may, whenever they deem it necessary for the prompt 
and efficient conduct of tlie election within their respective polling places, 
appoint two persons having the same qualifications as themselves to act as 
clerks of the election. The judges shall continue to be judges of all elections 
to be held in their respective precincts until other judges are appointed ; 
and the clerks of election continue to act as such during the pleasure of 
the judges of election, and the board of county commissioners must from 
time to time fill vacancies which may occur in the offices of judges of 
election in any precinct within their respective counties. 

History: En. Sec. 6, p. 461, Cod. Stat. re-en. Sec. 1265, Pol. C. 1895; re-en. Sec. 

1871; re-en. Sec. 6, p. 71, L. 1876; re-en. 505, Rev. C. 1907; re-en. Sec. 593, R. C. M. 

Sec. 520, 5th Div. Rev. Stat. 1879; re-en. 1921; amd. Sec. 2, Ch. 40, L. 1943. 
Sec. 1012, 5th Div. Comp. Stat. 1887; 

23-608. (594) Clerks to mail to judges notices of election — form of 
notices. The clerks of the several boards of county commissioners must, 
at least twenty (20) days before any general election, make and forward 
by mail to such judge or judges as are designated by the county com- 
missioners, three Avritten notices for each precinct, said notices to be sub- 
stantially as follows: 

Notice is hereby given that on the first Tuesday after the first Monday 

of November, 19...., at the house , in the county of , 

an election Avill be held for (naming the offices to be filled, 

including electors of president and vice-president, a representative in 
Congress, state, county and township officers), and for the determination of 
the following questions (naming tliem), the polls of which election will 
be open at 8 :00 a. m. and continuing open until 8 :00 p. m. of the same day. 

Dated this day of , A.D. 19 

Signed A. B., clerk of the board of county commissioners. 

202 



JUDGES AND CLERKS OF ELECTIONS 23-612 

History: Ap. p. Sec. 7, p. 461, Cod. 1921; amd. Sec. 2, Ch. 1C7, L. 1945; amd. 
Stat. 1871; re-en. Sec. 7, p. 71, L. 1876; re- Sec. 1, Ch. 14, L. 1957. 
en. Sec. 521, 5th Dlv. Rev. Stat. 1879; re- 
en. Sec. 1013, 5th Div. Comp. Stat. 1887; Collateral References 
amd. Sec. 12'Jt3, Pol. 0. 1895; re-en. Sec. 506, ElectioiKse=>40, 41. 
Rev. C. 1907; re-en. Sec, 594, R. C. M. 29 C.J.y. Elections §§ 72, 73. 

23-609. (595) Notices to be posted by the judges. The judges to 
whom such notice is directed, as provided in the next preceding section, 
must cause to be put up in three of the most public places in each precinct 
the notices of election in such precinct, at least ten days previous to the 
time of holding any general election, which notices must be posted as fol- 
lows: One at the house where the election is authorized to be held, and 
the others at the two most public and suitable places in the precinct. 

History: Ap. p. Sec. 8, p. 72, L. 1876; Collateral References 

re-en. Sec. 522, 5th Div. Rev. Stat. 1879; Elections<^42 

re-en. Sec. 1014, 5th Div. Comp. Stat. 1887; 29 C.J.S. Elections 8 74. 

amd. Sec. 1267, Pol. C. 1895; re-en. Sec. ^ 

507, Rev. C. 1907; re-en. Sec. 595, R. C. M. 
1921. 

23-610. (596) Oath of judges and clerk. Previous to votes being 

taken, the judges and clerks of election must take and subscribe the official 

oath prescribed by the constitution. It is lawful for the judges of election, 

and they are hereby empowered, to administer the oath to each other, and 

to the clerks of the election. 

History: En. Sec. 1268, Pol. C. 1895; 
re-en. Sec. 508, Rev. C. 1907; re-en. Sec. 

596, R. C. M. 1921. Cal. PoL C. Sec. 1148. 

23-611. (597) Judges and clerks may administer oaths. Any member 
of the board, or either clerk thereof, may administer and certify oaths re- 
quired to be administered during the progress of an election. 
History: En. Sec. 1269, Pol. C. 1895; Collateral References 

re-en. Sec. 509, Rev. C. 1907; re-en. Sec. Elections<3=54. 

597, R. C. M. 1921. 29 C.J.S. Elections § 57. 

23-612. Instructions of judges of elections. Before each election, 
general or primary, all judges appointed to act at said election, who do not 
possess a certificate of instruction as provided for in this act shall be in- 
structed by a person delegated by the board of county commissioners in 
regard to the powers, duties, and liabilities imposed upon election judges 
by the election laws of the state of Montana. For the purpose of giving 
such instruction, the delegate of the board of county commissioners shall 
call such meeting or meetings of the judges of election as shall be neces- 
sary. Each judge of election shall attend such meeting or meetings and 
receive at least two (2) hours of instruction, and as compensation for the 
time spent in receiving such instruction, each judge that shall serve in the 
election shall receive the sum of one dollar (.$1.00) per hour of instruction, 
to be paid to him at the same time and in the same manner as compensation 
is paid to him for his or her services on election day. 

Upon the completion of the two (2) hours of instruction, the judge shall 
receive a certificate from the person delegated by the board of county com- 

203 



23-701 



ELECTIONS 



missioners from whom he or she has received instruction, that the instruc- 
tion has been completed, provided that no certificate of instruction shall 
be valid for a period of greater than two (2) years. No person shall serve 
as a judge of election unless this certificate has been received, provided, 
however, that this shall not prevent the appointment of a judge of election 
to fill a vacancy in an emergency. Notice of place and time of instruction 
of the political judges must be given by the board of county commissioners 
to the county chairman of the two major political parties in the county. 
History: En. Sec. 1, Ch. 210, L. 1957. 



CHAPTER 7 

ELECTION SUPPLIES 

Section 23-701. County commissioners to furnish pollbooks. 

23-702. Form of poUbook. 

23-703. Want of form not to vitiate. 

23-704. County commissioners to have blanks prepared. 

23-705. Clerk to deliver ballots and stamps to judges of election— stamp, what 

to contain. 

23-706. Ballot boxes. 

23-707. Size of the opening of the ballot box. 

23-708. Ballot box to be exhibited. 

23-709. County clerk to have printed instructions to the electors. 

23-710. Forms for transmission of election returns. 

23-711. Copying total vote cast for each candidate. 

23-712. Posting and mailing blanks. 

23-713. Penalty for failure to comply with law. 

23-701. (598) County commissioners to furnish pollbooks. The board 
of county commissioners of each county must furnish for the several elec- 
tion precincts in each county pollbooks after the forms hereinafter pre- 
scribed. 



History: En. Sec. 1300, Pol. C. 1895; 
re-en. Sec. 517, Rev. C. 1907; re-en. Sec. 
598. R. C. M. 1921. 

Cross-Referenco 

County commissioners to furnish poll- 
books, sec. 16-1156. 



Collateral References 

Elections<&=>212. 

29 CJ.S. Elections § 197. 



23-702. (600) Form of poUbook. The following is the form of poll- 
books to be kept in duplicate by the judges and clerks of election : 

PoUbook of Precinct No 

Number and names of electors voting. 



No. 



Name. 



No. 



Name. 



No. 



Name. 



Total number of votes cast at precinct No 

We, the undersigned, judges and clerks of an election held at precinct 
No , in the county of , in the state of Montana, 

204 



ELECTION SUPPLIES 23-705 

on the day of , 19 , havinj? first been severally- 
sworn according? to law, hereby certify that the foregoing: is a true state- 
ment of the number and names of the persons voting at said precinct at 
said election, and that the following named persons received the number 
of votes annexed to their respective names for the following described 
offices to wit : 



Governor, Members of Legislative Assembly. 



A. B., Votes 

C. D., Votes 



Senate. House of Representatives 
E. F., Votes G. H., Votes 



Certified and signed by us, 
[ Clerks. 



Judges. 



History: En. Sec. 1302, Pol. C. 1895; References 

re-en. Sec. 519, Rev. C. 1907; re-en. Sec. Stephens v. Nacey, 47 M 479, 485, 133 P 

600, R. C. M. 1921. Cal. Pol. C. Sec. 1174. 351, 

23-703. (601) Want of form not to vitiate. No pollbook or certificate 
returned from any election precinct must be set aside or rejected for want 
of form, nor on account of its not being strictly in accordance with the di- 
rections of this chapter, if it can be satisfactorily understood. 

History: En. Sec. 1303, Pol. C. 1895; References 

re-en. Sec. 520, Rev. C. 1907; re-en. Sec. Stephens v. Nacey, 47 M 479, 485, 133 

601, R. C. M, 1921, Cal. Pol. C. Sec. 1175. p 361, 

23-704. (602) County commissioners to have blanks prepared. The 

necessary printed blanks for precinct registers, pollbooks, tally sheets, lists 
of electors, tickets, and returns, together with envelopes in which to en- 
close the returns, must be furnished by the board of county commissioners 
to the officers of each election precinct at the expense of the county. 

History: En. Sec. 1174, Pol. C. 1895; 602, R. C. M. 1921; amd. Sec. 5, Ch. 64, 
re-en. Sec. 460, Rev. C. 1907; re-en. Sec, L. 1959. 

23-705. (603) Clerk to deliver ballots and stamps to judges of election 
— stamp, what to contain. Before the opening of the polls, the county 
clerk, or the city clerk in the case of municipal elections, must deliver to 
the judges of election of each election precinct which is within the county 
(or within the municipality in case of municipal election) and in which 
the election is to be held, at the polling place of the precinct, the proper 
number of election ballots as provided for in section 23-1117. He must also 
deliver to said judges a rubber or other stamp, with ink pad, for the pur- 
pose of stamping or designating the official ballots as hereinafter provided. 
Said stamp must contain the words "Official Ballot," the name or number of 

205 



23-706 ELECTIONS 

the election precinct, the name of the county, the date of the election, the 
name and official desiprnation of the clerk who furnishes the ballots. The 
judge of election to whom the stamps and ballots are given pursuant to 
this section must be the same person who may be designated by the com- 
missioners to post the notices required by section 23-608. But in case it be 
impracticable to deliver such stamps and ballots to such judge then they 
may be delivered to some other one of the judges of election. 

History: Ap. p. Sec. 20, p. 140, L. 1889; ton, 53 M 388, 391, 164 P 537; State ex 

amd. Sec. 1356, Pol. C. 1895; re-en. Sec. rel. Eiley v. District Court, 103 M 576, 

547, Rev. C. 1907; re-en. Sec. 603, R. C. M. 588, 64 P 2d 115. 

1921 

Collateral References 

References ElectionsG=163. 

State ex rel. Brooks v. Farusham, 19 29 C.J.S. Elections § 155. 

M 273, 286, 48 P 1; Harrington v. Crich- 

23-706. (604) Ballot boxes. There shall be provided at the expense 
of the county, for each polling precinct, a substantial ballot box or canvas 
pouch with a secure lock and key for the ballots and detached stubs as 
hereinafter provided for. There shall be one opening, and no more iu such 
box or canvas pouch, of sufficient size to admit a single folded ballot. The 
adoption of the canvas pouch to be used instead of the ballot box, in any 
precinct, shall be optional with the commissioners of each county, but in 
such precincts where pouches are so adopted, the pouches shall be re- 
turned to the county clerk together with the other election returns, as 
by law provided. 

History: Ap. p. Sec. 1270, Pol. C. 1895; Collateral References 

amd. Sec. 1, Ch. 88, L. 1907; re-en. Sec. Electionse=217. 

510, Rev. C. 1907; re-en. Sec. 604, R. C. M. 29 C.J.S. Elections §§ 194, 204. 

1921. 26 Am. Jur. 2d 64, Elections, § 231. 

23-707. (605) Size of the opening of the ballot box. There must be an 

opening in the lid of such box of no larger size than shall be sufficient to 
admit a single folded ballot. 

History: En. Sec. 18, p. 463, Cod. Stat. en. Sec. 1271, Pol. C. 1895; re-en. Sec. 511, 

1871; re-en. Sec. 17, p. 74, L. 1876; re-en. Rev. C. 1907; re-en. Sec. 605, R. C. M. 

Sec. 531, 5th Div. Rev. Stat. 1879; re-en. 1921. 
Sec. 1023, 5tli Div. Comp. Stat. 1887; re- 

23-708. (606) Ballot box to be exhibited. Before receiving any bal- 
lots, the judges must, in the presence of any persons assembled at the poll- 
ing place, open and exhibit the ballot box and remove any contents 
therefrom, and then close and lock the same, delivering the key to one 
of their members, and thereafter the ballot box must not be removed from 
the polling place or presence of the bystanders until all the ballots are 
counted, nor must it be opened until after the polls are finally closed. 

History: Ap. p. Sec. 18, p. 463, Cod. amd. Sec. 1272, Pol. C. 1895; re-en. Sec. 

Stat. 1871; re-en. Sec. 17, p. 74, L. 1876; 512, Rev. C. 1907; re-en. Sec. 606, R. C. M. 

re-en. Sec. 531, 5th Div. Rev. Stat. 1879; 1921. Cal. Pol. C. Sec. 1162. 
re-en. Sec. 1023, 5th Div. Comp. Stat. 1887; 

23-709. (607) County clerk to have printed instructions to the electors. 
The county clerk of each county must cause to be printed in large type on 

206 



ELECTION SUPPLIES 23-711 

cards, in the English hmguage, instructions for the guidance of electors 
in preparing their ballots. He must furnish six cards to the judges of 
election in each election precinct, and one additional card for each fifty 
registered electors, or fractional part thereof, in the precinct, at the same 
time and in the same manner as the printed ballots. The judges of election 
must post not less than one of such cards in each place or compartment 
provided for the preparation of ballots, and not less than three of such 
cards elsewhere in and about polling places upon the day of election. Said 
cards must be printed in large, clear type, and must contam full instruc- 
tions to the voters as to what should be done, viz. : 

1. To obtain ballots for voting. 

2. To prepare the ballots for deposit in the ballot-boxes. 

3. To obtain a new ballot in the place of one spoiled by accident or 

mistake. Said card must also contain a copy of sections 94-1407, 94-1411, 

94-1412, 94-1413, 94-1414 and 94-1415. There must also be posted in each 

of the compartments, or booths, one of the official tickets, as provided in 

sections 23-1101 to 23-1116, without the official stamp, and not less than 

three such tickets posted elsewhere in and about the polling places upon 

the day of election. 

History: En. Sec. 1273, Pol. C. 1895; Collateral References 

re-en. Sec. 513, Rev. C. 1907; re-en. Sec. Elections®='216. 

607, R. C. M. 1921. CaL Pol. C. Sec. 1207. 29 C.J.S. Elections § 205. 

23-710. (608) Forms for transmission of election returns. In sending 

out election supplies to each precinct for each general election, it shall be 

the duty of the county clerk in each county to send with such supplies not 

less than six printed forms, with a return envelope, for the use of judges 

of election in transmitting election returns for public information. Said 

printed forms shall be in ballot form on tinted paper, and the name of 

each candidate and each proposition voted on shall be printed on said 

blank. Brief instructions for the use of said blank, as contained in this 

act, shall also be printed on said blank. 

History: En. Sec. 1, Ch. 12, L. 1915; mitted to the county clerk, is to facilitate 

re-en. Sec. 608, R. C. M. 1921. the publication of the results; they are not 

a part of the election returns and are not 
Purpose of Tinted Sheets required to be transmitted to the clerk 
The sole purpose of the tinted sheets in sealed packages. Dubie v. Bataui, 97 M 
provided for by this section and sections 468, 478, 37 P 2d 662. 
23-711 to 23-713, on which judges of elec- 
tion must summarize the result of the vote Collateral References 
and cause a copy thereof to be posted at Elections<S='247. 
the polling place and one to be trans- 29 C.J.S. Elections § 229. 

23-711. (609) Copying total vote cast for each candidate. As soon as 
all of the ballots have been counted in any precinct, it shall be the duty of 
the election judges to correctly copy the total vote cast for each candidate 
and the total vote cast for and against each proposition on the blanks fur- 
nished by the county clerk, as provided in the preceding section. 

History: En. Sec. 2, Ch. 12, L. 1915; References 

re-en. Sec. 609, R. C. M. 1921. Dubie v. Batani, 97 M 468, 478, 37 P 2d 

662. 

207 



23-712 ELECTIONS 

23-712. (6l0) Posting and mailing blanks. One of said blanks, proper- 
ly filled out, shall be posted forthwith at the polling place; and one copy, 
correctly filled out, shall be sent by mail or by messenger, when the same 
can be done without expense, to the county clerk. Said copy may be sent 
by the same messenger carrying the ofiicial election returns, but the same 
shall not be enclosed or sealed with the other returns. 

History: En. Sec. 3, Ch. 12, L. 1915; References 

re-en. Sec. 610, K. C. M. 1921. Dubie v. Batani, 97 M 468, 478, 37 P 

2d 662. 

23-713. (611) Penalty for failure to comply with law. Any judge of 
election, or other officer, who shall fail or refuse to comply with the pro- 
visions of this act, shall be deemed guilty of a misdemeanor, and upon con- 
viction thereof shall be fined in any sum not exceeding fifty dollars. 

History: En. Sec. 4, Ch. 12, L. 1915; Collateral References 

re-en. Sec. 611, R. C. M. 1921. Elections®=5314. 

References 29 C.J.S. Elections § 327. 

Dubie V. Batani, 97 M 468, 478, 37 P 
2d 662. 



CHAPTER 8 

NOMINATION OF CANDIDATES FOR SPECIAL ELECTIONS BY CONVENTION 
OR PRIMARY MEETINGS OR BY ELECTORS 

Section 23-801. Convention or primary meeting defined — vacancies. 

23-802. Certificates of nomination, what to contain. 

23-803. Certificate, where filed. 

23-804. Certificates of nomination otherwise made. 

23-805. Certificate not to contain certain things — one person not to be nomi- 
nated for more than one ofiice. 

23-806. Certificates to be preserved one year. 

23-807. When certificates to be filed. 

23-808. Nominees to pay prescribed filing fee. 

23-809. Secretary of state to certify to county clerk names of persons nomi- 
nated. 

23-810. Declination of nomination — municipal elections. 

23-811. Vacancies may be filled by further certificates. 

23-812. Errors, how corrected. 

23-813. Qualification of voter at primary election. 

23-814. Who entitled to vote. 

23-815. Judges. 

23-816. Clerk. 

23-817. Challenges — oath — ^penalty. 

23-818. Fraudulent voting or counting. 

23-819, Unlawful interference. 

23-820. Penalties. 

23-801. (612) Convention or primary meeting defined — va-cancies. Any 

convention or primary meeting held for the purpose of making nomina- 
tions to public office, or the number of electors required in this chapter, 
may nominate candidates for public office to be filled by election in the 
state. A convention or primary meeting within the meaning of this chapter 
is an organized assemblage of electors or delegates representing a political 
party or principle, and in the event a vacancy shall happen by death or 
resignation in the representation from any congressional district of the 

208 



NOMINATIONS FOR SPECIAL ELECTIONS 



23-801 



state of Montana in the house of representatives of the Congress of the 

United States, only the electors residing within such congressional district 

shall vote at any such convention or primary meeting held for the purpose 

of making nominations to fill such vacancy. 

History: En. Sec. 2, p. 135, L. 1889; 
amd. Sec, 1310, Pol. C. 1895; re-en. Sec. 
521, Rev. C. 1907; re-en. Sec. 612, R. C. M. 
1921; amd. Sec. 1, Ch. 26, L. 1945. Cal. 



make the nominations. State ex rel. Athey 
V. Hays, 31 M 233, 236, 78 P 486. 



Pol. C. Sec. 1186. 

Application of Section 

The Primary Election Law (23-901 et 
seq.) applies to all situations where it can 
be made reasonably operative. Where 
a county treasurer, elected in November, 
1942 for a four-year term ending March 
1, 1947, died after he had qualified and 
before commencement of the term for 
which he was elected, the appointee of 
the county commissioners under section 5, 
article XVI of the constitution would 
hold until next general election on No- 
vember 7, 1944, and procedure under Pri- 
mary Law (23-901 et seq. and section 5, 
article XVI of the constitution) is control- 
ling. A vacancy occurring after the pri- 
mary and prior to the general election or 
at any other inapplicable time authorizes 
nomination under this section or section 
23-804, section 23-909 then not applying. 
LaBorde v. McGrath, 116 M 283, 286, 149 
P 2d 913, distinguished in 117 M 160, 170, 
157 P 2d 108 and 130 M 202, 208, 299 P 
2d 446. 

Nominees to be placed on ballot at 
special election to fill vacancy resulting 
from death of representative in Congress 
must be chosen pursuant to this section 
or section 23-804 and not by special nomi- 
nating election. Bottomly v. Ford, 117 M 
160, 167, 157 P 2d 108. 

Assembly To Nominate Candidates Es- 
sential 

Where a call for a mass convention of 
electors stated that the object was to 
organize central committees opposed to 
corporate rule, and to give the voters of 
the state an opportunity to vote for men 
free from corporate control, but failed to 
state that the convention was to assemble 
to nominate candidates for any office what- 
ever, it was not a call of the electors of 
the state to assemble and select candidates 
for public office. State ex rel. Athey v. 
Hays, 31 M 233, 236, 78 P 486. 

A mass convention of electors can make 
nominations of candidates for public of- 
fice only where such convention was called 
for that purpose. If the convention could 
not make such nominations because the 
call of the convention did not set forth 
such purpose, a committee appointed by 
the convention was without authority to 



Convention Representation 

Convention representation is a gather- 
ing of electors springing from the electors 
who compose a political party or adhere 
to a political principle. State ex rel. Met- 
calf V. Johnson, 18 M 548, 552, 46 P 533. 

"Conventions" Defined 

Under this section and sections 23-802, 
and 23-803, conventions are meant to be 
organized assemblages of electors or dele- 
gates fairly representing the entire body of 
electors of the political party which may 
lawfully vote for the candidates of any 
such convention. State ex rel. Woody v. 
Eotwitt, 18 M 502, 506, 507, 46 P 370. 

The supreme court, without directly 
citing this section, defined a political con- 
vention as an organized assemblage of 
electors or delegates representing a politi- 
cal party or principle. State ex rel. Met- 
calf v. Johnson, 18 M 548, 552, 46 P 533. 

District Comprising Two Counties 
This section and sections 23-802 and 23- 
803, recognize systems of conventions and 
primary meetings held to nominate candi- 
dates for public office. Such conventions 
are meant to be organized assemblages of 
electors or delegates fairly repesenting the 
entire body of electors of the political 
party which may lawfully vote for the 
candidates of any such convention. Where, 
therefore, a judicial district comprises two 
counties, the nomination of a candidate 
for district judge by a political party at 
a county convention composed of delegates 
of that county alone, without the other 
having been represented or having an op- 
portunity to participate in the proceed- 
ings, such action was a mere nullity. State 
ex rel. Woody v. EotAvitt, 18 M 502, 506, 
46 P 370. 

A mass meeting in one of two counties 
composing a judicial district, called with- 
out notice, except to those present at the 
final adjournment of a regular county 
convention, for the announced purpose of 
formulating a protest to the action of the 
convention, has no authority to name de- 
legates to represent the county in a state 
and judicial convention in place of those 
named by the regular county convention; 
and delegates named by such meeting, 
though recognized and seated by the state 



209 



23-802 



ELECTIONS 



convention, have no authority to represent 
the county in the judicial convention, 
and a nomination made by it is invalid, 
because the electors of both counties are 
not represented. State ex rel. Scharnikow 
V. Hogan, 24 M 383, 392, 02 P 583. See 
also State ex rel. Gilchrist v. Weston, 27 
M 185, 191, 70 P 519, 70 P 1134. 

New Political Parties 

Since the Initiative Primary Law (23- 
901 et seq.) was not enacted to prevent 
nominations but to subject tlicm to pub- 
lic regulation and control as far as possi- 
ble and did not repeal this section so far 
as it relates to political parties coming 
into existence after the holding of the 
primary election, this section was the only 
law under which the socialist party or- 
ganized in September, 1922, could pro- 
ceed to make its nominations. State ex rel. 
Mills v. Stewart, 64 M 453, 464, 210 P 465. 

Under chapter 7, Laws of 1927 (23- 
909), a political party which did not cast 
at least three per cent of the total vote 
cast for representative in Congress at the 
next preceding general election, or a new 
party about to be formed, may make 
nominations for public office by the con- 
vention system provided for by this sec- 
tion. State ex rel. Foster v. Mountjoy, 83 
M 162, 168, 271 P 446. 

Nomination by Political Club 

Where a political club composed of four 
hundred members nominated a county 
ticket at a meeting of some fifty mem- 
bers, and no call for a convention was 
ever made nor any person ever elected 
as a delegate to a convention, nor any 
notice given that a convention was to be 
held, such proceedings were not those of 
an organized assemblage of delegates rep- 
resenting a political party within the 
moaning of this section. State ex rel. Eus- 
sel V. Tooker, 18 M 540, 543, 46 P 530, 
explained in 24 M 383, 392, 62 P 583. 

Partisan Nominations 

Partisan nominations of candidates for 
judicial offices are recognized by this sec- 
tion and sections 23-802, 23-803. State ex 
rel. Holliday v. O'Leary, 43 M 157, 167, 
115 P 204. 

Presidential Electors — Nomination 
The nomination for presidential elec- 
tors is a nomination for public office. State 
ex rel. Wheeler v. Stewart, 71 M 358, 363, 
230 P 366. 



Special Elections 

Since tlie Primary Election Law (23-901 
et seq.) is made applicable only to general 
elections, fails to provide for the nomina- 
tion of candidates to be voted for at spe- 
cial elections, and does not repeal prior 
statutes on the latter subject, this section 
and section 23-804, are still in force, and 
therefore nomination of candidates to be 
voted for at special elections must be 
made pursuant to the provisions of either 
tills section or section 59-707. State ex 
rel. Rcibold v. Duncan, 55 M 380, 177 P 
250, distinguished in 116 M 283, 291, 149 
P 2d 913. 

Validity of Nominations 

Where it appeared that a convention 
was participated in by twenty-one electors 
of the county who appeared in response to 
personal invitation, and after acting as a 
county convention then proceeded to hold 
a state convention, no call for a state con- 
vention having ever been given or dele- 
gates elected to either convention, and no 
notice published throughout the state or 
county of the gathering of the new party, 
the nomination of a county ticket and 
presidential electors by such convention 
was a nullity. State ex rel. Metcalf v. John- 
son, 18 M 548, 552, 46 P 533. 

References 

State ex rel. Mitchell v. District Court, 
128 M 325, 275 P 2d 642, 647. 

Collateral References 

Elcctions®=5l25. 

29 C.J.S. Elections §§ 91, 104, 

25 Am. Jur. 2d 814, Elections, § 128. 

Constitutionality of statute relating to 
power of committee or officials of politi- 
cal party. 62 ALR 924. 

Extent of power of political party, com- 
mittee or officer to exclude persons from 
participating in its primaries as voter or 
candidates. 70 ALR 1501; 88 ALR 473; 97 
ALR 085 and 151 ALR 1121. 

Political principles or affiliations as 
ground for refusal of government officials 
to take steps necessary to representation 
of party or candidate upon official ticket. 
130 ALR 1471. 

Personal liability of public officer for 
breach of duty in respect of election or 
primary election laws. 153 ALR 109. 



I 



23-802. (613) Certificates of nomination, what to contain. All nomi- 
nations made by such convention or primary meeting must be certified as 
follows : The certificate of nomination, which must be in writing, must con- 

210 



NOMINATIONS FOR SPECIAL ELECTIONS 



23-803 



tain the name of each person nominated, his residence, his business, his 
business address, and the office for which he is named, and must desiprnate, 
in not more than five words, the party or principle which such convention 
or primary meetino: represents, and it must be signed by the presiding? 
officer and secretary of such convention or primary meeting, who must add 
to their signatures their respective places of residence, their business, and 
business addresses. Such certificates must be delivered by the secretary or 
the president of such convention or primary meeting to the secretary of 
the state or to the county clerk, as in this chapter required. 
History: En. Sec. 3, p. 136, L. 1889; in printing the ballot, so that he may 



group the candidates and distinguish them 
liy this designation. State ex rel. Ken- 
nedy V. Alartin, 24 M 403, 406, 62 P 588. 

References 

State ex rel. Mitchell v. District Court, 
128 M 325, 275 P 2d 642, 647. 

Collateral References 
ElectionsC=>13S. 
29 C.J.S. Elections § 135. 
25 Am. Jur. 2d 833, Elections, § 141. 



re-en. Sec. 1311, Pol. C. 1895; re-en. Sec. 
522, Rev. C. 1907; re-en. Sec. 613, R. C. M. 
1921. Cal. Pol. C. Sec. 1187. 

All Convention Nominations Included 
In One Certificate 

Under this section all convention nomi- 
nations of one party must be contained in 
a single certificate, and a separate certifi- 
cate for each nominee cannot be filed. 
State ex rel. Galen v. Hays, 31 M 227, 
230, 78 P 301. 

Purpose 

The requirement of this section is evi- 
dently designed to guide the proper officer 

23-803. (614) Certificate, where filed. Certificates of nomination of 
candidates for the legislative assembly and for offices to be filled by the 
electors of the entire state, or of any division or district greater than a 
county, must be filed with the secretary of state. Certificates of nomination 
for county, township, and precinct officers must be filed with the clerks of 
the respective counties wherein the officers are to be elected. Certificates 
of nomination for municipal officers must be filed with the clerks of the re- 
spective municipal corporations wherein the officers are to be elected. 

Misnomer In Party Name 
An error in the certificate of nomina- 



History: En. Sec. 4, p. 136, L. 1889; 
re-en. Sec. 1312, Pol. C. 1895; re-en. Sec. 
523, Rev. C. 1907; re-en. Sec. 614, R. C. M. 
1921; amd. Sec. 3, Ch. 194, L. 1967. Cal. 
Pol. C. Sec, 1189. 

Candidate for District Judge 

A district judge is a state officer, but 
there is no provision in this section requir- 
ing the certificate of nomination of such 
an officer from a district containing only 
a single county to be filed with the sec- 
retary of state. In this regard, therefore, 
there is no specific provision enjoining 
any duty upon this officer. In view of 
the policy of the statute and constitution, 
however, which appears to be that the 
nomination and election of officers in any 
county of the state shall be controlled 
exclusively by the electors therein and 
their local officers, the certificate of a 
candidate for district judge of a district 
containing only one county is, like that of 
a county officer, to be filed with the clerk 
of the county. State ex rel. Doran v. Hays, 
27 M 174, 177, 70 P 321. 



tion filed in accordance with this section 
consisting of a misnomer in the name of 
the party which the convention represent- 
ed, renders such certificate insufficient and 
void. State ex rel. Scharnikow v. Hogan, 
24 M 397, 401, 62 P 683. 

References 

State ex rel. "Woody v. Eotwitt, 18 M 
502, 506, 46 P 370; State ex rel. Scharni- 
kow V. Hogan, 24 M 379, 380, 62 P 493; 
State ex rel. Holliday v. O'Leary, 43 M 
157, 167, 115 P 204; State ex rel. "Wheeler 
v. Stewart, 71 M 358, 365, 230 P 366; State 
ex rel. Mitchell v. District Court, 128 M 
325, 275 P 2d 642, 648. 

Collateral References 

Elections<S='139. 

29 C.J.S. Elections § 137. 

25 Am. Jur. 2d 831, Elections, § 140. 



211 



k 



23-804 



ELECTIONS 



23-804. (615) Certificates of nomination otherwise made. Candidates 
for public office may be nominated otherwise than by convention or primary 
meeting in the manner following: 

A certificate of nomination, containing the name of a candidate for the 
oflSce to be filled, with such information as is required to be given in 
certificates provided for in section 23-802, must be signed by electors re- 
siding within the state and district, or political division in and for which 
the officer or officers are to be elected, in the following required numbers : 

The number of signatures must not be less in number than five per 
cent of the number of votes cast for the successful candidate for the same 
office at the next preceding election, whether the said candidate be state, 
county, township, municipal, or any other political division or subdivision 
of state or county; but the signatures need not all be appended to one 
paper. Each elector signing a certificate shall add to his signature his 
place of residence, his business, and his business address. Any such cer- 
tificate may be filed as provided for in the next preceding section of this 
chapter, in the manner and with the same effect as a certificate of nom- 
ination made by a party convention or primary meeting. 
History: En. Sec. 5, p. 136, L. 1889; elected in November, 1942 for a four-year 



re-en. Sec. 1313, Pol. C. 1895; re-en. Sec. 
624, Eev. C. 1907; re-en. Sec. 615, E. C. M. 
1921. Cal. Pol. C. Sec. 1188. 

Application of Section 

This section, providing that candidates 
for public office may be nominated other- 
wise than by convention or primary meet- 
ing, to wit, by petition, is applicable to the 
nomination of independent candidates. 
State ex rel. Wheeler v. Stewart, 71 M 358, 
360, 230 P 366. 

Nomination by Certificate 

Court refrained from deciding the ques- 
tion whether, under this section, a certif- 
icate of nomination, to be valid, must 
contain the designation of a party or 
principle, but was disposed to regard it 
as contemplating simply the candidacy of 
one not a nominee of a party — an inde- 
pendent or elector's candidate. When all 
the statutes were read with relation to 
the different conditions contemplated, the 
court was not prepared to say that the 
information referred to in this section 
necessarily extended to more than the 
name, residence, business address, and the 
office for which the candidate was nomi- 
nated. It was decided that a candidate 
for district judge could not, by petitions, 
have his name placed on the ticket of a 
regular party in existence. State ex rel. 
Woody v. Eotwitt, 18 M 502, 509, 46 P 
370. 

Nominee To Fill Vacancy 

The primary election law applies to all 
situations where it can be made reason- 
ably operative. Where a county treasurer. 



term ending March 1, 1947, died after he 
had qualified and before commencement 
of the term for which he was elected, the 
appointee of the county commissioners 
under section- 5, article XVI of the con- 
stitution would hold until next general 
election on November 7, 1944, and proce- 
dure under Primary Law (23-901 et seq. 
and section 5,. article XVI of the constitu- 
tion) is controlling. A vacancy occurring 
after the primary and prior to the general 
election or at any other inapplicable time 
authorizes nomination under this section 
or section 23-801, section 23-909 then not 
applying. LaBorde v. McGrath, 116 M 
283, 286, 149 P 2d 913, distinguished in 
117 M 160, 170, 157 P 2d 108 and 130 M 
202, 208, 299 P 2d 446. 

Nominees to be placed on ballot at 
special election to fill vacancy resulting 
from death of representative in Congress 
must be chosen pursuant to this section 
or section 23-801 and not by special nomi- 
nating election. Bottomly v. Ford, 117 M 
160, 167, 157 P 2d 108. 

Presidential Electors 

A candidate for presidential elector, is 
a candidate for public office within the 
meaning of this section and may there- 
fore be nominated independently. State ex 
rel. Wheeler v. Stewart, 71 M 358, 360, 
230 P 366. 

Eeferences 

State ex rel. Haviland v. Beadle, 42 M 
174, 176, 111 P 720; State ex rel. Holliday 
V. O'Leary, 43 M 157, 165, 115 P 204; 
State ex rel. Eowe v. Kehoe, 49 M 582, 
584, 144 P 162; State ex rel. Eeibold v. 



212 



NOMINATIONS FOR SPECIAL ELECTIONS 23-807 

Duncan, 55 M 380, 383, 177 P 250; State CoUateral References 

97/p'aIr*" ^" ^^^""^J^J^' ^^ ^ 1^2, 168, Electionse^'HS, 144. 

^^l f 44b. 29 C.J.S. Elections §§ 108-110, 135. 

23-805. (616) Certificate not to contain certain things — one person not 

to be nominated for more than one oflQce. No certificate of nomination 

must contain the name of more than one candidate for each office to be 

filled. No person must join in nominating more than one person for each 

office to be filled, and no person must accept a nomination to more than one 

office. 

History: En. Sec. 6, p. 136, L. 1889; gal, and was within the inhibition of this 

re-en. Sec. 1314, Pol. C. 1895; re-en. Sec. section. This could not have been done 

525, Rev. C. 1907; re-en. Sec. 616, R. C. M. by the convention, nor could it be done 
1921. Cal. Pol. C. Sec. 1190. by the committee, and the names of such 

nominees were not entitled to places on 

Nomination of Two Tickets the official ballot. State ex rel. Athey v. 

Where the same committee appointed Hays, 31 M 233, 237, 78 P 486. 

by a mass convention nominated two 

tickets, composed of different persons as Collateral References 

candidates for the same offices, such a Elections<S='144. 

proceeding was not only wrong, but ille- 29 C.J.S. Elections §§ 108, 135. 

23-806. (617) Certificates to be preserved one year. The secretary of 
state and the clerks of the several counties and of the several municipal 
corporations must cause to be preserved in their respective offices for one 
year all certificates of nomination filed under the provisions of this chapter. 
All such certificates must be open to public inspection under proper regu- 
lations to be made by the officers with whom the same are filed. 

History: En. Sec. 7, p. 137, L. 1889; References 

re-en. Sec. 1315, Pol. C. 1895; re-en. Sec. state ex rel. Mitchell v. District Court, 

526, Rev. C. 1907; re-en. Sec. 617, R. C. 123 M 325, 275 P 2d 642, 648. 
M. 1921. Cal. PoL C. Sec. 1191. ' 

Collateral References 

Elections<3=145. 

29 C.J.S. Elections § 137. 

25 Am. Jur. 2d 831, Elections, § 140. 

23-807. (618) When certificates to be filed. Certificates of nomina- 
tion to be filed with the secretary of state must be filed with the secretary 
of state not less than sixty (60) days before the date fixed by law for the 
election. Certificates of nomination herein directed to be filed with the 
county clerk must be filed not less than sixty (60) days before the election. 
Certificates of nomination of candidates for municipal offices must be filed 
with the clerks of the respective municipal corporations not more than 
thirty (30) days and not less than fifteen (15) days previous to the day of 
election; but the provisions of this section shall not be held to apply to 
nominations for special elections or to fill vacancies. 
History: En. Sec. 8, p. 137, L. 1889; References 

amd. Sec. 1316, Pol. C. 1895; re-en. Sec. g^ate ex rel. Mitchell v. District Court, 

527, Rev. C. 1907; re-en. Sec. 618, R. C. M. 128 M 325, 275 P 2d 642, 646. 
1921; amd. Sec. 1, Ch. 64, L. 1925; amd. 

Sec. 1, Ch. 105, L. 1943; amd. Sec. 1, Ch. CoUateral References 

259, L. 1947; amd. Sec. 1, Ch. 160, L. 1949; Elections<2=5l43. 

amd. Sec. 5, Ch. 156, L. 1965. Cal. Pol. 99 c.J.S. Elections S 137. 
C. Sec. 1192. 

213 



23-808 ELECTIONS 

DECISIONS UNDER FORMER LAW 

Time of Filing ^yag mandatory, and a certificate of origi- 
Sectiou 1316, Pol. C. 1895, requiring nal nominations made at a party con- 
certificates of nomination to be filed with veution could not be filed less than thirty 
the secretary of state not more than sixty days before election. State ex rel. Galen 
nor less than thirty days before election, v. Hays, 31 M 227, 230, 78 P 301. 

23-808. (618.1) Nominees to pay prescribed filing fee. All candidates 
nominated under the provisions of this chapter, shall, upon filing the cer- 
tificate of nomination as provided by sections 23-803 and 23-807, pay to the 
officer with whom the certificates of nomination are required to be filed, the 
fees provided by section 23-910, and such filing fee shall be paid by 
every person whose name appears upon the ballot at any general election, 
regardless of the method pursued to secure nomination, provided, however, 
that only one filing fee shall be required from any candidate, regardless of 
the method used in having his name placed upon such general election bal- 
lot. 

History: En. Sec. 1, Ch. 28, L. 1933. Validity and effect of statutes exact- 

Collateral References ^°g ^^^"g ^^'^s ^""o™ candidates for public 

VI f ^T^o id^ office. 89 ALR 2d 864. 

Elections<^=139, 145. 

29 C.J.S. Elections § 137. 

25 Am. Jur. 2d 879, Elections, § 132. 

23-809. (619) Secretary of state to certify to county clerk names of 
persons nominated. Not less than forty-five (45) days before an election 
to fill any public office, the secretary of state must certify to the county 
clerk of each county within which any of the electors may by law vote 
for candidates for such office, the name and description of each person 
nominated, as sjoecified in the certificates of nomination filed with the 
secretary of state. 

History: En. Sec. 9, p. 137, L. 1889; M 379, 380, 62 P 493; State ex rel. Wheeler 

re-en. Sec. 1317, Pol. C. 1895; re-en. Sec. v. Stewart, 71 M 358, 363, 230 P 366; 

528, Rev. C. 1907; re-en. Sec. 619, R. C. State ex rel. Bevan v. Mount joy, 82 M 594, 

M. 1921; amd. Sec. 1, Ch. 58, L. 1925; amd. 597, 268 P 558. 
Sec. 1, Ch. 104, L. 1943; amd. Sec. 6, Ch. 

156, L. 1965. Cal. Pol. C. Sec. 1193. Collateral References 

ElectionsC=5l56. 

References 29 C.J.S. Elections § 135. 

State ex rel. Scharnikow v. Hogan, 24 

DECISIONS UNDER FORMER LAW 

Party Candidate Vacancies in Board of Railroad Corn- 
It is by means of the certificate men- missioners 
tioned in section 1317, Pol. C. 1895 that The provisions of this section, as 
the county clerk is informed how to pre- amended in 1943. a general statute, arc 
pare the official ballot for the electors. j,! conflict with the special provisions of 
The secretary of state cannot certify a section 72-101, a special statute, which 
candidate nominated by electors, as the applies specifically and exclusively to the 
candidate of a political party, for clearly fining of vacancies occurring in the board 
he is not such a candidate and has no ^f railroad commissioners of the state of 
place in a group of candidates certified Montana. State ex rel. Mitchell v. District 
as nominated by a regular political party Court, 128 M 325, 275 P 2d 642, 646. 
convention or organization, under the ^j^^ ^■^^^^ limitations prescribed in this 
name of the party making such nomina- section, as amended in 1943, has no 
tio^n._State ox rel. Woody v. Rotwitt, 18 M application to an election to fill a va- 
50-, olO, 511, 46 P 370. cancy in the board of railroad commis- 

214 



NOMINATIONS FOR SPECIAL ELECTIONS 23-811 

sionors created by tlic rosi{:jnation of a such effective date and the day of the 

ie"ularlv elected railroad coininissioiier general election. State ex rel. Mitchell v. 

where such commissioner defers and District Court, 128 M 325, 275 P 2d 642, 

withholds the effective date of his resig- C47. 
nation until hut 32 days remain between 

23-810. (G20) Decimation of nomination — municipal elections. When- 
ever any person nominated for public ofifice, as in this chapter provided, 
shall at least twenty days before election, except in the case of municipal 
election, in writing, signed by him, notify the office w^ith whom the certifi- 
cate nominating him is by this chapter to be filed, that he declines such 
nomination, such nomination shall be void. In municipal elections, such 
declination shall be made at least five days before the election. 

History: En. Sec. 11, p. 138, L. 1889; election. Stackpole v. Hallahan, 16 M 40, 
re-en. Sec. 1319, Pol. C. 1895; re-en. Sec. 51, 40 P 80. 
529, Rev. C. 1907; re-en. Sec. 620, R. CM. 
1921; amd. Sec. 1, Cli. 15, L. 1925. Cal. References 

Pol. C. Sec. 1192. State ex rcl. Kennedy v. Martin, 24 M 



403, 408, 62 P 588. 
Collateral References 



Defective Proceedings 

An election will not be declared void 
by reason of nonprejudical defects in the Elections<S='146. 

manner in which nomination was de- 29 C.J.S. Elections § 95. 

clincd where question was raised after 

23-811. ((;2]) Vacancies may be filled by further certificates. When a 
vaccincy occurs in llie oliice of a candidate for either house of the legislative 
assembly after the primary election and before the printing of the tickets 
for the general election, or if a candidate declines the nomination as in this 
chapter provided, or if any certificate of nomination is or becomes insuffi- 
cient or inoperative from any cause, the vacancy or vacancies thus oc- 
casioned may be filled in the manner required for original nomination. If 
the original nomination was made by a party convention Avhich had dele- 
gated to a committee the power to fill vacancies, such committee may, upon 
the occurring of such vacancies, proceed to fill the same. If the vacancy 
occurs in a multicounty senatorial or representative district it shall be filled 
by a committee consisting of three (3) members from each county in the 
senatorial or representative district. The three (3) members shall be select- 
ed by the central committee, in each county, of the political party of the 
person for whom the new nominee is to be substituted. The chairman and 
secretary of such committee must thereupon make and file w^ith the proper 
officer a certificate setting forth the cause of the vacancy, the name of the 
person nominated, the office for which he was nominated, the name of the 
person for whom the new nominee is to be substituted, the fact that the 
committee was authorized to fill vacancies, and such further information as 
is required to be given in an original certificate of nomination. The cer- 
tificate so made must be executed in the manner prescribed for the original 
certificate of nomination, and has the same force and effect as an original 
certificate of nomination. When such certificate is filed with the secretary 
of state he must, in certifying the nominations to the varicuis county clerks, 
insert the name of the person who has thus been nominated to fill a vacancy 
in place of the name of the original nominee. And in the event he has al- 
ready transmitted his certificate he must forthwith certify to the clerks of 

215 



23-812 



ELECTIONS 



the proper counties the name and description of the person so nominated to 
fill a vacancy, the office he is nominated for, the party or political principle 
he represents and the name of the person for whom such nominee is sub- 
stituted. 



History: En. Sec. 12, p. 138, L. 1889; 
re-en. Sec. 1320, Pol. C. 1895; re-en. Sec. 
530, Rev. C. 1907; re-en. Sec. 621, R. C. 
M. 1921; amd. Sec. 1, Ch. 86, L. 1967. Cal. 
Pol. C. Sec. 1192. 

Errors In Certificates 

Where a convention of a political party 
has made a nomination, and authorized 
its committee to fill vacancies, and there 
is an error in the certificate of nomination 
filed, consisting of a misnomer of the party 
which the convention represented, such 
error renders the certificate void, thereby 
creating a vacancy to be filled by the 
committee as provided in this section, 
construed as section 1320 of the Political 
Code of 1895. State ex rel. Scharnikow 
v. Hogan, 24 M 397, 399, 62 P 683. 

The inadvertent failure to include the 
name of a convention nominee for a cer- 
tain oflice in the certificate of nominations 
renders the certificate insufficient, within 
the meaning of this section, and entitles 
the proper committee to fill the vacancy. 
State ex rel. Galen v. Hays, 31 M 227, 
231, 78 P 301. 

Nominations by Committees 

This section does not forbid a political 
convention from appointing and delegat- 
ing to a committee power to make nomi- 
nations for office, and a nomination made 



by such committee after the adjournment 
of the convention is in effect the act of 
the convention, and therefore valid. State 
ex rel. Pigott v. Benton, 13 M 306, 325, 
34 P 301. 

Nominations by Committees — Filing of 
Certificates 

This section is silent touching the time 
within which must be filed the certificate 
of nomination made by a committee to 
fill a vacancy occasioned by the insuf- 
ficiency of the certificate of the original 
nomination. When a convention has made 
a nomination, and has authorized its com- 
mittee to fill any vacancy that may occur, 
the tilling of the vacancy by the commit- 
tee upon the death or resignation of the 
candidate, or because the original certif- 
icate of nomination was er became insuffi- 
cient or inoperative, may be made at 
any time before the day of election. State 
ex reh Scharnikow v. Hogan, 24 M 397, 

402, 62 P 683; State ex rel. Galen v. Hays, 
31 M 227, 231, 78 P 301. 

References 

State ex rel. Kennedy v. Martin, 24 M 

403, 408, 62 P 588. 

Collateral References 

EIections<S=5l47. 

29 C.J.S. Elections §§93, 94, 136, 166. 



23-812. (622) Errors, how corrected. Whenever it appears by affidavit 
that an error or omission has occurred in the publication of the name or 
description of a candidate nominated for office, or in the printing of the 
ballots, the district court of the county may, upon application of any elector, 
by order require the county or municipal clerk to correct such error, or to 
show cause why such error should not be corrected. 

to be so regarded, and whose names, un- 
less stricken off the official ballot, will be 
erroneously printed thereon. State ex rel. 
Brooks V. Fransham, 19 M 273, 288, 48 P 
1. 



History: En. Sec. 19, p. 140, L. 1889; 
re-en. Sec. 1322, Pol. C. 1895; re-en. Sec. 
532, Rev. C. 1907; re-en. Sec. 622, R. C. M. 
1921. 

Construction of Section 

This section contemplates and author- 
izes tlie institution of proceedings to cure, 
not alone clerical omissions or errors, but 
likewise extends to instances of defects 
by way of omissions of names of candi- 
dates from the ballot, as well as to erro- 
neous insertions of names of persons as 
candidates who are not in fact entitled 



References 

State ex rel. Scharnikow v. Hogan, 24 M 
383, 392, 62 P 583. 

Collateral References 

Elections<©='158. 

29 C.J.S. Elections §§ 90, 138. 



23-813. (623) Qualification of voter at primary election. No person 
shall be entitled to vote at any caucus, primary meeting, or election, held by 

216 



NOMINATIONS FOR SPECIAL ELECTIONS 23-817 

any political party, except he be an elector of the state and county within 
which such caucus, primary meeting, or election is held, and a legal resi- 
dent of the precinct or district within wliich such caucus, primary meeting, 
or election is held, and the limits of which said precinct or district are 
fixed and prescribed by the regularly chosen and recognized representatives 
of the party issuing the call for such caucus, primary meeting, or election. 

History: En. Sec. 1330, Pol. C. 1895; Collateral References 

re-en. Sec. 533, Rev. C. 1907; re-en. Sec. Elections<3=>125, 126 (4). 

623, R. C. M. 1921. 29 C.J.S. Elections §§ 91, 104, 115. 

25 Am. Jur. 2d 853, Elections, § 158. 

23-814. (624) Who entitled to vote. No person shall be entitled to vote 
at any caucus, primary meeting, or election, who is not identified with the 
political party holding such caucus, primary meeting, or election, or who 
does not intend to act with such political party at the ensuing election, 
Avhose candidates are to be nominated at such caucus or primary meet- 
ing. And no person, having voted at any primary meeting or election of 
any political party whose candidates are to be or have been nominated, 
shall be permitted to vote at the primary meeting or election of any other 
political party whose candidates are to be or have been nominated and to 
be voted for at the same general or special election. 

History: Ap. p. Sec. 1331, Pol. C. 1895; Collateral References 

amd. Sec. 1, p. 115, L. 1901; re-en. Sec. Elections©=5l25, 126 (4). 

534, Rev. C. 1907; re-en. Sec. 624, R. C. M. 29 C.J.S. Elections §§ 91, 104, 115 et seq. 

1921. 25 Am. Jur. 2d 854, Elections, § 159. 

23-815. (625) Judges. Three judges, who shall be legal voters in the 

precinct where such caucus or primary meeting is held, shall be chosen by 

the qualified voters of said precinct or district, who are present at the 

opening of such caucus or primary meeting, and said judges shall be 

empowered to administer oaths and aflSrmations, and they shall decide all 

questions relating to the qualifications of those voting or offering to vote 

at such caucus or primary meeting, and they shall correctly count all votes 

cast and certify the results of the same. 

History: En. Sec. 1332, Pol. C. 1895; 
re-en. Sec. 535, Rev. C. 1907; re-en. Sec. 

625, R. C. M. 1921. 

23-816. (626) Clerk. The judges shall select one of their number who 
shall act as clerk, and the clerk must keep a true record of each and every 
person voting, with their residence, giving the street and number and post- 
office address. 

History: En. Sec. 1333, Pol. C. 1895; Collateral References 

re-en. Sec. 536, Rev. C. 1907; re-en. Sec. Elections<S='125 

626, R. C. M. 1921. Cal. Pol. C. Sec. 1229. 29 C.J.S. Elections § 91. 

25 Am. Jur. 2d 730, Elections, § 44. 

23-817. (627) Challenges — oath — penalty. Any qualified voter may 
challenge the right of any person offering to vote at such caucus or primary 
meeting, and in the event of such challenge, the person challenged shall 

217 



23-818 ELECTIONS 

swear to and subscribe an oath administered by one of the judges, which 
oath shall be substantially as follows : 

"I do solemnly swear that I am a citizen of the United States, and 
am an elector of this county and of this precinct where this primary is 
now being held, that I have been and now am identified with the party 
or that it is my intention bona fide to act with the party, and identify 
myself with the same at the ensuing election, and that I have not voted 
at any primary meeting or election of any other political party whose can- 
didates are to be voted for at the next general or special election." 

If the challenged party takes the oath above prescribed he is entitled 
to vote; provided, in case a person taking the oath as aforesaid shall 
intentionally make false answers to any questions put to him by any one of 
the judges concerning his right to vote at such caucus or primary meet- 
ing or election, he shall, upon conviction he deemed guilty of perjury, and 
shall be punished by imprisonment in the penitentiary for term of not 
less than one year nor more than three years. 

History: Ap. p. Sec. 1334, Pol. C. 1895; Collateral References 

amd. Sec. 2, p. 115, L. 1901; re-en. Sec. Elections<S='125; Perjury<S=35. 

537, Rev. C. 1907; re-en. Sec. 627, R. C. M. 09 c.J.S. Elections S91; 70 C.J.S. Per- 

1921. Cal. Pol. C. Sec. 1230. jury § 21. 

26 Am. Jur. 2d 67, Elections, § 237. 

23-818. (628) Fraudulent voting or counting. It shall be unlaAvful for 
any judge of any caucus for primary meeting or primary election to know- 
ingly receive the vote of any person whom he knows is not entitled to vote, 
or to fraudulently or wrongfully deposit any ballot or ballots in the ballot 
box, or take any ballot or ballots from the ballot box of said caucus or pri- 
mary election, or fraudulently or wrongfully mix any ballots with those 
cast at such caucus or primary election, or knowingly make any false 
count, canvass, statement, or return of the ballots cast or vote taken at 
such caucus or primary election. 

History: En. Sec. 1335, Pol. C. 1895; Collateral References 

re-en. Sec. 538, Rev. C. 1907; re-en. Sec. ElectionsO'313. 

628, R. C. M. 1921. 29 C.J.S. Elections § 327. 

23-819. (629) Unlawful interference. No person shall, by bribery or 
other improper means or device, directly or indirectly, attempt to influence 
any elector in the casting of any ballot at such caucus or primary meeting, 
or deter him in the deposit of his ballot, or interfere or hinder any voter 
at such caucus or primary meeting in the full and free exercise of his 
right of sufferage at such caucus or primary meeting. 

History: En. Sec. 1336, Pol. C. 1895; Collateral References 

re-en. Sec. 539, Rev. C. 1907; re-en. Sec. ElectionsC=319. 

629, R. C. M. 1921. 29 C.J.S. Elections § 330. 

Cross-Reference 

Bribery of electors at conventions, pen- 
alty, sec. 94-1418. 

23-820. (630) Penalties. Any person or persons violating any of the 
provisions of this act, except as provided in section 23-817, shall be guilty 
of a misdemeanor, and upon conviction thereof shall be punished by a 

218 



PARTY NOMINATIONS — THE DIRECT PRIMARY 23-901 

fine of not less than fifty dollars, nor more than two hundred and fifty dol- 
lars, or by imprisonment in the county jail not less than three months nor 
more than twelve months, or by both such fine and imprisonment, in the 
discretion of the court. 

History: En. Sec. 3, p. 116, L. 1901; CoUateral References 

re-en. Sec. 540, Rev. C. 1907; re-en. Sec. ElectionsC='323. 

630, R. C. M. 1921. 29 C.J.S. Elections § 355 (1). 

CHAPTER 9 

PARTY NOMINATIONS BY DIRECT VOTE— THE DIRECT PRIMARY 

Section 23-901. Construction of law. 

23-902. Date of holding primary election — purpose. 

23-903. Primary nominating election notices. 

23-904. Application of law to cities and towns. 

23-905. Emergency clause. 

23-906. Counting of ballots. 

23-907. Form of tally sheets— canvass of votes. 

23-908. Pollbooks, precinct register, and tally sheets to be sealed and returned. 

23-909. Political party nominations made exclusively as herein provided. 

23-910. Petitions for nomination to be filed. 

23-911. Form of petition for nomination. 

23-912. Time for filing petitions for nominations. 

23-913. Register of candidates. 

23-914. Register of candidates is public record — disposition of pollbooks, tally 

sheets, ballots, etc. 

23-915. Vacancies in nominations, how filled. 

23-916. Arrangement and notice of nominations. 

23-917. Arrangement of ballots and notice. 

23-918. Supplies printed and furnished by county. 

23-919. Ballots, how arranged, printed and voted. 

23-920. Ofl&cial and sample ballots — preparation and number. 

23-921. Canvass of returns. 

23-922. Duties of county clerk after canvass of vote — state canvass. 

23-923. Error in ballot or count. 

23-924. Secretary of state may send for returns. 

23-925. Penalty for official misconduct. 

23-926. Notice of contest. 

23-927. Service of notice — contest — how heard. 

23-928. Contest — how tried and decided. 

23-929. County and city central committeemen, how elected. 

23-930. Repealed. 

23-931. Penalty for violation of law. 

23-932. Repealed. 

23-933. Penalty for bribery, etc. 

23-934. General penal laws applicable. 

23-935. Forgery and suppression of nomination papers. 

23-936. General laws applicable to this enactment. 

23-901. (631) Construction of law. Whenever the provisions of this 
law in operation prove to be of doubtful or uncertain meaning, or not suf- 
ficiently explicit in directions and details, the general laws of Montana, and 
especially the election and registration laws, and the customs, practice, 
usage, and forms thereunder, in the same circumstances or under like con- 
ditions, shall be followed in the construction and operation of this law, to 
the end that the protection of the spirit and intention of said laws shall be 
extended so far as possible to all primary elections, and especially to aU 
primary nominating elections provided for by this law. If this proposed law 

219 



23-902 



ELECTIONS 



shall be approved and enacted by the people of Montana, the title of this 
bill shall stand as the title of the law. 



History: En. Sec. 1, Initiative Measure 
Nov. 1912; re-en. Sec. 631, R. C. M. 1921. 
Cal. Pol. C. Sees. 1357-1380. 

Construction of Statutes 

The so-called antifusion statute (123- 
1105, 23-1113 to 23-1116) was not im- 
pliedly repealed by the Primary Election 
Law (23-901 et seq.). State ex rel. Metcalf 
V. Wileman, 49 M 436, 437, 143 P 565. 

Under the rule that where two statutes 
are enacted at the same time on the same 
subject, they must be construed together 
and effect given to both if possible, held 
that the provisions of the Primary Law 
(23-901 et seq.) and the Corrupt Prac- 
tices Act (94-1427 et seq.), in so far as 
they refer to election contests, provide a 
complete and workable system, omitting 
section 30 of the Primary Laws (omitted 



from code). Wilkinson v. La Combe, 59 M 
518, 520, 197 P 836. 

Nominees to be placed on ballot at spe- 
cial election to fill vacancy resulting from 
death of representative in Congress must 
be chosen pursuant to section 23-801 or 
section 23-804 and not by special primary 
nominating election. Bottomly v. Ford, 117 
M 160, 162, 157 P 2d 108. 

References 

Cadle v. Town of Baker, 51 M 176, 
181, 149 P 960; Thompson v. Chapin, 64 
M 376, 383, 209 P 1060; State ex rel. Mills 
V. Stewart, 64 M 453, 464, 210 P 465; 
LaBorde v. McGrath, 116 M 283, 288, 149 
P 2d 913. 



Collateral References 

Elections<S=3l26 (1). 

29 C.J.S. Elections §§ 91, 111. 

23-902. (632) Date of holding primary election — purpose. On the first 
Tuesday of June, preceding any general election not including special elec- 
tions to fill vacancies, municipal elections in towns and cities, irrigation 
district and school elections, at which public officers in this state and in any 
district or county are to be elected, a primary nominating election shall be 
held in accordance with this act in the several election precincts comprised 
within the territorv for which such officers are to be elected at the ensuing 
election, wliich shall be known as the primary nominating election, for the 
purpose of choosing candidates by the political parties, subject to the pro- 
visions of this act, for United States senators and representatives, in Con- 
gress and all other elective state, district and county officers, and delegates 
to any constitutional convention or conventions that may hereafter be 
called, who are to be chosen, at the ensuing election wholly by electors 
within the state, or any subdivision of this state, and also for choosing and 
electing county central committeemen and committeewomen by the several 
parties subject to the provisions of this act. 

History: En. Sec. 2, Initiative Measure Collateral References 

Nov. 1912; re-en. Sec. 632, R. C. M. 1921; Elections©='126 (1). 



amd. Sec. 1, Ch. 118, L. 1925; amd. Sec. 
1, Ch. 3, L. 1927; amd. Sec. 12, Ch. 214, 
L. 1953 (Referendum Measure adopted 
November 2, 1954 effective December 7, 
1954); amd. Sec. 1, Ch. 266, L. 1955; amd. 
Sec. 1, Ch. 274, L. 1959; amd. Sec. 2, Ch. 
156, li. 1965; amd. Sec. 1, Ch. 151, L. 1967. 

References 

Wilkinson v. La Combe, 59 M 518, 
520, 197 P 836; State ex rel. Mills v. Stew- 
art, 64 M 453, 463, 210 P 465; State ex rel. 
Foster v. Mountjoy, 83 M 162, 166, 271 
P 446; State ex rel. Wulf v. McGrath, 
111 M 96, 99, 106 P 2d 183; LaBorde v. 
McGrath, 116 M 283, 288, 149 P 2d 913; 
Bottomly v. Ford, 117 M 160, 164, 157 P 
2d 108. 



29 C.J.S. Elections §§ 91, 111. 

25 Am. Jur. 2d 839, Elections, § 147. 

Determination of controversies within 
political party. 20 ALR 1035 and 169 
ALR 1281. 

Validity of public election as affected 
by fact that it was held at time other 
than that fixed by law. 121 ALR 987. 

Constitutionality, construction, and ap- 
plication of statutes regarding party af- 
filiations or change thereof as affecting 
eligibility to nomination for public office. 
153 ALR 641. 

Power of political party or its officials 
to withdraw nominations. 155 ALR 186. 



220 



PARTY NOMINATIONS — THE DIRECT PRIMARY 23-904 

23-903. (633) Primary nominating election notices. It shall be the 
duty of the county clerk, twenty (20) days before any primary nominating 
election, to prepare printed notices of such election, and mail two of said 
notices to each judge and clerk of election in each precinct: and it shall 
be the duty of the several judges and clerks immediately to post said 
notices in public places in their respective precincts. Said notices shall be 
substantially in the following form : 

PRIMARY NOMINATING ELECTION NOTICE 

Notice is hereby given that on , the 

day of , 19...., at the , in the precinct of 

, Montana, a primary nominating election will be 

held at which the (insert the names of political parties subject to this law) 
Avill choose their candidates for state, district, county, precinct and other 
offices, namely (here name the offices to be filled, including a senator in 
Congress, delegates to any constitutional convention then called, and candi- 
dates for county central committeemen to be elected) ; which election will 
be held at ten o'clock a. m., and will continue until eight o'clock p. m. of 
said day; provided that in precincts having less than one hundred (100) 
registered electors the polls must be opened at one o'clock in the afternoon 
of election day and must be kept open continuously until eight o'clock 
p. m. of said day, when they must be closed ; provided further, that when- 
ever all registered electors in any precinct have voted the polls shall be 
immediately closed. 

Dated this day of , 19 

, county clerk. 

History: En. Sec. 3, Initiative Measure 64 M 453, 463, 210 P 465; State ex rel. 

Nov. 1912; re-en. Sec. 633, E. C. M. 1921; Wulf v. McGrath, 111 M 96, 100, 106 P 

amd. Sec. 3, Ch. 167, L. 1945; amd. Sec. 2, 2d 183. 

Ch. 207. L. 1955. CoUateral References 

References Election8<^=126 (2). 

Wilkinson v. La Combe, 59 M 518, 520, 29 C.J.S, Elections § 117. 
197 P 836; State ex rel. Mills v, Stewart, 

23-904. (634) Application of law to cities and towns. The nomination 
of candidates for municipal offices by the political parties, subject to the 
provisions of this law, shall be governed by this law in all incorporated 
towns and cities of this state having a population of thirty-five hundred and 
upward as shown by the last preceding national or state census. All peti- 
tions by the members of such political parties for placing the names of can- 
didates for nomination for such municipal offices on the primary nominating 
ballots of the several political parties shall be filed with the city clerk of 
said several towns and cities, and it shall be the duty of such officers to 
prepare and issue notices of election for such primary nominating elections 
in like manner as the several county clerks perform similar duties for nom- 
ination by such political parties for county offices at primary nominating 
elections. The duties imposed by this law on the county clerks at primary 
nominating elections are hereby, as to said towns and cities, designated 
to be the duties of the city clerk of said towns and cities as to primary 

221 



23-905 ELECTIONS 

nominating elections of the political parties, subject to the provisions of 
this law, provided, that in cities and towns the primary nominating election 
shall be held on the fourteenth day preceding their municipal elections. If 
no petitions for nomination under this law for any office to be filled at 
the next ensuing annual city election is filed with the city clerk of any 
city, not less than 30 days before the date fixed by law for the holding of 
a primary nominating election, then there shall be no primary election held 
within such city, and the city clerk shall, not less than twenty-five days 
before the date fixed for the holding of the primary nominating election, 
certify to the county clerk of the county in which such city or town is 
situated that no petition for nomination under the direct primary election 
law for any office to be filled at the next ensuing annual election has been 
filed with such city clerk within the time provided by law. Under the 
provisions of this law the lawfully constituted legislative and executive 
authorities of cities and town, within the provisions of this section, shall 
have such power and authority over the establishing of municipal voting 
precincts and wards, municipal boards of judges and clerks of election 
and other officers of their said municipal election, and other matters per- 
taining to municipal primary nominating elections required for such cities 
and towns by this law, such legislative and executive authorities have over 
the same matter at their municipal elections for choosing the public officers 
of said cities and towns. 

History: En. Sec. 4, Initiative Measure References 

Nov. 1912; amd. Sec. 1, Ch. 88, L. 1921; Wilkinson v. La Combe, 59 M 518, 520, 

re-en. Sec. 634, R. C. M. 1921; amd. Sec. 197 P 836; State ex rel. Mills v. Stewart, 
1, Ch. 62, L. 1933. 64 M 453, 464, 210 P 465. 

23-905. (635) Emergency clause. This act is declared to be an emer- 
gency law, and a law necessary for the immediate preservation of the public 
peace and safety. 

History: En. Sec. 3, Ch. 88, L. 1921; Collateral References 

re-en. Sec. 635, R. C. M. 1921. Elections<S=>126 (1). 

29 C.J.S. Elections § 91. 

23-906. (G3G) Counting of ballots. Immediately after the closing of 
the polls at a primary nominating election, the clerks and judges of election 
shall open the ballot boxes at each polling place and proceed to take there- 
from the ballots. Said officers shall count the number of ballots cast by 
eacli political party, at the same time bunching the tickets cast for each po- 
litical party together in separate piles, and shall then fasten each pile sepa- 
rately by means of a brass clip, or may use any means which shall effectu- 
ally fasten each pile together at the top of each ticket. As soon as the 
clerks and judges have sorted and fastened together the ballots separately 
for each political party, then they shall take the tally sheets provided by 
the county clerk and shall count all the ballots for each political party 
separately until the count is completed, and shall certify to the number of 
votes for each candidate for nomination for each office upon the ticket of 
each party. They shall then place the counted ballots in the box. After 
all have been counted and certified to by the clerks and judges they shall 

222 



PARTY NOMINATIONS — THE DIRECT PRIMARY 



23-907 



seal the returns for each of said political parties in separate envelopes, to 
be returned to the county clerk. 

History: En. Sec. 5, Initiative Measure 
Nov. 1912; re-en. Sec. 636, R. C. M. 1921. 



References 

Wilkinson v. La Combe, 59 M 518, 520, 
197 P 836; State ex rel. Mills v. Stewart, 
6-t M 453, 464, 210 P 465; State ex rel. 



Wulf V. McGrath, 111 M 96, 100, 106 P 
2d 183. 

Collateral References 

Election8e='126 (7). 

29 C.J.S. Elections § 119. 

26 Am. Jur. 2d 122, Elections, § 298. 



23-907. (637) Form of tally sheets — canvass of votes. Tally sheets for 
each political party having candidates to be voted for at said primary nom- 
inating election shall be furnished for each voting precinct by the county 
(".lerk, at the same time and in the same manner that the ballots are fur- 
nished and shall be substantially as follows : 

(1) Tally sheet of the primary nominating election for 

(name of political party) held at precinct, in the county 

of on the day of 

19 

The names of the candidates shall be placed on the tally sheets and 
numbered in the order in which they appear on the official and sample 
ballots, and in each case shall have the proper political party designated 
at the head thereof. 

(2) The following shall be the form of the tally sheets kept by the 
judges, and clerks of the primary nominating election under this law, con- 
taining the number and name of each person voted for, the particular office 
for nomination to which each person was voted for, the total number of 
votes cast for each candidate for nomination. The tally or count as it is 
kept by each of the clerks shall be audibly announced as it proceeds, and 
shall be kept in the manner and form as follows : 



No. 


Name of 
Candi- 
date 


Office 


Total 

Vote 

Received 


No. 


Tally 
5 


No. 


Tally 
10 


No. 


Tally 
15 


12 








12 
13 
14 




1 
12 

13 

14 

1 

1 




12 
13 

14 




13 















14 






























The columns for the numbers 12, 13, 14, etc., shall not be over three- 
eighths of an inch wide. The columns for the tallies shall be three-eighths 
of an inch wide, the lines shall be three-eighths of an inch apart ; every 
ten lines the captions of the columns shall be reprinted between double- 
ruled lines in bold-faced small pica, and all figures shall be printed in bold- 
faced small pica. The tally sheets shall conclude with the following form 
of certificate : 



223 



23-908 ELECTIONS 

We hereby certify that at the above primary nominating election and 
polling place each of the foregoing named persons received the number of 
votes set opposite his name, as above set forth, for the nomination for the 
office specified. 

, Chairman. , Clerk. 

(Who kept this sheet.) 

, Judge. , Clerk. 

, Judge. , Clerk. 

(Who kept the other sheet.) 

(3) During the counting of the ballots each clerk shall, with pen and 
ink, keep tally upon one of the above tally sheets, of each political party, 
and shall total the number of tallies and write the total in ink immediately 
to the right of the last tallies for each candidate and also in the columns 
headed "total vote" and shall prepare the certificate thereto above indi- 
cated ; and immediately upon the completion of the count, all the clerks 
shall sign the tally sheets, and each of them shall certify which sheets 
were kept by him; and the chairman and the judges, being satisfied of 
the correctness of the same, shall then sign all of said tally sheets. The 
clerks shall then prepare a statement of that portion of the tally sheets 
showing the number and the name and political party of each candidate for 
nomination and the office and total votes received by each in the precinct, 
and shall prepare the certificate thereto, which statement shall be signed 
by the judges and clerks who complete the count, and shall be immediately 
posted in a conspicuous place on the outside of said polls, there to remain 
for ten days. 

History: En. Sec. 6, Initiative Measure References 

Nov. 1912; re-en. Sec. 637, R. C. M. 1921. Wilkinson v. La Combe, 59 M 518, 520, 

197 P 836; State ex rel. Mills v. Stewart, 
64 M 453, 464, 210 P 465. 

23-908. (638) Pollbooks, precinct register, and tally sheets to be sealed 
and returned. (1) Immediately after canvassing the votes in the manner 
aforesaid, the judges and clerks wlio complete the count, before they sepa- 
rate or adjourn shall enclose the pollbooks in separate covers and securely 
seal the same. They shall also enclose the tally sheets in separate envelopes 
and seal the same securely. They shall also enclose the precinct registers in 
separate envelopes and seal the same securely. They shall also envelope 
all the ballots fastened together, as aforesaid, and seal the same securely; 
and they shall in writing, with pen and ink, specify the contents, and 
address each of said packages upon the outside thereof to the county clerk 
of the county in which the election precinct is situated. These sealed 
packages of counted ballots shall be marked on the outside, showing what 
numbers are contained therein, but once sealed they are not to be opened 
by anyone until so ordered by the proper court. 

(2) When the count is completed, the ballots counted and sealed, and 
enveloped and marked for identification as aforesaid, shall be packed in 
the two ballot boxes, and nothing else shall be put into the boxes. The boxes 
shall then be locked, and the official seal of the board shall be pasted over 
the keyhole and over tlie rim of the lid of the box, so that the box cannot 

224 



PARTY NOMINATIONS — THE DIRECT PRIMARY 23-909 

be opened without breaking the seal. Thereafter neither the county clerk 
nor the canvassers making: the abstracts of the votes shall break the said 
seals upon the ballot boxes, nor shall anyone break the seals on the boxes or 
the ballots, except upon the order of the proper court in case of contest, 
or upon the order of the county board when the boxes are needed for the 
ensuing election. 

History: En. Sec. 7, Initiative Measure References 

Nov. 1912; re-en. Sec. 638, R. C. M. 1921; Wilkinson v. La Combe, 59 M 518, 520, 

amd. Sec. 6, Ch. 64, L. 1959. 197 p gsg. g^ate ox rel. Mills v. Stewart, 

64 M 453, 464, 210 P 465. 

23-909. (639) Political party nominations made exclusively as herein 
provided. Every political party which has cast three per centum (3%) or 
more of the total vote cast for representative in Congress at the next pre- 
ceding general election in the county, district or state for which nomina- 
tions are proposed to be made, shall nominate its candidates for public 
office in such county, district or state, under the provisions of this law, 
and not in any other manner; and it shall not be allowed to nominate any 
candidate in the manner provided by section 23-801. Every political party 
and its regularly nominated candidates, members, and officers, shall have 
the sole and exclusive right to the use of the party name and the whole 
thereof, and no candidate for office shall be permitted to use any word of 
the name of any other political party or organization than that of and by 
which he is nominated. No independent or nonpartisan candidate shall be 
permitted to use any word of the name of any existing political party or 
organization in his candidacy. The names of candidates for public office 
nominated under the provisions of this law shall be printed on the official 
ballots for the ensuing election as the only candidates of the respective 
parties for such public office in like manner as the names of the candidates 
nominated by other methods are required to be printed on such official 
ballots. 

Any political party that did not cast three per centum (3%) or more of 
the total vote cast for representative in Congress, as above, and any new 
political party about to be formed or organized, [may] make nominations 
for public office as provided in section 23-801. 

History: En. Sec. 8, Initiative Measure Collateral References 

Nov. 1912; re-en. Sec. 639, R. C. M. 1921; ^, .. x^,o^ ,-,. 

amd. Sec. 1, Ch. 7, L. 1927; amd. Sec. 2. S'^r. VT?? k^^'cc oi m 

Ch. 266, L. 1955; amd. Sec. 2. Ch. 274 f- P'^ ^''/! oT l^r " « io« 

T igcQ 2o Am. Jur. 2d 814, Elections, § 128. 

., , Constitutionality of statute relating to 

compiler s Note power of committee or officials of polit- 

Tlie bracketed word "may" was inserted leal party. 62 ALR 924. 

by the compiler, as it was omitted in the Extent of power of political party, com- 

1955 aincndmeiit. Such bracketed word mittee or officer to exclude persons from 

was included iu the enactment of tlie 1959 participating in its primaries as voter or 

amendment. candidates. 70 ALR 1501; 88 ALR 473; 

97 ALR 685 and 151 ALR 1121. 

References Political principles or affiliations as 

Wilkinson v. La Combe, 59 IM 518, 520, ground for refusal of government officials 

197 P 83(3; State ex rel. Mills v. Stewart, to take steps necessary to representation 

64 M 453, 464, 210 P 465; Bottomly v. of party or candidate upon official ticket. 

Ford, 117 M 160, 165, 157 P 2d 108. 130 ALR 1471. 

225 



23-910 



ELECTIONS 



Personal liability of public officer for 
breach of duty in respect of election or 
primary election laws. 153 ALR 109. 



Validity of percentage of vote or similar 
rcquiicnicnt for participation by political 
parties in primary election. 70 ALR 2d 
1162. 



DECISIONS UNDER FORMER LAW 



Construction 

^Vllcrc tlie legislature at tlie same ses- 
sion jiasscs two statutes relating to llic 
same subject matter, it may not be pre- 
sumed that by enacting the second, with- 
out making reference to the first, it in- 
tended to limit the scope of the first, but 
the two must be read together and har- 
monized, and under that rule, held that 
chapter 7, Laws of 1927 (this section 
prior to ]035 amendment), and chapter 
12G (23-1001 ct soq.), ])roviding for a 
method of electing presidential electors, 
etc., arc not in irreconcilable conflict. 
State ex rcl. Foster v. Mountjoy, 83 M 
162, 168,271 P44G. 

Independent Party 

Assuming (but not deciding) that an 
existing political party may use the term 
"Independent" in its party name, such 
use cannot deprive another candidate from 
employing that term in designating the 
character of his candidacy for the same 
office, and provision of this section (prior 
to 1927 amendment), i^rohibiting an inde- 
pendent candidate from using any word of 
the name of an existing political party 
has no application in such circumstances. 
State ex rcl. Wheeler v. Stewart, 71 M 
358, 361,230 P 366. 

Presidential Electors Are Candidates for 
Public Office 

Candidates for presidential electors are 
candidates for public office, within the 
meaning of this section (prior to 1955 
amendment), providing for primary elec- 
tions of candidates for public office. State 
ex rel. Foster v. Mountjoy, 83 M 162, 168, 
271 P 446. 

When Party May Nominate Candidates 
by Convention System 

Under chapter 7, Laws of 1927 (this 
section prior to 1955 amendment), a polit- 
ical party Avhich did not cast at least 
three per cent of the total vote cast for 
representative in Congress at the next pre- 

23-910. (640) Petitions for nomination to be filed. (1) Any person 
who shall desire to become a candidate for nomination to any office under 
this law shall send by registered mail, or otherwise, to the secretary of state, 
county clerk, or city clerk, a petition for nomination, signed by himself, 
accompanied by the filing fee hereinafter provided for, and such petition 
shall be filed and shall be conclusive evidence for the purpose of this law 
that such elector is a candidate for nomination by his party. All nominating 

226 



ceding general election, or a new party 
about to be formed, may make nomina- 
tions for public office by the convention 
system provided for by section 23-801 et 
seq. State ex rel. Foster v. Mountjoy, 83 
M 162, 168, 271 P 446. 

On application for writ of mandate to 
compel the secretary of state to place the 
names of the candidates of the Workers 
(Communist) party for presidential elec- 
tors, nominated by it at a mass conven- 
tion, upon the official ballot for the gen- 
eral election to be held on November 6, 
1928, refusal so to do being based on 
the ground that such party was in exist- 
ence in 1924, and therefore could not 
make nominations by convention, held 
that even if it was in existence prior to 
the spring primary of 1928, it was never- 
theless entitled to a place on the ballot 
because it failed to cast three per cent 
of the vote for representative in Congress 
on the last general election, whether that 
election be held to be the one of 1924 or 
of 1926, and therefore could select its 
candidates by convention. State ex rel. 
Foster v. Movmtjoy, 83 M 162, 168, 271 
P 446. 

Whenever it would be impossible or un- 
reasonable for candidates to file and other- 
wise comply with the Primary Nomi- 
nating Election Law (23-901 et seq.) the 
prohibition of this section (prior to 1955 
amendment) would not apply and candi- 
dates could be nominated pursuant to sec- 
tions 23-801 and 23-804. LaBorde v. Mc- 
Grath, 116 M 283, 288, 149 P 2d 913. 

When Party Must Nominate Candidates 
under Primary Election Law 

Whenever the provisions of the Primary 
Nominating Election Law (23-901 et 
seq.) apply, the convention or primary 
meeting methods of making nominations 
provided for in section 23-801, are express- 
ly ruled out and prohibited by this 
section (prior to 1955 amendment). La- 
Borde V. McGrath, 116 M 283, 288, 149 P 
2d 913. 



PAKTY NOMINATIONS — THE DIKEOT PKIMAKY 23-910 

petitions pertaining to congressional, state or district offices to be voted for 
in more than one county, for members of the legislative assembly, and for 
judges of the district court shall be filed in the offices of the secretary of 
state; for county and district offices, to be voted for in one county only, 
and for townsliip and precinct offices, shall be filed in the office of the county 
clerk; and for all city offices in the office of the city clerk. 

The fees required to be paid for filing such petitions shall be as follows: 

For any office with a salary attached of one thousand dollars ($1,000.00) 
or less per annum, ten dollars ($10.00) ; except candidates for the state 
senate and house of representatives shall be fifteen dollars ($15.00). 

For any office witli a salary attached of more than one thousand dollars 
($1,000.00) per annum, one per cent (1%) of total amount of annual salary. 

For the office of county commissioner in counties of the first class, forty 
dollars ($40.00) ; in counties of the second class, thirty-five dollars ($35.00) ; 
in counties of the third class, thirty dollars ($30.00) ; in counties of the 
fourth class, twenty-five dollars ($25.00) ; in all other classes of counties, ten 
dollars ($10.00). 

For the office the compensation of which consists of fees instead of a 
salary, five dollars ($5.00). 

For state, county and precinct committeeman, delegates to national 
conventions and presidential electors no fees shall be required to be paid. 

(2) Any person receiving the nomination by having his name written 
in on the primary ballot, and desiring to accept such nomination, shall file 
with the secretary of state, county clerk, or city clerk, a written declaration 
indicating his acceptance of said nomination within ten (10) days after the 
election at which he receives such nomination, and at the same time he shall 
pay to the officer with whom such declaration of acceptance is filed the fee 
above provided for filing a primary nominating petition for such office, 
provided that such person must receive at least five per cent (5%) of the 
votes cast for such office at the last preceding general election. No candi- 
date receiving a nomination at a primary election as above provided shall 
have his name printed on the official ballot for the general election without 
complying with the provisions of this section. 

History: En. Sec. 9, Initiative Measure Where Deceased Candidate Received 

Nov. 1912; re-en. Sec. 640, R. C. M. 1921; Majority of Votes, Highest Write-in Candi- 
amd. Sec. 1, Ch. 133, L. 1923; amd. Sec. 1, date Held Elected 



Ch. 125, L. 1927; amd. Sec. 1, Ch. 27, L. 
1945; amd. Sec. 4, Ch. 194, L. 1967. 

Resignation of Successful Write-in Can 



Where a candidate for re-election to a 

county office died 24 days before election, 

his death known generally to electors, but 

^,-^VV!f^wr""-i^M ouv-v-caaxui yy iiuc-iii v^aii- j^j^ na^e placcd on ballot and majority 

didate Who Filed Too Late Does Not ,.„^„^ j;„_ i.;™ „ ;.,„ *„ ..^4.^:.. i.:_ 

Create Vacancy 



voted for him supposing to retain his 
widow, appointed to fill the vacancy, un- 
Where a successful write-in candidate til the next general election, a write-in 
at a nominating election failed to file his candidate whom they intended to defeat, 
acceptance within ten days after election receiving the highest vote cast for any liv- 
day, his subsequent resignation did not ing person, held, on his application for 
result in a vacancy Avhich the county writ of mandate to compel the county 
central committee of his party could fill canvassing board to reconvene and cause 
under section 23-929. State ex rel. Wilkin- certificate of election issued to him, that 
son v. McGrath, 111 M 102, IOC P 2d 186. write-in candidate elected and entitled to 

the office. State ex rel. Wolff v. Geurkiuk, 

227 



23-911 



ELECTIONS 



111 M 417, 426, 109 P 2d 1094, 133 ALR 
304. 

Write-in Candidates Must File Within 
Ten Days after "Election" Day 

Construing this section as to when a 
write-in candidate must file written ac- 
ceptance, held, that the term "election" 
means the day of election and not the 
day on Avhich the canvass of the ballots 
was completed, hence a candidate for 
house of representatives who filed accept- 
ance 18 days after election was not enti- 
tled to a writ of mandate to compel the 
county clerk to include his name on the 
general election official ballot. State ex rel. 
Wulf V. McGrath, 111 M 96, 97, 106 P 
2d 183. 



References 

Wilkinson v. La Combe, 59 M 518, 520, 
197 P 830; State ex rel. Mills v. Stewart, 
64 M 453, 464, 210 P 465; State ex rel. 
McHale v, Ayers, 111 M 1, 4, 105 P 2d 
686; Herweg v. Thirty Ninth Legislative 
Assembly of State of Montana, 246 F 
Supp 454. 

Collateral References 

Electionse=126 (4). 

29 C.J.S. Elections §§ 114, 115. 

25 Am. Jur. 2d 862, Elections, § 168. 

Right of signer of petition or remon- 
strance to withdraw therefrom or revoke 
withdrawal, and time therefor. 27 ALR 
2d 604. 



23-911. (641) Form of petition for nomination. The petition for nom- 
ination required by the preceding section shall be substantially in the 
following form : 

To (name and title of ofificer with whom 

petition is to be filed) and to the members of the 

party and the electors of the (state or counties of 

comprising the district or county or city, as the case may be) in 

the State of Montana ; 

I reside at and my post-office 

address is I am a candidate of the party 

for the nomination for the office of at the primary nominat- 
ing election to be lield in the (State of Montana or district, 

or county or city) on the day of , 19...., 

and if I am nominated as the candidate of the party for 

such office I Avill accept the nomination and will not withdraw, and if I am 
elected I will qualify as such officer. 

If I am nominated and elected I will, during my term of office (here 
the candidate, in not exceeding one hundred words, may state any measure 
or principles he especially advocates). 



Signature of Candidate for Nomination. 



Every such petition shall be signed as above by the elector seeking 
such nomination. 



History: En. Sec. 10, Initiative Meas- 
ure Nov. 1912; re-en. Sec. 641, R. C. M. 
1921; amd. Sec. 1, Ch. 133, L. 1923; amd. 
Sec. 1, Ch. 6, L. 1953. 

References 

Wilkinson v. La Combe, 59 M 518, 520, 



197 P 836; State ox rel. Mills v. Stewart, 
64 M 453, 464, 210 P 465; Mulholland v. 
Ayers, 109 M 558, 565, 99 P 2d 234. 

Collateral References 

Elcctions<S='126 (1). 

29 C.J.S. Elections §§ 114, 115. 



23-912. ((J44) Time for filing petitions for nominations. All petitions 
for iioniination under this act fur oflices to be filled by the state at large 
or by any district consisting of more than one (1) county, and nominating 



228 



PARTY NOMINATIONS — THE DIRECT PRIMARY 23-914 

petitions for judges of district courts in districts consisting of a single 
county, shall be filed in tlio office of the secretary of state not later than 
five (5) o'clock p. m. on any day not less than forty (40) days before the 
date of the primary nominating election; and for other offices to be voted 
for in only one (1) county, or district or city, every such petition shall be 
filed with the county clerk or city clerk as the case may be, not later than 
five (5) o'clock p. m. on any day not less than forty (40) days before the 
date of the primary nominating election. 

History: En. Sec. 13, Initiative Measure State ex rel. Bcvan v. Mouutjoy, 82 M 

Nov. 1912; re-en. Sec. 644, R. C. M. 1S21; 594, 2G8 P 558. 
amd. Sec. 2, Ch. 133, L. 1923; amd. Sec. 

1, Ch. 19, L. 1955; amd. Sec. 1, Ch. 38, L. References 

1961. Wilkinson v. La Combe, 59 M 518, 520, 

197 P 836; State ex rel. Mills v. Stewart, 

Computation of Time q^ ^I 453^ 454^ 210 P 465. 

Under section 90-407, the time in which 

an act is to be done must be computed Collateral References 

by excluding the first day and including Elections<S='145. 

the last, the day on which the act is to 29 C.J.S. Elections § 137. 

be done. State ex rel. Burns v. Lacklen, 25 Am. Jur. 2d 8G2, Elections, § 168. 
129 M 243, 284 P 2d 998, 10U2, overruling 

23-913. (645) Register of candidates. The secretary of state, county 
clerk and city clerk shall keep a book entitled "Register of Candidates for 
Nomination at the Primary Nominating Election," and shall enter thereon 
on different pages of the book for different political parties subject to 
the provisions of this law, the title of the office sought and the name and 
residence of each candidate for nomination at the primary election; the 
name of his political party; the date of receiving the petition for nomina- 
tion signed by the candidate ; and such other information as may aid him 
in arranging his official ballot for said primary nominating election. 
Immediately after the canvass of votes cast at a primary nominating election 
is completed, the county clerk, secretary of state or city clerk, as the 
case may be, shall enter in his book marked "Register of Nominations," 
the date of such entry, the name of each candidate nominated, the office 
for which he is nominated, and the name of the party making the nomina- 
tion. 

History: En. Sec. 14, Initiative Meas- References 

ure Nov. 1912; re-en. Sec. 645, R. C. M. Wilkinson v. La Combe, 59 M 518, 520, 

1921; amd. Sec. 1, Ch. 133, L. 1923; amd. 197 P 836; State ex rel. Mills v. Stewart, 

Sec. 2, Ch. 6, L. 1953. 64 M 453, 464, 210 P 465. 

23-914. (646) Register of candidates is public record — disposition of 
poUbooks, tally sheets, ballots, etc. Such registers of candidates for nomi- 
nation, and of nominations and petitions, letters and notices, and other 
writings required by law as soon as filed, shall be public records, and shall 
be open to public inspection under proper regulations; and when a copy 
of any such writing is presented at the time the original is filed, or at any 
time thereafter, and a request is made to have such copy compared and certi- 
fied, the officers with whom such writing was filed shall forthwith compare 
such copy with the original on file, and, if necessary, correct the copy and 
certify and deliver the copy to the person who presented it on payment of 

229 



23-915 ELECTIONS 

his laAvful fees therefor. All such writings, pollbooks, tally sheets, ballots, 
and ballot stubs pertaining to primary nominating elections under the provi- 
sions of this act shall be preserved as other records are for one (1) year 
after the election to which they pertain, at which time, unless otherwise 
ordered or restrained by some court, the county clerk shall destroy the 
ballots and ballot stubs, by fire, without anyone inspecting the same. 

History: En, Sec. 15, Initiative Meas- 197 P 836; State ex rel. Mills v. Stewart, 

ure Nov. 1912; re-en. Sec. 646, B. C. M. 64 M 453, 464, 210 P 465. 

1921; amd. Sec. 1, Ch. 75, L. 1949. Collateral References 

References Electionse='126 (4), (5), (7). 

Wilkinson v. La Combe, 59 M 518, 520, 29 C.J.S. Elections §§ 114, 115, 118, 119. 

23-915. (647) Vacancies in nominations, how filled. The provisions of 
sections 23-810 and 23-811 shall apply to nominations, or petitions for nom- 
inations, made under the provisions of this law, in case of the death of 
the candidate or his removal from the state or his county or electoral dis- 
trict before the date of the ensuing election, but in no other case. In case 
of any such vacancy by death or removal from the state, or from the county 
or electoral district, such vacancy may be filled by the committee which 
has been given power by the political party or this law to fill such vacan- 
cies substantially in the manner provided by said sections 23-810 and 23-811. 

History: En. Sec. 16, Initiative Meas- M 376, 177 P 248, distinguished in 116 
ure Nov. 1912; re-en. Sec. 647, R. C. M. M 283, 291, 149 P 2d 913. 



1921. 



References 



Special Election Wilkinson v. La Combe, 59 M 518, 520, 

Neitlier this section nor section 32 of 197 P 836; State ex rel. Mills v. Stewart, 

the Primary Election Law (23-929) em- 64 M 453, 464, 210 P 465. 

powers a county central committee to r* ^^ *■ ^ t> f 

make an original nomination of a candi- Collateral References 

date to an office to be filled at a special Elections<S='146, 147. 

election, the officer-elect having died soon 29 C.J.S. Elections §§ 93-95. 

after election and before induction into 25 Am. Jur. 2d 825, Elections, § 137. 

office. State ex rel. Smith v. Duncan, 55 

23-916. (G48) Arrangement and notice of nominations. Not more than 
forty days and not less than twenty-five days before the day fixed by law 
for the primary nominating election the secretary of state shall arrange, in 
the manner provided by this law, for the arrangement of the names and 
other information upon the ballots, all the names of and information con- 
cerning all the candidates for nomination contained in the valid petitions 
for nomination which have been filed with him in accordance with the pro- 
visions of this law, and he shall forthwith certify the same under the seal of 
the state, and file the same in his oflSce, and make and transmit a duplicate 
thereof by registered letter to the county clerk of each county in the state, 
and he shall also post a duplicate thereof in a conspicuous place in his office 
and keep the same posted until after said primary nominating election has 
taken place. In case of emergency the secretary of state may transmit such 
duplicate by telegraph. 

History: En. Sec. 17, Initiative Meas- 197 P 830; State ex rel. Mills v. Stewart, 

ure Nov. 1912; re-en. Sec. 648, R. C. M. 64 M 453, 404, 210 P 465; State ex rel. 

1921; amd. Sec. 1, Ch. 12, L. 1925. Bevan v. Mouutjoy, 82 M 594, 597, 208 

P 558. 
References 

Wilkinson v. La Combe, 59 M 518, 520, 

230 



PARTY NOMINATIONS — THE DIRECT i^klMARY 23-919 

23-917. (649) Arrangement of ballots and notice. Not more than 
thirty days, and not less than twenty days before the day fixed by law for 
the primary nominating election, the county clerk of each county, or the 
city clerk of each city, as the case may be, subject to the provisions of this 
law, shall arrange in the manner provided by this law for the arrangement 
of the names and other information concerning all the candidates and par- 
ties named in the valid petitions for nomination which have been fded with 
him and those which have been certified to him by the secretary of state, in 
accordance with the provisions of this law; and he shall forthwith certify 
the same under the official seal of his office, and file the same in his office, 
and make and post a duplicate thereof in a conspicuous place in his office, 
and keep the same posted until after the primary nominating election has 
taken place; and he shall forthwith proceed and cause to be printed, ac- 
cording to law, the colored sample ballots and the official ballots required 
by this law. 

History; En. Sec. 18, Initiative Meas- 197 P 836; State ex rel. Mills v. Stewart, 
lire Nov. 1912; re-en. Sec. 649, R. C. M. 64 M 453, 464, 210 P 465. 
1921; amd. Sec. 2, Ch. 12, L. 1925. 

Collateral References 

References Elections<S=5l26 (5). 

Wilkinson v. La Combe, 59 M 518, 520, 29 C.J.S. Elections § 118. 

23-918. (650) Supplies printed and furnished by county. All blanks, 

ballots, pollbooks and other supplies to be used at any primaries shall be 

provided, and all expenses necessarily incurred in the preparation for, or 

conducting such primaries shall be paid out of the treasury of the county 

in the same manner and by the same officers as in the case of elections. 

History: En. Sec. 19, Initiative Meas- 197 P 836; State ex rel. Mills v. Stewart, 

ure Nov. 1912; re-en. Sec. 650, R. C. M. 64 M 453, 464, 210 P 465. 

1921; amd. Sec. 1, Ch. 34, L. 1945. 

Collateral References 

References Elections<S='126 (5), (6). 

Wilkinson v. La Combe, 59 M 518, 520, 29 C.J.S. Elections § 118. 

23-919. (651) Ballots, how arranged, printed and voted. (1) At all 

primary elections there shall be a ballot made up of the several party 
tickets herein provided for, each of which shall be printed on a separate 
sheet of white paper, and all of which shall be the same size, and shall be se- 
curely fastened together at the top and folded, provided that there shall be 
as many separate tickets as there are parties entitled to participate in said 
primary election. 

(2) The names of all candidates shall be arranged alphabetically ac- 
cording to surnames, under the appropriate title of the respective officers, 
and under the proper party designation upon the party ticket, except as 
hereinafter provided. When two or more persons are candidates for nom- 
ination for the same office, it shall be the duty of the county clerk in each 
of the counties of the state to divide the ballot forms provided by the law 
for the county, into sets so as to provide a substantial rotation of the names 
of the respective candidates as follows : 

(3) He shall divide the whole number of ballot forms for the county 
into sets equal in number to the greatest number of candidates for the nom- 

231 






23-919 ELECTIONS 

ination or election to any oflBee, and be shall so arrange said sets that the 
names of the candidates shall, beginning with a form arranged in alpha- 
betical order as provided herein, be rotated by removing one name from the 
top of the list for each nomination or office and placing said name or num- 
ber at the bottom of the list for each successive set of ballot forms; pro- 
vided, however, that no more than one of said sets shall be used in printing 
the ballots for use in any one precinct, and that all ballots furnished for use 
in any precinct shall be of one form and identical in every respect. If any 
elector write upon his ticket the name of any person who is a candidate for 
the same office upon some other ticket than that upon which his name is 
so written this ballot shall be counted for such person only as a candidate 
of the party upon whose ticket his name is written, and in no case shall be 
counted for such person as a candidate upon any other ticket. In case any 
person is nominated as provided in this act, upon more than one ticket, 
he shall within ten (10) days after such election file with the secretary 
of state, county clerk or city clerk, a written document indicating the 
party designation under which his name is to be printed on the official 
ballot for the general election, failing in which, his name shall be printed 
upon the party ticket for which his nominating petition shall have been first 
filed, and no candidate shall have his name printed on more than one ticket; 
provided, however, that in the event a candidate whose name has been 
printed upon the party ticket for which his nominating petition shall have 
been first filed shall fail of nomination upon the ticket upon which his name 
is so printed, his name shall not be printed upon any ballot under any 
party designation; and provided further that nothing in this act shall 
preclude any elector from having his name printed upon the ballot as an 
independent candidate. 

(4) The ballots with the endorsements shall be printed on white paper 
in substantially the forms of the Australian ballot, used in general elections, 
except that the candidates of each party shall be printed on a separate 
ticket or sheet. After preparing his ballot the elector shall detach the same 
from the remaining tickets and fold it so that its face will be concealed 
and with official stamp thereon seen. The remaining tickets attached to- 
gether shall be folded in like manner by the elector who shall thereupon, 
without leaving the polling place, vote the marked ballot forthwith, and 
deposit the remaining tickets in the separate ballot box to be marked and 
designated as the blank ballot box. Immediately after the canvass, the 
judges of election shall, without examination, destroy the tickets deposited 
in the blank ballot box. 

History: En. Sec. 20, Initiative Meas- Collateral References 

ure Nov. 1912; re-en. Sec. 651, R. C, M, Elections<S=5l26 (5), (6). 

1921; amd. Sec. 1, Ch. 133, L, 1923; amd. 29 CJ.S, Elections 8 118, 

Sec, 1, Ch, 14, L. 1927; amd. Sec. 1, Ch. 

67, L. 1929. Constitutionality of statute relating to 

election ballots as regards place or num- 

References Ijcr of appearances on the ballots of names 

Wilkinson v. La Combe, 59 M 518, 520, of candidates. 78 ALE 398. 

11)7 P 836; State ex rel. Mills v. Stewart, Name or form of name to be used in 

64 M 453, 464, 210 P 465; State ex rel. designating candidate on election ballot. 

McHale v. Ayers, 111 M 1, 4, 105 P 2d 93 ALE 911. 

686; State ex rel, Wulf v, McGrath, 111 

M 96, 98, 106 P 2d 183, 

232 



PARTY NOMINATIONS — THE DIRECT PRIMARY 23-921 

23-920. (652) Oflacial and sample ballots— preparation and number. 

There sliall be printed and furui.slied for eueJi election precinct u number of 
ballots equal to the number of voters registered in such voting precinct and 
entitled to vote as such primary nominating election. 

If any political party shall desire sample ballots its political committee 
may order the same from the county clerk or city clerk who sliall collect 
from such committee an amount sufficient to pay the co.st of printing such 
sample ballots, and such sample ballots after being printed, shall, on the 
written order of the clerk, be delivered to the committee ordering the .same, 
but no such sample ballot shall be printed except on the order of the county 
or city clerk. The sample ballots shall be duplicate impressions of the 
official ballots to be voted, but in no case shall they be white, nor shall said 
sample ballots have perforated stubs, nor shall they have the same margin 
either at the top or sides or bottom as the official ballots have, or nearer 
thereto than twelve points, and the names of the candidates on the tickets 
composing the same shall not be rotated as required for the official ballots, 
but shall be impressions of the tickets belonging to lot 1 of each party. 

History: En. Sec. 21, Initiative Meas- Collateral References 

ure Nov. 1912; re-en. Sec. 652, R. C. M. EIectionsO=>126 (5). 

1921; amd. Sec. 1, Ch. 133, L. 1923. 09 c.j.S. Elections § 118. 

References ^^ ^™- J"'"- ^d 82, Elections, § 254. 

Wilkinson v. La Combe, 59 M 518, 520, 
197 P 836; State ex rel. Mills v. Stewart, 
64 M 453, 464, 210 P 465. 

23-921. (654) Canvass of returns. (1) On the third day after the 
close of any primary nominating election, or sooner if all the returns be re- 
ceived, the county clerk, taking to his assistance two justices of the peace of 
the county of different political parties, if practicable, or two members of 
the board of county commissioners of the county of different political par- 
ties, if possible, or one justice of the peace and one member of the board of 
county commissioners of the county of different political parties, if prac- 
ticable, shall proceed to open said returns and make abstracts of the votes. 
Such abstracts of votes for nominations for governor and for senator in 
Congress shall be on one separate sheet for each political party, and shall be 
immediately transmitted to the secretary of state in like manner as other 
election returns are transmitted to him. Such abstract of votes for nomina- 
tion of each party for lieutenant governor, secretary of state, attorney gen- 
eral, state auditor, superintendent of public instruction, railroad com- 
missioners, clerk of the supreme court, state treasurer, justices of the 
supreme court, members of Congress, judges of the district court, and mem- 
bers of the legislative assembly, shall be on one sheet, separately for each 
political party, and shall be forthwith transmitted to the secretary of state, 
as required by the following section. 

(2) The abstract of votes for county and precinct offices shall be on 
another sheet separately for each political party ; and it shall be the duty of 
said clerk immediately to certify the nomination for each party and enter 
upon his register of nominations the name of each of the persons having 
the highest number of votes for nomination as candidates for county, and 
precinct offices, respectively, and to notify by mail each person who is so 

233 



23-922 ELECTIONS 

nominated; provided, that when a tie shall exist between two or more per- 
sons for the same nomination by reason of said two or more persons having 
an equal and the highest number of votes for nomination by one party to 
one and the same office, the county clerk shall give notice to the several 
persons so having the highest and equal number of votes to attend at his 
office at a time to be appointed by said clerk, who shall then and there 
proceed publicly to decide by lot which of the persons so having an equal 
number of votes shall be declared nominated by his party ; and said clerk 
shall forthwith enter upon his register of nominations the name of the per- 
sons thus duly nominated, in like manner as though he had received the 
highest number of the votes of his party for that nomination; and it shall 
be the duty of the county clerk of every county, on receipt of the returns 
of any general primary nominating election, to make out his certificate 
stating therein the compensation to which the judges and clerks of election 
may be entitled for their services, and lay the same before the county board 
of county commissioners at its next term, and the said board shall order the 
compensation aforesaid to be paid out of the county treasury. In all primary 
nominating elections in this state, under the provisions of this law, the 
person having the highest number of votes for nomination to any office 
shall be deemed to have been nominated by his political party for that office. 

History: En. Sec. 23, Initiative Meas- 64 M 453, 464, 210 P 465; State ex rel. 
nre Nov. 1912; re-en. Sec. 654, R. C. M. Wulf v. McGrath, 111 M 96, 98, 106 P 
1921; amd. Sec. 1, Ch. 181, L. 1937; amd. 2d 183. 

■ ' ■ ' * ' Collateral References 

References Elections<S=126 (7). 

Wilkinson v. La Combe, 59 M 518, 520, 29 C.J.S. Elections § 119. 

197 P 836; State ex rel. Mills v. Stewart, 26 Am. Jur. 2d 122, Elections, § 298. 

23-922. (655) Duties of county clerk after canvass of vote — state can- 
vass. The county clerk, immediately after making the abstracts of votes 
given in his county shall make a copy of each of said abstracts and trans- 
mit it by mail to the secretary of state, at the seat of government; and it 
shall be the duty of the secretary of state, in the presence of the governor 
and the state treasurer, to proceed within fifteen days after the primary 
nominating election, and sooner, if all returns be received, to canvass the 
votes given for nomination for governor, senator in Congress, lieutenant 
governor, attorney general, superintendent of public instruction, railroad 
commissioners, secretary of state, state treasurer, state auditor, justices of 
the supreme court, clerk of the supreme court, members of Congress, judges 
of the district court, senators and representatives, and all other officers to 
be voted for by the people of the state, or of any district comprising more 
than one county ; and the governor shall grant a certificate of nomination to 
the person having the highest number of votes for each office, and shall issue 
a proclamation declaring the nomination of each person by his party. In 
case there shall be no choice for nomination for any office by reason of 
any two or more persons having an equal and the highest number of votes 
of his party for nomination for either of said offices, the secretary of 
state shall immediately give notice to the several persons so having the 
highest and equal number of votes to attend at his office, either in person 
or by attorney, at a time to be appointed by said secretary, who shall 

234 



PARTY NOMINATIONS — THE DIRECT PRIMARY 23-924 

then and there proceed to publicly decide by lot which of said persons 
so having an equal number of votes shall be declared duly nominated by his 
party; and tlie governor shall issue his proclamation declaring the nomina- 
tion of such person or persons, as above provided. 

History: En. Sec. 24, Initiative Meas- 6i M 453, 4G4, 210 P 465; Ilcrweg v. 
ure Nov. 1912; re-en. Sec. 655, R. C. M. Thirty Ninth Legislative Assembly of 
1921. State of Montana, 246 F Supp 454. 

References Collateral References 

Wilkinson v. La Combe, 59 M 518, 520, Elections<&=126 (7), 138. 

197 P 836; State ex reh Mills v. Stewart, 29 C.J.S. Elections §§ 119, 135. 

23-923. (656) Error in ballot or count. Whenever it shall appear by 
affidavit to the district court or judge thereof, or to the supreme court or 
judge thereof, that an error or omission has occurred or is about to occur in 
the printing of the name of any candidate or other matter on the official pri- 
mary nominating election ballots or that any error has been or is about 
to be committed in the printing of the ballots, or that the name of any 
person or any other matter has been or is about to be wrongfully placed 
upon such ballots, or that any wrongful act has been performed by any 
judge or clerk of the primary election, county clerk, canvassing board or 
member thereof, or by any person charged with a duty under this act, or 
that any neglect of duty by any of the persons aforesaid has occurred or is 
about to occur, such court or judge shall by order require the officer or 
person or persons charged with the error, wrongful act, or neglect, to forth- 
with correct the error, desist from the wrongful act, or perform the duty 
and do as the court shall order, or show cause forthwith why such error 
should not be corrected, wrongful act desisted from, or such duty or order 
performed. Failure to obey the order of any such court or judge shall be 
contempt. Any person in interest or aggrieved by the refusal or failure 
of any person to perform any duty or act required by this law shall, with- 
out derogation to any other right or remedy, be entitled to pray for a 
mandamus in the district court of appropriate jurisdiction, and any pro- 
ceedings under the provisions of this law shall be immediately heard and 
decided. 

History: En. Sec. 25, Initiative Meas- Collateral References 

ure Nov. 1912; re-en. Sec. 656, R. C. M. Contempt<3=20; Election 3®='126 (5); 

1921. Mandamus<S=>74 (1). 

17 C.J.S. Contempt §12; 29 C.J.S. Elec- 

Keierences ^^^^^ g j-^g. 55 (, j g Mandamus § 142. 

Wilkinson v. La Combe, 59 M 518, 520, 26 Am. Jur. 2d 125, Elections, 8 302. 

197 P 36; State ex rel. Mills v. Stewart, 
64 M 453, 464, 210 P 465. 

23-924. (657) Secretary of state may send for returns. If the returns 
and abstracts of the primary nominating election of any county in the state 
shall not be received at the office of the secretary of state within twelve days 
after said election, the secretary of state shall forthwith send a messenger 
to the county board of such county, whose duty it shall be to furnish said 
messenger with a copy of said returns, and the said messenger shall be 
paid out of the county treasury of such county the sum of twenty cents for 
each mile he shall necessarily travel in going to and returning from said 
county. The county clerk, whenever it shall be necessary for him to do 

235 



23-925 ELECTIONS 

so in order to send said returns and abstracts within the time above limited, 

may send the same b}' telegraph, the message to be repeated, and the county 

shall pay the expense of such telegram. 

History: En. Sec. 26, Initiative Meas- 197 P 836; State ex rel. Mills v. Stewart, 
ure Nov. 1912; re-en. Sec. 657, R. C. M. 64 M 453, 464, 210 P 465. 

''^'- collateral References 

References Elections<S='126 (7). 

Wilkinsou v. La Combe, 59 M 518, 520, 29 C.J.S. Elections § 119. 

23-925. (658) Penalty for oflacial misconduct. If any judge or clerk 

of a primary nominating election, or other officers or persons on whom any 

duty is enjoined by this law, shall be guilty of any willful neglect of such 

duty, or of any corrupt conduct in the discharge of the same, such judge, 

clerk, officer or other person, upon conviction thereof, shall be punished by 

imprisonment in the penitentiary not less than one year nor more than 

five years, or by imprisonment in the county jail not less than three months 

nor more than one year, or by fine not less than one hundred dollars nor 

more than five hundred dollars. 

History: En. Sec. 27, Initiative Meas- 197 P 836; State ex rel. Mills v. Stewart, 

ure Nov. 1912; re-en. Sec. 658, R. C. M. 64 M 453, 464, 210 P 465. 

1921. 

Collateral References 

References Elections©='314. 

Wilkinson v. La Combe, 59 M 518, 520, 29 C.J.S. Elections § 327. 

23-926. (659) Notice of contest. Any person wishing to contest the 
nomination of any other person to any state, county, district, township, 
precinct, or municipal office may give notice in writing to the person whose 
nomination he intends to contest that his nomination will be contested 
stating the cause of such contest briefly, within five days from the time said 
person shall claim to have been nominated. 

History: En. Sec. 28, Initiative Meas- 197 P 836; State ex rel. Mills v. Stewart, 
ure Nov. 1912; re-en. Sec. 659, R. C. M. 64 M 453, 464, 210 P 465; State ex rel. 
1921. Stone v. District Court, 103 M 515, 518, 

63 P 2d 147; State ex rel. Wulf v. McGrath, 

Cross-Reference m m gg^ gg^ io6 P 2d 183. 

Application of Montana Rules of Civil 
Procedure to contest of nomination, see Collateral References 

M. R. Civ. P., Rule 81(a), Table A. Elections'S=>151. 

29 C.J.S. Elections §§ 123, 124, 141, 142. 

References 26 Am. Jur. 2d 153, Elections, § 332. 

Wilkinson v. La Combe, 59 M 518, 520, 

23-927. (660) Service of notice — contest — how heard. Said notice 
shall be served in the same manner as a summons issued out of the district 
court three days before any hearing upon such contest as herein provided 
shall take place, and shall state the time and place that such hearing shall 
be had. Upon the return of said notice served to the clerk of the court he 
shall thereupon enter the same upon his issue docket as an appeal case, 
and the same shall be heard forthwith by the district court ; provided, 
that if the case caimot be determined by the district court in term time, 
within fifteen days after the termination of such primary nominating elec- 
tion, the judge of the district court may hear and determine the same at 
chambers forthwith, and shall make all necessary orders for the trial of 

236 



PARTY NOMINATIONS — THE DIRECT PRIMARY 23-929 

the case and carrying his judgment into effect; provided, that the district 
court provision of this section shall not apply to township or precinct 
officers. In ease of contest between any persons claiming to be nominated 
to any township or precinct office, said notice shall be served in the manner 
aforesaid, and shall be returned to the district court of the county. 

History: En. Sec. 29, Initiative Meas- Collateral References 

lire Nov. 1912; re-en. Sec. 660, R. C. M. Election8<3='151, 154 (1). 

1321. 29 C.J.S. Elections §§ 123, 124, 141, 142, 

NOTE.— Section 30 of this act is omit- 148. 
ted from this code in conformity with 26 Am. Jur. 2d 154, Elections, § 333. 

the decision of the supreme court in Wil- 
kinson V. La Combe, 59 M 518, 520, 197 State court jurisdiction over contest in- 
p 336. volving primary election for member of 

Congress. 68 ALR 2d 1320. 

References 

State ex rel. Mills v. Stewart, 64 M 453, 
464, 210 P 465. 

23-928. (661) Contest — how tried ajid decided. Each party to such 
contest shall be entitled to subpoenas, and subpoenas duces tecum, as in 
ordinary cases of law; and the court shall hear and determine the same 
without the intervention of a jury, in such manner as shall carry into effect 
the expressed will of a majority of the legal voters of the political party, as 
indicated by their votes for such nominations, not regarding technicalities 
or errors in spelling the name of any candidate for such nomination; and 
the county clerk shall issue a certificate to the person declared to be duly 
nominated by said court, which shall be conclusive evidence of the right of 
said person to hold said nomination; provided, that the judgment or de- 
cision of the district court in term time, or a decision of the judge thereof 
in vacation, as the case may be, may be removed to the supreme court in 
such manner as may be provided for removing such causes from the district 
court to the supreme court. 

History: En. Sec. 31, Initiative Meas- Collateral References 

ure Nov. 1912; re-en. Sec. 661, R. C. M. Elections<S=»154 (1-13). 

1921. 29 C.J.S. Elections §§ 120-129, 148. 

References Violation of law as regards time for 

Wilkinson v. La Combe, 59 M 518, 520, keeping polls open as affecting election 

197 P 836; State ex rel. Mills v. Stewart, results. 66 ALR 1159. 

64 M 453, 464, 210 P 465. Costs or reimbursement for expenses in- 

cident to election contests. 106 ALR 928. 

23-929. (662) County and city central committeemen, how elected. 

(1) There shall be elected by each political party subject to the provisions 
of this act, at said primary nominating election, two (2) committeemen, 
one (1) of which shall be a man and one (1) of which shall be a woman, for 
each election precinct, who shall be residents of such precincts. Any elector 
may be placed in nomination for committeeman and committeewoman of 
any precinct by a writing so stating, signed by such elector, and filed in 
the office of the county clerk within the time required in this act for the 
filing of petitions naming individuals as candidates for nomination at the 
regular biennial primary election. The names of the various candidates 
for precinct committeemen and committeewomen of each political party 
shall be printed on the ticket of the same in the same manner as other 

237 



23-929 ELECTIONS 

candidates and the voter shall express his choice among them in like man- 
ner as for such other candidates. 

(2) The committeemen and committeewomen thus elected shall be the 
representatives of their political party in and for such precinct in all ward 
or subdivision committees that may be formed. The committeemen and 
committeewomen elected in each precinct in each county shall constitute the 
county central committee of each of said respective political parties. Those 
committeemen and committeewomen who reside within the limits of any 
incorporated city or town shall constitute ex officio the city central com- 
mittee of each of said respective political parties and shall have the same 
power and jurisdiction as to the business of their several parties in such city 
matters that the county committee have in county matters, save only the 
power to fill vacancies in said committee, which power is vested in the 
county central committee. Each committeeman and committeewoman shall 
hold such position for the term of two (2) years from the date of the first 
meeting of said committee immediately following their election. 

(3) In case of a vacancy happening, on account of death, resignation, 
removal from the precinct, or otherwise, the remaining members of said 
county committee may select a committeeman or committeewoman to 
fill the vacancy and he shall be a resident of the precinct in which the 
vacancy occurs. Said county and city central committees shall have the 
power to make rules and regulations for the government of their respective 
political parties in each county and city, not inconsistent with any of the 
provisions of this law, and not inconsistent with the rules and regulations 
of their state political parties, and to elect two (2) county members of 
the state central committee, one (1) of which shall be a man and one (1) 
of which shall be a woman, and the members of the congressional com- 
mittee, and said committee shall have the same power to fill all vacancies 
and make rules in their jurisdiction that the county committees have to 
fill county vacancies and to make rules. In the event there is no county 
central committee in any county the state central committee of the po- 
litical party having no county central committee in said county shall 
appoint a county central committee therein to consist of committeemen 
and committeewomen as herein provided and said county central com- 
mittee shall have the same powers and duties as county central committee 
elected, as now provided by law. 

(4) Said county and city central committee shall have the power to 
make nomination to fill vacancies occurring among the candidates of their 
respective parties nominated for city or county offices by the primary 
nominating election where such vacancy is caused by death, resignation 
or removal from the electoral district, but not otherwise. 

(5) Prior to the state convention of its political party said committee 
shall meet, and shall organize by electing a chairman and one (1) or more 
vice-chairmen, provided that either the chairman or first vice-chairman 
shall be a woman. They shall also elect a secretary and such other officers 
as they shall think proper. It shall not be necessary for such ofiS.cers to be 
precinct committeemen or committeewomen. They may select managing 
or executive committees and authorize such subcommittees to exercise any 

238 



PARTY NOMINATIONS — THE DIRECT PRIMARY 23-931 

and all powers conferred upon the county, city, state and congressional 
central committees respectively by this law. The chairman of the county 
central committee shall call said central committee meeting and not less 
than four (4) days before the date of said central committee meeting 
shall publish said call in a newspaper published at the county seat and 
shall mail a copy of the call, enclosing a blank proxy, to each precinct 
committeeman. No proxy shall be recognized unless held by an elector 
of the precinct of the committeeman executing the same. 

(6) The county chairman of the party shall preside at the county con- 
vention. No person other than a duly elected or appointed committeeman, 
comraitteewoman, or officer of the committee shall be entitled to participate 
in the proceedings of the committee. No proxy shall be recognized unless 
held by an elector of the precinct of the committeeman or committee- 
woman executing the same. In case of the absence of any committeeman or 
committeewoman and his or her duly appointed proxy, the convention may 
fill the vacancy by appointing some qualified elector of the party, resident 
in the precinct, to represent such precinct in the convention. 

(7) The county convention shall elect delegates and alternate dele- 
gates to attend the state convention under the rules and regulations of 
the state party. The chairman and secretary of the county convention 
shall issue and sign certificates of election of said delegates. 

History: En. Sec. 32, Initiative Meas- Resignation of Successful Write-in Can- 

ure Nov. 1912; re-en. Sec. 662, R. C. M. didate Who Filed Too Late Does Not 

1921; amd. Sec. 1, Ch. 98, L. 1927; amd. Create Vacancy 

?®^^ ^'.oo' 34, L. 1929; amd Sec. 1, Ch. ^here a successful write-in candidate at 

6, L. 1933; amd. Sec. l.Ch. 84, L. 1939; ^ nominating election failed to file his 

«?^ ;.^®*^; ^',3; ^*' i' i^^ ', ^«u o,o^*x' acceptance within ten days after election 

?n;«^^' ^'c ^l' «? ;J®^' ,'«£ ' <iay, his subsequent resignation did not 

1959; amd. Sec. 7, Ch. 156, L. 1965. j-gg^it j^ a vacancy which the county 

-_ . ., _ _,,, _ , ^„ central committee of his party could fill 
Nomination To Fill Vacancy In Office ,,,,^^j. t^is section. State ex rel. Wilkinson 
Neither this section nor section 16 of v. McGrath, 111 M 102, 106 P 2d 186. 
the Primary Election Law (23-915) em- 
powers a county central committee to References 

make an original nomination of a candi- Wilkinson v. La Combe, 59 M 518, 520, 

date to an office to be filled at a special 197 P 836; State ex rel. Mills v. Stewart, 

election, the officer-elect having died soon 64 M 453, 464, 210 P 465. 
after election and before induction into 

office. State ex rel. Smith v. Duncan, 55 Collateral References 

M 376, 177 P 248, distinguished in 116 Elections©=3l21 (1), (2). 

M 283, 291, 149 P 2d 913. 29 C.J.S. Elections §§ 83, 84, 86-88. 

25 Am. Jur. 2d 808, Elections, § 123. 

23-930. (663) Repealed— Chapter 156, Laws of 1965. 

Repeal lection and terms of national committee- 

This section (Sec. 1, Ch. 1, Ex. L. 1921; men was repealed by Sec. 11, Ch. 156, 
Sec. 1, Ch. 159, L. 1925), relating to se- Laws 1965. 

23-931. (665) Penalty for violation of law. If any candidate for nomi- 
nation shall be guilty of any wrongful or unlawful act or acts at a primary 
nominating election which would be sufficient, if such wrongful or unlaw- 
ful act or acts had been done by such candidate at the regular general elec- 
tion, to cause his removal from office, he shall, upon conviction thereof, be 
removed from office in like manner as though such wrongful or unlawful 

239 



23-932 ELECTIONS 

act or acts had been committed at a regular general election, notwithstand- 
ing that he may have been regularly elected and shall not have been guilty 
of any wrongful or unlawful act at the election at which he shall have been 
elected to his office. 

History: En. Sec. 33, Initiative Meas- 197 P 836; State ex rel. Mills v. Stewart, 

ure Nov. 1912; re-en. Sec. 665, R. C. M. 64 M 453, 464, 210 P 465. 

1921. 

Collateral References 

References Of!icers<&=»66. 

Wilkinson v. La Combe, 59 M 518, 520, 67 C.J.S. Officers § 60. 

23-932. (666) Repealed— Chapter 156, Laws of 1965. 

Repeal Sec. 1, Ch. 8, L. 1953), relating to the 

This section (Sec. 34 Initiative Meas- formulation of state party platforms, was 

ure Nov. 1912; Sec. 666, R. C. M. 1921; repealed by Sec. 11, Ch. 156, Laws 1965. 

23-933. (667) Penalty for bribery, etc. Any person who shall offer, or 
with knowledge of the same permit any person to offer for his benefit, any 
bribe to a voter to induce him to sign any nomination paper, and any person 
who shall accept any such bribe or promise of gain of any kind in the nature 
of a bribe as consideration for signing the same, whether such bribe or 
promise of gain in the nature of a bribe be offered or accepted before or 
after such signing, shall be guilty of a misdemeanor, and upon trial and 
conviction thereof be punished by a fine of not less than twenty-five nor 
more than one thousand dollars, and by imprisonment in the county jail of 
not less than ten days nor more than six months. 

History: En. Sec. 35, Initiative Meas- Treating of voters by candidate for of- 

ure Nov. 1912; re-en. Sec. 667, R. C. M. fice as violation of corrupt practices or 
1921. similar acts. 2 ALR 402. 

Constitutionality of Corrupt Practices 

Cross-Reference Acts. 69 ALR 377. 

Bribery at elections, penalty, sec. 94- Construction of statute prohibiting so- 

1423. licitation or acceptance of contributions or 

subscriptions by public officer or employee. 

References 85 ALR 1146. 

Wilkinson v. La Combe, 59 M 518, 520, Statements by candidates regarding sala- 

197 P 836; State ex rel. Mills v. Stewart, ries or fees of office as violation of Corrupt 
64 M 453, 464, 210 P 465. Practices Acts or bribery. 100 ALR 493. 



Collateral References 



Construction and application of provi- 
sions of Corrupt Practices Act regarding 



Elections€^316. contributions by corporations. 125 ALR 

29 C.J.S. Elections § 343. 1029. 

26 Am. Jur. 2d 111, Elections, § 287. 



23-934. (668) General penal laws applicable. Any act declared an 
offense by the general laws of this state concerning caucuses, primaries and 
elections shall also, in like case, be an offense in and as to all primaries as 
herein defined, and shall be punished in the same form and manner as 
therein provided, and all the penalties and provisions of the law as to such 
caucuses, primaries and elections, except as herein otherwise provided, 
sJiall apply in such case with equal force, and to the same extent as though 
fully set forth in this act. 

240 



POLITICAL PARTIES 23-1001 

History: En. Sec. 36, Initiative Meas- 197 P 836; State ex rel. Mills v. Stewart, 

ure Nov. 1912; re-en. Sec. 668, R. 0. M. 64 M 453, 4C4, 210 P 465. 

1921. 

Collateral References 

References Elections<S=309 et seq. 

Wilkinson v. La Combe, 59 M 518, 520, 29 C.J.S. Elections §§ 324, 334. 

23-935. (669) Forgery and suppression of nomination papers. Any 
person who shall forge any name of a signer or a witness to a nomination 
paper shall be guilty of forgery, and on conviction punished accordingly. 
Any person who, being in possession of nomination papers entitled to be 
filed under this act, or any act of the legislature, shall wrongfully either 
suppress, neglect or fail to cause the same to be filed at the proper time in 
the proper office, shall, on conviction, be punished by imprisonment in the 
county jail not to exceed six months, or by a fine not to exceed one thousand 
dollars, or by both such fine and imprisonment in the discretion of the court. 

History: En. Sec. 37, Initiative Meas- References 

ure Nov. 1912; re-en. Sec. 669, R. C. M. Wilkinson v. La Combe, 59 M 518, 520, 

1921. 197 p 836; State ex rel. Mills v. Stewart, 

Cross-Reference ^4 M 453, 464, 210 P 465. 

False nomination certificate, penalty, sec. Collateral References 

94-1412. Elections<S=5309; Forgery<S=»7 (1). 

29 C.J.S. Elections §§ 324, 334; 37 C.J.S. 
Forgery, §§ 18, 20. 

23-936. (670) General laws applicable to this enactment. The pro- 
visions of the laws of this state now in force in relation to the holding of 
elections, the solicitation of voters at the polls, the challenging of voters, 
the manner of conducting elections, of counting the ballots and making 
return thereof, the appointment and compensation of officers of election, and 
all other kindred subjects, shall apply to all primaries, in so far as they are 
consistent with this act, the intent of this act being to place the primary 
under the regulation and protection of the laws now in force as to elections. 

History: En. Sec. 38, Initiative Meas- 64 M 453, 464, 210 P 465; Thompson v. 

ure Nov. 1912; re-en. Sec. 670, R. C. M. Chapin, 64 M 376, 383, 209 P 1060. 

1921. 

Collateral References 

References Elections®=5l26 (1-7). 

Wilkinson v. La Combe, 59 M 518, 520, 29 C.J.S. Elections §§ 111-119, 130-134. 

197 P 836; State ex rel. Mills v. Stewart, 

CHAPTER 10 

POLITICAL PAETIES 

Section 23-1001. Political party defined. 
23-1002 to 23-1007. Repealed. 
23-1008. Payment of convention expenses. 
23-1009. Political parties — authority and power. 

23-1001. (673.1) Political party defined. The term political party as 
used in this act, shall include any party conducted for political purposes, 
which now has or hereafter shall perfect a national organization. 
History: En. Sec. 1, Ch. 126, L. 1927. 29 C.J.S. Elections § 84. 

collateral References '' ^"^^ ''''■ '^ '''' ^''''''^'' § '''■ 

Elections®=>121 (1). 

241 



23-1002 ELECTIONS 

DECISIONS UNDER FORMER LAW 

Construction inonized, and under that rule held that 

Where the legislature at the same ses- ti'.apter 7, Laws of 1927 (23-909, prior to 

sion passes two statutes relating to the 1955 nmendmeut), and chapter 126, Laws 

same subject matter, it may not be pre- of 1927 (23-1001 et scq.) providing for a 

sumed that by enacting the second, with- method of electing prusidential clcctois, 

out making reference to the first, it in- etc., are not in irreconcilable conflict, 

tended to limit the scope of the first, but State ex rel. Foster v. Mountjoy, 83 M 162, 

the two must be read together and har- 166, 271 P -446. 

23-1002. (673.2) Repealed— Chapter 156, Laws of 1965. 

^^P^^l tive December 7, 1954); Sec. 4, Ch. 266, 

This section (Sec. 2, Ch. 126, L. 1927; L. 1955), relating to the selection of presi- 

Sec. 13, Ch. 214, L. 1953 (Keferendum dential electors and party officials, was 

Measure adopted November 2, 1954, effec- repealed by Sec. 11, Ch. 156, Laws 1965. 

23-1003 to 23-1005. (673.3 to 673.5) Repealed— Chapter 266, Laws of 
1955. 

Repeal county conventions, were repealed by Sec. 

These sections (Sees. 3 to 5, Ch. 126, L. 8, Ch. 266, Laws 1955. 
1927; See. 2, Ch. 64, L. 1951), relating to 

23-1006, 23-1007. (673.6, 673.7) Repealed— Chapter 156, Laws of 1965. 



Repeal 



ccmber 7, 1954); Sees. 5, 6, Ch. 266, L. 



These sections (Sees. 6, 7, Ch. 126, L. 1955; Sec. 3, Ch. 274, L. 1959), relating 

1927; Sec. 1, Ch. 55, L. 1953; Sees. 14, 15, to state party conventions, were repealed 

Ch. 214, L. 1953 (Referendum Measure by Sec. 11, Ch. 156, Laws 1965, 
adopted November 2, 1954, effective De- 

23-1008. (673.8) Payment of convention expenses. The entire ex- 
pense of conducting the county and state conventions shall be defrayed 
by the several political parties, except that each elected delegate or alter- 
nate who shall attend any state convention which is held for the purpose 
of nominating presidential electors and participate therein, shall receive 
the sum of eight (8) cents per mile for each mile actually traveled by him 
in going to and returning from said convention, said mileage to be com- 
puted by the shortest practicable route, and to be paid out of the general 
funds of the county in the same manner as other election expenses. 

History: En. Sec. 8, Ch. 126, L. 1927; Collateral References 

amd. Sec. 16, Ch. 214, L. 1953 (Referen- Counties<^153V,; Electionse=128. 

dum Measure, adopted November 2, 1954 20 C..J.S. Couuti'es § 236; 29 C.J.S. Elec- 

effective December 7, 1954) ; amd. Sec. 7, tions S 97 *> ' 

Ch. 266, L. 1955; amd. Sec. 8, Ch. 156, L. ^ * 
1965. 

23-1009. Political parties — authority and power. Each political party 
shall have power to : 

(a) Make its own rules and regulations ; 

(b) Provide for and select its own officers ; 

(c) Call conventions and provide for the number and qualifications 
of delegates thereat ; 

(d) Adopt platforms; 

(e) Provide for selection of delegates to national conventions; 

(f ) Provide for the nomination of presidential electors ; 

(g) Provide for the selection of national committeemen and women; 

242 



BALLOTS, PREPARATION AND FORM 23-1102 

(h) Make nominations to fill vacancies occurring among its candidates 
nominated for ofilces to be filled by the state at large or by any district 
consisting of more than one (1) county where such vacancies are caused 
by death, resignation or removal from the electoral district; 

(i) Perform all other functions inherent in such an organization. 
History: En. Sec. 1, Ch. 156, L. 1965. 

CHAPTER 11 
BALLOTS, PREPAEATION AND FORM 

Section 23-llUl. Ballots, liow printed and distributed. 

23-1102. County clerk to provide printed ballots. 

23-1103. Municipal clerk to act in municipal elections. 

23-1104. Pasters to be printed and distributed where vacancy has been filled. 

23-1105. Form, color and size of ballot. 

23-1106. Names and party of candidates to be printed on ballot. 

23-1107. Arrangement of names — rotation on ballot. 

23-1108. Repealed. 

23-1109. Columns and material to be printed on ballot. 

23-1110. Words to be printed. 

23-1111. Order of placement. 

23-1112. Ballot to facilitate expression of voter's choice. 

23-1113. Blank space and margin. 

23-1114. Stub, size and contents. 

23-1115. Uniformity of size and printing. 

23-1116. County clerk to prepare ballot, when and how. 

23-1117. Number of ballots to be provided for each precinct. 

23-1101. (677) Ballots, how printed and distributed. All ballots cast 
in elections for public officers within the state (except school district offi- 
cers), must be printed and distributed at public expense as provided in 
this chapter. The printing of ballots and cards of instruction for the 
elections in each county, and the delivery of the same to the election 
officers is a county charge, and the expense thereof must be paid in the same 
manner as the payment of other county expenses, but the expense of printing 
and delivering the ballots must, in the case of municipal elections, be a 
charge upon the city or town in which such election is held. 

History: En. Sec. 1, p. 135, L. 1889; Collateral References 

re-en. Sec. 1350, Pol. C. 1895; re-en. Sec. Elections©=163. 

541, Rev. C. 1907; re-en. Sec. 677, E. C. £9 C.J.S. Elections S 155. 

M. 1921. Cal. Pol. 0. Sec. 1185. 

23-1102. (678) County clerk to provide printed ballots. Except as in 
this chapter otherwise provided, it shall be the duty of the county clerk 
of each county to provide printed ballots for every election for public 
officers in which electors or any of the electors within the county participate, 
and to cause to be printed on the ballot the names of all candidates, includ- 
ing candidates for chief justice and associate justices of the supreme court 
and judges of the district courts, whose names have been certified to, or filed 
with the county clerk, in the manner provided in this chapter. Ballots other 
than those printed by the respective county clerks, according to the pro- 
visions of this chapter, must not be cast or counted in any election. Any 
elector may write or paste on his ballot the name of any person for whom 
he desires to vote for any office, but must mark the same as provided in 
section 23-1210. and when a ballot is so marked it must be counted the same 

243 



23-1103 ELECTIONS 

as though the name is printed upon the ballot and marked by the voter. 

Any voter may take with him into the polling place any printed or written 

memorandum or paper to assist him in marking or preparing his ballot 

except as otherwise provided in the chapter. 

History: En. Sec. 1351, Pol. C. 1895; rington v. Crichton, 53 M 388, 391, 164 
re-en. Sec. 542, Rev. C. 1907; re-en. Sec. P 537. 

678, R. C. M. 1921; amd. Sec. 1, Ch, 203, -Ppferencf..? 

L. 1937; amd. Sec. 1, Ch. 81, L. 1939. Cal. x»,cicn;iii,cs ^ , 

Pol C Sec 1196 ■'■" State ex rel. Brooks v. Fransham, 19 

■ ■ ■ ■ M 273, 286, 48 P 1; Sawyer Stores, Inc. v. 

Use of Uniform Ballot Required Mitchell, 103 M 148, 155, 62 P 2d 342. 

By statute a uniform ballot has been 

adopted, to be printed and distributed at Collateral References 

public expense, and no others than those Elections<S='163, 172, 181, 216. 

80 provided can be cast or counted. Har- 29 C.J.S. Elections §§ 155, 161, 180, 205. 

23-1103. (679) Municipal clerk to act in municipal elections. In all 
municipal elections the city clerk must perform all the duties prescribed for 
county clerks in this chapter. 

History: En. Sec. 1352, Pol. C. 1895; Collateral References 

re-en. Sec. 543, Rev. C. 1907; re-en. Sec. Elections<S=»163. 

679, R. C. M. 1921. 29 CJ.S. Elections § 155. 

23-1104. (680) Pasters to be printed and distributed where va-cancy ha5 
been filled. When any vacancy occurs before election day and after the 
printing of the ballots, and any person is nominated according to the pro- 
visions of this code to fill such vacancy, the oflSeer whose duty it is to have 
the ballots printed and distributed must thereupon have printed a requi- 
site number of pasters containing the name of the new nominee, and must 
mail them by registered letter to the judges of election in the various 
precincts interested in such election, and the judges of election, whose 
duty it is made by the provisions of this chapter to distribute the ballots, 
must aflBx such pasters over the name for which substitution is made in 
the proper place on each ballot before it is given out to the elector. 

History: En. Sec. 1353, Pol. C. 1895; Collateral References 

re-en. Sec. 544, Rev. C. 1907; re-en. Sec. Elections<3=>182. 

680, R. C. M. 1921. 29 C.J.S. Elections § 179. 
References 

State ex rel. Scharnikow v. Hogan, 24 
M 397, 403, 62 P 683. 

23-1105. (681) Form, color and size of ballot. Ballots for all general 
elections prepared under the provisions of this chapter must be white in 
color and of a good quality of paper and the names must be printed thereon 
in black ink. The ballots used in any one county must be uniform in size, and 
every ballot must contain the name of every candidate whose nomination 
for any special office specified in the ballot has been certified or filed accord- 
ing to the provisions of law and no other names, except that the names of 
candidates for president and vice-president of the United States shall 
appear on the ballot as provided for by section 23-2101. 

History: Ap. p. Sec. 17, p. 139, L. 1889; 2, Ch. 81, L. 1939; re-en. Sec. 1, Ch. 141, 

amd. Sec. 1354, Pol. C. 1895; amd. Bee. L. 1947; amd. Sec. 1, Ch. 79, L. 1949. Cal. 

1354, p. 117, L. 1901; amd. Sec. 2 Ch. 88, Pol. C. Sec. 1197. 

L. 1907; re-en. Sec. 545, Rev. C. 1907; NOTE.— Sections 23-1105, 23-1113 to 23- 

re-en. Sec. 681, R. C. M. 1921; amd. Sec. 1116 were originally part of section 545, 

244 



BALLOTS, PREPARATION AND FORM 



23-1107 



Eevised Codes, 1907, which has been di- 
vided. 

Cross-References 

Constitutional amendments, separate bal- 
lot prohibited, sec. 37-105. 

Initiative and referendum, ballot, sec. 
37-107. 

Separate ballot for bonds and levies, 
sec. 37-107. 

Construction 

The so-called antifusiou statute, con- 
sisting of this section and sections 23-1113 
to 23-1116, was not impliedly repealed by 
the Primary Election Law of 1913, and 
is not unconstitutional. State ex rel. Met- 
calf V. Wileman, 49 M 436, 437, 143 P 5G5. 



References 

State ex rel. Brooks v. Fransham, 19 M 
273, 286, 48 P 1; State ex rel. Riley v. 
Weston, 31 M 218, 226, 78 P 487; Harring- 
ton V. Crichton, 53 M 388, 391, 164 P 537. 

CoDateral References 

Elections<2=>166 et seq. 

29 C.J.S. Elections § 156 et seq. 

Constitutionality of statute relating to 
election ballots as regards place or num- 
ber of appearances on the ballots of names 
of candidates. 78 ALR 398. 

Name or form of name to be used in 
designating candidate on election ballot. 
93 ALR 911. 



23-1106. Names and party of candidates to be printed on ballot. The 
name of each candidate nominated shall be printed upon the ballot in but 
one place and there shall be added after and directly opposite to the name 
of each candidate nominated, the party or political designation contained in 
the certificate of nomination of such candidate in not more than three (3) 
words, except that the political designation of electors for president and 
vice-president of the United States shall be opposite the whole list thereof, 
and the names of candidates for chief justice, associate justices, and district 
court judges shall each be followed by the following words directly under- 
neath the name of the candidate : "Nominated without party designation." 
It is provided, however, that whenever any person is nominated for the 
same office by more than one party the designation of the party which first 
nominated him shall be placed opposite his name unless he declines in 
writing, one or more of such nominations, or by written election indicates 
the party designation v/hich he desires printed opposite his name ; or if he 
is nominated by more than one party at the same time he shall within the 
time fixed by law for filing certificates of nomination, file with the officer 
with whom his certificate of nomination is required to be filed, a written 
election indicating the party designation which he desires printed opposite 
his name, and it shall be so printed. If he sliall fail or neglect to file such 
an election no party designation shall be placed opposite his name. 

History: En. Sec. 2, Snbd. A, Ch. 81, 1947; amd. Sec. 1, Subd. A, Ch. 79, L. 
L. 1939; re-en. Sec. 1, Subd. A, Ch, 141, L. 1949. 

23-1107. Arrang-ement of names — rotation on ballot. The names of all 
candidates shall be arranged alphabetically according to surnames under 
the appropriate title of the respective offices. It is provided, however, that, 
while all of the candidates for the particular office shall remain together in 
the same box, yet the candidates of the two major parties shall appear on 
the ballot before and above the candidates of the minor parties and inde- 
pendent candidates. For the purpose of designating the candidates of the 
two major parties, they shall be those candidates of the two parties whose 
candidates for governor, excluding independent candidates, have been 
either first or second, (by receiving the highest or next highest number of 
votes cast for the office of governor at the particular election) the greatest 

245 



23-1108 ELECTIONS 

number of times at the next preceding four (4) general elections. In case of a 
tie in the number of first or second places, the determination shall be made 
by going back enough preceding elections to break the tie and no farther. 
All other candidates shall be designated as either independent candi- 
dates or as belonging to minor parties. "When two or more persons are can- 
didates for election to the same office, including presidential and vice- 
presidential candidates, it shall be the duty of the county clerk in each of 
the counties of the state to divide the ballot forms provided by the law for 
the county, into sets so as to provide a substantial rotation of the names of 
the respective candidates as follows : 

He shall divide the whole number of ballot forms for the county into 
sets equal in number to the greatest number of candidates for any office, 
and he shall so arrange said sets that the names of the candidates shall, 
beginning with a form arranged in alphabetical order, (for the purposes of 
rotation of presidential and vice-presidential candidates, the office of presi- 
dent and vice-president, together with presidential electors shall be con- 
sidered as a group and alphabetized under the name of the candidate for 
president), be rotated by removing one name from the top of the list for each 
office and placing said name or number at the bottom of that list for each 
successive set of ballot forms; provided, however, that no more than one 
of said sets shall be used in printing the ballot for use in any one precinct, 
and that all ballots furnished for use in any precinct shall be of one form 
and identical in every respect. It is further provided that candidates of 
the two major parties as hereinabove defined shall be rotated as one group 
and the candidates of the minor parties and independent candidates shall 
be rotated as another group so that the candidates of the two major parties 
for a particular office shall appear on the ballot before and above any can- 
didates of the minor parties or independent candidates. 

History: En. Sec. 2, Subd. B, Ch. 81, L. 1947; amd. Sec. 1, Subd. B, Ch. 79, L. 
1939; amd. Sec. 1, Subd. B, Ch. 141, L. 1949. 

23-1108. Repealed— Chapter 194, Laws of 1967. 

Repeal of legislative candidates, was repealed by 

This section (Sec. 1, Ch. 170, L. 1939), Sec. 13, Ch. 194, Laws 1967. 
relating to the placement on the ballot 

23-1109. Columns and material to be printed on ballot. Each ballot 
shall contain at the top the stub as provided by section 23-1114, and di- 
rectly underneath the perforated line shall be the following words in 
boldface type, "VOTE IN ALL COLUMNS." Each ballot shall contain 
three (3) columns. Notwithstanding the example in section 23-1112, at the 
head of the first column to the left shall be the words, "STATE AND NA- 
TIONAL," in large boldface type, followed by a list of all candidates for 
state and national offices, including supreme court justices, and district 
court judges, and members of the legislative assembly, and such list shall 
progressively continue on to the top of the second column. Following the 
list of state and national candidates shall be the words "COUNTY AND 
TOWNSHIP," in large boldface type and beneath such heading shall be 
listed all candidates for county and township offices and such list shall 
progressively continue on to the top of the third column. Following the list 

246 



BALLOTS, PREPARATION AND FORM 23-1111 

of coimtv and township candidates shall be the words "INTTTATTVES, 
REPERENDUMS, AND CONSTITUTIONAL AMENDMENTS," in hn-'^o 
boldface type, and listed thereunder sliall be all proposed constitutional 
amendments and measures to be voted on by the people at such election 
which do not involve the creation of any state levy, debt or liability. In 
case there are no such measures to be submitted, the said heading entitled 
"INITIATIVES, REFEKENDUMS, AND CONSTITUTIONAL AMEND- 
MENTS," shall be eliminated. Every ballot shall be so printed that all 
matter lieretofore required to be printed on each ballot shall be equally 
apportioned among the three columns as nearly as ])0ssible in the order 
heretofore and hereafter specified. All such measures which involve the 
creation of a state levy, debt or liability shall be submitted to the qualified 
voters upon a separate official ballot in substantial conformity with the form 
provided for by section 23-1112, for the submission of such measures. 

History: En. Sec. 2, Subd. C, Ch. 81, 1949; amd. Sec. 1, Ch. 72, L. 1953; amd. 
L. 1939; amd. Sec. 1, Subd. C, Ch. 141, Sec. 6, Ch. 194, L. 1967. 
L. 1947; amd. Sec. 1, Subd. C, Oh. 79, L. 

23-1110. Words to be printed. At the bottom of the first and second 

column to the left shall be the words, "VOTE IN THE NEXT COLUMN." 

Likewise, at the top of the second column shall be the words "STATE 

AND NATIONAL (continued)" and at the top of the third column shall 

be the words "COUNTY AND TOWNSHIP (continued)" to indicate the 

continuation of the list of candidates under each respective heading to the 

following column if after all the printed matter is equally apportioned 

among the three columns, one column is insufficient to contain all the 

candidates listed under each of the aforementioned headings. 

History: En. Sec. 2, Subd. D, Ch. 81, L. 1947; amd. Sec. 1, Subd. D, Ch. 79, L. 
1939; re-en. Sec. 1, Subd. D, Ch. 141, L. 1949; amd. Sec. 2, Ch. 72, L. 1953. 

23-1111. Order of placement. Notwithstanding the example in section 
23-1112, the order of the placement of the offices on the ballot in the first 
column, or to the left, designated "STATE AND NATIONAL," shall be as 
follows: "President and vice-president, together with the presidential 
electors; United States senator; United States representative in Congress; 
governor; lieutenant governor; secretary of state; attorney general; state 
treasurer; state auditor; railroad and public service commissioners; state 
superintendent of public instruction; clerk of the supreme court; chief 
justice of the supreme court; associate justice or justices of the supreme 
court; district court judges; state senators; members of the house of rep- 
resentatives;" provided, however, that in the years in which any of such 
offices are not to be elected, such offices shall not be designated, but the 
order of those offices to be filled shall maintain their relative positions as 
herein provided. 

In the second column, designated, "COUNTY AND TOWNSHIP," the 
following order of placement shall be observed: "clerk of district court; 
county commissioner ; county clerk and recorder ; sheriff ; county attorney ; 
county auditor." Such other offices to be elected shall be placed following 
the foregoing in the order deemed most appropriate by the county clerk. 

247 



23-1112 



ELECTIONS 



lu the third column constitutional amendments shall come first with refer- 
endum and initiative measures foUowino^. 

History: En. Sec. 2, Subd. E, Ch. 81, L. 1947; amd. Sec. 1, Subd. E, Ch, 79, L. 
L. 1939; re-en. Sec. 1, Subd. E, Ch. 141, 1^149; amd. Sec. 7. Ch. 194, L, 1967. 

23-1112. Ballot to facilitate expression of voter's choice. In case of a 
short term and a long term election for the same office, the long term of- 
fice shall precede the short term. The ballots shall be so printed as to give 
each voter a clear opportunity to designate his choice of candidates by a 
cross mark, (X) in a square at the left of the name of each candidate. 
Above each group of candidates for each office shall be printed the words 
designating the particular office in boldface capital letters and directly 
underneath the words, "VOTE FOR" followed by the number to be elected 
to such office. As nearly as possible the ballot shall be in the following form : 

(Stub hereinafter provided for by Section 23-1114) 
Perforated Line 



VOTE IN ALIi COLUMNS 



STATE AND NATIONAL 



FOR PRESIDENTIAL 
ELECTORS TO VOTE FOR 
PRESIDENT AND VICE- 
PRESIDENT OF THE 
UNITED STATES 

VOTE FOR ONE 



Democrat for President 

of the United 

States 

JOHN DOE 

For Vice-President of 

the United States 

RICHARD ROE 



For Presidential Electors: 
Jane Doe; Helen Doe; 
Pete Moe; Milton Moe. 



(Same with other candi- 
dates for President and 
Vice-President together 
with blank space for 
write-in.) 



FOR UNITED STATES 
SENATOR 

VOTE FOR ONE 



D Frank Roe 
n Guy Doe 



Democrat 
Republican 



(Same for Congressmen, 
Governor, Lieut. Gover- 
nor, Secretary of State, 
Attorney General, State 
Treasurer, State Audi- 
tor, Railroad and Public 
Service Commissioners, 
State Superintendent of 
Public Instruction, and 
Clerk of the Supreme 
Court.) 



Vote In Next Column 



STATE AND NATIONAL 

(Continued) 



FOR CHIEF JUSTICE OF 
THE SUPREME COURT 

VOTE FOR ONE 

D Richard K. O'Doe 

(Nominated without 
party designation.) 

n Tom Row 

(Nominated without 
party designation.) 

D 



(Continued in like man- 
ner for Associate Jus- 
tice and Judges of the 
District Court.) 



COUNTY AND TOWNSHIP 

FOR STATE SENATOR 

VOTE FOR ONE 



D Bill Doe 

n John Roe 

n 



Republican 
Democrat 



FOR MEMBER OF THE 

HOUSE OF KEPRESENT- 

ATIVES 

VOTE FOR TWO 



n Al Johnson 
n Jim Sparks 
D Jack Smith 
n Dan Martin 

D 

D 



Republican 
Democrat 

Republican 
Democrat 



Vote In Next Column 



COUNTY AND TOW^NSHIP 
(Continued) 

(Continued in like man- 
ner for all County and 
Township Officers.) 



INITIATIVES, REFEREN- 
DLMS AND CONSTITU- 
TIONAL AMEND.MENTS 



CONSTITUTIONAL 
AMENDMENTS 



n For the Amendment 

D Against the Amendment 



REFERENDUM NO. 1 



Q For Referendum No. 1 

n Against Referendum 
No. 1 



INITIATIVE NO. 1 



D For Initiative No. 1 

D Against Initiative No. 1 



248 



BALLOTS, PREPARATION AND FORM 23-1115 

History: En. Sec. 2, Subd. F, Cli. 81, L. Cross-Reference 

1939; re-en. Sec. 1, Subd. F, Ch. 141, L. Legislative candidates to be listed un- 

1947; amd. Sec. 1, Subd. F. Ch. 79, L. ^^^r "State and National" column, not- 
1949; amd. Sec. 3, Ch. 72, L. 1953. withstanding this section, sees. 23-1109, 

23-1111. 

23-1113. (683) Blank space and margin. Below the names of candi- 
dates for each office there must be left a blank space large enough to con- 
tain as many written names of candidates as there are persons to be elected. 
There must be a margin on each side of at least half an inch in width, and a 
reasonable space between the names printed thereon, so that the voter 
may clearly indicate, in the way hereinafter provided, the candidate or 
candidates for whom he wishes to cast his ballot. 

History: Ap. p. Sec. 17, p. 139, L. 1889; Collateral References 

amd. Sec. 1354, Pol. C. 1895; amd. Sec. Eleetionse=5l70. 

1354, p. 117, L. 1901; amd. Sec. 2, Ch. 88, 29 C.J.S. Elections § 156. 

L. 1907; re-en. Sec. 545, Rev. C. 1907; re- 
en. Sec. 683, R. C. M. 1921. Cal. Pol. C. 
Sec. 1197. 

23-1114. (684) Stub, size and contents. The ballot shall be printed on 
the same leaf with a stub, and separated therefrom by a perforated line. 
The part above the perforated line, designated as the stub, shall extend tJie 
entire width of the ballot, and shall be of sufficient depth to allow the fol- 
lowing instructions to voters to be printed thereon, such depth to be not 
less than two inches from the perforated line to the top thereof, upon the 
face of which stub shall be printed, in type known as brevier capitals, 
the following: "This ballot should be marked with an 'X' in the square 
before the name of each person or candidate for whom the elector intends 
to vote. In cases of a ballot containing a constitutional amendment, or 
other question to be submitted to a vote of the people, by marking an 'X' 
in the square before the answer of the question or amendment submitted. 
The elector may write in the blank spaces, or paste over another name, 
the name of any person for whom he wishes to vote, and vote for such 
person by marking an 'X' in the square before such name." On the back 
of the stub shall be printed or stamped by the county clerk, or other of- 
ficer whose duty it is to provide the ballots, the consecutive number of 
the ballot, beginning with number "1," and increasing in regular numeri- 
cal order to the total number of ballots required for the precinct. 

History: Ap. p. Sec. 17, p. 139, L. 1889; Collateral References 

amd. Sec. 1354, Pol. C. 1895; amd. Sec. Elections<®='168, 176. 

1354, p. 117, L. 1901; amd. Sec. 2, Ch. 88, 29 C.J.S. Elections §§ 159, 171. 

L. 1907; re-en. Sec. 545, Rev. C. 1907; re- 
en. Sec. 684, R. C. M. 1921. Cal. Pol. C. 
Sec. 1197. 

23-1115. (685) Uniformity of size and printing. All of the official 
ballots of the same sort, prepared by any officer or board for the same 
balloting place, shall be of precisely the same size, arrangement, quality 
and tint of paper, and kind of type, and shall be printed in black ink of 
the same tint, so that when the stubs numbered as aforesaid shall be de- 
tached therefrom, it shall be impossible to distinguish any one of the bal- 

249 



23-1116 ELECTIONS 

lots from the other ballots of the same sort, and the names of all candidates 
printed upon the ballots shall be in type of the same size and character. 

History: Ap. p. Sec. 17, p. 139, L. Collateral References 

1889; amd. Sec. 1354, Pol. C. 1895; amd. Elcctions<S=>166. 

Sec. 1354, p. 117, L. 1901; amd. Sec. 2, Cli. 29 C.J.S. Elections § 156. 

88, L. 1907: re-en. Sec. 545, Rev. C. 1907; 26 Am. Jur. 2d 38, Elections, § 205. 
re-en. Sec. 685, R. C. M. 1921. Cal. Pol. C. 
Sec. 1197. 

23-1116. (GS6) County clerk to prepare ballot, when and how. When- 
ever the secretary of state has duly certified to the county clerk any ques- 
tion to be submitted to the vote of the people, the county clerk must print 
the ballot in such form as will enable the electors to vote upon the ques- 
tion so presented in tlie manner provided by law. The county clerk must 
also prepare the necessary ballots whenever any question is required by 
law to be submitted to the electors of any locality, and any of the electors 
of the state generally, except that as to all questions submitted to the elec- 
tors of a municipal corporation alone the city clerk must prepare the neces- 
sary' ballots. 

History: Ap. p. Sec. 17, p. 139, L. 1889; Collateral References 

amd. Sec. 1354, Pol. C. 1895; amd. Sec. Elections<2^175. 

1354, p. 117, L. 1901; amd. Sec. 2, Oh. 88, 29 C.J.S. Elections § 170. 

L. 1907; re-en. Sec. 545, Rev. C. 1907; ro- 
en. Sec. 686, R. C. M. 1921. Cal. Pol. C. 
Sec. 1197. 

23-1117. (687) Number of ballots to be provided for each precinct. 

The county clerk must provide for each election precinct in the county 
sufficient ballots for the electors registered in the precinct. If there is no 
registry in the precinct, the county clerk must provide ballots equal to 
the number of electors who voted at the last preceding election in the 
precinct, unless in the judgment of the county clerk a greater number be 
needed, but in no case to exceed one and one-half times as many as the 
number of registered voters in the precinct. He must keep a record in his 
office, showing the exact number of ballots, that are delivered to the 
judges of each precinct. In municipal elections it is the duty of the city 
clerk to provide ballots as specified in this section. 

History: Ap. p. Sec. 1355, Pol. C. 1895; Collateral References 

amd. Sec. 3, Ch. 88, L. 1907; re-en. Sec. ^, .. g^tpo 

546, Rev. C. 1907; re-en. Sec. 687, R. C. M. oo n t o ^^.ff^^o r i^:; 

1921; amd. Sec. 1, Ch. 16, L. 1925; amd. 29 C.J.S. Elections § 155. 

Sec. 9, Ch. 156, L. 1965. Cal. Pol. C. Sec. 
1199. 

CHAPTER 12 

CONDUCTING ELECTIONS— THE POLLS— VOTING AND BALLOTS 

Section 23-1201. Voting, to conimpiicc when and continue liow long. 

23-1202. Time of opening and closing of polls. 

23-1203. Wlien polls for special elections shall open and close. 

23-1204. Proclamation at opening and thirty minutes before closing polls. 

23-1205. Proclamation at closing polls. 

23-1206. Ruflicient booths or compartments must be furnished. 

23-1207. Elector to cast his ballot witliout interference. 

23-1208. Expenses of providing places for election. 

23-1209. Delivery of official ballots to elector. 

250 



CONDUCTING — THE POLLS — VOTING AND BALLOTS 23-1203 

23-1210. Method of voting. 

23-1211. Only one person to occupy booth, and no longer than five minutes. 

23-1212. Spoiled ballot. 

23-1213. Judges may aid disabled elector. 

23-1214. Manner of voting. 

23-1215. Announcement of voter's name. 

23-1216. Putting ballot in box. 

23-1217. Record that person has voted, how kept. 

23-1218. Mnrking precinct register hook when elector has voted — proccdnro. 

23-1219. List of voters. 

23-1220. Grounds of challenge. 

23-1221. Proceedings on challenges for want of identity. 

23-1222. Proceedings on challenges for having voted before. 

23-1223. Proceedings on challenges on ground of conviction of crime. 

23-1224. Challenges, how determined. 

23-1225. Trial of challenges. 

23-1226. If a person refuses to be sworn, vote to be rejected. 

23-1227. Proceedings upon determination of challenges. 

23-1228. List of challenges to be kept. 

23-1201. (688) Voting, to commence when and continue how long. 

Voting may commence as soon as the polls are open, and may be continued 

during all the time the polls remain open. 

History: En. Sec. 1365, Pol. C. 1895; Collateral References 

re-en. Sec. 556, Rev. C. 1907; re-en. Sec. Elections€=>205 

688, R. C. M. 1921. CaJ. Pol. C. Sec. 1224. 29 C.J.S. Elections § 19». 

References 

Maddox v. Board of State Canvassers, 
116 M 217, 223, 149 P 2d 112. 

23-1202. (689) Time of opening and closing of polls. The polls must 
be opened at eight o'clock on the morning of election day and must be kept 
open continuously until eight o'clock p. m. of said day, when the same 
must be closed; provided that in precincts having less than one hundred 
(100) registered electors the polls must be opened at one o'clock in the 
afternoon of election day and must be kept open continuously until eight 
o'clock p. m. of said day, when they must be closed ; provided, further, 
that whenever all registered electors in any precinct have voted the polls 
shall be immediately closed. 

History: Ap. p. Sec. 11, p. 462, Cod. References 

Stat. 1871; re-en. Sec. 11, p. 73, L. 1876; Maddox v. Board of State Canvassers, 

re-en. Sec. 525, 5th Div. Rev. Stat. 1879; 2I6 M 217 2^3 149 P 2d 112 
re-en. Sec. 1017, 5th Div. Comp. Stat. 1887; > - > 

amd. Sec. 1290, Pol. C. 1895; re-en. Sec. Collateral References 

514, Rev. C. 1907; re-en. Sec. 689, R. 0. M. Elections<&=>206-208. 

1921; amd. Sec. 1, Ch. 3, L. 1935; amd. 29 C.J.S. Elections § 198. 

Sec. 1, Ch. 207, L. 1955. CaL PoL C. Sec. 26 Am. Jur. 2d 60, Elections, 8 227. 

1160. '^ 

23-1203. When polls for special elections shall open and close. When- 
ever any special election is held for the purpose of submitting to the quali- 
fied electors of any county, high school district, school district, city or 
town, the question of incurring an indebtedness for any purpose, issuing 
bonds or making a special or additional levy for any purpose, the polls shall 
be open at 12 o'clock noon and shall remain open until 8 o'clock p. m. of 
the same day ; provided, that if any such special election is held on the same 
day as any general, county, school or municipal election or any primary 

251 



23-1204 ELECTIONS 

election and at the same polling places with the same judges and clerks of 

election, then the polls shall be opened and closed at the same hours as 

the polls for sucli general, county, school, municipal or primary election. 

History: En. Sec. 1, Ch. 2, L. 1937. Collateral References 

Elections<&=>206, 208. 
29 C.J.S. Elections § 198. 

23-1204. (690) Proclamation at opening and thirty minutes before 

closing polls. Before the judges receive any ballots they must cause it to 

be proclaimed aloud at the place of election that the polls are open, and 

thirty minutes before the closing of tlie polls proclamation must be made 

that the polls will close in one-half hour. 

History: Ap. p. Sec. 11, p. 462, Cod. amd. Sec. 1291, Pol. C. 1895; re-en. Sec. 

Stat. 1871; re-en. Sec. 11, p. 73, L. 1876; 515, Rev. C. 1907; re-en. Sec. 690, R. C. M 

re-en. Sec. 525, 5th Div. Rev. Stat. 1879; 1921. Cal. Pol. C. Sec. 1163. 
re-en. Sec. 1017, 5tli Div. Comp. Stat. 1887; 

23-1205. (691) Proclamation at closing polls. "When polls are closed, 

that fact must be proclaimed aloud at the place of election; and after such 

proclamation no ballots must be received. 

History: Ap. p. Sec. 11, p. 462, Cod. amd. Sec. 1292, Pol. C. 1895; re-en. Sec. 
Stat. 1871; re-en. Sec. 11, p. 73, L. 1876 
re-en. Sec. 525, 5th Div. Rev. Stat. 1879 
re-en. Sec. 1017, 5th Div. Comp. Stat. 1887 



516, Rev. C. 1907; re-en. Sec. 691, R. C. M. 
1921. Cal Pol. C. Sec. 1164. 



23-1206. (692) Sufficient booths or compartments must be furnished. 

All officers upon wjiom is imposed by law the duty of designating the poll- 
ing places must provide in each polling place designated by them, a 
sufficient number of places, booths, or compartments, each booth or com- 
partment to be furnished with a door or curtain sufficient in character to 
screen the voter from observation, and must be furnished with such sup- 
plies and conveniences as shall enable the elector to prepare his ballot for 
voting, and in which electors must mark their ballots, screened from ob- 
servation, and a guardrail so constructed that only persons within such 
rail can approach within ten feet of the ballot boxes, or the places, booths, 
or compartments herein provided for. The number of such places, booths, 
or compartments must not be less than one for every fifty electors, or frac- 
tion thereof, registered in the precinct. In precincts containing less than 
twenty-five registered voters, the election may be conducted under the pro- 
visions of this chapter without the preparation of such booths or compart- 
ments, as required by this section. 

History: En. Sec. 22, p. 141, L. 1889; Collateral References 

re-en. Sec. 1357, p. 118, L. 1901; re-en. Sec. Elections€=201. 

548, Rev. C. 1907; re-en. Sec. 692, R. C. M. 29 C.J.S. Elections § 195. 

1921. Cal. PoL C. Sec. 1203. 

23-1207. (693) Elector to cast his ballot without interference. (1) No 
person other than electors engaged in receiving, preparing, or depositing 
their ballots, or a person present for the purpose of challenging the vote of 
an elector about to cast his ballot, is permitted to be within said rail; and 
in cases of small precincts where places, booths, or compartments are not 
required, no person engaged in preparing his ballot shall, in any way, be 

252 



CONDUCTING — THE POLLS — VOTING AND BALLOTS 23-1209 

interfered with by any person, unless it be someone authorized by the 
provisions of this chapter to assist him in preparing his ballot; nor shall 
any oflieer of election do any electioneering on election day. No person 
whatsoever shall do any electioneering on election day, within an.v polling 
place, or any building in which an election is being held, or within twenty- 
five feet thereof; said space of twenty-five feet to be protected by ropes 
and kept free of trespassers; nor shall any person obstruct the doors or 
entries thereto, or prevent free ingress to and egress from said building. 
Any election officer, sheriff, constable, or other peace officer is hereby 
authorized and empowered, and it is hereby made his duty, to clear the 
passageway, and prevent such obstruction, and to arrest any person so 
doing. 

(2) No person shall remove any ballot from the polling place before 
the closing of the polls. No person shall show his ballot after it is marked, 
to any person, in such a way as to reveal the contents thereof, or the name 
of the candidate or candidates for whom he has marked his vote; nor 
shall any person solicit the elector to show the same ; nor shall any person, 
except the judge of election, receive from any elector a ballot prepared 
for voting. No elector shall receive a ballot from any other person than 
one of the judges of election having charge of the ballots; nor shall any 
person other than such judge of election deliver a ballot to such elector. 
No elector shall vote, or offer to vote, any ballot except such as he has 
received from the judges of election having charge of the ballots. No 
elector shall place any mark upon his ballot by which it may afterwards 
be identified as the one voted by him. Every elector who does not vote a 
ballot delivered to him by the judges of election having charge of the 
ballots, shall, before leaving the polling place, return such ballot to such 
judges. 

History: Ap. p. Sec. 22, p. 141, L. 1889; References 

re-en. Sec. 1358, Pol. C. 1895; amd. Sec. Lane v. Bailey, 29 M 548, 560, 75 P 191. 

1358, p. 118, L. 1901; re-en. Sec. 549, Rev. '' ' ' 

C. 1907; re-en. Sec. 693, R. 0. M. 1921. Collateral References 

CaL Pol. C. Sec. 1215. Elections<&='211, 227 (5-9), 233, 234. 

Cross-References 2 J^ ^^^■^- Elections §§ 194, 196, 200, 208, 

Disclosing contents of ballot after mark- 26 Am. Jur. 2d 65, Elections, § 234. 

ing, penalty, sec. 94-1414. 

Electioneering by election officials, pen- 
alty, 94-1413. 

23-1208. (694) Expenses of providing places for election. The ex- 
pense of providing such places or compartments, ropes, and guardrails is a 
public charge, and must be provided for in the same manner as the other 
election expenses. 

History: En, Sec. 1359, p. 119, L. 1901; CoUateral References 

re-en. Sec. 550, Rev. 0. 1907; re-en. Sec. Elections<S='201. 

694, R. C. M. 1921. 29 C.J.S. Elections § 195. 

23-1209. (695) Delivery of official ballots to elector. At any election 
the judges of election must designate two of their number whose duty it is 
to deliver ballots to the qualified electors. Before delivering any ballot to 

253 



23-1210 ELECTIONS 

an elector, the said judges must print on the back, and near the top of the 
ballot, with the rubber or other stamp provided for the purpose, the desig- 
nation "official ballot" and the other words on same, as provided for in 
section 23-705 of this code; and the clerks must enter on the poll lists the 
name of such elector and the number of the stub attached to the ballot 
given him. Each qualified elector must be entitled to receive from the 
judges one ballot. 

History: Ap. p. Sec. 23, p. 141, L. the stub — thus leaving the ballot without 

1889; amd. Sec. 1360, Pol. C. 1895; amd. the stamp — did not render the ballot void. 

Sec. 4, Ch. 88, L. 1907; re-en. Sec. 561, Harrington v. Crichton, 53 M 388, 164 P 

Rev. C. 1907; re-eu. Sec. 695, R. C. M. 537. 
1921. 

„ „ ^ References 

Stamping of Ofl&cial Ballot i-oi -c^ v tn nr 

*^ " , ... _, . State ex rel. Brooks v. Fransham, 19 M 

Where ballots had been delivered to 273, 287, 48 P 1; State ex rel. Riley v. Dis- 

electors by the judges of election with ^^..^^ ^^^^^ ^^^ ^ g^g 5gg g^ p ^^ j^g^ 
the official stamp apparently in the place 

in which the law requires it to be, al- Collateral References 

though in reality it was on the stub in- ElectionsC='218. 

stead of on the ballot proper, the act of £9 C.J.S. Elections § 204. 
the judges in removing the stamp with 

23-1210. (696) Method of voting. On receipt of his ballot the elec- 
tor must forthwith, without leaving the polling place and within the guard- 
rail provided, and alone, retire to one of the places, booths, or compart- 
ments, if such are provided, and prepare his ballot. He shall prepare 
his ballot by marking an "X" in the square before the name of the person 
or persons for whom he intends to vote. In case of a ballot containing a 
constitutional amendment, or other question to be submitted to the vote 
of the people, by marking an "X" in the square before the answer of the 
question or amendment submitted. The elector may write in the blank space 
or paste over any other name the name of any person for whom he wishes 
to vote, and vote for such person by marking an "X" before such name. 
No elector is at liberty to use or bring into the polling place any unofficial 
sample ballot. After preparing his ballot the elector must fold it so the 
face of the ballot will be concealed and so that the endorsements stamped 
thereon may be seen, and hand the same to the judges in charge of the 
ballot box, who shall announce the name of the elector and the printed or 
stamped number on the stub of the official ballot so delivered to him, in a 
loud and distinct tone of voice. If such elector be entitled then and there 
to vote, and if such printed or stamped number is the same as that entered 
on the pollbooks as the number on the stub of the official ballot last de- 
livered to him by the ballot judge, such judge shall receive such ballot, 
and, after removing the stub therefrom in plain sight of the elector, and 
without removing any other part of the ballot, or in any way exposing 
any part of the face thereof below the stub, shall deposit each ballot in 
the proper ballot box for the reception of voted ballots, and the stubs in a 
box for detached ballot stubs. Upon voting, the elector shall forthwith 
pass outside the guardrail, unless he be one of the persons authorized to re- 
main within the guardrail for other purposes than voting. 

History: Ap. p. Sec. 24, p. 142, L. 1889; 1361, p. 119, L. 1901; amd. Sec. 5, Ch. 
amd. Sec. 1361, Pol. C. 1895; amd. Sec. 88, L, 1907; re-en. Sec. 552, Rev. C. 1907; 

254 



CONDUCTING — THE POLLS — VOTING AND BALLOTS 23-1211 



re-en. Sec. 696, R. C. M. 1921; amd. Sec. 
7, Ch. 64, L. 1959. Cal. Pol. C. Sec. 1205. 

Acts of Election Officers 

A ballot properly marked, but from 
which the stub has not been detached by 
the ballot judge as required by this section, 
should be counted; a voter is not to be 
disfranchised by the errors or wrongful 
acts of election officers. Carwile v. Jones, 
38 M 590, 599, 101 P 153. 

A ballot bearing the endorsement: 
"Voted by H. and M. (judges election) 
for illegibility of voter," was not void on 
the ground that the reason given for 
assisting the voter was not one recognized 
by law, since section 23-1213 does not re- 
quire the judges to certify the reason for 
assisting an elector, and the words "for 
illegibility of voter" were therefore sur- 
plusage; and in the absence of a showing 
why they gave assistance, it will be pre- 
sumed that they regularly performed their 
official duties. Carwile v. Jones, 38 M 590, 
599, 101 P 153. 

Directory, Not Mandatory — Check Mark 
Counted 

The provision of this section that a 
ballot should be marked by an "X" in 
the square is directory and not mandatory, 
and in the absence of a further provision 
that unless so marked the ballot shall not 
be counted, a ballot upon which the elec- 
tor marked all squares with a check mark 
( V ) instead of an "X" should have been 
counted for contestant, there being noth- 
ing to indicate an attempt to mark the 
ballot for identification purposes. Peter- 
son V. Billings, 109 M 390, 395, 96 P 2d 
922. 

Marking of Ballot 

In an election contest, the court prop- 
erly refused to count for a candidate bal- 
lots marked as follows: (1) Where the 
cross was placed after the candidate's 
name and entirely without his party col- 
umn; (2) where perpendicular lines were 
drawn through the names in one party 
column, but no cross was placed before 
the candidate's name; and (3) where his 
name was written in one party column, 
but no cross marked in the square before 
the name. In neither instance was there 
substantial, or any, compliance with the 
provisions of this section. Carwile v. Jones, 
38 M 590, 595, 101 P 153. 

In an election contest, the court prop- 
erly refused to count a ballot for a candi- 
date which was marked by crossing out all 



the names in other party columns, but 
which failed to show an "X" before his 
name. While the intention of the voter is 
generally a very material consideration, 
he must express his intention substantially 
as indicated by the statute. Carwile v. 
Jones, 38 M 590, 595, 101 P 153. 

Where the crossmark was placed after 
the candidate's name but within his party 
column, the ballot was void, since the 
elector did not substantially comply with 
the requirement of this section relative 
to placing the mark before the name. 
Carwile v. Jones, 38 M 590, 595, 101 P 
153. 

Any mark within the square before 
the candidate's name, which can be said 
to be a crossing of two lines, will answer 
the requirements of the statute that the 
elector must place an "X" in such square; 
and in the absence of anything to indi- 
cate a purpose on his part to identify his 
ballot by the use of a third line within 
the square, a defect in the mark is not 
sufficient to vitiate the ballot. Carwile v. 
Jones, 38 M 590, 595, 101 P 153, explained 
in 109 M 390, 393, 396, 96 P 2d 922. 

Voting Is an Affirmative Act, Vote for 
Deceased Candidate Not Counted as Op- 
posed to Write-in 

The casting of a ballot at an election of 
public officers is an affirmative, not a nega- 
tive act — an act done with intention of 
voting for someone; hence if it is the 
purpose of voters to defeat a certain can- 
didate, that purpose can be accomplished 
only by voting for some person in opposi- 
tion to him, and not by voting for a per- 
son who died some weeks before election 
wdth the expectation that the vote cast 
for him would be counted as opposed 
to the person sought to be defeated; one 
who has died is no longer a person for 
whom, under section 2, article IX of the 
constitution, a voter may cast his ballot. 
State ex rel. Wolff v. Geurkink, 111 M 
417, 426, 109 P 2d 1094, 133 ALE 304. 

Eeferences 

State ex rel. Brooks v. Fransham, 19 M 
273, 292, 48 P 1; Harrington v. Crichton, 
53 M 388, 164 P 537; State ex rel. Eiley 
V. District Court, 103 M 576, 588, 64 P 
2d 115; Maddox v. Board of State Can- 
vassers, 16 M 217, 223, 149 P 2d 112. 

Collateral References 

Elections<S=»219, 221. 

29 C.J.S. Elections §§ 206, 207. 

26 Am. Jur. 2d 65, Elections, § 234. 



23-1211. (697) Only one person to occupy booth, and no longer than 
five minutes. No more than one person must be allowed to occupy any 



255 



23-1212 ELECTIONS 

one booth at one time, and no person must remain in or occupy a booth 
longer than may be necessary to prepare his ballot, and in no event 
longer than five minutes, if the other booths or compartments are occupied. 

History: En. Sec. 25, p. 142, L, 1889; Collateral References 

re-en. Sec. 1362, Pol. C. 1895; re-en. Sec. Election8<&='227 (7), 228. 

553, Rev. C. 1907; re-en. Sec. 697, R. C. M. 99 C.J.S. Elections 8 195. 
1921. Cal. Pol. C. Sec. 1206. 

23-1212. (698) Spoiled ballot. Any elector who by accident or mis- 
take .spoils his ballot, may, on returning said spoiled ballot, receive another 
in place thereof. 

History: En. Sec. 26, p. 142, L. 1889; Collateral References 

re-en. Sec. 1363, Pol. C. 1895; re-en. Sec. Elections<S='218. 

554, Rev. C. 1907; re-en. Sec. 698, R. C. M. 29 C.J.S. Elections § 204. 
1921. Cal. Pol. C. Sec. 1207. 

23-1213. (699) Judges may aid disabled elector. Any elector who de- 
clares to the judges of election, or when it appears to the judges of elec- 
tion that he cannot read or write, or that because of blindness or other 
physical disability lie is unable to mark his ballot, but for no other cause, 
must, upon request, receive the assistance of two of the judges, who shall 
represent different parties, in the marking thereof, and said disabled 
elector may request that any qualified elector whom he designates to the 
judges, and in whom he has trust and confidence, shall also be permitted 
to aid him in the marking of his ballot, and such judges must certify on 
the official register opposite name of such disabled elector that it was so 
marked with their assistance, and indicate the name of the person if any 
of whom he requested and received assistance, and neither the judges nor, 
if such is the case, the person who aided him, must thereafter give informa- 
tion regarding the same. The judges must require such declaration of 
disability to be made by the elector under oath before them, and they are 
hereby authorized to administer the same. No elector other than the one 
who may, because of his inability to read or write, or of his blindness or 
physical disability, be unable to mark his ballot, must divulge to anyone 
within the polling place the name of any candidate for whom he intends 
to vote, or, other than herein specifically allowed, ask or receive the assist- 
ance of any person within the polling place in the preparation of his ballot. 

History: Ap. p. Sec. 27, p. 142, L. 1889; References 

amd. Sec. 1364, Pol. 0. 1895; amd. Sec. Carwile v. Jones, 38 M 590, 597, 101 P 

1364, p. 120, L. 1901; re-en. Sec. 555, Rev. 153. Gervais v. Rolfe, 57 M 209, 212, 187 
C. 1907; re-en. Sec. 699, R. C. M. 1921; p 899, 
amd. Sec. 1, Ch. 32, L. 1959; amd. Sec. 1, 
Ch. 77, L. 1961. Cal. Pol. C. Sec. 1208. Collateral References 

Elections<3=»220. 

29 C.J.S. Elections § 208. 

26 Am. Jur. 2d 68, Elections, § 238. 

DECISIONS UNDER FORMER LAW 

Endorsement of Ballot by Judges amended in 1901, it was necessary to show 

Where it appeared in an election con- that it could not thereby be identified, 

test that a voter's ballot had been en- in order to let in, as secondary evidence, 

dorsed by the judges of election, as re- testimony as to how he voted. Lane v. 

quired by section 1304, Pol. C. 1895, as Bailey, 29 M 548, 560, 75 P 191. 

256 



CONDUCTING — THE POLLS — VOTING AND BALLOTS 23-1217 

23-1214. (700) Manner of voting. No person whomsoever, except a 
judge or judges of election, shall put into the ballot box any ballot, or any 
paper resembling a ballot, or any other thing whatsoever. Any person or 
persons violating the foregoing provision shall be guilty of a misdemeanor. 
Any judge or judges of election who shall knowingly permit a violation 
of any of the provisions in this section set forth shall be guilty of a felony 
and be punishable as in this section hereinbefore specified. The person 
offering to vote must hand his ballot to the judge, and announce his name, 
and in incorporated cities and towns any such person must also give the 
name of the street, avenue, or location of his residence, and the number 
thereof, if it be numbered, or such clear and definite description of the 
place of such residence as shall definitely fix the same. 

History: En. Sec. 1366, Pol. C. 1895; References 

re-en. Sec. 557, Rev. C. 1907; re-en. Sec. Goodell v. Judith Basin County, 70 M 

700, R. C. M. 1921; amd. Sec. 1, Ch. Ill, ooo 033 904 p mo 
L. 1937. Cal, Pol. C. Sec. 1225. ""'"' " ' "" 

Collateral References 

Elections<S=»221, 314. 

29 C.J.S. Elections §§ 207, 327. 

23-1215. (701) Announcement of voter's name. The judges must re- 
ceive the ballot, and before depositing it in the ballot box must, in an 
audible tone of voice, announce the name, and in incorporated towns and 
cities the judges must also announce the residence of the person voting, 
and the same must be recorded on each poUbook. 

History: En. Sec. 1367, Pol. C. 1895; References 

re-en. Sec. 558, Rev. C. 1907; re-en. Sec. Goodell v. Judith Basin County, 70 M 

701, R. C. M. 1921. Cal. Pol. C. Sec. 1226. £23 233 224 P 1110. 

23-1216. (702) Putting ballot in box. If the name be found on the of- 
ficial register in use at the precinct where the vote is offered, or if the 
person offering to vote produce and surrender a proper registry certificate, 
and the vote is not rejected, upon a challenge taken, the judges must im- 
mediately and publicly, in the presence of all the judges, place the ballot, 
without opening or examining the same, in the ballot box. 

History: En. Sec. 1368, Pol. C. 1895; References 

re-en. Sec. 559, Rev. C. 1907; re-en. Sec. Goodell v. Judith Basin County, 70 M 

702, R. C. M. 1921. Cal. Pol. C. Sec. 1227. £22, 233, 224 P 1110. 

23-1217. (703) Record that person has voted, how kept. When the 
ballot has been placed in the box, one of the judges must write the word 
"Voted" opposite the number of the person on the check list for the pre- 
cinct. 

History: En. Sec. 1369, Pol. C. 1895; References 

re-en. Sec. 560, Rev. C. 1907; re-en. Sec. Maddox v. Board of State Canvassers, 

703, R. C. M. 1921. CaL Pol. C. Sec. 1228. 116 M 217, 223, 149 P 2d 112. 

Deposit of Ballot in Ballot Box Collateral References 

Under this section the act of voting is E]ection8<®='216. 

not completed until the ballot is deposited 29 C.J.S. Elections § 205. 

in the ballot box. Goodell v. Judith Basin 
County, 70 M 222, 233, 224 P 1110. 

257 



23-1218 ELECTIONS 

23-1218. (704) Marking: precinct register book when elector has voted 
— procedure. The judges of eleetiou in each precinct, at every general or 
special election, .shall, in the precinct register book, which shall be certified 
to them by the county clerk, mark a cross (X) upon the line opposite to 
the name of the elector. Before any elector is permitted to vote the judges 
of election shall require the elector to sign his name upon one of tlie 
precinct register books, designated by the county clerk for that purpose, 
and in a column reserved in the said precinct books for the signature of 
electors. If the elector is not able to sign his name, he shall be required 
by the judges to produce two freeholders who shall make an affidavit be- 
fore the judges of election, or one of them, in substantially the following 
form : 

The State of Montana, 1 

I ss. 
County of J 

"We, the undersigned witnesses, do swear that our names and signa- 
tures are genuine, and that we are each personally acquainted with 

(the name of the elector), and that we know 

that he is residing at , and that we believe that 

he is entitled to vote at this election, and that we are each freeholders in 
the county," which affidavit shall be filed by the judges, and returned by 
them to the county clerk, wnth the return of the election; one of the 
judges shall thereupon write the elector's name, and note the fact of his 
inability to sign, and the names of the two freeholders who made the affi- 
davit herein provided for. If the elector fails or refuses to sign his name, 
and, if unable to write, fails to procure two freeholders who will take the 
oath herein provided, he shall not be allowed to vote. Immediately after 
the election and canvass of the returns, the judges of election shall deliver 
to the county clerk the copy of said official precinct register, sealed, with 
the election returns and pollbook, which have been used at said election. 

History: En. Sec. 26, Ch. 113, L. 1911; References 

amd. Sec. 26, Ch. 74, L. 1913; amd. Sec. Thompson v. Chapin, 64 M 376, 383, 

26, Ch. 122, L. 1915; re-en. Sec. 704, R. C. 209 P 1060. 
M. 1921. 

NOTE.— The foregoing section appears Collateral References 

as section 23-524. It is also printed here Elections<S='212. 

because of its application to the subject 29 C.J.S. Elections § 197. 
embraced in this chapter. 

23-1219. (705) List of voters. Each clerk must keep a list of persons 
voting, and the name of each person who votes must be entered thereon 
and numbered in the order voting. Such list is known as the pollbook. 

History: En. Sec. 1370, Pol. C. 1895; Collateral References 

re-en. Sec. 561, Rev. C. 1907; re-en. Sec. Elections<>=212. 

705, R. C. M. 1921; amd. Sec. 8, Ch. 64, 29 C.J.S. Elections § 197. 

L. 1959. Cal. Pol. C. Sec. 1229. 

23-1220. (706) Grounds of challenge. Any person offering to vote 
may be orally challenged by any elector of the county, upon either or all of 
the following grounds : 

1. That he is not the person whose name appears on the register or 

check list. 

258 



CONDUCTING — THE POLLS — VOTING AND BALLOTS 23-1224 

2. That he is an idiot or insane person. 

3. That he has voted before that day. 

4. That he has been convicted of a felony and not pardoned. 
History: En. Sec. 1371, Pol. C. 1895; Collateral References 

re-en. Sec. 562, Rev. C. 1907; re-en. Sec. Elect ions<3=5"''3 

706, R. C. M. 1921. Cal. Pol. C. Sec. 1230. 09 c.J.S. EleTtions § 209. 

26 Am. Jur. 2d 67, Elections, § 237. 

23-1221. (707) Proceedings on challenges for want of identity. If the 
challenge is on the ground that he is not the person whose name appears on 
the official register, the judges must tender him the following oath: 

"You do swear (or affirm) that you are the person whose name is en- 
tered on the official register and check list." 

History: En. Sec. 1372, Pol. C. 1895; 
re-en. Sec. 563, Rev. C. 1907; re-en. Sec. 

707, R. C. M. 1921. Cal. Pol. C. Sec. 1231. 

23-1222. (708) Proceedings on challenges for having voted before. 

If the challenge is on the ground that the person challenged has voted 

before that day, the judges must tender to the person challenged this oath : 

"You do swear (or affirm) that you have not before voted this day." 

History: En. Sec. 1373, Pol. C. 1895; 
re-en. Sec. 564, Rev. C. 1907; re-en. Sec. 

708, R. C. M. 1921. Cal. PoL C. Sec. 1234. 

23-1223. (709) Proceedings on challenges on ground of conviction of 
crime. If the challenge is on the ground that the person challenged has 
been convicted of a felony, the judges must tender him the following oath : 

"You do swear (or affirm) that you have not been convicted of a felony." 

History: En. Sec. 1374, Pol. C. 1895; 
re-en. Sec. 565, Rev. C. 1907; re-en. Sec. 

709, R. C. M. 1921. Cal. Pol. C. Sec. 1235. 

23-1224. (710) Challenges, how determined. Challenges upon the 
grounds either: 

1. That the person challenged is not the person whose name appears 
on the official register ; or 

That the person has before voted that day, are determined in favor 
of the person challenged by his taking the oath tendered. 

2. A challenge upon the ground that the person challenged has been 
convicted of a felony and not pardoned must be determined in favor of 
the person challenged on his taking the oath tendered, unless the fact of 
conviction be proved by the production of an authenticated copy of the 
record or by the oral testimony of two witnesses. If the person challenged 
asserts that he has been convicted of a felony and pardoned therefor, he 
must exhibit his pardon or a proper certified copy thereof to the judges, 
and if the pardon be found sufficient, the judges must tender to him the 
following oath: "You do swear that you have not been convicted of any 
felony other than that for which a pardon is now exhibited." Upon taking 
this oath the person challenged must be permitted to vote if otherwise 

259 






23-1225 ELECTIONS I 

qualified, unless a conviction of some other felony be proved, as in this 

section provided for the proof of a conviction. 

History: En. Sec. 1375, Pol. C. 1895; 
re-en. Sec. 566, Rev. C. 1907; re-en. Sec. 

710, R. C. M. 1921. Cal. Pol. C. Sec. 1236. 

23-1225. (711) Trial of challenges. Challenges for causes other than 

those specified in the preceding section must be tried and determined by the 

judges of election at the time of the challenge. 

History: En. Sec. 1376, Pol. C. 1895; 
re-6n. Sec. 667, Rev. C. 1907; re-en. Sec. 

711, R. C. M. 1921. Cal. Pol. C. Sec. 1237. 

23-1226. (712) If a person refuses to be sworn, vote to be rejected. 

If any person challenged refuses to take the oaths tendered, or refuses to 
be sworn and to answer the questions touching the matter of residence, he 
must not be allowed to vote. 

History: En. Sec. 1377, Pol. C. 1895; Collateral References 

re-en. Sec. 568, Rev. C. 1907; re-en. Sec. Election3®=>224. 

712, R. C. M. 1921. Cal. Pol. C. Sec. 1238. 29 C.J.S. Elections § 211. 

23-1227. (713) Proceedings upon determination of challenges. If 

the challenge is determined against the person offering to vote, the ballot 
must, without examination, be destroyed by the judges in the presence of 
the person offering the same; if determined in his favor, the ballot must 
be deposited in the ballot box. 

History: En. Sec. 1378, Pol. C. 1895; Collateral References 

re-en. Sec. 569, Rev. C. 1907; re-en. Sec. Elections<&=>224. 

713, R. C. M. 1921. Cal. Pol. C. Sec. 1242. 29 C.J.S. Elections § 211. 

23-1228. (714) List of challenges to be kept. The judges must cause 
each of the clerks to keep a list showing : 

1. The names of all persons challenged. 

2. The grounds of such challenges. 

3. The determination of the judges upon the challenge. 

History: En. Sec. 1379, Pol. C. 1895; 
re-en. Sec. 570, Rev. 0. 1907; re-en. Sec. 
714. R. C. M. 1921. CaL PoL C. Sec. 1243. 

CHAPTER 13 

VOTING BY ABSENT ELECTORS 

Section 23-1301. Voting by elector when absent from place of residence or physically 

incapacitated from going to polls. 
23-1302(1). Application of absentee or physically incapacitated person for ballot 
23-1302(2). Application of absentee or physically incapacitated person for ballot. 
23-1303. Form of application. 

23-1303.1. Forms and regulations for absentee voting in school district elections. 
23-1304. Transmission of application to county clerk — delivery of ballot. 
23-1305. Duty of clerk to deliver application or ballot. 
23-1306. Mailing ballot to elector — form of return and affidavit. 
23-1307. Marking and swearing to ballot by elector. 
23-1308. Disposition of marked ballot upon receipt by clerk. 
23-1309. Delivery or mailing of ballots to election judges. 
23-1310. Clerk to keep record of ballots and issue certificate. 

260 



VOTING BY ABSENT ELECTORS 



23-1302(1) 



23-1311. 

23-1312. 

23-1313. 
23-1314. 
23-1315. 
23-1316. 

23-1317. 
23-1318. 
23-1319. 
23-1320. 
23-1321. 



Duty of election judges — pollbooks, numbering ballots and rejected 
ballots. 

Voting before election day by prospective absentee or physically in- 
capacitated elector. 

Envelopes containing ballots — deposit in box and rejection of ballot. 

Transmission of ballot by special delivery. 

Voting in person by elector on election day. 

Procedure when elector is present after marking absent or physically 
incapacitated voter ballot. 

Opening of envelopes after deposit. 

False swearing perjury — official misconduct a misdemeanor. 

Voting machines — canvass of votes. 

Duty of elector if present on election day. 

Violation of law by elector or officer outside of state — change of 
venue. 



23-1301. (715) Voting by elector when absent from place of resi- 
dence or physically incapacitated from going to polls. Any qualified elec- 
tor of this state, having complied with the laws in regard to registration, 
who is absent from the county or who is physically incapacitated from at- 
tending the precinct poll of which he is an elector on the day of holding any 
general or special election, or primary election for the nomination of can- 
didates for such general election, or any municipal, school, general, special 
or primary election, may vote at any such election as hereinafter pro- 
vided. 



History: En. Sec. 1, Ch. 110, L. 1915; 
amd. Sec. 1, Ch. 155, L. 1917; re-en. Sec. 
715, R. C. M. 1921; amd. Sec. 1, Ch. 234, 
L. 1943; amd. Sec. 1, Ch. 108, L. 1963. 

Constitutionality 

The Absent Voters Law (23-1301 to 
23-1321) is a valid enactment and not 
open to the objection that in permitting 
a ballot to be delivered to the election 
officers by mail, it violates section 2, article 
IX of the state constitution, by providing 
that an elector shall have resided in the 
state one year immediately preceding the 
election "at which he offers to vote." The 
provision of the constitution does not re- 
quire his personal presence at the polls. 
Goodcll v. Judith Basin County, 70 M 222, 
227, 224 P 1110. 

Improper Delivery Voids Ballots 
Absent voters' ballot delivered by coun- 
ty clerk not to electors personally or by 
mail, but to one engaged in procuring 



electors to apply therefor and request that 
such ballots be delivered to such person, 
were void and could not be voted at ensu- 
ing election. State ex rel. Van Horn v. 
Lyon, 119 M 212, 173 P 2d 891, 895. 

Beferences 

Maddox v. Board of State Canvassers, 
116 M 217, 223, 149 P 2d 112. 

Collateral References 

Elections®=>213. 

29 C.J.S. Elections § 210 (2). 

26 Am. Jur. 2d 70, Elections. § 243. 

Right to vote of person inducted into 
military service under draft act. 129 ALR 
1189. 

Voting by persons in the military serv- 
ice. 149 ALR 1466; 151 ALR 1464; 152 
ALR 1459; 153 ALR 1434; 154 ALR 1459 
and 155 ALR 1459. 

Validity of absentee voters' laws. 97 
ALR 2d 218. 



23-1302(1). (716) Application of absentee or physically incapacitated 
person for ballot. At any time within the period beginning forty-five 
(45) days next preceding such election and ending at 12 noon on the day 
next preceding the day of election, any elector expecting to be absent on 
the day of election from the county in which his voting precinct is situated, 
or any elector in United States service, or any elector who as a result of 
physical incapacity, in all probability will be unable to attend his voting 
precinct poll as made to appear by the certificate of a physician licensed 



261 



23-1302(2) 



ELECTIONS 



under the laws of Montana, plainly stating the nature of the physical in- 
capacit}' of the applicant, and certifying (a) that such incapacity will 
continue beyond the day of the election for which the application is made; 
(b) to the extent of reasonably preventing applicant from going to the 
polls, bodily health considered, may make application to the county clerk 
of such county, or to the city or town clerk, in the case of a municipal, 
general, or primary election, for an official ballot or official ballots to be 
voted at such election as an absent or physically incapacitated voter's 
ballot or ballots. 



History: En. Sec. 2, Ch. 110, L. 1915; 
re-en. Sec. 2, Ch. 155, L. 1917; re-en. Sec. 
716, R. C. M. 1921; amd. Sec. 2, Ch. 234, 
L. 1943; amd. Sec. 1, Ch. 104, L. 1953; 
amd. Sec. 3, Ch. 18, L. 1959; amd. Sec. 2, 
Ch. 124, L. 1963. 

Compiler's Note 

This section was amended twice by the 
1959 legislature. Once by Ch. 18 and once 



by Ch. 216. Chapter 18 was approved by 
the governor, February 6, 1959 wliile 
Chapter 216 was approved Marcli 11, 1959. 
Ncitlier amendment mentioned tlic other 
amendment and in some respects tlie sec- 
tion was amended differently by each 
chapter. TIic section above is as amended 
by Cli. 18. Tiic section as amended by 
Ch. 216 is set out as section 23-1302(2). 



23-1302(2). (716) Application of absentee or physically incapacitated 
person for ballot. At any time witliin forty-five (45) days next preced- 
ing such election, any voter expecting to be absent on the day of election 
from the county in which his voting precinct is situated, for any reason 
whatsoever, or who as a result of physical incapacity, in all probability will 
be unable to attend his voting precinct poll as made to appear by his af- 
fidavit, plainly stating the nature of the physical incapacity of the appli- 
cant, and stating (a) that such incapacity will continue beyond the day of 
the election for which the application is made; (b) to the extent of reason- 
ably preventing applicant from going to the polls, bodily health considered, 
may make application to the county clerk of such county, or to the city or 
town clerk, in the case of a municipal, general, or primary election, for an 
official ballot or official ballots to be voted at such election as an absent 
or physically incapacitated voter's ballot or ballots. 

History: En. Sec. 2, Ch. 110, L. 1915; by Ch. 216. Chapter 18 was approved by 

the governor, February 6, 1959 while 
Chapter 216 was approved March 11, 1959. 
Neither amendment mentioned the other 
amendment and in some respects the sec- 
tion was amended differently by each 
chapter. The section above is as amended 
by Ch. 216. The section as amended by 
Ch. 18 is set out as section 23-1302(1). 



re-en. Sec. 2, Ch. 155, L. 1917; re-en. Sec. 
716, R. C. M. 1921; amd. Sec. 2, Ch. 234, 
L. 1943; amd. Sec. 1, Ch. 104, L. 1953; 
amd. Sec. 1, Ch. 216, L. 1959. 

Compiler's Note 

This section was amended twice by the 
1959 legislature. Once by Ch. 18 and once 



23-1303. (717) Form of application. Application for such ballots 
shall be made on a blank furnished by the county clerk of the county of 
which the applicant is an elector, or the city or town clerk, if it be munici- 
pal, general, special or primary election, and shall be in substantially the 
following form : 

"I, , a duly qualified elector of the 

precinct, in the county of , and 

State of Montana, and am to the best of my knowledge and belief entitled 



262 



VOTING BY ABSENT ELECTORS 



23-1304 



to vote in such precinct in the next election, expecting to be absent from 
said county or, in all probability, to be physically incapacitated from 
going to my precinct poll on the day for holding such election, hereby 
make application for an official ballot to be voted by me at the said elec- 
tion. 



Post-oflfice address to which ballot is to be mailed. 



State of 



ss. 



County of 

On this day of , personally appeared 

before me , who being first duly sworn, 

deposes and says that he is the person who signed the foregoing applica- 
tion, that he has read and knows the contents of same and knows to his 
own knowledge the matters and things therein stated are true. 



» 



This application must be subscribed by the applicant and sworn to be- 
fore some officer authorized to administer oaths, pursuant to the laws of the 
place of execution, and the application shall not be deemed complete 
without this affidavit. 

Provided that application for such ballot by any elector in the United 
States may be made by the federal post card application, or by any written 
request, signed by said applicant, addressed to the county clerk of the 
county of residence of said elector. 



History: En. Sec. 3, Ch. 110, L. 1915; 
re-en. Sec. 3, Ch. 155, L. 1917; re-en. Sec. 
717, R. C. M. 1921; amd. Sec. 1, Ch. 151, 
L. 1923; amd. Sec. 1, Ch. 32, L. 1941; amd. 
Sec. 3, Ch. 234, L. 1943; amd. Sec. 2, Ch. 
104, L. 1953; amd. Sec. 1, Ch. 152, L. 1955; 
amd. Sec. 4, Ch. 18, L. 1959; amd. Sec. 2, 
Ch. 216, L. 1959. 

Compiler's Note 

This section was amended twice by the 
1959 legislature. Once by Ch. 18, Laws 
1959 and once by Ch. 216, Laws 1959. 
Chapter 18 was approved by the gover- 



nor, February 6, 1959 while Ch. 216 was 
approved March 11, 1959. Neither amend- 
ment mentioned the other act and as the 
acts amended the section in different re- 
spects, the compiler has made a composite 
section, incorporating the changes made 
by each act. 

References 

Goodell v. Judith Basin County, 70 M 
222, 227, 224 P 1110; State ex rel. Van 
Horn v. Lyon, 119 M 212, 173 P 2d 891, 
892. 



23-1303.1. Forms and regulations for absentee voting in school dis- 
trict elections. The state superintendent of public instruction shall pre- 
pare the form of application for absentee voter ballot for school districts 
and such other forms and regulations as may be necessary to carry out 
the purpose of this act, as it pertains to school districts. 
History: En. Sec. 3, Ch. 108, L. 1963. 

23-1304. (718) Transmission of application to county clerk — delivery 
of ballot. The voter making such application shall forward by mail or de- 



263 



23-1305 ELECTIONS 

liver in person the same to the county clerk of the county in which he is 
registered and it shall be the duty of tlie said county clerk to look up the 
applicant's registration card and compare the signature on the application 
for absent or physically incapacitated voter's ballot and the registration 
card and if convinced the person making the application for absent or 
physically incapacitated voter's ballot and the person who signed the 
original registration card is one and the same person, he shall accept the 
same in good faith and deliver the ballot as provided in section 23-1305. 

History: En. Sec. 4, Ch. 110, L. 1915; References 

amd. Sec. 4, Ch. 155, L. 1917; re-en. Sec. Goodcll v. Judith Basin County, 70 M 

718, R. C. M. 1921; amd. Sec. 2, Ch. 151, 222, 227, 236, 224 P 1110; State ex rcl. 
L. 1923; amd. Sec. 4, Ch, 234, L. 1943. Van Horn v. Lyon, 119 M 212, 173 P 2d 

891, 892. 

23-1305. (719) Duty of clerk to deliver application or ballot. Such ap- 
plication blank shall, upon request tJierefor, be sent by such county or city 
or town clerk to any elector of the county, by mail, and shall be delivered 
to any elector upon application made personally at the office of such county 
or city or town clerk ; provided, however, that no elector shall be entitled to 
receive such a ballot on election day, nor unless his application is made 
to or received by the county or city or town clerk before the delivery of 
the official ballots to the judge of election. 

History: En. Sec. 5, Ch. 110, L. 1915; References 

re-en. Sec. 5, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

719, R. C. M. 1921. 222, 227, 224 P 1110. 

23-1306. (720) Mailing ballot to elector — form of return and affidavit. 
Upon receipt of such application, properly filled out and duly signed, or as 
soon thereafter as the official ballot for the precinct in which the applicant 
resides has been printed, the said county or city or town clerk shall send 
to such elector by mail, postage prepaid, one official ballot, or if there be 
more than one ballot to be voted by an elector of such precinct, one of each 
kind, and shall enclose with such ballot or ballots an envelope, to be fur- 
nished by such county or city or town clerk, which envelope shall bear 
upon the front thereof the name, official title and post-office address of 
such county or city or town clerk, and upon the other side a printed affi- 
davit, in substantially the following form : 

"State of -1 

. ss. 

County 

I, , do solemnly swear that I am a resident 

of the precinct, (and if he be a resident of a city or town, 

Add: 'Residing at , in the town or city of 

'), County of and State 

of Montana, and entitled to vote in such precinct at the next election; that 
I expect to be absent from the said county of my residence or, in all prob- 
ability, to be physically incapacitated from going to my precinct poll on 
the day of holding such election and that I will have no opportunity to 
vote in person on that day. 

264 



VOTING BY ABSENT ELECTORS 23-1307 

Subscribed and sworn to before me this day of , 

19 ; and I hereby certify that the affiant exhibited to me the enclosed 

ballot or ballots for inspection before marking, and that the same was (or 
were) then unmarked and that he then in my presence, and in the presence 
of no other person, and in such manner that I could not see his vote, 
marked said ballot (or ballots) and enclosed and sealed the same in this 
envelope. That the affiant was not solicited or advised by me to vote for 
or against any candidate or measure. 



Both the envelope in Avhich the ballot is mailed to the elector in the 
United States service and the return envelope enclosed therein shall have 
printed across the face two parallel horizontal red bars, each one-quarter 
inch wide, extending from one side of the envelope to the other side, 
with an intervening space of one-quarter inch, the top bar to be one and 
one-quarter inches from the top of the envelope, and with the words "Of- 
ficial Election Balloting Material — via Air Mail," or similar language, 
between the bars; that there be printed in the upper right corner of each 
such envelope, in a box, the words "Free of U. S. Postage, Including Air 
Mail" ; that all printing on the face of each such envelope be in red ; and 
that there be printed in red in the upper left-hand corner of each state 
ballot envelope an appropriate inscription or blanks for return address of 
sender. 

The return envelope shall be self-addressed to the county or city or 
town clerk. 

The county or city or town clerk shall enclose with the ballot mailed to 
the elector in the United States service instructions for voting and return- 
ing the ballot. 

History: En. Sec. 6, Ch. 110, L. 1915; References 

amd. Sec. 6, Ch. 155, L. 1917; re-en. Sec. Gooflell v. Jurlith Basin County, 70 M 

720, R. C. M. 1921; amd. Sec. 5, Ch. 234, 222, 237, 224 P 1110. 
L. 1943; amd. Sec. 5, Ch. 18, L. 1959. 

23-1307. (721) Marking and swearing to ballot by elector. Such voter 
shall make and subscribe the said affidavit before an officer authorized by 
law to administer oaths, pursuant to the laws of the place of execution and 
may do so at any place including any foreign country, before any officer 
authorized by the laws of the place of execution to take acknowledgments 
of instruments, and such voter shall thereupon, in the presence of such 
officer and of no other person, mark such ballot or ballots, but in such man- 
ner that such officer cannot see the vote, and such ballot or ballots there- 
upon, in the presence of such officer, shall be folded by such voter so that 
each ballot shall be separate, and so as to conceal the vote, and shall be, in 
the presence of such officer, placed in such envelope securely sealed. Said 
officer shall thereupon append his signature and official title at the end of 
said jurat and affidavit. Said envelope shall be mailed by such absent or 
physically incapacitated voter, postage prepaid, or delivered to the county 
or city or town clerk, as the case may be. 

History: En. Sec. 7, Ch. 110, L. 1915; 721, R. C. M. 1921; amd. Sec. 3, Ch. 151, 
amd. Sec. 7, Ch. 155, L. 1917; re-en. Sec. L. 1923; amd. Sec. 6, Ch. 234, L. 1943; 

265 



23-1308 ELECTIONS 

amd. Sec. 1, Ch. 60, L. 1953; amd. Sec. 3, Collateral Eeferences 

Ch. 216, L. 1959. Electionse=3216.1. 

References 29 CJ.S. Elections § 210. 

Goodcll V. Judith Basin County, 70 M 
222,237, 224 P 1110. 

23-l'308. (722) Disposition of marked ballot upon receipt by clerk. 
Upon receipt of such envelope, such county or city or town clerk shall 
forthwith enclose the same, unopened, together with the written applica- 
tion of such absent voter or physically incapacitated voter in a larger 
envelope, which shall be securely sealed and endorsed with the name of 
the proper voting precinct, the name and official title of such clerk, and the 
words "This envelope contains an absent or physically incapacitated voter 
ballot, and must be opened only on election day at the polls when the same 
are open," and such clerk shall safely keep the same in his office until the 
same is delivered or mailed by him as provided in the next section. 

History: En. Sec. 8, Ch. 110, L. 1915; References 

re-en. Sec. 8, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

722, R. C. M. 1921; amd. Sec. 7, Ch. 234, 222, 227, 224 P 1110. 
L. 1943. 

23-1309. (723) Delivery or mailing of ballots to election judges. In 

case such envelope is received by such clerk prior to the delivery of the 
official ballots to a judge of election of the precinct in which such absent 
or physically incapacitated voter resides, said larger envelope, containing 
the said voter's envelope, and his said application as above provided, shall 
be delivered to the judge of election of such precinct, to whom the official 
ballots of the precinct shall be delivered, and at the same time. In case the 
official ballots for such precinct shall have been delivered to the judge 
of election prior to the time of the receipt by the said clerk of said absent 
or physically incapacitated voter's envelope, such clerk shall immediately 
after enclosing such voter's envelope and his application in a larger en- 
velope, and after endorsing the latter as provided in the foregoing section, 
address and mail the larger envelope, postage prepaid, to the said judge 
of election of said precinct, as hereinafter further provided. If any ab- 
sentee ballots are received by the clerk for which application was made 
after 12 noon on the day next preceding an election, the clerk shall endorse 
upon the voter's envelope the date and exact time of receipt and the words 
"To be rejected by authority of section 23-1309, R.C.M. 1947." Absentee 
ballots endorsed in this manner shall be delivered to the judge of election 
of said precinct and shall be rejected by the judge of election. 

History: En. Sec. 9, Ch. 110, L. 1915; References 

re-en. Sec. 9, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

723, R. C. M. 1921; amd. Sec. 8, Ch. 234, 222, 227, 224 P 1110. 
L. 1943; amd. Sec. 1, Ch. 124, L. 1963. 

23-1310. (724) Clerk to keep record of ballots and issue certificate. 
The ballot or ballots to be delivered or marked by such absent or physically 
incapacitated voter shall be one of the regular official ballots to be used at 
such election, and of each kind of such official ballots if there be more than 
one kind to be voted, beginning with ballot one and following consecu- 

266 



VOTING BY ABSENT ELECTORS 23-1312 

tively, according to the number of applications for such absent or physically 
incapacitated voter ballots. The county or city or town clerk shall keep a 
record of all ballots so delivered for the purpose of absent voting, or voting 
by persons physically incapacitated from going to the polls, as well as of 
ballots, if any, marked before him as hereinafter provided, and shall make 
and deliver to the judge of election, to whom the ballots for the precinct 
are delivered, and at the time of the delivery of such ballots, a certificate 
stating the number of ballots delivered or mailed to absent or physically 
incapacitated voters, as well as those marked before him, if any, and the 
names of the voters to whom such ballots shall be delivered or mailed, or 
by whom they shall have been marked if marked before him. 

History: En. Sec. 10, Ch. 110, L. 1915; References 

re-en. Sec. 10, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

724, R. C. M. 1921; amd. Sec. 9, Ch. 234, 222 227 224 P 1110 
L. 1943. ' ' 

23-1311. (725) Duty of election judges — poUbooks, numbering bal- 
lots and rejected ballots. The judges of election, at the opening of the 
polls, shall note on the pollbooks opposite the numbers corresponding to 
the numbers of the ballots issued to absent or physically incapacitated 
voters, as shown by the certificate of the county or city or town clerk, the 
fact that such ballots were issued to absent or physically incapacitated 
voters, and shall reserve said numbers for the absent or physically in- 
capacitated voters. The notation may be made by writing the words 
"absent or physically incapacitated voters" opposite such numbers. 

The judges shall not allow any names to be inserted in the pollbooks 
on the lines corresponding to said numbers, except the name of the elector 
entitled to each particular number according to the certificate of the county 
or city or town clerk, and the number of his ballot. Any so rejected shall 
be placed together with the voter's application and the absent or physically 
incapacitated voter's envelope provided for the purpose by the clerk and 
recorder or city or town clerk, which shall be sealed and endorsed by the 
words, "rejected absent or physically incapacitated voter ballots" num- 
bered , and shall put thereon the number of the ballots 

given to absent or physically incapacitated voters according to the county 
or city or town clerk's certificate. There shall be a separate enclosing en- 
velope for the ballot or ballots of each absent or physically incapacitated 
voter whose ballot or ballots may have been rejected, and such envelopes 
shall be placed in an envelope together with the other ballots, and shall 
not be opened without order of a court of competent jurisdiction. 

History: En. Sec. 11, Ch. 110, L. 1915; References 

amd. Sec. 11, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

725, R. C. M. 1921; amd. Sec. 10, Ch. 234, 222, 227, 224 P 1110. 
L. 1943; amd. Sec. 9, Ch. 64, L. 1959. 

Collateral References 

Elections<S=5216.1. 

29 C.J.S. Elections § 210. 

23-1312. (726) Voting before election day by prospective absentee or 
physically incapacitated elector. Any qualified elector who is present in 



267 



23-1313 ELECTIONS 

his county after the official ballots of such county or school district have 
been printed and who has reason to believe that he will be absent from 
such county or school district on election day, or physically incapacitated 
as provided in section 23-1302 may vote before he leaves his county or 
school district or prior to the inception of such physical incapacity, in like 
manner as an absent or physically incapacitated voter, before the county 
or city or town clerk or school district clerk, or some officer authorized to 
administer oaths and having an official seal ; and the provisions of this 
act shall be deemed to apply to such voting. If the ballot be marked before 
the county or city or town or school district clerk it shall be his duty to 
deal with it in the same manner as if it had come by mail. 

History: En. Sec. 12, Ch. 110, L. 1915; References 

amd. Sec. 12, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

726, R. C. M. 1921; amd. Sec. 11, Ch. 234, 22" 227 224 P 1110 
L. 1943; amd. Sec. 2, Ch. 108, L. 1963. "' 

23-1313. (727) Envelopes containing ballots — deposit in box and re- 
jection of ballot. At any time between the opening and closing of the polls 
on such election day, the judges of election of such precinct shall first open 
the outer envelope only, and compare the signature of such voter to such 
application, with the signature to such affidavit. 

In case the judge finds the affidavit is sufficient and that the signa- 
tures correspond, and that the applicant is then a duly qualified elector of 
such precinct, and has not voted at such election, they shall open the ab- 
sent or physically incapacitated voter's envelope, in such manner as not 
to destroy the affidavit thereon, and take out the ballot or ballots therein 
contained, and without unfolding the same, or permitting the same to be 
opened or examined, shall ascertain whether the stub or stubs is or are still 
attached to the ballot or ballots, and whether the number thereon cor- 
responds to the number in the county or city or town clerk's certificate. If so, 
they shall endorse the same in like manner that other ballots are endorsed, 
shall detach the stub as in other cases, and deposit the ballot or ballots in 
the proper ballot box or boxes, and make in their election records the 
proper entries to show such elector to have voted. In case such affidavit is 
found to be insufficient, or that the said signatures do not correspond, or 
that such applicant is not then a duly qualified elector of such precinct, 
such vote shall not be allowed, but, without opening the absent or physi- 
cally incapacitated voter envelope, the judges of such election shall mark 
across the face thereof "rejected as defective" or "rejected as not an 
elector" as the case may be. The absent or physically incapacitated voter 
envelope, when such absent vote or vote by a person physically incapaci- 
tated from going to the polls is voted, and the absent or physically inca- 
pacitated voter envelope with its contents, unopened, when such absent vote 
or vote by a person physically incapacitated from going to the polls is 
rejected, shsJll be deposited in the ballot box containing the general or 
party ballots, as the case may be, retained and preserved in the manner by 
law provided for the retention and preservation of official ballots voted 
at such election. If, upon opening the absent or physically incapacitated 
voter's envelope, it be found that the stub of any ballot has been detached. 

268 



VOTING BY ABSENT ELECTORS 23-1314 

or that the number thereon does not correspond to the number in the 
county or city or town clerk's certificate of the number issued to such ab- 
sent or physically incapacitated voter, the ballot shall be rejected, and it 
shall then and there, and without looking at the face thereof, be marked 

on the back "rejected on the ground of ," filling the blank with 

the statement of the reason of the rejection; which statement shall be 
dated and signed by the majority of the judges. The ballot or ballots so 
rejected, together with the absent or physically incapacitated voter's 
envelope bearing the application, and the said application, shall be all 
enclosed in an envelope, which shall be then and there securely sealed, 
and on such envelope the judges shall write or cause to be written (if 
not already printed thereon) the words, "rejected ballot of absent or physi- 
cally incapacitated voter" (writing in the name of the elector). "The re- 
jected ballot or ballots is or are " The judges shall 

designate the rejected ballot as "general ballot," if it be a ballot for candi- 
dates that be rejected. If the rejected ballot be a one put on a question 
submitted to the vote of the electors, the judges shall designate such 

ballot as ballot question No in the certificate on the envelope. There 

shall be a separate enclosing envelope for the ballot or ballots of each 
absent or physically incapacitated voter whose ballot or ballots may have 
been rejected and such enclosing envelope shall be placed in the envelope 
in which the other ballots voted or (are) required to be placed and shall 
not be opened without an order of a court of competent jurisdiction. The 
county or city or town clerk shall provide and have delivered to the judge 
of election suitable envelopes for enclosing rejected absent or physically 
incapacitated voter's ballots. 

History: En. Sec. 13, Ch. 110, L. 1915; Law, (23-1301 to 23-1321) by virtue of 

amd. Sec. 13, Ch. 155, L. 1917; re-en. Sec. tliis section. Maddox v. Board of State 

727, R. C. M. 1921; amd. Sec. 12, Ch. 234, Canvassers, 116 M 217, 223, 149 P 2d 112. 
L. 1943; amd. Sec. 10, Ch. 64, L. 1959. 

References 

Delivery of Ballot to Election Officials Goodcll v. Judith Basin County, 70 M 

Voting is accomplished not merely by 222, 227, 224 P 1110. 
marking the ballot, but by having it de- 
livered to the election officials and de- Collateral References 
posited in the ballot box before the clos- Elections®='216.1. 
ing of the polls on election day, and this 29 C.J.S. Elections § 210. 
is equally true under the Absent Voter's 



23-1314. (728) Transmission of ballot by special delivery. When- 
ever the county or city or town clerk shall mail the envelope containing 
an absent or physically incapacitated voter's envelope and ballots, as pro- 
vided in this act, to a judge of election, he shall place therouu the proper 
postage and the proper stamp or stamps, and the proper markings to 
secure the transmission and delivery thereof as a special delivery letter, 
in accordance with the postal laws of the United States and the regulations 
of the United States post office. 

History: En. Sec. 14, Ch. 110, L. 1915; References 

amd. Sec. 14, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

728, R. C. M. 1921; amd. Sec. 13, Ch. 234, 992 £27 "''4 P 1110 
L. 1943. — » ^ "- 

269 



23-1315 ELECTIONS 

23-1315. (729) Voting in person by elector on election day. Any 

qualified elector who has marked his ballot as hereinbefore provided, who 

shall be in his precinct on election day, shall be permitted to vote in person, 

provided his said ballot has not already been deposited in the ballot box. 

History: En. Sec. 15, Ch. 110, L. 1915; References 

re-en. Sec. 15, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

729, E. C. M. 1921. 222, 227, 224 P 1110; State ex rel. Mitchell 

V. District Court, 128 M 325, 275 P 2d 
642, 651. 

23-1316. (730) Procedure when elector is present after marking ab- 
sent or physically incapacitated voter ballot. In case any elector who shall 
have marked his ballot as an absent or physically incapacitated voter, aa 
in this act provided, shall appear at the voting place of his precinct on 
election day, before his ballot or ballots shall have been deposited in the 
ballot box, his envelope containing his ballot shall, if he so desires, be 
opened in his presence, and the ballot or ballots found therein shall be 
deposited in the ballot box as hereinbefore provided. If such elector shall 
ask for a new ballot or ballots with which to vote, he shall be entitled to 
the same, but in such case his absent or physically incapacitated voter en- 
velope shall not be opened, and the judges shall mark, or cause to be 
marked, across the face thereof, "unopened because voter appeared and 
voted in person," and then deposit the said envelope, unopened, in the bal- 
lot box. If the envelope containing the absent or physically incapacitated 
voter ballot shall have been marked "rejected as defective," and de- 
posited in the ballot box, such elector so appearing shall have the same 
right to vote as if he had not attempted to vote as an absent or physically 
incapacitated voter. If voting machines are there used, he shall vote by 
machine as other voters. 

History: En. Sec. 16, Ch. 110, L. 1915; References 

re-en. Sec. 16, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 7U M 

730, R. C. M. 1921; amd. Sec. 14, Ch. 234, 222, 227, 224 P 1110; State ex rel. Mitchell 
L. 1943. V. District Court, 128 M 325, 275 P 2d 642, 

651. 

23-1317. (731) Opening of envelopes after deposit. If the aforesaid 
envelope containing an absent or physically incapacitated voter ballot 
shall have been deposited, unopened, in the ballot box, the said envelope 
shall not be opened, without an order of a court of competent jurisdiction. 

History: En. Sec. 17, Ch. 110, L. 1916; References 

re-en. Sec. 17, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

731, R. C. M. 1921; amd. Sec. 15, Ch. 234, 222, 227, 224 P 1110. 
L. 1943. 

23-1318. (732) False swearing perjury — ofl9icial misconduct a misde- 
meanor. If any person shall willfully swear falsely to any affidavit in this 
act provided for, he shall, upon conviction thereof, be deemed guilty of 
perjury, and shall be punished as in such cases by law provided. If the 
county or city or town clerk, or any election officer, shall refuse or neg- 
lect to perform any of these duties prescribed by this act, or shall violate 
any of the provisions thereof, or if any officer taking the affidavit pro- 

270 



VOTING BY ABSENT ELECTORS 23-1320 

vided for in section 23-1306 shall make any false statement in his certificate 
thereto attached, or look at any mark or marks made by the voter upon any 
such ballot, or permit or allow any other person to be present at the mark- 
ing of any such ballot by the voter, or to see any mark or marks made 
thereon by the voter, he shall be deemed guilty of a misdemeanor, and 
shall be punished by a fine not exceeding five hundred dollars, or by 
imprisonment in the county jail not exceeding six months, or by both such 
fine and imprisonment. 

History: En. Sec. 18, Ch. 110, L. 1915; Collateral References 

amd. Sec. 18, Ch. 155, L. 1917; re-en. Sec. Elections<S='314; Perjury<S='8. 

732, R. C. M. 1921. 29 C.J.S. Elections §327; 70 C.J.S. Per- 

References ^^^^ ^ ' 

Goodell V. Judith Basin County, 70 M 
222, 227, 224 P 1110. 

23-1319. (733) Voting machines — canvass of votes. In and for pre- 
cincts where voting machines are to be used, the county or city or town 
clerk shall cause to be printed and shall provide ballots in the regular form 
of printed ballots, and sufficient printed ballots and sufficient in number for 
possible absent or physically incapacitated voters, and also pollbooks and 
ballot boxes such as lists required for the precincts in which printed ballots 
are used. Absent or physically incapacitated voters' ballots received in 
such precincts shall be cast as in this act provided, and all provisions of 
this act and of the election laws shall apply to the casting, canvassing, 
counting and returning of such ballots and votes, except as herein other- 
wise provided. In making the canvass, the votes cast by absent or physi- 
cally incapacitated voters shall be added by the judges of election to the 
votes cast on the voting machines, and the results determined and reported 
accordingly. 

History: En. Sec. 19, Ch. 110, L. 1915; References 

amd. Sec. 19, Ch. 155, L. 1917; re-en. Sec. Goodell v. Judith Basin County, 70 M 

733, R. C. M. 1921; amd. Sec. 16, Ch. 234, 222, 227, 224 P 1110. 
L. 1943. 

Collateral References 

Elections'S=>222. 

29 C.J.S. Elections § 203. 

23-1320. (734) Duty of elector if present on election day. In case 
any elector who shall have taken advantage of the provisions of this act, 
and marked his ballot as an absent or physically incapacitated voter, as in 
this act provided, shall not leave his county, or shall return thereto or shall 
have recovered physical capacity to go to the polls on or before election 
day, and in time to allow him to go to the polls, to wit, to the voting place 
in his precinct, and to be admitted therein before the close of the polls, it 
shall be his duty so to go to the said voting place and to present himself 
to the judges of election at said voting place, and if he shall willfully neg- 
lect so to do he shall be deemed guilty of a misdemeanor and, upon con- 
viction thereof, shall be punished by a fine of not more than one hundred 
($100.00) dollars or by imprisonment not more than thirty (30) days in 
the county jail or by both such fine and imprisonment. If such an elector 

271 



23-1321 ELECTIONS 

so appears the judges of election shall note in the precinct register the fact 
of his appearance as well as whether or not he voted in person. 

History: En. Sec. 20, Ch. 110, L. 1915; References 

re-en. Sec. 20, Ch. 155, L. 1917; re-en. Goodell v. Judith Basin County, 70 M 

Sec. 734, R. C. M. 1921; amd. Sec. 17, £''2 2^7 224 P 1110 
Ch. 234, L. 1943; amd. Sec. 11, Ch. 64, - ' " ' 
L. 1959. Collateral References 

Elections<S=313. 

29 C.J.S. Elections § 325. 

23-1321. (735) Violation of law by elector or oflBcer outside of state — 
chang^e of venue. If any elector of this state or any other person or any 
officer shall, in any matter connected with voting outside of the state under 
the provisions of this law, in any manner violate any of the provisions of 
this act, or of any of the election or penal laws of this state applicable to 
voting under this act, in such manner that such violation would constitute 
an offense if committed within the state, then and in such case such elec- 
tor, person, or officer shall be deemed guilty of a like offense, and be pun- 
ishable to the same extent and in the same manner as if the act, omission, 
or violation had been committed in this state, and may be prosecuted in 
any county in this state ; provided, however, that if the defendant or one 
of several defendants be a resident of the state he may have the case 
removed to the county in which the ballot was cast, or was to be cast, if 
not, in fact cast; and provided, further, that the court may order any 
such case removed to such county, subject always to the power of the 
court of any county to grant a change of venue as in other cases. 

History: En. Sec. 21, Ch. 155, L. 1917; Collateral References 

re-en. Sec. 735, R. C. M. 1921. Elections<3=>313, 314. 

References 29 C.J.S. Elections §§ 325, 327. 

Goodell V. Judith Basin County, 70 M 
222, 227, 224 P 1110. 



CHAPTER 14 

VOTING BY ABSENT ELECTORS IN UNITED STATES SERVICE 

Section 23-1401. Registration of absent electors in United States service. 

23-1402. Definition of electors in United States service. 

23-1403. The federal post card application. 

23-1404. Oath for elector in the United States service. 

23-1405. Classification of federal post card application. 

23-1406. Penalty applicable. 

23-1401. Registration of absent electors in United States service. Any 
elector of this state in the United States service who is absent from the 
state of Montana and the county of which he or she is a resident shall be 
entitled to register by mailing to the county clerk a federal post card 
application filled out and signed under oath, which shall be the "OFFICIAL 
WAR REGISTRATION CARD" of the state. 

History: En. Sec. 1, Ch. 99, L. 1043: Collateral References 

amd. Sec. 6, Ch. 18, L. 1959. Election8e='216.1. 



29 CJ.S. Elections § 210. 



272 



ABSENT ELECTORS IN UNITED STATES SERVICE 23-1403 

23-1402. Definition of electors in United States service. The phrase 
"elector in United States service" as used in the Revised Codes of Montana 
of 1947, as amended, shall include the following : 

(1) Members of the armed forces while in the active service, and 
their spouses and dependents. 

(2) Members of the merchant marine of the United States, and their 
spouses and dependents. 

(3) Civilian employees of the United States in all categories serving 
outside the territorial limits of the several states of the United States and 
the District of Columbia and their spouses and dependents when residing 
with or accompanying them, whether or not the employee is subject to the 
civil service laws and the Classification Act of 1949, and whether or not 
paid from funds appropriated by the Congress. 

(4) Members of religious groups or welfare agencies assisting mem- 
bers of the armed forces, who are officially attached to and serving with the 
armed forces, and their spouses and dependents. 

History: En. Sec. 2, Ch. 99, L. 1943; 
amd. Sec. 7, Ch. 18, L. 1959. 

23-1403. The federal post card application. The form of the federal 
post card application, which may be used both as an application for regis- 
tration and for a ballot, shall be as follows : 

(a) The cards shall be approximately nine and one-half (9V^) by four 
and one-eighth (4^8) inches in size. 

(b) Upon one side, perpendicular to the long dimension of the card, 
there shall be printed in black type the following : 

FILL OUT BOTH SIDES OF CARD 
POST CARD APPLICATION FOR ABSENTEE BALLOT 

State or Commonwealth of 

(Fill in name of State or Commonwealth) 

(1) I hereby request an absentee ballot to vote in the coming election: 
(GENERAL) (PRIMARY)* (SPECIAL) ELECTION 

(Strike out inapplicable words) 

(2) *If a ballot is requested for a primary election, print your political 
party affiliation or preference in this box: Q 

(If primary election is secret in your state, do not answer). 

(3) I am a citizen of the United States, eligible to vote in above state, 
and am : 

a. A member of the armed forces of the United States □ 

b. A member of the merchant marine of the United States □ 
e. A member of a religious or welfare organization assisting service- 
men □ 

d, A civilian employed by the United States government outside the 

United States (continental) □ 

e. A spouse or dependent of a person listed in (a), (h), or (c) 

above □ 

273 



23-1403 ELECTIONS 

f. A spouse or dependent residing with a person described in (d) 
above. D 

(4) I was born on _ 

(Day) (Month) (Year) 

(5) For years preceding the above election my home (not 

military) residence in the above state has been 



(Street and number or rural route, etc.) 
The voting precinct or election district for this residence is 

(Enter if known) 
(6) Remarks : 



(7) Mail my ballot to the following address: 

(Unit (Co., Sq., Trp., Bn., Etc.), Governmental Agency or Office) 

(Military Base, Station, Camp, Fort, Ship, Airfield, etc.) 
(Street, Street No., APO, or FPO No.) 

(City, Postal Zone, and State) 

(8) I am NOT requesting a ballot from any other state and am not 
voting in any other manner in this election, except by absentee process, 
and have not voted and do not intend to vote in this election at any other 
address. 

(9) - 

(Signature of person requesting ballot) 

(10) -- - 

(Full name, typed or printed, with rank or grade, and service number) 

(11) Subscribed and sworn to before me on 



(Day, month and year) 



(Signature of official (Typed or printed 

administering oath) name of official 

administering oath.) 

(Title or rank, service number and organization of administering official) 

INSTRUCTIONS 

A. Before filling out this form see your voting officer in regard to 

the voting laws of your state and absentee registration and 
voting procedure. 

B. Type or print all entries except signatures. FILL OUT BOTH 

SIDES OF CARD. 

274 



ABSENT ELECTORS IN UNITED STATES SERVICE 23-1405 

C. Address card to proper state official. Your voting officer or com- 

manding officer will furnish you with his title and address. 

D. Mail card as soon as your state will accept your application. 

E. No postage is required for the card. 

(c) Upon the other side of the card there shall be printed in red type 
the following : 

FILL OUT BOTH SIDES OF THE CARD 
(Name) 

FREE OF U. S. POSTAGE 
Including Air Mail 

(Unit, Gov't Agency, or Office) 

(Mil. Base, Station, Ship or Office) 

(Street No., APO, or FPO No.) 

(City, Postal Zone, State) 

OFFICIAL ELECTION BALLOTING MATERIAL— VIA AIR MAIL 

To: 

(Title of election official) 

(County or township) 

(City or Town, State) 

History: En. Sec. 3, Ch. 99, L. 1943; 
amd. Sec. 8, Ch. 18, L. 1959. 

23-1404. Oath for elector in the United States service. Any oath re- 
quired for electors in the United States service to register, request a ballot 
or vote may be administered and attested, within or without the United 
States, by any commissioned officer in the active service of the armed 
forces, or any member of the merchant marine of the United States desig- 
nated for this purpose by the secretary of commerce, or any civilian official 
empowered by state or federal law to administer oaths. No official seal 
need be affixed to said oath and neither the elector nor the certifying offi- 
cer need disclose his whereabouts at the time of taking said oath except to 
the extent required by the federal post card application. 

History: En. Sec. 4, Ch. 99, L. 1943; 
amd. Sec. 9, Ch. 18, L. 1959. 

23-1405. Classification of federal post card application. Upon receipt 
by the county clerk of a federal post card application properly filled out 
and signed under oath, the county clerk shall classify such federal post 
card application according to the precinct in which the elector resides, and 

275 



23-1406 ELECTIONS 

shall arrange the cards in each precinct in alphabetical order. The county 
clerk shall, upon receipt of any federal post card application, immediately 
enter upon the official register of the county in the proper precinct the full 
information given by said elector. Immediately upon entry upon the offi- 
cial register of the county of the name of the elector in the United States 
service the county clerk shall send to him or her by the fastest mail service 
available a notice that he has been registered and informing him that in 
order to secure a ballot he must mail at any time within forty-five (45) 
days next preceding the election another federal post card application to 
his county clerk or city clerk or town clerk. 

History: En. Sec. 5, Ch. 99, L. 1943; 
amd. Sec. 10, Ch. 18, L. 1959. 

23-1406. Penalty applicable. The penalty provided for by section 23- 
503, in the case of an elector residing within the county who registers, is 
hereby made applicable to violations of the provisions of this act. 
History: En. Sec. 6, Ch. 99, L. 1943. 

CHAPTER 15 

REGISTRATION OF ELECTORS ABSENT FROM COUNTY OF THEIR 

RESIDENCE 

Section 23-1501. Method of registration of voters absent from county. 
23-1502. Registration card mailed upon application. 
23-1503. Questions asked and answered in writing. 

23-1501. Method of registration of voters absent from county. Any 

elector who is unable to make personal application for registration to vote 
by appearing before the county clerk and ex officio registrar of the county 
of his or her legal residence, by reason of being absent from the county, 
may register to vote prior to the close of registration, before any election 
to be held in the state of Montana, by appearing, executing and verifying 
under oath, before a notary public or other officer authorized to administer 
oaths, at any place within the continental limits of the United States of 
America, a registration card in the form prescribed in section 23-502, and 
returning such registration card, so executed and verified, to the county 
clerk and ex officio registrar of the county in which his or her legal resi- 
dence is located in sufficient time to reach such county clerk and ex officio 
registrar before the close of registration ; provided, however, such an 
elector shall not be entitled to have his name entered in the official register 
of electors until at least two (2) registered electors of the county in which 
such elector desiring to be registered has his place of residence, as stated 
in his application for registration, appear before the county clerk and ex 
officio registrar and make affidavit or affidavits in writing, stating they are 
personally acquainted with the applicant for registration, are familiar with 
and know his signature, have seen him write and that the signature sub- 
scribed to the application for registration is the signature of such elector. 
History: En. Sec. 1, Ch. 190, L. 1943. Collateral References 

Elcctions<2=>216.1. 

29 C.J.S. Elections § 210. 

276 



VOTING MACHINES 23-1601 

23-1502. Reg-istration card mailed upon application. The county clerk 
and ex officio registrar of the county of an elector's legal residence shall 
furnish to any elector applying therefor, whether application be made by 
mail, telegram or telephone, one (1) of the i)riiitod re^^istration cards pro- 
vided for registration of electors, to be used by such elector in registering; 
said card to be transmitted by United States mail, with postage prepaid, 
by said county clerk and ex officio registrar to the address furnished by the 
elector at the time of making of his application. 
History: En. Sec, 2, Ch. 190, L. 1943. 

23-1503. Questions asked and answered in writing. In the case of any 
person who desires and who is entitled to register in the manner provided 
in section 23-1501, the questions required by section 23-510, to be asked 
each person registering, shall be propounded in writing and shall be trans- 
mitted by the county clerk and ex officio registrar, together with regis- 
tration card, in the manner above provided, to the person so desiring to 
register, who shall answer such questions in writing and shall return such 
answers to the county clerk and ex officio registrar, together with com- 
pleted registration card. 
History: En. Sec. 3, Ch. 190, L. 1943. 

CHAPTER 16 

VOTING MACHINES— CONDUCT OF ELECTION WHEN USED 

Section 23-1601. Voting machines — secretary of state. 

23-1602. Specifications of machines required. 

23-1603. Purchase and use of voting machines at elections. 

23-1604. Payment for machines, how provided for. 

23-1605. Method of conducting elections. 

23-1606. Assistance to elector unable to record vote. 

23-1607. Ballots and instructions to voters. 

23-1608. City and county clerks to set up machines for use. 
23-1608A. Ballot — arrangement on machine. 

23-1609. Irregular ballots. 

23-1610. Counting the votes. 

23-1611. Election returns. 

23-1612. Election laws applicable. 

23-1613. Penalty for neglect of duty by election officer. 

23-1614. Penalty for tampering with or injuring machines. 

23-1615. Penalty for violation of duty by judge of election, 

23-1616. Penalty for fraudulent returns or certificates. 

23-1617. Experimental use of machines — defective machines. 

23-1618. Approved machines — continuation of use. 

23-1601. (757) Voting machines — secretary of state. It shall be the 
duty of the secretary of state to examine, or cause to be examined, all 
voting or ballot machines in order to determine whether such machines 
comply with the requirements of this chapter, and can safely be used by 
voters at elections under the provisions of said chapter, and no machine or 
machines shall be provided or used at any election in this state unless such 
machine or machines shall have received the approval of the secretary of 
state as herein provided. The secretary of state may employ two qualified 
mechanics, who shall be qualified electors of the state of Montana, to ex- 
amine said machines and assist him in the discharge of his duties under 

277 



23-1602 ELECTIONS 

said chapter, the compensation to be paid such qualified mechanics not to 
exceed the sum of ten dollars ($10.00) each for each day actually employed. 
Any machine or machines which shall have the approval of the secretary of 
state may be provided for in this chapter. The report of the secretary of 
state on each and every kind of voting machine shall be filed in his office 
within thirty days after examining the machine, and he shall, within five 
days after the filing of any report approving any machine or machines 
transmit to the board of county commissioners, city or town council or 
other board of officers having charge and control of elections in each of 
the counties, cities and towns in this state, a list of the machines so ap- 
proved. No machine or machines shall be used unless they shall have re- 
ceived the approval of the secretary of state at least sixty days prior to 
any election at which such machine or machines are to be used. The com- 
pensation of the mechanics and all other expenses connected with the ex- 
amination of any machine shall be paid, or cause to be paid, by the person 
or company submitting a machine for examination before the filing of the 
report thereon. The amount of such expenses shaU be certified by the 
state auditor and paid by the state treasurer. 

History: En. Sec. 1, Ch. 168, L. 1907; ployed not to designate a piece of paper, 

Sec. 609, Eev. 0. 1907; re-en. Sec. 757, but a method to ensure, so far as possible, 

E. C. M. 1921; amd. Sec. 1, Ch. 19, L. the secrecy and integrity of the popular 

1943. vote. State ex rel. Fenner v. Keating, 53 M 

.371, 377, 163 P 1156. 

Constitutionality 

Chapter 168, Laws 1907 (23-1601 et seq.) Collateral References 

is not invalid as in contravention of sec- Elections<S=222. 

tion 1, article IX of the constitution of 29 C.J.S. Elections § 203. 

Montana, providing that all elections shall 26 Am. Jur. 2d 80, Elections, § 253. 
be "by ballot," the term "ballot" being em- 



23-1602. (758) Specifications of machines required. No machine or 
machine system shall be approved by the secretary of state unless it is so 
constructed as to afford every elector a reasonable opportunity to vote for 
any person for any office, or for or against any proposition for whom, or for 
or against which he is entitled by law to vote, and enable him to do this in 
secrecy; and it must be so constructed as to preclude an elector from 
voting for any candidate for the same office or upon any question more 
than once, and from voting for any person for any office or on any propo- 
sition, for whom or on which he is not entitled to vote. The machine or 
machine system must admit of his voting a split ticket as he may desire. 
It must also be constructed as to register or record each and every vote 
cast. For presidential electors one device may be provided for voting for 
all the candidates on one party at one time by the use of such device, 
opposite or adjacent to which shall be a ballot on the machine containing 
the names of all the candidates for all presidential electors for that party, 
and a vote registered or recorded by the use of such device shall be counted 
for each of such candidates on said ballot. The machine must be so con- 
structed that it cannot be tampered with or manipulated for any fraudu- 
lent purpose ; and the machine must be so locked, arranged, or constructed, 
that during the progress of the voting no person can see or know the num- 

278 



VOTING MACHINES 23-1604 

ber of votes registered or recorded for any candidate or for or against any 
proposition. 

History: En. Sec. 2, Ch. 168, L. 1907; the act and, when so read, it becomea ob- 

Sec, 610, Rev. C. 1907; re-en. Sec. 758, vious that the act does not require a vot- 

R. C. M. 1921; amd. Sec. 2, Ch, 19, L. ing machine which will be proof against 

19*3. all tampering or manipulation, but one 

Type of Machine Required rhii'^'n''^.^!^^ ^"t"'"^ operated will en- 

^^ ^ able an elector to secretly cast his vote 

In an action of quo warranto to deter- as he wishes to cast it and have it counted 

mine the title to an office, the claim was as cast, and which cannot be tampered 

made that the voting machines used at with or manipulated in such a way that 

an election in one of the counties of the though properly operated by the elector' 

state did not comply with the law which it would seem to receive and record his' 

authorizes their use, basing the conten- vote without doing so. State ex rel. Fen- 

tion upon the provision of above section, ner v. Keating, 53 M 371, 381, 163 P 1156. 
that "the machine must be constructed 

80 that it cannot be tampered with or Collateral References 

manipulated for any fraudulent purpose." Elections<&=>27. 

The provision quoted is, however, to be 29 C.J.S. Elections § 191. 
read in connection with the remainder of 

23-1603. (759) Purchase and use of voting machines at elections. The 

boards of county commissioners of counties of the first class shall, and 
the boards of county commissioners of other counties and city councils of 
all cities and towns, may, at their option, adopt and purchase, for use in 
the various precincts, any voting machine approved in the manner above 
set forth in section 23-1601, by the secretary of state, and none other. If 
it shall be impracticable to supply each and every election district with a 
voting machine or voting machines at any election following the adoption 
of such machines in a city, village, or town, as many may be supplied 
as it is practicable to procure, and the same shall be used in such precinct 
of the municipality, as the proper officers may order. The proper officers 
of any city, village, or town may, not later than the tenth (10th) day of 
September, in any year in which a general election is held, unite two or 
more precincts into one for the purpose of using therein at such election a 
voting machine, and the notice of such uniting shall be given in the manner 
prescribed by law for the change of election districts. 

History: En. Sec. 3, Ch. 168, L. 1907; Collateral References 

Sec. 611, Rev. C. 1907; amd. Sec. 1, Ch. 6, Electionse='2''2 

L. 1909; re-en. Sec. 759, R. C. M. 1921; 29 C.J.S. Elections S 203. 

amd. Sec. 1, Ch. 26, L. 1947. 26 Am. Jur. 2d 80, Elections, § 253. 

23-1604. (760) Payment for machines, how provided for. Payment 
for voting machines purchased may be provided by the issuance of interest- 
bearing bonds, certificates of indebtedness, or other obligation, which will 
be a charge upon such county, city, or town. Such bonds, certificates, or 
other obligation may be made payable at such time or times, not exceeding 
ten years from the date of issue, as may be determined, but shall not be 
issued or sold at less than par. 
History: En. Sec. 4, Ch. 168, L. 1907; Collateral References 

l^% 5i^o?^• °' ^^^'^' ^^'^'^' ^®*^- '^^°' Counties€=»164, 173 (1); Municipal Cor- 

B. C. M. 1921. porations®='897, 910. 

20 C.J.S. Counties §§248, 258; 64 C.J.S. 
Municipal Corporations §§ 1893, 1905. 

279 



23-1605 ELECTIONS 

23-1605. (761) Method of conducting elections. (1) The room in 
which the election is held shall have a railing separating that part of the 
room to be occupied by the election officers from that part of the room 
occupied by the voting machine. The exterior of the voting machine and 
every part of the polling place shall be in plain view of the judges. The 
machine shall be so placed that no person on the opposite side of the railing 
can see or determine how the voter casts his vote, and that no person can 
so see or determine from the outside of the room. After the opening of the 
polls, the judges shall not allow any person to pass within the railing to 
that part of the room where the machine is situated, except for the purpose 
of voting and except as provided in the next succeeding section of this 
act ; and they shall not permit more than one voter at a time to be in such 
part of the room. They shall not themselves remain or permit any person 
to remain in any position that would permit him or them to see or ascertain 
how the voter votes or how he has voted. No voter shall remain within the 
voting machine booth or compartment longer than one minute, and if he 
should refuse to leave it after that lapse of time he shall at once be 
removed by the judges. The election board of each election precinct in 
which a voting machine is used shall consist of three judges of election. 
Where more than one machine is to be used in an election precinct, one 
additional judge shall be appointed for each additional machine. Before 
each election at which voting machines are to be used, the custodian shall 
instruct all judges of election that are to serve thereat in the use of the 
machine and their duties in connection therewith; and he shall give to 
each judge that has received such instruction, and is fully qualified to 
conduct the election with the machine, a certificate to that effect. For the 
purpose of giving such instruction, the custodian shall call such meeting 
or meetings of the judges of election as shall be necessary. 

(2) Each judge of election shall attend such meeting or meetings and 
receive such instructions as shall be necessary for the proper conduct of 
the election with the machine; and, as compensation for the time spent in 
receiving such instruction, each judge that shall qualify for and serve in 
the election shall receive the sum of one dollar, to be paid to him at the 
same time and in the same manner as compensation is paid to him for his 
services on election day. No such judge of election shall serve in any elec- 
tion at which a voting machine is used, unless he shall have received 
such instruction and is fully qualified to perform his duties in connection 
with the machine, and has received a certificate to that effect from the cus- 
todian of the machines; provided, however, that this shall not prevent the 
appointment of a judge of election to fill a vacancy in an emergency. 

History: En. Sec. 5, Ch. 168, L. 1907; Collateral References 

Sec. 613, Rev. C. 1907; amd. Sec. 1, Ch. 99, Elections<S=222. 

L. 1909; re-en. Sec. 761, R. C. M. 1921. 29 C.J.S. Elections § 203. 

23-1606. (762) Assistance to elector unable to record vote. If any 

voter shall, in the presence of the judges of election, declare that he is un- 
able to read or write the English language, or that by reason of a physical 
disability or total blindness he is unable to register or record his vote upon 

280 



VOTING MACHINES 23-1607 

the voting machine, he shall be assisted as provided by section 23-1213. 
Any person who shall deceive any elector in registering or recording his 
vote under this section, or who shall register or record his vote in any other 
way than as requested by such person or who shall give information to any 
person as to what ticket or for what person or persons such person voted, 
shall be punished as provided in section 94-1407. 

History: Er. Sec. 6, Ch. 168, L. 1907; Collateral References 

Sec. 614, Rev. C. 1907; re-en. Sec. 762, Eleotionse=>220. 

R. C. M, 1921; amd. Sec. 1, Ch. 31, L. 29 C.J.S. Elections § 2P8. 

1935. 26 Am. Jur. 2d 68, Elections, § 238. 

23-1607. (7C3) Ballots and instructions to voters. (1) Not more than 
ten (10) or less than three (3) days before each election at which voting 
machines are to be used, the board, or ofiBcials, charged with the duty of 
providing ballots, shall publish in newspapers representing at least two (2) 
political parties a diagram of reduced size showing the face of the voting 
machine, after the official ballot labels are arranged thereon, together 
with illustrated instructions how to vote, and a statement of the locations 
of such voting machines as shall be on public exhibition ; a voting machine 
shall at all time be on exhibition for public demonstration in the ofiBce of 
the county clerk and recorder in the counties where said voting machines 
are used, and it shall be the duty of said county clerk and recorder to 
demonstrate and explain the working and operation of said voting machine 
to any inquiring voter; or in lieu of such publication, said board or 
officials may send by mail or otherwise at least three (3) days before the 
election, a printed copy of said reduced diagram to each registered voter. 

(2) Not later than forty (40) days before each election at which vot- 
ing machines are to be used the secretary of state shall prepare samples 
of the printed matter and supplies named in this section, and shall furnish 
one of each thereof to the board or officials having charge of election in 
each county, city, or village in which the machines are to be used, such 
samples to meet the requirements of the election to be held, and to suit 
the construction of the machine to be used. 

(3) The board or officials charged with the duty of providing ballots, 
shall provide for each voting machine for each election the following 
printed matter and supplies; suitable printed or written directions to the 
custodian for testing and preparing the voting machines for the election; 
one certificate on which the custodian can certify that he has properly 
tested and prepared the voting machine for the election; one certificate 
on which some person other than the custodian preparing the machine, 
can certify that the voting machine has been examined and found to have 
been properly prepared for the election ; one certificate on which the party 
representatives can verify that they have witnessed the testing and prepara- 
tion of the machines ; one certificate on which the deliverer of the machine 
can certify that he has delivered the machines to the polling places in good 
order; one card stating the penalty for tampering with or injuring a 
voting machine ; two seals for sealing the voting machine ; one envelope in 
which the keys to the voting machine can be sealed and delivered to the 
election officers, said envelope to have printed or written thereon the des- 

281 



23-1607 ELECTIONS 

ignation and location of the election district in which the machine is to be 
used, the number of machine, the number shoAvn on the protective counter 
thereof after the machine has been prepared for the election and the num- 
ber or other designation on such seal as the machine is sealed with ; said 
envelope to have attached to it a detachable receipt for the delivery of 
the keys of the voting machine to the judge of election; one envelope in 
which keys to the voting machine can be returned by the election officers 
after the election ; one card stating the name and telephone address of 
the custodian on the day of the election; two statements of canvass on 
which the election officers can report the canvass of votes as shown on 
the voting machine, together with other necessary information relating to 
the election, said statements of canvass to take the place of all tally 
papers, statements, and returns as provided heretofore; three (3) complete 
sets of ballot labels; two diagrams of the face of the machine with the 
ballot labels thereon, each diagram to have printed above it the proper 
instructions to voters for voting on the machine; six (6) suitable printed 
instructions to judges of election; six (6) notices to judges of election to 
attend the instruction meeting; six (6) certificates that the judges of elec- 
tion have attended the instruction meeting, have received the necessary 
instruction, and are qualified to conduct the election with the machine. 

(4) The ballot labels shall be printed in black ink on clear white ma- 
terial of such size and arrangement as shall suit the construction of the 
machine; provided, however, that the ballot labels for the questions may 
contain a condensed statement of each question to be voted on, followed 
by the words "Yes" and "No"; and provided further, that the titles of 
the officers thereon shall be printed in type as large as the space for each 
office will reasonably permit, and wherever more than one candidate will 
be voted for for an office, there shall be printed below the office title thereof 
the words "vote for any two," or such number as the voter is lawfully en- 
titled to vote for for such office. 

(5) "When any person is nominated for an office by more than one 
political party his name shall be placed upon the ticket under the desig- 
nation of the party which first nominated him ; or, if nominated by more 
than one party at the same time, he shall, within the time fixed by law 
for filing certificates of nomination, file with the officer with whom his cer- 
tificate of nomination is required to be filed, a written statement indicating 
the party designation under which he desires his name to appear upon the 
ballot, and it shall be so printed. If he shall refuse or neglect to so file such 
a statement, the officer with whom the certificate of nomination is required 
to be filed shall place his name under the designation of either of the par- 
ties nominating him, but under no other designation whatsoever. 

(6) If the election be one at which all the candidates for office of presi- 
dential electors are to be voted for with one device, the county com- 
missioners shall furnish for each machine twenty-five (25) ballots for each 
political party, each ballot containing the names of the candidates for the 
office of presidential electors of such party and a suitable space for writing 
in names, so that the voter can vote thereon for part of the candidates for 
the office of presidential electors of one party and part of the candidates 

282 



VOTING MACHINES 23-1608 

therefor of one or more other parties or for persons for that office not 
nominated by any party. For election precincts in which voting machines 
are to be used, no books or blanks for making poll lists shall be provided, 
but in lieu thereof, the registry lists shall contain a column in which can 
be entered the number of each voter's ballot as indicated by the number 
registered on the public counter as he emerges from the voting machine. 

History: En. Sec. 7, Ch. 168, L. 1907; Collateral References 

Sec. 616, Rev. C. 1907; amd. Sec. 2, Ch. 99, Elections<S=»222. 

L. 1909; amd. Sec. 1, Ch. 246, L. 1921; 29 C.J.S. Elections S 203. 

re-en. Sec. 763, R. C. M. 1921. "* 

23-1608. (764) City and county clerks to set up machines for use. 

(1) The city or county clerks of each city or county in which a voting 
machine is to be used shall cause the proper ballots to be put upon each 
machine corresponding with the sample ballots herein provided for, and 
the machines in every way put in order, set and adjusted ready for use 
in voting when delivered at the precinct, and for the purpose of so labeling 
the machines, putting in order, setting and adjusting the same, they may 
employ one or more competent persons, and they shall cause the machine 
so labeled, in order and set and adjusted, to be delivered at the voting 
precinct, together with all necessary furniture and appliances that go with 
the same in the room where the election is to be held in the precinct, in 
time for the opening of the polls on election day; provided, however, 
that a shield of tin painted black made to conform with the shape of the 
keys or levers on said voting machine, shall be placed over the keys or 
levers not in use on the face of the ballot of the voting machine; said 
shields to be plainly marked with the words "not in use." 

(2) In primary elections a separate row or column shall be assigned 
to each political party and at least one row or column shall separate the 
rows assigned to the two major political parties as defined in section 23- 
1107. In this row or column shall be placed the nonpartisan judicial ballot. 
In general elections the ballot on the voting machines shall be arranged 
and the names of the candidates for each office rotated to conform as nearly 
as possible to the requirements for paper ballots set forth in section 23- 
1107. The names of the candidates of the two major parties as defined in 
section 23-1107 shall appear in and be rotated between the first two hori- 
zontal rows or vertical columns, and the names of the candidates of minor 
parties and independent candidates shall appear in and be rotated between 
succeeding rows or columns ; provided, however, that the arrangement of the 
ballot shall be uniform on all machines in the same precinct. The party des- 
ignation of each candidate shall be printed after or below his name in 
type as large as the design of the machine will allow. 

(3) The nonpartisan judicial ballot shall be placed in the first two 
horizontal or vertical rows or columns in the same position as prescribed 
for judicial candidates in section 23-1111. 

(4) The judges shall compare the ballots on the machine with the 
sample ballot, see that they are correct, examine and see that all the 
counters, if any, in the machine are set at zero, and that the machine is 

283 






23-1608A ELECTIONS 

otherwise in perfect order, and they shall not thereafter permit the ma- 
chine to be operated or moved except by electors in voting, and they 
shall also see that all necessary arrangements and adjustments are made 
for voting irregular ballots on tJie machine, if such machine be so arranged. 

History: En. Sec. 8, Ch. 168, L. 1907; 246, L. 1921; re-en. Sec. 764, B. C. M. 
Sec. 616, Rev. C. 1907; amd. Sec. 2, Ch. 1921; amd. Sec. 1, Ch. 20, L. 1959. 

23-1608A. Ballot — arrangement on machine. The arrangement of the 
general election ballot on voting machines with horizontal rows shall be, 
as nearly as possible, in the following form : 



284 



VOTING MACHINES 



23-1608A 



g 



« z 

o 3 

•< 



o 
is 

> 

§ 




O 

-I- 






2" S 

Bog 

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:= = -? 






X o <=> 









eo « 



so 



13 



o 

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HO° 

MO 

> 



oo^ 



fi 



z 



z 

o 

z 

© 



Ills 

■J S 

a^ C -^ 2 
rt i C 



S3 
M-2 



Bm 



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S ° 



U»- .a 



— • a* c* 3 u 
- ' - -^ o — 



3 <U 

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J w = w 



a 3 

3 -^ 
OS 



E2 



: = •? .-o 



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es a; 
SS o 

Oo 



T 



f*-x:^ ^ o 3*:r 



co-a 



f;z"c 
zsot o 

wmmS 

K I— I Z aj 

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Bog 
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sag! 

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oo-§ 



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'zj«cau 
uSbe-' S 



Cd 



oJIqZ 



E S fe: a< »-■ <" 
** z ^ ^ ^ o ^ 






U o o 



t- t. o o 

3"=!H" !,-,-> 
« 5> " E 



003 



5 « z; 
K M Z 
" El. O 



■J 

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in 

u 
u 

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o 

a 
z 
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o 



5 

a 

a 
z 

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285 



23-1609 



ELECTIONS 



The arrangement of the general election ballot on voting machines 
with vertical columns shall be, as nearly as possible, in the following form : 





Offices Candidates Candidates 


1 Candidates 


Candidates 


Initiatives, Referendums 

and Constitutional 

Amendments 


FOR PRESIDEN- Democrat Republican 
TIAL ELECTORS JOHN DOE 1 FRANK MOB 
TO VOTE FOR for President for President 






1 
1 


CONSTITU- 
TIONAL 
AMENDMENT 


VICE-PRESIDENT for 

OF THE LMTEU Vice-President 

STATES John Doe, 

VoU for one Ella Moe 

1 Jane Roe, 

1 Tom Voe 


for 




Jane Doe, 

Jo.iii .Moe 
Tom Roe, 
John Voc 








UNITED STATES TOM COE 
SENATOR BepubUcan 
Vote for one 


JACK MOE 
Democrat 


JOE HOE 
Socialist 




FOR 






REPRESENTA- 
TIVE IN 


JOE DOE 


MIKE ORE 
Republican 






AGAINST 




CONGRESS Democrat 

Vote for one | 




GOVERNOR BILL COB 
Vote for one Republican 


TOM ROE 

Democrat 










(Same for Lieutenant Governor, Secretary of State, 
Attorney General, State Treasurer, State Auditor, 
Railroad and Public Service Commissioners, State 
Superintendent of Public Instruction, Clerk of the 
Supreme Court, Chief Justice of the Supreme Court, 
Absociate Justice of the Supreme Court and District 
ludges.) 


STATE SENATOR , JOE COE , TOM DOE : 

Vote for one ] Republican ' Democrat | 




INITIATIVE 
NO. 1 




JACK BOB ALLEN JOE 
Democrat | Republican 

I 


MIKE FOE 

Independent 

JIM GOE 
Socialist 

BILL LOE 
Prohibition 








FOB 




MEMBER OF THE i Democrat 
HOUSE OF REP- | 
RESENTATIVES BILL DOE 


Republican 

JOE MOE 
Democrat 

EARL ROB 
Republican 




AGAINST 






FRANK HOB 

Democrat 








COUNTY 1 
COMMISSIONER JOHN DOE 
Vote for one Democrat 


MIKE ROE 
Republican 










(Same for all County and Township ofQces.) 



History: 
20, L. 1959. 



En. 23-1608A by Sec. 2, Ch. 



Compiler's Note 

The compiler deleted a repetitiou of the 



word "Justice" in the sixth line of the 
parentlietical note in the ballot form for 
voting machines with vertical columns. 



23-1609. (765) Irregular ballots. In case a voting machine be adopted 
which provides for the registry or recording of votes for candidates whose 
names are not on the official ballot, such ballots shall be denominated 
irregular ballots. A person whose name appears on a ballot, or on or in a 
machine or machine system, shall not be voted for for the same office or on 
or in any regular device for casting an irregular ticket, and any such vote 
shall not be counted, except for the office of presidential electors, and an 



286 



VOTING MACHINES 23-1611 

elector may vote in or on such irregular device for one or more persons 
nominated by one party with one or more persons nominated by any one or 
all other parties, or for one or more persons nominated by one or more par- 
ties with one or more persons not in nomination, or he may vote in such 
irregular device a presidential electoral ticket composed entirely of 
names of persons not in nomination. 

History: En. Sec. 9, Ch. 168, L. 1907; 
Sec. 617, Rev, C. 1907; re-en. Sec. 765, 
R. C. M. 1921. 

23-1610. (766) Counting the votes. As soon as the polls of the elec- 
tion are closed the judges shall immediately lock the machine, or remove 
the recording device so as to provide against voting, and open the register- 
ing or recording compartments in the presence of any person desiring to 
attend the same, and shall proceed to ascertain the number of votes cast 
for each person voted for at the election, and to canvass, record, announce, 
and return the same as provided by law. 

History: En. Sec. 10, Ch. 168, L. 1907; Collateral References 

Sec. 618, Rev. C. 1907; re-en. Sec. 766, Elections<S=>222. 

R. C. M. 1921. 29 C.J.S. Elections § 203. 

23-1611. (767) Election returns. (1) The judges, as soon as the 
count is completed and fully ascertained, shall place the machine for one 
(1) hour in such a position that the registering or recording compartments 
will be in full view of the public and any person desiring to view the num- 
ber of votes cast for each person voted for at the election, must be per- 
mitted to do so. Immediately after the above said one (1) hour shall have 
expired the judges shall seal, close, lock the machine or remove the record 
so as to provide against voting or being tampered with, and in case of a 
machine so sealed or locked, it shall so remain for a period of at least 
twenty (20) days, except when used in a municipal primary nominating 
election, unless opened by order of a court of competent jurisdiction or 
the county recount board. Whenever a machine has been used in a mu- 
nicipal primary nominating election, it shall remain sealed and locked for 
a period of at least five (5) days, unless opened by order of a court of 
competent jurisdiction. When irregular ballots have been voted, the judges 
shall return them in a properly sealed package endorsed "irregular ballots," 
and indicating the precinct and county and file such package with the city 
or county clerk. It shall be preserved for six (6) months after such election 
and may be opened and its contents examined only upon an order of a 
court of competent jurisdiction or the county recount board; at the end 
of such six (6) months unless ordered otherwise by the court, such package 
and its contents shall be destroyed by the city or county clerk. All tally 
sheets taken from such machine, if any, shall be returned in the same 
manner. 

(2) The officers heretofore charged with the duty of furnishing tally 
sheets and return blanks shall furnish suitable return blanks and certificates 
to the officers of election. Such return sheets shall have each candidate's 
name designated by the same reference character that said candidate's name 
bears on the ballot labels and counters, and shall make provision for writing 

287 



23-1612 ELECTIONS 

in of the vote for such candidate in figures and shall also provide for writ- 
ing in of the vote in words. Such return sheet shall also provide for the re- 
turn of the vote on questions. It shall also have a blank thereon, on which 
can be marked the precinct, ward, etc., of which said return sheet bears the 
returns and the number and make of the machine used. Said return sheet 
shall also have a certificate thereon, to be executed before the polls open by 
the judges of election, stating that all counters except the protective coun- 
ter, if any, and except as otherwise noted thereon, stood at "000" at the be- 
ginning of the election, and that all of said counters had been carefully 
examined before the beginning of the election; that the ballot labels were 
correctly placed on the machine and correspond to the sample ballot, and 
such other statements as the particular machine may require; and shall 
provide for the signature of the election ofiBcers. Said return sheet shall 
also have thereon a second certificate stating the manner of closing the 
polls, the manner of verifying the returns, that the foregoing returns are 
correct, giving the indication of the public counter, and poll list, and pro- 
tective counter, if any, at the close of the election. Such certificate shall 
properly specify the procedure of canvassing the vote and locking the 
machine, etc., for the particular type of machine used, and such certificate 
shall be such that the election ofificers can properly subscribe to it as hav- 
ing been followed and shall have provisions for the signature of the elec- 
tion officers. The election officers shall conform their procedure to that 
specified in the certificate to which they must certify. The certificate and 
attest of the election officers shall appear on each return sheet. 

History: En. Sec. 11, Ch. 168, L. 1907; Collateral References 

Sec. 619, Rev. C. 1907; amd. Sec. 3, Ch. Eleetions€=^248, 250 

246, L. 1921; re-en. Sec. 767, R. C. M. 29 C.J.S. Elections SS 230, 231. 

1921; amd. Sec. 16, Ch. 42, L. 1963; amd. ='* 

Sec. 1, Ch. 57, L. 1963; amd. Sec. 10, Ch. 
156, L. 1965. 

23-1612. (768) Election laws applicable. All laws of this state ap- 
plicable to elections where voting is done in another manner than by ma- 
chine, and all penalties prescribed for violation of such laws, shall apply to 
elections and precincts where voting machines are used, in so far as they 
are not in conflict with the provisions of this chapter. 

History: En. Sec. 12, Ch. 168, L. 1907; 
Sec. 620, Rev. C. 1907; re-en. Sec. 768, 
R. C. M. 1921. 

23-1613. (769) Penalty for neglect of duty by election oflBcer. Any 
public officer, or any election officer upon whom any duty is imposed by this 
act, Avho shall willfully neglect or omit to perform any such duties, or do 
any act prohibited herein for which punishment is not otherwise provided 
herein, shall, upon conviction, be imprisoned in the state prison for not less 
than one year or more than three years, or be fined in any sum not exceed- 
ing one thousand dollars, or may be punished by both such imprisonment 
and fine. 

History: En. Sec. 13, Ch. 168, L. 1907; Collateral References 

Sec. 621, Rev. C. 1907; re-en. Sec. 769, ElecfionsC^SH. 

R. C. M. 1921. 29 CJ.S. Elections § 327. 

288 



VOTING MACHINES 23-1617 

23-1614. (770) Penalty for tampering with or injuring machines. Any 
person not bemg an election ofificer who, during any election or before any 
election, after a voting machine has had placed upon it the ballots for such 
election, shall tamper with such machine, disarrange, deface, injure, or 
impair the same in any manner, or mutilate, injure, or destroy any ballot 
placed thereon or to be placed thereon, or any other appliance used in con- 
nection with such machine, shall be imprisoned in the state prison for a 
period of not more than ten years, or be fined not more than one thousand 
dollars, or be punished by both such fine and imprisonment. 

History: En. Sec. 14, Ch. 168, L. 1907; Collateral References 

Sec. 622, Rev. C. 1907; re-en. Sec. 770, Elections®='309. 

R. C. M. 1921. 29 C.J.S. Elections §§ 324, 334, 

23-1615. (771) Penalty for violation of duty by judge of election. 

Whoever, being a judge of election, with intent to permit or cause any 
voting machine to fail to correctly register or record any vote cast thereon, 
tampers with or disarranges such machine in any way, or any part or 
appliance thereof, or who causes or consents to said machine being used 
for voting at any election with knowledge of the fact that the same is 
not in order or not perfectly set and adjusted, so that it will correctly 
register or record all votes cast thereon, or who, for the purpose of de- 
frauding or deceiving any voter, or of causing it to be doubtful for 
what ticket or candidate or candidates or proposition any vote is cast, or 
of causing it to appear upon said machine that votes cast for one ticket, 
candidate, or proposition were cast for another ticket, candidate, or propo- 
sition, removes, changes, or mutilates any ballot on said machine, or any 
part thereof, or does any other like thing, shall be imprisoned in the state 
prison not more than ten years, or fined not exceeding one thousand dollars, 
or punished by both such fine and imprisonment. 

History: En. Sec. 15, Ch. 168, L. 1907; 
Sec. 623, Rev. C. 1907; re-en. Sec. 771, 
R. C. M. 1921. 

23-1616. (772) Penalty for fraudulent returns or certificates. Any 

judge or clerk of an election who shall purposely cause the vote registered 

or recorded on or in such machine to be incorrectly taken down as to any 

candidate or proposition voted on, or who shall knowingly cause to be made 

or signed any false statement, certificate, or return of any kind, of such 

vote, or who shall knowingly consent to such things, or any of them, being 

done, shall be imprisoned in the state prison not more than ten years, or 

fined not more than one thousand dollars or punished by both such fine and 

imprisonment. 

History: En. Sec. 16, Ch. 168, L. 1907; 
Sec. 624, Rev. C. 1907; re-en. Sec. 772, 
R, C. M. 1921. 

23-1617. (773) Experimental use of machines — defective machines. 
The proper officers authorized by section 23-1603 to adopt voting machines, 
may provide for the experimental use at an election of a machine or ma- 
chines, approved by the secretary of state, in one or more precincts, without 
a formal adoption or purchase thereof, and the use thereof at such election 

289 



23-1618 ELECTIONS 

shall be as valid for all purposes as if formally adopted. If from any cause 

a machine becomes unworkable, or unfit for use, voting shall proceed as in 

cases where machines are not used, and the county clerk must furnish each 

voting place with the supply of ballots and other supplies required by the 

election laws, to be used in case of emergency herein provided for, and in 

such case only. 

History: En. Sec. 17, Ch. 168, L. 1907; re-en. Sec. 773, R. C. M. 1921; amd. Sec. 
Sec. 625, Rev. C. 1907; amd. Sec. 3, Ch. 99, 3, Ch. 19, L. 1943. 
L. 1909; amd. Sec. 4, Ch. 246, L. 1921; 

23-1618. Approved machines — continuation of use. All voting ma- 
chines heretofore approved in accordance with the provisions of said sec- 
tions 23-1601 and 23-1602 prior to the amendment thereof by this act, and 
now owned and used by any of the several counties, cities or towns in this 
state, may be continued in use by such counties, cities and towns without 
the same being required to be again approved by the secretary of state in 
accordance with the provisions of said sections as hereby amended. 
History: En. Sec. 4, Oh. 19, L. 1943. 

CHAPTER 17 
ELECTION EETUKNS 

Section 23-1701. Canvass to be public and without adjournment. 

23-1702. Mode of canvassing. 

23-1703. Where ballots are in excess of names on pollbooks. 

23-1704. What ballots must be counted. 

23-1705. Ascertaining the number of votes cast and persons voted for. 

23-1706. Ballots to be strung and enclosed in sealed envelopes. 

23-1707. Rejected ballots. 

23-1708. Pollbooks — signing and certification of. 

23-1709. Election returns by judges — how made. 

23-1710. Custody of election returns. 

23-1711. Delivery to county clerk. 

23-1712. Filing of ballots and stubs by county clerk. 

23-1713. Keeping returns pending contest. 

23-1714. Disposition of returns prior to canvass of vote. 

23-1715. Clerk to file in his office books, papers, etc. 

23-1701. (774) Canvass to be public and without adjournment. As 

soon as the polls are closed, the judges must immediately proceed to can- 
vass the votes given at such election. The canvass must be public in the 
presence of bystanders and must be continued without adjournment until 
completed and the result thereof is publicly declared. 

History: Ap. p. Sec. 22, p. 380, Bannack References 

Stat.; re-en. sec 22, p 464 Cod. Stat. Harrington v. Crichton, 53 M 388. 392, 

i '^ll'^'^-J^^l ^i^- ll^' JfJ^ ""'"• 164 P 537; Maddox v. Board of State 

III- in?; ih Sv ^ni^'n^lf /?I«i ""^- Canvassers,' 116 M 217, 223, 149 P 2d 112 
Sec. 1027, 5th Div. Comp. Stat. 1887; amd. 

Sec. 1400, Pol. C. 1895; re-en. Sec. 572, Collateral References 

fo^V n^'^l^V' n^V' .nil- '^'^^' ^- ^- ^' Elections©=>259-261. 

1921. Cal. Pol. C. Sec. 1262. 29 C.J.S. Elections § 237. 

26 Am. Jur. 2d 122, Elections, § 298. 

23-1702. (775) Mode of canvassing. The canvass must commence 
by a comparison of the pollbooks from the commencement, and the cor- 

290 



I 
I 



ELECTION RETURNS 



23-1704 



rection of any mistakes that may be found therein, until they are found 
to agree. The judges must then take out of the box the ballots unopened 
except to ascertain whether each ballot is single, and count the same to 
determine whether the number of ballots corresponds with the number 
of names on tlie pollbooks. If two or more ballots are found so folded 
together as to present the appearance of a single ballot, they must be 
laid aside until the count of the ballots is completed, and if, on comparing 
the count with the pollbooks and further considering the appearance 
of such ballots, a majority of the judges are of the opinion that the bal- 
lots thus folded together were voted by one elector, they must be rejected; 
otherwise they must be counted. 



History: Ap. p. Sec. 23, p. 380, Ban- 
nack Stat.; re-en. Sec. 23, p. 464, Cod. 
Stat. 1871; re-en. Sec. 22, p. 75, L. 1876; 
re-en. Sec. 546, 5th Div. Rev. Stat. 1879; 
re-en. Sec. 1028, 5tli Div. Comp. Stat. 1887; 
amd. Sec. 1401, Pol. C. 1895; re-en. Sec. 
573, Rev. C. 1907; re-en. Sec. 775, R. C. M. 
1921; amd. Sec. 12, Ch. 64, L. 1959. Cal. 
Pol. C. Sec. 1253. 



References 

Harrington v. Crichton, 53 M 388, 392, 
164 P 537. 

Collateral References 

Elections<S='257. 

29 C.J.S. Elections § 237 (3). 

26 Am. Jur. 2d 122, Elections, § 298. 



23-1703. (776) Where ballots are in excess of names on pollbooks. 

If the ballots then are found to exceed in number the whole number of 
names on the pollbooks, they must be placed in the box (after being 
purged in the manner above stated), and one of the judges must, publicly, 
and without looking in the box, draw therefrom singly and destroy un- 
opened so many ballots as are equal to such excess. And the judges 
must make a record on the pollbooks of the number of ballots so destroyed. 

References 

State ex rel. Eiley v. District Court, 103 
M 576, 588, 64 P 2d 115. 



History: Ap. p. Sec. 24, p. 380, Ban- 
nack Stat.; re-en. Sec. 24, p. 464, Cod. 
Stat. 1871; re-en. Sec. 23, p. 76, L. 1876; 
re-en. Sec. 537, 5th Div. Rev. Stat. 1879; 
re-en. Sec. 1029, 5th Div. Comp. Stat. 
1887; amd. Sec. 1402, Pol. C. 1895; re-en. 
Sec. 574, Rev. C. 1907; re-en. Sec. 776, 
R. C. M. 1921; amd. Sec. 13, Ch. 64, L. 
1959. Cal. Pol. C. Sec. 1255. 



Collateral References 

ElectionsC=>241. 

29 C.J.S. Elections §224. 



23-1704. (777) What ballots must be counted. In the canvass of the 
votes, any ballot which is not endorsed as provided in this code by the 
oflficial stamp is void and must not be counted, and any ballot or parts of a 
ballot from which it is impossible to determine the elector's choice is void 
and must not be counted; if part of a ballot is sufficiently plain to gather 
therefrom the elector's intention, it is the duty of the judges of election to 
count such part. 



History: En. Sec. 30, p. 143, L. 1889; 
re-en. Sec. 1403, Pol. C. 1895; re-en. Sec. 
575, Rev. C. 1907; re-en. Sec. 777, R. C. M. 
1921. 

Indistinct and Irregular Marking of Bal- 
lots 

Where, from the manner in which a 
ballot was marked, it was impossible to 
determine the elector's choice, the ballot 



was void under this section, and should 
not have been counted in an election con- 
test. Carwile v. Jones, 38 M 590, 598, 101 
P 1.53. 

A ballot bearing a rather indistinct "X" 
before contestant's name but sufficient to 
be discernible should have been counted 
for him where there was no erasure and 
the elector voted for no other candidate 
for that office; and under the rule that. 



291 



23-1705 



ELECTIONS 



the elector's intention must plainly ap- 
pear, where the voter marked two squares 
for the oflSce of sheriff, one of which 
showed an extra line through the "X" in- 
dicating perhaps, that the voter changed 
his mind but for the fact that squares 
before the names of other candidates were 
marked similarly, the intention was not 
clear and the ballot should not have been 
counted. Peterson v. Billings, 109 M 390, 
392, 96 P 2d 922. 

Liberal Construction — Intention of Voter 

Under this section, and the rule that 
election laws must be liberally construed, 
a ballot showing the intersection of the 
"X" outside the square should have been 
counted for contestant, and one showing 
the intersection of the cross squarely on 
the line of the square was properly so 
counted for him. Peterson v. Billings, 109 
M 390, 393, 96 P 2d 922. 

Official Stamp Missing 

This section was enacted prior to tho 
provision for a stub at the head of the 
ballot. The legislature, by providing for 
the stub to be numbered, and to be re- 
moved only at the time of depositing the 
ballot in the ballot box, has hit upon an 
effective method of guarding against fraud 
and illegal voting, and has ensured tho 



deposit of the ballot in the ballot box, 
and the provisions of the section should 
now be construed in the light of the 
changed conditions. Hence where ballots 
had been delivered to electors by the 
judges of election with the official stamp 
apparently in the place in which tho law 
requires it to be, althougli in reality it 
was on the stub instead of on the ballot 
proper, the act of the judges in removing 
the stamp with the stub, thus leaving the 
ballot without the official designation, did 
not render the ballots void, and the same 
should have been counted. Harrington v. 
Crichton, 53 M 388, 396, 164 P 537. 

School Elections 

The validity of contested school elec- 
tions is determined by the laws of general 
elections as set forth in this section. Wool- 
sey V. Carney, 141 M 476, 378 P 2d 658. 

References 

State ex rcl. Brooks v. Fransham, 19 
M 273, 292, 48 P 1 ; Goodell v. Jiiditli 
Basin County, 70 M 222, 242, 224 P 1110; 
State ex rel. Riley v. District Court, 103 M 
576, 588, 64 P 2d 115. 

Collateral References 

Elcctions<&='224. 

29 C.J.S. Elections § 21L 



23-1705. (778) Ascertaining the number of votes cast and persons 
voted for. The ballots and poll lists agreeing or being made to agree, the 
judges must then proceed to count and ascertain the number of votes cast 
for each person voted for. In making such count the ballots must be opened 
singly by one of the judges, and the contents thereof, while exposed to the 
view of the other judges, must be distinctly read aloud by the judge who 
opens the ballot. As the ballots are read, each clerk must write at full length 
on a sheet to be known as a tally sheet the name of every person voted 
for and of the office for which he received votes, and keep by tallies on 
such sheet the number of votes for each person. The tally sheets must 
then be compared and their correctness ascertained, and the clerks must, 
under the supervision of the judges, immediately thereafter set down, at 
length and in their proper places in the poUbooks, the names of all per- 
sons voted for, the offices for which they respectively received votes, and 
the total number of votes received by each person, as shown by the tally 
sheets. No ballot or vote rejected by the judges must be included in the 
count provided for in this section. 

History: Ap. p. Sec. 25, p. 380, Ban- 
nack Stat.; re-en. Sec. 25, p. 464, Cod. Stat. 
1871; re-en. Sec. 24, p. 76, L. 1876; re-en. 
Sec. 538, 5th Dlv. Rev. Stat. 1879; re-en. 
Sec. 1030, 5th Dlv. Comp. Stat. 1887; amd. 
Sec. 1404, Pol. C. 1895; re-en. Sec. 576, 
Rev. C. 1907; re-en. Sec. 778, R. C. M. 
1921. 



References 

Dubie v. Batani, 97 M 468, 476, 37 P 
2d 662; Maddox v. Board of State Can- 
vassers, 116 M 217, 223, 149 P 2d 112; 
State ex rel. Thomas v. District Court, 
116 M 510, 513, 154 P 2d 980. 

Collateral References 

Elections<&='241. 

29 C.J.S. Elections § 224. 



292 



ELECTION RETURNS 23-1709 

23-1706. (779) Ballots to be strung and enclosed in sealed envelopes. 

The ballots, as soon as read or rejected for illefjality, must be strung upon a 

string by one of the judges, and must not thereafter be examined by any 

person, but must, as soon as all legal ballots are counted, be carefully sealed 

in a strong envelope, each member of the judges writing his name across 

the seal. 

History: En. Sec. 1405, Pol. C. 1895; prevent tho ascertainment of tho result 
re-en. Sec. 577, Rev. C. 1907; re-en. Sec. of tho election, and was insufficient to 

779, R. C. M. 1921. Cal. Pol. C. Sec. 1259. impeach tho returns of *hc precinct. Dubie 

V. Batani, 97 M 4G8, 479, 37 P 2d 662. 
FaUure To String Voted Ballots 

Failure of the judges of election of a CoUateral References 

voting precinct to place the voted ballots Election3<>=255. 

on a string in compliance with the provi- 29 C.J.S. Elections § 234. 

sions of this section did not obstruct or 

23-1707. (780) Rejected ballots. Any ballot rejected for illegality 
must be marked by the judges, by writing across the face thereof "Rejected 
on the ground of ," filling the blank with a brief state- 
ment of the reasons for the rejection, which statement must be dated and 
signed by a majority of the judges. 

History: En. Sec. 1406, Pol. C. 1895; Collateral References 

re-en. Sec. 578, Rev. C. 1907; re-en. Sec. EIections<S='224. 

780, R. C. M. 1921. 29 C.J.S. Elections § 211. 

23-1708. (781) PoUbooks — signing and certification of. As soon as all 

the votes are counted and the ballots sealed up, the pollbooks must be 

signed and certified to by the judges and clerks of election substantially as 

in the form in section 23-702. 

History: En. Sec. 1407, Pol. C. 1895; 
re-en. Sec, 579, Rev. C. 1907; re-en. Sec. 

781, R. C. M. 1921. 

23-1709. (782) Election returns by judges — how made. The judges 
must, before they adjourn, enclose in a strong envelope, securely sealed 
and directed to the county clerk, the precinct registers, all certificates of 
registration received by them, the lists of persons challenged, both of the 
pollbooks, both of the tally sheets, and the official oaths taken by the judges 
and clerks of election ; and must enclose in a separate package or envelope, 
securely sealed and directed to the county clerk, all unused ballots with 
the numbered stubs attached ; and must also enclose in a separate pack- 
age or envelope, securely sealed and directed to the county clerk, all 
ballots voted, including all voted ballots Avhich, for any reason, were not 
counted or allowed, and all detached stubs from ballots voted, and en- 
dorse on the outside thereof "ballots voted." Each of the judges must 
write his name across the seal of each of said envelopes or packages. 
The ballot box must be returned to the county clerk. 
History: Ap. p. Sec. 1408, Pol. C. 1895; Construction 

amd. Sec. 6, Ch. 88, L. 1907; re-en. Sec. rj,^^ ^^^ contemplates that the election 

580, Rev. C. 1907; re-en. Sec. 782, R. C. M. ^oard in the precinct will return to the 
1921; amd. Sec. 1, Ch. 112, L. 1937; amd. ^.j^j.^ and recorder but one tally sheet and 
Sec. 1, Ch. 65, L. 1943; amd. Sec. 1, Ch. ^^^ ^opy of the pollbook. State ex rel. 
23, L. 1945; amd. Sec. 14, Ch. 64, L. 1959. Lynch v. Batani, 103 M 353, 361, 62 P 

2d 565. 

293 



23-1710 ELECTIONS 

References Collateral Eeferences 

Dubie V. Batani, 97 M 468, 478, 37 P 2d Electionse=>241, 248-250. 

662. 29 C.J.S. Elections §§ 224, 230, 231. 

23-1710. (784) Custody of election returns. The sealed envelope con- 
taining the check lists, certificates of registration, pollbook, tally sheets, 
oaths of election officers, also the package or envelope containing the voted 
ballots and detached stubs and the package or envelope containing the 
unused ballots, must, before the judges adjourn, be delivered to one of their 
number, to be determined by lot, unless otherwise agreed upon. 

History: Ap. p. Sec. 1410, Pol. C. 1895; Collateral References 

amd. Sec. 7, Ch. 88, L. 1907; re-en. Sec. Elections<3=»251 

582, Rev. C. 1907; re-en. Sec. 784, R. C. M. £9 C.J.S. Elections S 232. 

1921; amd. Sec. 2, Ch. 23, L. 1945. Cal. '^ 

Pol. C. Sec. 1263. 

23-1711. (785) Delivery to county clerk. The judges to whom such 
packages are delivered must, within twenty-four hours, deliver them, with- 
out their having been opened, to the county clerk, or convey the same, un- 
opened, to the post office nearest the house in which the election for such 
precinct was held, and register and mail the same, duly directed to the said 
clerk. 

History: En. Sec. 1411, Pol. C. 1895; 
re-en. Sec. 583, Rev. C. 1907; re-en. Sec. 
785, R. C. M. 1921. 

23-1712. (786) Filing of ballots and stubs by county clerk. Upon the 
receipt of the packages or envelopes by the county clerk, he must file the 
package or envelope containing the ballots voted and detached stubs and 
the package or envelope containing the unused ballots, and must keep 
them unopened and unaltered for twelve (12) months, after which time, 
if there is no contest commenced in some tribunal having jurisdiction 
about such election or a recount is had as provided by law, he must burn 
such packages, or envelopes, without opening or examining their con- 
tents. 

History: Ap. p. Sec. 1412, Pol. C. 1895; Collateral References 

amd. Sec. 8, Ch. 88, L. 1907; re-en. Sec. Elections^^^SS 

584, Rev. C. 1907; re-en. Sec. 786, R. C. M. 29 C.J.S. Elections 8 234. 
1921; amd. Sec. 3, Ch. 23, L. 1945; amd. * 
Sec. 17, Ch. 42, L. 1963. Cal. Pol. C. Sec. 

1265. 

23-1713. (787) Keeping returns pending contest. If, within twelve 

months, there is such a contest commenced, he must keep the packages of 

envelopes unopened and unaltered until it is finally determined, when he 

must, as provided in the preceding section, destroy them, unless the same 

are by virtue of an order of the tribunal in which the contest is pending, 

brought and opened before it to the end that evidence may be had of their 

contents, in which event the packages or envelopes and their contents are 

in the custody of such tribunal. 

History: Ap. p. Sec. 1413, Pol. C. 1895; References 

amd. Sec. 9, Ch. 88, L. 1907; re-en. Sec. Lane v. Bailey, 29 M 548, 560, 75 P 191. 

585, Rev. C. 1907; re-en. Sec. 787, R. C. M. 
1921. Cal. Pol. C. Sec. 1266. 

294 



CANVASS OF ELECTION RETURNS 23-1802 

23-1714. (788) Disposition of returns prior to canvass of vote. The 

envelopes containing the precinct registers, certificates of registration, 

pollbooks, tally sheets, and oaths of election officers must be filed by the 

county clerk and be kept by him, unopened and unaltered, until the board 

of county commissioners meet for the purpose of canvassing the returns, 

when he must produce them before such board, where the same shall 

be opened. 

History: Ap. p. Sec. 1414, Pol. C, 1895; References 

^fa^^^'^'n^^J^i- ^^' ^'J^^Vor'^^'-Jl^,- ^I^ddox V. Board of State Canvassers, 

586, Rev. C. 1907; re-en. Sec. 788, R. C. M. iig \r ''l? "^r 140 p o-i no 

1921; amd. Sec. 15, Ch. 64, L. 1959. ' " ' ^ "^ " 

23-1715. (789) Clerk to file in his office books, papers, etc. As soon 
as the returns are canvassed, the clerk must file in his office the pollbooks, 
election records and the papers produced before the board from the pack- 
age mentioned in the next preceding section. 

History: En. Sec. 1415, Pol. C. 1895; 789, R. C. M. 1921; amd. Sec. 16, Ch. 64, 
re-en. Sec. 587, Rev. C. 1907; re-en. Sec. L. 1959. Cal. Pol. C. Sec. 1268. 

CHAPTER 18 

CANVASS OF ELECTION RETURNS— RESULTS AND CERTIFICATES 

Section 23-1801. Meeting of county commissioners to canvass returns. 

23-1802. In case of absence certain county officers to act. 

23-1803. Canvass to be postponed, when. 

23-1804. Canvass to be public. 

23-1805. Statement of the result to be entered of record. 

23-1806. Plurality to elect. 

23-1807. Duty of canvassing board. 

23-1808. Certificates issued by the clerk. 
23-1809 to 23-1811. Repealed. 

23-1812. State returns, how made. 

23-1813. How transmitted. 

23-1814. State canvassers, composition and meeting of board. 

23-1815. Messenger may be sent for returns — his duty and compensation. 

23-1816. Governor to issue commissions. 

23-1817. Defect in form of returns to be disregarded. 

23-1818. Duty of secretary of state to print election laws. 

23-1819. Penalties. 

23-1801. (790) Meeting of county commissioners to canvass returns. 

The board of county commissioners of each county is ex officio a board of 
county canvassers for the county, and must meet as the board of county 
canvassers at the usual place of meeting of the county commissioners within 
ten days after each election, at twelve o'clock noon, to canvass the returns. 

History: En. Sec. 2, p. 299, L. 1891; Wulf v. McGrath, 111 M 96, 100, 106 P 

amd. Sec. 1430, Pol. C. 1895; re-en. Sec. 2d 183; Maddox v. Board of State Can- 

588, Rev. C. 1907; re-en. Sec. 790, R. C. M. vassers, 116 M 217, 225, 149 P 2d 112. 

1921. Cal. Pol. C. Sec. 1278. CoUateral References 

References EIections<3=3258. 

State ex rel. Cryderman v. Wienrich, 29 C.J.S. Elections § 236. 

54 M 390, 400, 170 P 942; State ex rel. 26 Am. Jur. 2d 122, Elections, § 298. 

23-1802. (791) In case of absence certain county officers to act. If, at 

the time and place appointed for such meeting, one or more of the county 
commissioners should not attend, the place of the absentees must be sup- 

295 



23-1803 ELECTIONS 

plied by one or more of the following county officers, whose duty it is to act 
in the order named, to wit, the treasurer, the assessor, the sheriff, so that 
the board of county canvassers shall ahvays consist of three acting mem- 
bers. The clerk of the board of county commissioners is the clerk of the 
board of county canvassers. 

History: Ap. p. Sec. 2, p. 299, L. 1891; as constituting the board of county can- 

amd. Sec. 1431, Pol. C. 1895; re-en. Sec. vassers of election returns for a certain 

589, Rev. C. 1907; re-en. Sec. 791, R. C. county of the state, the particular niem- 
M. 1921. bers of sucli board at the time in qucs- 

Reconvenlng of County Board of Can- tion being the persons against whom obe- 

vassers dience must, if necessary, be enforced. 

The members of a county board of can- State ex rel. Leech v. Board of Canvassers 

vassers do not necessarily embrace the of Choteau County, 13 M 23, 20, 31 P 879. 

same officers, but arc subject to changes References 
which depend upon circumstances, and 

a writ of mandate, issued to compel such State ex rel. Crydcrman v. Wienrich, 

board to reconvene and canvass the re- ^^ ^^ ^90, 400, 170 P 942. 

turns from an election precinct which CoUateral References 

they had excluded, is properly directed couaterai Keierences 

to the particular individuals comprising Elections<S='257. 

the board, describing them by name, and "^ C.J.S. Elections § 235. 

23-1803. (792) Canvass to be postponed, when. If, at the time of 
meeting, the returns from each precinct in the county in which polls were 
opened have been received, the board of county canvassers must then and 
there proceed to canvass the returns; but if all the returns have not been 
received, the canvass must be postponed from day to day until all of the 
returns arc received, or until seven postponements have been had. If the 
returns from any election precinct have not been received by the county 
clerk within seven days after any election, it is his duty forth^vith to send a 
messenger to the judges for the missing returns, who must procure such 
returns from the judges, or any of them, and return the same to the county 
clerk. Sucli messenger must be paid out of the county treasury fifteen 
cents per mile in going and coming. If it appears to the board, by evidence, 
that the polls were not opened in any precinct, and no returns have 
been received therefrom, the board must certify to the same, and file such 
certificate with the county clerk, with the evidence, if any, who must enter 
the same in the minutes and in the statement mentioned in section 23-1805. 

History: Ap. p. Sec. 3, p. 300, L. 1891; References 

amd. Sec. 1432, Pol. C. 1895; re-en. Sec. state ex rel. Crydcrman v. Wienrich, 

590, Rev. C. 1907; re-en. Sec. 792, R. C. M. 54 m 390. 400, 170 P 942. 
1921. Cal. Pol. C. Sec. 1280. 

23-1804. (793) Canvass to be public. The canvass must be made in 
public by opening the returns and determining therefrom the vote of such 
county or precinct for each person voted for, and for and against each 
proposition voted upon at such election, and declaring the result thereof. 
In canvassing, no returns must be rejected if it can be ascertained there- 
from the number of votes cast for each person. The fact that the returns do 
not sliow who administered the oath to the judges or clerks of election, 
or a failure to fill out all the certificates in the pollbooks, or to do or per- 
form any other act in making up the returns, that is not essential to de- 
termine for whom the votes were cast, is not such an irregularity as to 

296 



CANVASS OF ELECTION RETURNS 



23-1806 



entitle the board to reject the same, but they must be canvassed as other 

returns are. 



History: En. Sees. 4 and 5, p. 301, 
L. 1891; re-en. Sec. 1433, Pol. C. 1895; 
re-en. Sec. 591, Rev. C. 1907; re-en. Sec. 
793, R. C. M. 1921. Cal. Pol. C. Sec. 1281. 

Exclusion of Returns 

A county board of canvassers has no 
authority to inquire into the validity of a 
certificate of nomination of a nominee 
for office, and therefore, where the election 
returns arc genuine and properly certified, 
prohibition will not lie to restrain the 
board from canvassing such returns and 
counting the vote cast for such person, as 
required by sections 4 and C, pages 301, 
302 of the Laws of 1891, upon the ground 
that the nomination was invalid. Pigott 
V. Board of Canvassers of Cascade County, 

12 M 537, 538, 31 P 536. 

The duties of a county canvassing board 
are ministerial, and such board has no 
authority to exclude the returns of an 
election precinct, regularly made, upou the 
ground that the voting was shown by affi- 
davits to bo illegal, and, having done so, 
may be compelled by mandamus to can- 
vass such returns. State ex rel. Leech 
V. Board of Canvassers of Choteau County, 

13 M 23, 30, 31 P 879. Sec also State ex 
rel. Breeu v. Toole, 32 M 4, 10, 79 P 403; 
Poe V. Sheridan County, 52 M 279, 288, 
157 P 185. 

Where a county canvassing board is- 
sued a certificate of election to a candi- 



date for the legislative assembly after un- 
lawfully excluding the returns of a par- 
ticular precinct, and then adjourned sine 
die, such board may be compelled by 
mandamus to reconvene and canvass the 
returns so excluded, and issue a certificate 
of election to the person shown by a 
complete canvass to bo entitled thereto. 
State ex rel. Leech v. Board of Canvassers 
of Choteau County, 13 M 23, 31, 31 P 879. 

Eeturns in the pollbook being left 
blank, and the certificate thereto not 
being properly filled in, arc not grounds 
for rejecting returns, nor are they such 
irregularities as will entitle a board of 
canvassers to reject them. State ex rel. 
Leech v. Board of Canvassers of Choteau 
County, 13 M 23, 31, 31 P 879. 

It is the duty of the board of canvassers 
to procure the check lists and surrendered 
lists before rejecting the vote of a precinct 
as returned by the pollbooks alone. State 
ex rel. Leech v. Board of Canvassers of 
Choteau County, 13 M 23, 31, 31 P 879. 

References 

Stephens v. Nacey, 47 M 479, 485, 133 
P361. 

Collateral References 

Election8<S=»259. 

29 C.J.S. Elections § 237. 



23-1805. (794) Statement of the result to be entered of record. The 

clerk of the board must, as soon as the result is declared, enter on the 
records of such board a statement of such result, which statement must 
show: 

1. The whole number of votes cast in the county. 

2. The names of the persons voted for and the propositions voted upon. 

3. The office to fill which each person was voted for. 

4. The number of votes given at each precinct to each of such persons, 
and for and against each of such propositions. 

5. The number of votes given in the county to each of such persons, 

and for and against each of such propositions. 

History: En. Sec. 6, p. 301, L. 1891; Collateral References 

re-en. Sec. 1434, Pol. C. 1895; re-en. Sec. Elections®=>''59 

692, Rev. C. 1907; re-en. Sec. 794, E. C. M. 29 C.J.S. Elections 8 237. 
1921. Cal. Pol. C. Sec. 1282. " 

23-1806. (795) Plurality to elect. The person receiving at any elec- 
tion the highest number of votes for any office to be filled at such election is 
elected thereto. 



History: En. Sec. 1170, Pol. C. 1895; 
re-en. Sec. 456, Rev. C. 1907; re-en. Sec. 
795, R. C. M. 1921. Cal. PoL C. Sec. 1066. 



Where Deceased Candidate Received 
Majority of Votes, Highest Write-in Candi- 
date Held Elected 



297 



23-1807 ELECTIONS 

Where a candidate for re-election to a vassing board to reconvene and cause cer- 
county office died 24 days before election, tificate of election issued to him, that 
his death known generally to electors, but write-in candidate elected and entitled to 
his name placed on ballot and majority the office. State ex rel. Wolff v. Geurkink, 
voted for him supposing to retain his wid- 111 M 417, 426, 109 P 2d 1094, 133 ALR 
ow, appointed to fill the vacancy, until 304. 
the next general election, a write-in candi- 
date whom they intended to defeat, re- Collateral Eeferences 
ceiving tlie highest vote cast for any living EIections<£=3237. 
person, held, on his application for writ 29 C.J.S. Elections § 241. 
of mandate to compel the county can- 

23-1807. (796) Duty of canvassing board. The board must declare 
elected the person having the highest number of votes given for each 
office to be filled by the votes of a single county or a subdivision thereof, 
except members of the legislative assembly. If a recount shall show that 
two or more persons received an equal and sufficient number of votes to 
elect to the office of state senator, or member of the house of representatives, 
the state recount board shall certify such facts to the governor. 

History: En. Sec. 6, p. 302, L. 1891; Collateral References 

re-en. Sec. 1435, Pol. C. 1895; re-en. Sec. Elections<&='259 260. 

593, Rev. C. 1907; amd. Sec. 1, Ch. 84, 29 C.J.S. Elections S 237. 
L. 1909; re-en. Sec. 796, R. C. M. 1921; 

amd. Sec. 18, Ch. 42, L. 1963; amd. Sec. 
8, Ch. 194, L. 1967. 

23-1808. (797) Certificates issued by the clerk. The clerk of the 
board of county commissioners must immediately make out and deliver 
to such persons (except to the person elected district judge) a certificate 
of election signed by him and authenticated with the seal of the board of 
county commissioners, and said certificate shall contain therein written 
notice that the official bond of the elected or appointed official must be 
filed within thirty (30) days after notice of election or appointment, and 
that failure to file such bond shall cause the office to become vacant. 

History: En. Sec. 7, p. 302, L. 1891; References 

re-en. Sec. 1436, Pol. C. 1895; re-en. Sec. gt^tg ex rel. Wallace v. Callow, 78 M 

594, Rev. C. 1907; re-en. Sec. 797, R. C. 308, 315, 254 P 187; State ex rel. Riley 
M. 1921; amd. Sec. 1, Ch. 50, L. 1959. ^._ District Court, 103 M 576, 581, 64 P 
Cal. Pol. C. Sec. 1284. 26. 115. 

Cross-Reference Collateral References 

County clerk to issue certificate of elec- Elections<3^2C5. 

tion, sec. 16-1157. 29 C.J.S. Elections § 240. 

23-1809 to 23-1811. (798 to 800) Repealed— Chapter 194, Laws of 1967. 

Repeal 1967_ However, the title of the repealing 

These sections (Sees. 8, 9, pp. 302, 303, act, apparently through clerical error, 

L. 1891; Sees. 1437 to 1439, Pol. C. 1895), listed 23-1812 as repealed, instead of this 

relating to returns for election of legis- section. For present law, see sees. 23-1812 

lators representing more than one county, to 23-1814. 

were repealed by Sec. 13, Ch. 194, Laws 

23-1812. (801) State returns, how made. When there has been a gen- 
eral or special election for officers voted for by the electors of the state at 
largo, for members of the legislative assembly, or for judicial officers (except 
justices of the peace), each clerk of the board of county canvassers, so soon 
as the statement of the vote of his county is made out and entered upon the 
records of the board of county commissioners, must make a certified abstract 

298 



CANVASS OF ELECTION RETURNS 23-1815 

of SO much thereof as relates to the votes given for persons for said offices 

to be filled at such election. 

History: En. Sec. 10, p. 303, L. 1891; provisions in case the result of the election 

amd. Sec. 1440, Pol. C. 1895; re-en. Sec. is changed upon a recount. State ex rel. 

598, Rev. C. 1907; re-en. Sec. 801, R. C. M. Kiley v. District Court, 103 M 576, 583, 64 

1921; amd. Sec. 9, Ch. 194, L. 1967. Cal. P 2(1 115. 



Pol. C. Sec. 1288. 

Statutes In Pari Materia with Others 



References 



HcrwoEj V. Thirty Ninth Legislative As- 

This section and sections 23-1813 and spmbly of State of Montana, 246 F Supp 

23-1814, relating to canvassers' abstract to 454 
secretary of state, and section 23-2301 et 

seq., authorizing recount of votes, etc., are Collateral References 

in pari materia and must be construed ElectionsC=>247. 

together, both the county and state board 29 C.J.S. Elections § 229. 
of canvassers being governed by the former 

23-1813. (802) How transmitted. The clerk must seal up such ab- 
stract, endorse it "Election Returns," and without delay transmit it to 
the secretary of state by certified mail. 

History: En. Sec. 11, p. 303, L. 1891; References 

re-en. Sec. 1441, Pol. C. 1895; re-en. Sec. Herweg v. Thirty Ninth Legislative As- 

599, Rev. C. 1907; re-en. Sec. 802, R. 0. gemblv of State of Montana, 246 F Supp 
M. 1921; amd. Sec. 1, Ch. 87, L. 1959. 454 ' 

Cal. Pol. C. Sec. 1289. ' , 

Collateral References 

Elections'S=>251. 

29 C.J.S. Elections § 232. 

23-1814. (803) State canvassers, composition and meeting of board. 

Within thirty days after the election and sooner if the returns be all 
received, the state auditor, state treasurer, and attorney general, who con- 
stitute a board of state canvassers, must meet in the office of the secretary of 
state and compute and determine the vote, and the secretary of state, who 
is secretary of said board, must make out and file in his office a statement 
thereof and transmit a copy of such statement to the governor. 

History: En. Sec. 14, p. 304, L. 1891; References 

amd. Sec. 1442, Pol. C. 1895; re-en. Sec. Herweg v. Thirty Ninth Legislative As- 

600, Rev. C. 1907; re-en. Sec. 803, R. C. M. sembly of State of Montana, 246 F Supp 
1921; amd. Sec. 1, Ch. 55, L. 1949. Cal. 454. 

Pol. O. Sec. 1290. « „ . , « ^ 

Collateral References 

Elections<S='258, 259. 

29 C.J.S. Elections §§ 236, 237. 

23-1815. (804) Messenger may be sent for returns — his duty and com- 
pensation. If the returns from all the counties have not been received on 
the fifth day before the day designated for the meeting of the board of state 
canvassers, the secretary of state must forthwith send a messenger to the 
clerk of the board of county canvassers of the delinquent county, and such 
clerk must furnish the messenger with a certified copy of the statement 
mentioned in section 23-1805. The person appointed is entitled to receive 
as compensation five dollars per day for the time necessarily consumed in 
such service, and the traveling expenses necessarily incurred. His account 
therefor, certified by the secretary of state, must be paid out of the general 
fund of the state treasury. 

299 



23-1816 ELECTIONS 

History: Ap. p. Sees. 12 and 13, L. Collateral References 

1891; amd. Sec. 1443, Pol. C. 1895; re-en. Elections<2=252. 

Sec. 601, Rev. C. 1907; re-en. Sec. 804, 29 C.J.S. Elections § 229. 

R. C. M. 1921; amd. Sec. 16, Ch. 97, L. 
1961. 

23-1816. (805) Governor to issue commissions. Upon receipt of such 
copy mentioned in section 23-1814, the governor must issue commissions to 
the persons who from it appear to have received the highest number of votes 
for offices to be filled at such election. In case a governor has been elected 
to succeed himself, the secretary of state must issue the commission. 

History: En. Sec. 15, p. 304, L. 1891; sembly of State of Montana, 246 F Supp 
amd. Sec. 1444, Pol. C. 1895; re-en. Sec. 454. 
602, Rev. C. 1907; re-en. Sec. 805, R. C. M. collateral References 

1921. Cal. Pol. C. Sec. 1291. ^^^ ^_,^„ 

StatesG='48. 

References 81 C.J.S. States § 76. 

Herweg v. Thirty Ninth Legislative As- 

23-1817. (806) Defect in form of returns to be disregarded. No declara- 
tion of the result, commission, or certificate must be withheld on account of 
any defect or informality in the return of any election, if it can with reason- 
able certainty be ascertained from such return what office is intended and 
who is elected thereto. 

History: En. Sec. 17, p. 305, L. 1891; Collateral References 

re-en Sec. 1448, Pol. C. 1895; re-en. Sec. Elections<&=»257, 265; States<3=»48. 

606, Rev. C. 1907; re-en. Sec. 806, R. C. M. 29 C.J.S. Elections §§ 235, 240; 81 C.J.S, 

1921. Cal. Pol. C. Sec. 1297. States § 76. 

References 

Stephens v. Nacey, 47 M 479, 485, 133 P 
361. 

23-1818. (807) Duty of secretary of state to print election laws. It is 
the duty of the secretary of state to cause to be published, in pamphlet form, 
a sufficient number of copies of election laws and such other provisions of 
law as bear upon the subject of elections, and to transmit the proper number 
to each county clerk, whose duty it is to furnish each election officer in his 
county with one of such copies. 

History: En. Sec. 18, p. 305, L. 1891; 607, Rev. C. 1907; re-en. Sec. 807, R. C. M. 
re-en. Sec. 1449, PoL C. 1895; re-en. Sec. 1921. 

23-1819. (808) Penalties. The penalties for the violation of election 
laws are prescribed in sections 94-1401 to 94-1474. 

History: En. Sec. 1460, Pol. 0. 1895; section, was repealed by Sec. 4, Ch. 50, 
re-en. Sec. 608, Rev. C. 1907; re-en. Sec. Laws 1947. 

808, R. C. M. 1921. « „ * , „ * 

' Collateral References 

Compiler's Note Electionse=3309 et seq. 

Section 94-1461, included in the refer- 29 C.J.S. Elections §§ 324, 334. 

ence to sections 94-1401 to 94-1474 in this 

CHAPTER 19 

FAILURE OF ELECTIONS— PROCEEDINGS ON TIE VOTE 

Section 23-1901. Tie vote on representative in Congress. 
23-1902. Proceedings on tie vote. 

300 



PROCEEDINGS ON TIE VOTE 23-1903 

23-1903. Tie vote on state officers. 
23-190-i. Tie vote on judicial officers. 

23-1901. (809) Tie vote on representative in Congress. In ease of a 
failure, by reason of a tie vote or otherwise, to elect a representative in 
Congress, the secretary of state must transmit to the governor a certified 
statement showing the vote cast for such persons voted for, and in case of a 
failure to elect, by reason of a tie vote or otherwise, the governor must order 
a special election. 

History: En. Sec. 16, p. 305, L. 1891; Collateral References 

re-en. Sec. 1447, Pol. C. 1895; re-en. Sec. Elections<S='238. 

605, Rev. C. 1907; re-en. Sec. 809, R. C. M. 29 C.J.S. Elections § 244. 

1921. 

23-1902. (810) Proceedings on tie vote. In case any two or more per- 
sons have an equal and highest number of votes for either governor, 
lieutenant governor, secretary of state, attorney general, state auditor, 
state treasurer, clerk of the supreme court, superintendent of public instruc- 
tion, or any other state executive officer, the legislative assembly, at its next 
regular session, must forthwith, by joint ballot of the two houses, elect one 
of such persons to fill such office ; and in case of a tie vote for clerk of the 
district court, county attorney, or any county officer except county 
commissioner, and for any township officer, the board of county commis- 
sioners must appoint some eligible person, as in case of other vacancies in 
such offices; and in case of a tie vote for county commissioner, the district 
judge of the county must appoint an eligible person to fill the office, as in 
other cases of vacancy. 

History: En. Sec. 1171, Pol. C. 1895; and he is entitled to hold over until the 

re-en. Sec. 457, Rev. C. 1907; re-en. Sec. people have chosen his successor in the 

810, R. C. M. 1921. Cal. Pol. C. Sees. 1067- usual way; but, in the case of judicial 

1068. officers, whose terms end at the expiration 

of a definitely fixed period, the words 

Clerk of District Court «and until his successor is elected and 

The provisions of the constitution, fix- qualified," refer to those officers only who 

ing the terms of judicial officers, are ex- were first elected after the adoption of the 

elusive, and vacancies occur by operation constitution; they have no application to 

of law upon the expiration of the terms those chosen after such first election. State 

designated, even where the people fail to ex rel. Jones v. Foster, 39 M 583, 586, 104 

elect their successors; hence, if, by rea- P 860. 
son of a tie vote, there is a failure to 

elect the successor of a clerk of a district County School Superintendent 

court upon the expiration of the incum- This section does not in terms declare 

bent's term, there is a vacancy which the that a vacancy in office shall occur when 

county commissioners are authorized, un- there has been no election to the office by 

der this section, to fill by appointment. reason of a tie vote. In so far as it relates 

State ex rel. Jones v. Foster, 39 M 583, to officers named in the constitution 

592, 104 P 860. See also State ex rel. Pat- (county school superintendent) and the 

terson v. Lentz, 50 M 322, 336, 146 P 932. authority of the county commissioners to 

If there is a clause in the constitution fill vacancies therein, it is invalid. State 

providing that an officer shall hold for ex rel. Chenoweth v. Acton, 31 M 37, 40, 

a definite term and until his successor is 77 P 299. See State ex rel. Jones v. Foster, 

elected and qualified, and the people fail 39 M 583, 591, 104 P 860. 
to elect his successor, there is no vacancy, 

23-1903. (811) Tie vote on state oflScers. In case of a tie vote for state 
officers, as specified in the preceding section, it is the duty of the secretary 
of state to transmit to the legislative assembly, at its next regular session, 

301 



23-1904 ELECTIONS 

a certified copy of the statement showing the vote cast for the two or more 

persons having an equal and the highest number of votes for any state 

ofiice. 

History: En. Sec. 1445, Pol. C. 1895; 
re-en. Sec. 603, Rev. C. 1907; re-en. Sec. 

811, R. C. M. 1921. 

23-1904. (812) Tie vote on judicial officers. In case any two or more 
persons have an equal and highest number of votes for justice of the 
supreme court, or judge of a district court, or member of the legislative 
assembly, the secretary of state must transmit to the governor a certified 
statement showing the vote cast for such person, and thereupon the gover- 
nor must appoint an eligible person to hold office as in case of other vacan- 
cies in such offices. 

History: En. Sec. 1446, Pol. C. 1895; Collateral References 

re-en. Sec. 604, Rev. C. 1907; re-en. Sec. Elections<S='238; Judges®=8. 

812, R. C. M. 1921; amd. Sec. 10, Ch. 194, 29 C.J.S. Elections §244; 48 C.J.S. 
I,. 1967. Judges § 32. 

CHAPTER 20 

NONPAETISAN NOMINATION AND ELECTION OF JUDGES OF 
SUPREME COURT AND DISTRICT COURTS 

Section 23-2001. Nomination and election of district court and supreme court judges. 

23-2002. Nominations. 

23-2003. Petition for nomination — contents — form — filing — fees. 

23-2004. Register of candidates for nomination. 

23-2005. Arrangement and certification of judicial candidates — separate from 
party designation. 

23-2006. Primary ballots — preparation and distribution. 

23-2007. Judicial primary ballots — voting. 

23-2008. Separate counting and canvassing of judicial ballots — application of 
general laws. 

23-2009. Nominations — placing names on ballots. 

23-2010. Tie vote, how decided. 

23-2011. Vacancies among nominees after nomination and before general elec- 
tion, how filled. 

23-2012. Unlawful for political party to endorse judicial candidate. 

23-2013. Repealed. 

23-2014. Repealing clause — application of general laws. 

23-2001. (812.1) Nomination and election of district court and supreme 
court judges. That hereafter all candidates for the office of justice of the 
supreme court of the state of Montana or judge of the district court in any 
judicial district of the state of Montana, shall be nominated and elected 
in accordance with the provisions of this act and in no other manner. 

Each vacancy for associate justice of the supreme court is to be con- 
sidered as a separate and independent office for election purposes, and to 
facilitate the nomination and election of candidates thereto, the chief 
justice of the supreme court shall assign an individual number to the four 
(4) associate justices and certify these numbers to the office of the secre- 
tary of state not less than one hundred eighty (180) days before the date of 
the primary nominating election. 

302 



JUDGES OF SUPREME AND DISTRICT COURTS 23-2003 

Each department in a judicial district which has more than one (1) 
judge of the district court is to be considered as a separate and independ- 
ent office for election purposes. 

History: En. Sec. 1, Ch. 182, L. 1935; selection of judpcs on a, party ticket. The 

amd. Sec. 2, Ch. 229, L. 1961. word "candidate" as used in this act 

should not receive a different construc- 
Purpose of Nonpartisan Judiciary Act tion from that as used in the general pri- 
The purpose of the Nonpartisan Judi- mary law. The act must be construed in 
ciary Act (23-2001 et seq.), is to eliminate, Pari materia with the primary and gen- 
so far as possible, the selection of judges eral election laws. State ex rel. McHale v. 
from partisan politics, and the phrase Ayers, 111 M 1, 3, 105 P 2d 686. 
found in this section, declaring that candi- 
dates for judicial office "shall be nomi- Collateral References 
nated and elected in accordance with the Judges<S='3. 
provisions of this act and in no other 48 C.J.S. Judges § 12. 
manner," intended merely to exclude the 25 Am. Jur. 2d 814, Elections, § 128. 

23-2002. (812.2) Nominations. Candidates for any office within the 
provisions of this act, to be filled at any election to be held in the state of 
Montana, shall be nominated in the manner herein provided at the regular 
primary nominating election provided by law for the nomination of other 
candidates for other offices to be filled at such election, and all laws relating 
to such primaries shall continue to be in force and to be applicable to the 
said offices iu so far as may be consistent with the provisions of this act. 

History: En. Sec. 2, Ch. 182, L. 1935. References 

State ex rel. McHale v. Ayers, 111 M 1, 
4, 105 P 2d 686. 

23-2003. (812.3) Petition for nomination — contents — form — filing — 
fees. All persons who shall desire to become candidates for nomination to 
any office within the provisions of this act shall prepare, sign and file 
petitions for nomination in compliance with the requirements of the pri- 
mary election laws, which petition for nomination shall be substantially 

in the following form: To (Name 

and title of officer with whom the petition is to be filed), and to the electors 

of the (state or counties of 

comprising the district or county as the case may be) in the state of Mon- 
tana: 

I, , reside at , 

and my post-office address is I am a candidate 

on the nonpartisan judicial ticket for the nomination for the office of 

at the primary nominating election to be 

held in the (state of Montana or district or 

county), on the day of , 19 , and if I am 

nominated as a candidate for such office I will accept the nomination and 
will not withdraw, and if I am elected, I will qualify as such officer. 

Each person filing a petition for nomination to the office of associate 
justice of the supreme court shall, in the blank wherein he indicates the 
office for which the petition for nomination is being filed, designate the 
number of the associate justice whose office he is seeking. Each person filing 
a petition can make only one (1) such designation. 

303 



23-2004 ELECTIONS 

All persons who shall desire to become candidates for nomination as 
judge of the district court in any district having more than one (1) judge 
shall specify in said petition for nomination the number of the department 
to which they seek nomination and election, and their candidacy shall be 
limited solely to the numbered department so specified, it being intended 
hereby that the office of judge of each respective numbered department 
shall be filled in all respects as though each of said numbered departments 
were an entirely separate and independent elective office. 

Provided, however, that no such petition for judicial office shall indicate 
the political party or political affiliations of the candidate, and provided 
further that no candidate for judicial office may in his petition for nomina- 
tion state any measures or principles he advocates, or have any statement 
of measures or principles which he advocates, or any slogans, after his 
name on the nominating ballot as permitted by section 23-911. 

Each person so filing a petition for nomination shall pay or remit there- 
with the fee prescribed by law for the filing of such a petition for the 
particular judicial position for which he aspires for nomination. All such 
petitions for justices of the supreme court and judges of the several dis- 
trict courts of the state shall be filed with the secretary of state. 

History: En. Sec. 3, Ch. 182, L. 1935; Collateral References 

amd. Sec. 3, Ch. 229, L. 1961. ElectionsC=5l26 (1). 

References 29 C.J.S. Eloctious §§ 91, 111, 131. 

Stntc ex lel. McHale v. Ayers, 111 M 1, 
3, 105 P 2d 086. 

23-2004. (812.4) Register of candidates for nomination. On receipt of 
each of such petitions the secretary of state shall make corresponding entries 
in the "Register of Candidates for Nomination" as now provided by law, but 
on a page or pages of such register apart from entries made with reference 
to the district candidates of political parties. 
History: En. Sec. 4, Ch. 182, L. 1935. 

23-2005. (812.5) Arrangement and certification of judicial candidates — 
separate from party designation. At the same time and in the same manner 
as by law he is required to arrange and certify the names of candidates for 
other state offices the secretary of state shall separately arrange and certify 
and file as required by law, the names of all candidates for judicial office, 
certifying to each county clerk of the state the names of all candidates for 
judicial office entitled to appear on the primary ballot in his county, with 
all other information required by law to appear upon the ballot, which 
certificate shall separately state the names of candidates for each respective 
numbered associate justice and department in districts having more than 
one (1) judge, and which lists of judicial candidates shall be made upon 
separate sheets of paper from the lists of candidates to appear under party 
or political headings. 

History: En. Sec. 5, Ch. 182, L. 1935; Collateral References 

amd. Sec. 4, Ch. 229, L. 1961. Elcctionse==126 (5). 

29 C.J.S. Elections § 118. 

304 



JUDGES OF SUPREME AND DISTRICT COURTS 23-2008 

23-2006. (812.6) Primary ballots — preparation and distribution. At 

the same time and in the same manner as he is by law required to prepare the 

primary election ballots for the several political parties, the county clerk of 

each county shall arrange, prepare and distribute official primary ballots 

for judicial offices which shall be known and designated and entitled 

"Judicial Primary Ballots," which shall be arranged as are other primary 

ballots, except that the name of no political party shall appear thereon. 

The same number of official judicial primary ballots and sample ballots 

shall be furnished for each election precinct, as in the case of other primary 

election ballots. 

History: En. Sec. 6, Ch. 182, L. 1935. References 

State ex rcl. McHale v. Ayers, 111 M 1, 
4, 105 P 2d 686. 

23-2007. (812.7) Judicial primary ballots — voting. Each elector hav- 
ing the right to vote at a primary election shall be furnished with a separate 
"Judicial Primary Ballot" at the same time and in the same manner as he 
or she is furnished with other ballots provided by law and each elector, 
without regard to political party, may mark such "Judicial Primary Ballot" 
for one or more persons of his choice for judicial nominations, depending on 
the number to be nominated and elected, which shall be deposited in the 
general ballot box provided. The official number of such judicial primary 
ballot so delivered and voted shall correspond to the official number of the 
regular ballot of the elector. Every elector shall be entitled to vote, with- 
out regard to politics, for one or more persons of his choice for nomination 
for judicial office, depending on the number of places to be filled at the 
succeeding general election. Different terms of office for the same position 
shall be considered as separate offices. 

History: En. Sec. 7, Ch. 182, L. 1935. may do so under the act, in view of the 

provisions of sections 23-2002, 23-200G and 

Electors May Write in Names of Candi- 23-2014, when construed in pari materia 

"**^^ with the laws relating to i)riniary and 

The Nonpartisan Judiciary Act (23-2001 general elections (23-910 and 23-2009). 
et seq.) does not restrict electors to the State ex rel. Mcllale v. Ayers, 111 M 1', 3, 
privilege of voting only for candidates 105 P 2d 686. 
whose names appear on the primary judi- 
cial ballot, but, though the act is silent as CoUateral References 
to their right to write in the name of a Elections<3='12G (6). 
qualified person to judicial office, they 29 C.J.S. Elections § 118. 

23-2008. (812.8) Separate countings and canvassing of judicial ballots 
— application of general laws. After the closing of the polls at a primary 
election, the election officers shall separately count and canvass the judicial 
primary ballots and make record thereof, and certify to the same, showing 
the number of votes cast for each person upon the judicial primary ballot, in 
addition to certifying the party vote or other matters voted upon as re- 
quired by law. Judicial ballots, their stubs, and unused ballots, shall be dis- 
posed of in the same manner as other ballots, stubs and unused ballots, and 
all returns made in the same manner now provided by law. 
History: En. Sec. 8, Ch. 182, L. 1935. Collateral References 

Election8<©^126 (7). 

29 C.J.S. Elections § 119. 

305 



23-2009 ELECTIONS 

23-2009. (812.9) Nominations — placing names on ballots. The candi- 
dates for nomination at any primary election for any office within the 
provisions of this act, to be filled at the succeeding general election, equal 
in number to twice the number to be elected at the succeeding general elec- 
tion, who shall have received at any such primary election the highest 
number of votes cast for nomination to the office for which they are candi- 
dates (or if the number of all of the candidates voted for as aforesaid be 
not more than twice the number to be elected, then all the candidates) shall 
be the nominees for such office; and their names, and none other, except as 
hereinafter provided, shall be printed as candidates for such respective 
offices upon the official ballots which are provided according to law for use 
at such succeeding primary or general election ; provided that no candidate 
shall be entitled to have his name placed on the judicial ballot at the general 
election, in any form, unless he shall have been a successful candidate at the 
primary election. 

History: En. Sec. 9, Ch. 182, L. 1936. Collateral References 

Electioiis<S==>172. 

References 29 C.J.S. Elections § IGl. 

State ex rel. McHale v. Ayers, 111 M 1, 
4, 105 P 2d 686. 

23-2010. (812.10) Tie vote, how decided. In ease of a tie vote, candi- 
dates receiving tie vote for justice of the supreme court or judge of the 
district courts shall appear and cast lots before the secretary of state on 
the fifth day after such vote is officially canvassed. In case any such candi- 
date or candidates shall fail to appear either in person or by proxy in 
writing, before twelve o'clock noon of the day appointed, the secretary of 
state shall by lot determine the candidate whose name will be certified for 
the general election and printed on the official ballot. 
History: En. Sec. 10, Ch. 182, L. 1935. Collateral References 

Elections<®='238. 

29 C.J.S. Elections § 244. 

23-2011. (812.11) Vacancies among nominees after nomination and 
before general election, how filled. If after any primary election, and before 
the succeeding general election, any candidate nominated pursuant to the 
provisions of this act, shall die or by virtue of any present or future law 
become disqualified from or disentitled to have his name printed on the 
ballot for the election, a vacancy shall be deemed to exist which shall be 
filled by the otherwise unnominated and not disentitled candidate for the 
same office next in rank with respect to the number of votes received in such 
primary election. If after the primary, and before the general election, there 
should not be any candidate nominated and living and entitled to have his 
name printed on the ballot for any office which is within the provisions of 
this act, or not enough of such candidates to equal the number of persons to 
be elected to such office, then the governor in the case of justices of the 
supreme court and judges of the district courts is authorized and empow- 
ered to certify to the secretary of state the names of persons qualified for 
such office or offices equal in number to twice the number to be elected at 
the general election, and the names of the persons so nominated shall there- 

306 



PRESIDENTIAL ELECTORS 23-2101 

upon be printed on the official ballot in the same manner as though regularly 
nominated at the judicial primarj- election. Nominations so made by the 
governor to fill a vacancy shall not be deemed filed too late if filed within 
ten days after the vacancy occurs, and in case the ballots for the election 
have already been printed, stickers may be used to place the names of such 
candidates upon the ballot. 

History: En. Sec. 11, Ch. 182, L. 1935. 

23-2012. (812.13) Unlawful for political party to endorse judicial can- 
didate. It shall be unlawful for any political party to endorse any candidate 
for the office of justice of the supreme court or judge of a district court, and 
anyone who in any way participates in such endorsement by any political 
party, or who purports to act on behalf of any political party in endorsing 
any candidate, shall be guilty of a misdemeanor. 

History: En. Sec. 13, Ch. 182, L. 1935. Collateral References 

Judge3©='3. 

48 C.J.S. Judges § 12. 

23-2013. (812.14) Repealed— Chapter 20, Laws of 1959. 

Repeal gja,! ballot when voting machines are 

This section (Sec. 14, Ch. 182, L. 1935), used, was repealed by Sec. 3, Ch. 20, Laws 
relating to the arrangement of the judi- 1959. 

23-2014. (812.15) Repealing" clause — application of general laws. All 

acts and parts of acts in conflict herewith are hereby repealed, and all laws 

pertaining to elections, both primary and general, and to special elections, 

not in conflict herewith are hereby declared applicable to the nomination 

and election of the officers herein referred to. 

History: En. Sec. 15, Ch. 182, L. 1935. References 

State ex rel. McHale v. Ayers, 111 M 
1, 4, 105 P 2d 686w 

CHAPTER 21 

PRESIDENTIAL ELECTORS, HOW CHOSEN— DUTIES 

Section 23-2101. Electors, when chosen. 

23-2102. Returns, how made. 

23-2103. Duty .of governor. 

23-2104. Meeting of electors. 

23-2105. Vacancies, how supplied. 

23-2106. Voting of electors. 

23-2107. Separate ballots for president and vice-president. 

23-2108. Must make list of persons voted for. 

23-2109. Result to be transmitted as provided by law of the United States. 

23-2110. Compensation of electors. 

23-2111. How audited and paid. 

23-2101. (813) Electors, when chosen. At the general election in 
November, preceding the time fixed by the law of the United States for 
the choice of president and vice-president of the United States, there must 
be elected as many electors of president and vice-president as this state is 
entitled to appoint. The names of the presidential electors shall appear on 
the ballot and in addition thereto, preceding them, shall appear the names 

307 



23-2102 ELECTIONS 

of the presidential and vice-presidential candidates in their respective party 
designated columns. No square shall appear in front of the names of the 
presidential electors instead of which there shall be one square in front of 
the names of the presidential and vice-presidential candidates. The ballot 
shall also have the following direction printed thereon: "To vote for the 
presidential electors of any party, the voter shall place a cross in the square 
before the names of the candidates for president and vice-president of said 
party." The number of votes received by presidential and vice-presidential 
candidates shall, within the meaning of this act, be the number of votes to 
be credited to each of the electors representing them. 

History: En. Sec. 1, p. 173, L. 1891; Collateral References 

re-en. Sec. 1460, Pol. 0. 1895; re-en. Sec. United States<2=>25. 

626, Rev. C. 1907; re-en. Sec. 813, R. C. M. 91 c.J.S. United States § 28. 
1921; amd. Sec. 1, Ch. 4, L. 1933. Cal. Pol. £5 Am. Jur. 2d 700, Elections, § 9. 
C. Sec. 1307. 

23-2102. (814) Returns, how made. The votes for electors of president 
and vice-president must be canvassed, certified to, and returned in the same 
manner as the votes for state officers. 

History: En. Sec. 2, p. 173, L. 1891; Collateral References 

re-en. Sec. 1461, Pol. C. 1895; re-en. Sec. Elections<S=5247, 257, 265. 

627, Rev. C. 1907; re-en. S€C. 814, R. C. M. 29 C.J.S. Elections 88 229, 235, 240. 
1921. Cal. Pol. C. Sec. 1308. 

23-2103. (815) Duty of governor. The governor must transmit to each 
of the electors a certificate of election, and on or before the day of their 
meeting deliver to each of the electors a list of the names of electors, and 
must do all other things required of him in the premises by any act of 
Congress in force at the time. 

History: En. Sec. 3, p. 174, L. 1891; ro- CoUateral References 

en. Sec. 1462, Pol. C. 1895; re-en. Sec. Election8<©='265; United StatcsC=>25. 

628, Rev. C. 1907; re-en. Sec. 815, R. C. M. 29 C.J.S. Elections § 240; 91 C.J.S. 
1921. Cal. Pol. C. Sec. 1314. United States § 28. 

23-2104. (816) Meeting of electors. The electors must assemble at the 

seat of government the first Monday after the second Wednesday in 

December next following their election, at two o'clock in the afternoon. 

History: En. Sec. 4, p. 174, L. 1891; second Wednesday in December following 

re-en. Sec. 1463, Pol. C. 1895; re-en. Sec. their election, the legislature could not, 

629, Rev. C. 1907; re-en. Sec. 816, R. C. M. by enacting Ch. 101, Laws 1943 (since re- 
1921; amd. Sec. 1, Ch. 15, L. 1933; amd. pealed), constitutionally extend the time 
Sec. 1, Ch. 33, L. 1935. CaL Pol. 0. Sec. for depositing military ballots for the gen- 
1315. oral election for seven weeks beyond the 

Tuesday after the first Monday in Novcm- 

Act Extending Time for Depositing ^j^r. Maddox v. Board of State Canvassers, 

Military Ballots Unconstitutional in Part ^16 M 217 224 149 P 2d 112. 
Since, under this section and tlic federal 

act (U.S.C, Tit. 3, sec. 5, enacted pursu- Collateral References 

ant to section 1, article II of the federal United Stntes<3=>25. 

constitution), the presidential electors 91 C.J.S. United States § 28. 

must meet ou the first Monday after tho 

23-2105. (817) Vacancies, how supplied. In case of the death or ab- 
sence of any elector chosen, or in case the number of electors from any cause 
be deficient, the electors then present must elect, from the citizens of the 
state, so many persons as will supply such deficiency. 

308 



MEMBERS OF CONGRESS — ELECTIONS AND VACANCIES 23-2201 

History: En. Sec. 5, p. 174, L. 1891; 630, Eev. C. 1907; re-en. Sec. 817, R. C. M. 
rc-en. Sec. 1464, Pol. C. 1895; re-en. Sec. 1921. Cal. Pol. C. Sec. 1316. 

23-2106. (818) Voting of electors. Tlic electors, when convened, mnst 

vote by ballot for one person for president and one for vice-president of the 

United States, one of uhom at least is not an inhabitant of this state. 

History: En. Sec. 1465, Pol. C. 1895; 
re-en. Sec. 631, Rev. C. 1907; re-en. Sec. 

818, R. C. M. 1921. Cal. Pol. C. Sec. 1317. 

23-2107. (819) Separate ballots for president and vice-president. They 

must name in their ballots the persons voted for as president, and in distinct 

ballots the persons voted for as vice-president. 

History: En. Sec. 1466, Pol. C. 1895; 
re-en. Sec. 632, Rev. C. 1907; re-en. Sec. 

819, R. C. M. 1921. Cal. Pol. C. Sec. 1318. 

23-2108. (820) Must make list of persons voted for. They must make 

distinct lists of all persons voted for as president, and of all persons voted 

for as vice-president, and of the number of votes given for each. 

History: En. Sec. 1467, Pol. C. 1895; 
rc-en. Sec. 633, Rev. C. 1907; re-en. Sec. 

820, R. C. M. 1921. Cal. Pol. C. Sec. 1319. 

23-2109. (821) Result to be transmitted as provided by law of the 

United States. They must certify, seal up, and transmit such lists in the 

manner prescribed by the constitution and laws of the United States. 

History: En. Sec. 1468, Pol. C. 1895; 
re-en. Sec. 634, Rev. C. 1907; re-en. Sec. 

821, R. C. M. 1921. Cal. Pol. C. Sec. 1320. 

23-2110. (822) Compensation of electors. Electors receive the same 

pay and mileage as is alloAved to members of the legislative assembly. 

History: En. Sec. 7, p. 174, L. 1891; re- Rev. C. 1907; re-en. Sec. 822, R. C. M. 
en. Sec. 1469, Pol. C. 1895; re-en. Sec. 635, 1921. Cal. Pol. C. Sec. 1321. 

23-2111. (823) How audited and paid. Their accounts therefor, certi- 
fied by the secretary of the state, must be audited by the state auditor, who 
must draw his warrants for the same on the treasurer, payable out of the 
general fund. 

History: En. Sec. 1470, Pol. C. 1895; Collateral References 

re-en. Sec. 636, Rev. C. 1907; re-en. Sec. States<3=126, 169. 

823, R. C. M. 1921. Cal. Pol. C. Sec. 1322. 81 C.J.S. States §§ 158, 194. 



CHAPTER 22 

MEMBERS OF CONGRESS— ELECTIONS AND VACANCIES 

Section 23-2201. Election of United States senators— for full term and to fill vacancies. 

23-2202. Writs of election to fill vacancy. 

23-2203. When held. 

23-2204, Returns, how made. 

23-2205. Certificates issued by governor. 

23-2206. Residence required for election or appointment to Congress. 

23-2201. (824) Election of United States senators— for full term and 
to fill vacancies. The election of senators in Congress of the United States 

309 



23-2202 ELECTIONS 

for full terms must be held on the first Tuesday after the first Monday in 
November next preceding the commencement of the term to be filled; and 
the elections of senators in Congress of the United States to fill vacancies 
therein must be held at the time of the next succeeding general state elec- 
tion following the occurrence of such vacancy; if any election therefor be 
invalid or not held at such time, then the same shall be held at the second 
succeeding general state election. Nominations of candidates and elections 
to the office shall be made in the same manner as is provided by law in case 
of governor. 

History: En. S€C. 1480, Pol. C. 1895; Collateral References 

re-en. Sec. 637, Eev. C. 1907; amd. Sec. 1, United States<3=>ll. 

Ch. 126, L. 1915; amd. Sec. 1, Ch. 134, L. 91 C.J.S. United States § 11. 

1917; re-en. Sec. 824, R. C. M. 1921. 

23-2202. (825) Writs of election to fill vacancy. "When a vacancy 
happens in the office of one or more senators from the state of Montana in 
the Congress of the United States, the governor of this state shall issue, 
under the seal of the state, a writ or writs of election, to be held at the next 
succeeding general state election, to fill such vacancy or vacancies by vote 
of the electors of the state ; provided, however, that the governor shall have 
power to make temporary appointments to fill such vacancy or vacancies 
until the electors shall have filled them. 

History: En. Sec. 1481, Pol. C. 1895; References 

re-en. Sec. 638, Rev. C. 1907; amd. Sec. 2, Bottomly v. Ford, 117 M IGO, 1C3, 157 

Ch. 126, L. 1915; re-en. Sec. 825, R. C. M. p 2d 108 
1921. 

23-2203. (826) When held. At the general election to be held in the 

year eighteen hundred and ninety-two, and at the general election every 

two years thereafter, there must be elected for each congressional district 

one representative to the Congress of the United States. 

History: En. Sec. 2, p. 306, L. 1891; 639, Rev. C. 1907; re-en. Sec. 826, R. C. M. 
re-en. Sec. 1490, Pol. C. 1895; re-en. Sec. 1921. Cal. Pol. 0. Sec. 1343. 

23-2204. (827) Returns, how made. The vote for representative in Con- 
gress must be canvassed, certified to, and transmitted in the same manner 
as the vote for state officers. 

History: En. Sec. 2, p. 306, L. 1891; Collateral References 

re-en. Sec. 1491, Pol. C. 1895; re-en. Sec. Elections<2=257, 265. 

640, Rev. C. 1907; re-en. Sec. 827, R. C. M. 29 C.J.S. Elections S§ 235, 240. 
1921. Cal. Pol. C. Sec. 1344. 

23-2205. (828) Certificates issued by governor. The governor must, 
upon the receipt of the statement mentioned in section 23-1814, transmit to 
the person elected a certificate of his election, sealed with the great seal 
and attested by the secretary of the state. 

History: En. Sec. 3, p. 306, L. 1891; 641, Rev. C. 1907; re-en. Sec. 828, R. C. M. 
re-en. Sec. 1492, Pol. C. 1895; re-en. Sec. 1921. Cal. Pol. C. Sec. 1347. 

23-2206. Residence required for election or appointment to Congress. 
No person shall be elected or appointed to the office of senator or repre- 

310 



RECOUNT OF BALLOTS 23-2301 

sentative in the Congress of the United States who has not resided in this 
state at least one year prior to his election or appointment. 
History: En. Sec. 1, Ch. 146, L. 1966. 



CHAPTER 23 

EECOUNT OF BALLOTS— RESULTS 

Section 23-2301. Recount of votes, order for — application, contents and time for mak- 
ing — hearing — determination by court. 

23-2302. Failure to comply with provisions for counting votes, presumption of 
incorrectness from. 

23-2303. Calling in other judge — court not divested of jurisdiction by failure 
to hear application within prescribed time. 

23-2304. Precincts in which recount ordered — deposit of cost of recount — pro- 
cedure when more than one application for recount made — manner 
of recounting votes — certificates of election. 

23-2305. Recount limited to precincts and offices specified in order of court. 

23-2306. Certificates of election, effect of recount on. 

23-2307. Election officers not to be paid until after recount — not paid on find- 
ing incorrect count. 

23-2308. Other provisions concerning contests, reference to. 

23-2309. Purpose of act — liberal construction, 

23-2310. Application of act. 

23-2311. Close vote as ground for recount — petition filed with clerk of conrt 
or secretary of state. 

23-2312. Tie vote as ground for recount. 

23-2313. Total vote — manner of computation. 

23-2314. County recount board — composition — disqualification of interested 
candidates. 

23-2315. Clerk of county recount board. 

23-2316. Notice to recount board of filing of petition — convening of board. 

23-2317. Persons entitled to appear at recount — opening and recount of ballots. 

23-2318. Certification of recount results — transmittal to secretary of state — 
corrected abstract of votes — new certificate of election or nomina- 
tion. 

23-2319. Reconvening state board of canvassers — recanvass by state board — 
corrected abstract of votes — new certificate of election or nomina- 
tion. 

23-2320. Effect of new certificate of election or nomination. 

23-2321. Tie vote after recount. 

23-2322. Expenses of recount. 

23-2323. Supplemental to prior law. 

23-2301. (828.1) Recount of votes, order for — application, contents and 
time for making — hearing — determination by court. Any unsuccessful 
candidate for any public office at any general or special election, or at any 
municipal election, may within five days after the canvass of the election 
returns by the board or body charged by law with the duty of canvassing 
such election returns, apply to the district court of the county in which said 
election is held, or to any judge thereof, for an order directed to such board 
to make a recount of the votes cast at such election, in any or all of the 
election precincts wherein the election was held, as hereinafter provided. 
Said application shall set forth the grounds for a recount, and it shall be 
verified by the applicant to the effect that the matters and things therein 
stated are true to the best of the applicant's knowledge, information and 
belief. Within five days after the filing of said application in the office of 
the clerk of said district court, the said court, or the judge thereof, shall 

311 



23-2301 



ELECTIONS 



hear and consider said application, and determine the sufficiency thereof; 
And, if from said verified application, the district court, or the judge 
thereof, finds that there is probable cause for believing that the judges and 
clerks of election did not correctly count and ascertain the number of votes 
cast for such applicant at any one or more of the election precincts that the 
judges and clerks of election might not have correctly counted and ascer- 
tained the number of votes cast for the applicant in any one or more 
election precincts, then, or in either of such events, the court or judge shall 
make an order addressed to the said board of county canvassers, requiring 
them at the time and place fixed by said order, which time shall be not 
more than five days from the making of such order to reassemble and re- 
convene as a canvassing board, and to recount the ballots cast at said 
election precinct or precincts of which complaint is made as in said order 
specified. 

that the majority of voters voted for him. 
State ex rel. Ainsworth v. District Court, 
107 M 370, 376, 86 P 2(1 5. 



History: En. Sec. 1, Ch. 27, L. 1935. 

Cross-References 

Application of Montana Eules of Civil 
Procedure to recount proceedings, see M. 
E. Civ. P., Eule 81(a), Table A. 

Salaries withheld x^ending contests, sees. 
59-508, 59-509. 

Constitutionality 

Section 23-2301 et seq., held constitu- 
tional under section 23, article V as to 
sufficiency of title; section 27, article III 
as to due process of law, the holding of 
public office not being a property right, 
and the clause is satisfied when one is 
accorded the right to appear, be heard, 
file pleadings, make objections and partic- 
ipate fully in the hearing. State ex rel. 
Eiley v. District Court, 103 M 576, 584, 
586, 64 P 2d 115. 

Applicable to Candidates for Senate 
and House 

The election recount statutes, section 
23-2301 et seq., apply to candidates for 
the state senate and house of representa- 
tives. State ex rel. Ainsworth v. District 
Court, 107 M 370, 372, 86 P 2d 5. 

Courts Cannot Try Contests for Seats 
in Legislature, but May Hear Application 
for Recount 

Section 9, article V of the constitution 
makes each house of the legislative assem- 
bly the judge of the elections, returns and 
qualifications of its members, and courts 
cannot try contests for seats in the legis- 
lature or decide issues involved in such 
contests, but mandamus lies to compel the 
court to perform the duty specially im- 
posed upon it by the recount statutes, sec- 
tion 23-2301 et seq.; the election certif- 
icate does not ensure acceptance of a 
candidate as a member of cither house, 
but merely furnishes prima facie evidence 



Direction by Court witMn Its Jurisdic- 
tion 

The court could proceed in any suitable 
manner or mode most conformable "to the 
spirit" of the code (93-1106) in the ab- 
sence of specific direction as to how pro- 
ceedings shall be conducted, and was with- 
in its jurisdiction in directing canvassers' 
attention to sections of the codes cover- 
ing points in dispute. State ex rel. Eilcy 
V. District Court, 103 M 576, 587, C4 P 
2d 115. (But see State ex rel. Peterson v. 
District Court, 107 M 482, 488, 86 P 2d 
403, below.) 

Dismissal of Application for Noneligl- 
bility 

District court committed error in dis- 
missing the application for a recount un- 
der this section on the ground that appli- 
cant, convicted of a felony in federal 
court, lost his citizenship; such issue be- 
ing properly triable in an election contest 
under the provisions of section 23-926 ct 
seq., or section 94-1459 et seq. State ex 
rel. Stone v. District Court, 103 M 515, 
519, 63 P 2d 147. 

Functions of Court and Canvassing 
Board Divide 

The law relating to proceedings for 
election recounts (23-2301 et seq.) specif- 
ically divides the functions of tlic court 
and the canvassing board. The court de- 
termines the grounds of and necessity for 
a recount and orders it done. TIic board 
is entrusted with the duty of making the 
recount, just as the judges and clerks of 
election aro entrusted witli the duty of 
making the count and certifying llicrcto 
in the first place. State ex rel. Peterson 
v. District Court, 107 M 482, 485, 80 P 
2d 403. 



812 



RECOUNT OF BALLOTS 



23-2301 



Includes District Judge 

Under this section, providing for tlic 
recount of votes by board of connty can- 
vassers, any unsuccessful candidate, in- 
cluding a candidate for the office of dis- 
trict judge, may apply to the district court 
for a recount. State ex rel. Kilcy v. 
District Court, 103 M 57C, 580, G4 P 2d 115. 

Liberal Construction Required 

Sections 23-2301 to 23-2307 should be 
liberally construed. Wliere application for 
writ of supervisory control set forth tliat 
the votes were not correctly counted, such 
ground was sufficient to justify the court 
iu finding that the votes "might not" have 
been correctly counted, and writ accord- 
ingly issued directing respondents to order 
the recount. State ex rcl. Thomas v. Dis- 
trict Court, 116 M 510, 511, 154 P 2d 980. 

Not Made in Presence of Court — Illegal 
Ballots 

A recount of ballots under this act (23- 
2301 et seq.) is not made in the presence 
of the district judge ordering it; in acting, 
the board is not required to ask the advice 
of the judge as to whether ballots are or 
are not properly marked, and he may not 
give such advice; the board is in duty 
bound to "hear all, consider all, and then 
decide." State ex rel. Peterson v. District 
Court, 107 M 482, 486, 86 P 2d 403. 

Not Remedy for Failure of Canvassing 
Board To Perform Duty Properly — Man- 
damus 

Sections 23-2301 to 23-2307, providing 
for a recount of votes in one or more pre- 
cincts alleged improperly counted, does 
not afford a legal remedy for an alleged 
wrongful canvass by a county canvassing 
board, and tliereforc docs not defeat the 
right of a citizen to compel proper per- 
formance of their duty by writ of man- 
date. State ex rcl. Lynch v. Batani, 103 
M 353, 358, 62 P 2d 565. 

Purpose of Recount Statute — Constitu- 
tion 

The sole purpose of the recount stat- 
utes, section 23-2301 et seq. is to deter- 
mine, in a doubtful case, Avhether the 
official canvass of the vote was correct, 
and Avhcro the office of state senator or 
representative is concerned, the election 
certificate does not ensure one's accept- 
ance as a member of either house, nor 
affect the ultimate right to the office, nor 
can the recount infringe upon the as- 
sembly's right to judge of the elections, 
returns and qualifications of its members 
in contravention of section 9, article V 
of the constitution. State ex rel. Ains- 



worth V. District Court, 107 M 370, 372, 
86 P 2d 5. 

Recount Proceeding Not an Election 
Contest 

A proceeding to obtain a recount of 
votes under section 23-2301 et seq. is in 
no sense of the word an election contest, 
it is absolutely independent of the law re- 
lating to contesting of elections and either 
or both remedies are available. State ex 
rel. Peterson v. District Court, 107 M 482, 
484, 80 P 2d 403. 

Statute In Pari Materia with Others 

This section and sections 23-2302 to 
23-2307 authorizing recount of votes, etc. 
and section 23-1812 et seq. relating to 
canvassers' abstract to secretary of state, 
are in pari materia and must be construed 
together, both the county and state board 
of canvassers being governed by tlie latter 
provisions in case the result of the election 
is changed upon a recount. State ex rel. 
Rilev V. District Court, 103 M 576, 583, 64 
P 2d' 115. 

Successive Recounts 

This statute provides that an unsuccess- 
ful candidate may within five days after 
canvass of the ballots petition for a re- 
count; where an unsuccessful candidate 
for sheriff obtained a recount and was de- 
clared elected, and his opponent, the for- 
mer successful but then unsuccessful can- 
didate also asked for and was granted a 
recount, on application for a writ of su- 
pervisory control, the five-day limitation 
commenced to run from the time the 
board of canvassers announced the result 
of the first recount, and the application 
coming within that time, the court had 
jurisdiction to grant the second recount. 
State ex rel. Peterson v. District Court, 
107 M 482, 485, 86 P 2d 403. 

When Application Timely 

Where the board was compelled by writ 
of mandate to reconvene by the supreme 
court and correct its findings with relation 
to two candidates for district judge, the 
application filed within five days after 
the corrected canvass was timely. State ex 
rel. Riley v. District Court, 103 M 576, 
586, 64 P 2d 115. 

When District and Supreme Courts May 
Not Control Actions of Boards 

The rule that district courts may not 
advise boards of county canvassers on 
questions arising on a recount of ballots 
as to the legality or illegality of ballots 
cast, etc., applies also to the supreme 
court on application for extraordinary re- 
lief by way of writs, and it cannot con- 



313 



23-2302 



ELECTIONS 



trol the actions of such boards indirectly 
by directions or suggestions to district 
courts. (If State ex rel. Riley v. District 
Court, 103 M 576, 64 P 2d 115, be open 
to a contrary construction it is to that 
extent overruled.) State ex rel. Peterson v. 
District Court, 107 M 482, 488, 86 P 2d 
403. 

Beferences 

State ex rel. Wulf v. McGrath, 111 M 
96, 101, 106 P 2d 183. 



Costs or reimbursement for expenses 
incident to election contest. 106 ALR 928. 

Notice of election to fill vacancy in 
office at general election. 158 ALR 1184. 

Exclusion or inclusion of terminal Sun- 
day or holiday in computing time for 
taking or perfecting appeal from decision 
of election board. 61 ALR 2d 484. 

Validity of write-in vote where candi- 
date's surname only is written in on bal- 
lot. 86 ALR 2d 1025. 



Collateral Eeferences 

Elections<&=260. 

29 C.J.S. Elections § 237. 

23-2302. (828.2) Failure to comply with provisions for counting votes, 
presumption of incorrectness from. If it shall be made to appear by such 
verified application that the judges or clerks of election in any one or more 
election precincts did not comply with each and all of the provisions and 
requirements of section 23-1705, in counting and ascertaining the number 
of votes cast for each person voted for at said election, that shall be con- 
sidered as sufficient probable cause for believing that the judges and clerks 
of election of said election precinct, or precincts, did not correctly count 
and ascertain the number of votes cast for the applicant in such election 
precinct or precincts. 

History: En. Sec. 2, Ch. 27, L. 1935. 



23-2303. (828.3) Calling in other judge — court not divested of juris- 
diction by failure to hear application within prescribed time. If the judge 
of said district court of the county in which said election is held be ill, or 
absent, or for any other reason disqualified from acting, then and in that 
event another district court judge shall be called in to hear and determine 
said application, either by an order of a judge of said district court, or by 
an order by a justice of the supreme court of the state of Montana. A fail- 
ure to hear, consider or determine said application within the time herein 
provided, shall not divest the court of jurisdiction, but the said court before 
wliieh said application is presented and filed shall retain jurisdiction there- 
of for all purposes until said application is finally acted upon, considered 
and determined, and until a final count is made and had by the said board 
of county canvassers and the result thereof finally determined as herein 
provided. 



History: En. Sec. 3, Ch. 27, L. 1935. 

Extent of Jurisdiction of District Court 

The jurisdiction of the district court 
before which an application for a recount 
of the votes is filed does not cease when 
it orders the board to reconvene and re- 
canvass the votes, but it retains jurisdic- 
tion of the proceeding until completion 
of the canvass, i. e., until the court is ad- 
vised thereof. State ex rel. Riley v. Dis- 



trict Court, 103 M 576, 587, 588, 64 P 2d 
115. 

References 

State ex rel. Peterson v. District Court, 
107 M 482, 487, 86 P 2d 403. 

Collateral References 

Elections<S='260. 

29 C.J.S. Elections § 237. 



314 



RECOUNT OF BALLOTS 23-2304 

23-2304. (828.4) Precincts in which recount ordered — deposit of cost 
of recount — procedure when more than one application for recount made — 
manner of recounting votes — certificates of election. (1) If said applica- 
tion asks for a recount of the votes cast in more than one election precinct, 
but the grounds thereof are not sufficient for a recount in all, the court shall 
order a recount as to only such precinct as to which there are sufficient 
grounds stated and shown. The court in its order shall determine the prob- 
able expense of making such recount, and the applicant or applicants asking 
for such recount shall deposit with the said board the amount so determined 
and specified in said order, in cash ; and if it be ascertained by said recount 
that the applicant or applicants have been elected to said office, then and 
in that event all money so deposited with said board shall be returned to 
the said applicant or applicants, but if an applicant as a result of said 
recount is found not to have been elected, then if the expense of making 
said recount shall be greater than the estimated cost thereof said applicants 
shall pay said excess, but if less than the estimated cost, then the differ- 
ence shall be refunded to the applicant or applicants. The expense of 
making said recount as herein provided, shall be the salary of the members 
of the canvassing board for the period of time required to make such re- 
count, and the salary of two clerks at the rate of not more than $8.00 per 
day each. 

(2) If more than one candidate makes application for a recount of 
the votes cast at said election, the court may, in its discretion, consider 
such applications separately or together, and may make separate or joint 
orders in relation thereto, and apportion the expense between said appli- 
cants. The board of canvassers, in recounting said ballots cast in said 
election, shall count the votes cast in the respective precincts as to which 
a recount is ordered for the several candidates in whose behalf a recoun+ 
is ordered, at the same time, in the following manner : 

(3) The county clerk shall produce, unopened, the sealed package or 
envelope received by him from the judges of election of the election precinct, 
or precincts, as to which a recount is ordered, in which is enclosed all bal- 
lots voted at such election in said precinct or precincts ; and the package or 
envelope must then be opened by a member of the board of county can- 
vassers in the presence and view of the other members of said board and 
of the county clerk, and of the candidates for said office or offices as to 
which said recount is ordered, present thereat. The ballots must then be 
taken from said packages or envelope by a member of the board, and in 
the presence of the candidate or candidates seeking such recount, and the 
candidate or candidates who by the first canvass was found to have received 
the highest number of votes, the ballots must be taken singly by one of the 
members of the canvassing board, and the contents thereof, while exposed 
to the view of said candidates and of one of the other members of said 
canvassing board, must be distinctly read aloud, and as the ballots are 
read, two clerks must write at full length, on sheets to be known as tally 
sheets, which shall be previously prepared for that purpose, one for each 
clerk, with the name of said respective candidates and the oflBce or offices 
as to which a recount is being made, with the numbers of such election 

315 



23-2305 ELECTIONS 

precincts as to which said recount is ordered, and the number of votes for 
each person in said election precinct or precincts. At the completion of 
said recount the tally sheets must then be compared and their correctness 
ascertained, and the total number of votes cast for any candidate deter- 
mined. If, on such recount, the votes cast for any candidate who makes 
such application shall be either more or less than the number of votes 
shown upon the official returns for that person and office, then the original 
returns shall be thereupon by the clerk of said board of canvassers, and 
under its direction, corrected so as to state the number of votes ascertained 
on such recount. 

(4) The said board of canvassers shall thereupon cause its clerk to enter 
on the records of said board the result of said election as determined 
by such recount, and the clerk of said board shall thereupon make out 
and deliver certificate of election in conformity to the result ascertained 
by said recount. 

(5) The candidate who as a result of the original or first canvass of the 
returns by the board of canvassers was found to be elected, shall be served 
with a copy of the application, and shall be given an opportunity to be 
heard thereon, and he shall be permitted to be present and to be repre- 
sented at any recount ordered. 

(6) "When said recount of the ballots in any election precinct has been 
finished, the ballots shall then be again enclosed in the same package or 
envelope in which they had been placed by the judges of election, and in 
the presence and view of the county clerk and the members of the board 
of canvassers the said packages or envelopes shall again be closed and 
sealed, and then again delivered into the custody of the county clerk. 

ffistory: En. Sec. 4, Ch. 27, L. 1935. 

23-2305. (828.5) Recount limited to precincts and oflBces specified in 
order of court. The board of canvassers shall make no recount of anv 
votes cast in any election precinct or for any office other than the precinct 
or precincts and office or offices specified in said order. 
History: En. Sec. 5, Ch. 27, L. 1935. 

23-2306. (828.6) Certificates of election, effect of recount on. If it 

shall be found and determined by said recount that the person to whom the 
county clerk had issued a certificate of election pursuant to section 23-1808, 
did not in fact receive the highest number of votes cast at said election 
for said office, then the said certificate of election first issued by said clerk 
shall be void, and the certificate of election issued by said clerk pursuant to 
the findings and determination of said recount shall be treated and con- 
sidered, for all purposes as the only certificate of election to said office, and 
the person named therein shall be the person elected to said office. 
History: En. Sec, 6, Ch. 27, L, 1935. Collateral References 

Elections<3=>267. 

29 C.J.S. Elections § 240. 

23-2307. (828.7) Election officers not to be paid until after recount- 
not paid on finding incorrect count. No judge or clerk of any election, of 

316 



RECOUNT OF BALLOTS 23-2311 

any election precinct, as to which a recount is ordered shall receive any pay 
for his or her services as such judge or clerk until the completion of such 
recount by the said canvassing board, and if it sliall be ascertained on such 
recount that any applicant in whose behalf such recount is had, has been 
elected, then in that event, the judges and clerks of the election precincts 
in which the votes were found to have not been correctly counted shall not 
be paid or receive any pay for their services as such. 
History: En. Sec. 7, Ch. 27, L. 1935. Collateral References 

ElcctioiisC=53. 

29 C.J.S. Elections § 63. 

23-2308. (829) Other provisions concerning contests, reference to. See 

sections 23-926 to 23-928 and sections 94-1464 to 94-1468 for other provi- 
sions governing election contests. 

History: New section recommended by 
code commissioner, 1921. 

23-2309. Purpose of act — liberal construction. It is the purpose of 
this act to procure a speedy and correct determination of the true and 
actual count of all ballots cast at an election, which ballots are valid on 
their face, and all provisions of this act shall be liberally construed to that 
end. 
History: En. Sec. 1, Ch. 42, L. 1963. 

23-2310. Application of act. The provisions herein shall apply to the 
recount of ballots cast in any election. 
History: En. Sec. 2, Ch. 42, L. 1963. 

23-2311. Close vote as ground for recount — petition filed with clerk of 
court or secretary of state. A recount shall be made under any of the 
following conditions : 

1. "When any candidate for any office, position, or nomination which 
is voted upon only by the electors of one county, or some part thereof, 
except the office of judge of the district court, is defeated according to the 
official returns by a margin not exceeding one-fourth of one per cent (^ 
of 1%) of the total vote cast for all candidates for such office, position, or 
nomination, or is defeated by a margin not exceeding ten (10) votes, 
whichever is the greater, he may within five (5) days after completion 
of the official canvass of the returns file with the county clerk his duly 
verified petition stating he believes a recount will change the result and 
praying for a recount of all votes cast for such office, position, or nomina- 
tion. 

2. Whenever any candidate for any office, position, or nomination 
which is voted upon in more than one county or for the office of judge 
of the district court, is defeated according to the official returns by a 
margin not exceeding one-fourth of one per cent (^ of 1%) of the total 
vote cast for all candidates for such office, position, or nomination, he maj' 
within five (5) days after completion of the official canvass of the returns 
file a petition with the secretary of state such as set forth in subdivi- 

317 



23-2312 ELECTIONS 

sion one (1) of this section. The secretary of state shall immediately notify 
by registered mail each county clerk whose county includes any precincts 
which voted for such office, position, or nomination of the filing of such 
petition, and the recount shall be conducted as to all of such precincts in 
each such county. 

3. Whenever any referred or submitted question is voted upon through- 
out the state and is determined according to the official canvass by a 
margin of not exceeding one-fourth of one per cent (14 of ^%) of 
the total vote cast for and against on such question, there may be filed 
with the secretary of state within five (5) days after the completion of 
the official canvass, a petition signed by not less than one hundred (100) 
legally qualified electors of the state, and representing at least five (5) 
counties of the state, a petition with the secretary of state such as set 
forth in subdivision one (1) of this section. The secretary of state shall 
immediately notify by registered mail each county clerk of the filing of 
such petition, and the recount shall be conducted as to all precincts in 
each county. 
History: En. Sec. 3, Ch. 42, L. 1963. 

23-2312. Tie vote as ground for recount. "When by reason of a tie 
vote found to exist upon the canvass of the original official returns, it is 
impossible to declare who has been elected or nominated to an office 
or position, it shall be the duty of the canvass board making such canvass 
to certify said vote to the county clerk where the election involved is 
confined to one county, except for the office of district judge, and to the 
secretary of state as to all other elections. The county clerk, or the secre- 
tary of state, as the case may be, shall proceed exactly as if a petition 
had been duly filed under this act, and the recount shall proceed accord- 
ingly. In case of a tie vote found to exist after the recount, such tie 
vote shall be resolved as provided by existing statutes. 
History: En. Sec. 4, Ch. 42, L. 1963. 

23-2313. Total vote — manner of computation. When in any election 
an elector may vote for two or more candidates for the same office, the 
total vote cast for all candidates for such office shall for the purposes of 
this act be the total vote actually cast for all candidates divided by the 
number of candidates officially declared nominated or elected as shown by 
the official returns. 

History: En. Sec. 5, Ch. 42, L. 1963. 

23-2314. County recount board — composition — disqualification of in- 
terested candidates. The county recount board of each county shall con- 
sist of the three members of the board of county commissioners. If at 
the time and place appointed for the recount one or more of the county 
commissioners should not attend, the place of the absentees must be sup- 
plied by one or more of the following county officers, whose duty it is 
to act in the order named: the treasurer, the assessor, the sheriff, the 
clerk of court. The county recount board shall always consist of three 
acting members. If any member of the county recount board was among 

318 



RECOUNT OF BALLOTS 23-2318 

the candidates for an ofifice, nomination, or position to which votes are 
to be recounted, he shall thereby be disqualified. 
History: En. Sec. 6, Ch. 42, L. 1963. 

23-2315. Clerk of county recount board. The county clerk shall be 
the clerk of the county recount board, and the board may hire additional 
clerks as needed. 

History: En. Sec. 7, Ch. 42, L. 1963. 

23-2316. Notice to recount board of filing of petition- -convening of 
board. The county clerk shall immediately upon the filing with him of 
any petition for a recount, or upon receipt from the secretary of state of 
notice of such filing with the secretary of state, notify the members of 
the county recount board. The board shall then convene at the usual 
place of meeting of the county commissioners without undue delay, and 
in no event more than five (5) days after the filing of the petition with 
the county clerk or the notice of the filing with the secretary of state. 
History: En. Sec. 8, Ch. 42, L. 1963. 

23-2317. Persons entitled to appear at recount — opening and recount 
of ballots. Each candidate for any office, nomination, or position in- 
volved in a recount may appear, personally or by a representative, and 
shall have full opportunity to witness the opening of all ballot boxes and 
the count of all ballots. If the recount is upon a referred or submitted 
question, one legally qualified elector of the state favoring each side 
as to such question may be present and represent such side. The county 
clerk shall produce, unopened, the sealed package or envelope received 
by him from the judges of election of each election precinct in the county. 
The procedure for conducting the recount of votes shall be as provided 
in subsection three (3) of section 23-2304, and the recount shall proceed as 
expeditiously as reasonably possible until completed. 
History: En. Sec. 9, Ch. 42, L. 1963. 

23-2318. Certification of recount results — transmittal to secretary of 
state — corrected abstract of votes — new certificate of election or nomina- 
tion. Immediately upon conclusion of the recount of all ballots to be 
recounted the county recount board shall certify the result. The cer- 
tificate must be signed by at least two members of such board, attested 
under seal by the county clerk. The certificate shall set forth in sub- 
stance the proceedings of the board and appearance of any candidates or 
representatives, shall adequately designate each precinct recounted, the 
vote of such precinct according to the official canvass thereof previously 
made as to the office, nomination, position, or question involved, and the 
correct vote of such precinct as determined by the board through the 
recount. When the certificate relates to the recount ballots as to an office, 
nomination, position, or question voted upon in more than one county 
or for the office of judge of the district court, the certificate shall be made 
in duplicate, and either the original or duplicate original immediately 
transmitted to the secretary of state by registered mail. If the recount 
relates to the recount of ballots as to an office, nomination, position, or 

319 



23-2319 ELECTIONS 

question voted upon in only one county, or some part thereof, the county 
recount board shall immediately recanvass the returns as corrected by the 
certificate showing the result of the recount, and make a new and cor- 
rected abstract of the votes cast. If such correct abstract shows no change 
in the result as previously fou