Montana Attorney General Opinion 15-140

Opinion No. 140 Schools-Elections--Candidates-Trus· tees-Vacancy-County Supel"intend- ents-Ballots, Cross Before Name Wl"itten In-Marking Ballots. HELD: In case of a tie between two candida tes for school trustee a t a school election there is a failure of election and a vacancy results which should bc filled by the county superintendent of schools as provided by law_ In an election in a second or third class district if an elector has written a name in on the ballot but has neg- lected to put a cross before the name, his ballot should nevertheless be counted towards the selection of such a candi- date for the office of trustee. April 6, 1933. You ha\-e submitted to this office for an opinion two questions as follows: "In case of a tie between two can- didates for school trustee at a school election, how is the election deter- lllined .! "At an election, if an elector has written a name in on the ballot but has neglected to put a cross before the name, will this ballot count to- wards the selection of such a candi- da te for the office of trustee?" The statute in regard to tie votes in an election for school trustees has not been changed since Attorney General Wellington D. Rankin rendered opin· ions on two different occasions, the first of which opinions appears in Volume 9, page 3:3, and the second in Volume 10, page 5n. In both of these opinions Mr. Hankin held that a tie vote for the two highest candidates for the office of 108 OPIXIOXS OF THE ATTORNEY GENERAL school trustee constituted a failure to elect and therefore that a vacancy re- sulted which should be filled by the county superintendent as provided by Section 998, ReYised Codes 1921. We agree with his interpretation of the law, (State ex reI. Hick Y. Cahill, 105 N. W. 6\)l; 20 C. J. 208) although in the case of certain constitutional of- fices the supreme court has ruled that the incumlJent holds until his successor is elected and qualified. (State ex reI Chenoweth Y. Acton, 31 Mont. 37; State ex reI. Dunne v. S~nith, 53 Mont. 341.) Section 989, Revised Codes 1921 pro- "ides: "In districts of the second and third classes, the election of school trus- tees shall be held and conducted under the supervision of the board of school trustees. The Yoting- must be by ballot without reference to the general elec- tion laws in regard to nominations, form of ballot, or manner of voting." Courts of other states having statutes not dissimilar to this have held that the "writing in," at the propel' place on a ,ballot, of the name of a person is a sufficient indication of the intention of the elector to vote for such person, so as to entitle such ballot to be count- ed, though no cross is made opposite such written name. (State ex reI. Lan- ham Y. Sheets, 227 N. W. 457; Findley \'. Sorenson, 276 Pac. 843; Rice v. Clarke, 113 Atl. 7'16; Board of Elec- tions v. Henry, 158 N. E. ()4; 2{) C. J. 160.) If your second question, then, applies particularly to an election in a dis- trict of the second or third class, our answer is in the affirmative.