a part of the organic law which it can be demonstrated beyond peradventure never received the requisite vote from the electors, are such that we should adopt such construction of the statute only when convinced that no other is open. The able argument of counsel for the attorney general has failed to convince us that the action of the board is not subject to direction by the court by its process of mandamus." And the same holds true here in this case. No one can tell the fact of whether in the fifty-one precincts in McLean county a majority vote duly canvassed would show the approval of the people of that county on this proposed county division. This is all-sufficient upon which to deny the writ. If the constitutional provision can be circumvented and virtually set aside by any such presumptions as here urged from a canvass of a portion of the vote, it is the equivalent of saying that the Constitution does not mean what it says when it requires the adoption of the proposition “by a majority of all the legal votes cast in each county at such election.” Several other questions briefed by counsel might be passed upon, but those already discussed fully decide this case against relator. Upon the relator is cast the burden of making the proof of the result of this election, as to which result it is impossible to determine, there being a failure of proof thereon and concerning a matter in which § 168 of our state Constitution requires unquestionable proof of a majority favoring county division before relator is entitled to this writ. It is ordered that the alternative writ, the order for and the judgment entered in the District Court granting a peremptory writ requiring appellant to issue the certificate of the division of McLean county and the territorial limits, contents and name of the proposed new county of Stevenson, be in all things quashed and set aside, and judgment directed to be entered dismissing this proceeding on the merits. SPALDING, Ch. J. (concurring specially). I concur in the resul: reached by my associates in the foregoing opinion. I do so, however, solely for the reason that this case was before this court in State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701, on an appeal from an order of the district court striking out portions of defendant's return or answer. After due consideration it was there held that the trial court erred in its action, for the reason that the portions of the answer stricken out stated defenses. Among the portions so stricken out by the trial court and reinstated by this court were those defenses now relied upon in this proceeding. That is to say, the pleadings now before us are in all material respects the same as in the Meyers Case. The action is the same, the only difference being that a newly elected county auditor has been substituted as a party in place of the one holding that office, and defendant, when the Meyers Case was decided. I say the defenses are the same as to matters before us on the present appeal. It is true that in the Meyers Case we held that the publication of the notice of election on county division was invalid. That was held by reason of the counsel on both sides submitting the case on the mistaken view that one section of the statute applied, and subsequently, as indicated in State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282, the same counsel in one phase of the same litigation appeared before us and called our attention to the fact that they had inadvertently relied upon the wrong section, and agreed that as to that part of the decision it should not be binding in this litigation. Hence that defense is eliminated, but other defenses remain the same, and the evidence sustains the defenses so pleaded. This being true the decision in the Meyers Case, except as it relates to the sufficiency of the publication of the notice, is controlling in this litigation, and all this long, tedious, and perplexing litigation has been conducted on the strength of that decision. I am by no means certain that I should now concur in the holdings of that case if the same questions were being considered in the first instance. While it is not stated in the opinion of Judge Goss that other cases should be overruled, it seems to me that it in fact, if concurred in by a majority of the court, would overrule numerous well-considered authorities, including State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360, and State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834, and perhaps others. If it is the intention to overrule these authorities, I think it should be so stated in the opinion and thereby prevent the confusion which necessarily follows whenever an opinion is in effect overruled without so stating. If the Meyers Case is to be ignored, I am of the opinion that, in view of the defective returns, this court would be amply justified in disregarding the technical question as to whether the official abstract of votes 24 N. D.-19. meets the burden of proof cast upon the relator, and remanding the case to the district court, with directions to take evidence as to the vote, pro and con, actually cast in the missing precincts. It cannot be questioned that, setting technical considerations aside, this method would approach most nearly to meting out justice to the respective parties of any that could be adopted. If the election officials of the missing precincts made no returns, the canvassing board was woefully derelict in its duty if it did not require such returns to be made, or, if made, amended so as to show the votes on this question. The law makes specific provision for securing or amending such returns. It is now too late for that board to do this; but the court could, without doubt, supply the deficiency by the method suggested. The new county should not be formed if it did not have a majority of the votes cast on the question; on the other hand, it has a right to be organized if it received such majority. The record before us leaves this question in doubt, and no party could complain if the truth were ascertained, whatever the result. Ample authority is vested in this court, both by statute and precedent, to so dispose of this appeal. But inasmuch as a majority of the court will not concur in the manifestly equitable and just disposition of this proceeding which I suggest, I rest my assent wholly on the authority of State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701, without expressing any opinion on the different phases of the law announced in the opinion of Judge Goss, although satisfied that many of the authorities cited are not in point on any question before us. case. BRUCE, J. (concurring specially). I concur in the result of the opin ion filed by Mr. Justice Goss. I do not, however, wish to be understood as concurring in, or expressing an opinion upon, all of the propositions discussed either in the majority or dissenting opinions in this Much depends upon the conclusions that are to be derived from the former cases of State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701; State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, and State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360, and as to what was the actual intent of the court in these cases. As I was not a member of this court at the time of the writing of the opinions therein, I cannot personally speak as to such actual intention, and prefer to leave that to my associates. I am, however, clearly satisfied as to two basic propositions, and those are, that there is no showing in this case that the proposition for the creation of the new county of Stevenson was carried either by a majority of the voters who voted upon that proposition, or by a majority vote of the electors who voted upon the question of county division generally. As I understand § 168 of the Constitution, a majority of those who voted upon the question of county division, generally, was necessary; but be that as it may, it is quite clear to me that there is not even a showing that a majority of those who voted upon the particular proposition was obtained. I do not agree with Mr. Justice Burke in his conclusion as to the nature and effect of the certified copy of the report of the board of canvassers. Mr. Justice Burke seems to be of the opinion that the record shows that such canvassers actually reported that the total number of votes cast upon the proposition was 1,817. He almost goes so far as to intimate that that report should be conclusive in mandamus proceedings. I, on the other hand, am of the opinion that the showing is merely that 1,817 votes were returned by some of the precincts, and that there were still outstanding other precincts from which no returns had been received, and the vote from which had, therefore, not been counted by the canvassers. According to the case of State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, the presumption is that votes were cast pro and con on this proposition in these precincts. To me, therefore, the record shows that there were a number of votes outstanding and uncounted. If this be so, the case is taken out of the rule laid down in State ex. rel Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231, and State ex rel. Davis v. Willis, supra. There being no proof in the record as to how the vote stood in these unreported precincts, the presumption merely being that there was a vote, there is no showing that the proposition was carried by a majority vote, even of those who voted upon the particular Stevenson county proposition. The stipulation that 356 votes were cast, generally, in the omitted precincts, tends also to strengthen this conclusion. I am quite clear that the relator has not proved his case, and personally I am of the opinion that § 168 of the Constitution requires a majority vote of all those who voted at the particular election upon the county division propositions generally, and is not confined to a majority of those who voted on the Stevenson county plan. 15 Cyc. 390; State ex rel. Peacock v. Osakis, 112 Minn. 365, 128 N. W. 295; State ex rel. Cope v. Foraker, 46 Ohio St. 677, 6 L.R.A. 422, 23 N. E. 491; People v. Berkeley, 102 Cal. 298, 23 L.R.A. 838, 36 Pac. 591; Stebbins v. Superior Ct. Judge, 108 Mich. 693, 66 N. W. 594; Hogg v. Baker, 17 Ky. L. Rep. 577, 31 S. W. 726; Enyart v. Hanover Twp. 25 Ohio St. 618; State ex rel. Hocknell v. Roper, 46 Neb. 724, 61 N. W. 753. Such latter conclusion, however, is not necessary to my decision in this case. BURKE, J. (dissenting). The first proposition to which I desire to call the attention of those persons interested in this case is that the views of Judge Goss in no manner constitute an opinion of this court, having been concurred in by but two of the five members. The only matter in which three members of the court agree is that the county of Stevenson did not receive a majority of the votes cast at the election. Although the syllabus has but two of the five members of this court back of it, and is repudiated by three members, yet it is set up as "by the court." The bar will probably realize, however, that a court holding that 1,006 votes are too few to be a majority of 1,817 will not agree that two is a majority of five. With the conclusion reached by the majority I wish to take issue, and at the start will say that the views of Judge Goss do not, in my opinion, correctly state the facts. To my mind the issues are simple and the conclusion plain. There was an election in 1908 upon the creation of Stevenson county. The canvassing board of McLean county, under their oaths of office, made a return that there was 1,817 votes cast upon Stevenson county, of which 1,006 were for the new county and 811 against. This statement is stipulated to be true by the attorneys, and a certified copy thereof is in evidence. This finding of the said canvassing board has never been questioned by contest, as required by §§ 693-695, Rev. Codes 1905, and after the time wherein such contest must be taken the said finding became conclusive upon all persons concerned. However, the county auditor of McLean county neglected and refused to make the proper returns to the secretary of state as required by 2330, Rev. Codes 1905, and this action was brought in |