Boone v. Smith
| Citation | 77 N.E.2d 357,225 Ind. 617 |
| Decision Date | 11 February 1948 |
| Docket Number | 28318. |
| Parties | BOONE v. SMITH. |
| Court | Indiana Supreme Court |
Appeal from Sullivan Circuit Court, Sullivan County; Walter F. Wood judge.
Hays & Hays and Joe W. Lowdermilk, all of Sullivan, for appellant.
Bedwell Bedwell & Haines, of Sullivan, for appellee.
This is an appeal from a judgment of the Sullivan Circuit Court in an election contest brought by the appellant, Harold Boone, as contestor, against the appellee, Jesse E Smith, as contestee, wherein the contestor sought to establish that he was the duly elected township trustee of Hamilton Township, Sullivan County, at the general election held on November 5, 1946. There was no special finding of facts and conclusions of law requested or made in this case. The court found the contestee, Jesse E. Smith, had received 1704 votes, and the contestor had received 1702 votes. Upon this finding the court entered judgment that the appellee Jesse E. Smith, was duly elected as said township trustee at said general election and that he hold said office for the term of four years from January 1, 1947. Previously the court had ordered a recount, and appointed three recount commissioners to recount all the votes from all the eight precincts of Hamilton Township, the majority of whom on December 12, 1946, filed with the court a verified report showing that the contestor, Harold Boone, had received 1660 votes, and the contestee, Jesse E. Smith, had received 1637 votes. Later, after the trial on the issues on the complaint for a recount, the court entered a finding and judgment as above stated. The only error assigned is the overruling of the contestor's motion for a new trial.
The parties at the trial on May 27th made a stipulation with reference to the votes received in the various precincts which may be summarized as follows:
exclusive of absent
voters ballots:
-------------------
#2 396 380
#3 326 381
--- 722 --- 761
Contested absent
voters ballots:
----------------
#2 27 42
#3 16 23
--- 43 --- 65
---- ----
1474 1436
Votes as certified
by election board
in Precinct
#4 217 266
---- ----
(Total) 1701 1702
It was further stipulated that none of the absent voters' ballots in Precincts No. 2 and No. 3 were initialed by the clerks of said respective boards at any time, as provided for by § 29-4914, Burns' 1933 (Supp.), Acts 1945, Ch. 208, § 207, that the same were counted for the respective candidates regardless of the absence of the poll clerks' initials thereon; but that should the court determine that any of the absent voters' ballots received in Precincts No. 2 and No. 3 should be counted, that all be counted and added to the votes received by each candidate. It was also stipulated that the return of the Precinct No. 4 election board to the county board of canvassers showed 217 legal votes for Harold Boone and 266 legal votes for Jesse E. Smith.
Thus the issues in the trial court were (1) whether the absent votes in Precincts No. 2 and No. 3 were properly counted, and (2) what legal votes should be counted for each candidate in Precinct No. 4. No absent votes were cast for either candidate in Precinct No. 4.
The appellant asserts that failure of the poll clerks to initial an absent voter's ballot before it is deposited in the ballot box invalidates the ballot for all purposes. Determination of this question depends upon the proper construction to be given § 29-4914, Burns' 1933 (Supp.), Acts 1945, Ch. 208,§ 207, p. 680.
When a statute or a section thereof has been judicially construed by a court of last resort, and subsequently the legislature re-enacts the same statute or section, or a statute or section thereof containing provisions substantially the same, the legislature will be deemed to have used the language as intending to mean the construction placed upon it by such court, unless the provisions of the subsequent statute clearly indicate that the legislature intended a different construction. Brown v. Doak Co., 1922, 192 Ind. 113, 120, 135 N.E. 343; State ex rel. v. Miller, Trustee, 1923, 193 Ind. 492, 497, 141 N.E. 60; Thompson v. Mossburg, 1923, 193 Ind. 566, 575, 139 N.E. 307, 141 N.E. 241; Citizens' Trust & Savings Bank v. Fletcher American Co., 1934, 207 Ind. 328, 335, 190 N.E. 868, 192 N.E. 451, 99 A.L.R. 1474; Calkins v. Service Spring Co., 1937, 103 Ind.App. 257, 264, 7 N.E.2d 54; 3 Sutherland, Statutory Construction (3rd Ed.), § 3709; 59 C.J. 1061, § 625; 50 Am.Jur. 312, § 321.
Chapter 5 of the 1943 Acts established the Election Codification Commission which was authorized and empowered to [1] (Italics added.)
The Indiana Election Code, which is Chapter 208 of the 1945 Acts, § 29-2801, et seq., Burns' 1933 (Supp.), was enacted to give a complete election law in one statute. Section 207 of the Election Code, § 29-4914, Burns' 1933 (Supp.), provides for the manner in which absent voters' ballots should be voted by the precinct election boards, and after the envelopes containing the ballots had been opened, required, * * *' This is a substantial re-enactment of Section 12, Chapter 316 of the 1935 Acts, which provided: * * *'
Section 12 of Chapter 316 of the 1935 Acts was a substantial re-enactment of the absent voters law of 1917, Section 10 of Chapter 100 of the 1917 Acts, Section 7508, Burns' 1926, which stated: * * *'
The legality of an absent voters' ballot, where the only infirmity was the failure of the poll clerks to endorse their initials on the back thereof, was determined by this court in Werber v. Hughes, 1925, 196 Ind. 542, 148 N.E. 149. In construing Section 10 of Chapter 100 of the 1917 Acts, Section 7508, Burns' 1926, Judge Travis, 196 Ind. at pages 552, 553, 148 N.E. at page 152, said:
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