Brown v. Grzeskowiak

• Decision Date: 17 December 1951
• Docket Number: No. 28761,28761
• Parties: Marcella BROWN, Appellant, v. Stephen C. GRZESKOWIAK, Appellee.
• Court: Indiana Supreme Court

Page 372

102 N.E.2d 372

230 Ind. 110

Marcella BROWN, Appellant, v. Stephen C. GRZESKOWIAK, Appellee.

No. 28761.

Supreme Court of Indiana.

Dec. 17, 1951.

JASPER, Judge (dissenting).

The majority opinion says that three questions determine the outcome of this action. There then follows a discussion of the three separately numbered questions. However, the majority opinion then decides an unnumbered fourth question, namely, did the trial court err in sustaining the objections to certain questions propounded? It was necessary for the court to decide this fourth proposition to accomplish the result arrived at in the majority opinion.

I concur in the majority opinion as outlined in its discussion of the first and second questions and the results reached. However, I dissent to the third question. I also dissent to the holding of the majority opinion that the objections to certain questions were erroneously sustained by the trial court. The majority opinion states the third question to be decided as follows: 'Third: Were the absent voters' ballots illegal because they bore only the initial letters 'D. L. M.' of the clerk's name instead of his full signature?' [101 N.E.2d at page 645.]

My answer to this question is 'Yes,' for the following reasons: It is uncontradicted that the appellee received a majority of 183 votes on the machines. It is therefore clear that appellant was not elected unless she received enough valid, legal absent voters' votes to change the result shown by the machines. It is appellee's contention that none of the 527 absent voters' ballots were valid, and none should be counted for either candidate. The contention of appellee in this action is based upon § 29-4907, Burns' 1949 Replacement, which provides, in part, as follows: 'Before mailing or delivering any ballot the clerk shall affix his official seal and place his signature near the lower left hand corner on the back thereof leaving sufficient space on the margin of such ballot for the initials of the poll-clerks.' (Emphasis supplied.)

The signature of the Clerk of the Circuit Court of St. Joseph County does not appear on the back of any of the absent voters' ballots cast. There does, however, appear the initials 'D. L. M.' The question to be decided is: Were these legal, valid, votable absent voters' ballots under the last-cited section of the statute?

Previously this court has recognized as the law that absentee voting is an exception to the general rule, and is in the nature of a special right or privilege, which enables the absentee voter to exercise his right to vote in a manner not enjoyed by voters generally. It is a privilege which is purely optional with the absentee voter. If he decides to exercise this special privilege, he can do so only by complying with the provisions of the Absent Voters' Law. It has been the law that absent voters' statutes are to be construed as mandatory in all their substantial requirements, and are an exception to the general rule that election laws are construed liberally in favor of the electors. Brown v. State ex rel. Stack, 1949, 227 Ind. 183, 84 N.E.2d 883, and authorities cited. Previously, this court has held, in the case of Werber v. Hughes, 1925, 196 Ind. 542, 148 N.E. 149, that the language identical to this particular statute was mandatory and not directory. In that case, the court had before it section 5, chapter 156, Acts of 1919, which is identical with the language used in § 29-4907, Burns' 1949 Replacement, supra. The court said at pages 547, 548 of 196 Ind., at page 151 of 148 N.E.:

'That provision of the absent voters law which requires that each ballot before being sent to the applicant shall have upon the back of the ballot the signature of the clerk of the court and also the seal of the court, is for a double identification, and is for the express purpose of the purity of the ballot. It is the duty of the voter on the receipt of the ballot from the proper authority to examine it to see if it is official. In the sense that it has everything done to it which is prescribed by law, when the ballot comes into the hands of the absent voter, it is an official ballot. If it lacks any of the statutory requirements of identification when it comes into the absent voter's hands, it is then lacking in some one or more of those things which are required to make it an official ballot. Upon receipt of the ballot, and finding that it was not official, the voter should have returned it and asked for a properly prepared official ballot. * * *

'Were the failure to affix the official seal to the ballot an irregularity of the absent voter, in that such irregularity did not tend to affect the result of the determination and selection by the voter for those for whom he voted, and thereby possibly have to do with the defeat of the majority, such failure to affix the official seal might then be held to be directory. The act, however, was enjoined by the law to be performed by the clerk of the court, and, because it was an act to identify the ballot, it is mandatory.' (Emphasis supplied.)

After the decision in Werber v. Hughes, supra, the Legislature re-enacted this section of the Absent Voters' Law in 1945. It is the law that when a statute or section has been judicially construed by a court of last resort, and thereafter the Legislature reenacts the same statute or section, the Legislature will be deemed to have used the language as intending to mean the construction placed upon it by the court. Boone v. Smith, 1948, 225 Ind. 617, 77 N.E.2d 357. The Legislature re-enacted this section as a mandatory section and requirement by the clerk of the court as an identification of the ballot; in other words, as an act necessary to make the ballot a legal, valid, votable, official ballot. Without the signature of the clerk it could not be a legal ballot.

In McCardle v. Holcomb, 1939, 216 Ind. 267, 23 N.E.2d 470, five absent voters' ballots were in question. They bore the seal of the clerk of the circuit court and his signature, 'D. D. Morgan,' without any designation that the latter was the clerk. However, he was the clerk, and the signature upon the ballots was actually his personal signature. This court again said that the purpose of this statutory provision is to safeguard and identify ballots delivered or sent out for the use of absent voters. In that case this court said, at page 269 of 216 Ind., at page 470 of 23 N.E.2d: 'It cannot be doubted that a ballot signed by the clerk with his own personal signature, and bearing the official seal of his office, is sufficiently authenticated to provide the protection desired * * *.' (Emphasis supplied.)

This court, in the last-cited case, recognized that it was necessary that the ballot be signed by the clerk with his own personal signature. In the case of Brown v. State ex rel. Stack, supra, the court said, at page 192 of 227 Ind., at page 886 of 84 N.E.2d: 'Each absent voter's ballot must contain on the back thereof the signature of the clerk and his official seal, which thus identifies the ballot as absent voter's ballot when the same is counted.'

It would seem to the writer of this opinion that these cases thoroughly established as the law of this state that the Legislature mandated the signature of the clerk on the back of an absent voter's ballot before it became a legal, valid, votable, official ballot, and that consistency requires this court to hold that if the absent voters' ballots lack the signature of the clerk of the circuit court, they lack one of the essential requirements to make them legal, valid, votable ballots, and that without the signature they should not have been counted.

Werber v. Hughes, supra, is cited with approval in the case of Dobbyn v. Rogers, 1948, 225 Ind. 525, 76 N.E.2d 570.

The Legislature has provided that, in construing statutes, words and phrases are to be taken in their plain, or ordinary and usual, sense. Section 1-201, Burns' 1946 Replacement.

In this state there is a long line of decisions holding that, where a statute requires a public officer or person to affix his signature, or to subscribe a document, at least the whole surname should be used. In the case of Vanderkarr v. State, 1875, 51 Ind. 91, the statute involved required the signature of the prosecuting attorney, and this court held that this meant the signature by the surname in full and the Christian name by at least its initial. In the case of Collins v. Marvil et al., 1896, 145 Ind. 531, 44 N.E. 487, this court, in passing upon the question as to what was sufficient to meet the statute requiring the signing of a remonstrance, held that one might employ his initials to indicate his Christian name in subscribing a remonstrance, povided he write his surname in full. In the case of Ardery v. Smith, 1905, 35 Ind.App. 94, 97, 73 N.E. 840, 841, the Appellate Court, relying on the definition of 'signature,' as contained in 2 Bouv. Law Dict., Rawle's 3d.Rev.,3071,

defined it as: 'The act of putting down a man's name at the end of an instrument to attest its validity.'

In the case of Good v. Burk, 1906, 167 Ind. 462, 77 N.E. 1080, there was involved a statute requiring a petition to be 'signed' by twenty-five freeholders of the township. This court held that it was sufficient if the petitioners used the initial letter of their Christian name, provided they signed their surnames...