In re Graves

• Decision Date: 08 July 1930
• Docket Number: 30148
• Citation: 30 S.W.2d 149,325 Mo. 888
• Parties: In Matter of W. W. Graves, Jr., Petitioner
• Court: Missouri Supreme Court

30 S.W.2d 149

325 Mo. 888

In Matter of W. W. Graves, Jr., Petitioner

No. 30148

Supreme Court of Missouri

July 8, 1930

Rehearing Overruled July 8, 1930.

Petitioner discharged.

Stratton Shartel, Attorney-General, and A. M. Meyer Assistant Attorney-General, Amici Curiae, for petitioner; L. Cunningham of counsel.

(1) It becomes clear from the title that the act, now Secs. 4749 and 4750, R. S. 1919, never at any time applied to other than the ballots for women. Prior to 1919 women were not eligible to vote at all in this State. In that year, the Legislature gave women the right to vote for President and Vice-President alone. It therefore became necessary for the Legislature to provide, and it did provide, that the ballots to be used by women should be separate, because, if they were permitted to use the same form of ballot used by men, which contained the names of candidates for all offices, the women might use such ballot to vote for candidates for all offices printed thereon. But, in August, 1920, the Federal Constitution was amended, giving women the right to vote on all elective offices. As they thereby acquired voting rights equal with men, there was no longer any necessity for a separate ballot for women and, for that reason, in 1921, the Legislature re-enacted Section 4859 and provided that "every ballot printed under the provisions of this article shall contain the names of every candidate whose nomination for any office specified on the ballot has been certified or filed according to the provisions of this chapter, and no other names." After the amendment to the Constitution of the United States was ratified by the requisite number of states, it became in full force and effect in the State of Missouri and women were entitled to vote on an equality with men without any legislative enactment. Sec. 4859, p. 308, Laws 1921; approved March 11, 1921; Sec. 4868, p. 312, Laws 1921; Sec. 4869, p 312, Laws 1921. "Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, namely, that the thing shall not be done otherwise." 25 C. J. 220, note 16 (c); State v. Holtcamp, 14 S.W.2d 646. (2) The enactment of a statute inconsistent with a former statute operates to repeal the former statute insofar as it is inconsistent. If the acts are repugnant the former act is repealed. State ex rel. Railway Co. v. Public Service Commission, 275 Mo. 60, 204 S.W. 395; State ex rel. Matacia v. Buckner, 300 Mo. 359, 254 S.W. 179; Poindexter v. Pettis County, 295 Mo. 629, 246 S.W. 38. (3) Whenever it becomes a question of the construction of statutes rather than one regarding the repeal of a statute, the courts should ascertain the plain meaning of the language used and through it the intention of the Legislature, and in so doing should take into consideration the history of legislation on the subject and the objects to be accomplished and reasons for the enactment of the law. Hannibal Trust Co. v. Elzea, 315 Mo. 485, 286 S.W. 371; State ex rel. v. Telephone Co., 316 Mo. 1008, 292 S.W. 1037; Betz v. Ry. Co., 314 Mo. 390, 284 S.W. 455; State ex rel. v. Davis, 314 Mo. 373, 284 S.W. 464.

Charles M. Howell, James R. Page, Casey & Wright, James P. Aylward, De Armond & Maxey and C. P. Le Mire for respondent.

(1) The appointment of presidential electors is a wholly separate and independent election from any election held for state or county officers. Sec. 1, Art. 2, Constitution of the United States. The United States statutes fix the day for the election of presidential electors. U.S. Code Ann., vol. 1-4, title 3, sec. 1. It is treated as wholly separate by the Legislature of Missouri. Chap. 31, R. S. 1919, secs. 5285-5297. (2) The Act of 1919 (Secs. 4749 and 4750, R. S. 1919) was not abrogated or nullified by the adoption of the Nineteenth Amendment to the Federal Constitution. Said provisions apply alike to males and females, and consequently are not an abridgment of the right to vote on account of sex. But even if the Act of 1919 applied only to females and provided for a separate ballot in their case alone, same can by no stretch of the imagination be construed as an abridgment of their right of suffrage, as it in nowise deprives them of the right to vote. Mere differentiation between males and females in regard to the manner of casting their ballot would not constitute an abridgment, so long as both are entitled to vote for all officers and propositions submitted at elections. Mason v. Missouri, 179 U.S. 328; Neal v. Delaware, 103 U.S. 370; Secs. 4749, 4750, R. S. 1919. (3) The general title to the Act of 1919, Laws 1919, p. 335, is: "An Act to amend Article 2, Chapter 43, of the Revised Statutes of the State of Missouri of 1909, by adding thereto a new section to be known as Section 5800-a." The title of said article and chapter is "Elections." Consequently, under said title, any legislation germane to elections is permissible. Mayes v. Garment Workers Assn., 6 S.W.2d 336; Clark v. Ry. Co., 6 S.W.2d 960. Since every provision of the Act of 1919 is germane to the subject of elections, the contents thereof harmonize with the title, and it is of no consequence that said general title is amplified by the specific mention of some of the matters therein contained and other matters are omitted from such special mention. State ex rel. v. Buckner, 272 S.W. 942. (4) Sec. 4750, R. S. 1919, is not repealed by the Act of 1921, Laws of Missouri 1921, p. 308, et seq. Both the title and body of the Act of 1921 expressly set forth the sections of the 1919 Statutes repealed thereby. Such express mention of the statutes intended to be repealed excludes other sections from repeal by implication. Padgett v. Smith, 206 Mo. 303; State ex rel. v. Woodson, 128 Mo. 497, 514; State ex rel. v. Fisher, 119 Mo. 344; Maguire v. Saving Assn., 62 Mo. 344. (5) Sec. 4750, R. S. 1919, is not repealed by implication by the Act of 1921, Laws 1921, p. 308 et seq. (a) An elector for President and Vice-President is not an officer within the meaning of Chap. 30, R. S. 1919. 3 Bouvier's Law Dictionary, 2401-2; People v. Brady, 302 Ill. 576; State v. McLean, 159 N.W. 847; Heiskell v. Ledgerwood, 234 S.W. 100; Secs. 4802 to 4856, R. S. 1919, as amended Laws 1921, 1923 and 1925. (b) Only three sections in Chap. 30, R. S. 1919, apply to electors, and in these sections electors are specifically mentioned and said sections do not apply to or mention candidates and officers which other sections of the chapter regulate. Secs. 4749, 4750, 4852, R. S. 1919. (c) Laws governing and regulating the selection of presidential electors are found in Chap. 31, R. S. 1919; Secs. 5285 to 5297, R. S. 1919. (d) The Act of 1921, Laws 1921, p. 308, expressly provides that in case of ballots for electors for President and Vice-President, the names of the candidates for President and Vice-President may be placed under the party designation. Applying the doctrine of expressio unius est exclusio alterius, such express provision in the case of ballots for electors necessarily excludes the application thereof to ballots for candidates for state and local offices, and hence, the Act of 1921 on its face requires separate ballots for electors for President and Vice-President. Padgett v. Smith, 206 Mo. 312; State ex rel. v. Woodson, 128 Mo. 497, 514; State ex rel. v. Fisher, 119 Mo. 351; Maguire v. Saving Assn., 62 Mo. 346. (e) Repeal by implication is not favored and there must be a plain, unavoidable and irreconcilable repugnancy and conflict to warrant such holding. State ex rel. v. Walbridge, 119 Mo. 389; State ex rel. v. Bishop, 41 Mo. 24; State v. Wells, 210 Mo. 601; Road District v. Huber, 212 Mo. 551; Manker v. Faulhaber, 94 Mo. 430; State v. Railroad Co., 92 Mo. 137; Pacific Railroad Co. v. Cass Co., 53 Mo. 17; McVey v. McVey, 51 Mo. 406. (f) Both will be sustained if by any reasonable construction they can stand together. Manker v. Faulhaber, 94 Mo. 430; State v. Bishop, 41 Mo. 16. (g) A special act is not affected by a subsequent general act which does not expressly repeal it, and to the extent of any repugnancy the special act prevails over the general statute. State ex rel. v. Buder, 315 Mo. 791, 287 S.W. 307; State ex rel. v. Gehner, 280 S.W. 416; Folk v. St. Louis, 250 Mo. 116; State ex rel. v. Probate Court, 38 Mo. 533; Rodgers v. United States, 185 U.S. 83.

OPINION

Atwood, J.

This is an original proceeding under the Habeas Corpus Act, submitted upon petition, amended return, demurrer thereto, agreed statement of facts, briefs filed and oral arguments made, the Attorney-General of Missouri appearing as amicus curiae.

From the agreed facts it appears that petitioner, W. W. Graves Jr., is and was on the 6th day of November, 1928, a member of the Board of Election Commissioners of Kansas City, Jackson County, Missouri; that on said date "an election was held in said city, county and state where candidates for electors for President and Vice-President of the United States were to be voted for, as well as candidates for state, county and local offices;" that as a member of said Board of Election Commissioners it was the duty of petitioner "to have printed and furnish to the judges of election in said city ballots in the form and manner provided by law for the use and benefit of persons entitled to vote;" that said petitioner "as a member of said Board of Election Commissioners, did not cause to be printed and furnish to the judges of election for the use of persons entitled to vote in Kansas City, Jackson County, Missouri, separate ballots containing the names of candidates for electors for President and Vice-President of the United States of a color plainly distinguishable from other ballots furnished voters at said election, but, on the contrary, caused...