McKay v. Minner

• Decision Date: 20 February 1900
• Citation: 55 S.W. 866,154 Mo. 608
• Parties: McKAY v. MINNER.
• Court: Missouri Supreme Court

55 S.W. 866

154 Mo. 608

McKAY v. MINNER.

Supreme Court of Missouri, Division No. 2.

February 20, 1900.

ELECTIONS — BALLOTS — JUDGES' SIGNATURES — NECESSITY.

The clause in Rev. St. 1889, § 4785, as amended by Laws 1891, pp. 135, 136, providing that no judge of election shall deposit any ballot on which the names or initials of the judges do not appear, is mandatory; and votes cast, bearing the name and initials of only one judge, cannot be counted.

Appeal from circuit court, Barton county; H. C. Timmonds, Judge.

Action by Benton McKay against James A. Minner. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

McAdow & Davis and Tucker & Moore, for appellant. Thurman, Wray & Timmonds, Cole & Burnett, and T. W. Martin, for respondent.

SHERWOOD, J.

Election contest between Benton McKay and James A. Minner for the office of judge of the county court for the Western district of Barton county. The outcome of the contest turns on the vote of Central township, in relation to which the evidence shows that Minner had counted for him 136 ballots, and McKay had counted for him 94 ballots. Each of these ballots had indorsed on it the names and initials of only one of the judges of the election. But these ballots were nevertheless counted, and so Minner was declared elected, and received his certificate, and is now an acting judge of the county court. If the ballots were invalid by reason of the indorsement fact aforesaid, and should not have been counted, then McKay would, by reason of such invalidity, have had a plurality of 28 votes, which would have entitled him to a certificate. There is no fraud charged in this case, so that the question to be determined is a purely legal one, and depends on the meaning to be given to section 4785, Rev. St. 1889, as amended by the act of 1891 (Laws 1891, pp. 135, 136). Thus amended, that section reads as follows: "[Every ballot shall be numbered in the order in which it has been received.] No judge of election shall deposit any ballot upon which the names or initials of the judges as hereinbefore provided for, does not appear." The bracketed words indicate the additional words which the act of 1891 supplies. As above said, the section just quoted was not complied with in regard to the indorsement of the two judges on the ballots in question. In West v. Ross, 53 Mo. 350, and in Ledbetter v. Hall, 62 Mo. 422, when the then existent statute (Wagn. St. p. 567) required that the ballots should be numbered, and declared that "no ballot not numbered shall be counted," it was held that these words were mandatory, and that, inasmuch as these mandatory words were not obeyed, the election in each contested township in each of the foregoing cases was invalid, resulting in the vote in each of such townships being thrown out. Both of the cases aforesaid, by a singular coincidence, came up from Gentry county, — the first in 1873, and the second in 1876; and in each instance the contest hinged on Miller township, and was based on precisely the same kind of blunder. In Ross' Case, 251 votes were thus lost; and in Ledbetter's Case, 247. No fraud was charged in either of those cases. In this case, however, a change has occurred in the statute, and the statutory words, so far as concerns the numbering of the ballots, have ceased to be mandatory. But such mandatory effect and tenor have been transferred to the residue of the section: "No judge of election shall deposit any ballot," etc. Each ballot is to be handed to a judge of election by the voter, and the duty of such judge is to deposit it in the ballot box. That box, being the only depository for ballots recognized by the law, is consequently the only one from whence ballots can be counted. So that, when it is declared by the law that "no judge of election shall deposit any ballot," etc., it is necessarily implied that a ballot not thus deposited shall not be counted. And whatever the law implies is as much part and parcel of a statute as if expressly and in terms inserted therein. State v. Board of Equalization of Buchanan Co., 108 Mo., loc. cit. 242, 18 S. W. 782; State v. Laclede Gaslight Co., 102 Mo., loc. cit. 485, 14 S. W. 974, 15 S. W. 383; State v. Grant, 79 Mo. 122; Suth. St. Const. § 334. And the legislature, by taking out from section 4672, Rev. St. 1889, the words, "No ballot not so numbered shall be counted," and placing in the amended act of 1891, supra, the words, "Every ballot shall be numbered," etc., in lieu thereof, must be presumed to have been conversant with our previous decisions on the original words, and, while determining to rob them of their adjudicated and mandatory character, determined, also, at the same time, to make other words in the same amended section the inheritors of the same quantum of mandatory force.

As showing what presumptions will be indulged relative to legislative knowledge as aforesaid, a leading text writer says: "It is presumed that the legislature is acquainted with the law; that it has a knowledge of the state of it upon the subjects upon which it legislates; that it is informed of previous legislation and the construction it has received. * * * A judicial construction of a statute of long standing has force as a precedent, from the presumption that the legislature is aware of it, and its silence is a tacit admission that such construction is correct. The re-enactment of a statute after a judicial construction of its meaning is to be regarded as a legislative adoption of the statute as thus construed. So, where the terms of a statute which has received a judicial construction are used in a later statute, whether passed by the legislature of the same state or country, or by that of another, that construction is to be given to the later statute; for, if it were intended to exclude any known construction of a previous statute, the legal presumption is that its terms would be so changed as to effectuate that intention." Suth. St. Const. § 333. Taking it, then, for granted that the legislature were aware of our decisions on the topic mentioned, it is easy to see that they ascertained what words we regarded as mandatory, and followed our ruling when they changed the statute so as to substitute for the original words others equally as mandatory as the original statutory terms were. This...