Pardue v. Webb

• Decision Date: 23 March 1934
• Citation: 253 Ky. 838
• Parties: Pardue v. Webb.
• Court: United States State Supreme Court — District of Kentucky

253 Ky. 838

Pardue v. Webb.

Court of Appeals of Kentucky.

Decided March 23, 1934.

1. Signatures. — Form of signature prescribed by statute is not exclusive of any other method legally sufficient to accomplish same result.

2. Signatures. — Party may adopt signature written for him by another.

In legal contemplation "to sign" means to attach a name, or cause it to be attached, by any of the known methods of impressing the name on paper, with the intention of signing it.

3. Statutes. — Strict or technical construction of statute will not be resorted to when such construction would contradict intendment or purpose of statute.

4. Elections. — Signing of ballots by clerk of election at request of and in presence of judges of election held substantial compliance with statute requiring ballots to be signed by one of judges of election (Ky. Stats., sec. 1460, as amended by Acts 1932, c. 82, sec. 1).

Appeal from Monroe Circuit Court.

V.H. BAIRD and BAIRD & GARNETT and CRABTREE & WILLIAMS for appellant.

DENHAM & CARTER and LAWRENCE & CARTER for appellee.

OPINION OF THE COURT BY JUDGE RATLIFF.

Reversing.

At the November, 1933, election the appellant, H. M. Pardue, and Will Webb, were opposing candidates for member of the county board of education in district No. 1, Monroe county, Ky. Pardue received a majority of votes and was awarded the certificate of election and qualified for the office.

Webb filed his contest suit in the Monroe circuit court setting up a number of grounds of contest, one of which was that the ballots cast in the election for himself and contestee, in Fountain Run voting precinct No. 12, which gave Pardue a majority, were not signed in person by any one of the judges of the election as required by section 1460, Kentucky Statutes, as amended by the Acts of the General Assembly 1932 (chapter 82, sec. 1). Pardue filed answer and counter contest making similar charges against Webb and charged that the ballots in Cedar Hill precinct No. 19, which gave Webb a majority, were not signed in person by any one of the judges of the election. The above two precincts gave Pardue 329 votes and Webb 113 votes.

The circuit court held that the ballots cast in these precincts were void for reasons they were not signed in person by one of the judges of the election, and deducted from Pardue's total vote the 329 ballots cast in the above precincts, and likewise deducted the 113 votes cast for Webb, resulting in a net gain of 216 votes for Webb in the two precincts, which determined the result of the election in favor of Webb. The court adjudged Webb to be entitled to the office. Pardue appeals.

On this appeal neither party insists on any of their respective grounds of contest and counter contest, except those relating to the ballots cast which were not signed in person by one of the judges of the election. It is conceded and agreed by the parties that on the morning of the election the judges of the election in precincts No. 12 and No. 19, respectively, told the clerk of the election to sign the name of one of the judges on the back of each ballot on the line designated for that purpose, and pursuant to this agreement and understanding, the clerk did sign the name of one of the judges as directed by them, and delivered the ballots to the voters, which ballots were voted by the voters and deposited by them in the ballot box. Each party rests the case upon the question whether or not this was a substantial compliance with the statute, supra.

Section 1460, Kentucky Statutes, as amended by the 1932 Acts of the General Assembly (chapter 82, sec. 1), among other things, provides that "* * * one of the judges shall sign his name on such blank line * * *." Thus, the question to be determined is whether or not the signing of the ballots by the clerk of the election at the request and direction of the judges was a substantial compliance with the Statutes, supra. Statutes requiring officials or other persons to sign documents have heretofore been considered by this court. Section 1060 of the Kentucky Statutes, relating to county court records, in part reads:

"The judge shall cause all orders and judgments of the county court to be spread by the county clerk upon the record-book to be kept for that purpose. The records shall show the day upon which the court was held, and by whom, and shall be signed by the count judge, or the special judge who presided when the record was made * * *." (Italics ours.)

This statute was construed by this court in the case of Middleton's Adm'r v. Hensley, 52 S.W. 974, 21 Ky. Law Rep. 703, where the county judge's name was signed by a deputy clerk to the orders of the county court relating to the appointment of a guardian and the approval of the guardian bond. It was argued in that case that the records or orders thus signed by the clerk were invalid. This court held that the name of the judge so signed by the clerk was sufficient. The court said:

"The county judge may make his signature to the record in the same way as he might to other documents. In the absence of other statutory regulation, a person's signature may be made by his own hand or by the hand of another, in his presence and by his direction. Thus, it has been repeatedly held that a writ is not invalid where the name of the magistrate is signed to it by another, in his presence and by his authority. Hanson v. Rowe, 26 N. H. 327; Cushman v. Wooster, 45 N.H. 410; Achorn v. Matthews, 38 Me. 173; Richardson v. Bachelder, 19 Me. 82; Stevens v. Ewer, 2 Metc. [Mass.] 74. The same rule has been followed under statutes requiring the signature of the commonwealth's attorney to an indictment [Hamilton v. State, 106 Ind. 361, 7 N.E. 9]; and the signature of the attorney to a pleading. Mezchen v. More, 54 Wis. 214, 11 N.W. 534. So, also, with a return on a fi. fa. made by a constable [Ellis v. Francis, 9 Ga. 327]; or the signature of an attesting witness to a will. Lord v. Lord , 42 Am. Rep. 565."

To the list of authorities in the Middleton-Hensley Case, sustaining our construction of section 1060, may be added Equitable Life Assur. Soc. of the U.S. v. Meuth et al., 145 Ky. 160, 140 S.W. 157, Ann. Cas. 1913B, 661; Commonwealth v. Campbell, 45 S.W. 89, 20 Ky. Law Rep. 54; Staples v. Bedford Loan, etc., Bank, 98 Ky. 451, 33 S.W. 403, 17 Ky. Law Rep. 1035; Lamaster v. Wilkerson, 143 Ky. 226, 136 S.W. 217, 218; Ledford v. Hubbard, 219 Ky. 9, 292 S.W. 345, 348; Gentry's Guardian v. Gentry, 219 Ky. 569, 293 S.W. 1094.

The authorities agree that a form of signature prescribed by statute is not exclusive of any other method legally sufficient to accomplish the same result. W.J. Fell Co. v. Elswick, 194 Ky. 641, 240 S.W. 373. See cases supra. Also a party may adopt a signature written for him by another. See cases supra. In Lamaster v. Wilkerson, the statute requiring notes signed by graded school trustees involving an election to submit a bond proposition to the voters, we said:

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