Schrenker v. Clifford

• Decision Date: 27 March 1979
• Docket Number: No. 379S78,379S78
• Citation: 270 Ind. 525,387 N.E.2d 59
• Parties: Henry P. SCHRENKER, Paul O'Neill, as members of the Madison County Election Board, Thomas Newman, Clerk of Madison County, and ex officio member of the Madison County Election Board, Appellants (Plaintiffs below), v. William R. CLIFFORD, Appellee (Defendant below). . *
• Court: Indiana Supreme Court

Page 59

387 N.E.2d 59

270 Ind. 525

Henry P. SCHRENKER, Paul O'Neill, as members of the Madison

County Election Board, Thomas Newman, Clerk of Madison

County, and ex officio member of the Madison County Election

Board, Appellants (Plaintiffs below), v. William R. CLIFFORD, Appellee (Defendant below).

No. 379S78.

Supreme Court of Indiana. ^*

March 27, 1979.

David W. Stone, IV, Al S. Woolbert, Anderson, for appellants.

Stephen D. Clase, Anderson, for appellee.

HUNTER, Justice.

This is an appeal from a judgment granting injunctive relief and determining the correct interpretation of two Indiana statutes governing absent voter ballots, Ind.Code §§ 3-1-22-3 and 3-1-22-5 (Burns 1972). The case began as an action brought by the Honorable William Clifford in the Madison Circuit Court seeking a declaration and injunction enjoining the Madison County Election Board from mailing absent voter ballots to addresses within Madison County. Clifford was running for reelection in the November, 1978, election and alleged that he was being harmed by this practice of the Election Board and that it was contrary to law.

The facts were stipulated by both parties, and it was agreed that the Board, in the past, had mailed absent voter ballots to applicants at their addresses within Madison County when the applicants had sworn they would be outside of the county on election day. Special Judge, Wesley W. Ratliff, Jr., granted Clifford's request and enjoined the Board from mailing absent voter ballots to voters' addresses within Madison County. The judge relied in his ruling upon Ind.Code § 3-1-22-5 (Burns 1972), enacted in 1965, which provides that election boards may mail absent voter ballots only to addresses outside the county of the applicant's residence.

The petitioners, Henry Schrenker, Thomas Newman, and Paul O'Neill, as members of the Madison County Election Board, have appealed this ruling on the basis that Ind.Code § 3-1-22-3 (Burns 1972), enacted in 1969, has repealed the other statute by implication since it provides in part that all electors entitled to vote by absent voter's ballot "shall be entitled to vote by mail." This latter statute also sets out the form for applying for an absent voter's ballot and deletes from this form a provision which stated that applicants for absent voter ballots were not entitled to have ballots sent to them by mail at addresses within their county of residence. The petitioners contend that the two statutes are in conflict and that the latter statute must be taken as controlling.

We grant transfer and turn to a closer examination of the statutes involved. Ind.Code § 3-1-22-5 (Burns 1972) was enacted in its present form in 1965, and states:

"Upon receipt of an application by an elector entitled to vote absent voter's ballots by mail the county election board shall mail the official ballots postage fully prepaid, To the address named in the application outside of the county of his residence, on the day of the receipt of such application. Before mailing 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 added.)

Ind.Code § 3-1-22-3 (Burns 1972) was amended in 1969, and states in pertinent part:

"All electors entitled to vote by absent voter's ballots shall be entitled to vote by mail except electors entitled to vote by absent voter's ballot because of illness or injury and within the county on primary election or election day shall be required to vote before an absent voter's board."

We first must note that in construing these statutes, this Court is bound by several well settled rules of statutory construction. Where there are two statutes on the same subject, they should be construed together so as to harmonize and give effect to each, if possible, because they are in pari materia. New York Central R. Co. v. Public Service Commission of Indiana, (1958) 237 Ind. 544, 147 N.E.2d 547; Wayne Township v. Lutheran Hospital, (1974) 160 Ind.App. 427, 312 N.E.2d 120. There is a presumption that the legislature in enacting a particular piece of legislation has in mind existing statutes on the same subject. Morgan County R. E. M. C. Corp. v. Indianapolis Power & Light Co., (1973) 261 Ind. 323, 302 N.E.2d 776; 2A C. Sands, Sutherland Statutory Construction § 51.02 (4th ed. 1973).

The earlier statute, Ind.Code § 3-1-22-5 (Burns 1972) is a clearly stated and unambiguous rule that absent voter ballots are Only to be mailed to addresses outside of the county of the applicant's residence. This is a regulation governing Indiana elections which is within the prerogative of the General Assembly to establish. Other such regulations include residency and age requirements. Such requirements have been upheld as proper restrictions to avoid fraud and to insure that the voters of an area have a valid interest in the outcome of a local election.

The 1969 statute does not expressly repeal the 1965 regulation...