The opinion
DISSENTING OPINION
Jasper, J.
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?”
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 *156 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 cleric 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. *157 542 , 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 (pp. 547, 548 of 196 Ind., p. 151 of 148 N. E.) :
“That provision of the absent voter’s 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 of 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, arid because it was ari act to identify the ballot, it is mandatory.” (Emphasis supplied.)
After the decision in Werber v. Hughes, supra, the Legislature reenacted.this section of the Absent Voters’ Law in T945. It is the law that when a statute or section, has. been judicially construed by a court of last *158 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 reenacted 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 (p. 269 of 216 Ind., p. 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 (p. 192 of 227 Ind., p. 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 an 'absent voter’s ballot when the same is counted.”
*159 It would seem to the writer of this opinion that these eases 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, provided 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 *160 definition of “signature,” as contained in Bouvier’s Law Dictionary, 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 in full: In the case of Old Wayne, etc., Assn. v. McDonough (1905), 164 Ind. 321 , 73 N. E. 703 (reversed 204 U. S. 8 , 27 S. Ct. 236 , 51 L. Ed. 345 , on other grounds), the court approved the Vanderkarr Case, supra, and, in passing upon the question of what was sufficient for the signature of the clerk and the signature of-the judge on the transcript, held that it was sufficient if the surname was signed in full and the initial used for the Christian name. Webster’s New International Dictionary, Second Edition, defines “initial” as “the initial letters of an individual’s name and surname.”
Upon the question of the intention of the Legislature, it- has emphasized the distinction between initials and signature in the same sentence by referring to the “signature” of the clerk and the “initials” of- the poll-clerks. Section 29-4907, Burns’ 1949 Replacement, supra. We must therefore assume that a different meaning was attached to the two expressions, and that when the Legislature required the signature of the clerk and only the initials of the poll-clerks, it meant to require of the clerk something different from and greater than was required of the poll-clerks. The Legislature has further emphasized this distinction, by contrasting the requirement of signature of the clerk and *161 only the initials of the poll-clerks, in §29-4914, Burns’ 1949 Replacement, when it said:
“The inspector shall then deliver such ballot or ballots to the clerks, who shall at once proceed to write their initials, above the signature of the clerk of the circuit court....” (Emphasis supplied.)
It is for the Legislature alone to say what procedural safeguards shall be erected around the right to vote by absent voter’s ballot to the end that the integrity and purity of elections shall be assured. This court has no right to strike down by judicial construction any of the legal safeguards so erected by the Legislature. As heretofore said, after the Legislature has taken a judicial construction of this court, applied it to.a statute, and reenacted the statute, it carries the judicial construction of this court. If the rule laid down by this court in Werber v. Hughes, supra, and the cases which follow it, and the long line of decisions above referred to, upon the question of “signature,” when required by statute of a public officer or person, are to be overruled, it should be done by the Legislature, and not by this court. This court has no right, and justly so, to legislate; and the court, whose duty it is to maintain inviolate the three branches of government, should not by its construction break down the three separate branches of government, as done in the majority opinion. The law, as laid down in the cases above cited, and the legislative action based thereon, should not be changed by forced construction to meet a particular case. There is no contention in Werber v. Hughes, supra, that the five absent voters’ ballots in question, which were declared illegal and void, did not in fact issue from the clerk’s office, that those who attempted to vote them were not legal voters, or that any fraud had been practiced. Neither were any of *162 these ballots challenged in the precinct. Yet this court held in that case that said ballots could not be counted. That decision should not be changed by construction at this time to arrive at a particular result in a particular case.
While the majority admitted that they did not intend to overrule the case of Werber v. Hughes, supra, the result of the majority opinion could only be arrived at by applying a rule contrary to the law as laid down in that case. The majority opinion must overrule Werber v. Hughes, supra, to have arrived at its result. The upholding of the provisions of the election laws, and keeping the opinions of this court consistent, is far more important than the result of a particular case.
The majority opinion has cited, and relies upon, the case of Pardue v. Webb (1934), 253 Ky. 838 , 70 S. W. 2d 665 . However, the, Kentucky court, later, in the case of Brandenburg v. Hurst (1942), 289 Ky. 155 , 158 S. W. 2d 420 , had occasion to pass upon the question of the statutory requirement of a signature, and said (pp. 156, 157 of 289 Ky., p. 421 of 158 S. W. 2d):
“Our interpretation of the quoted provision of Section 1460 of the Statutes is that it is mandatory and the full name or the initials and surname of one of the judges of the election must be signed; that the mere initials or the given name without the surname or the surname without the initials or given name is not sufficient.” (Emphasis supplied.)
Section 196 of the Election Code (§29-4903, Burns’ 1949 Replacement) provides that applications for absent voters’ ballots “shall be signed and sworn to by the applicant, as hereafter provided, before some officer authorized by law to administer oaths and having an official seal.” (Emphasis supplied.) Under the holding in the majority opinion, it would be sufficient if the *163 applicant for an absent voter’s ballot merely placed his initials thereon. The election law then provides that when the absentee voters! ballots have been voted and returned to the county election board in the prescribed envelopes, the county election board is required to examine the “signature” on each envelope and compare it with the “signature” of the voter “as it appears and is written upon the application for such absent voter’s ballot or ballots on file as herein provided.” Section 29-4911, Burns’ 1949 Replacement. Under the opinion of the majority of the court, the applicant for absent voter’s ballot can merely place his initials thereon and then have the same notarized, and wherever a signature is required in election laws initials will suffice. It would logically follow that registration forms could be signed by initials, and it would be sufficient if only the initials of the voter appear upon the registration lists furnished to the precinct boards.
For the reasons given, I am compelled to dissent from the majority opinion. It is my opinion that none of the 527 absent voters’ ballots were valid, votable ballots, and that none of the absent voters’ ballots should have been counted for either appellee or appellant.
The fourth proposition, although unnumbered but decided by the majority opinion, was to the effect that the trial court committed error in sustaining objections to certain questions. The following question was asked:
“You may state when Mr. Matthews appointed you to do this work, whether he directed and authorized you to initial each ballot in that manner.”
■ The majority opinion holds that the trial court erred in sustaining an objection to the question. It is well settled in this state that where evidence is excluded *164 by the trial court, the ruling will stand on appeal if sustainable on any valid theory, whether advanced at the time of the ruling or not. In Eckman v. Funderburg (1915), 183 Ind. 208, 210 , 108 N. E. 577, 578 , this court said:
“It has been held that where evidence is excluded by the trial court, the ruling will stand on appeal if sustainable on any valid theory, whether advanced at the time of the ruling or not. Abshire v. Williams (1881), 76 Ind. 97, 103 ; Fisher v. Allison (1874), 46 Ind. 593 ; Haas v. Cones Mfg. Co. (1900), 25 Ind. App. 469 .”
It seems clear that the above question was objectionable and incomplete. It called for a conclusion, it assumed facts, and it sought to prove agency by the conclusion of the alleged agent.
Another question was propounded:
“Do you find three letters or initials on the' backs of these ?”
This question referred to certain absent voters’ ballots. While the question may have been preliminary, it called for the contents of a written instrument which was in evidence, and the trial court did not err in sustaining an objection thereto.
Even on the theory of the majority opinion that initials are the equivalent of a signature, it is necessary that they be placed on the absent voter’s ballot by the clerk of the circuit court, or some one whom the law recognizes as being authorized to do so. There is no contention that the man placing the signature upon the absent voters’ ballots was a deputy clerk. The majority opinion is predicated on the assumption that he was an authorized agent, and that such act could be performed by an agent other than a deputy. There was no evidence offered to prove that the man was appointed *165 in writing, that his appointment and oath, if any he took, were recorded in the order book, nor does it appear that the ballots were initialed by the man in or out of the presence of the clerk.
For the reasons herein given, it is my opinion that the judgment of the trial court should be affirmed.
Note.—Reported in 102 N. E. 2d 372 .