State ex rel. Taylor v. French
State ex rel. Taylor v. French
Opinion of the Court
The demurrants challenge the validity of Section 36-A of the charter of the city of East Cleveland, quoted in the above statement. They insist that a municipality is without authority to include in its charter any provision which extends the right of suffrage beyond the provisions of Section 1, Article V of the Constitution, viz.: “Every white male citizen of the United States, of the age of twenty-one years, * * * shall have the qualifications of an elector, and be entitled to vote at all elections.” They contend substantially that this section definitely fixes the class of persons who may vote at any election and that this class may vote at all .elections.
On the other hand it is contended that by the provisions of Article XVIII of the Constitution, as amended in 1912, which confers authority on any municipality to adopt a charter for its government and to exercise thereunder all powers of local self-government, the municipality of East Cleveland was authorized to include the provision in question in its charter.
Counsel for the relatrix contend that the case of State, ex rel. Mills, v. The Board of Elections et al.,
It is said by Shauck, J., in the opinion: “There seems to be no occasion to doubt that only those who have the constitutional qualifications of electors can participate in elections held to fill the offices which the constitution itself has created. This is, in some states, held to be the extent of the constitutional restriction.”
In referring to The State, ex rel., v. Cincinnati et al., 19 Ohio, 178, supra, Judge Shauck says: “In that case the court was called upon to determine whether an act which provided for colored schools in Cincinnati, and the election of colored directors by colored voters, was valid. Notwithstanding the provisions of article four of the constitution then in force, defining an elector to be ‘a white male inhabitant,’ the act was held valid, for the reason that The whole subject of organizing and regulating schools had been left to the general
In Belles v. Burr et al., 76 Mich., 1, it was held that the legislature may confer upon women the right to vote for officers charged with the management of the affairs of the school districts. In the Belles case, at page 11, it is said: “The authority granted by the Constitution to the Legislature to establish a common or primary school system carried with it the authority to prescribe what officers should be chosen to conduct the affairs of the school-districts, to define their powers and duties, their term of office, and how and by whom they should be chosen.”
In Wheeler v. Brady, 15 Kans., 26, it is held that a person having all the qualifications of an-elector, as defined by Section 1, Article V of the Constitution, except that such person is a woman, has the right to vote at an election regularly held for the election of a school-district treasurer. It is pointed out in the opinion that the constitution of Kansas did not anywhere mention the election of any school-district officer and specifically provided that all officers whose election or appointment is not provided for in the constitution should be elected or appointed as may be prescribed by law, and the court remarked: “Now, if section 1 of article V of the constitution does not apply to school-district elections, then what is there to prevent the legislature from conferring the right of suffrage in school-district elections upon women ?”
Section 27, Article II of the Ohio Constitution,
In The State, ex rel., v. Cincinnati et al., 19 Ohio, 178, supra, the court say, at page 197: “Now a school director, although in some respects a public officer, is not even a township officer. He is merely the officer of a school district—a political organization unknown to the constitution—the mere creature of legislative enactment. And it seems to the court that the power creating the political organization might well define the qualification of its officers, if in so doing they do not violate any express provision of the charter under which they themselves act.”
The case of The State, ex rel., v. Constantine, 42 Ohio St., 437, is referred to by counsel for defendants. It was there held that “A statute authorizing the election of four members of the police board at the same election, but which denies to an elector the right to vote for more than two members is in conflict with article 5 of the constitution.”
The case was cited and considered by the court in the Mills case, supra. Judge Shauck said concerning it: “That act did not attempt to extend the right to vote to any who had not the constitutional qualifications of electors. The vice of the act, in the opinion of the court, was that in the election of municipal officers it denied the right of constitutionally qualified electors to vote for the
The court in the Constantine case point out that the qualifications of electors are not defined by the statute there involved.
This court did not regard that case as controlling the Mills case, supra. Acts of a similar character have, upon like reasoning, been sustained in State, ex rel., v. Cones, 15 Neb., 444; Opinion of Judges, 115 Mass., 602, and Huff v. Cook, 44 Ia., 639.
Counsel for the relatrix cite authorities in support of the proposition that as to offices not contemplated or provided for in the constitution the legislature in creating such offices may prescribe the qualifications of the voters who are to participate in filling them, viz.: Hanna v. Young, 84 Md., 179; State, ex rel., v. Hanson, 80 Neb., 724; State, ex rel., v. Dillon et al., 32 Fla., 545; Scown v. Czarnecki, 264 Ill., 305, and Spitzer v. Village of Fulton, 172 N. Y., 285. So far as the present case is concerned, in the view we take, it is not necessary for us to approve the proposition stated nor to hold that-Section 1, Article'V of the Constitution of Ohio, is limited in its application to elections of officers enumerated in the constitution.
We think it may be safely stated that the weight of the adjudications since the decision of the Mills case, supra, has tended to support the propositions there laid down. There has been full acquiescence in that decision for a long period of time, and the statute -there involved has been in operation
Defendants call attention to Section 4 of Article XV of the Constitution as amended in 1913. After the language of the original section, “No person shall be elected or appointed to any office in this state, unless he possess the qualifications of an elector;” the amendment adds a proviso “that women who are citizens may be appointed as members of boards of, or to positions in, those departments and institutions established by the state or any political subdivision thereof involving the interests or care of women or children or both.” The proviso expressly concerns the appointment of women to the places named, and authorizes. the appointment of women who are not electors. It does not concern the qualification of electors or the method of determining it. For example, it would not be contended that it was intended to deprive women of the right to vote for or be elected as school directors in accordance with the statute then and now in force.
But it is insisted by the defendants that the Mills case should not be extended beyond its own limits; that the statute involved in that case was held valid as being within the power to provide for the establishment and maintenance of common schools, which the constitution confers on the general as
In The State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St., 71, which involved the interpretation of the home-rule amendment, Article XVIII of the Constitution, Shauck, J., points out the steps by which the terms of that amendment became effective in the different municipalities.
He says, at page 93: “This article provides two modes of securing the permitted immunity from the operation of the uniform laws which the legislature is required to pass.”
After reciting that one method is by the passage of laws by the legislature to be ratified by the municipality to be affected thereby, Judge Shauck continues: “The other mode is defined in the provisions of the later sections relating to the adoption of charters. From the terms and nature of these latter provisions they are self-executing in the sense that no legislative act is necessary to make them effective.”
In Billings et al. v. The Cleveland Ry. Co., 92 Ohio St., 478, it is said, at page 484: “It was contemplated by the .framers of the amendment to the constitution that the provisions in a charter, adopted by a city, would differ from the general laws of the state, within the limits defined by the constitution. The object of the amendment was to
The basis of the opinion and the judgment of the court in the Mills case, supra, was that the offices to be filled were not any of those created by the constitution, and that the constitution had conferred power upon the general assembly to provide for the establishment and maintenance of common schools.
As above stated, in this case it is not necessary, in the conclusion we have arrived at, to hold that Section 1, Article Y of the Constitution, is limited in its application to the election of officers enumerated in the constitution.
It is equally clear in the case we have here that the offices for which the relatrix seeks to vote were not created by the constitution, and it is also equally clear that the subject-matter, to-wit, municipal government, is one as to which the constitution confers power upon the municipality to adopt its own provisions. The charter , of a city, which has been adopted in conformity with the provisions of
Counsel for defendants concede that “it may well be that the power to prescribe the qualifications of electors for the purpose of all local elections is accurately classified as one of the powers of local self-government,” but contend that Article V, Section 1, is controlling. But we are here confronted with the Schedule to the Constitution, as adopted in 1912, viz.: “Any provision of the amendments passed and submitted by this convention and adopted by the electors, inconsistent with, or in conflict with, any provision of the present constitution, shall be held to prevail.”
Any provision in a charter which purports to confer powers upon a municipal government in excess of those permitted to be granted by the constitution, or which disregards in any way the
The authority given by Article XVIII of the Constitution to adopt a charter, and exercise thereunder all powers of local self-government, is manifestly limited to matters of purely local and municipal concern. No power is thereby granted to legislate upon or interfere in any way with the affairs of the state government. The municipality, as well after as before the adoption of a charter, is an arm—a part—of the state. It could not confer upon women the right to vote for, or exercise any of the functions of, an office created by the constitution or by the general assembly. For example, Section 1, Article IV of the Constitution, makes provisions for courts to exercise the judicial power of the state. That is a matter wholly within the state governmental authority, to be provided for and regulated by the state. And to hold that a municipality could establish a court with jurisdiction in state cases, or make any other provision relating to governmental matters of the state or any of its subdivisions except the municipality itself, would be to confer on it powers not at all contemplated by the home-rule amendment.
It was held in Steamboat Northern Indiana v. Milliken, 7 Ohio St., 384, that an act to confer on a mayor jurisdiction of a justice of the peace in all matters, civil and criminal, arising under the laws
Section 10, Article IV of the Constitution, provides that “All judges, other than those provided for in this constitution, shall be elected by the electors of the judicial district for which they may be created, but not for a longer term of office than five years.”
Therefore, if a woman should be- elected mayor, pursuant to the terms of a charter adopted by a municipality, she would be incapable of exercising any of the jurisdiction of a magistrate in civil or criminal matters which the legislature might confer by general provisions upon the mayors of cities and villages.
For the reasons hereinbefore given, the writ will be allowed.
Writ allowed.
Dissenting Opinion
dissenting. Section 1 of Article V of the State Constitution of 1851 is as follows: “Every * * * male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in
The term “all elections” is now construed by this court to mean only those elections of constitutional origin or cognizance, and is so construed as not to include municipal elections. This section is simple, plain and explicit. It does not say “at all elections provided for by the constitution” or “at all elections except municipal elections.” It does not say “at some elections,” but “at all elections,” which includes municipal, a signification applied by legislative and popular policy in this state for nearly a century. This is the only article of the constitution that relates exclusively to the elective franchise, and in no other part of that organic law can there be found a single syllable which attempts to define the ■ qualifications of electors for the state and its political subdivisions. Until recently I have never heard the claim advanced, by layman, lawyer or jurist, that this section of the constitution did not embrace municipal elections. By the terms of this section the male sex obtained, via the constitution, the right to vote at municipal elections, and neither legislative policy nor enactment can deny them this constitutional right; although if the majority opinion be followed the legislature of the state may confine the elective municipal franchise solely to women, or to others, as it may choose. When the Constitution of 1851 was framed the members of the constitutional- convention knew that cities were organized and elections held therein, as held in townships, counties and state,
The president of the Ohio Woman’s Suffrage Association simply reflected the view of the body politic, when, upon learning of the decision of this court, she gave the following interview to the press: “I had no idea when our suffrage movement was defeated in 1912 and the .home-rule amendment passed, that it might prove a valuable ally and secure municipal suffrage for us. Neither did forces that supported home rule have any such idea, I am sure.”
As applicable to the popular construction involved, and especially germane to this case, is the language of the judge delivering the opinion in Platt, a Taxpayer, v. Craig et al., 66 Ohio St., 75, 77: “The constitution must be construed in the light of the popular and received signification of its words. Because it emanates from the people it must be construed as the people must have understood it.”
When the constitutional convention of 1912 adjourned it submitted a constitutional amendment to the people granting to women the elective franchise “at all elections.” This was defeated by a majority of 87,455. Another proposal granting female suffrage by constitutional amendment was submitted in 1914, which if adopted would have granted women the right to vote at all elections.
The decision in this case does violence to the plain terms of the constitution. The province of the court is to interpret, where interpretation is required. It cannot arrogate to itself the right to make a constitution. It must enforce the terms of the constitution irrespective of underlying public policy. As stated in The State, ex rel., v. Board of Elections, 80 Ohio St., 471, 491: “The question here is, whether a provision, whose meaning is certain, shall be enforced. It cannot be necessary to repeat the reasons which have led this court to give an affirmative answer to that question. * * * According to the view entertained by all constitutional lawyers, constitutions may not be amended by violence.”
And as conforming to the intention of the makers
The rule of construction is also well stated in Wilcox v. Nolze, 34 Ohio St., 520, 523: “The rule applicable to constitutions, as well as statutes, which may be properly invoked in this case, is that, where the language is clear, there is no room for construction; and the spirit of a provision must be extracted from its words, and not from conjectures aliunde.”
Is it a reasonable construction that the members of the constitutional convention conceived or entertained the purpose of granting by legislation or municipal charter special privileges to women in the municipalities of the state while denying them to the women of the rural communities? The lat
Under the construction here adopted, a municipality by charter, or the general assembly by law, may provide any qualifications for its electorate in municipal elections. Chartered cities may prescribe distinct and various qualifications without any semblance of uniformity. They or the legislature may nullify the constitutional requirements with respect to age and residence found in the section involved.
It is the uniform and fundamental principle of law that in the construction or interpretation of a constitution recourse may be had to the proceedings of the constitutional convention. On February 8, 1851, while the article on the elective franchise was before that body, Mr. Taylor, a member of that convention, offered the following as an addi
Prior to the adoption of the home-rule section our courts had uniformly and consistently denied women the right to hold any appointive or elective public office, whether that office were of constitutional origin or not. This is evinced by the decision of this court that a woman cannot hold the office of notary public, although this office is not a constitutional office but purely one of legislative creation. (Section 119 et seq., General Code, and State, ex rel. Atty. Genl., v. Adams, post, 196.) The holding of this court that the Elective Franchise Article of the Constitution comprehends offices and elections of constitutional origin or cognizance and does not embrace municipal elec
The principle announced in the majority opinion herein, to the effect that the constitutional requirements relating to electoral qualifications in Section 1, Article V, do not apply to offices unknown to the constitution, has been repudiated many times by the decisions of the supreme court of this state.
In the case of The State, ex rel. Armstrong, v. Holliday, Auditor, 61 Ohio St., 171, the supreme court held that the office of county warden, which is not recognized by the constitution, could not be created by legislative act providing for his appointment.
In the case of The State, ex rel. Attorney General, v. Wilson, 29 Ohio St., 347, our court of'last resort held that the office of medical superintendent, which is likewise unknown to the constitution, was subject to the provision of Section 4, Article XV thereof, requiring such office to be filled by an elector of the state.
In the case of The State, ex rel. Attorney General, v. Kennon et al., 7 Ohio St., 547, this court held that the legislature had no jurisdiction to appoint statehouse commissioners, positions likewise unknown to the constitution, and that a legislative appointment of such officers was violative of-Section 27, Article II of the Constitution.
The effect of all these decisions is, that though the offices may be purely the creature of legislative enactment, the cloak of the constitution covers them as well as those appointive or elective which are of constitutional origin.
In the case of The State, ex rel., v. Constantine, 42 Ohio St., 437, the supreme court applied the
The majority opinion finds comfort in the case of State, ex rel. Mills, v. The Board of Elections et al., 9 C. C., 134, Judge Shauck delivering the opinion. That case was affirmed by an evenly divided court, and without opinion, in 54 Ohio St., 631. Judge Shauck, who had delivered the opinion on the circuit, having in the meanwhile been elected to the supreme bench, voted for affirmance. Minshall, C. J., Bradbury and Burket were marked as dissenting. The case upheld the power of the general assembly to confer upon women the right to vote for school officers. It is now said that this unreported case sustains the principle that the constitutional provision relating to sex qualifications does not apply to municipal officers. Whether the case was rightfully decided or not I am for sustaining the principle therein announced under the doctrine of stare decisis, and I would claim the same privilege from the majority of likewise upholding the same doctrine if it is demonstrated that this court in the past has uniformly refused to
This is indubitably shown by the further fact that the circuit court in the Mills case relied upon two differentiated cases reported by the supreme court of Michigan, under a constitution similar to our own, and which grants to the male sex the right to vote “in all elections " These cases are Belles v. Burr et al., 76 Mich., 1, and Coffin et al. v. Election Commissioners, 97 Mich., 188. Under this similar provision of the Michigan constitution the court held in the former case that the legislature of Michigan had authority to confer upon women the right to vote for school officers; but, in the second case, when the legislature of the state, later, in 1893, attempted to confer upon women the right to vote for village and city officers, the legislative act was declared unconstitutional.
If there be any doubt as to the attitude of our court upon this subject it has been definitely and conclusively settled by the case of State, ex rel. Attorney General, v. Adams, 58 Ohio St., 612. This case involved the question of whether Miss Adams could be commissioned as a notary public of Lake county, and it will be observed that the office in question was neither of constitutional origin nor
The phrase “and all elections” has been incorporated in another part of the Ohio constitution. A constitutional amendment was adopted in 1905 providing for biennial elections. This amendment, Section 1, Article XVII, after providing that state and county officers shall be elected in the even numbered years, then proceeds as follows, “and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd numbered years.” Can it be argued that this section of the constitution is ineffective and does not cover municipal as well as township elections ? Under its provisions undoubtedly the legislature has no authority to prescribe
Let us assume that the city of East Cleveland under its claimed prerogative should attempt to hold a municipal election by the use of voting machines, could such a prerogative be maintained in view of Section 2 of the Elective' Franchise Article, which provides that “all elections” shall be by ballot? The case of The State, ex rel., v. Board of Elections, 80 Ohio St., 471, decided that an act authorizing the use of such voting machines in the city of Cleveland was void because it was repugnant to the foregoing section, which provided that “all elections shall be by ballot.”
Section 6 of the Elective Franchise Article provides that no idiot or insane person shall be entitled to the privileges of an elector. .This certainly applies to municipal as well as other elections, and neither city or legislature can qualify that section by any law limiting its purport. There seems to be no reason why the constitutional requirement
Article XVIII, Section 1, provides for the classification of cities and villages. Article XVII, Section 1, provides for the election of all other elective officers than state and county in odd numbered years. And Section 3 of the same article provides that every elective officer holding office when this amendment, is adopted shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law. Article XVII, Section 2, provides for the terms of state,' judicial, and elective county, township and municipal officers. Article XVIII, Section 13, provides for a limitation of municipal indebtedness. Article XV, Section 7, provides that every person chosen or appointed “to any office” under this state shall take the oath of office before entering upon the discharge of its duties. Section 10 of the same article provides that appointments and promotions in the civil service of the state, counties and cities shall be made according to merit and fitness; and Section 7 of the Elective Franchise Article provides that all nominations for elective state, district, county or municipal officers 'shall be made at direct primary elections or by petition as provided by law.
These various sections have been cited in order to show the consideration given by the Ohio Constitution to the organization, government and control of its municipalities and municipal officers.
It is stated in the syllabus of the case of McCafferty v. Guyer et al., 59 Pa. St., 109:
“2. The legislature cannot confer the right to vote upon any classes but those to whom it is given by the constitution; the description of those entitled excludes all others.
“3. The 3d article of the constitution is not merely a general provision defining the indispensable requisites to the rights of an elector, leaving the legislature to determine who may be excluded. It is a description of who shall not be excluded.”
Article XVIII, adopted September 3, 1912, provides that municipalities shall exercise “all powers of local self-government.” It will not be permitted to allow the dubious character of this grant to strike down another and express provision of the constitution dealing solely with the elective franchise, and which is the only article of that instrument which attempts to deal with the subject of the elective franchise. The position now taken by this court is—that as municipal elections and the qualifications of electors therefor were within the
However, there is still another insuperable reason against the position taken by the majority of this court, which, in my opinion, absolutely destroys the fallacy on which it is based. This is found in Section 4, Article XV, of the Ohio Constitution, amended at the recent election occurring in November, 1913. So far as this relates to the' electoral qualifications this section is a companion section to Section 1, Article V, now in controversy. Prior to the election of 1913, it read as follows: “Section 4. No person shall be elected or appointed to any office in this state, unless he possess the qualifications of an elector.” At that election, however, the people of this state amended this section to read as follows: “Section 4. No person shall be elected or appointed to any office in this state unless possessed of the qualifications of an elector; provided that women who are citizens may be appointed as members of boards of, or to positions in, those departments and institutions established by the state or any political subdivision thereof involving the interests or care of women or
The provisions of the East Cleveland charter, in granting to the female sex the right to vote for municipal elective officers, also provide that they shall be eligible for appointment or election to any municipal office therein. By this adoption the charter flew in the teeth of the 1913 amendment and is in flagrant defiance thereof. This recent amendment provides generally that women cannot be elected to any office in this state, unless possessed of the qualifications of an elector. To ascertain what such qualifications are recourse must be had of course to Section 1, Article V, which attaches them to the male sex alone. It follows that under the new amendment they can not be elected to any office, but may be “appointed” only. And the provision limits the right of women citizens to hold appointive offices to those departments or institutions established by the state or any political subdivision thereof involving the interests or care of women or children. The city of East Cleveland is a political subdivision of the state, and this section of the constitution in effect denies women the right of election but permits them merely to be appointed to positions in the special class of institutions named; and this includes such institutions established by a municipality, which is a political subdivision of the state. This clearly negatives the idea that they may be elected to or hold city offices
The duty of the court here is to uphold and maintain the plain and explicit terms of the constitution. It is not a question of public policy, nor a question whether the action of the people by its adoption in the manner stated was wise or unwise. Under the trend of modern events, and having in view the commanding position that the female sex is taking in the current affairs of the nation, the electorate of this great state may determine the unwisdom of the Constitutions of 1802 and 1851 in denying suffrage to the female sex; but it seems to me that this appeal for the enjoyment of limited or full suffrage should be met by an amendment to the constitution of the state, the source from which it was obtained
Case-law data current through December 31, 2025. Source: CourtListener bulk data.