« PreviousContinue »
Opinion, per JOHNSON, J.
contains a like provision, viz.: “The election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed
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
Opinion, per JOHNSON, J.
whole number of officers to be chosen. It is clear that the act now under consideration is not within the terms of that decision, whether within its principles or not."
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
Opinion, per JOHNSON, J.
throughout the state. It is generally agreed that when a decision of a court of last resort determining the constitutionality of a statute has been acquiesced in by the legislature and the people for a considerable period of time, the courts incline to a steadfast adherence to that decision. 6 Ruling Case Law, 66.
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
sembly. To this it is replied that in this case it is not necessary to do so — that the provisions of Article XVIII of the Constitution, as amended in 1912, contain an equally comprehensive authority to municipalities to adopt charters for their government and to exercise all powers of local selfgovernment.
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
Opinion, per JOHNSON, J.
permit such differences and to make them effective.
The state has given its sanction to a charter or plan of local self-government when thus adopted. There is no imperium in imperio, except in the sense that by the approval of the state the city exercises part of the sovereign power under the limitations imposed, and may thereby, subject to such limitations, exercise all powers of local selfgovernment. This involves no lack of the harmony that is essential and no loss by the state of its proper authority over the city and its people. The charter becomes the organic law of the municipality so far as such local powers are concerned.”
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 V 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