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Dissenting Opinion, per Jones, J.

As heretofore stated the case of State, ex rel. Atty. Genl., v. Adams, post, 196, held that Section 1 of Article V of the Constitution rendered a woman ineligible to the office of notary public, an office purely legislative in character.

In the case of The State, ex rel. Armstrong, v. Halliday, 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

Dissenting Opinion, per Jones, J.

constitutional limitation to city officials, offices

, likewise unknown to the constitution. That was a proceeding to oust the defendants from the office of police commissioners of the city of Springfield. This was purely a municipal office. The ouster was decreed because of the violation of Section 27, Article II of the Constitution, providing for the election and appointment of all officers. This decree was made effective as against the officers of a municipality, and it followed, of course, that the term “all officers" used in that section included municipal as well as constitutional officers.

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

0 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

Dissenting Opinion, per Jones, J.

apply Section 1, Article V, solely to elections and offices of constitutional cognizance. The decision in the Mills case, supra, was based squarely upon the fact that the special and express provisions of the constitution relating to public schools govern, and the act there involved was held constitutional for that reason only. The learned judge in that case said that the rule that the general assembly might provide electoral qualifications for offices unknown to the constitution was followed in some jurisdictions, but did not obtain everywhere, and especially it did not obtain in Ohio. On page 138 it is said: “It must be admitted that the rule that persons not having the constitutional qualifications of electors may be authorized to vote at any election that is not held to fill an office created by the constitution does not obtain everywhere. In view of State ex rel. v. Constantine, it cannot be said to obtain in this jurisdiction.” The Constantine case cited by him, and noted above, relates entirely to purely municipal officers, and it would therefore appear that by discarding the rule claimed then and now, the court on the circuit stated that the feature of the office, whether constitutional or otherwise, did not govern its action, but that it was based entirely upon distinct and special provisions in our constitution relating to public schools. This position is clarified by the succeeding sentence of the judge in the paragraph named, where he states that the ample powers for the establishment and maintenance of public schools, conferred by the legislatures of the various states, carry with them power to extend the right to vote for school officers to

Dissenting Opinion, per Jones, J.

persons not within the constitutional definition of electors, "unless such officers are designated by the constitution, or are officers of municipal or political divisions recognized by the constitution.By the use of that language it clearly appears to be the view of the court that the legislature had no power to extend the vote either for officers designated by the constitution, or for officers of municipal and political divisions recognized by the constitution.

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

Dissenting Opinion, per JONES, J.

cognizance. The legislature had passed an act which had authorized the governor to make the appointment, 93 Ohio Laws, 405. The court held that the legislative effort was ineffectual to render her eligible to the office of notary public in view of the provisions of Section 4 of Article XV, and Section 1 of Article V of the Constitution. The opinion was by the court and appears to be unanimous. The court referring to the Mills case, reported in 9 C. C., supra, and to a former case decided by this court, both relating to the subject of schools, said, at page 616: “It was held in those cases that the qualifications of an elector are not essential to the holding of positions of an official character under the school laws, because of the effect of the constitutional provisions relating especially to the subject of schools. Those cases have not sufficient breadth or strength of foundation to admit of additional superstructure.

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

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