Page images

Dissenting Opinion, per JONES, J.

by law, nor a municipality by its charter, for a municipal election to be held any other time than that mentioned in the constitution. The phrase "all elections for all other elective officers" undoubtedly includes municipal as well as township officers, and their election must be held in the odd numbered years as provided for therein. This is the view taken in the opinion of the court in Holbrock v. Smedley, 79 Ohio St., 391, wherein it is said, at page 398: "By the constitutional amendment, (Article XVII, adopted in 1905) providing for biennial elections, municipal elections are now required to be held in November and in the odd numbered years.

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

Dissenting Opinion, per Jones, J.

[ocr errors]

that males only shall be entitled to vote at all elections should apply to offices known to the constitution any more than to those of municipalities organized by the state.

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.


Dissenting Opinion, per Jones, J.

[merged small][ocr errors]

Far more regard and control is shown by these constitutional provisions to the municipalities of the state than is shown to its other political subdivisions, such as counties and townships. Such being the case does it not follow that, by the adoption of all these provisions of the constitution, our organic law had as much regard for the subject of electoral qualifications of those in cities as for those who dwelt without? If construction were necessary for the phrase under controversy the legal maxim expressio unius est exclusio alterius is peculiarly applicable. That is, Section 1, Article V, having designated the qualifications of electors, it thereby determined who should exercise the franchise, and necessarily excluded all others. As stated by that great constitutional lawyer and judge, “Wherever the constitution has prescribed the qualifications of electors, they cannot be changed or added to by the legislature, or otherwise than by an amendment of the constitution.” Cooley's Constitutional Limitations (7 ed.), 902.

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.”

Dissenting Opinion, per JONES, J.

In the preparation of the Constitution of 1851, when Section 1, Article V, was proposed, surely such eminent jurists as Ranney, Swan and Hitchcock (members of that convention and later distinguished members of this court) had no thought that they were framing an elective article, the effect of which, under the construction now made, would be to apply the electoral franchise under the term "all elections” only to those offices known to the constitution, and not to municipal offices; and that the general assembly might thereafter provide female electoral qualifications for the office of township constable, an officer not recognized in the constitution, but be without legislative power to grant women the right to vote for township trustees, which officers are so recognized; nor had they a thought that the legislature would have power to provide for female suffrage for the office of coroner, which is unknown to the constitution, but would have no authority to grant women the right to vote for clerk of courts and sheriff, county offices which are recognized by that organic law.

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

Dissenting Opinion, per Jones, J.

[ocr errors]

legislative powers, a municipality had like and equal power by its charter, to fix the qualifications of electors for municipal officers. The right of suffrage is a sovereign right. It is one of the attributes of sovereignty, and in this state it has been so recognized by confiding the entire subject of the elective franchise to Article V of our Constitution, limiting that right in political elections to the male sex solely. A municipal charter may now in many respects ignore a state law, but it cannot nullify the state constitution.

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

« PreviousContinue »