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Statement of the Case.
full compliance with the article referred to, which confers upon women the right to vote for all municipal elective officers and to be appointed or elected to and hold any municipal office provided for in such charter, is valid. (Mills v. City Board of Elections et al., 54 Ohio St., 631, and State, ex rel., v. City of Cincinnati et al., 19 Ohio, 178, approved and followed.)
(No. 15432 — Decided April 3, 1917.)
This is a proceeding in mandamus. The petition alleges that the defendants are the deputy state supervisors and inspectors of elections in and for the county of Cuyahoga, and with other defendants are the duly appointed, qualified and acting judges of elections in and for the election precincts in the city of East Cleveland, Cuyahoga county, Ohio; that on the 6th day of June, 1916, the electors of the city of East Cleveland, at an election duly called and held for that purpose, adopted a charter establishing and providing for the government of said city; that among other provisions said charter calls for the holding of an election in said city on the 7th day of November, 1916, to elect the municipal officials provided for therein, and provides that all elections shall be conducted and the results canvassed and certified by the election authorities prescribed by the general election laws; and that pursuant to said provisions the deputy state supervisors and inspectors named are making preparations for the holding of said election of municipal officials, by the male electors of said city, and at a meeting on the 20th of October, 1916, duly held and called, by unanimous vote adopted a resolution
Statement of the Case.
refusing to permit women to vote at said election, and directing the judges of election to refuse to receive the votes of women thereat.
The petition avers that said charter contained the following provisions:
"Section 36-A. Every woman, born in the United States, or who is the wife or daughter of a citizen of the United States, or who is a naturalized citizen of the United States, who is over twenty-one years of age and possesses the necessary qualifications in regard to residence provided for men, shall be entitled to vote for all municipal elective officers and shall be eligible to be appointed to, to be elected to, and to hold any municipal office. All women having the aforesaid qualifications shall also be deemed electors and shall be entitled to vote at all municipal elections except as otherwise provided by the Constitution of the State of Ohio."
"Section 96. For the purpose of nominating and electing officers, holding and conducting all municipal elections, and determining and establishing the right to vote at said elections, this Charter shall take effect from the time of its approval by the electors of the city; and for all other purposes, it shall take effect on the 1st day of January, 1918."
The relatrix alleges that she is a resident of East Cleveland and possesses the necessary qualifications to vote as prescribed in the charter.
The petition prays that the writ of mandamus may issue commanding the defendants to permit her to vote at said election, and for all proper relief.
Opinion, per JOHNSON, J.
The case is presented on demurrer filed to the petition.
Miss Florence E. Allen; Messrs. Bartholomew, Leeper & White and Messrs. Gage, Day, Wilkin & Wachner, for relatrix.
Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, for defendants.
JOHNSON, J. 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.,
Opinion, per JOHNSON, J.
9 C. C., 134, which was affirmed in 54 Ohio St., 631, on the authority of The State, ex rel., v. Cincinnati et al., 19 Ohio, 178, is decisive of the question. It was there held that the act of April 24, 1894, conferring upon women the right to vote and be voted for at any election held for the purpose of choosing any school director, member of the board of education or school council under the general or special laws of the state is valid, it being within the power to provide for the establishment and maintenance of common schools which the constitution confers upon the general assembly, and not within the limitation contained in Section 1 of Article V.
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,