In re the Cancellation of the names of Gage — 54 N.Y. St. Rep. 844

Majority

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In the Matter of the Cancellation of the names of Matilda Joslyn Gage et al. from the registry lists.

(Supreme Court, Special Term, Onondaga County,

Filed October 27, 1893.)

Headnote

Election —Laws 1892, chap. 214—Constitutional law.

Chapter 214, Laws 1892, authorizing women to vote for the office of' school commisioner, is violative of art. 2, § 1, of the constitution, and-women, therefore, are not entitled to vote for such office.

Application to cancel the names of Matilda Joslyn Gage, of Fayetteville, and Julia McKenzie and Inez Seelye, of Whitesboro.. from the registry lists.

The statute of. 1892 clearly provided that; women might vote in the various school commissioner districts-of the state for the office of school commissioner. Under that, act a large number of women have registered in the counties of Onondaga and Oneida. Two adjudications are presented, one-from the county of Onondaga and the other from the county of Oneida, with a view of determining whether women may vote for this office. It is provided by § 2 of art.. 10 of the constitution: “All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties or appointed- by the boards of supervisors, or other county authorities, as the l'egrislature shall direct. All such town and village officers whose election or appointment is not provided for by this constitution-shall be elected by the electors of such cities, towns or villages,., or some division thereof, or appointed by such authorities thereof;, as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this, constitution and all officers whose offices may hereafter be created by law, shall be elected by the people or appointed, as the legislature mav direct.”

This office of school commissioner is not an office provided for by the constitution,nor was it an office in existence-at the time-

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the constitution was adopted. It is, therefore, an office created by law after the adoption of the constitution, and by the terms of this provision such officers might be elected by the people or appointed, as the legislature shall direct.

The statute creating the office of school commissioner passed in 1856, and the statute passed in 1864 continuing such office leaves no doubt but that the office was made by the legislature one whose incumbent should be elected by the people, and not appointed by any authority. By § 3, title 2, chap. 553 of the Laws of 1864, it is provided:

“ The school commissioners for each school commissioner district shall be elected by the electors thereof by a separate ballot at the general election of 1866 and triannually thereafter. The laws regulating the election and canvassing the vote for county officers shall apply to such election.”

„ And so in the act of 1892, authorizing women to vote for the office, it is provided : “ All persons, without regard to sex, who ■are eligible to the office of school commissioner and have the other qualifications now required by law, shall have the right to vote for school commissioners in the various commissioner districts of the state.”

And then the act further provided for ballots to be furnished and used by women in voting for this office, etc.

In view of these and other provisions of the statutes with reference to the office of school commissioner, it must be conceded that the legislature has made this office one to be filled by election and not by appointment. It is provided by § 1 of article 2 of the ■constitution, “ Every male citizen of the age of twenty-one years, who shall have been a citizen for ten days, and an inhabitant of the state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all ■officers that now are, or hereafter may be, elective by the people, and upon all questions which may be submitted to a vote of the people, etc.” It is well settled that this provision has the effect to exclude all persons who are not males from the right to vote for the officers referred to in the provision, and the legislature has no power to pass any act authorizing females to vote for any such officers.

We are brought, therefore, to this conclusion: The office of school commissioner having been made elective by the people, no person can vote for an incumbent of the office who is not authorized under this latter provision of the constitution to vote, and only male persons are so authorized to vote. The only escape from this conclusion must be found in the claim made in behalf of these women, that the office of school commissioner is not covered by the latter provision of article 10, § 2 of the constitution : “ All officers whose offices may hereafter be created by law shall be elected by the people, or appointed, as the legislature may direct.”

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it seems to me that such claim is untenable, and without support in reason or authority. No attempt is here made to cite any authorities or analyze the same. Considerable time was taken in-the argument and the authorities were thoroughly examined and considered by counsel and the court at the time they were cited and referred to. Counsel are fully aware of the views entertained by the court with reference thereto, and they need not be stated at length here. My conclusion is that there can be no reasonable doubt but that the act of 1892, authorizing women to vote for the office of school commissioner, was and is a violation of the constitutional provision hereinbefore referred to, and that women are-not entitled to vote for the office of school commissioner.

The application should, therefore, be granted. Formal orders-may be prepared by counsel and submitted for signature.