In re the Cancellation of the Name of Gage — 56 N.Y. St. Rep. 662

Majority

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In the Matter of the Cancellation of the Name of Matilda Joslyn Gage on Registry List of Election District, etc.

(Court of Appeals,

Filed January 16, 1894.)

Headnote

Constitutional law—Female suffrage.

Chapter 214 of 1892, conferring upon women the right to vote for school commissioners, is unconstitutional.

Appeal from order of the general term of the supreme court in the fourth judicial department, made November 21, 1893, which affirmed an order of a justice of the supreme court, made at chambers, striking the name of Matilda Joslyn Gage from the registry list of the third election district of the town of Manlius, Onondaga county.

The facts, so far as material, are set forth in the opinion.

Louis Marshall, for app’lt; W. P. Qoodale, for Resp’t.

The question argued on this appeal is whether a woman may vote for school commissioner in her proper district within the state, and it arose in this manner: An act of the legislature, Laws of 1892, chap. 214, provides that “ 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 commissioner in the various commissioner districts of the state.” The act further requires that the persons so entitled to vote shall be registered “.as provided by law for those who vote for county officers; ” that the county clerk shall prepare and distribute the prescribed ballots, and the inspectors of election shall receive and count the same. Acting under this authority Mrs. Gage was duly registered in the third election district of the town of Manlius on October 21, 1893. The board of inspectors were formally requested to remove her name from the registry, but refused to comply with the demand, whereupon an application was made to a justice of the supreme court pursuant to § 37, chapter 680 of the Laws of 1892, to strike her name from the registry, on the sole ground that she was not a lawful voter by reason of her sex. That application was granted,

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the learned judge holding that the act conferring upon her the right to vote for school commissioner was unconstitutional. The inspectors obeyed the order. Mrs. Gage appealed to the general term, where it was affirmed, and from that affirmance brings her appeal to this court.

While it is true that the election of 1893 has passed, and the possibility of voting on that occasion is absolutely gone, it does not necessarily follow that the question involved has become purely abstract and divested of any practical results consequent upon its decision. The order made determined the status of the voter under the act of 1892, and settled her right for future elections ; and if a wrong has been done it is not easy to discover any practical remedy except through a reversal of the order which was granted. Both parties concur in seeking a final decision upon the constitutional question involved, and we are of opinion that the case presented requires of us its determination.

The learned counsel for the appellant states very frankly and accurately the sole inquiry upon which the decision depends. He concedes that under article 2, § 1, and article 10, § 2 of the constitution, no woman has the right to vote for constitutional officers, because the franchise is conferred explicitly upon “ male citizens; ” but he contends that school officers are not such constitutional officers, because the practical interpretation of that instrument has long and invariably been to the contrary. That is true and only true of the officers of the school district, as the fundamental unit of the school system. The trustees of such a district are the authorized business managers of the school within its boundaries, and the legislature has always assumed, and been permitted to assume, the right to determine who might vote for such trustees, and what qualifications should or should not be requisite and necessary. To that class of school officers intrusted with the government and control of the simple school district, by itself alone and within its own boundaries, the constitutional provisions have never been applied ; but I have yet to find an instance in the statutory history of the state prior to the act in question, where an officer whose authority was not confined to the school district, but extended over many of them, with a power of superintendence and control, has been regarded as anything other than a town or county officer and within the constitutional provisions. Under the Revised Statutes the superintending officers were three commissioners and three inspectors of common schools. 1 R. S., 340, § 3. These were town officers, to be chosen by the constitutional electors (§ 1) and by ballot. Id., 343, § 2. In 1843 these officers were abolished (chap. 133, § 1), and in their place was substituted (§ 2) a town superintendent of common schools, to be annually elected in the same manner as “ other town officers ” are chosen, and upon whom the duties of inspection and superintendence were imposed. He was also a town officer and chosen by the constitutional electors. In 1864 (chap. 179) the system was again changed by providing first for the appointment and then for the election of school commissioners. The terms of the stat

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ute show that they were still regarded as within the constitutional provisions, and were county officers, as their predecessors had been town officers. Where a county constituted a single assembly district the supervisors were to choose “ for their county ” an officer to be called school commissioner. § 1. Where a county had more than one assembly district a commissioner for each of such assembly districts was to be chosen. § 2. So far the office created pertained to the known constitutional divisions of the state, and its incumbent was clearly a county officer. The situation was not changed by the further provision allowing a single county constituting but one assembly district the selection of two commissioners, and dividing the county into sections for that purpose. § 4. No town was to be divided in the process, and the commissioner of one section could discharge his official duty in the other section upon the written request of its commissioner. § 7. Under the act of 1864, chap. 555, title 2, § 11, he is required to do so upon the command of the superintendent of public instruction. Under the law of 1856 the appointment by the boards of supervisors was but temporary. At the annual general election of 1857, the officers became elective, and it was provided that “ all the provisions of law relating to the mode of voting and of canvassing the votes for the county officers shall apply to and govern the election of such commissioners.” If it be a just criticism that this provision was merely model, that may have furnished a reason why, for a plainer exposition of the intended meaning, the language was changed in the general act of 1864. It there reads (§ 3, title 3): “ The laws regulating the election of, and canvassing the votes for, county officers, shall apply to such elections.” Who may vote for county officers is an essential part of the laws “ regulating ” their election, for it has been held that into those laws is to be read the constitutional definition of an elector as if it had been specially repeated therein. People v. Barber, 48 Hun, 198 ; 15 St. Rep., 601 . It follows that there are two definite and distinct classes of school officers, which are those of the school district, the unit of the system, and those of superintendence over a larger or smaller number of such units aggregated; and that the latter are and always have been as clearly either town or county officers as the former have not been. I am unable to see, therefore, that any practical construction, prior to the act of 1892, has ever been given to the constitution which takes the elective officers charged with superintendence out of the category of constitutional officers, or puts a constituency behind -them having other qualifications than those necessary for the election of town and county officers.

The Constitution, in article 2, § 1, prescribes the qualifications .of voters “ for all offices that now are' or hereafter may be elective by the People," and confines the franchise specifically to “ male citizens." The office of school commissioner was- one thereafter made “ elective by the people ” through the opération of the alternative given by article 10, § 2, which provides that “ all officers whose offices may hereafter be created by law shall be elected by the people or ap

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pointed as the legislature may direct.” That is, in such cases it may choose between election and appointment, and in the latter event may dictate the authority and mode of appointment. The legislature chose that the office should be elective, and becoming such, it fell within the scope and terms of the constitutional provisions applicable to elections by the people. The only possible answer was the one which was attempted and derived from a supposed practical construction. We have seen that the facts do not justify that answer. Indeed, the cases cited from other states do not go far enough to support the appellant’s argument. In Belles v. Burr, 76 Mich., 1 , the question was over the election of a school district trustee. In Wheeler v. Brady, 15 Kansas, 26, the controversy concerned a school district treasurer. In State v. Cones, 15 Neb., 444 , the voting was at a school district meeting. In Plummer v. Yost, 33 N. E. Rep., 191 , the election was of members of the board of education. And the opinion of the judges,' 115 Mass., 603 , related to the right of a woman to be a member of a school committee. On the other hand, when the question arose in Kansas, not of voting at a school district meeting, but for a county superintendent of schools, the court deemed it almost too clear for argument that a woman could not vote for the latter officer. Winans v. Williams, 5 Kansas, 133.

It seems to me needless to prolong the discussion. A constitutional convention may take away the barrier which excludes the claimed right of the appellant, but until that is done we must enforce the law as it stands.

The order should be affirmed, but, as stipulated, without costs. All concur

Order affirmed.