Brown v. Phillips

36 N.W. 242, 71 Wis. 239, 1888 Wisc. LEXIS 91

• Court: Wisconsin Supreme Court
• Decided: January 31, 1888
• Status: Published

Opinion

The following opinion was filed January 31, 1888:

Cassoday, J.

The plaintiff, a woman of lawful age and a citizen of this state and the United States, and long a resident of the Second ward of the city of Racine, claimed the right to vote' under and by virtue of ch. 211, Laws of 1885; and accordingly offered to vote in that ward at the last annual municipal election in that city, for candidates for the respective offices of mayor, city clerk and comptroller, alderman, and supervisor. The defendants, as inspectors of such election for that ward, refused to receive her vote or allow her to swear it in. This action is to recover damages sustained by reason of such refusal.

1. It is contended on the part of the defendants that the chapter under which such right is claimed is wholly inoperative, because it was never adopted as required for an amendment to the constitution by art. XII, Const, of Wis. That article requires that any such amendment “shall be agreed to by a majority of the members elected to each of the two houses,” in two successive legislatures, and then approved and ratified by the people, before it becomes binding. The act in question was only so agreed to by one legislature, and then approved and ratified by the people at the general election in the following year. There is no claim that such adoption was in compliance with that article of the constitution. On the contrary, it is contended on the part of the plaintiff that under another article of the constitution it was competent to “ extend, by law, the right of suffrage ” to women, if “ submitted to a vote of the people at a general election, and approved by a majority •of all the votes cast at such election.” Subd. 4, sec. 1, art. Ill, Const, of Wis. Such was manifestly the opinion of the members of the legislature enacting it. It is conceded that the chapter in question was so agreed to, and then so submitted and so approved. The contention is, however, that women do not belong to the class of “ persons ” to whom “the right of suffrage” may thus be extended “by law.” The argument is that such “right of suffrage” could only be so extended “ by law ” to such “ persons ” as were not “ enumerated ” in “ classes ” in that article, but otherwise having the qualifications therein required. That is to say, according to the argument, such right could only be so extended to such “ male ” persons, “ of the age of twenty-one years or upwards,” as had “resided in the state for one year next preceding any election,” and did not belong “ to either of the . . . classes ” therein “ enumerated.” Sec. 1, art. Ill, Const, of Wis., amended by ch. 272,- Laws of 1882. Omitting the clauses not bearing upon the question here being considered, and the section reads: “ Every male person of the age of txoenty-one years or upwards, belonging to either of the following classes, who shall have resided in. the state for one year next preceding any election, shall be deemed a qualified elector at such election: (1) Citizens of the United States; (2) persons of foreign birth, who shall have declared their intention to become citizens; . . . (3) persons of Indian blood, who have ... ; (4) civilized persons of Indian descent, not members of any tribe: provided, that the legislature may at any time extend, by law, the right of suffrage to persons not herein enumerated,” etc.

It will be observed that the section only declares such persons to be qualified electors as belong to one of the four enumerated classes, each of which must be composed of males of the requisite age, having the requisite duration of residence. Thus, it is said to have been within the power of the legislature to so extend the right of suffrage to “ every male colored inhabitant,” of the requisite age and duration of residence, by ch. 137, Laws of 1849, as was held, if not conceded, in Gillespie v. Palmer, 20 Wis. 544. This removed one of the conditions which formerly attached to the first class, which then read, “(1) White citizens of the United States.”

The argument that the right of suffrage could only be extended in this way to other classes of persons not therein enumerated, but having the general qualifications mentioned, is certainly ve^ plausible. But the language is not “ that the legislature may at any time extend, by law, the right of suffrage to ” such other “ male ” persons or classes having the general qualifications mentioned, but “ to persons not herein enumerated.” In neither of the four classes do we find the word “ male,” and yet it is .only male persons of the classes described, and having the other qualifications mentioned, that are therein declared to be qualified electors. But the enumeration therein mentioned is not confined to such male persons thus classified, but extends to any persons therein “ [herein] enumerated; ” and may refer to any persons mentioned anywhere in the section. If this is so, then suffrage may be so extended to any persons not .mentioned in the section. Certainly women were not therein enumerated when this chapter was enacted. “Every male person,” however,, was mentioned therein, and then by subsequent language his qualification as an “ elector ” was made to depend upon age, residence, and other conditions named.

. It is true, as claimed, that this section of the constitution must be regarded as an implied limitation upon the legislative power of the state. Other wise there would have been no object in making it a part of the constitution. But it contains a proviso which, to a certain extent, prevents such limitation from becoming operative. This is done by affirmatively declaring “ that the legislature may at any time extend, l>y law, the right of suffrage to persons not herein enumerated.” The power to thus extend the right of suffrage is certainly not in terms confined to males. Had it been so intended it could have been very easily so expressed. Such confinement can only rest on mere inference, if at all; and such inference must arise/ from the circumstance that only certain classes of male persons are therein made qualified electors, leaving other classes still disqualified. But the extension of such right was expressly authorized “to persons not” therein “enumerated,” generally, without any mention of sex. This preservation of power to so extend the right of suffrage was manifestly intended to relieve the legislature to that extent from the limitations which otherwise would have fastened upon it. To that extent, then, the power of the legislature, when so approved, was left unlimited. The exercise of such power is not restricted to males, nor prohibited from being exercised as to. females, unless by implication of a remote and ai’gumentative character.

The question is not whether the constitution conferred the power to so extend the right of suffrage to women, but whether it anywhere expressly or by necessary implication prohibited the exercise of such power. It is not contended that there is any prohibition upon the exercise of such power in the constitution of the United States. There was a time when it was strenuously urged that the fourteenth amendment of that instrument, giving to all the right of citizenship, and prohibiting any state from abridging “ the privileges or immunities of citizens of the United States,” .also conferred the right of suffrage upon women, but the supreme court of the United States held otherwise. Minor v. Happersett, 21 Wall. 162. According to their construction of the recent amendments, the matter of suffrage was left with the several states, subject to certain conditions. Ibid.; U.S. v. Reese, 92 U. S. 214; U. S. v. Cruikshank, 92 U. S. 542. The limitation upon the power to so extend the right of suffrage to women must, therefore, be found in the constitution and laws of this state, or it does not exist at all. It is certainly not to be found there in express terms. Nor do any of us think it can be found there by necessary implication. Mere inferences and doubts as to the true construction of the language employed will not justify the abrogation of a legislative enactment. To authorize the court to declare the act void, it should clearly appear to be in violation of the organic law. This is the established rule. We must hold the act in question to be a valid law.

2. Did ch. 211, Laws of 1885, confer upon the plaintiff the right to vote at the election mentioned for the officers named? The act is entitled: “An act relating to the exercise of the right of suffrage by women upon school matters.” The first section declares, in effect, that “every woman who is a citizen of this state, of the age of twenty-one years or upwards, . , . who has resided within the state one year, and in the election district where she offers to vote ten days next preceding any election pertaining to school matters, shall have a right to vote at such election.” The second section provided for the submission of the act for the approval or disapproval of the electors of the state at the general election in November, 1886. The third section provided for taking the vote thereon “ by separate ballot,” and the form of such ballot in these words: “For woman suffrage in school matters,” or “Against woman suffrage in school matters? On the part of the defendants, it is claimed that such right only extends to the voting directly for school officers. Upon the part of the plaintiff, it is contended that such right extends to the voting for any officer having any duties pertaining to school matters however remotely.

In the city of Bacine, unlike some cities in the state, the charter provides that “ the public schools in said city shall be under the supervision and management of the board of education, consisting of one school commissioner from each ward. Such commissioners shall be appointed by the mayor, subject to confirmation by the common council.” Title XY, Charter. [See tit. XY, ch. 813, Laws of 1876, as amended by sec. 10, ch. 59, Laws of 1879, sec. 13, ch. 133, Laws of 1882, and sec. 15, ch. 122, Laws of 1887.] All contracts entered into by such board, except with teachers, are to be countersigned by the city comptroller, who is to keep an account of the liabilities incurred by the board for each current yeai-, and report the same to the council. The board of supervisors, in which cities are represented, exercises all the legislative functions of the county as a body corporate. Secs. 662, 669, 670, R. S. Eor these reasons, it is claimed that the election of each of the four officers named — mayor, clerk and comptroller, alderman, and supervisor— was “an election pertaining to school matters,” within the meaning of the act. It is moreover claimed that the words employed in the act were aptly chosen, and clearly express such right to vote at such municipal election for such officers. But when asked whether such right also extended to the election of governor and other state officers, the able counsel, notwithstanding his special study of the subject, frankly admitted that he was not yet prepared to answer the question. If the plaintiff had the right to cast the vote offered, then it would be very difficult, if not impossible, to give any substantial reason for rejecting her vote for most, if not all, state officers,— for they certainly perform duties no more remotely “ pertaining to school matters” than such municipal officers, and some of them far more directly. The same is true as to the several county officers, members of the legislature, judges of the courts, and perhaps members of Congress. In fact, an appeal was made for such extended construction, based upon the supposed social, ethical, and political right to such suffrage. Had such appeal been addressed to the legislature, having power to act in the premises, it might have had the effect of securing the extended rights now contended for, and in such clear and unmistakable language that no one could fail to comprehend them. But, as conceded by counsel, courts have no power to grant suffrage to any one, but are confined to the exercise of judicial powers. To attempt, under the guise of a liberal construction, to extend the act to objects beyond its purpose, would be nothing less than the usurpation of powers not only belonging to the legislature but to the qualified electors of th'e state. The same would be true of any attempt, under the guise of a narrow construction, to withdraw the act from any of the objects within its legitimate scope. The plain duty of the court is, under the well-established rules of law, to declare the intention of the legislature as expressed in the act,— nothing adding, nothing subtracting. When the language of an act is clear and explicit, then construction is not permissible ; or, rather, the act construes itself. But when the language is ambiguous, we may resort to the history of the bill in the legislature, as well as to the established rules of construction.

On March 10, 1885, “the special joint committee on woman suffrage,” in the legislature, reported three several senate bills, numbered respectively 1G4, 208, 217, and one memorial to Congress, numbered 2, senate, with recommendations for and against. Senate Jour. 325. Bill No. 164 S. was “A bill to extend the right of suffrage to women,” and was indefinitely postponed by the senate, March 11, 1885. Senate Jour. 347. The memorial to Congress, No. 2 S., was “ for a sixteenth amendment to the constitution of the United States, granting the right of suffrage to women;” “was refused engrossment and third reading ” by the senate, March 13, 1885, and thus defeated. Senate Jour. 366. Bill No. 277 S. was “A bill to grant municipal suffrage to women; ” and “ was indefinitely postponed,” March 17,1885. Senate Jour. 383. Bill No. 208 S. was “ A bill relating to the exercise of the right of suffrage by women, upon school matters; ” and passed the senate, March 13, 1885. Senate Jour. 367. That bill subsequently passed the assembly with amendments, which were concurred.in by the senate, and the same is the law in question.

Thus it appears that within a few days of the time when the bill incorporated into this law passed the senate, that body effectually defeated “ a bill to extend the right of suffrage to women,” a memorial to Congress for an “ amendment to the constitution of the United States granting the right of suffrage to women,” and “ a bill to grant municipal suffrage to women.” In view of these facts, can any impartial mind deliberately conclude that, notwithstanding the nature of the bills and memorial thus defeated, and some of them after a contest at a special hour previously fixed, the same body could for a moment suppose that by this enactment they were securing to women the same rights of suffrage thus proposed to be secured by the several bills and memorial thus defeated, or any of them? An affirmative answer to this question cannot be secured on the theory of the survival of the fittest. It can only be obtained by convicting an honorable body of intelligent men of the folly of defeating what they wanted to secure, or adopting what they wanted to defeat. Still, if such is the manifest purpose of the act as expressed in the language employed, then the courts are bound to so declare, any inferences arising from the history of the bill to the contrary notwithstanding.

Turning to the act itself, we are necessarily forced to the conviction that it was never intended thereby to extend an unlimited right of suffrage to women. If it had, the words, upon school matters,” never would have been embraced in the title; and the words, “ pertaining to school matters,” never wrould have been left in the first section; and the form of the ballot in submitting the vote would not have contained the words, “ in school matters.” These several expressions are necessarily limitations upon the word “ suffrage ” and the word “ election.” While the words “ suffrage ” and “ election ” are each general in themselves, yet, as here used, they must each, upon well-established rules of construction, “ be restrained unto the fitness of the matter,”— that is “school matters.” Gillespie v. Palmer, 20 Wis. 559; Webster v. Morris, 66 Wis. 366. It was only the right to vote at “any election pertaining to school matters ” that was thereby attempted to be conferred. This is in accordance with the action of the senate in defeating the bill and the memorial, in each of which it was proposed to give women the unlimited right of suffrage.

The bill, as it originally passed the senate, contained, in place of the words, “ and in the election district where she offers to vote,” now found in the act, the words, “and within the city or town in which she claims a right to vote.” The striking out of these last w7ords, and inserting the former, was made by way of amendment in the assembly, March 26, 1885 (Assem. Jour. 814), and was concurred in the next day by the senate (Senate Jour. 484). One of the apparent objects in making such change would seem to have been to dispel any inference which might otherwise have arisen favorable to the right of women to vote at town meetings or municipal elections, the latter of which had been defeated some ten days before. The change seemed to contemplate that the voting would only be in “ election districts,” in contradistinction to the election of officers generally in towns and cities. School officers are mostly elected in districts. Secs. 424-432, 703, R. S. Of course, a town, village, ward, or city, or some subdivision thereof, may constitute an election district; and one object of making the change may have been in view of the right of women to vote for all school officers.

Much was said, upon the argument, as to the meaning of the word “ pertaining.” It was claimed to be of ancient origin. It is said to be a sacred word. That may depend upon its use, and the subject to which it is applied. Here it is applied to schools, than which few things are more sacred, and in which none are more interested than women. We apprehend, however, that the meaning of the word is •well understood. Manifestly, such right to vote is only given at an “ election pertaining ” or relating “ to school matters.” It is only “at such election” — that is to say, at such qualified election — that such right of suffrage can be exercised. And what are we to understand by the word “election” as thus qualified? When standing alone it is defined as “ (1) the act of choosing; choice; the act of selecting one or more from others. Hence, appropriately, (2) the act of choosing a person to fill an office or employment, by any manifestation of preference, as by vote, uplifted hands, or viva voce.” Imperial Diet. Webster gives substantially the same definition, but uses the word “ ballot ” instead of vote. Such qualified election, therefore, must mean “the act of choosing a person to fill an office or employment ” in “ school matters; ” otherwise “ such election ” would not pertain or relate to school matters. An election for the choosing of any school officers or school employees would be an “ election pertaining to school matters; ” and after very careful consideration we are convinced that the choosing,or selecting of any other officers, is not an “ election pertaining to school matters,” within the meaning of the act.

It is the character of the election itself which determines the right of women to participate in it. The mere fact that a city, county, or state officer may, as incident to his office, be required to do some act which may more or less remotely affect schools, does not make the election of such officer one pertaining to school matters. The act of the person so choosing or selecting by vote or ballot, must itself relate to school matters. Under the charter of Racine the mayor was required to nominate, and with, the approval of the common council appoint, school commissioners, whose duties pertained to school matters, but the act of electing or choosing a mayor was in no sense the act of electing or choosing such school commissioners. Much less was it so with the other officers proposed to be voted for on the ballot offered. In some cities such commissioners are elected by the people. Where the statutes require such commissioners, or other school officers, to be voted for upon the same “ ballot or piece of paper,” upon which are the names of other “ persons voted for by such elector,” it w'ould seem that the inspectors of election are not authorized to receive the votes of women, even for such school officers, since to do so would open the door for illegal votes to be cast for such other persons without any possibility of prevention or detection. The obvious reason for this is that such inspectors are expressly forbidden to open any ballot, or to permit it to be opened or examined, but are required to deposit the same in the box. Sec. 32, R. S. After such deposit, it would, of course, become impossible to tell which ballots had been cast by electors qualified to vote for all officers to be chosen at such election, and those which were cast by persons only qualified to vote for such school officers. The oath of inspectors requires them to perform their duties as such, “ according to law.” Sec. 28, R. S. Any departure might subject them to severe punishment. It may, therefore, require further legislation to secure the full benefits of the rights sought to be conferred by ch. 211, Laws o.f 1885. In this respect, it may be like many provisions of our state and national constitution, which do not execute themselves, but require legislation in order to become effective.

3. The complaint alleges that the plaintiff “ was a legally qualified elector at such municipal election, . . . and was entitled to vote ... at said election.” These allegations must be regarded as mere conclusions of law from the facts therein stated. The demurrer was an admission of such facts, but not of such mere conclusions. Pratt v. Lincoln Co. 61 Wis. 62; Williams v. Williams, 63 Wis. 72.

By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.

A motion for a rehearing was denied March 27, 1888.