Harris v. Burr

39 L.R.A. 768, 52 P. 17, 32 Or. 348, 1898 Ore. LEXIS 42

Opinion

Mr. Justice Wolverton

delivered the opinion.

The sole question presented by this cause is whether women are entitled to vote at a school meeting for director of the district in which such meeting is held. The plaintiff was awarded damages in the court below for having been denied the privilege of voting, from which judgment defendants appeal.

The law under which the right is claimed is as follows: “ Section 1. In all school districts in this state with a population of 1,000 and upwards, any citizen of this state shall be entitled to vote at a school meeting who is 21 years of age, and has resided in the district 30 days immediately preceding the meeting and has property in the district upon which he or she pays a tax”: Session Laws, 1891, 130. The contention of counsel for defendants is that the law is violative of section 2 of article II of the state constitution, which reads as follows: “In all elections not otherwise provided for by this constitution, every white male citizen of the United States, of the age of 21 years and upwards, who shall have resided in the state during the six months immediately preceding such election, and every white male of foreign birth of the age of 21 years and upwards, who shall have resided in this state during the six months immediately preceding such election, and shall have declared hie intention to become a citizen of the United States one year preceding such election,' conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote at all elections authorized by law.” In this connection we direct attention to section 3 of article VIII on “Education and School Lands,” as we shall give a brief history of territorial and state legislation touching the organization and promotion of the common school system. The section referred to is as follows: “ The legislative assembly shall provide by law for the establishment of a uniform and general system of common schools.” The act of congress authorizing the territorial government of Oregon, approved August 14, 1848, provided, among other things, “that every white male inhabitant above the age 21 years, who shall have been a resident of said territory at the time of the passage of this act, and shall possess the qualifications hereinafter prescribed, shall be entitled to vote at the first election, and shall be eligible to any office within the said territory; but the qualifications of voters and of holding office, at all subsequent elections, shall be such as shall be prescribed by the legislative assembly; provided, that the right of suffrage and of holding office shall be exercised only by citizens of the United States above the age of 21 years,” etc. Under the power thus delegated, the territorial legislature provided by law “ that all white male inhabitants over the age of 21 years, who shall have resided within this territory for six months next preceding an election, shall be entitled to vote at any election for delegate to congress, and for territorial, county and precinct officers; provided, that they shall be citizens of the United States, or shall have declared their intentions, on oath, to become such, and shall have resided six months in the territory, and 15 days in the county where they offer to vote, next preceding the day of election”: Statute 1855, 6.

On January 31, 1855, an act was passed providing for the election of county superintendents of common schools, for the division of the inhabited portions of the several counties into convenient school districts, the organization of new ones, for the election of directors and clerks to hold until the next annual meeting, and for the election of their successors at such time. It provided that the superintendents should be elected by the legal voters of the respective counties at the annual elections, which, under general law, were to be held in the several election precincts in the territory on the first Monday in June of each year, and at the same time defined and prescribed the qualifications of voters at school meetings as the laws of congress permitted as follows: “Every inhabitant over the age of 21 years who shall have resided in any school district for one month immediately preceding any district meeting, and who shall have paid or be liable to pay any tax except road tax in said district, shall be a legal voter at any school meeting, and no other persons shall be allowed to vote ”: Statute 1855, 458, 463. So far as we are now informed, this act was operative when the state constitution was adopted in 1857. At its session of 1862 the state legislature revised the common school system, and repealed the territorial act of January, 1855. The new act provided, as did the old, that the county superintendents should be elected by the legal voters of the several counties of the state, and such provision remains unchanged to the present time,. The qualifications of voters at school meetings, however, were modified, and thus defined: “ No person shall be a voter at school meetings who is under 21 years of age, was not a resident of the district one month preceding such meeting, and unless he has paid other tax than road tax in the county in which the district is located; women who are widows, and have children and taxable property in the district, may vote, by proxy or in person, at such meetings, if they choose”: General Laws, 1862, 42. In 1872, the legislature again enacted that "women who are widows and have children to educate, and taxable property in the district, and who have resided in the district 30 days, as aforesaid, shall be entitled to vote”: Deady & Lane’s Gomp. Laws, 511. In 1878 it was enacted that “ any citizen of this state shall be entitled to vote at a school meeting who is 21 years of age, and has resided in the district 30 days immediately preceding the meeting, and who has property in the district upon which he or she pays a tax”: Session Laws, 1878, 67. This is the identical provision made applicable in 1891 to school districts having a population of 1,000 and upwards. As it pertained to all other districts, the law of 1878 was amended in 1889 by the addition of the words, "or has children of school age to educate.” We have not adverted to all the modifications and changes in the law touching the subject, but the foregoing will suffice to indicate what manner of treatment it has continuously and uniformly received at the hands of the legislature.

Recurring to defendants’ contention, it is argued that, notwithstanding these legislative enactments, the primary and fundamental law must govern, and that section 2, article II of the constitution is absolutely controlling in the premises; that the language of this section is so far reaching and comprehensive as to include all elections provided for by law under any intendment of the constitution looking throughout its whole scope and purview. The language employed does not make the 'purpose entirely clear. Reading the portions of the section about which the controversy arises in juxtaposition, we have: “In all elections not otherwise provided for by this constitution, every white male citizen * * * shall be entitled to vote at all elections authorized by law.” It is not thought that the latter clause enlarges or circumscribes the significance of the first, and the reasonable interpretation of the section is that every white male citizen, etc., shall he entitled to vote at all elections not otherwise regulated by the constitution. In support of this proposition State ex rel. Allison v. Blake, 57 N. J. Law 6 (25 L. R. A. 480, 29 Atl. 417), a strong case, and well reasoned, is cited with others of like results. The constitutional provision there considered is as follows: “Every male citizen of the United States * * * shall be entitled to vote for all officers that now are, or hereafter may be, elective by the people.” The office about which the contention centered was that of road commissioner in a district of a subdivided township, and it was held that the constitution applied to all officers) whether directly provided for therein or created by law, the incumbents of which are made elective by the people. Anticipating somewhat the position of the respondent, and in refutation thereof, the case of State ex rel. Kimball v. Hendee, 57 N. J. Law 307 (30 Atl. 894), is also cited, wherein this language is used by Dixon, J., speaking for the court: “ In State ex rel. Elkin v. Deshler, 25 N. J. Law 177, it was adjudged that trustees of school districts were officers, within this constitutional provision. But it is said this adjudication has ceased to be authoritative, because, since it was rendered, an amendment of the constitution has imposed on the legislature the express duty of providing for the maintenance and support of a thorough and efficient system of free public schools. I am quite unable to see how the imposition of this duty affects the question whether school trustees are officers, or whether, if they are made elective by the people, any other than constitutional voters may vote for them. This duty of the legislature must be performed in accordance with all other constitutional provisions.” These authorities illustrate quite clearly the defendants’ position.

Upon the other hand, the contention of counsel for plaintiff is, in effect, that the authority granted by the constitution to the legislative assembly to “provide by law for the establishment of a uniform and general system of common schools ” is a thing quite apart from the fundamental provisions touching suffrage and elections, in so far as it respects school districts which comprise the primary unit of the school system and its officers. That is to say that, while the elective franchise thus defined and established is applicable in elections to fill all constitutional offices: and those provided for by law, yet that by the special grant of authority to the legislature to devise a uniform and general system of common schools it has been empowered, not only to call into requisition the school district as the fundamental unit of the system? but to prescribe what officers should be chosen to promote and maintain its existence, together with their powers and duties, term of office, and how and by whom they should be chosen. And it is urged that the contemporaneous and subsequent exposition of the constitution by the legislative assembly as exemplified by its acts has much to do with strengthening the position. The following authorities are cited in support thereof: Belles v. Burr, 76 Mich. 1 (43 N. W. 24); Re Gage, 141 N. Y. 112, (25 L. R A. 781, 35 N. E. 1094); Plummer v. Yost, 144 Ill. 68 (19 L. R A. 110, 33 N. E. 191); Opinion of the Justices, 115 Mass. 602; State ex rel. Crosby v. Cones, 15 Neb. 444 (19 N. W. 682); Wheeler v. Brady, 15 Kan. 26.

The Michigan case is much to the purpose from an historical analogy as well as from the similarity of those features of the constitutional provisions bearing upon the question under consideration. The provision of the Michigan constitution relating to suffrage and elections in force at the time the decision was rendered was adopted in 1850, and is as follows: “In all elections every male citizen, every male inhabitant, * * * shall be an elector, and entitled to vote; but no citizen or inhabitant shall be an elector or entitled to vote at any election unless he shall be above the age of 21 years, and has resided in this state three months, and in the township or ward in which he offers to vote ten days, next preceding each election”: Article VII, section 1. Section 4, article XIII, provides that “ the legislature shall, within five years from the adoption of this constitution, provide for and establish a system of primary schools, whereby a school shall be kept, without charge for tuition, at least three months in each year in every school district in the state.” A former constitution, adopted in 1835, contained provisions not essentially different, except the words “ a system of common schools ” were used instead of “ a system of primary schools.” Under the older constitution, the legislature of 1838 confined the right of suffrage at school meetings to males residing in the district and who were liable to pay a school tax, making no distinction between aliens and citizens. In 1846 the privilege was extended somewhat, and the amendment then adopted was stricken out in 1847. Thereafter the law remained as in 1838 until 1855, and was in force at the time of the adoption of the constitution under which the decision was rendered. In 1855 qualified voters at school meetings were defined to be “ all taxable persons residing in the district of the age of 21 years, and who have resided therein for the period of three months next preceding the time of voting.” This law was amended in 1867, and again in 1881. But in the history of such constitutional provisions and the legislation under them the qualifications of an elector at school meetings have never been identical with those of an elector under the constitution. “ In view of this fact,” says Morse, J., “it must have been the inten tion of the framers of the constitution of 1850, when they provided that the legislature should establish a a school system, following the constitution of 1835 in that respect, that under such provision the legislature should have full power to fix and determine the qualifications of voters under such system, and this without regard to the qualifications prescribed by the constitution for electors at other elections.”

Language of similar import, by Finch, J., characterizes the New York case. Speaking of the contention of counsel for appellant that school officers were not constitutional officers, because the practical interpretation of that instrument has long and invariably been to the contrary, he says: “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 cifficers 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.” The Illinois case is of similar tenor, distinguishing the case of People ex rel. Ahrens v. English, 149 Ill. 622 (15 L. R. A. 131, 29 N. E. 678), wherein it was held that women had no right under the constitution to vote for county superintendent of schools, he being an officer recognized by the constitution, and within the purview of the pro visions relating to suffrage and elections. The cases from Massachusetts, Nebraska and Kansas are also in point. Several of these cases bear a striking analogy to the one at bar.

Under the Oregon territorial law of 1855 every inhabitant above the age of 21, without regard to sex, residing in the school district one month, and who paid or was liable to pay a tax, except road tax, was declared to be a legal voter at school meetings. By the same act, which prescribed the qualifications of voters at school meetings, it was ordained that a county superintendent of common schools should be elected by the legal voters, as elsewhere defined, of the respective counties. While such was the law the constitution was adopted and the state admitted into the Union, the constitution itself by special provision continuing all laws of the territory consistent therewith in force until altered or repealed. In 1862 our state legislature, by an act relating to common schools, revised the entire scope of the school system theretofore existing, and by special mention repealed the territorial laws above referred to. This act provided for the election of a county school superintendent by the legal voters of the several counties of the state, but provided that widows having children and taxable property in the district might vote by written proxy or in person at school meetings. Since that time the legislature has frequently acted upon the subject, and the present law is the outgrowth of numerous amendments. But at all times during the various changes, and as the law now stands, the qualifications prescribed for voters at school meetings have been and are broad enough to permit of women exercising the privilege, while the legislature has constantly and uniformly required that a county superintendent shall be .elected- by the legal voters of the several counties. The office of county superintendent of common schools was created- under section 7, article VI of our constitution, and is recognized and treated as a county office: State ex rel. v. Stevens, 29 Or. 464 (44 Pac. 898). And there can be no question but that the term “legal voters,” as applied to the election of that officer, is such as the constitution has defined under section 2, article II. So that the state legislature has at all times, following in the wake of the territorial legislature, discriminated between legal voters who are qualified to vote for officers recognized or created under the constitution and voters at school meetings. Thus we have a direct legislative interpretation of the fundamental law, not only approximately contemporaneous with the adoption of that instrument, but by its every subsequent act whenever it has legislated upon the subject. If we ascribe to the constitutional convention cognizance of the laws of congress and the territorial regulations thereunder touching the common school system, as we must, because of the learning and sagacity of its members, there is strong reason for believing that they legislated fundamentally with reference to the conditions as they found them, especially as we find the legislature of 1862, so near the time of the adoption of the constitution, and composed of some of the same members, revising the school system, and to that end specially repealing acts at least supposed by them to have been carried over and continued operative by the very terms of the constitution itself.

These considerations lead to the conclusion that the power ascribed to the legislature under the constitution to provide for the establishment of a uniform .and the general system of common schools carries with it plenary power to establish the unit of that .system, denominated a school district, to determine what officers shall administer its affairs, who and what manner of persons shall be eligible to office and how and by whom they should be chosen. The elective franchise conferred by section 2, article II, does not, nor was it intended to, fix and define the qualification of voters at school meetings, but was designed only to govern in all general and special elections not •otherwise provided for by the constitution, and applies to the election of all officers known to the constitution, as well as to such as may be. provided for thereunder aside from those provided for under the special power of the legislature to establish a uniform and general system of common schools. There is strong logic in defendants’ contention, and yet it is believed there is sufficient ground for distinguishing the New .Jersey constitutional provisions from our own. If, however, we are mistaken in this, then there is a sharp conflict in the authorities, and we feel bound to .adopt the legislative construction which was placed upon this feature of the constitution from its inception, and has ever since been maintained. “That women are successful educators,” says Maxwell, J., in State ex rel. Crosby v. Cones, 15 Neb. 444 (19 N. W. 682), “is fully shown by experience.” And in Opin ion of the Justices, reported in 116 Mass. 602, supra, it is said that “the common law of England, which was our law upon the subject, permitted a woman to fill any local office of an administrative character, the duties attached to which were such that a woman was competent to perform them.” So that there existed high authority for the inauguration of the exact system of common schools that we now have under the constitution as interpreted by the legislature in the adoption of law for its promotion.

Affirmed.