Wheeler v. Brady

15 Kan. 26 | Kan. | 1875

The opinion of the court was delivered by

Valentine, J.:

The only question involved in this case, or rather the only question which we need consider, is, whether persons having all -the qualifications for electors as defined by § 1, article 5 of the constitution, except that they are women, have the right to vote at an election regularly held for the election of a school-district treasurer. This case differs widely from the case of Winans v. Williams, 5 Kansas, 227. While we have no statutory or constitutional provision authorizing women to vote for either state or county superintendent of public instruction, and while the constitution would seem impliedly at least to prohibit such a thing, yet we have statutory provisions which expressly authorize women to vote for school-district treasurers. Section 19, article 3, of the school law, provides that—

“The inhabitants qualified to vote at a school meeting, lawfully assembled, shall have power, * * * 3. To choose a director, clerk and treasurer, who shall possess the qualifications of voters.” (Gen. Stat., 918.)

And § 20 of the same article provides that—

“The following persons shall be entitled to vote at any district meeting: First, All persons possessing the qualifications of electors, as defined by the congtitution of the state, and who shall be residents of the district at the time of offering to vote at said elections. Second, All white female persons over the age of twenty-one years, not subject to the disqualifications named in section second, article fifth, of the constitution of the state, and who shall be residents of the district at the time of offering to vote.”, (Gen. Stat., 919.)

But it is claimed that the second subdivision of said § 20, of the school law, is unconstitutional and void, as being in contravention of § 1, ai’t. 5, of the constitution, which reads as follows:

“ Every white male person, of twenty-one years and upward, belonging to either of the following classes, who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding such election, shall be deemed a qualified elector: First, Citizens of the United States. Second, Persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the Uixited States on the subject of naturalization.”

Now does § 1, art. 5, of the constitution, have any application to the election of school-district tx’easurers ? The constitution provides for two, and only two, elections, to be held by the people, to-wit, gexxeral elections and township elections. (Const., art. 4, § 2.) And it does not anywhere even mention school-district elections or meetings. It provides for, or at least recognizes, the election of various officers: First, all the state officers provided for by the constitution, to-wit, the governor, lieutenant governor, secretary of state, auditor, treasurer, attorney-general and superintendent of public instruction; (Const., art. 1, §§ 1, 2,14.) Second, members of the legislature; (art. 2, §§2, 4, 5, 8, 9, 13.) Third, judges of the supreme court; (art. 3, §§ 2, 11.) Fourth, judges of the district courts; (art. 3, §§ 5,11.) Fifth, clerks •of the district courts; (art. 3, § 7.) Sixth, probate judges> (art. 3, §§ 8, 11.) Seventh, justices of the peace; (art. 3, §§ 9, 11.) Eighth, county superintendent of public instruction; (art. 6, §1.) Ninth, township officers; (art. 9, §4.) But the constitution does not anywhere even mention the election of any school-district officer. The constitution does not require that all the offices which it creates or recognizes should be filled by an election of the electors mentioned in § 1, article 5 of the constitution, or even by an election at all. For instance, the clerk and reporter of the supreme court are appointed by the judges; (art. 3j § 4;) a judge pro tern, of the district court is elected by the bar; (art. 3, § 20;) trustees of the public benevolent institutions are appointed by the governor; (art. 7, § 1;) directors of the penitentiary are appointed or elected as prescribed by law; (art. 7, § 2;) militia officers are also appointed or elected as provided by law; (art. 8, § 3;) and vacancies in the various offices are filled in various ways, generally by appointment; (art. 1, §§ 11,13,14; art. 2, § 19; art. 3, § 11; art. 7, § 3.) And the constitution itself specifically provides that all officers whose election or appointment is not provided for in the constitution shall be elected or appointed as may be prescribed by law. Thus, § 19, art. 2, of the constitution, provides that, “It [the legislature] shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution;” and § 1, article 15, provides that, “All officei’s whose election or appointment is not otherwise provided for, shall be chosen or appointed as maybe prescribed by law.” Now, as we have before stated, there is no school-district election or meeting provided for in the constitution; there is no provision as to how school-district officers shall be elected, appointed, or chosen; and we suppose no one will claim that they are, by the terms of the constitution, to be elected at either of the elections provided for in the constitution; hence it would seem that the legislature would have full and complete power in the matter; that the legislature might provide for the election or appointment of school-district officers as it should choose, when it should choose, in the manner it should choose, and by whom it should choose. This would follow even if § 1 of article 5 of the constitution were by its terms capable of being made applicable to school-district elections. But said section cannot be made applicable to such elections except by a change of its terms. If it applies in its present form, then every person who is in other respects qualified, and who has resided “in the township ■* * * in which he offers to vote at least thirty days next preceding such election, shall be deemed a qualified elector.” That is, a legal voter of any school district in any township would be'a legal voter of every other school district in that township. In every school district of that township he could certainly swear that he was a legal elector “in the township in which he offers to vote.” And if said section applies, then this right to vote in every school district in the township in which an elector resides, is a constitutional right which cannot be abridged by the legislature, or by any other power except the entire people of the state by way of amendment to the constitution. Probably nearly every township in the state contains more than one school district. In the county from which this case comes there are seventy-eight school districts, and only fourteen townships. In many of the counties the proportion of school districts to the number of townships is much greater. For instance, in Crawford county there are one hundred school districts, and only nine townships. Now, if § 1 of article 5 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?. There is nothing in the nature of things, or in the nature of government, which 'would prevent it. Women are members of society, members of the great body politic, citizens, as much as men, with the same natural rights, united with men in the same common destiny, and are capable of receiving and exercising whatever of political rights may be conferred upon them. We must answer the main question involved in this case in the affirmative; and therefore the judgment of the court below must be affirmed.

All the Justices concurring.