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Jones Petition, In re.

INTOXICATING LIQUORS.

[Cuyahoga Common Pleas, January 30, 1911.]

JONES PETITION No. 14, IN RE.

1. MALE CITIZENS, ELIGIBLE TO REGISTRATION, ARE "QUALIFIED VOTERS" TO SIGN RESIDENCE LOCAL OPTION PETITION.

Male citizens of the United States, residents of Ohio and the county in question for more than a year, of their respective precincts for more than four months, though not registered voters, are "qualified voters" within the meaning of Gen. Code 6067, relating to petitions in municipal residence district local option districts; the fact that they are eligible to registration, and not registration, determines their qualifications.

2. BOUNDARIES AND DESCRIPTION OF RESIDENCE DISTRICT "CLEARLY DESCRIBED" BY NAMING PRECINCTS AND PARTS OF PRECINCTS IN TERRITORY.

A petition for residence district local option describing the territory by naming some precincts and parts of precincts in a designated ward is neither too indefinite to base a proper venue for a prosecution by the state nor too uncertain because the precincts may be changed from time to time, and since it appears that the map attached shows the outlines, that the territory embraced is a compact and contiguous section, such district is "clearly described" and described as being bounded as is required by Gen. Code 6068.

G. W. Shaw, for petitioners.

C. M. Earhart, for anti-saloon league.

COLLISTER, J.

There is no contest made on any questions involved in the hearing, except on the sufficiency of the description of the residence district, and the validity of certain signatures to the petition.

On the petition there appear the names of 437 signers. At the municipal election last before the filing of the petition, there were cast, in the district, 680 votes. Therefore, to make this petition valid, so far as the number of names thereon is concerned, it must contain at least 341 valid signatures. Of the names on the petition, there are 274 about the validity of which there is no contest, and by consent these names are prop

Cuyahoga Common Pleas.

erly counted in favor of the petition. Of the names on the petition, there are 44 which it is conceded should not be counted, because, for various reasons, they are invalid. Of the signatures on the petition, there are 78 which are contested on one ground only. It is conceded that the persons making such signatures were, at the time they signed the petition and at the time the petition was filed, male citizens of the United States, residents of Ohio and of Cuyahoga county for more than one year prior to the date of their respective signatures, and were residents of their respective precincts, which were in the residence district under consideration, for more than four months prior to the dates of their respective signatures, and were such residents at the date of the filing of the petition.

It is also conceded that, at the times said signatures were placed on said petition, and at the date of the filing thereof, none of said 78 persons were "registered voters.”

There are contests on other names, but the court does not deem it important to consider those, for the reason that, should the court decide in favor of the validity of said 78 names, then the petition would contain a sufficient number of names; and should the court decide against the validity of said 78 names, there would not be sufficient names remaining to make a majority, even though all said other disputed names should be counted as valid.

The foregoing facts raise the question, should said 78 names be counted? The determination of this question requires a construction of Gen. Code 6067, which reads as follows:

"The phrase 'qualified elector,' as used in this chapter when relating to petitions in a residence district of a municipal corporation, means a registered male voter in a municipal corporation which has registration or a male voter entitled to register therein, or a male voter in a municipal corporation which does not have registration, provided that in each case such qualified elector has been a bona fide resident of such residence district for four months before the filing of the petition upon which his name appears.

That section, before the adoption of the General Code, reads as follows:

Jones Petition, In re.

"The term 'qualified elector,' as used in this act, means registered male voters in all municipal corporations which have registration, and all other male voters entitled to register, who have been bona fide residents of the district for four months before such petition is filed with the mayor or judge. In municipalities which do not have registration, such male voter or male qualified elector must be a bona fide resident of the district for four months before such petition is filed with the mayor or judge."

In the opinion of the court, the right to vote has its source in the constitution of the state and the statutes, outside of the statutes requiring registration.

Article 5, Sec. 1, of the constitution reads as follows:

"Every male white citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections."

Gen. Code 4861 and 4963 read as follows:

"Every male citizen of the United States, who is of the age of twenty-one years or over, and possesses the qualifications in regard to residence hereinafter provided, shall be entitled to vote at all elections."

"No person shall be permitted to vote at any election unless he shall have been a resident of the state for one year, resident of the county for thirty days, and, except as provided in the next section, resident of the township, village or ward of a city or village for twenty days next preceding the election at which he offers to vote.

The registration acts are merely regulations of the "exercise" of the right to vote, to the end that fraud be not committed, or, if committed, be more easily detected.

The Century Dictionary gives this definition of "Registration of voters or electors":

"The registration of voters or electors. In the United States, a system for the prevention of frauds in the exercise of the suffrage, by requiring voters to cause their names to be reg

Cuyahoga Common Pleas.

istered in books provided for the purpose in each election district, with appropriate particulars of residence, age, etc., to enable investigation to be made, and the right of the voter to cast the ballot to be challenged, if there be occasion."

In Bergevin v. Curtz, 127 Cal. 86 [59 Pac. Rep. 312], the court says:

"Registration is not a 'qualification' of an elector, and cannot add to qualifications fixed by the constitution; but it is to be regarded as a reasonable regulation by the legislature for the purpose of ascertaining who are qualified electors, and of having their names enrolled upon an authenticated list in order to prevent illegal voting.'

In White v. Regan, 25 Ark. 629, the court says:

"By the term 'qualified elector,' we do not mean simply a registered voter; for we can conceive that one may be a qualified elector entitled to hold office, sit on a jury, etc., and yet not be entitled to vote under the law for want of a certificate of registration. A qualified elector is one who is not embraced in any of the six subdivisions of Art. 8, Sec. 3, of the constitution; and a certificate of registration is evidence thereof, the want of which is not conclusive as to the right of a claimant to office."

The act as originally passed has been twice construed; once by Mayor Dempsey, of Cincinnati, who was an able lawyer, and had been at one time a judge of the superior court of Cincinnati. His decision is reported in Jones Law, In re Petition, 53 Bull. 9 (5 O. L. R. 517). I quote so much of his opinion as is pertinent, from page 10:

"In other words, the mayor required the proponents of said petition, first, to prove satisfactorily to him that such signatures were made by the persons whose names were attached to the petition; that the persons so signing were residents, at the time of signing, of the district set forth in the petition; that said signers were electors of said district who has registered at the November election of 1905; and that if any of said signers had not registered at the election of 1905, then it was incumbent upon said proponents to show that said signer was a male person, twenty-one years of age, and, at the time of at

Jones Petition, In re.

taching his signature, a resident of said district at least four months prior to the time of filing said petition."

The other decision was by Judge Woodmansee, of the court of common pleas of Hamilton county, Jones Law Petition, In re, 18 Dec. 591 (6 N. S. 251). I quote so much of that opinion as is pertinent, on pages 595 and 596:

"Thirty of the signers to the petition did not appear to have been registered voters, but the testimony discloses that twelve of them were proved to be citizens and that they had been residents of the state of Ohio for more than one year, and of the territory for more than four months before the filing of said petition, which fully qualifies them to be counted with the registered voters, making the number 178."

As the language on the same subject in Gen. Code 6067 differs in some words and arrangement of phrases from the section as originally enacted, it is claimed a different construction should be given it, and none but "registered voters" can be counted on a petition such as the one under consideration.

Gen. Code 6067 has already been quoted at length. I am inclined to think said section should be construed to mean the same as does the original act. Aside from these decisions construing said original act, the language of said section seems plain to me, and should be construed to mean as though written as follows: "The phrase 'qualified electors,' as used in this chapter, when relating to petitions in a residence district of a municipal corporation, means, (1) a registered male voter in a municipal corporation which has registration; (2) a male voter entitled to register therein

Under this class of laws it has been repeatedly decided by nisi prius courts in Ohio, and perhaps by some of the higher courts in Ohio, and by courts of last resort in other states, that the legislature can, within reason, fix any standard it sees fit, for the persons who shall decide by vote or petition on the question involved in such laws. "A male voter entitled to register therein," would be a male voter who had all the constitutional and statute qualifications, other than that of having registered. These 78 persons having such qualifications, it follows that they must be counted. These 78 names added to the said 274 names