in that case given in People v. English, supra. | mary school system carried with it the authorThis court said (144 Ill. 73, 33 N. E. 193, 19 L. R. A. 110):

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ity to prescribe what officers should be chosen to conduct the affairs of the school district, to define their powers and duties, their term of office and how and by whom they should be chosen."

"Section 1 of article 8 of the Constitution makes it the duty of the General Assembly to 'provide for a thorough and efficient system of free schools, where all the children of this state Counsel do not claim, and probably no may receive a good common school education.' one will assert, that the Constitution granted The mode in which the required 'system of free to the Legislature authority to establish a schools' should be organized, and the officers by whom it should be controlled and directed and school system. Constitutions may limit the its affairs administered, is left to the legislative power of the Legislature but they are not discretion of the General Assembly. The only the source of legislative power. In fact, school officers expressly provided for by the the Supreme Court of Michigan took into Constitution are a county superintendent of schools in each county and a state superintend- consideration the contemporaneous construcent of public instruction. At the election of the Constitution by the Legislature tion of these two officers, as we held in the case as exemplified by its acts, and because of above cited, the qualifications of the electors must be those prescribed in section 1 of article such contemporaneous construction held that 7 of the Constitution. But the Constitution the Legislature should be regarded as havcontains no direction as to what other school ing the power, which it had always exeroffices shall be created or as to the mode in which the incumbents of those offices shall be cised, to prescribe by whom officers to condesignated and chosen. Those matters are left duct the affairs of school districts should be wholly to the discretion of the General As- chosen, without regard to the requirements sembly." of the Constitution as to the qualifications of electors. In New York, where the Constitution prescribed the qualifications of voters "for all offices that now are or hereafter may be elective by the people" and limited the franchise to "male citizens," a woman claimed the right to vote for school commissioner, contending that this office was taken out of the constitutional provision by the long and invariable interpretation placed upon it. The court held that this was the only possible answer to the claim that she was disqualified under the Constitution, but that such interpretation had been applied only to the officers of the school district, and that she was not qualified to vote for school commissioner, whose duties extended to superintendence over many districts. Harris v. Burr, 32 Or. 348, 52 Pac. 17, 39 L. R. A. 768, the court relied upon a contemporaneous and uniform legislative interpretation of the Constitution, similar to that in Michigan, as authorizing the Legislature, in establishing a system of common schools, to determine what officers should administer its affairs, who and what manner of persons should be eligible to office, and how and by whom they should be chosen. In New Jersey the constitutional provision in regard to suffrage was:

Counsel for the appellant, in referring to this case, say that it is only upon the theory that school trustees and members of the board of education are not political officers and that they do not exercise political func tions and that the school system is governed by a separate and independent article of the Constitution that the doctrine of Plummer V. Yost can be upheld. On the contrary, all that was said in that case is just as applicable to the offices of highway commissioners. or to any other township or municipal offices, or to any other offices which the General Assembly has the authority to create, as to school offices. The theory that an educational article in the Constitution imposing upon the Legislature the duty of establishing a school system authorized the Legislature, in selecting officers for the system it might establish, to disregard the constitutional provisions in regard to the qualification of electors, had its origin in the Michigan case. Belles v. Burr, supra. Reference was made in that case to the fact that, for 50 years before the question arose there, the qualifications of voters at school district meetings, as fixed by statute, had been different from those prescribed by the Constitution for electors entitled to vote under that instrument. The first Constitution of the state of Michigan provided that the Legislature should establish a school system, and under this Constitution, from the beginning, the Legislature in fact fixed the qualifications of voters at school district meetings without regard to the qualifications prescribed by the Constitution for electors at other elections. School districts had preceded the Constitution and were recognized by it, but no officer of the school district was recognized or mentioned in the Constitution. It was held that the whole primary school system was committed to the Legislature, and the court used the language that:

"The authority granted by the Constitution to the Legislature to establish a common or pri

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In

"Every male citizen of the United States shall be entitled to vote for all offices that now are, or hereafter may be, elective by the people."

In State v. Hendee, 57 N. J. Law, 307, 30 Atl. 894, it is said:

"In State 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 the Legislature the express duty of providing for amendment of the Constitution has imposed on 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

Since our own decisions in numerous cases during many years have established the principle involved under our Constitution, it will be neither necessary nor profitable to investigate the decisions of other states under their Constitutions. While there may be some conflict in such decisions, their weight is not contrary to the long-established doctrine of this court, and if it were otherwise we would not, out of deference to such decisions, change the construction which we have placed upon a provision of the Constitution of the state. The case of Plummer v. Yost has been cited in other jurisdictions as sustaining the proposition of the cases of Belles v. Burr, supra, and Harris v. Burr, supra, that the constitutional injunction upon the Legislature to establish a system of free schools is to be construed independently of the rest of the Constitution, and of itself confers upon the Legislature power to adopt such system and provide for the election of such officers as it chooses, unrestrained by all other provisions of the Constitution. We have seen that that was not the view adopted and that in the case of People v. English it was expressly

the Legislature must be performed in accord- | public instruction. There was no question of ance with all other constitutional provisions." contemporaneous construction to help the . Under the doctrine of contemporaneous, court or to confuse the question and no queslong-continued, and uniform legislative con- tion of any grant of power by the Legislastruction, the Supreme Courts of New York, ture. No such question was mentioned or Michigan, and Oregon have recognized the considered, but the two cases were decided right of the Legislature to fix different quali- on the broad ground that the Legislature has fications for voters for district school officers the power to prescribe qualifications for votfrom those prescribed by the Constitution for ers where the officers to be elected are not electors in other cases. That doctrine has no provided for in the Constitution. That prinapplication in Illinois. Before the Constitu- ciple is decisive of the question now under tion of 1870 there was no constitutional pro- consideration. vision in regard to schools. No express duty and no limitation was imposed upon the Legislature in that regard. In 1825 an act was passed providing for the establishment of free schools. Such officers as the Legislature saw fit to provide for the conduct of the schools it required to be elected by the legal voters. From time to time the law was amended. The Secretary of State was made state superintendent of public instruction. Afterward a state superintendent of public instruction was elected. A commissioner was elected in each county, who had supervision of the schools in his county, and later a county superintendent of public instruction was elected. All of this legislation occurred many years before 1870, and when the Constitution of 1870 was adopted the system of free schools throughout the state was already established and had been in operation for years, and the mandate of that instrument to the General Assembly to provide a thorough and efficient system of free schools merely imposed upon that body the duty to continue the work it had already begun and to carry it to a higher degree of efficiency. The Constitution adopted the state superin- repudiated. In State v. Dillon, 32 Fla. 545, tendent of public instruction and the county superintendent of public instruction, imposed some limitations not relating to the question in hand, and left the General Assembly with the same free hand which it had always used. For 20 years longer there were no great changes in the school law, and then the Legislature decided that women should have the right to vote for school officers and passed the law of 1891. Until that time the law provided that only legal voters should vote for school officers. The system of free schools had been established by the [10-13] The act in question provides that General Assembly. The Constitution had women may vote not only for the officers granted the Legislature no power, and the named, but also “upon all questions or propoLegislature had assumed none, as to which sitions submitted to a vote of the electors of any question had been or could be raised un- such municipalities or other political divitil the enactment of that law. When the sions of this state." The Constitution proquestion came before the court reference was vides, in different sections, for a referendum made to the educational article of the Con- upon various questions and propositions to stitution-not as relieving the Legislature be determined by the people, the voters, or from any of the limitations imposed by any the legal voters of the state, the county or of other of the provisions of that instrument, the city of Chicago. It is contended by the but as showing that no restrictions were appellant that only electors possessing the imposed upon the Legislature as to the des- qualifications prescribed in the Constitution ignation of officers under that article ex- can participate in such a referendum; that cept the state superintendent of public in- the Legislature has not the power to give to

14 South. 383, 22 L. R. A. 124, in Buckner v. Gorden, 81 Ky. 665, and in Hanna v. Young, 84 Md. 179, 35 Atl. 674, 34 L. R. A. 55, 57 Am. St. Rep. 396, it was held that constitutional provisions prescribing the qualifications of electors do not apply to any election for municipal offices not provided for by the Constitution but created by legislative enactment. This is the doctrine announced in the case of Plummer v. Yost, and the case was cited in support of the doctrine in State v. Dillon, supra.

same section, as in City of Chicago v. Wolf, 221 Ill. 130, 141, 77 N. E. 414, 417, where it was claimed that the act was void as to the state treasurer and county treasurer for constitutional reasons, and was therefore void as to the other officers mentioned in the act. After again quoting from Cooley, the court said:

"When we attempt to apply this rule to the statute now before us, it becomes evident that treasurer and county treasurers, are in nowise connected with or dependent upon the other provisions, so far as those other provisions affect other custodians of public funds; that is, it have passed this act with reference to all cusis not apparent that the Legislature would not todians of public funds other than the state treasurer and the county treasurers, had it appeared to that body that for constitutional reasons such an act could not be made effective as to the last named officers."

the provisions, so far as they affect the state

attempt to give them the right to vote upon all questions or propositions submitted to a vote of the electors is unconstitutional; and that the words of the act are not separable, so that it can be sustained to the extent that it was authorized by the Constitution. The appellees insist that the section does not attempt to confer the right of suffrage upon women in the matter of all questions or propositions submitted to the electors of a county, but we do not agree with this contention. The words "such municipalities" refer to those named, and the words "other political divisions of this state" include counties. It must be conceded that no new bonded indebtedness other than for refunding purposes can be. incurred by the city of Chicago without the consent of the majority of the legal voters in the city, and that no county can be divided or have any of its territory taken In these two cases the language was sevfrom it except by a vote of a majority of the erable. In the first the unconstitutional seclegal voters of the county. There are other tion, and in the second the names of the ofcases mentioned in the Constitution where ficers as to whom the act was unconstituthe consent of a majority of voters is requir- tional, could be stricken from the act and a ed, and in attempting to give to women the valid constitutional act remain, and it is to right to vote upon all questions or proposi- such cases, only, as the appellant insists, that tions submitted to the vote of electors in the the rule in regard to the separableness of municipalities or political subdivisions of the state the Legislature exceeded its powers. sions in an enactment applies. There are constitutional from unconstitutional proviThere are many questions and propositions, however, not mentioned in the Constitution, many cases which hold that where a statwhich may be submitted by the Legislature to ute accomplishing all its results by the same a referendum at which women may be au- general words in a single section has coverthorized to vote. Does the fact that the Leg-ed subjects as to which the Legislature could, islature has acted in excess of its power in some particulars and enacted a law which cannot have effect in some cases render the whole act void and invalidate the grant of the right of suffrage even in those cases where the Legislature has the undoubted power to grant it? It is a well-settled rule that a statute may be in part constitutional and in part unconstitutional, and that in such cases the constitutional part of the act will be given effect and the unconstitutional part disregarded, unless the unconstitutional part is of such a character that it may be inferred that without it the Legislature would not have passed the act. The most usual form in which the question is presented is where the constitutional and unconstitutional parts of the enactment are contained in separate sections, as in People v. Olsen, 222 III. 117, 134, 78 N. E. 23, 29 (113 Am. St. Rep. 371). In that case the opinion, after quoting at length from Cooley on Constitutional Limitations, states that:

"In the language of the rule laid down by Judge Cooley, supra, the fact that one part of a statute is unconstitutional 'does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other.'"

The constitutional and unconstitutional provisions are sometimes contained in the

and subjects as to which it. could not, constitutionally enact laws, it cannot be restricted lawfully, by construction, to the constitution. al class, because the part applicable to that class is not separable from the part applicable to the unconstitutional class, so that each may be read and may stand by itself. Thus the constitutionality of the act is made to depend upon the form of the enactment. For instance, in City of Chicago v. Wolf, supra, the act referred to "the state treasurer, and every county, city, township, school and park treasurer and every other custodian of public funds," and because the words "the state treasurer and" and "county" could be stricken out of the act the remainder could be held constitutional, but if the act had referred only to "every custodian of public funds" nothing could have been stricken out, the constitutional part of the act could not have been given effect, and not being wholly valid it would have been altogether void.

There are other cases, however, which hold that a law will not be held void because the Legislature has attempted more than it had the constitutional power to make effectual, and that courts, treating the question as one of legislative power and not of verbal form, will separate statutes valid in part and in part void because in excess of the legislative power, and will disregard the excessive exercise of power and preserve so much as is within the legislative power. In Common

wealth v. Gagne, 153 Mass. 205, 26 N. E. |stitutional and enforceable as to voting for 449, 10 L. R. A. 442, it is said: all other purposes at school meetings. In Hagerstown v. Dechert, 32 Md. 369, the Legislature enacted that the mayor should have all the jurisdiction and powers of a justice of the peace. It was held that the Legislature had no power to appoint a justice of the peace or vest judicial power in the mayor, and to that extent the act was unconstitutional and inoperative, but that it was constitutional and valid to the extent that it conferred upon the mayor the police powers, as a conservator of the peace, of a justice of the peace. In Sinking Fund Com'rs v. In this case the court held that a statute George, 104 Ky. 260, 47 S. W. 779, 84 Am. St. which prohibited the sale of intoxicating liq- Rep. 454, the Legislature was not authorized, uors except as authorized by the act was not under the Constitution, to fix the terms of rendered unconstitutional by a failure to ex-officers exceeding four years, but it passed empt from its operation liquors imported and sold in original packages.

lative power. We cannot sustain the objections urged against the present act without expressly overruling those decisions as well as the numerous cases which have since followed them. Those decisions established the construction of the fundamental law of the state many years ago, and the stability of this fundamental law requires that, when the meaning of a constitutional provision has been considered by the court and declared by its decisions, that meaning cannot be afterward considered open to question or further argument.

men the right of suffrage to the fullest extent permitted by the limitations of the Constitution. No one would imagine that the act would not have been passed if the General Assembly had known that the right of voting on the few, and for the most part comparatively infrequent and unimportant, questions mentioned in the Constitution could not be extended to women. For all other purposes the act is a constitutional and valid enactment.

The decree of the superior court will be affirmed.

Decree affirmed.

"It is the duty of this branch of the government to pass finally upon the construction of a law and determine whether the Legislature in its action has transcended its constitutional lim- FARMER, J. (dissenting). It is my view its, and the community has the right to expect that, while the Legislature has the power to with confidence we will adhere to decisions made after full argument and upon due consideration. create and provide for the election of officers The members of the court may change totally not named in the Constitution, it has no powevery six years, and, if each change in the or-er to provide qualifications for voters at the ganization produces a change in the decisions and a different construction of laws under which election of such officers different from the important rights and interests have become vest-qualifications prescribed by the Constitution. ed, it is easy to see that the consequences will The qualifications of electors fixed by the be most pernicious." Fisher v. Horicon Iron Constitution apply, as I believe, to voters, Co., 10 Wis. 351. as that instrument says, at "any election,"

The most indispensable guaranty of civil and the Constitution is not subject to the conliberty, according to Mr. Hallam (1 Const. struction that these qualifications apply only Hist. 230), is the "open administration of to voters at elections for offices created by justice according to known laws." The law the Constitution. In my opinion, when the can be known only if fixed rules once estab-constitutional convention acted and prescriblished are consistently adhered to. Decisions ed the qualifications of voters at "any elecof the courts are the highest evidence of tion," the Legislature was left no power to

what the law is.

provide different qualifications for voters at elections for officers to offices created by it. I can understand the Constitution in no oth

er sense than that it was the intention that the right to vote at "any election," which is the equivalent of "all elections," should be limited to those possessing the qualifications defined in section 1 of article 7. Many of the offices created by statute are as important political offices as those named in the Constitution, and there seems to me no intimation in the language of the suffrage article that it was to be restricted in its application to elections for offices provided for in the Constitution. I concede my views are not in harmony with Plummer v. Yost. That case, I think, supports the opinion of the court in this case, and if my view prevailed it would necessarily overrule that decision. For that reason I have felt reluctant to express my dissent; but, no rule of property being involved in this decision, I do not believe it a case for the application of the doctrine of stare decisis. This court in 1832, in Bowers v. Green, 1 Scam. 42, and repeatedly since that time, has, when convinced a previous decision involving no rule of property was erroneous, refused to adhere to it. This and other state courts of last resort, as well as

If ever there should be an adherence to former decisions, it should be in cases of construction of the Constitution involving the rights of citizens as declared by that instrument. There is no higher privilege of citizenship in the state than that of suffrage. For more than 20 years that privilege has been enjoyed by women and the courts have recognized and declared their constitutional right to it. Women have been elected trustees of the State University, school directors, and members of boards of education in innumerable instances. By their votes elections have been decided, important offices have been filled, and important public business controlled. Ought they to be summarily deprived of their constitutional rights because of a change in the personnel of the court, because the judges who decided People v. English and Plummer v. Yost are all dead, except one, even if the successors who sit in their seats should hold different views? The Constitution does not change with the judges. The court is the same, though the judges change, and it will not overturn a deliberate decision upon the constitutional the Supreme Court of the United States, power of the Legislature under which the highest political rights have been held and exercised without question for many years. The object of the General Assembly in passing the present act was to confer upon wo

have refused to be bound by former decisions involving a construction of the Constitution or of statutes. Allardt v. People, 197 Ill. 501, 64 N. E. 533; Burdick v. People, 149 Ill. 600. 36 N. E. 948, 24 L. R. A. 152, 41 Am. St. Rep.