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329; People v. McGowan, 77 Ill. 644, 20 Am. | plation of the framers of our Constitution Rep. 254; State v. Lewis, 69 Ohio St. 202, 69 that the Legislature should have the power N. E. 132; Willis v. Owen, 43 Tex. 41; Rob- to prescribe the qualifications of voters, but inson v. Schenk, 102 Ind. 307, 1 N. E. 698; that until the Constitution is amended voters People v. Curtice, 50 Colo. 503, 117 Pac. 357; at all elections, whether for constitutional or Beck v. Allen, 58 Miss. 143; Pollack v. Farm- statutory offices, must possess the qualificaers' Loan & Trust Co., 157 U. S. 429, 15 Sup. tions prescribed by section 1 of article 7. Ct. 673, 39 L. Ed. 759; Garland v. Washington, 232 U. S. 642, 34 Sup. Ct. 456, 58 L. Ed. 772. In Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. Ed. 1058, the Supreme Court of the United States overruled its former decision in Steamboat Thomas Jefferson Case, 10 Wheat. 428, 6 L. Ed. 358. In the opinion by Chief Justice Taney it was said:

"It is the decision in the case of The Thomas Jefferson which mainly embarrasses the court in the present inquiry. We are sensible of the great weight to which it is entitled; but at the same time we are convinced that, if we follow it, we follow an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not be foreseen, and the subject did not therefore receive that deliberate consideration which at this time would have been given to it by the eminent men who presided here when that case was decided, for the decision was made in 1825, when the commerce on the rivers of the West and on the Lakes was in its infancy and of little importance, and but little regarded compared with that of the present day."

In the Legal Tender Cases, 12 Wall. 457, 20 L. Ed. 287, the Supreme Court overruled Hepburn v. Griswold, 8 Wall. 603, 19 L. Ed. 513, and in doing so said:

COOKE, J. (dissenting). I cannot concur in the views expressed in the majority opinion or the conclusion reached therein. The questions involved are of such importance that I deem it my duty to state somewhat extensively the basis of my dissent.

Appellant has advanced three reasons in support of his claim that the act under consideration is unconstitutional: (1) That it is in conflict with section 1 of article 7 of the Constitution; (2) that as the Constitution itself provides for the submission of certain propositions to a vote of the electors, the Legislature in no event has the power to give women the right to vote on all questions or propositions; and (3) that the act violates section 13 of article 4 of the Constitution, in that it amends section 65 of the Election Act without inserting that section at length in the new act. I deem it necessary to discuss only the first of the reasons urged. If the act is unconstitutional, as I believe it is because of the first reason assigned, the second reason urged becomes of no importance, for the reaIson that it is wholly improbable that the Legislature would have enacted that part of the statute, alone. It is so fragmentary and incomplete when severed from the other portions of the act that it could not be held to be an independent piece of legislation. As to the third reason urged, I concur with the conclusion of the majority that the act does

"The questions involved are constitutional questions of the most vital importance to the government and to the public at large. We have been in the habit of treating cases involving a consideration of constitutional power differently from those which concern merely private right, * and it is no unprecedented thing in courts of last resort, both in this country and in England, to overrule decisions previously made. We agree this should not be done not violate section 13 of article 4 of the Coninconsiderately, but in a case of such far-reach-stitution. ing consequences as the present, thoroughly con

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The contention of the parties as made unvinced, as we are, that Congress has not trans-der the first reason urged may be briefly sumgressed its powers, we regard it as our duty so to decide and to affirm both these judgments." med up thus: By appellant, that section 1 In Pollack v. Farmers' Loan & Trust Co., of article 7 of our Constitution, as to the supra, the court said: qualifications of voters, applies not only to offices expressly provided for in the Constitution, but also to offices created by statute, and that the words "any election," used in that section, refer not only to each election for offices created by the Constitution itself, but also to any election for offices created by the Legislature; by appellees, that the qualifications of voters contained in said section apply only to the offices expressly provided for by the Constitution.

"Manifestly, as this court is clothed with the power and intrusted with the duty to maintain the fundamental law of the Constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in principle might supervene."

The same rule has been acted upon by state courts in the cases above cited and many others that might be referred to. Certainly the decision in Plummer v. Yost should be followed if it is correct; but if it is erroneous, as I believe it to be, it should not be adhered to under the rule of stare decisis. If the constitutional qualification that only male citizens may vote can be disregarded in the election of officers to offices created by statute, then as to the election of such officers the Legislature may also prescribe different qualifications as to age, residence, etc. It is

The majority rests its opinion upon the doctrine of stare decisis, and holds that this question has been decided in People v. English, 139 Ill. 622, 29 N. E. 678, 15 L. R. A. 131, and Plummer v. Yost, 144 III. 68, 33 N. E. 191, 19 L. R. A. 110, and that the question of the power of the Legislature to extend the right of suffrage to women for all offices created by it is not now an open one in this

on the Constitution by the English Case, supra, and the Yost Case, supra, as they have been construed by the majority, is correct, has not been discussed or argued in the majority opinion. I shall first take up the act under consideration, and discuss, without reference to the English Case, supra, and the Yost Case, supra, whether it is in violation of the Constitution, and I shall then discuss what I conceive to be the proper construction of the English and Yost Cases and the basis for the conclusions therein reached.

The question presented for our consideration in this case is one of construction, only. We are called upon to determine only whether the Constitution has imposed any limitations upon the Legislature in regard to prescribing the qualifications for voters for offices not expressly provided for by the Constitution. In determining this question we are permitted simply to construe the Constitution itself, and to announce whether, from the language of that instrument, such a limitation has been imposed. We have noth ing to do with the question of the policy of the state with reference to what the qualifi

cations of a voter should be. Whether it is wise or unwise to restrict the right of suffrage is a matter upon which it is not proper for this court to express any opinion.

Our Constitution is the fundamental law of the state. It constitutes the limitations imposed by the people themselves upon the Legislature. Its provisions must not be ignored or lightly considered. By reason of the simplicity of its language it is not a difficult matter to construe this instrument and to determine definitely its true intent and meaning. In laying down the rules for the interpretation of Constitutions, Mr. Justice Story says, in paragraph 451 of his work on the Constitution:

state on the first day of April, in the year of our Lord 1848, or obtained a certificate of natstate prior to the first day of January, in the uralization before any court of record in this year of our Lord 1870, or who shall be a male citizen of the United States, above the age of twenty-one years, shall be entitled to vote at such election.

"Sec. 2. All votes shall be by ballot.

"Sec. 3. Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during their attendance at elections, and in going to and returning from the same. And no elector shall be obliged to do military duty on the days of election, except in time of war or public danger.

lost his residence in this state by reason of his "Sec. 4. No elector shall be deemed to have absence on business of the United States, or of this state, or in the military or naval service to the United States.

"Sec. 5. No soldier, seaman or marine in the deemed a resident of this state in consequence army or navy of the United States shall be of being stationed therein.

"Sec. 6. No person shall be elected or appointed to any office in this state, civil or military, who is not a citizen of the United States, and who shall not have resided in this state one year next preceding the election or appointment. "Sec. 7. The General Assembly shall pass laws excluding from the right of suffrage per

sons convicted of infamous crimes."

It is a well-known rule, as appellees suggest, that the state Constitution is not a grant of power, but is a limitation on the otherwise sovereign power of the Legislature, and where not prohibited by the Constitution the Legislature has full power to enact such legislation as it may see fit. Like most rules it is subject to an apparent exception. The right to vote at political elections is not a natural or inherent one. It must be conferred by some body having the power to grant it. The right to vote was originally conferred upon the inhabitants of the territory of which the present state of Illinois was a part, by act of Congress. By the enabling "In the first place, then, every word employ- act of April 18, 1818 (3 Stat. 428, c. 67), Coned in the Constitution is to be expounded in its gress finally conferred upon certain citizens plain, obvious, and common sense, unless the of the United States residing in the terricontext furnishes some ground to control, qual- tory of Illinois the right to vote for repreify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, sentatives to compose a convention to form for niceties of expression, for critical propriety, a Constitution and state government for the for elaborate shades of meaning, or for the exer- people within the territory. The Constitucise of philosophical acuteness or judicial research. They are instruments of a practical tion, in turn, granted the right of suffrage nature, founded on the common business of hu- to certain persons. It is universally conman life, adapted to common wants, designed ceded that, where the Constitution prescribes for common use, and fitted for common under- the qualifications of the electors of the state, standings. The people make them, the people adopt them, the people must be supposed to read them with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss."

I shall bear in mind this expression in construing the Constitution as applied to the

act under consideration.

Article 7 of our Constitution deals with the question of suffrage. It is composed of seven sections, and, as I will have occasion to refer to practically all of them, I will set out the article in full. It is as follows:

"Section 1. Every person having resided in this state one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this

those qualifications cannot be changed by the Legislature, either by prescribing additional qualifications for voters at elections within the state or by extending the right of suffrage to persons not possessing the qualifications prescribed by the Constitution. Cooley's Const. Lim. 599; People v. English, 139 Ill. 622, 29 N. E. 678, 15 L. R. A. 131; McCafferty v. Guyer, 59 Pa. 109; Collin v. Board of Election Com'rs of Detroit, 97 Mich. 188, 56 N. W. 567, 21 L. R. A. 662. Section 1 of the suffrage article is therefore not merely a guaranty that the classes therein named shall not be deprived of the right of suffrage; it is a limitation upon the power of the Gen.

eral Assembly to grant the right to any per- | members of the constitutional convention insons, other than those named, to vote at such elections as are referred to in that section.

It is conceded at the outset, on the part of appellees, that no one except those designated in section 1 of the suffrage article of the Constitution is entitled to vote for any office specifically provided for by the Constitution. That section limits the right of suffrage to male citizens above the age of 21 years. A determination of what is meant by the words "any election," as used in this section-that is, whether they refer only to such elections as are provided for by the Constitution or whether they refer also to such elections as may be provided for by the Legislature-will determine the question of the validity of the Woman's Suffrage Act so far as the first objection made is concerned. That act specifically names the offices for which women are permitted to vote, and they are such offices as were not expressly provided for by the Constitution. The list consists of presidential electors, members of the State Board of Equalization, clerk of the Appellate Court, county collector, county surveyor, members of board of assessors, members of board of review, sanitary district trustees, all officers of cities, villages, and towns, except police magistrates, and the following township officers: Supervisor, town clerk, assessor, collector, and highway commissioner.

The word "election" is necessarily used in the Constitution in the sense of a political election, and is the method by which various officers for the government and administration of the affairs of the state, counties, townships, and municipalities are selected.

tended that the word "election," as used by them in the suffrage article, should have any special, local, or unusual meaning, nor that they considered that the word "election," as therein used, would not include all offices created by the Legislature as well as those specifically provided for by the Constitution. The word "election" has never been understood to have a different meaning when applied to the selection of a Governor or any of the other state officers provided for by the Constitution, than it has when applied to the selection of presidential electors or members of the State Board of Equalization, or such other officers as have a statutory origin. A political election has always been understood to be the act of choosing the governmental officers of the state, districts, counties, cities, villages, and townships, without regard to whether the offices being filled at such election were of statutory or constitutional origin. One election may suffice for the selection of a number of these officers. The voting for a number of offices at the same time and on the same ballot does not constitute the holding of a separate election for each office. Where a number of offices are to be filled at the same time, the voting for all of them constitutes but a single election. Prior to the adoption of the Constitution of 1870, many of the identical offices specified in the Woman's Suffrage Act were filled at the same election with many of the offices perpetuated by that Constitution.

By section 1 of the suffrage article it is provided that every person having resided in the state one year, in the county 90 days, and in the election district 30 days "next preceding any election therein," and who possesses the required qualifications, "shall be entitled to vote at such election." The Con

The use of the word in that sense is well understood. What constitutes an election? Is there anything in the Constitution which institution nowhere provides for the creation dicates that the word is there used in any of election districts. They were in existence different sense than it had always been used at that time, having been created by the by the Legislature? The adoption of the Legislature, and necessarily continued in exConstitution in 1870 did not operate to annul istence under said section 1 of the Schedule. and wipe out all statutes of the state. No An election district is a governmental substatute fell by reason of the adoption of the division of the county. The Constitution Constitution except such as were clearly in recognized its existence in prescribing the conflict with its terms and provisions. Secqualifications of voters. The election distion 1 of the Schedule of the Constitution ex-trict at that time was, and since has been, pressly provides:

"That all laws in force at the adoption of this Constitution, not inconsistent therewith, shall continue to be as valid as if this Constitution had not been adopted."

At that time many elections were provided for by the statutes, including the election of practically all the officers named in the Woman's Suffrage Act, and these statutes were expressly continued in force. The constitutional convention was composed of eminent and learned men, who gave the preparation of each section of each article of the Constitution their most careful consideration. There is no indication anywhere in

the unit for the holding of all political elections, whether for the selection of officers to fill the offices provided for expressly by the Constitution or to fill the offices created by the Legislature. It would be doing violence to the plain language of the Constitution to hold that when it referred to "any election" held within an election district it meant to exclude such elections as might he held to fill the offices created by statute.

The conditions existing at and prior to the time of the adoption of the Constitution may properly be considered in determining what was meant by the use of the words “any elec

naval service of the United States. Was it intended by this section that one who is absent from his home, engaged on business

adopted, and long prior thereto, presidential | States or of this state or in the military or electors were voted for and elected at the general elections in the state. Cities and towns had been incorporated and the election of the officers for these municipalities of the United States of such a nature that had been provided for by the Legislature. his permanent residence is required to be Townships had been organized and town- at the seat of government, shall be protected ship officers, and their election had been pro- in his right to vote for a justice of the peace vided for. The office of member of the State but not in his right to vote for the important Board of Equalization had been created and offices of member of the State Board of Equalan election had been held for the same. ization or of presidential electors? Almost Thus it will be seen that at the time of the every county in the state has one or more of adoption of the Constitution, and prior there- its citizens thus absent on business of the to, practically all of the officers enumerated federal government. Such a person may in the Woman's Suffrage Act were elected have disposed of all his property in the counby the people, and in many instances were ty where he resided when he entered the voted for and elected at the same elections service of the government and the circumheld for the offices which were perpetuated stances be such that without this constituby and specifically named in the Constitution. tional provision he has unquestionably lost It will be noted, that the Constitution does his residence there, yet under this provision not use such language as "any election under he is permitted at election times to return this Constitution," or "any election named in to the place where he resided when he enthis Constitution," or "any election provided tered into such service and there cast his for by this Constitution," or "any election for vote for the candidates of his choice. If the offices named in this Constitution." It uses Constitution is to be construed as contended, the broad, simple, and comprehensive term, such a citizen is protected only in his right "any election." When we consider that to return and vote for such offices as are prior to the adoption of the Constitution specifically provided for by that instrument. presidential electors, officers known as mem- That the Legislature has never so interpreted bers of the State Board of Equalization, city this section of the Constitution is evidenced officers, and township officers were elected by the fact that it has neither made such an by popular vote in the same manner and un-exemption in favor of one thus absent on busider the same requirements as all other offi-ness of the United States nor provided for a cers were elected, it seems to be conclusive separate ballot and a separate ballot box for as to the sense in which the words "any election" were used in the Constitution.

That it was not intended to give these words the restricted meaning placed upon them by the majority is apparent from many of the provisions of the Constitution. For instance, section 3 of the suffrage article provides that electors shall, except in certain cases, be privileged from arrest during their attendance at elections and in going to and returning from the same. Can it be seriously contended that it was meant to thus protect an elector attending an election for the purpose of voting for constable, but such protection was not meant to be extended to one attending for the purpose of voting for presidential electors? Such a construction must follow if the act in question is valid. Under the contention of appellees, an "elector," as the word is used in the Constitution, refers only to such as are qualified to vote for the so-called constitutional offices, and does not apply to one voting for an office created by the Legislature. This same section also provides that no elector shall be obliged to do military duty on the days of election except in times of war or public danger. Was it meant that only those who are qualified to vote for so-called constitutional offices were to be thus protected?

his use, but, on the other hand, has adopted
an act one section of which is in the language
of section 1 of the suffrage article, and the
succeeding section of which provides that "a
permanent abode is necessary to constitute
a residence within the meaning of the pre-
ceding section." If the Constitution means
what the appellees contend, then the Legis-
lature has disfranchised such a citizen by
the provisions of our election laws. Under
our ballot law the names of all candidates
to be voted for at any particular election
are placed upon a single ballot, which the
elector is required to take with him into
a booth and mark in secret. Such a citi-
zen would be deprived of his right to vote
at all, as it would be highly improper to
place in his hands a ballot containing the.
names of candidates for offices for which
he had lost his right to vote by reason of
his nonresidence. It certainly was not the
intention of the Legislature to disfranchise
this citizen, and, if that is true, then the
Legislature has heretofore construed the
words "any election," in section 1 of the suf-
frage article, to mean an election for an
office created either by the Constitution or by
statute.

Section 5 of the suffrage article provides that no soldier, seaman, or marine in the By section 4 of the suffrage article it is army or navy of the United States shall be provided that no elector shall be deemed to deemed a resident of this state in consehave lost his residence in this state by rea-quence of being stationed therein. By mak son of his absence on business of the Uniteding this a part of the article on suffrage the

106 N.E.-19

framers of the Constitution made the purpose | offices provided for in that article. When the of this section quite evident. It was meant unexpired term does not exceed one year, it to prevent any soldier, seaman, or marine in provides that a vacancy in the office of judge the army or navy of the United States from shall be filled by the Governor; of a clerk claiming to possess the qualifications of an of court, by the court to which the office perelector and to prevent him from voting in tains; and of all other offices provided for in the election district in which he resided at that article, which include various county "any election therein." Under the doctrine offices, by "the board of supervisors or board of the majority opinion this section of the of county commissioners in the county where Constitution may be rendered nugatory so the vacancy occurs." The Constitution nofar as offices created by the Legislature are where creates the office of a member of the concerned. If there are no restrictions what- board of supervisors or requires the election ever upon the right of the Legislature to or appointment of such an officer. That prescribe the qualifications of voters for fact was appreciated and taken advantage such offices as it creates, the persons prohibit- of by the Legislature when it included supered by said section 5 from becoming residents, visors in the list of offices for which women and thereby from becoming electors, may be were authorized to vote. Articles 10 relates permitted to vote for all except the so-called to counties, and directs the General Assembly constitutional offices under a provision which to provide by general law for township or the Legislature would have the power to ganization, permitting the .electors of each enact, allowing such persons to vote for all county to determine whether they shall offices created by it. have township organization or not. At the time of the adoption of the Constitution, many of the counties of the state were not under township organization. Many others were under township organization and were authorized by statute to elect members of the board of supervisors to conduct the af fairs of the county. It will be observed that each of the offices enumerated in article 6 which the board of supervisors is authorized to fill by appointment in case of vacancy is necessarily a constitutional office, and its incumbent can be elected only by electors possessing the qualifications prescribed by section 1 of the suffrage article. It is conceded that women are not permitted, under the Constitution, to vote for such offices, yet by the terms of the act under consideration they may vote for, and themselves constitute, members of the board of supervisors, who, in turn, are empowered by the Constitution to fill vacancies occurring in such so-called constitutional offices.

The contention of appellees is also inconsistent with sections 6 and 7 of the suffrage article.

Section 18 of article 2 (the bill of rights) provides that "all elections shall be free and equal." If the Constitution refers only to such elections as it has specifically provided for, then this guaranty extends only to a part of the elections which have always been held in this state, both before and since the adoption of the Constitution.

Section 22 of article 4 provides that the General Assembly shall pass no local or special law for the opening and conducting of any election. If the Legislature has the right to ignore the qualifications prescribed by section 1 of the suffrage article, then it can ignore this limitation in so far as the elections for offices created by it are concerned. Section 22 of article 4 further provides, in part, as follows:

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"The General Assembly shall not pass local or special laws in any of the following enumerated Article 10 further provides that in each cases, that is to say: For providing county of the state not under township organfor the election of members of the board of su-ization a board of county commissioners shall pervisors in townships, incorporated towns or cities."

By this section the people, in adopting the Constitution, recognized the fact that the law already had provided for the election of supervisors and guarded against the passage of local or special laws in reference to such elections. The act in question specifically gives to women the right to vote for supervisors. Without regard to whether this act

may be special legislation in reference to providing for the election of supervisors, it is significant and helpful in construing what is meant by the use of the language employed in section 1 of the suffrage article. The members of the constitutional convention no doubt used the word "election" advisedly in said section 22. Can any one say it was used in any different sense than in the suffrage article?

Section 32 of article 6 provides the method

be elected to transact the business of the county as shall be provided for by law. Will any one contend that the Constitution contemplates one qualification for an elector for the office of county commissioner and another and different qualification for an elector for supervisor? The functions of the two offices

are the same; the only difference being that in counties under township organization all county affairs are managed by the board of supervisors, whereas in counties not under township organization that power and duty are vested in and devolve upon the board of county commissioners. Why should woof these offices and denied the right to vote men be permitted the right to vote for one

for the other?

Section 28 of article 4 of the Constitution provides that:

"No law shall be passed which shall operate to extend the term of any public officer after

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