Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 5 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 5 of 73)
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that have not been advanced to a city of the second grade.



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THE STATE V, CONSTANTINE. 35

second class, said commissioners shall be elected by the peo-
ple to serve for the term of two years, and until their succes-
sors are duly elected and qualified, the first election to be
held within twenty days after the passage of this act ; and
thereafter said commissioners shall be elected at the annual
municipal election, but no elector shall at any election vote
for more than two persons for such commissioners, and any
ballot containing the names of more than two persons for
said ofiice shall not be counted for any of the names thereon,
and the four persons receiving the highest number of votes
cast shall be declared elected ; provided that in the case of
said last-named cities the provisions of section nineteen hun-
dred and ninety-nine of said revised statutes, which relate to
the term of office of said commissioners, shall not apply, and
all vacancies occurring during the term of said commission-
ers shall be filled as provided by said section nineteen hun-
dred and ninety-nine ; but in making such appointments the
political complexion of the board shall not be changed, and
in case any cities of the third grade of the second class, hav-
ing a population of nineteen thousand and not exceeding
twenty thousand, and any city having a population of twenty
thousand and not exceeding thirty thousand five hundred by
the last federal census, and that have not been advanced to a
city of the second grade, second class, shall be changed in grade
or class, the police board hereby provided for such cities and
its powers and duties shall not be aflFected by such change ; pro-
vided, that in said last-named cities the present police force
shall continue in office only until a police force is appointed
by said board and duly qualified."

It is admitted that the city of Springfield is embraced in
the terms of this statute, but it is contended by how many
the relator that the provision of the section that mSTSaS"*^"
" no elector shall at any election vote for more than two per-
sons for such commissioners, and any ballot containing the
names of more than two persons for said office shall not be
counted for any of the names thereon, and the four persons
receiving the highest number of votes shall be declared
elected" is in conflict with the constitution of the State, and
an election held thereunder is therefore void.

Section 27, article 2 of the constitution, provides : " The
election and appointment of all officers, and the filling of all



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36 THE STATE V, CONSTANTINE.

vacancies not otherwise provided for by this constitution or
the constitution of the United States, shall be made in such
manner as may be directed by law ; but no appointing power
shall be exercised by the general assembly except as pre-
scribed in this constitution, and in election of United States
senators ; and in these cases the vote shall be taken viva voce''

That the defendants acting as a board of police commis-
sioners, exercising the functions conferred by the Act of
April 21, 1884, are officers, within the meaning of this provi-
sion of the constitution, is not controverted in this case. That
they are such officers is made clear by the decision in State v,
Kennon, 7 Ohio St. 546, and is not in conflict with Warnick
V. State, 25 Ohio St. 21. This board is created by the statute,
and the mode of filling it not being provided for by the con-
stitution of this State or of the United States, it follows that
it must be filled by election or appointment in such manner
as may be directed by law. Two modes of filling an office
are indicated by this clause in the constitution — by election
and by appointment. The general assembly may choose either,
and, having determined the mode, the manner of carrying it
into execution is left to its discretion.

In the case before us the legislature, having created the
office in question, determined that it should be filled by an
election. The city of Springfield was made the election dis-
trict, and the " electors" of this district were authorized to
vote at the election. The first election was to have been held
within twenty days after the passage of the act, and there-
after at the annual municipal election.

The qualifications of electors are not defined by this stat-
QUALIFICAT10K8 "^^' ^^^ undoubtedly the legislature meant such
OF ELECTORS. pcrsoHS as had the qualifications required of elec-
tors by the constitution and general laws of the State, as we
think it clear that the election for officers as authorized by
this section of the constitution must be such an election as is
held in conformity to the provisions of the constitution on
that subject.

We have no doubt the filling of an office, not provided for
under the constitution of the State or the United
States, may be referred to a body or class of per-
sons who may or may not have the qualifications of electors,
and the manner of ascertaining the sense of such body or



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THE STATE V. CONSTANTINE. 37

class may be by taking a vote ; but such mode of filling the
office is not by an election as authorized by section 27, article
2, but by an appointndent as therein authorized. Indeed, the
manner of filUng an office by appointment is unrestricted,
save only that it Cannot be by " an election,*' which is pointed
out by the constitution as a different mode of filling an office.

The constitution does not provide in detail the manner of
holding elections, leaving that to legislative discre- cj^^ui^^tivb
tion, but it does provide that all elections shall be ''*^™'*-
by ballot, and, having prescribed the qualifications of an
elector, provides that each elector " shall be entitled to vote
at all elections." See constitution, article 5. By this article
we have no doubt that each elector is entitled tb vote for
each officer, whose election is submitted to the electors, as
well as on each question that is submitted. This implication
fairly arises from the language of the constitution itself, but
is made absolutely certain when viewed in the light of cir-
cumstances existing at the time of its adoption. No such
thing as " minority representation** or " cumulative voting**
was known in the policy of this State at the time of the
adoption of this constitution in 1851. The right of each
elector to vote for a candidate for each office to be filled at
an election had never been doubted. No effort was made by
the framers of the constitution to modify this right, and we
think it was intended to continue and guarantee such right
by the provision that each elector " shall be entitled to vote
at all elections.'* Such right is denied by this statute, which
provides for the election of four members of the board of
police commissioners, but denies to any elector the right to
vote for more than two persons for such commissioners.

The relator also claims that this statute is in conflict with
section i, article 13 of the constitution, which provides : ** The
general assembly shall pass no special act conferring corpo-
rate powers.** In answer to this claim defendants rely on
State V. Covington, 29 Ohio St. iii, which was approved in
State V. Baughman, 39 Ohio St. 459.

This question has not been considered by this court, but, in
order to avoid misunderstanding, it is deemed proper to say
that the case referred to is not conclusive on the point made.
In Covington*s case, where the board of police commissioners
was appointed by the governor, it was said that the board of



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38 THE STATE V. CONSTANTINE.

commissioners upon whom powers were conferred was not a
corporation, and therefore the statute, though special, was
not unconstitutional.

In the case before us it is claimed the power to hold an
election was conferred upon the city of Springfield, a munici-
pal corporation, and the act, being special, was prohibited.
This is a very different question, but the solution of it is not
deemed necessary by this court.

Judgment of ouster.

Okey, J. — I concur in the judgment of ouster, but find it
necessary to state separately the ground upon which I con-
cur. The case involves the constitutionality of the act of
April 9, 1884 (81 Ohio L. 121), so far as the same relates to
" cities having a population of twenty thousand and not ex-
ceeding thirty-five thousand five hundred, by the last federal
census, and that have not been advanced to a city of the
second grade, second class." The relator insists that the act,
so far as it applies to the cities above desdribed, is invalid
upon two grounds : first, that it violates the fifth article of the
constitution, which relates to the elective franchise; and,
second, that it violates the first section of the thirteenth
article of the constitution, which provides, that " the general
assembly shall pass no special act conferring corporate pow-
ers." These questions were very fully and ably argued
orally and on briefs, and after the briefs were read and author-
ities cited were examined nothing remained to be done but
for each judge to express his opinion. The court was unani-
mous in holding there should be judgment of ouster. 1 do not
dissent from the view expressed in the opinion of Mcllvaine,
J., but I prefer to withhold the expression of an opinion upon
that question until such opinion becomes necessary. I think
the case will be properly decided when a correct answer is
gfiven to the question, whether the act, so far as its validity is
involved in this case, is in conflict with the provision of the
constitution inhibiting the granting of corporate powers by
special act

Not only is the fact found in the record that the words
STBciAL ACT above quoted from the act apply to the city of
S^ra^poTO Springfield alone, but without such finding this
^^^ court would take judicial notice that the words



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THE STATE V. CONSTANTINE. 39

never did and never can apply to any other municipal corpo-
ration than Springfield ; and, consequently, the act, to that
extent, is local and special. State v. Covington, 29 Ohio St.
102; McGill V. State, 34 Ohio St. 228, 258, 270; State v.
Brewster, 39 Ohio St. 653; Devine v. Com. of Cook Co., 84
111. 590. And as the act assumes to confer upon the city of
Springfield power to hold an election of its electors for pub-
lic ofl&cers for the corporation, and exercise other important
functions, it is too clear for argument that the act, in form,
confers corporate power. State v. Mitchell, 31 Ohio St. 529.
And the act being invalid, for the reason stated, so far as it
authorizes the city of Springfield to hold a corporate election,
and it being neither reasonable nor probable that the legisla-
ture would have made provisions with respect to Springfield
unless the whole act could have effect with respect to that
city, it follows that the whole act is void, so far as Springfield
is concerned. State v. Sinks, ante, 345. So far from State v.
Covington, supra, being opposed to this view, it will be found,
on careful examination, that it strongly supports it. There
the officers were not elected'; they were appointed ; and of
course the appointment by the governor of officers for Cin-
cinnati was an act done in pursuance of authority conferred
upon him. In fact, no corporate power was conferred upon
the city with respect to the selection of those officers ; and, as
the legality of their appointment was the only question in-
volved, it was properly held in that case that art. 13, sect, i
could not be successfully invoked to defeat their title, how-
ever clearly such constitutional provision might, in some other
action or proceeding, be fatal to other parts of the act. The
same remarks are applicable to State v, Baughman, 38 Ohio
St 455. Believing the position I have assumed to be impreg-
nable, I am content to rely upon it.

Constitutionality of Statutes Providing for Minority Repre-
sentation OR Cumulative Voting in the Election of Public Offi-
cers.— It is believed that the opinion of Mcllvaine, J., in the principal case
is the first expression of judicial opinion on the constitutionality of statu-
tory provisions for minority representation. The point was raised in two
New York cases, People v. Crissey, 91 N. Y. 616, and Agenstein v. Kenney, 7
Am. & Eng. Corp. Cas. 677, but in both cases the court declined to pass
upon it. In the latter case the court said, speaking of the constitutionality
of minority representation : ** The constitutional question which the plain-
tiff sDught to raise by the commencement of this action is a very grave and



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40 THE STATE V. CONSTANTINE.

interesting one and should not be decided in any case unless properly pre-
sented and necessarily involved. It need not be decided in this case."
In the former case the court, referring to the discussion of the same con-
stitutional point in the course of the argument by council, said : •* We
ought not to decide it. It has a possible importance beyond the issues in-
volved. It touches the question of minority representation upon which
has been founded very much legislation, and about which there is room
for difference and debate."

The constitutional provision on which the court bases its decision in
this case is contained in § i of Article V of the Ohio Constitution of
1851, entitled " Elective Franchise," and is to the effect that every duly
qualified elector " shall be entitled to vote at all elections." The entire
section reads as follows : " Every white male 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."

It would seem that all that the section was intended to provide for was
for the fixing of the qualification of electors, and if the last clause in the
section was intended to guarantee any constitutional right to qualified
electors, it was merely that of equality ; that is, that all qualified electors
should have equal rights of voting at all elections and for all oflftcers to be
voted for. It would seem clear that it was not intended to prohibit
minority representation and to give the right to each elector to vote for
all officers to be elected. As the court remarks, the subject of minority
representation was probably not known or thought of as a particular
question at the time the Ohio constitution was framed (1851), and hence
it is plain that the framers of that constitution did not intend to make any
constitutional guaranty or provision in the nature of guaranty against it.

It is probable that the framers of the constitution contemplated that
all oflftcers to be voted for should be voted for by e^ch elector, and that a
plurality of votes should elect ; but is there anything in the constitution
that amounts to a guaranty that the majority or plurality shall in every case
have the absolute right to elect every oflftcer to be voted for ? It would
seem not. In certain cases the constitution contains express provisions
as to the modes in which officers shall be elected. Thus § 3 — of Article
III provides that a plurality shall elect the executive officers of the State
(Governor. Lieutenant-Governor, etc.). In the case of representatives,
however, the constitution is not at all explicit; § 2, Article II merely pro-
vides that they shall be elected by the electors in their respective districts.
Under this provision it would seem that the legislature might by statute re-
quire that a majority vote or even a two-thirds vote was necessary to elect,
and in case that the requisite number of votes were not attained by any
candidate that the election might be thrown open to the house. Yet such
legislation would have the effect of defeating the will of the majority in
many cases, as where in a given district one party was in the predomi-
nance but not sufficiently so to elect their man, and in the house the
opposite party was in the majority. The provisions of the constitution



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THE STATE V. CONSTANTINE. 4I

in relation to apportionment. Article XI, would seem to prohibit any
minority representation in the case of representatives.

As to the validity of minority representation under the New York Con-
stitution of 1881, the case is more difficult. §1 of Article II. after fixing
the qualifications of an elector, goes on to provide that he "shall be en-
titled to vote * * * for all officers that now are or hereafter may be
elected by the people."

At the time this constitution was being framed the theory of minority
representation had been in practical operation in the State of Illinois for
several years under the provision of the constitution of 1870 [Article IV,
§§ 7 & 8], and was well known to legislators as a practical system of repre-
sentation. Moreover, the language of the constitution seems to be an
almost express prohibition of minority representation. Still, even as
to this constitutional provision, it would seem that it might be ai^ed
with much force that it intended to provide for equal rights of voting,
rather than to prohibit minority representation. It is to be noticed that
the system of minority representation provided for by §§ 7 & 8, Article IV
of the Illinois Constitution of 1870 is different from that adopted by the
statute held unconstitutional in the principal case. §§ 7 & 8, Article IV
of the Illinois Constitution provide that three representatives shall be
elected in each district, and that: "In all elections of representatives
aforesaid each qualified voter may cast as many votes for one candidate as
there are representatives to be elected, or may distribute the same, or equal
parts thereof, among the candidates, as he shall see fit ; and the candidate
highest in votes shall be declared elected." In the statute in question in
the principal case each voter was entitled to vote for only two of a board
of officers, and the statute was held unconstitutional as infringing on the
right of voters to vote for all officers to be elected. But a provision
similar to that of the Illinois Constitution would not come under this ob-
jection, as each member would be entitled to vote for all the members of
the board if he chose. Yet of course the purpose and result of provis-
ions like that in the statute in question and of those like that in the
Illinois Constitution are identical, />., to give representation to the minority.

Cumulative Voting in Private Corporations.— It is provided by
several State constitutions that in the election of directors, etc. of a
private corporation the voting power of each stockholder shall be the
number of shares he owns multiplied by the number of directors to be
elected, and that he may divide this power among as many candidates
greater than the whole number to be elected and in such proportions as he
shall see fit. Such a provision is contained in the following State consti-
tutions : Illinois (1870), Article XI, § 3 ; Pennsylvania, Article XVI, § 4 ;
West Virginia {1872), Article XI, § 4; Nebraska (1875), Article XI ; Mis-
cellaneous Corporations, § 5 ; Missouri (1875), Article XIII, § 6 ; Califor-
nia, Article XII, § 12.

It is held that such constitutional provisions are unconstitutional as im-
pairing the obligation of contract and infringing on vested rights, as far
as they concern corporations chartered before the adoption of the consti-
tution. In the case of Hays v. Commonwealth of Pennsylvania, 82 Pa.
St $18, it was held that the constitutional provision allowing cumulative



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42 bredin's appeal and greer*s appeal.

voting [Constitution of Pennsylvania, 1874, Article XVI, § 4,] if it applied
to existing corporations was void, as within the constitutional inhibition
against impairing the obligation of contract. The court says : " Now,
whilst it cannot be said that this would not be an alteration in the terms
of the charter, it is nevertheless urged that it is a mere regulation of the
right of suffrage in corporations, but affects the vested rights of no one.
But if it be not a vested right in those who own a major part of the
stock of the corporation to elect, if they see proper, every member of the
board of directors, I would like to know what a vested right means ?** The
case of The State v. Greer, 78 Mo., 188, is a similar decision as to the con-
stitutional provision of the State of Missouri, providing for cumulative
voting in private corporations. Constitution of Missouri (1875), Article
XII, § 6.



Bredin's Appeal and Greer's Appeal.

(Advance Case, Pennsylvania, October 5, 1885.)

Under Pennsylvania Constitution, art. V. sec. 5, which provides that
" whenever a county shall contain forty thousand inhabitants it shall con-
stitute a separate judicial district, and shall elect one judge learned in the
law," and that counties containing less population *' may be attached to
contiguous districts," the right of voting for judge extends to the inhabi-
tants (qualified to vote) of all the counties of which a district is composed ;
to a small county which has been attached to the district by the Legisla-
ture, as well as to the large one entitled by population to be a district.

Appeals from decrees of the Court of Common Pleas of
Butler County.

The facts, and the section of the constitution on which the
case turned, are stated in the opinion.

James Bredin^ G. A.Jenks and /. T. Britain, for appellants.

5. W, Dana, D, B. Kurtz, Chas. McCandless and John M.
Thompson, for appellees.

Mercur, C. J. — These appeals were argued together. They
FxcTB. are from the same decree. They present the same

question. The contention arises under the act of 7th August,
1883. It provides for the formation of the judicial districts
of the commonwealth ; how each shall be numbered, cofn-
posed and designated, and the number of judges each shall
have. Section i, inter alia, declares, " the seventeenth dis-
trict (shall be composed) of the County of Butler, to which
the County of Lawrence is hereby attached, and shall have
two judges learned in the law, and the additional law judge
shall reside at New Castle, in Lawrence County."



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BREDIN*S APPEAL AND GREEK'S APPEAL. 43

Section 2 declares, " In all cases where a county is or shall
be attached to an adjoining district the qualified voters of
such county shall be entitled to vote for the president judge,
and an additional law judge when provided for/'

At the general election held in November, 1884, ior the
election of two judges learned in the law, for the 17th judicial
district, the appellants, and John McMichael and Aaron L.
Hazen, and another, were candidates. The qualified electors
of each of said counties met at their respective legal places
for holding elections, and voted for two judges, and the
votes cast in each county were counted and ascertained at
the county-seat thereof. A return judge was appointed ac-
cording to the requirements of the statute in each county, to
meet a similar oflBcer appointed by the other county.

These two met at the county-seat of Butler County, at the
time designated by statute, and cast up the votes of both
counties and, on a correct computation thereof, found that
John McMichael and Aaron L. Hazen had received the high-
est number of votes, and issued certificates to them accord-
ingly.

The appellants attack the constitutional validity of the act
of 1883 in permitting the quaUfied voters of the County of
Lawrence to vote for Ijiw judges ; and they claim that the
votes cast in that county were improperly counted.

If this view be correct, then appellants were duly elected
and entitled to receive the certificates accordingly.

The tribunal authorized by law to decide such a contest
decided adversely to the claim of the appellants, and the
commissions have been issued to the other candidates
named.

The appellants rest their case on article V, section 5 of
the constitution, which declares : " Whenever a county shall
contain forty thousand inhabitants it shall constitute a sepa-
rate judicial district, and shall elect one judge learned in the
law; and the General Assembly shall provide for additional
judges as the business of the said districts may require.
Counties containing a population of lees than is sufficient to



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 5 of 73)