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KeyCite Yellow Flag - Negative TreatmentReutener v. City of Cleveland
Supreme Court of OhioMarch 6, 1923107 Ohio St. 117141 N.E. 27 (Approx. 12 pages)
107 Ohio St. 117
Supreme Court of Ohio.
REUTENER
v.
CITY OF CLEVELAND et al.
No. 17599.
March 6, 1923.
Synopsis
Error to Court of Appeals, Cuyahoga County.
Suit by one Reutener against the City of Cleveland and its Mayor to restrain them from putting into effect an amendment to the charter of defendant city. Judgment for defendants, and plaintiff brings error. Affirmed.—[By Editorial Staff.]
On July 1, 1913, the city of Cleveland, under the home rule amendment to the Ohio Constitution adopted in 1912, enacted a charter for local self-government, under which the city has since continued to operate. At the election in November, 1921, a proposal to amend the charter in certain particulars was submitted to the people of the city of Cleveland, and was approved by a majority vote.
In the instant case, Reutener, a taxpayer, seeks to enjoin the defendants in error, the city of Cleveland and Fred Kohler, mayor of Cleveland, from putting into effect such amendment, on the ground that it violates the provisions of the state Constitution, both in the manner of its adoption and in its purpose and tenor. The following provisions of the amended charter were claimed to be invalid:
‘Ballots.
‘Sec. 161. Ballots used in electing members of the city council shall be without party mark or designation, and shall be marked by the electors according to the instructions printed thereon under the heading ‘Directions to Voters,’ as specified in this section. Except that the names of candidates shall appear in the spaces indicated therefor and that the spaces left for the number of the district and date of the election shall be filled with such number and date, the ballots shall be in form substantially as follows:
REGULAR CITY ELECTION. | |
|---|---|
District............ | |
November ............, 19.... | |
Directions to Voters. | |
Put the figure 1 opposite the name of your | |
first choice. If you want to express also second, | |
third and other choices, do so by putting | |
the figure 2 opposite the name of your second | |
choice, the figure 3 opposite the name of your | |
third choice, and so on. In this way you may | |
express as many choices as you please. The more | |
choices you express, the surer you are to make your | |
ballot count for one of the candidates you favor. | |
This ballot will not be counted for your | |
second choice, unless it is found that it can | |
not help your first choice; it will not be | |
counted for your third choice unless it is | |
found that it can not help either your first | |
or your second, etc. | |
A ballot is spoiled if the figure 1 is put | |
opposite more than one name. If you spoil this | |
ballot, tear it across once, return it to the | |
election officer, in charge of the ballots, | |
and get another one from him. | |
.............. | |
.............. | |
.............. | |
.............. | |
‘Rotation of Names.
‘Sec. 162. The names of candidates for the council shall be printed on the ballots in rotation as follows:
‘The ballots for each district shall be printed in as many series as there are candidates for the council for such district. The whole number of ballots to be printed for the district shall be divided by the number of series and the quotient so obtained shall be the number of ballots printed in each series. In printing the first series of ballots the names of candidates shall be arranged in the alphabetical order of their surnames. After printing the first series the first name shall be placed last and the next series printed, and this process shall be repeated until each name shall have been printed first in one series. The ballots so printed shall be combined in tablets to be supplied to the various voting places. Each tablet shall contain substantially the same number of ballots from each series, and, so far as practicable, the ballots shall be combined in such manner that two or more from the same series shall not be together in a tablet.
‘Blank Space on Ballots.
‘Sec. 163. A blank space shall be left on the ballots below the printed names of the candidates. In any such space an elector may write the name of any person eligible to the council, and votes case for such persons shall be counted as though for candidates whose names are printed on the ballots.
‘Rules for Counting Ballots.
‘Sec. 164. Ballots cast for the election of members of the council shall be counted and the results determined by the election authorities according to the following rules:
‘(a) On all ballots a cross shall be considered equivalent to the figure 1. So far as may be consistent with the general election laws, every ballot from which the first choice of the voter can be clearly ascertained shall be considered valid.
‘(b) The ballots shall first be sorted and counted at the several voting precincts according to the first choices of the voters. At each voting precinct the ballots cast for each candidate as first choice shall be put up in a separate package, which shall be properly marked on the outside to show the number of ballots therein and the name of the candidate for whom they were cast. The ballots declared invalid by the precinct officials shall also be put up in a separate package, properly marked on the outside. All the packages of each precinct, together with a record of the precinct count, shall be promptly forwarded to the central election authorities as directed by them, and the counting of the ballots cast in each district shall thereafter be carried on by a central counting board for each such district, appointed by the central election authorities and acting under their direction.
‘(c) After the review of the precinct count of its district by the central district counting board, and the correction of any errors discovered therein, the first choice votes of each condidate shall be added and tabulated. This completes the first count.
‘(d) The whole number of valid ballots cast in the district shall then be divided by a number greater by one than the number of seats to be filled in the district, the next whole number larger than the resulting quotient is the quota or constituency that suffices to elect a member.
‘(e) All candidates the number of whose votes on the first count equals or exceeds the quota shall then be declared elected.
‘(f) All votes obtained by any candidate in excess of the quota shall be termed his surplus.
‘(g) Any surpluses there may be shall next be transferred, the largest surplus first, then the next largest, and so on, according to the following rules.
‘(h) In the transfers of a surplus, transferable ballots up to the number of votes in the surplus shall be transferred to the continuing candidates marked on them as next choices, in accordance with rule (m). The particular ballots to be taken for transfer as the surplus of a candidate shall be obtained by taking as nearly an equal number of ballots as possible from the transferable ballots that have been cast for him in each of the voting precincts. All such surplus ballots shall be taken as they happen to come without selection.
‘(i) ‘Transferable ballots' means ballots from which the next choice of the voter for some continuing candidate can be clearly ascertained. A ‘continuing candidate’ is a candidate as yet neither elected nor defeated.
‘(j) Whenever a ballot is transferred from one candidate to another, it shall be tallied or otherwise recorded by a tally clerk assigned to the candidate to whom it is being transferred. Each tally clerk shall take care not to receive for his candidate by transfer more ballots than are required to complete the quota.
‘(k) The votes standing to the credit of each candidate shall be added and a tabulation of results made whenever a comparison of the votes of the several candidates is necessary to determine the next step in the procedure. Each tabulation, together with the transfers of ballots made since the preceding tabulation, is referred to in this section as a count.
‘(l) After the transfer of all surpluses (or after the first count if no candidate received a surplus) every candidate who has no votes to his credit shall be declared defeated. Thereupon the candidate lowest on the poll as it then stands shall be declared defeated and all his transferable ballots transferred to continuing candidates, each ballot being transferred to the credit of that continuing candidate next preferred by the voter in accordance with rule (m). Thereupon the candidate then lowest shall be declared defeated and all his transferable ballots transferred in the same way. Thus the lowest candidates shall be declared defeated one after another and their transferable ballots transferred to continuing candidates.
‘(m) Whenever in the transfer of a surplus or of the ballots of a defeated candidate the vote of any candidate becomes equal to the quota, he shall immediately be declared elected and no further transfer to him shall be made.
‘(n) When candidates to the number of seats to be filled have received a quota and have therefore been declared elected, all other candidates shall be declared defeated and the election shall be at an end; or when the number of continuing candidates is reduced to the number of seats still to be filled, those candidates shall be declared elected whether they have received the full quota or not and the election shall be at an end.
‘(o) If when a candidate is to be declared defeated two or more candidates at the bottom of the poll have the same number of votes, that one of the tied candidates shall first be declared defeated who was credited with fewest votes at the end of the count next preceding, and any further tie shall be decided on the same principle. Any tie not otherwise provided for in this section shall be decided by lot.
‘(p) In the transfer of the ballots of any candidate who has received ballots by transfer, those ballots shall be transferred first which he received by the count next preceeding, and the rest shall be transferred in the reverse order of the counts by which he received them.
‘(q) On each tabulation a record shall be kept, under the designation ‘ineffective ballots,’ of those ballots which no longer stand to the credit of any elected or continuing candidate and which are not transferable.
‘(r) Every ballot which is transferred from one candidate to another shall be stamped or marked so that its entire course from candidate to candidate throughout the counting can be conveniently traced.
‘(s) The ballots shall be preserved by the election authorities until the end of the term for which the members of the council are being elected.
‘(t) Any recount of the ballots shall be made by the central election authorities in accordance with this section except that the reference to voting precincts may be disregarded. In any recount every ballot shall be made to take the same course that it took in the original counting, unless there is discovered a mistake that required its taking a different course. In such case any required changes shall be made in the course taken by the ballot. These principles shall apply also to the correction of any error that may be discovered during the original counting.
‘(u) The candidates or their agents, representatives of the press, and, so far as may be consistent with good order and with convenience in the counting and transferring of the ballots, the public shall be afforded every facility for being present and witnessing these operations.
‘(v) The council shall have power to provide for the use of mechanical or other devices for marking and sorting the ballots and tabulating the results, and to modify the form of the ballot, the directions to voters, and the details in respect to the method of counting and transferring ballots accordingly; provided, however, that no change shall be made which will alter the principles of the voting or of the counting.’
The facts are more fully stated in the opinion. The lower courts sustained the validity of the amendment.
Robinson, J., dissenting.
West Headnotes (6)
Rule that each elector may vote for every officer whose place is to be filled no longer applies to elections under home rule city charters.
142TElection Law
142TIIIVoters
142TIII(A)In General; Right of Suffrage
142Tk54Power to Restrict or Extend Suffrage
142Tk56Limitation as to number of candidates or propositions to be voted for
(Formerly 144k16 Elections)
268Municipal Corporations
268VOfficers, Agents, and Employees
268V(A)Municipal Officers in General
268k124Constitutional and Statutory Provisions
268k124(2)Appointment or election
Hare system of proportional representation held valid under home rule amendment of Constitution.
142TElection Law
142TVIIConduct of Election
142TVII(D)Time, Place, and Manner of Voting
142Tk361Constitutional and Statutory Provisions
142Tk363Power to Regulate Conduct
142Tk363(4)Mode of voting
(Formerly 144k27 Elections)
268Municipal Corporations
268VOfficers, Agents, and Employees
268V(A)Municipal Officers in General
268k124Constitutional and Statutory Provisions
268k124(2)Appointment or election
Power under Constitution to amend charter includes power to repeal provisions thereof.
Amendment of charter to provide for city manager plan and new system of voting need not be submitted by separate sections.
Amendment of charter repealing all but two sections held amendment, and not new charter.
Submission of charter amendment held in substantial compliance with Constitution.
Syllabus by the Court
The power given by the Ohio Constitution, section 9, article XVII, to the electors of a city to amend their municipal charter, includes the power to repeal or strike out provisions.
Under section 9, article XVIII, of the Ohio Constitution, empowering the electors of a city to amend their municipal charter, each section of a proposed amendment need not be submitted separately at an election. An amendment amounting to a general revision, having for its principal purpose to provide for the so-called city manager plan of government, together with a system of voting by the so-called Hare system of proportional representation, comprising numerous separate sections, may be voted upon as a whole.
In a proposed amendment to the home rule charter of the city of Cleveland, all but two sections of the original charter were repealed. The amendment repeated verbatim 60 sections of the original charter, only the section numbers being changed, repeated 105 sections of the original charter with editorial revisions, and changed substantially 35 sections of the original charter. Held, that this proposal constituted an amendment, and not a new charter.
A proposed amendment, covering 67 printed pages and comprising 181 sections, was submitted to the voters of the city of Cleveland at the election of November, 1921, for their approval. Copies of the proposed amendment were mailed to the electors prior to the election, as provided by the Constitution. A digest of the substance of the amendment, consisting of 86 lines, which digest substantially expressed the purpose and terms of the amendment, was printed on the ballot. The Constitution did not prescribe that copies of amendments submitted at municipal elections in charter cities should be placed upon the ballots. Held, that this was a substantial compliance with the Constitution. State ex rel. Greenlund v. Fulton, Secretary of State, 99 Ohio St. 168, 124 N. E. 172, distinguished, and held not to apply to municipal charter elections.
The Hare system of proportional representation, providing a system of voting at municipal elections, which was submitted to the voters of Cleveland in the election of November, 1921, as a part of the city charter amendment, and adopted, is valid under the home rule amendment of the Ohio Constitution.
Under the home rule amendment to the Ohio Constitution, the rule that each elector is entitled to vote for every officer whose place is to be filled is no longer law in this state as regards elections held under home rule city charters.
Attorneys and Law Firms
*125 **29 Doerfler & Kornhauser, of Cleveland, for plaintiff in error.
J. Paul Lamb, Director of Law, Carl F. Shuler, Asst. Director of Law, and H. H. McKeehan, all of Cleveland, for defendants in error.
Opinion
*126 ALLEN, J.
The plaintiff in error challenges the amendment enacted in the election of November, 1921, as a part of the home rule charter of the city of Cleveland, on two grounds:
(1) That the amendment was adopted in violation of the terms of the Ohio Constitution.
(2) That the proportional representation provision of the amendment is invalid, because it violates section 1, article V, of the Ohio Constitution; that this provision is inseparable from the rest of the amendment, and therefore the amendment as a whole falls to the ground.
Taking these alleged grounds of error in their order, we shall proceed to examine whether the amendment conforms to the provisions of the Ohio Constitution in the manner of its adoption.
Three objections are urged to the method of submitting the amendment. The first is that the amendment is not merely a change in the form and substance of the original charter, but that it abrogates all of the original charter, completely discarding **30 the structure and the organization of the present city government, and setting up an entirely new and distinct charter in its stead. The second objection is that complete copies of the amendment were not placed upon the ballot at the election at which the amendment was adopted. The third objection is that the amendment contains many distinct sections, which were submitted, not separately, section by section, but as a whole.
The first objection involves two questions:
(a) Does the amendment adopted in 1921 constitute a new charter rather than an amendment?
*127 (b) If so, does this fact invalidate the method of the proposal's submission, requiring that it be submitted in conformity with section 8, article XVIII, of the Ohio Constitution, instead of in conformity with section 9 of the same article, under which it was submitted?
3 An examination of the new amendment, in order to determine whether it constitutes, as is claimed, a completely new charter, discloses that this contention cannot be sustained upon the facts. While it is true that all but two sections of the old charter were repealed, for the purpose no doubt of submitting the proposition as a whole, the amendment submitted retained verbatim 60 sections of the original charter, only the section numbers being changed. The amendment repeated 105 sections with only editorial revisions, and changed substantially 35 sections of the original charter. This fact disposes of the contention that the amendment is invalid, because it constitutes a new charter, instead of an amendment, and that it should have been submitted to vote under the constitutional provision as to charter elections rather than under the constitutional provision as to charter amendments.
1 Even if this amendment did constitute a new charter, however, shall it be said that the people of a charter city, exercising all powers of local self-government, have less power than their representatives in the Legislature, who are permitted to strike out all but the enacting clause of a law and completely change it by way of amendment? One of the holdings that amendments which even vitally change the substance of a law are to be considered *128 amendments for purposes of submission is to be found in Cantini v. Tillman (C. C.) 54 Fed. 969, at page 976, as follows:
‘Nothing is more common than to amend by striking out one section and by inserting another, or by striking out several sections and by inserting one or several; and if it be competent to amend by striking out and inserting one, two, three, four sections, clearly it is competent to strike out all the sections, and to insert others in pari materia. Striking out all after the enacting words, and inserting, is nothing but an amendment, and is governed by the same rules as other amendments.’
Among cases applying this rule to city charters are the following:
‘The power given by article XI, section 2, of the Constitution, as amended June 4, 1906, to the voters of a city to amend their municipal charter includes the power to repeal or strike out provisions.’ State ex rel. v. City of portland, 65 Or. 273, syllabus 5, 133 Pac. 62.
‘Amendments to a special charter of a city of the first class that may be submitted at a special election are not confined to those that are only revisory or supplemental, but include those which alter or annul the basic principle upon which the city government is founded.’ State ex rel. Hindley v. Superior Court of Spokane County, 70 Wash. 352, syllabus 3, 126 Pac. 920.
See, also, the opinion in Wade v. City of Tacoma, 4 Wash. 85, 87, 29 Pac. 983.
Counsel for plaintiff in error argue, however, that although the amendment repeated within its specific terms much of the original charter of the city of Cleveland, since the proposal adopted constitutes an *129 instrument complete within itself, it cannot be considered an amendment. It is plain, however, that this instrument, in which only 35 sections of the original charter have been changed, as compared with 105 sections which were editorially revised, and 60 sections which were retained verbatim, would not be a charter complete within itself, unless the old measures were included; that is, the retention of the original charter within the present amendment at once gives the amendment its completeness, and makes it, not a new measure, but an amendment. The majority of the court hold, therefore, that the amendment does not constitute a new charter, and that it was properly submitted to the voters under section 9, article XVIII, of the Constitution.
4 Is this amendment invalid in its submission because copies thereof were not placed upon each ballot? It is conceded that a digest of 86 lines, purporting to explain the tenor of the amendment, was printed upon the ballot used at the election. Plaintiff in error claims that the printing of this digest upon the ballot was not a sufficient compliance with the Constitution in that regard.
The section of the Ohio Constitution which covers amendments to home rule charters, section 9, article XVIII, reads:
‘Amendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority. The submission *130 of proposed amendments to the electors shall be governed by the requirements of section 8 as to the submission of the question of choosing a charter commission; and copies of proposed amendments shall be mailed to the electors as hereinbefore provided for copies of a proposed **31 charter. If any such amendment is approved by a majority of the electors voting thereon, it shall become a part of the charter of the municipality. A copy of said charter or any amendment thereto shall be certified to the secretary of state, within thirty days after adoption by a referendum vote. (Adopted September 3, 1912.)’
This section provides that the submission of proposed amendments to the electors shall be covered by the requirements of section 8, article XVIII, as to the submission of the question of choosing charter commissions. Section 8 reads:
‘The legislative authority of any city or village may by a two-thirds vote of its members, and upon petition of ten per centum of the electors shall forthwith, provide by ordinance for the submission to the electors of the question, ‘Shall a commission be chosen to frame a charter?’ The ordinance providing for the submission of such question shall require that it be submitted to the electors at the next regular municipal election if one shall occur not less than sixty nor more than one hundred and twenty days after its passage; otherwise it shall provide for the submission of the question at a special election to be called and held within the time aforesaid. The ballot containing such question shall bear no party designation, and provision shall be made thereon for the election from the municipality at large *131 of fifteen electors who shall constitute a commission to frame a charter: Provided that a majority of the electors voting on such question shall have voted in the affirmative. Any charter so framed shall be submitted to the electors of the municipality at an election to be held at a time fixed by the charter commission and within one year from the date of its election, provision for which shall be made by the legislative authority of the municipality in so far as not prescribed by general law. Not less than thirty days prior to such election the clerk of the municipality shall mail a copy of the proposed charter to each elector whose name appears upon the poll or registration books of the last regular or general election held therein. If such proposed charter is approved by a majority of the electors voting thereon, it shall become the charter of such municipality at the time fixed therein. (Adopted September 3, 1912.)'
Neither of these sections of the Ohio Constitution specifically provides for placing copies of a proposed charter amendment upon the ballot. Under the terms of plain constitutional construction, therefore, placing a digest of the proposed amendment consisting of 86 lines upon the ballot, if the digest fairly represents the meaning nad substance of the amendment proposed, would seem to be a substantial compliance with the Constitution. It is admitted in the instant case that each elector had a copy of the 181 sections of the amendment mailed to him prior to the election, and it is not questioned that the digest of the amendment placed upon the ballots fairly represented its tenor.
*132 Counsel for plaintiff in error, however, argue that State ex rel. Greenlund v. Fulton, Secy. of State, 99 Ohio St. 168, 124 N. E. 172, is conclusive upon this point. That case holds, in proposition 2 of the syllabus:
‘When such a petition, signed and prepared in accordance with the constitutional requirement, has been filed with the secretary of state, he is required to submit to the electors the exact proposal as set forth in the petition, and there is no authority for the submission of any other or different one.’
In the Greenlund Case the Supreme Court of Ohio holds that in the submission of a state initiative proposal to the voters the exact language of the initiative proposal must be printed on the ballot. The plaintiff in error argues by analogy that the exact language of the proposal involved in the 181 sections of the amendment offered to the charter of Cleveland at the November election, 1921, should have been placed upon the ballot verbatim. It is self-evident that the placing of such a proposal upon the ballot might seriously complicate election arrangements. It would greatly increase the cost of printing the ballot. The bulk and size of such a proposal, if given verbatim upon the ballot, might necessitate a change in the size of the ballot boxes, at considerable expense to the municipality. Apart from practical objections to this proposition, however, the case quoted construes an entirely different section of the Constitution, which relates only to initiative and referendum measures on state constitutional questions, and does not apply to charter elections under the home rule amendment to the Ohio Constitution. A majority of the court therefore hold that the amendment was not invalid in its submission, *133 due to the fact that verbatim copies thereof were not placed upon the ballot.
2 Is this amendment invalid because its various sections were not submitted separately? Sections 8 and 9 of article XVIII of the Ohio Constitution neither prohibit nor require such separate submission. Under article XVIII municipalities were given all powers of local self-government, and the method of holding municipal elections has been held to be a matter peculiarly within these powers. Fitzerald et al., Board of Deputy State Supervisors, v. City of Cleveland, 88 Ohio St. 338, 103 N. E. 512, Ann. Cas. 1915B, 106. That being the case, surely under our present Constitution it is within the power of municipalities to decide whether city charter amendments shall be submitted separately or en bloc. Only in the bloc submission could proposals which are germane to each other be submitted in such a way as to insure their adoption as a whole. Since this method is not prohibited under the Constitution, and comes fairly within the powers of local self-government, a majority of the court hold it is valid. **32
This precise question was raised in the case of State ex rel. v. City of Portland, 65 Or. 273, 133 Pac. 62, in which an action in mandamus was instituted to test the validity of certain proposals submitted as a whole and adopted, providing for the commission form of government in Portland, Or. One of the objections urged to the amendment was that it contained various sections, which should have been submitted separately. The court held that this fact did not invalidate the method of submission. Proposition 4 of the syllabus reads as follows:
*134 ‘Under article XI, section 2, of the Constitution, as amended June 4, 1906, empowering the voters of a city to enact and amend their municipal charter, each section need not be submitted for a separate vote; but amendments amounting to a general revision, the principal object being to provide for a commission form of government, and all being germane thereto, may be voted as a whole.’
Upon page 283 of the opinion (133 Pac. 65), the court says:
‘If the doctrine suggested is not applicable, the enactment or amendment of a municipal charter, by voting for separate sections, might destroy the efficacy of the proposed plan of city government, or very much delay its adoption.’
The majority of the court being of the opinion that the method of adopting the amendment in question was valid, it now remains to inquire whether the system of voting set up in the amendment, known as the Hare system of proportional representation, conflicts with the Constitution of Ohio.
5 Plaintiff in error claims that the proportional representation feature of the amendment contravenes section 1, article V, of the Constitution of Ohio. This section of the Constitution reads:
‘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.’
By the terms of the amendment here questioned the city of Cleveland is divided into 4 districts. The old wards are abolished, and the council is to *135 consist of 25 members elected from the 4 district, each of which is to choose not less than 5 nor more than 9 council members. The districts and the number of councilmen from each are designated, subject to future change by the council. Candidates for council are nominated by petition; no elector being permitted to sign the nominating petition of more than one candidate. The candidates' names are printed on the ballot, and the elector then votes by placing the figure ‘1’ opposite the name of his first choice, the figure ‘2’ opposite the name of his second choice, and so on down the list, putting consecutive numerals beside the name of as many candidates as he pleases. The ballot contains these words:
‘The more choices you express, the surer you are to make your ballot count for one of the candidates you favor.’
When the polls close the ballots are counted, all the first choice ballots for the respective candidates being put into separate packages. The whole number of valid ballots is then counted, and divided by a number greater by one than the whole number of seats to be filled in the district. The next whole number larger than the existing quotient is called the quota, and any candidate receiving first choice votes equaling or exceeding the quota is declared elected. If a candidate has more such votes than the quota, the surplus is taken at random from among his ballots, and distributed among candidates having fewer first choice votes than the quota, according to the expressed second choice. Likewise, on each count, the lowest candidate is declared defeated, and his ballots are distributed among the so-called continuing candidates.
*136 6 Plaintiff in error claims that, under this system, an elector residing in a district represented by from 5 to 9 councilmen, no matter how many preferences he expresses when he casts his ballot, has his ballot counted for but one councilman; that he is permitted to vote for but one candidate. The court does not consider that this contention is established upon the facts. The ballot is counted every time that it is considered as adding one to or subtracting one from a group of votes. It is true that the vote may become effective in electing only one candidate, and in this sense possibly it may be ‘counted for only one councilman.’
However, plaintiff in error can hardly contend that a voting system which may at times deprive a ballot of its full effect is necessarily unconstitutional. That the effect of a vote is often nullified in our elections is axiomatic. It is a matter of common knowledge that national officials have been elected by an actual minority. John Quincy Adams, for instance, received fewer popular votes than Andrew Jackson in the election of 1824. The popular vote for Jackson was 155,872; for Adams 105, 321. Cyclopedia of American Government, volume III, page 11. That is to say, votes of a plurality of electors are not always counted, so as to be effective in national elections. It is also a matter of common knowledge that, through the gerrymander, districts may be so defined as to be practically deprived of the effectiveness of their votes in elections; that is, a majority may be so districted as to become a minority. without power of electing its candidates.
*137 The vote of an elector, therefore, under our present form of state and national government, **33 may be shorn of its effect so far as the actual election of the elector's candidate is concerned, without invalidating the method of election. This fact certainly is established, however, that under the Hare system the voter is permitted to vote only one first choice vote, although at least five, and possibly nine, candidates are to be elected from his district.
The question, then, narrows itself down to this: Does the fact that the elector under this system votes a first choice for one officer only, there being from 5 to 9 to be elected in the district, violate the provision of section 1, article V, of the Constitution, that every elector shall be entitled to vote at all elections? On the face meaning of this section the Hare system of proportional representation does not violate the Ohio Constitution, for the elector is not prevented from voting at any election. He is entitled to vote at every municipal election, even though his vote may be effective in the election of fewer than the full number of candidates, and he has exactly the same voting power and right as every other elector.
The plaintiff in error, however, claims that State ex rel. v. Constantine, 42 Ohio St. 437, 51 Am. Rep. 833, is an authority binding upon this court in his favor. The second and third propositions of the syllabus in the Constantine Case are:
‘2. Where an office is filled by an election, the election must conform to the requirements of the Constitution, and each elector of the district is entitled *138 to vote for a candidate for each office to be filled at the election.
‘3. A statute authorizing the election of four members of the police board at the same election, but which denies to an elector the right to vote for more than two members, is in conflict with article V of the Constitution.’
This case is certainly an authority against the position of the defendant in error. The slight circumstance that limited voting was condemned in the Constantine Case, while it is proportional representation that is here attacked, does not greatly differentiate the cases. State ex rel. v. Constantine, however, extended the plain language of the Constitution far beyond the word meaning of the provision in section 1, article V. To the clause, shall ‘be entitled to vote at all elections,’ the Constantine Case added the clause, and ‘for a candidate for each office to be filled at an election.’ Moreover, that case was decided before the home rule provision of the Ohio Constitution was enacted. Since then a whole new body of law has developed in regard to Ohio city government—a body of law giving to cities the widest possible latitude in the formation of their local governments and in the performance of local governmental functions, limited only by provisions of the state Constitution.
In 1912 the people of Ohio gave to municipalities all powers of local self-government. Sections 3 and 7, article XVIII, Ohio Constitution. Under these provisions this court has held that a system of preferential voting in a chartered municipality is valid (Fitzgerald v. Cleveland, 88 Ohio St. 338, 103 N. E. 512, Ann. Cas. 1915B, 106); that the provisions as to civil service in the charter of a *139 city, if they comply with the state Constitution, discontinue the general law on the subject as to that municipality (State ex rel. v. Lentz et al., Civil Service Commission, v. Edwards, 90 Ohio St. 305, 107 N. E. 768); and that women can by home rule charter be made voters in local affairs, contrary to the provision of section 1, article V (State ex rel. Taylor v. French, 96 Ohio St. 172, 117 N. E. 173, Ann. Cas. 1918C, 896). To hold valid this system of voting adopted by the people of Cleveland is merely to carry out the plain meaning of the constitutional provision that municipalities shall have all powers of local self-government, and to give effect to the power which rightly takes precedence over all statutes and court decisions, the will of the people, as expressed in the organic law.
Electoral provisions similar to these have lately been unheld in other states. In the case of Commonwealth ex rel. McCormick Atty. Gen., v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L. R. A. 141, the Supreme Court of Pennsylvania held constitutional an act providing for the election of a given number of judges, notwithstanding the fact that an elector was not allowed to vote for as many persons as there were places to be filled. See, also, State v. Monahan, 72 Kan. 492, 84 Pac. 130, 115 Am. St. Rep. 224, 7 Ann. Cas. 661, wherein the Supreme Court of Kansas upheld a legislative act which provided a property qualification for electors desiring to vote for directors of a drainage district, notwithstanding a constitutional provision against such qualification so far as electors generally were concerned.
Counsel for plaintiff in error cite to the court the case of *140 Wattles ex rel. Johnson v. Upjohn, 211 Mich. 514, 179 N. W. 335, a recent case, which held that under the home rule act of Michigan the provisions of the Kalamazoo charter, providing substantially for the use of the Hare system of proportional representation, violated the Michigan Constitution. The plaintiff in that action, which was a quo warranto proceeding, attacked the proportional representation feature of the charter upon the specific ground that the elector, under the Hare voting system, would be deprived of his right to vote for every office to be filled.
The provisions of the Constitution of Michigan applicable to the question of voting are as follows:
‘In all elections, every male inhabitant [defining the qualifications of voters] shall be an elector or entitled to vote.’ Article 3, § 1. **34
Also:
‘No city or village shall have power to abridge the right of elective franchise.’ Article 8, § 25.
It is conceded that, if the Constitution of Ohio were the same as that of Michigan, this Upjohn Case would be a direct authority against the validity of the proportional representation feature of the Cleveland amendment. But the Constitutions of Ohio and Michigan upon this point are very different. The Ohio document contains a home rule provision which grants cities all powers—that is, unlimited power—of local self-government. The Michigan Constitution contains no such broad provision. Its so-called home rule section is as follows:
‘Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the Legislature for the government *141 of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this state.’ Section 21, article VIII.
This fact, then, distinguishes the two cases. In Ohio, charter cities have all powers of local self-government; and in Michigan, their powers of local self-government are limited. The Upjohn Case, therefore, is not an authority against this holding.
Upon the same ground we also distinguish In re Opinion of Judges, 21 R. I. 579, 41 Atl. 1009. That case arose under a section of the Rhode Island Constitution which specifically provides that ‘each elector shall be entitled to vote in the election of all civil officers,’ a wording which necessarily compelled the opinion rendered. Furthermore, the Rhode Island case did not arise under an unlimited grant of power of local self-government. The same distinction also applies is every case cited by counsel for plaintiff in error as supporting his contention.
Since it is the opinion of a majority of the court that the Hare system of proportional representation outlined in the amendment is valid under the unlimited powers of local self-government given to charter cities in the Ohio Constitution, it is unnecessary in the instant case to decide whether that feature of the amendment is separable from the sections embodying the rest of the proposal. After all, is not the purpose of the home rule amendment to the Constitution exactly this: That progress in municipalities shall not be hampered by *142 uniformity of action; that communities acting in local self-government may work out their own political destiny, and their own political freedom, on their own initative, and in their own way; and, with this purpose in mind, should not the enactment of political alterations in the structure and substance of a charter government be given every possible presumption of validity? There is a presumption that the enacted statute is valid. County of Miami v. City of Dayton, 92 Ohio St. 215, 110 N. E. 726. Not less should there be a presumption that changes enacted according to law in the organic Constitution of a home rule city are valid.
For these and the reasons heretofore given the judgment is affirmed.
Judgment affirmed.
MARSHALL, C. J., and WANAMAKER, MATTHIAS, and DAY, JJ., concur.
JONES, J., (concurring).
Section 1, article V, of the Constitution, explicitly pertains to and controls the qualifications of electors at all elections; but it does not attempt to control the mode of elections, nor the personnel of municipal officials. These are features of ‘local self-government’ committed to chartered municipalities. As to other municipalities, State ex rel. v. Constantine, 42 Ohio St. 437, 51 Am. Rep. 833, has not been overruled and its principles still apply.
ROBINSON, J. (dissenting).
The pronouncement of the majority of the court in this case does not change the interpretation of section 1, article V, of the Ohio Constitution, enunciated in *143 State ex rel. v. Constantine, 42 Ohio St. 437, 51 Am. Rep. 833, that ‘each elector of the district is entitled to vote for a candidate for each office to be filled at the election,’ but declares that section inapplicable to chartered cities by reason of the provision of section 3, article XVIII, of the Constitution, that:
‘Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.’
Since it cannot be denied that these two sections may be construed together, so as to give force and effect to each, the effect of the decision is to declare section 3, article XVIII, paramount to section 1, article V. If paramount to section 1, article V, the same process of reasoning would make it paramount to all other provisions of the Ohio Constitution. The pronouncement carried to its logical conclusion is: The inhabitants of a chartered city, as between such inhabitants and the local government, have no constitutional rights. I do not believe that the electors of the whole state have the power to vote the constitutional guaranties away from the people of a portion of the state, nor do I believe they have consciously undertaken to do so.
In my opinion, if the sustaining of the charter of the city of Cleveland requires the surrendering by its inhabitants, as between them **35 and the local government, of all their constitutional rights, it is sustained at too great a cost to them. Therefore I dissent from the reasoning, the pronouncement of law, and the judgment.
All Citations
107 Ohio St. 117, 141 N.E. 27, 1 Ohio Law Abs. 262, 20 Ohio Law Rep. 616, 20 Ohio Law Rep. 617| End of Document | © 2024 Thomson Reuters. All rights reserved. |