
    Gentsch et al. v. The State ex rel. McGorray et al.
    
      Classification often proper and necessary — In legislation for objects of general law — Classification legislation is special and unconstitutional, when — Section S926o, Revised Stattutes — Of a general nature and valid — Constitutional law.
    
    1. Classification is often proper and sometimes necessary in-' legislation, in order to define the objects on which a general law is to take effect and in order to definitely apply and effectuate the purposes of the legislation; but when classification is unnecessary, arbitrary, fictitious or otherwise faultily made and is used to evade the constitutional limitations under the form of general legislation, such legislation in relation to a class may he both special and unconstitutional.
    2. Within the legitimate purposes of general legislation, not relating to the organization of cities and villages, a bona fide classification on the basis of real and substantial differences in population, and of the conditions growing out therefrom, may be valid.
    3. Section 2926o, Revised Statutes, is a law of a general nature and operates uniformly throughout the state.
    4. When the said section is construed with other legislation in pari materia, it does not appear that it denies or abridges the right of citizens to vote. The said section is intended to, and does, facilitate rather than impede the exercise of the right of suffrage, and it is reasonable, uniform and impartial.
    (No. 9230
    Decided December 6, 1904.)
    Ebboe to the Circuit Court of Cuyahoga county.
    The defendants in error filed a petition in the court of common pleas of Cuyahoga county praying for a writ of mandamus commanding the plaintiffs in error to cause all voting places in the city of Cleveland to be opened at the hour of five-thirty A. M. on the eighth day of November, 1904, and to keep them open and to receive all votes offered by the qualified electors up to the hour of five-thirty P. M. of said day. The relators allege that they are electors and candidates for office duly nominated in said city. That the defendants are the chief deputy and board of deputy state supervisors and inspectors of elections, as well as judges of election in precinct A, ward fourteen, in Cleveland. They aver that in the act of the general assembly passed April 23, 1904, there is included a certain section, to-wit: section 2926c, which provides that on the day of the November election in every year the polls in each and every precinct in cities in which registration is required, shall be opened by the judges of election appointed and organized as is provided in said act •by proclamation made by the chairman at the hour of five-thirty o ’clock in the morning, standard time, and shall be closed by proclamation at the hour of four o’clock, standard time, in the afternoon, in cities which now have or may hereafter have a population of three hundred thousand or more, as ascertained in the manner provided in section 2926a, and at the hour of five-thirty o ’clock in the afternoon in all other cities in which registration is required. . And the relators further allege that said section is unconstitutional and void, and that the defendants nevertheless threaten and declare their intention of opening said polls at five-thirty o’clock A. M. standard time, on November 8, 1904, and of closing the same at four o’clock in the afternoon of the same day in the city of Cleveland, which is a city having a population of three hundred thousand. or more. The relators further say that the population of Cleveland is about four hundred and fifty thousand, and that there are more that ninety thousand qualified electors in said city who have the right to vote at said election, and as electors will, at said election, be required to choose and vote upon more than three hundred persons as candidates for national, state, county, municipal and township offices, thirty persons as candidates for school district offices, and three questions submitted to popular vote, two of them involving the annexation of territory to the said city, and one involving the issuance of a large amount of bonds for municipal purposes. That there are in the said city about two hundred and thirty-nine precincts, and at past elections, at many of these precincts, more than four hundred and fifty electors have cast their ballots; and that heretofore the time from half-past five in the morning until half-past five in the afternoon in the large precincts has not sufficed to enable all the electors entitled to cast their ballots to vote, and if the provisions of said section be enforced, many electors throughout said city will be unable to vote by reason of the physical impossibility of all the voters residing in such precincts and entitled to vote, casting their ballots within the time allowed by said unconstitutional section of the statutes of Ohio. The relators say that the defendants have been urged and demanded by these relators to disregard the provisions of said section, which they have refused to do; but on the other hand threaten and will, unless otherwise directed by the court, close the said polling places at the hour of four P. M. on said day. A demurrer was filed to the petition on the ground that it did not state facts sufficient to constitute a cause of action for the relief prayed for, which demurrer was overruled by the court of common pleas, and the defendants not desiring to plead further, judgment was rendered thereon. The plaintiffs in error in the circuit court, also plaintiffs in error here, filed a petition in error in the circuit court of said county, seeking the reversal of said judgment, and the circuit court affirmed the judgment of the court of common pleas, and proceedings are prosecuted in this court for the purpose of obtaining a reversal of the judgment of the circuit court and the court of common pleas.
    
      Mr. Wade H. Ellis, attorney general, and Mr. Roscoe J. Mauclc, of counsel, for plaintiff in error.
    The relator argued that section 2926c, Revised Statutes, as amended April 23, 1904 (97 O. L., 208), was unconstitutional because it violated article 2, section 26, and article 5, section 1, of the constitution of Ohio, and that section 2929, Revised Statutes, controlled the proposed action of the defendants in closing the polls.
    It must be apparent that if section 2926o violates article 2, section 26, then section 2929 is imbued with the same infirmities and cannot therefore be invoked by the relators herein. The same weakness appears in the same section as enacted by previous general assemblies. In 90 O. L., 281, this section made an exception in closing the polls in favor of Cincinnati. In 88 O. L., 99, the same section made the closing hours for other places at six o’clock and for Cincinnati at four o ’clock. Following its course backward we discover that the first enactment of the closing law under the present constitution was in 50 O. L., 311, to the effect that “The polls shall be opened between the hours of six and ten in the morning, and closed at six in the afternoon of the same day.”
    The revision commission accepted this same language and it so continued until the amendment in 88 O. L., 99. Inasmuch as mandamus only commands “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station” (section 6741, Revised Statutes), and inasmuch as no law authorizing the polls to open and close at five-thirty is now or ever did exist in Ohio, exempt from the suggested constitutional infirmity of lack of uniform application, this petition was insufficient in law and the demurrer should have been sustained. If the law for which the defendants contend cannot be sustained then the governing section is the law of 1853 under which the defendants in a proper action might be compelled to keep polls open until six o’clock, but they could not be required to open them until ten.
    Further, if the section in question violates article 2, section 26, then section 29266 is for a similar reason unconstitutional, and this being the section under which the defendants were appointed to office their title fails and in failing destroys all right on the part of any one to force them to perform a public duty.
    The title of office of the defendants can be raised by mandamus. State ex rel. Armstrong v. Halliday, 61 Ohio St., 171.
    But this act is not unconstitutional. It violates none of those sections which provide for and guarantee the citizen’s right of suffrage. The suggestion is made that the law only provides for a three and one-half hour holiday on election day, and that all the electors cannot be accommodated within those hours. But heretofore, there has been no legal holiday at all on election day. The new statute is an enlargement of the opportunities of the elector and not a trespass thereon, as the petition seems to imply. If this law is to be declared unconstitutional because all the electors in a given precinct cannot be accommodated within the hours made a legal holiday then all previous elections must be invalid because heretofore no-part of election day was a holiday.
    In order to make an apparent case, the petition below, on page seven, contained the allegation that only four marking stalls are provided in the booths of that city, and that with but four marking stalls, all the electors could not be accommodated within the three and one-half hours on the morning of the election now made by statute a legal holiday.
    While the demurrer admits the allegation of the petition that only four marking stalls are to be provided in each booth, the attention of the court is di- . rected to 97 O. L., 234 (sec. 19), where it is provided that the number- of voting shelves shall not be less than one for every seventy-five electors qualified to-vote at such voting place. Under the statutes no voting precinct can have more than five hundred electors, and when a precinct reaches that population its division becomes necessary by the board of' election.
    Nor does section 2926c in any way contravene-article 2, section 26. The relator laid great stress-upon Hixon v. Burson, 54 Ohio St., 470. The court held in that case simply “that the constitutionality of an act is determined by the nature of its subject-matter, its operation and effect and not alone by its-form.” Every one agrees to that proposition now. The subject-matter of the act under consideration in the Hixon case was the construction of roads. The-court held that that subject-matter was such as to-come within the purview of article 2, section 26, and that there was no reason why legislation for their construction should not be broad enough to cover the whole state. We have no quarrel with that proposition. The trial court in overruling the demurrer to the petition relied largely upon State ex rel. Wilmot v. Buchley, 60 Ohio St., 273. This case, however, is neither controlling nor in point.
    What the court did hold there was that a classification of cities ignoring the city of Mansfield and all of the cities of the fourth grade and first class, was not of uniform operation throughout the state. It •did not hold, nor had any of the recent decisions of this court held, that the details of elections must be precisely the same in all parts of the state, nor have they decided that all laws must have a uniform operation throughout the state, where reason and experience, justify otherwise. Platt v. Craig, 66 Ohio St., 75; State ex rel. Knisely v. Jones, 66 Ohio St., 453.
    That elections in cities require more and different ■safeguards from fraud and intimidation than elections in rural counties seems to be so patent a fact that none can deny it. The history of election frauds in the whole country is largely a history of offenses •committed in great cities. The dangers existing in cities has led this, and other states, to require the registration of voters in cities of the larger size. Commonwealth v. McClelland, 83 Ky., 687.
    It is to be observed from the history heretofore given of section 2929 that that section has only made an exception in favor of Cincinnati since 1889. Prom 1886, however, section 2926o has caused the Cincinnati polls to close at four o ’clock, and it is more than a coincidence that this legislation followed in the wake of the election frauds of 1884 and 1885, and was one of the steps taken to remedy the evils then prevailing in that city. The recent general assembly ^changed the law from one affecting Cincinnati only to one affecting all cities of three hundred thousand) and more population.
    
      ■ Messrs. Foran £ McTighe and Mr. Arnold Oreen, for defendant in error.
    We claim, first, that section 2926o, Revised Statutes, is unconstitutional and void, for the reason that the legislature has no power, directly or indirectly, to abridge or to unnecessarily impair the constitutional -right of every citizen to vote. Monroe v. Collins, 17 Ohio St., 666.
    It is admitted that the legislature has the right to-pass laws regulating the manner in which elections shall be conducted, and the legislature has also the right to regulate the enjoyment and the constitutional right of the electors to vote, but only by laws, which facilitate the lawful exercise of that right, and by laws which are intended to prevent an abuse of that right. The true rule, or rather the true line between laws which take away the right, or abridge the right of suffrage, and those which may lawfully be enacted to regulate its exercise, is laid down by the supreme court of Massachusetts in Capen v. Foster, 12 Pick., 488.
    The legislature of the state of Ohio passed an act on May 4,1885 (82 O. L., 232), requiring registration in the cities of Cleveland and Cincinnati as a condition of the right of suffrage in those cities. This act allowed voters seven days within the year in which to register and correct registration, but it contained no provision for registration after the seven days, although five days after the last day of registration intervened before the election was had. In Daggett v. Hudson, 43 Ohio St., 548, our Supreme-Court declared this act to be unconstitutional, for-the reason that it had a direct tendency to impair the right of suffrage, and might disfranchise without their fault a large body of voters necessarily absent from the place of registration during the allowed time for registration.
    This is also the law in the state of Massachusetts. Lyman v. Martin, 2 Libby, 136.
    It may now be regarded as settled law that in the absence of constitutional inhibition, the legislature may pass registration laws, even of a local character, if they merely regulate in a reasonable and uniform manner how the privilege of voting shall be exercised. Owensboro v. Hickman, 14 S. W. Rep., 688.
    The constitution of the state of Nebraska has practically the same constitutional provisions with respect to the right to vote as the state of Ohio. A law of that state requiring registration provided that the electors should be deprived of the right to vote unless they registered on one of four days, the last, one being ten days prior to the election. This law was held unconstitutional and void. State v. Corner, 22 Neb., 265.
    The legislature of a state may regulate the right to vote by facilitating its lawful course and by preventing its abusé. The right to vote must not be impaired by the regulation. It must be regulation, not destruction. Attorney General v. Detroit, 78 Mich., 545.
    Citation of authorities to this effect might be multiplied to a great extent, but we do not think it necessary to pursue the subject further. We however call attention to State ex rel. v. Poston, 59 Ohio St., 133.
    In view of these decisions we may now pertinently ask what necessity exists for requiring the polls to be closed at four P. M. on election days in Cincinnati’ and Cleveland. We use the words Cincinnati and Cleveland advisedly. The legislature, by the act of May 16, 1894 (91 O. L., 759), provided for the construction, improvement and repair of certain public highways. This act was to apply, however, “to any county which, by the last federal census had, or which at any subsequent census may have, a population of not less than 35,190 and not to exceed 35,200.” The Supreme Court in passing upon this act said in Hixon v. Burson, 54 Ohio St., 470, that while the act was: “ in form general, it is in its operation local, and might just as well have named Athens county by name as to have designated it by its population by the last federal census, of not less than 35,190 and not more than 35,200.” In other words, there was no other county, at the time of the passage of this act, in the state of Ohio, that had just that population. By a parity of reasoning it may be said with equal frankness and truth, that section 2926o (97 O. L., 208), which provides that the chairman of the board of the judges of elections shall by proclamation open the polls at five-thirty o’clock in the morning, standard time, and shall close them by proclamation at the hour of four o’clock, standard time, in the afternoon “in cities which have now or may hereafter have a population of 300,000, or more, as ascertained in the manner provided in section 2926a, and at the hour of four-thirty o’clock in the afternoon in all other cities in which registration is required” might just as well have named Cincinnati and Cleveland by name as to have designated them by their population at the last federal census.
    We claim this law is unconstitutional, that is, section 2926o, for the reason that it is in contravention of section 26, article 2, of the constitution of Ohio, which provides that “All laws Of-a general naturé shall have a uniform operation throughout the state.” 1
    This question has been before the Supreme Court of the state a great many times, and it may be said truthfully that during a long period there were some doubts as to the interpretation which the Supréme Court placed upon this languagé of the* constitution. The question first came up for adjúdication in State v. Powers, 38 Ohio St., 54. By an act of the general assembly March 31, 1879, it was provided: “That upon a vote, as hereinafter provided for, the territory comprising the township of New London in Huron county, Ohio, now consisting of New London School District and the New London Village School District, be and the samé are hereby organized into a special school district, to be known as the New London School District.” This statute was held to be unconstitutional, because it was in contravention of section 26, article 2, of the constitution, and section 2, article 6, of the constitution.
    But later in the case of State ex rel. v. Shearer, 46 Ohio St., 275, the doctrine laid dowp in the Powers case, 38 Ohio St., 54, was overruled, and it was declared in the latter case that: “A law is not necessarily of a general nature by reason simply of its being upon a general subject,” and also “that the subject of dividing territory into school districts is in its nature local. ’ ’ It will not be necessary to discuss this case at length, as the doctrine of the State ex rel. v. Shearer was distinctly overruled in the Spellmire case, 67 Ohio St., 77.
    So that, today, the doctrine of the Powers case, béiiig reaffirmed by thé Spellmire case, .’is the doctrine upon this subject in Ohio at this time. Section five’ of the syllabus in State ex rel. Wihnot v. Buckley, 60 Ohio St., 273, may be said to be in accordance with the doctrine of the Shearer case (46 Ohio St., 275), which was expressly overruled in the Spell-mire case (67 Ohio St., 77), but if there is any doubt upon that question it is dispelled by State ex rel. Knisely v. Jones et al., 66 Ohio St., 453. This latter case effectually destroys the doctrines of classification of cities.
    To the same effect is the case of State ex rel. Attorney General v. Beacom et al., 66 Ohio St., 491. In this case the attorney general in his brief tersely states the doctrine to be: “In all cases where it has been evident that such law applies to one city or may not or cannot be of uniform operation throughout the state, it has been held to be unconstitutional, and the mere fact that the city has not been named has been held not to change the character of the act..’ ’
    That was the language of the attorney general in the Beaeom case, and in support of his position he cites: State v. Ellet, 47 Ohio St., 90; Hixon v. Burson, 54 Ohio St., 470; State v. Bader, 54 Ohio St., 666; State v. Davis, 55 Ohio St., 15; Hubbard v. Fitzsimmons, 57 Ohio St., 436; Mott v. Hubbard, 59 Ohio St., 199; State v. Buckley, 60 Ohio St., 273; State v. Brown, 60 Ohio St., 462; State v. Cowles, 64 Ohio St., 162; State v. Ketter, 65 Ohio St., 558; State ex rel. v. Ratterman, 58 Ohio St., 731.
   Davis, J.

The contention is made here that section 2926o, Revised Statutes, violates section 1, article 5, of the constitution and also section 26, article 2, of the constitution.

It has not been made to appear to us, by argument or otherwise, that the strict enforcement of this statute would necessarily deprive any elector of liis vote, or that any elector ever has been deprived of his vote thereby. In one of the cities of the class defined in this section, this law has been in force for eighteen years and no complaint has yet been made that it has operated to the exclusion of a single lawful vote. When we consider its operation in connection with the sections of the statute making the election day from five-thirty o’clock A. M. to nine o’clock A. M., a legal part holiday, for election purposes only, and requiring the deputy state supervisors to “provide a sufficient number of voting shelves” (97 O. L., 238, sec. 6, and 234, sec. 19), it does not appear probable that any voter would be deprived of his vote by reason of the shortness of the time allowed. The first ground of the contention is therefore not well taken.

The section is general in its nature. Its subject-matter is the conduct of elections, as is the subject-matter of the whole statute of which it is a part, a matter which directly concerns every elector in the commonwealth. It operates throughout the state, because its operation is not limited to any locality and is limited only by the boundaries of the state. The provisions of this section, however, do apply only to cities having a population of three hundred thousand or more, wherever they may be situated within the state. It happens that there are only two cities in the state which are included in the class defined in the statute; and it also happens that these cities are situated at opposite extremities of the state. Hence it is argued that although the act is in form and subject-matter of a general nature and operates throughout the state, yet that it does not uniformly operate throughout the state and is in intention and effect a special enactment; conferring a special privilege upon the two cities, in regard to a matter which concerns alike all the electors of the state; and it is maintained that it is based on an unconstitutional classification in order to give the section the form and appearance of a law of uniform operation.

If the classification which is made in this statute can be sustained, then the statute strictly complies with section 26 of article 2 of the constitution. If such classification is not allowable under the constitution, then this section of the statute is unconstitutional, for the reason that it is special legislation upon a subject-matter of a general nature and does not operate uniformly throughout the state.

In Platt v. Craig et al., 66 Ohio St., 75, 79, it was said in the opinion that “laws of a general nature are required by the constitution (art. 2, sec. 26) to have a uniform operation throughout the state. Not only must such laws operate throughout the state, but they must, operate unif ormly, that is, there must be no exemption as to individuals of the same class. A general law must, therefore, in its operation be coextensive with the state and coextensive with every class brought within the purview of the statute; but the section does not imply that a law of a general nature must necessarily affect every individual in the state, or every small division of territory within the state.”

In State ex rel. v. Spellmire et al., 67 Ohio St., 77, at page 86, Burket, C. J., says: “With us ‘uniform operation throughout the state’ means universal operation as to territory; it takes in the whole state. And, as to persons ‘and things, it means universal operation as to all persons and things in the same condition or category. When a law is available in every part of the state as to all persons and things in the same condition or category, it is of uniform operation throughout the state.”

It is apparent from these recent utterances of this court, that the court has never meant to be understood as denying the general doctrine, held everywhere and often approved here, that a statute in relation to a class, if its operation is not territorially restricted, is a general law. Classification is often proper and sometimes necessary in legislation, in order to define the objects on which the law is to take effect and in order to definitely apply and effectuate the purposes of the legislation. For example, married women and widows are recognized as two distinct classes for the purposes of legislation peculiar to each class, as are also corporations classed as railroad companies, street railroad companies, electric interurban railroad companies, telegraph companies, telephone companies, express and insurance companies, etc. Many other illustrations may be found in the statutes of our state. In short there could be very little general legislation without classification.

But when the classification is unnecessary, arbitrary, fictitious or otherwise faultily made and is used to evade the constitutional limitations under the form of general legislation, such legislation in relation to a class may be special and unconstitutional. The reported decisions of this court abound with cases of false classification in acts obviously drawn with the purpose of enacting special laws under the guise of general laws. These are chiefly acts relating to municipal corporations.

In State ex rel. Knisely et al. v. Jones et al., 66 Ohio St., 453, it was clearly shown that classification and subclassification of cities and villages for the purposes of the organization thereof and for the purposes of legislation relating to the organization thereof, to the extent that every considerable city stood in a class by itself and all others could be readily identified and might as well have been mentioned by name, was not a classification on the basis of any real or permanent relation among its objects, but was a fictitious classification resulting in specialization and an evasion of constitutional limitations; and that legislation founded thereon was special legislation. But that is not inconsistent with the well established doctrine that within the legitimate purposes of general legislation, not relating to the organization of cities and villages, a bona fide classification on the basis of real and substantial differences in population, and of the conditions growing out therefrom, would be valid. The present case is an illustration of the application of this principle. The general assembly was legislating upon the subject of the conduct of elections throughout the state. That body was admonished in advance by a decision of this court that “The legislature have no power, directly or indirectly, to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; and laws passed professedly to regulate its exercise or prevent its abuse must be reasonable, uniform and impartial.” Monroe et al. v. Collins, 17 Ohio St., 665.

But experience had shown that under the social conditions which prevail in some quarters of very large cities, fraud, intimidation and even violence were more likely to occur in the twilight and darkness than in hroad daylight — “They love darkness because their deeds are evil” — and more likely to occur there than in smaller aggregations of population. The legislature therefore provided that the polls should be closed at four o ’clock, standard time, in the afternoon, “in cities which have now or may hereafter have a population of three hundred thousand or more.” The minimum of population thus fixed is tens of thousands below the population of either of the cities now included within the class, and is not beyond the range of possibility to other cities, if the rate of growth in urban populations in recent years should continue for a quarter or a half of a century. Thus the legislature clearly evinced an intention that the section which is now challenged should not apply to Cincinnati and Cleveland only, but should apply generally throughout the state, and that it should be a permanent regulation regarding the conduct of elections throughout the state.

There may well be differences of opinion as to whether this provision should not apply to cities of less population than the prescribed number; but the law-making power has exercised its judgment on that matter. The limit of population upon which the classification should be based is entirely within the discretion of the general assembly, having regard to all the conditions and circumstances, and so long as it is not unreasonable in its operation or subversive of the rights of electors, we cannot interfere with it.

This section was evidently designed to protect the voter in easting a free, untrammeled ballot and to ■enable him to have it honestly counted. It seems to have been conceived on proper lines and when construed with other enactments in pari materia, it is liberal and reasonable towards the voter.

The case of State ex rel. v. Buckley, 60 Ohio St., 273, cited in behalf of the relators, does not apply to this case. In that case there was an express exemption of territory as to which the statute should not be operative. That is not true of the statute which we are now considering.

Our conclusion is, therefore, that section 2926o, Revised Statutes, is a law of a general nature and that it operates uniformly throughout the state; that when considered in connection with other legislation related to it and on the.same subject, it does not deny or abridge the right of citizens to vote; that it is intended to, and does, facilitate rather than impede the exercise of the right of suffrage; and that it is reasonable, uniform and impartial.

The judgment of the circuit court and the judgment of the court of common pleas are therefore

Reversed and the original petition dismissed.

Chew and Summers, JJ., concur.

Spear, C. J., and Price, J., not sitting.

Shauck, J.,

concurs in the third and fourth propositions of the syllabus and in the judgment.  