
    The State ex rel. v. Constantine.
    1. The election and the appointment of an officer, as authorized by section 27, article 2 of the constitution, are different and distinct modes of Ailing an office.
    2. Where an office is Ailed by an election, the election must conform to the requirements of the constitution, and each elector of the district is entitled to vote for a candidate for each office to be Ailed 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 5 of the constitution.
    IN quo wabRANto. .Reserved bj the District Court of Clark county.
    
      8. A. Bowman and 22. A. Harrison, for plaintiff:
    I. The act under consideration is in contravention of the last clause of section 1, art. Y. of the constitution, which vests in every elector the right to vote at all elections.
    No constitutional right of a voter can be abridged, added to, or altered by legislation. Monroe v. Collins, 17 Ohio St. 666, 686 ; Copin v. Foster, 12 Rick. 485, 488 ; Page v. Allen, 58 Pa. St. 338; Bills v. Kennedy, 49 Wis. 555.
    II. The provisions of section 27, art. 2, of the constitution, for the election and appointment of officers, simply authorizes the legislature to direct that any officers, which are not in terms provided for by the constitution, may be cither elected or appointed, and to direct the manner in which the election or appointment of such officers may be made. The mode or manner of conducting an election is one thing, — the election itself is another thing. State v. Adams, Erightly’s Leading Cases on Elections, 286.
    
      Ill: The entire act under consideration is unconstitutional and void so far as it relates to the city of Springfield. To strike ont any part of the act, which provides for the election, would make the act mean directly the contrary of its actual meaning, and defeat the manifest purpose of the legislature. If a part is void the whole is void. Kelly v. State, 6 Ohio St. 269.
    1Y. The act is in contravention of section 6, art. XIII. of the constitution for that so far as it applies to the city of Springfield it is a local act. It is also an act containing provisions concerning the organization of one of the cities of the state.
    V. The act is also in conflict with section 1, art. XIII. for that it confers corporate powers.
    
      Charles W. Constantine, for defendants :
    I. As to the point that the act is in conflict with section 1, art. 13, it is sufficient to say that the board provided for by the act is not a corporation, nor are its powers within the meaning of that section. Walicer v. Cincinnati, 21 Ohio St. 14; State v. Covington, 29 Ohio St. Ill; State v. Baughman, 38 Ohio St. 459.
    II. The objection that the act is in violation of section 6, art. 13, is answered by State v. Baughman, supra.
    HI. The framers of the constitution having provided for the election of county and township officers without having made any such provisions in relation to city or village officers raises an inference that the intention was to leave th.e manner of electing or appointing the latter to the wisdom and discretion of the legislature. State v. Covington, 29 Ohio St. 114.
    The word “ manner ” in section 2, art. 27 of the constitution authorizes the election by such authority or means as the law may prescribe, and'does not mean only that the mode of a popular election shall be prescribed. It may be by city council as in State v. Squire, 39 Ohio St. 199; in the election of a city clerk ; or the limitation may be territorial, or restrictions may be placed upon the exercise of the elective franchise, or qualification to hold office may be prescribed. 29 Ohio St. 102.
   McIlvaine, J.

This proceeding is prosecuted to oust defendants from the office of police commissioners of the city of Springfield, and wholly exclude them from the exercise of franchises, powers and authority, assumed to be conferred by the act of April 21, 1884, entitled: “An act to amend sections 1998, 2012, 2013, 2014, 2021 and 2022 of the Revised Statutes of Ohio.”

Defendant Constantine, as mayor of the city of Springfield, and defendants Kinnane, Schneider, Fried and Conklin, who were elected to the office of police commissioners by the electors of the city of Springfield, in accordance with the terms of said statute, rely on its provisions as their sole authority for assuming to act as such board of police commissioners.

Section 1998, as amended by said act, reads as follows : “ In cities of the first and second grades of the second class, and in cities of the third grade of the second class, having a population of nineteen thousand, and not exceeding twenty thousand, and in cities 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, all powers and duties with respect to the appointment, regulation, government and control of the police shall be vested in and exercised by a board consisting of a mayor, who shall be president, and four commissioners, who shall be electors and freeholders of the city, and a majority shall constitute a quorum, and in cities of the third grade of the second class, having a population of nineteen thousand and not exceeding twenty thousand, and in cities 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, said commissioners shall be elected by the people to serve for the term of two years, and until their successors are duly elected and qualified; the first election to be held wfithin 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 tlian two persons for such commissioners, and any ballot containing ' the names of more then 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 cast, shall be declared elected; provided, that in the case of said last named cities, the provisions of section nineteen hundred 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 commissioners shall be filled as provided by said section nineteen hundred 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, having 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 affected by such change. Provided, 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 the relator that the provision of the section that “ 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 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 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 prescribed 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 commissioners, exercising the functions conferred by the act of April 21, 1884, are officers, within the meaning of this provision 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 Ailing it not being provided for by the constitution 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 district, 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 thereafter at the annual municipal election.

The qualifications of electors are not defined by this statute, but undoubtedly the legislature meant such persons as had the qualifications required of electors 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 persons who may or may not have the qualifications of electors, and the manner of ascertaining the sense of such body or 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 appointment as therein authorized. Indeed the' manner of filling an office by appointment is unrestricted, save only that it can not 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 discretion, 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 to 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 circumstances 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 1, article 13 of the constitution, which provides: “ The general assembly shall pass no special act conferring corporate powers.” In answer to this claim defendants rely on State v. Covington, 29 Ohio St. 111, which was ápproved 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 tliat 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 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 municipal 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 concur. 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 described, is invalid upon two grounds, first, that it violates the fifth article of the constitution, which relates to the elective franchise; and, secondly, 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 powers.” These questions were very fully and ably argued orally and on briefs, and after the briefs were read and authorities cited were examined, nothing remained to be done but for each judge to express his opinion. The court was unanimous in holding there should be judgment of ouster. I 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 given 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 above quoted from the act apply to the city of Springfield alone, but without such finding this court would take judicial notice that the words never did and never can apply to any other municipal corporation 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 Ill. 590. And as the act assumes to confer upon the city of Springfield power to hold an election of its electors for public officers 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 legislature 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 Cincinnati 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 involved, it was properly held in that case that art. 13, sect. 1, could not be successfully invoked to defeat their title, however 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 impregnable, I am content to rely upon it.  