CAMPBELL
J., dissenting. [1]
CHAMPLIN
J.
This
action was brought against the defendants as inspectors of
election
of the Third ward of the city of Flint to recover damages for
refusing to receive plaintiff's vote for the office of
trustees of the Union school-district of the city of Flint.
The agreed statement of facts is as follows: "The
plaintiff is a married woman residing in the Third ward of
the city of Flint, Genesee county, Mich., and has resided
there continuously for three years last past, and so resided
there on the first Monday of April, A. D. 1888, and is
thirty-one years of age. That she then was the owner of and
had property liable for assessment for school taxes in said
Third ward of said city of Flint. That she is the mother of
Jennie Belles, a child seven and one-half years of age, who
resided with her, and did on said first Monday of April, and
had always, resided with her in said ward, and which child
was included in the school census of the school-district
composed of the entire city of Flint, aforesaid, and of which
said Third ward was a part. That at the election for city and
ward officers in said city held on said first Monday of
April, 1888, said defendant acted as and were the inspectors
of election in and for said Third ward. That at said election
there were to be voted for and elected for the subdistrict
composed of the Third and Fourth wards of said city, one
school trustee for the full term, and one school trustee to
fill a vacancy. That at said election in said ward said
defendants, as inspectors of election, had prepared and had a
separate ballot-box to receive all ballots that
might be offered at such election for trustees of said
subdistrict. That on said first Monday of April, at said
election, said plaintiff, who resided in said Third ward as
aforesaid, offered and tendered her ballot to the said
inspectors of election at the voting precinct in said Third
ward, for one school trustee for full term, and one trustee
to fill vacancy, to be then and there elected for the
subdistrict composed of said Third and Fourth wards of said
city of Flint. Said ballot was a printed ticket containing
the names and office of candidates for said full term and
vacancy, and was separate from the ballots for all other
city, ward, or other offices. Plaintiff then and there
offered to be sworn as to her qualifications as such voter
and as to her residence in said Third ward. Said defendants,
as such inspectors of election, refused to swear said
plaintiff as to her qualifications as such voter, and refused
to receive or count her said vote. That before deciding not
to swear said plaintiff, or receive her vote, said inspectors
of election took advice of reputable legal counselors, and
were advised by them that women had no right to vote for such
trustees, and that said defendants refused to receive the
vote of said plaintiff or to swear her as to her
qualifications as a voter and her residence, in good faith
relying on said legal counsel, and believing it to be
correct, and believing that women had no right to vote for
such school trustees. That the name of said district is
'Union School District of the City of Flint,' and is
composed of the entire city, and is organized under an act of
the legislature of the state of Michigan, being act No. 316
of the Local Acts of 1877, as amended by act No. 323 of Local
Acts of 1879, and act No. 349 of the Local Acts of 1885. At
said election no question was involved or to be voted on
which directly involved the raising of money by tax." At
the conclusion of the statement of facts, which was received
as the evidence in the case, the defendants' counsel
requested the court to charge as follows, viz.: "Under
the evidence in this case the plaintiff is not entitled to
recover, and your verdict must be for the defendants."
The circuit judge refused to give the request, and instructed the jury to find a verdict for the plaintiff,
which they did.
The law
under which the Union school-district of the city of Flint is
organized is act No. 316 of the Local Acts of Michigan for
the year 1877, as amended by act No. 323, Local Acts of 1879,
and act No. 349, Local Acts of 1885. Section 1 of this act
provides that, in addition to the powers and privileges
conferred by the act, the Union school-district shall have
all the powers and privileges, not inconsistent therewith,
conferred upon school-districts by the general laws of the
state. Further sections bearing upon the question read as
follows: "Sec. 3. The school board of said Union
school-district shall be constituted of nine trustees, three
of whom shall be elected on the first Monday of April in each
year, and hold their offices for the term of three years from
the first Monday of May next following their election, and
until their successors shall have been elected and qualified.
The term of office of the trustees of said Union
school-district heretofore elected on the first Monday of
September, eighteen hundred and seventy-six, shall terminate
on the first Monday of May, eighteen hundred and
seventy-nine; the term of office of the trustees elected on
the second Monday of May, eighteen hundred and seventy-seven,
shall terminate on the first Monday of May, eighteen hundred
and eighty; and the term of office of the trustees elected on
the second Monday of May, eighteen hundred and seventy-eight,
shall terminate on the first Monday of May, eighteen hundred
and eighty-one. Sec. 4. For the purpose of the election of
trustees under this act the said Union school-district shall
be divided into three subdistricts; the first to consist of
that portion of said district lying north of Flint river, the
second to consist of that portion of said district lying
south of Flint river and east of Saginaw street, and the
third to consist of that portion of said district lying south
of Flint river and west of Saginaw street: provided, that in
said third subdistrict one of said trustees shall be and
remain during his term of office a resident of the Fourth
ward of the said city of Flint. The election of trustees
shall be by ballot, and each qualified voter may vote in the
ward in which he resides, and not
elsewhere, for one person for the office of trustee from his
subdistrict. Each trustee shall be a qualified voter and
resident of the subdistrict in which he shall be elected. At least eight days before the election notice
thereof shall be given by the secretary in the official paper
of the city, and, if any vacancy is to be filled, like notice
thereof shall be given. The election shall be held at the
same time and place, and conducted in the same manner, and by
the same officers in each ward, as is provided by the charter
for the election of ward officers. The inspectors of election
in the several wards of the city are hereby required to
prepare a separate ballot-box at each of the annual elections
provided for in this act, to receive all ballots that may be
offered at such election for trustees of said Union
school-district from the subdistrict in which the ward may
be, and no other officer shall be voted for on such ballot.
The said inspectors of election shall make the same canvass
and public statement of votes given for trustee as for ward
officers, and also a certificate on the number of votes given
for each person for the office of trustee, which shall be
immediately filed in the office of the secretary of the board
of trustees; and on the Wednesday next following such
election the said board shall meet at the office of its
secretary, and ascertain the person who has received the
greatest number of votes given for said office in each
subdistrict, and declare him elected trustee therefrom of
said Union school-district for the term of three years from
the first Monday of May then next ensuing; and immediately
after such determination said secretary shall cause notice
thereof to be given to the person so elected. When a vacancy
in the office of trustee shall exist it shall be filled by
election at the same time, and in the same manner, as
aforesaid, for the residue of the vacant term: provided, that
the voter shall express upon his ballot that the person voted
for is to fill vacancy. Sec. 5. The qualifications of voters
at such elections, or at any school-district meeting, shall
be such as are or may hereafter be prescribed by the general
school laws. If any person offering to vote at an election or
school-district meeting shall be challenged as unqualified by
any legal voter, the presiding officer shall declare to the
person challenged the qualifications of a voter; and if such
person shall state that he is qualified, and the challenge
shall not be withdrawn, the said president shall tender to
him the oath in such cases prescribed in said general law;
and every person taking such oath shall thereupon be
permitted to vote. If any person so challenged shall refuse
to take such oath, his vote shall be rejected;
and any person who shall willfully take a false oath, or make
a false affirmation, under the provisions of this section,
shall be deemed guilty of perjury."
The
qualification of voters under the general school law is
prescribed by section 5049, How. St., and is as follows
"Every person of the age of twenty-one years, who has
property liable to assessment for school taxes in any
school-district, and who has resided therein three months
next preceding any school meeting held in said district, or
who has resided three months next preceding such meeting on...
