In re Cancellation From Registry List

• Decision Date: 23 January 1894
• Parties: In re CANCELLATION FROM REGISTRY LIST. In re GAGE.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 112

35 N.E. 1094

In re CANCELLATION FROM REGISTRY LIST. In re GAGE.

Court of Appeals of New York.

Jan. 23, 1894.

Appeal from supreme court, special term, Onondaga county.

Application for the cancellation of the name of Matilda J. Gage on the registry list, third election district, town of Manlius. From an order of the general term affirming an order of the special term granting the application, Mrs. Gage appeals. Affirmed.

Jenney & Marshall, (Louis Marshall, of counsel,) for appellant.

Goodelle & Notting (W. P. Goodelle, of counsel,) for respondent.

FINCH, J.

The question argued on this appeal is whether a woman may vote for school commissioner in her proper district within the state, and it arose in this manner: An act of the legislature (Laws 1892, c. 214) provides that ‘all persons, without regard to sex, who are eligible to the office of school commissioner, and have the other qualifications now required by law, shall have the right to vote for school commissioner in the various commissioner districts of the state.’ The act further requires that the persons so entitled to vote shall be registered ‘as provided by law for those who vote for county officers;’ that the county clerk shall prepare and distribute the prescribed ballots, and the inspectors of election shall count and receive the same. Acting under this authority, Mrs. Gage was duly registered in the third election district of the town of Manlius on October 21, 1893. The board of inspectors were formally requested to remove her name from the registry, but refused to comply with the demand, whereupon an application was made to a justice of the supreme court, pursuant to section 37, c. 680, Laws 1892, to strike her name from the registry, on the sole ground that she was not a lawful voter, by reason of her sex. That application was granted, the learned judge holding that the act conferring upon her the right to vote for school commissioner was unconstitutional. The inspectors obeyed the order. Mrs. Gage appealed to the general term, where it was affirmed, and from that affirmance brings her appeal to this court.

While it is true that the election of 1893 has passed, and the possibility of voting on that occasion is absolutely gone, it does not necessarily follow that the question involved has become purely abstract, and divested of any practical results consequent upon its decision. The order made determined the status of the voter under the act of 1892, and settled her right for future elections; and if a wrong has been done it is not easy to discover any practical remedy except through a reversal of the order which was granted. Both parties concur in seeking a final decision upon the constitutional question involved, and we are of opinion that the case presented requires of us its determination. The learned counsel for the appellant states very frankly and accurately the sole inquiry upon which the decision depends. He concedes that under article 2, § 1, and article 10, § 2, of the constitution, no woman has the right to vote for constitutional officers, because the franchise is conferred explicitly upon ‘male citizens;’ but he contends that school officers are not such constitutional officers, because the practical interpretation of that instrument has long and invariably been to the contrary. That is true and only true of the officers of the school district, as the fundamental unit of the school system. The trustees of such a district are the authorized business managers of the school within its boundaries, and the legislature has always assumed, and been permitted to assume, the right to determine who might vote for such trustees, and what qualifications should or should not be requisite and necessary. To that class of school officers intrusted with the government and control of the simple school district by itself alone, and within its own boundaries, and constitutional provisions have never been applied; but I have yet to find an instance in the statutory history of the state prior to the act in question where an officer whose authority was not confined to the school district, but extended over many of them, with a power of superintendence and control, has been regarded as anything other than a town or county officer, and within the constitutional provisions. Under the Revised Statutes the superintending officers were three commissioners and three inspectors of common schools. 1 Rev. St. p. 340, § 3. These were town officers, to be chosen by the constitutional electors, (section 1,) and by ballot. Id. p. 343, § 2. In 1843 these officers were abolished, (chapter 133, § 1,) and in their place was substituted (section 2) a town superintendent of common schools, to be annually elected in the same manner as ‘orther town officers' are chosen, and upon whom the duties of inspection and superintendence were imposed. He also was a town officer, and chosen by the constitutional electors. In 1856 (chapter 179) the system was again changed by providing first for the appointment and then for the election of school commissioners. The terms of the statute show that they were still regarded as within the constitutional provisions, and were county officers, as their predecessors had been town officers. Where a county constituted a single assembly district the supervisors were to choose ‘for their county’ an officer to be...