Wagar v. Prendeville | Cases | Westlaw

This is an appeal from a judgment of the district court of Grand Forks county, adjudging that the plaintiff was not elected to the office of county superintendent of schools of that county at the 1910 election, and that her contest against the defendant be dismissed upon the merits and with prejudice. Plaintiff and defendant were candidates for election as county superintendent of schools of Grand Forks county at the general election of November, 1910. The canvassing board found that the plaintiff had received 3,044 votes and the defendant 3,118, and the county auditor issued a certificate of election to the defendant. In the city of Grand Forks, there were cast at that election, by women, 399 votes for plaintiff and 589 votes for the defendant. None of such women voters were registered, and none of them made any affidavit of qualifications as voters. A contest was brought by the plaintiff based upon the claim that such women had no right to vote unless registered, without furnishing the affidavit required by section 738, Rev. Codes 1905, and it is claimed by appellant that *225 none of the votes cast by women should be counted. If such votes were thrown out, it would leave plaintiff a majority of 116 votes.

The trial court held in favor of the defendant on the ground that the law does not require the registration of women voters, and the correctness of this conclusion is the only question which we need consider. The law regarding registration of voters is contained in sections 732 to 746, both inclusive, Rev. Codes 1905. Section 732 provides that the election officers shall, on certain dates, “make a list as hereinafter prescribed, of all persons qualified to vote at the ensuing election in such election precinct, which list, when completed, shall constitute and be known as the register of electors of such precinct.” Section 733 provides that such registers shall each contain a list of the qualified electors of such precinct, etc. Section 734 provides a method for preparing such list in new precincts, and that it shall only embrace the names of such persons as are known to them (the board of registry) to be electors in their precinct, or proved to be such, etc. Section 737 provides how any elector residing in a precinct and entitled to vote therein may have his name recorded in such list. Section 738 provides for the certifying of the list prepared by the board of registry as a correct list of the qualified electors of the precinct, so far as known, and what shall be done with it. From these provisions and from a consideration of the whole article relating to registration, it is clear to us that no registration is contemplated except of electors.

The registry law was enacted in 1881, when women were not eligible to school offices, and were not entitled to vote on school questions as they may do at the present time. If women are included within the definition of electors, they are required to register. Section 121 of the Constitution provides the first definition of that word, and defines qualified electors as male persons of the age of 21 years, or upwards belonging to either of certain classes, thereby excluding women from the electorate. Section 128 of the Constitution which contains the provision relied upon by the appellant to bring women within the terms of the registration law reads: “Any woman having the qualifications enumerated in section 121 of this article as to age, residence and citizenship, and including those now qualified by the laws of the territory, may vote for all school officers, and upon all questions pertaining solely to school matters, and be eligible to any school office.” This does not make them electors, but places them in a separate class of citizens, and entitles them to vote on the questions specified only. They are thereby vested with a limited elective franchise, but are not electors within the terms of section 121, supra.

Section 799, Rev. Codes 1905, also classifies persons entitled to vote for school officers into two classes, namely, all persons who are qualified under the general laws of the state, and all women 21 years of age and having the necessary qualifications as to citizenship and residence required of male voters by law, and makes them qualified voters for school officers and eligible to the office of county superintendent of schools, school director, member of the board of education, or school treasurer. These provisions all seem to contemplate placing women who are entitled to vote in a class separate and apart from the men, and the registry law contains nothing in conflict with these provisions. The foregoing references clearly indicate that the registry law is only applicable to males.

Our conclusion is supported by other considerations. The main qualification for holding office in this state is that the person be a qualified elector. If this term is applicable to women, they are entitled to hold the office of State Senator, member of the House of Representatives, Governor, Lieutenant Governor, judge of the Supreme Court, and various other offices. Const. §§ 28, 34, 73, 82, and 90. This court has recently defined the meaning of the term “qualified elector,” as used in section 121 of the Constitution. See State v. Blaisdell et al., 18 N. D. 31, 35, 119 N. W. 360.

Finding no error, the judgment of the district court is affirmed. All concur, except MORGAN, C. J., not participating.