where he offers to vote, the judges or one of them shall put the following questions:

1. How long have you resided in this precinct?

6. Are you an actual resident of this precinct?"

*

In support of the proposition that a qualified elector of a school district must be a resident of such district I call your attention to the opinion of the court in the case of Lehman v. McBride, 15 O. S., 573, and particularly to that part of said opinion as found at pages 597 and 598, in determining the intent and meaning to be given to the words "all elections" as found in the above provision of Section 1 of Article V of the constitution. The court said:

"We are, doubtless, to give such construction to the words 'all elections,' as will be in harmony with the other clear and unmistakable provisions of the constitution on the same subject. Now, other portions of the same instrument clearly point out in what elections the several electors of the state may respectively participate, by their votes. And this is uniformly done, not by reference to the places where elections may be held, but to the character of the office to be filled by election, and the residence of the electors. Thus, as we have seen, senators and representatives are to be elected 'by the electors in' (that is, residing in), 'the respective counties or districts' which they directly represent in the legislative branch to which they are chosen. The governor and other executive officers of the state, 'by the electors of the state'; judges of the supreme court by the electors of the state at large'; judges of the courts of common pleas, 'by the electors of their respective subdivisions'; judges of probate courts, clerks of the court of common pleas, and county officers generally, 'by the electors of each county' for which they are severally to be elected; justices of the peace, and township officers generally, 'by the electors of their respective townships'; judges, other than those provided for in the constitution, "by the electors of the judicial district for which they may be created'; and officers in the militia, 'by the persons subject to military duty in their respective districts.' On a well recognized rule of construction, these various provisions, which specify the portion of electors by whom the different officers shall be chosen, exclude all others from a right to vote at such elections; and are, therefore, limitations or qualifications to be carefully respected in giving a construction to the words under consideration. The general principle which pervades the constitution on this subject, is, that no one shall be allowed to participate in the election of offcers whose jurisdiction will not extend over him, or territorially include the place of his residence; but that the electors of each district or civil subdivision of the state, shall have the right to select their own official representatives, or public functionaries.

And, keeping in view the limitations to which we have referred, there can be but little danger of misunderstanding what is meant by an elector's right 'to vote at all elections.'"

This same rule was recognized by the supreme court of the state of New Jersey in the case of State ex rel Allison v. Blake, 25 L. R. A., 480-486, in interpreting a similar provision of the constitution of that state.

Replying to your question I am of the opinion that inasmuch as the person referred to in your inquiry is not a resident of the rural school district mentioned in said inquiry, and is not therefore a qualified elector of said district, said person is not eligible to the office of clerk of the board of education of such district.

Rep.

SUPREME COURT

Billings et al. vs. The Cleveland Railway Company. 92 O. S.

Municipal Corporations Streets and Alleys-Extension of Railway Routes-Home-Rule Charter Charter Controls, When-Article XVIII, Constitution, 1912-Property Owners' Consents-Sections 3777 and 9105, General Code, Inapplicable, When.

1. The granting of permission and the making of a contract to construct and operate a street railway in the streets of a city or village is a matter that may be provided for in a charter adopted by the municipality under Article XVIII of the Constitution.

2. Where the terms of a charter adopted in full compliance with Article XVII of the Constitution empower the council of the city or village to grant permission for the construction, extension, maintenance or operation of a public utility and provide that no consent of the owner of property abutting on any highway or public ground shall be required therefor, unless such public utility is of such a character that its construction and operation is an additional burden on the rights of such abutting property owners, the provisions of the General Code requiring such consents do not apply.

(No. 14919-Decided July 20, 1915.)

Error to the Court of Appeals of Cuyahoga county.

In March, 1915, the council of the city of Cleveland passed an ordinance by the terms of which there was granted to the defendant in error the right to extend its double line of electric street railroad in Euclid avenue from East Twenty-second street to East Fortieth street. Thereupon the plaintiffs in error, who are owners of property abutting on that portion of Euclid avenue, brought a proceeding in the court of common pleas of Cuyahoga county to enjoin the defendant in error from constructing its railroad on that portion of Euclid avenue.

The petition alleged that the council of the city of Cleveland had never granted any proper or lawful permission whatsoever to the defendant to proceed with the construction and operation of the extension of its road referred to; that a majority of the property owners represented by the foot frontage of the property abutting on that portion of Euclid avenue have not consented to such construction and extension; nor has the consent of any person or corporation owning property abutting on Euclid avenue been obtained and presented to the city council.

The defendant in error in a second amended answer, which

was filed in the court of appeals, where the case had been taken on appeal, admitted substantially all the facts alleged in the petition, and for a second defense alleged that an ordinance of the city council of the city of Cleveland, which was annexed to the answer, granted to the defendant the right to construct the proposed railroad and that the electors of the city of Cleveland, on the first day of July, 1913, at an election then held, approved a charter for the city of Cleveland, which became operative on January 1, 1914, and has been ever since, and now is, the organic law of the city of Cleveland.

It further set out Section 187 of the charter, which provides that consent of the abutting owners of property shall not be required for the construction, extension, maintenance or operation of any public utility by original grant or renewal, unless such public utility is of such a character that its construction or operation is an additional burden upon the rights of the property owners in such highways or public grounds.

It further averred that the construction and operation of said proposed line of railway in Euclid avenue would not constitute an additional burden upon the rights of said abutting property owners.

The plaintiffs demurred to the second amended answer of the defendant, which was overruled by the court of appeals, and judgment entered for the defendant. This proceeding is brought to reverse that judgment.

Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews; Mr. Edward C. Turner, attorney general; Mr. George H. Harris; Mr. Wilbur D. Wilkin and Mr. Paul J. Bickel, for plaintiffs in error.

Messrs. Squire, Sanders & Dempsey; Mr. H. J. Crawford; Mr. John N. Stockwell, director of law, and Mr. Arthur F. Young, assistant city solicitor, for defendant in error.

Johnson, J. The judgments of the courts below rest upon the proposition that by virtue of Section 187 of the charter of the city of Cleveland, which is set forth in the above statement, the ordinance granting to the defendant in error the right to construct its railway on the street in question is valid, notwithstanding the fact that the consents of a majority of the property owners, as represented by the foot frontage, had not been obtained as required by Sections 3777 and 9105, General Code, which were enacted prior to the adoption of Article XVIII of the Constitution in September, 1912.

It is unnecessary to refer at length to the cases which have considered the provisions of that article of the constitution known

as the "Home-Rule Amendment." They are recent and familiar. In The State, ex rel. Toledo, v. Lynch, Auditor, 88 Ohio St., 71, it was held that the provisions of Sections 3 and 7 of Article XVIII of the Constitution, which confer upon municipalities authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws, and to frame and adopt a charter for their government, continue in force the general laws for the government of cities and villages until changed in one of three modes:

1. By the enactment of general laws for their amendment. 2. By additional laws to be ratified by the electors of the municipality to be affected thereby.

3. By the adoption of a charter by the electors of a municipality in the mode pointed out in the article.

The judges who did not concur in the opinion of Shauck, J., who spoke for the court in that case, did not withhold their assent because they felt that the majority were going too far, but, as shown by the opinions they filed in the case, they thought that the majority did not go far enough, in that the judgment was that Section 3 of Article XVIII was not self-executing and that the powers granted were not as extensive as those judges believed the section conferred.

Under the constitution, previous to the amendment in 1912, municipal corporations in their public capacity possessed such powers, and such only, as were expressly granted by statute and such as might be implied as essential to carry into effect those which were expressly granted. Ravenna vs. Pennsylvania Co., 45 Ohio St., 118.

Cities and villages were created by acts of the legislature, which could confer upon them, or withdraw from them, powers at will. This authority was exercised under Article XIII, Section 6, which provides that "the general assembly shall provide for the organization of cities, and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power." As stated by the supreme court of the United States in Mt. Pleasant vs. Beckwith, 100 U. S., 514, 524: "Counties, cities, and towns are municipal corporations created by the authority of the legislature, and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides."