In concurring with the majority opinion as the basis for denying the relator's prayer for a writ of prohibition which is clearly required upon the stipulated facts filed in this case and set out in the opinion, I believe a constitutional question is presented.
The question presented by the relator and the reason upon which he claims the right to prevent the respondents, as the Board of Elections of Cuyahoga County, from printing the name of Blanche Krupansky on the judicial ballot for Judge of the Cleveland Municipal Court at the election to be held November 7, 1961, is: Whether a female who is a qualified elector, as defined by the Constitution of this state, who, for a period of time before marriage had been registered as such by the board of elections, may, by contract with her prospective husband before her marriage, agree that upon marriage she would retain her maiden name for all purposes, thereby making inapplicable the provisions of Section 3503.18, Revised Code, and other related sections, and thus retain her registration as a registered voter and avoid the cancellation of her registration as a voter or the need to re-register as an elector under her Christian name *Page 504 and the surname of her husband. Equally important is the question whether registration as a voter, in addition to being a qualified elector, is a necessary prerequisite for being a candidate for public office.
The overruling of relator's protest by the election board, after trial, was influenced by the case of State, ex rel.Bucher, v. Brower (Common Pleas Court of Montgomery County, 1941), 21 Ohio Opinions, 208, where, in the fourth headnote, it is stated:
"Where a woman does not change her name at the time of her marriage and is otherwise legally registered, it is not necessary for her to re-register under the provisions of Section 4785-47, General Code [Section 3503.19, Revised Code]."
The overruling of the protest by the election board was based on sound principles of law.
The qualifications for being an elector are provided for by the Constitution of Ohio, Section 1 of Article V, as follows:
"Every citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceeding the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections."
Under that definition, Blanche Krupansky was and is, under the Constitution, a qualified elector. Those are the only basic qualifications necessary to running for and holding public office.
Section 3503.06, Revised Code, provides for the circumstances under which the election board of a county is required to register voters. There are, however, many counties in Ohio where voters are not required to register, so that the provisions of Sections 3503.18 and 3503.19, Revised Code, have no application to candidates in such territories. Registration is not universal throughout Ohio, so that the provisions of Sections 3503.18 and3503.19, Revised Code, must be interpreted as not attempting to qualify the constitutional provision defining "qualified electors." The sole purpose of these sections is to identify those entitled to vote in counties where registration is required or has been adopted.
Section 3503.18, Revised Code, requires certain officers of political subdivisions to report to the board of elections persons *Page 505 over twenty-one years who have died within any registration precincts. A like report by certain officers is required as to persons found to be insane and persons who have changed their names by marriage or otherwise. Also certain officers are to report to the election board persons who have changed their names by order of the court or who have been disenfranchised by conviction for crimes declared by law to result in loss of the right of franchise. The board of elections is ordered by this section to cancel and remove from the files all ineligible registrants. Section 3503.19, Revised Code, provides that whenever, after original registration, a person changes his name, such person is required to re-register to be able to lawfully exercise the right of franchise. However, he may exercise such right of franchise under his prior name if the change of name occurs within forty days of election day.
Section 1901.06, Revised Code, provides that a candidate for the office of Judge of a Municipal Court shall, in addition to certain legal qualifications, be a qualified elector and resident of the territory of the court. There is no requirement that such candidate be registered as an elector. If this were not so, there are a number of counties where there would be no eligible candidates for such office.
A similar provision (Section 2313.08, Revised Code) defines the qualifications of jurors, that is that the persons selected as jurors shall be taken from the list of electors within the jurisdiction of the court. In the case of State v. Roche, 72 Ohio Law Abs., 465, the Court of Appeals of the Second Appellate District (Franklin County) said that an elector is a citizen who has been a resident of the state for at least one year and of the county and ward for such time as has been provided by law, and who is over twenty-one years of age, and that registration acts do not add to or limit the constitutional qualifications required of electors but are for the purpose of ascertaining who are qualified electors when they present themselves at a polling place to vote. And on page 466, the court says:
"Qualifications for jury service are statewide in their application. If the contention of the appellant is tenable, then an elector in Franklin County who is required to register and fails to re-register, would become ineligible for jury service thereby, whereas an elector in Monroe County, where no registration is *Page 506 required at all, would be eligible for jury service at all times. Such contention would lead to this impossible situation and would violate the constitutional definition of an elector."
Even if it be admitted that as a matter of law (which, however, is not the fact) the election board was required to cancel the registration of Blanche Krupansky under the provisions of Section 3503.19, Revised Code, such cancellation in no way affected her right to be a candidate for the office of Judge of the Cleveland Municipal Court. She was and is a qualified elector within the terms of the Constitution.
There remains the question as to the right of Blanche Krupansky to use her maiden name in presenting her candidacy for Judge of the Cleveland Municipal Court territory to the voters. The statutes relied upon by the relators, that is, Sections3503.18 and 3503.19, Revised Code, are not helpful in considering this question. These sections are found in the chapter dealing with the rules prescribing registration of qualified voters in certain counties.
Blanche Krupansky is the name by which the candidate here concerned has been known all her life. By custom, upon marriage, she may acquire the surname of her husband, but this does not prevent her from continuing to use her maiden name for any legitimate purpose so long as it is not fraudulently done or its use continued for a fraudulent purpose.
If any question of public policy should be advanced seeking to hold that a married woman has been bound by custom to take the name of her husband in all events and for all purposes, there being no statute requiring it, it should be noted that the trend against the loss of the identity of a woman by marriage has received common acceptance. An examination of the statutes shows the trend toward emancipation of married women from the common-law rules of bondage, from complete deprivation of all property rights, to that of being accorded the right to contract with her husband and others, to own property separate and apart from her husband, and to have the right of franchise, being limited only to the extent that her marital status cannot be changed or altered by common consent. From these facts, it must be evident that many unnecessary restrictive customs have fallen by the wayside. Certainly, if public policy sanctions commercial activities by married women, which of necessity are *Page 507 in no way concerned with her domestic life, then her family name, by which she is known in domestic circles, will not be harmed by whatever name she used in her commercial activities.
The statutes of Ohio dealing with restrictions on the use of a new or changed name (Sections 3513.06 and 3513.271, Revised Code) are to prevent misrepresentation to the voters by a change of name, but there are no statutes seeking to regulate the continued use of a name by which a person has been identified over a long period of time (in this case all her life) and by which he is known in the community. It is the almost universal rule that one may adopt and use any name by which he is to be known provided such name is used in good faith. Under the circumstances of this case, Blanche Krupansky had the legal right to continue to use her maiden name as shown by the record, and, in filing her declaration of candidacy under that name, she acted properly; and the board of elections, in accepting her declaration of candidacy and nominating petition for Judge of the Cleveland Municipal Court for filing, acted according to law.