CONCURRING OPINION.
PABIvER, J.I have had great difficulty in agreeing with some of the propositions upon which the opinions of my associates are based. Upon first examination of the case, I was convinced that women were prohibited from holding office by reason of the condition of the statute law on the subject. My conclusion was reached as follows : — The organic act prescribed the qualification of voters and office holders at the first territorial election, and limited the same to males, thereby excluding females; it granted power to the legislature to prescribe the qualification of voters and office holders for the future, but restricted the power so that only citizens of the United States might receive the right; the legislature at its session in 1851 prescribed the qualification of electors and elective office holders, and limited the same to males; it further restricted office holding generally to such persons as were not prevented by the terms of the organic law. This was the state of the specific statute law on the subject at the time appellee was appointed as Territorial Librarian.
As a conclusion from the foregoing facts, I was of the opinion that Congress in the organic act, and the Territorial legislature in its acts on the subject, having extended these rights to males only, when dealing with the-subject, should be held, under the doctrine of expressw unius est exclusio alterius, to have, in legal contemplation, denied these rights to women, as effectually as if the denial had been express 3 that this denial of the right to women, being specific, and in a statute dealing specifically with this subject, it was not controlled by the Act of 1876, which was a statute of a most general character, and which adopted the common law as the rule of practice and decision in this jurisdiction, and did not purport to deal specifically with the right to hold office. This position was disclaimed by counsel for the State on re-argument and, after repeated conferences and discussions with the other members of the Court,, and upon more mature consideration, I am convinced that this conclusion is not warranted.
In this connection it is to be noted, that there is no express grant of a right to hold appointive office in either the organic act or the Territorial legislation to either males or females. Section 19 of the Act of 1851 is complete on the subject of the right to vote and hold elective office, and it follows perfectly the restriction contained in the organic act. Section 21 of the Act of 1851 must, therefore, be held to relate to offices other than elective offices; otherwise its provisions are meaningless and unnecessary, being fully covered by the provisons of section 19, insofar as the restriction to citizens of the United States is concerned. It must, therefore, relate .to appointive offices. This section is negative in form and would appear to be a limitation upon, rather than a grant of, the right to hold office. But .while negative and restrictive in form, it is permissive, at least, if not positive and creative in substance. The section prohibits aliens from holding appointive office, -but impliedly authorizes citizens of either sex, to hold such office. If the legislature of 1851, in the exercise of the powers conferred by the organic act, had simply provided that “no person not a citizen of the United States shall vote or hold office,” the implication would be irresistible that it intended thereby to grant that right to citizens. Just so in the present case. It provided that no person not a citizen, (that', is, no person prohibited by the organic law) might hold appointive office, thereby impliedly granting that right to citizens. Women are, of ■course, included in the words ‘'citizens of the United •States.”
When the Governor was authorized to appoint a State Librarian under section 2195, C. L. 1897, what class of person was he authorized to select? The act creating the •office furnished no answer. The one other provision on the subject is section 21 of the Act of 1851, which excludes •aliens, and impliedly, includes citizens, among whom, of course, are women. If express statutory authority is necessary to confer the right to hold appointive office, where is the authority for men to hold such office except as contained, impliedly, in section 21, supra. It does not exist ■otherwise.
In Barker v. The People, 3 Cowen, 686, 15 A. D. 322, in discussing who may hold v office, this significant statement is made:
“The Constitution giving the right of election and the right of ajopointment, these rights consisting essentially in the freedom of choice, and the Constitution also declaring that certain persons are not eligible to office, it follows from these powers and provisions that all other persons are eligible. Eligibility to office is not declared as a right •or principle by any express terms of the Constitution, but it results as a just deduction from the express powers and provisions of the sj^stem. The basis of the principle is the absolute liberty of the electors and the appointing authorities to choose and to appoint any person who is not made ineligible by the Constitution. Eligibility to office, therefore, belongs not exclusively or specially to electors enjo}'"ing the right of suffrage. It belongs equally to all persons whomsoever not excluded by the Constitution.”
As -applied to the appointment of a woman as a deputy to perform ministerial duties, the Supreme Court of Michigan, in Wilson v. Newton, 87 Mich. 493, 24 A. S. R. 173, said:
“The office of County Clerk is wholly ministerial, and when the law provides that a ministerial officer may appoint a deputy, for whose acts he and his sureties are responsible, and does not limit or restrict him as to whom he appoints, he has authority to appoint whomsoever he pleases. The person appointed acts for him; or in other-words, he acts through his deputy. His choice is not confined to any race, sex, color or age.”
It may occur to the mind that if this position be correct, then infants may hold appointive office. It would appear at first glance that such could not bé the case, but an examination of the law discloses that infants at common law, and here, unless expressly excluded by statute or Constitution, may hold any ministerial ■ office not connected with the administration of justice. 22 Cyc. 515; U. S. v. Bixley, 9 Fed. 78; Harkreader v. State, 35 Tex. Or. 243, 60 A. S. R. 40, collecting cases.
It may be suggested that the statutes heretofore mentioned taken in connection with the civil law, which waffthen in force, would exclude women from holding appointive office, at least until the civil law was superseded by the Act of 1876, which brought in the common law. I do-not agree to the suggestion. Of course, ordinarily, the laws of a country acquired by conquest remain in full force until superseded by the laws established under the new government, and they are superseded only to the extent to which the laws of the new sovereignly are antagonistic-thereto. But in this case, while the civil law denied such rights to women, the congress established a new form of government, and the legislature established a new system of political and governmental rights. Under such circumstances the laws of the former jurisdiction relating to such rights, must necessarily be held to have been directly or impliedly repealed.
It would seem, therefore, that there is implied statutory authority for women to hold appointive office.
I am aware that the rule of interpretation above mentioned, is to be applied with caution, and only when the-act is creative of a right rather than merely declaratory, or limitative of a right. But it seems to me that in this case, the legislative intent to grant the right to all citizens to hold appointive office is manifest, and the application of the rule of interpretation above mentioned is justified and required.
Counsel for the State rely upon two propositions: First, there is no statutory grant to -women of the right to hold appointive office. This contention has been disposed of. Second, the common law, which was adopted by the Act of 1876, clearly excludes a woman from such an office as State Librarian. With the latter contention of counsel I cannot agree. If this question had arisen in England, just prior to the separation of the Colonies, I feel convinced that the right of a woman to hold this office would have been upheld. The question at common law, in case of aqopointive offices, was whether the office was ministerial and, consequently, did not involve the exercise of judgment or discrteion, of which women were not supposed to be possessed. If so, a woman could be appointed to and hold the same, if it was not unsuited to her ability to perform its duties. This office is a ministerial office. Not a single duty exists which is not subject to control by either the board of trustees of the library, or the letter of the statute creating the office. Nothing is left to discretion. The restriction to local officers by the Massachusetts Court in 115 Mass. 602, is engrafted on the law, and is not warranted by the English cases.
For the raesons stated, I concur in the result reached by Judge Koberts.