DISSENTING OPINION.
HANNA, J.I find I cannot concur in the majority opinion of the Court in its conclusion that under the common law a woman was eligible to hold a purely ministerial office, if she was capable of performing the duties thereof and was not called upon to exercise judgment and discretion.
My reasons therefor are: First, that the right to hold office under our political system is not a natural right, but exists only because and by virtue of some law expressly or impliedly creating or conferring it. Mechem on Public Officers, sec. 64. And it has been held that women, although citizens of the United States in the broad sense have, under our political system, no political power, and cannot, except under an enabling statute, be considered eligible to hold office.
Minor v. Happersett, 21 Wall. 162; Mechem on Public Officers, sec. 73.
This is doubtless the law of the case, unless our legislature by the adoption of the common law, (sec. 2871, C. L.) as the rule of practice and decision in our courts, have enlarged the right so far as women are concerned. Can it, therefore, be said that the right to hold an office, such as the one in question, had been conferred upon women by the common law, assuming for the present that if the right existed,’ as a common law right, and our Constitution or legislation did not prohibit it, a woman may hold the office under consideration.
Our inquiry is made a difficult one by reason of the fact that no office similar to the one under consideration, i. e., librarian, was ever referred to in the English reports; so we will give a general consideration to the early English cases, where the right of a woman to hold office was considered.
The cases, decided prior to April 21, 1788, are collected in the case of Rex v. Stubbs, reported in 2 T. R. (D. & E.) 395. It was there contended by counsel that “woman is capable of serving almost all of the offices in the kingdom; such as those of queen, marshal, great chamberlain, and constable of England, the champion of England, commissioner of sewers, governor of the workhouse, sexton, keeper of the prison, of the gate house of the dean and chapter of Westminster, returning offices for members of Parliament, and constable, the latter of which is in some respects judicial.” Opposing’ counsel contending as follows:
“With respect to all the instances cited in which women have served other offices; no argument whatever can be drawn from them to show that a woman is competent to serve this office, there being not the least similarity between the nature of the respective offices. As to the Queen of England, it is sufficient to say, that of all other stations, there is not one perhaps which requires less personal exertion than this. And it was even doubted whether the regal office in this kingdom was hereditary in a female. In consequence of which the statute 1 M. St. 3, c. 2 was passed, purposely to declare that a female, was capable of inheriting. The reason why a female may hold the office of constable of England, is because she may appoint a deputy; now that reason is an admission that if she could not appoint a deputy she could not hold, the office. The same reason is given why Lady Russell might hold the office of the custody of the castle of Dunningham, because the office was granted to be exercised per se vel deputatum suum.. Cro. Jac. 18. So the offices of great chamberlain, marshal, and champion of England, are hereditary; they are granted to a man and his heirs. With respect to the instance of a commissioner of sewers; it is merely an opinion of Callis, for which he gives an absurd reason, that Semiramis governed Syria. As to the case of the sexton, which -is said to be only a private office of trust, to take care of the-church, etc., and therefore a woman may serve it; it is also said there, that if there were any thing to be done by the sexton, not proper for a woman, it would be' otherwise. With respect to the case of the constable, it is only the opinion of Serjeant Hawkins, that a custom to serve by-rotation is good, because he thought that a woman might procure a deputy; now this admits that she cannot serve in person; and if she cannot serve by deputy, the custom could not be supported. In answer to these cases, it is-not necessary to consider how far they are authorities to show that in certain cases a woman may appoint a, deputy, but for this part of the argument it is sufficient if they prove the incompetency of females to serve those offices in-person. Wherever it is said that a woman may hold any particular office, it is either because the office is ministerial, or because, though partly judicial, it is hereditary, and then she may appoint a deputy. So a woman, who is a forester in fee, cannot execute the office herself, but she may appoint a deputy, the office being ministerial. The incompetency of women extends to a variety of cases; they cannot serve on juries; vote for members of parliament; in particular, the case in 16 Yin. Abr. 415, is decisive to show that a woman is incompetent to serve it. There a woman-was rejected as unfit; and Powell, Jr., said, ‘a woman cannot be an overseer of the poor, and there can be no< custom of the parish to appoint her, because it is an office - created by act of parliament.’ Secondly, an officer, who acts merely ministerially; may appoint a deputy but a judicial officer cannot; neither can a deputy be appointed where the office is (strictly speaking) neither ministerial or judicial, but an office of trust and discretion and the office of overseer of the poor is of that description. It is said in Bro. Abr. tit. Deputie, pi. 9. — tit. Graunt, pi. 108. —tit. Patent, pi. 66, and Sir W. Jones, 113, that an office of trust cannot be assigned; neither can it be executed by deputy, unless power be expressly given for that purpose. Co., Litt. S. 379. A steward cannot appoint a deputy without power. 9 Co. 48. Nor the clerk of the papers. Freem. 429. The office of high constable of England is expressly granted to be exercised by himself, or his sufficient deputy. And the offices of earl marshal, great chamberlain, and the champion of England, are hereditary; that they are to the grantees and their heirs; so that according to the terms of those grants power is given to appoint a deputy. All of the offices mentioned on the other side (except one) are either ministerial or hereditary; in both which cases a deputy may be appointed. The instance indeed of a constable’s appointing a deputy, if it be the law, forms an exception to the general rule.”
In the Stubbs case the office' involved was overseer of the poor, it being contended that in the Stat. 43 Eliz., c. 2, prescribing that the office should be served by “substantial householders,” there was no reference to sex, and the defendant, Stubbs, a woman, was eligible to appointment. The Court disposed of the question in the following language :
“As to the second objection, we think that the circumstance of one of the persons appointed being a woman does not vitiate the appointment. The only qualification required by Eliz. is that they shall be substantial householders ; it has no reference to sex. The only question, then, is whether there be anything in the nature of the office that should make a woman incompetent ? and we think there is not. ■ There are many instances where, in offices of the higher nature, they are held not to be disqualified; as in the case of the office of high chamberlain, high constable,. and marshal; and that of a common constable, which is both an office of trust, and likewise, in a degree, judicial; So in the case of the office of sexton. As to the case in Yin. tit. Poor. 415, that is no conclusive authority. It is to be collected from the case that there were other persons in the parish proper to serve; and if so, the Court held that the justices had not acted improperly in refusing to approve of a woman; where there are a sufficient number ■of men qualified to serve the office, they are certainly more proper; but that is not the case here, and therefore, if there be no absolute incapacity, it is proper in this instance from the necessity of the case. And there is no ■danger of making of making it a general practice; for as the justices are invested with a discretionary power of approbation, it is not likely that they will approve of such an appointment when there are other proper subjects.”
So that we find that the English courts had not affirmatively determined the rights of women in the matter of the holding of office, in 1788. •
In the Stubbs case, while the woman was conceded to be a substantial householder, and as a result came within the terms of the statute, the Court said it was proper that she ■serve “from the necessity of the case,” and that “there is no danger of making it a general practice.”
Turning to the American cases in which the common law was considered as affecting the rights of a woman to hold an office, we find a conflict of opinion. Our inquiry is necessarily limited' to those States where the power to hold office has not been conferred expressly upon women by Constitution or statute. It has been held that a woman cannot hold a judicial office, i. e., that of Justice of the Peace. Opinion of the Justices, 107 Mass. 604.
The reason assigned in this case was that the office was a judicial one and must be exercised by the officer in person, and a woman, whether married or unmarried, cannot be appointed to such an office. In a later opinion from the same Court, the Court said:
“The common law of England, which was our law upon the subject, permitted a woman to fill any local office of an administrative character, the duties attached to which were such, that a woman was competent to perform.” Opinion of the Justices, 115 Mass. 60S.
This opinion of the Court was announced without citing authority, and would be of some importance in determining what the common law, upon thé subject, has been interpreted to be, by American courts, had not the same court in a later opinion (Robinson’s case, 131 Mass. 376) which carefully considered all the English authorities, arrived at a somewhat different conclusion. It is unnecessary to quote at length from this opinion, which is a careful review of the English cases and authorities, and I will only quote the conclusion reached, in the following language:
“And we are not aware of any public office, the duties of which must be discharged by the incumbent in person, that a woman was adjudged to be competent to hold, without express authority of statute, except that of overseer of the poor, a local office of an administrative character, in no way connected' with judicial proceedings. The King v. Stubbs, 2 T. R. 395.”
As to the one exception referred to by the Massachusetts Court, in this opinion, we have observed that the English Court based its decision upon the necessity of the case and that the statute, impliedly at least, by fixing the qualification of “sugstantial householders,” had conferred the right to fill the office upon women, by legislative grant.
Th'e Court of Appeals of Kentucky, in the case of Atchison v. Lucas, 83 Ky. 465, said: “At common law, a woman could not hold any public office,” and denied to a woman the right of filling the office of jailor. The Court further said in this decision:
“We do not mean to adjudge that offices of legislative creation may not be filled by women, or the right of suffrage granted them in certain cases; but, on the contrary, such rights may be conferred.”
By the statements, quoted, the Court clearly took the position that the right to hold office was to be controlled by legislation creating, or conferring the right, and in the absence of enabling legislation must be considered as withheld, and further that no right arose by virtue of the common law. This may seem to conflict with the English cases, referred to, where women filled certain offices, through deputies, but the very fact that her right was so limited to offices where she might appoint a deputy would indicate that otherwise she did not possess the right.
So we find the rulé proclaimed in Comyns’ Digest, voL 5, p. 202, under title “Grant of an Office,” (B2) as follows :
‘‘To a woman: (What offices a woman may execute;) So, the grant of a.n office of government, which may be exercised by a substitute or deputy, to a woman, will be good; as a woman may be made regent of the kingdom. Cal. 201.”
Likewise in Ohio, it was held, that in the absence of constitutional or statutory provision on the subject, a woman could not hold the office of director of a workhouse. State v. Rust, 4 Ohio Cir. Ct. 329.
It is also contended that the Massachusetts Court in “Opinions of the Justices,” 136 Mass. 578, recognized a woman’s right to serve as a member of the board of health, lunacy an dcharity because the duties of the board are mostly administrative and are such as may well be performed by a woman, thus recognizing what it is contended are the common law limitations upon the right of woman to fill an office.
I cannot agree with this contention. The Court simply passed upon a statute providing that the board should consist of nine “persons” appointed by the Governor and held that “the word ‘persons’ clearly included women.” This Court expressly referred to its previous decision in Robinson’s case, (131 Mass. 376) and said that there was no conflict between the two cases. The distinction between the'two is obvious, the one being based upon the common law of the subject (Robinson’s case) and the other upon the construction of a statute plainly intending to continue women 'as qualified incumbents for position's, which by previous legislative enactments women had been designated as qualified to fill.
The New Hampshire Supreme Court, in a case involving the question of the right of a woman to fill the office of notary public, said:
“Because of our common law women are disabled from holding public office, and because the place of notary public is a public governmental office, and because we are unable to find any evidence of legislative purpose or intention to change the common law of this State in this respect, if. such power exist, a point not considered, we are compelled to answer in the negative the question submitted.” Re Opinion of Justices, 62 Atl. 969, 5 L. R. A. (N. S.) 418.
The rule laid down in this case is the prevailing doctrine in this country upon the subject, - as applied, to the office of notary public.
It may be argued that the office of notary public is a judicial one, but the reasons assigned for the disqualification of women is not put upon that ground.
It has been held in Massachusetts that none of the acts which a notary is called upon to perform are judicial, but that the office is a public one, the duties of which must be performed personally and cannot be performed by deputy. Women as Notaries Public, 6 L. R. A. 842.
In the Michigan case of Attorney General v. Abbott, 121 Mich. 540, 47 L. R. A. 92, 80 N. W. 372, it was stated as the opinion of the Court, by Long, J., that:
“There can be no question of the common law rule that woman cannot hold general public office in the absence of express constitutional or statutory authority conferring upon her such right.”
It is argued that because Hooker, J., in a special concurring opinion, in the Michigan case, conceded that there were instances “where it had been held that they (women) could hold local offices of little importance, where the duties were wholly ministerial,” is was to be implied that women could be eligible to hold certain ministerial offices, even though they might fall within the term ‘‘general public office.”
This is a legitimate argument to be drawn from the opinion, but I believe that a careful consideration of this opinion better justifies a different confclusion. In commenting upon those instances of “local offices” ministerial in nature and of little importance, which, women had held, Justice Hooker said:
“But while these cases support the claim that women might hold some offices, they reinforce the authorities which deny the general right contended for here.”
The right contended for was “that inasmuch as the Constitution is silent upon the subject of the qualifications requisife to this office, we must recognize the right of everyone to hold it.”
It is worthy of note that the opinion in this.case, while apparently pointing out that local ministerial offices of little importance had been held by women, did not give any authority as a basis for the conclusion that such statement might be the rule of common law. We are more inclined to believe that the common law rule is correctly stated by the editor of the' note to the case of State v. ITostetter, (Mo.) reported in 38 L. R. A. 208, at 215, in the following language:
“It may be said to be the general doctrine now held both in England and America that women are ineligible to any important office except when made so by enactment-It is usually said that this is the common law of the subject.”
It is also argued that many courts have recognized the right of women to hold various offices, where no statute or constitutional provision existed denying the right. The Hostetter case, 137 Mo. 636, 38 L. R. A. 208, is cited as an instance. It is to be found, however, in this case that the Supreme Court of Missouri had under consideration a statute defining the qualifications for the particular office, among other things, to be that of citizenship of the United States, and a former statute, with respect to the same of-had previously provided that the citizenship should be restricted to “free white male citizens.” The Court said:
“The dropping of the word finale’ in describing the qualifications for such offices, has value as a guide to the legislative purpose in enacting the present law on this subject.”
The effect of the opinion was to hold that the legislature intended to remove the disqualification, and qualify women for this office, which, in passing, it is worthy of note, was held to be a ministerial office, admitting of the use of a deputy and the duties of which were said to be not of such a nature as to be incompatible of discharge by a woman.
A legislative intent to make women eligible was looked for and found by this Court. I do not disagree with this view but consider that it is for the legislature to grant the right or withhold it, within constitutional limitations, and that the alleged common law rights have not been so definitely defined as to be worthy of consideration as sufficient rules now to be applied.
Wright v. Noell, 16 Kan. 601, is another case cited in support of the rule, last referred to. Justice Brewer in this case based his opinion upon the rule announced by the Supreme Court of Massachusetts, (Opinion of Justices, 115 Mass. 602), which Court, a few years later in a lengthy opinion reviewing all of the English authorities (Robinson’s case, 131 Mass. 379), materially qualified its opinion
The Washington case of Russell v. Guptill, 13 Wash. 361, followed the Kansas case (16 Kan. 601), and Massachusetts case (115 Mass. 602.) In re Leach, 134 Ind. 565, and In the Matter of Mary Hall, 50 Conn. 131, are cases involving the construction of statutes, and in each case it was held that the term “persons” used, in the statute, necessarily included women.
The case of Wilson v. Newton, 87 Mich. 493, was also cited, but is not in point and only declared and affirmed the common law rule (2 Bl. Com. 36) that a ministerial officer may appoint a deputy and, that under a statute, which was silent as to qualification of deputies, his choice was not limited to any race, sex, color or age.
The case of State v. Quibble, 86 Neb. 417, 125 N. W. 619, 27 L. R. A. (N. S.) 531, is also cited, but this as well as all the other American eases, which seem to be in point, relies upon the Massachusetts case (115 Mass. 602.) An earlier case in Nebraska, Crosby v. Cones, 15 Neb. 444, followed the Massachusetts case, and the later case followed the earlier one without question or consideration of authority.
After a careful consideration of the 'English and American cases, I conclude as follows: That, if there was any common law rule defining the rights of women, in the matter of holding public office, it was so indefinite and uncertain as to be of no value in sustaining a contention that our legislature adopted it and put it into force by adopting the common law. It is apparent that the women of England had, prior to 1776, asserted rights to public offices in a few instances, but as stated by the Massachusetts Supreme Court, no case is to be found, prior to 1776, where any public office, the duties of which must be discharged by the incumbent in person, that a woman was adjudged by the English courts to be competent to hold without express authority of statute. This being true, it would seem to be for the legislature to enlarge the rights of women, which our recent legislature has done, (chap. 60, S. L. 19Í3) by providing that women may hold any appointive office in this State. Can we properly hold that she had the right prior to this legislation of 1913? In doing so, I believe we invade the province of the legislature.
It may be said that the office of State Librarian is one that permits of the appointment' of a deputy and is therefore not within the application of the limitations herein pointed out.
It is true that the Librarian has a right to appoint a deputy in instances specified by the statute, but the limitation of such right would preclude any general power to so appoint. I cannot concur in the opinion that importance is to be attached to the executive. construction referred to in the majority opinion, because I believe that no statute attempting to define the rights of women to this, or other similar office, is involved, and that tlie right was not 'declared by the common law, therefore, the right fails to exist because never granted, and there can, therefore, be no law to construe. The so-called executive construction has doubtless grown up under the assumption that there being no prohibition, there was no disqualification, entirely overlooking the principle, enunciated by Mr. Mechem, that the right to hold a public office under our political system is not a natural right, and exists, where it exists at all, only by virtue of some law expressly or impliedly creating and conferring it. Meehem on Public Officers, sec. 64.
For the reasons indicated, I dissent.