dissenting.
The statute governing cities of this class provides: “All officers shall be qualified electors and taxpayers and reside within the limits of the city.” Comp. St. 1911, ch. 14, art. I, sec. 9. The real question in this case is whether, under this statute, a woman can be qualified to hold this office. The majority opinion does not pass upon or recognize this question, and gives technical reasons for not doing so. Those reasons to my mind are Avholly unsound. It is said that whether this relator is a woman is a fact to be tried by the court, and, as no motion for a new trial was filed in the court below, this court cannot *236review the evidence and determine whether the relator is a woman. This reason for the decision was discovered by this court; it is not mentioned in relator’s brief, and was not suggested upon the oral argument. The opinion departs from the established rule of this court, in determining the case upon a technicality not presented in the brief.
The case was tried below upon a stipulation of facts, in which it is stated that the relator is a woman. She is described in the stipulation as Miss McKee, and was so described in her certificate of election. “Jean” McKee could deceive the trial court, and cause that court and this to believe that there was a question of fact to try whether or not she was a woman. If the letters of her first name had been arranged in different order, “Jane” McKee would have failed to compel this office to be turned over to one who, the law says, cannot hold it. In her petition and alternative writ she refers to the respondent by the use of a masculine pronoun 13 times, and refers to herself 30 times, but she never refers to herself by the use of a pronoun.
Upon the argument in this court, it was stated by counsel for relator that the relator is a woman. .The whole record shows that no such question was tried below. Relator’s brief occupies a dozen pages in an attempt to prove that a woman can hold the office of treasurer in such a city. It is not intimated that any such question has been tried in the court below, or that any one ever claimed that relator is not a woman, and yet this court on its own motion makes the objection that there was no motion in the court below asking that the court again try the question whether the relator is a woman, and because no such motion was filed the court here will conclude that she was not a woman.
It is not necessary to justify the action of the legislature in disqualifying women to hold this office. No good reason is apparent for such legislation. Women can hold the office of treasurer in larger cities, and can hold other more onerous offices. The legislature, when its attention *237is called to the matter, may change the statute which controls in this case; the court cannot change it. I feel constrained to dissent from the principle announced in the majority opinion, because of the application that can be made. If the relator were an infant of ten years, or were confined in the penitentiary for a long term under sentence for embezzlement, or in the asylum for incurable insane, the principle would be the same. Under this decision we won! d install her in the office until in quo warranto proceedings she could be removed therefrom. '
The-position and conduct of the respondent have nothing to do with the matter. It is the relator’s application that we are adjudicating. No investigation of fact is necessary. The whole case depends upon one question of law. Is a woman qualified to hold this office under the statute? .That question of law can be determined in this action as well as in any. There is no reason to install her in the office first, and then determine afterwards, as a matter of law upon the undisputed facts, whether she can hold the office.
I think the decision is wrong, because no motion for new trial is necessary in the court below when the record shows that the case was tried and presented there upon a question of law, and no matter of fact was in dispute; because this court has always held that it will not determine a case upon a point not presented in the briefs, and it is not suggested by relator in the brief nor upon the oral argument that any motion for new trial was necessary in the court below; because the point upon which the case is decided is extremely technical, is not raised by either party, and is incorrectly determined in the opinion; because this decision, if followed as a precedent, will enable a child of tender years, a convict, or one incurably insane to obtain possession of any office and hold the same until removed by another action, which appears to be absurd, and is a very dangerous doctrine.
Fawcett, J., concurs in this dissent.