Attorney General v. Abbott

Hooker, J.

(concurring). The record in this case raises the question of the eligibility of a married woman to the office of prosecuting attorney. The respondent, having received a plurality of the votes cast for that office in her county at the election held in November, 1898, and entered upon the discharge of its duties, -responds to a writ questioning her right thereto.

The Constitution does not state who shall be eligible to this office. Therefore it may reasonably be 'said that any person may hold it who was qualified under the laws as they existed when the Constitution was adopted, such laws being continued in force by Const. Sched. § 1:

‘ ‘ The common law and the statute laws now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed by the legislature.”

*545It would also seem that no one could hold office except those qualified under existing laws, for the Constitution, being silent, made no change.

At the common law, woman did not enjoy the legal right of participating in the government. The political privileges of voting and holding general public office were denied her. Some question is made over this, but we think it is an historical fact. The fullest discussion of the nature and extent of the right of a woman to hold office at common law, that we have ever seen, is in the opinion of Chief Justice Gray in Robinson’s Case, 131 Mass. 376 (41 Am. Eep. 239), where the authorities are collected. The opinion of Mr. Justice Scholfield in Schuchardt v. People, 99 Ill. 504 (39 Am. Rep. 34), asserts the same doctrine, following In re Bradwell, 55 111. 535. In the former case it was held that the disability had been removed by statute, which the latter case had previously held that a constitution silent upon the subject was ineffective to do. In Atchison v. Lucas, 83 Ky. 465, it is declared that “at common law a woman could not hold any public office,” and that, with three constitutions adopted for the State silent upon the subject, it could not be said that the right to hold office had been thereby conferred. Mechem, Pub. Off. § 73, says that by the law of England no woman under the degree of queen, married or unmarried, could take part in the government of the State; citing Bouv. Law Diet. tit. “Women,” and other authorities. See, also, Lockwood v. U. S., 9 Ct. Cl. 346; In re Opinion of the Justices, 107 Mass. 604, 115 Mass. 602; Chorlton v. Lings, L. R. 4 C. P. 374.

As has been foreshadowed, I am of the opinion that, if the common law in force in Michigan as it was in 1850 prohibited women from holding office, that prohibition was not removed by the adoption of a Constitution which contained no express or implied repeal of such prohibition, but, on the contrary, reaffirmed it by expressly providing that the law asserting such prohibition should continue in force. There is but one legitimate method of removing the disa*546bility, and that is legislative, not judicial. Some of the cases cited have intimated as much. That the legislature, and it only, has power to do this, is obvious. Certainly the courts are not authorized to do so, and a growing public sentiment favoring an enlargement of the rights of women should not have such effect. Laws are dot repealed by a neglect to enforce them, and the legal status of woman rests on a more stable foundation than a varying or advancing public opinion of what that status should be.

It is argued that, inasmuch as the Constitution is silent upon the subject of the qualifications requisite to this office, we must recognize the right of any one to hold it. Aside from the fact that we find few authorities supporting this claim, we think that it is fallacious. The Constitution does not say that aliens may not hold many of the highest public offices. Neither does it say that infants may not, nor that persons non compos mentis may not. Nor does it say that a man shall be compelled to support his wife, nor that she may pledge his credit for necessaries, nor that she cannot make a valid contract, nor that the presumption of coercion by her husband shall not attach when she is charged with crime. Nor did the earlier 'Constitution declare that only attorneys-at-law could be prosecuting attorneys, yet the court so held in the case of People v. May, 3 Mich. 610; and all of the other legal principles mentioned were unchanged by the adoption of the Constitution. It must be evident that, when a new Constitution is adopted, the legislative blackboard is not washed clean. On the contrary, existing laws and rights under them remain, except as clearly inconsistent with the terms of the Constitution. There are many cases which hold that aliens are ineligible to public office. State v. Smith, 1.4 Wis. 497; State v. Murray, 28 Wis. 96 (9 Am. Rep. 489). Others hold that a minor is incapable of holding office. Tyler v. Tyler, 2 Root, 519; Golding's Petition, 57 N. H. 146 (24 Am. Rep. 66); Barrett v. Seward, 22 Vt. 176; New Albany, etc. R. Co. v. Groom's, 9 Ind. 243; People v. Dean, 3 Wend. 438.

*547We are confronted by the fact that women have held offices, and by cases which sustain some of their claims upon them. Some of the cases cited hold that minors may be deputies under certain officers, and th'at-they are capable of discharging ministerial duties, while they deny the right of holding public offices generally. See Jamesville, etc., R. Co. v. Fisher, 13 L. R. A. 721 (109 N. C. 1), and note. Authorities are not wanting in England that decide that women may hold offices which they inherit (but can get in no other way), and may perform the duties through deputies. There are also instances where it has been held that they could hold local offices of little importance, where the duties were wholly ministerial. 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. It is undeniable that many women have held office under State and Federal governments, such as postmasters, pension agents, notaries public, deputy clerks, school officers, attorneys-at-law, etc. Many of them have held their offices only by sufferance, their right not having been questioned. This proves nothing. Others have held under statutes which the legislature had power to enact. Bloomer v. Todd, 1 L. R. A. 113 (3 Wash. Terr. 599), note. The case of In re Hall, 50 CConn. 131 (47 Am. Rep. 625), does no more than construe a very liberal statute, which provided that the court might admit as attorneys “such persons as are qualified therefor agreeably to the rules established ” by the court. Such cases are not decisive of the question before us. In other cases their right has depended upon the varying views of courts concerning the nature of the offices. Some courts hold that the office of notary public is not within the right of a woman to hold. See Women as Notaries Public (Opinion of the Justices), 150 Mass. 586 (6 L. R. A. 842); State v. Davidson, 92 Tenn. 531 (20 L. R. A. 311). Others hold that it is. U. S. v. Bixby, 10 Biss. 520. In this State the right is given by statute. 1 Comp. Laws 1897, § 2629; Act No. 117, Pub. Acts 1887. A *548number- of cases hold that women may be deputy clerks^ though not clerks. Warwick v. State, 25 Ohio St. 21; Jeffries v. Harrington, 11 Colo. 191; Wilsons. Genesee Circuit Judge, 87 Mich. 493 (24 Am. St. Rep. 173).

■ It is said that this case is concluded by the case last cited, and that the cases cited from Massachusetts and Illinois cannot apply, because they deny the right of" -women to hold the offices of notary public and attorney-at-law,— especially the latter, which we are said to have recognized their eligibility to. The recognition that has been accorded to women as attorneys is plainly authorized by statute. 1 Comp. Laws 1897, § 1121, provides that no one shall be excluded from that office on account of sex, while, under authorities relied upon in this case, there is room for the claim that they have been eligible under existing statutes since 1838, at least. As early as 1846 any citizen of this State was eligible (see Rev. Stat. 1846, chap. 95, § 27), while under Rev. Stat. 1838, part 3, tit. 1, chap. 6, § 13, any citizen of the United States might be licensed. In the Michigan case the learned writer of the opinion stated that a woman could not hold the office of clerk. What is the inference, if not that it was his opinion that she might perform the ministerial duties of a deputy, the office being one that permitted of ax deputy? It does not follow that he would have held that she could succeed the clerk, under the statute, in case of his death. So in the Massachusetts cases we should not be asked to hold that the determination concerning the common law was any the less authoritative because we might disagree with the court as to the character of the office of attorney-at-law. Those cases exclude the offices of attorney-at-law and notary public from the list of ministerial offices that a woman may hold. Others do not. Thus, the case of U. S. v. Bixby, 10 Biss. 520, holds the office of notary purely ministerial. In short, all of these cases agree that a woman could not hold other than ministerial offices, but they'differ as to what are the ministerial offices that she may hold.

*549I do not forget that there are other .cases which are said to go the full length contended for in this case, — notably, the Kansas and Missouri cases cited. State v. Hostetter, 137 Mo. 636 (38 L. R. A. 208, 59 Am. St. Rep. 515); Wright v. Noell, 16 Kan. 601, The Missouri case is distinguishable from the case before us and the Kansas case.. The constitution of Missouri was adopted in 1875. That instrument prescribed the qualifications of some officers; e. g., the governor, lieutenant governor, secretary of state, auditor, treasurer, attorney general, and superintendent of schools, and members of the general assembly, were required to be male citizens. Circuit judges were required to be qualified voters, who were male citizens. It was further provided that “no person shall be elected of appointed to any office in this State, civil or military, who is not a citizen of the United States, and who shall not have resided in this State one year nest preceding his election' or appointment.” Const, art. 8, § 12. According to this respondent’s contention, this last provision, which was a new enactment in the organic law of Missouri, had the effect of removing the disability of women to such offices; but the Missouri court did not so hold. What it said was that “the constitution, we think, remits to the legislature the subject of proper qualifications to be possessed by the holders of such an office as is here in question.” At the time this constitution was adopted, there was, and for many years had been, in force, a statute providing that “no person shall be appointed or elected clerk of any court, unless he be a free iohite male citizen of the United States, above the age of twenty-one years, and shall have resided within the State one whole year, and within the county for which he is elected threé months, before the election; and every clerk shall, after his election, reside in the county for which he is clerk.” 1 Rev. Stat. Mo. 1855, chap. 26, § 10. In 1879, four years after the adoption of the constitution, the legislature amended this law by dropping the words “free white male.” Commenting upon this, the court said:

*550“The dropping of the word ‘male,’ in describing the qualifications for such -offices, has value as a guide to the legislative purpose in enacting the present law on this subject. Can there be any doubt as to the intended effect of such a change of the statute on the particular question before us? * * * The Office of clerk of a court is a ministerial office. It admits of the use of a deputy, and its duties are certainly not of such a nature as to be incompatible of discharge by a woman. In view of the condition of the positive law of Missouri above described, we do not consider it necessary to enter into a discussion of the eligibility of women to office at the common law or in other States of the Union.”

It is apparent, therefore, that this case, like the Connecticut.case, goes no further than to construe a statute, and does not reach the question before us.

The principle of the Kansas case admits of no middle ground, and establishes woman’s right to the highest executive and judicial offices, and to govern a State where she cannot vote. It seems on all fours with our own, and is entitled to great weight, from the eminence of the writer of the opinion. It appears to be based largely upon the proposition that, as the constitution required legislative officers to be electors, there was an implication, from the failure to prescribe the qualifications of other officers, that all persons were eligible. The court distinguished the case from that of an alien, from which we infer that it was of the opinion that an alien was ineligible. It did not indicate what it would say were the claimant an infant citizen. "We can hardly suppose that it would hold an infant eligible to the higher executive and judicial offices, or that any other than a lawyer could hold the latter; yet the constitution has not precluded either, under the interpretation given. It may be said that a distinction might be made between the incapacity of minors, as was done in the case of aliens. No doubt there might be. As already said, a distinction was made as to aliens, and it may be said that the law looks upon a minor as mentally incompetent, as it does upon an idiot or lunatic, while this is not true of women. The incompetency in *551each case is a legal and necessarily an arbitrary one. Adult aliens and women and many minors are mentally competent, yet this does not make them legally so. It is an arbitrary rule of law in each case which denies the privilege, and these rules of law all antedate and survive the adoption of the constitution. Their survival cannot be said to depend upon the character of the legal disability. The requirement that members of the legislature should be electors had the effect of preventing any legislative change of the law in that respect, and was a necessary provision to accomplish it. The absence of any provision in relation to other officers leaves the requisites within legislative control, and the omission was probably intended to have that effect. This sufficiently accounts for the omission, without concluding that it was designed to make every one eligible to all except the legislative offices, without legislative intervention.

Again, it may be said that the reason for the common-law rule no longer exists, and that the rule should fall with the reason for it; that Michigan, by legislation, has in recent years recognized the capacity of woman to do many things that she was not permitted to do at common law, one of which is to hold the position of attorney-at-law, and therefore there is no longer any reason for denying her eligibility to any office, and consequently there is no law prohibiting it. This, in short, amounts to saying that, when the legislature made a change in the status of woman by making her eligible to one office, it r'emoved all of her political disabilities, except that relating to the ballot, which was beyond legislative power. If this is so, why did it not have the effect of removing all other disabilities ? Why is she not now free to contract, and sign notes with others as surety ? Why is she not drawn as juror and talesman in our courts of justice? It must be remembered that the proposition is not that the legislature might make all of these changes by proper enactment, which I do not question, but that, by the simple enactment that she may . be permitted to practice law and to hold *552school offices, all disabilities were at once removed. It is hardly supposable that the legislature so understood it, or that it was designed even to make her eligible to any offices except those mentioned. Had the title to the act been “to make woman eligible to the position of prosecuting attorney,” it would hardly have supported a provision in the act itself making her eligible to the office of prosecuting attorney and all other offices, because the object of the act would not have been expressed in the title. Yet' exactly this, if not a great deal more, has been accomplished, if we are to hold that the reason of woman’s disability has failed through the recognition of her ability to discharge the duties of one office, and that all of her disabilities have been removed with the reason. I do not mean to be understood as admitting that laws fall with the reason upon which they are based. It is sometimes said that “he who knoweth not the reason of the law knoweth not the lawbut it does not follow that courts may disregard a law when th® reason for the rule is not apparent or is disapproved. It is the province of the legislature to apply the remedy in such cases.

Other States are mentioned where, under statutes or decisions, a somewhat different view from that entertained by me is taken, and it must be admitted that there is some conflict in the authorities; but I think the weight of authority, and the logic of the case, support me in the conclusion that the privilege of holding general public office has not been acquired by woman, and that only a constitutional provision or an act of the legislature can give it to her.

It remains to inquire whether the office of prosecuting attorney is such a ministerial office as to render a woman eligible. That, I think, is settled by one of our own decisions,— the case of Engle v. Chipman, 51 Mich. 524. It was there held that a prosecuting attorney could not delegate his powers; that he was vested with a personal discretion as a minister of justice. He might perhaps employ assistants when authorized by law, but could not *553delegate his official discretion. It seems clear that this judicial discretion takes the office out of the class recognized by the common law, and the cases, both English and American, as within the right of woman to hold.

We have attempted to discuss this from a purely legal standpoint. An endeavor has been made to show that, in adhering'to the doctrine here enunciated, “courts are not putting prohibitions into constitutions, upon some supposed understanding of the people at the time of their adoption.” They are refusing to assert the implication of a repeal of laws which the Constitution expressly says shall continue in force. Taking that view of the question, we have no occasion to discuss the progress of the age, or the injustice of law to women. As we have said, the legislative branch of government is the proper one to consider the advisability of a change. I concur in the conclusion reached by Mr. Justice Long.

Grant, C. J., Montgomery and Long, JJ., concurred with Hooker, J.