Attorney General v. Abbott

80 N.W. 372, 121 Mich. 540, 1899 Mich. LEXIS 609

• Court: Michigan Supreme Court
• Decided: June 22, 1899
• Status: Published

Opinions

Long, J.

Merrie H. Abbott, the respondent, a woman of the age of 21 years and upwards, was elected to the office of prosecuting attorney of Ogemaw county at the general election held on the 8th day of November, 1898. She duly qualified, and is now in the discharge of ‘the duties of that office. An information in the nature of a quo warranto is filed in this court by the attorney general, in which it is claimed that the respondent unlawfully holds and exercises the duties of that office. The only question raised is whether a woman is eligible under the Constitution and laws of this State to hold such office.

Section 3, art. 10, of the Constitution of this State, reads as follows:

“In each organized county there shall be a sheriff, a county clerk, a county treasurer, a register of deeds, and a prosecuting attorney chosen by the electors thereof once in two years, and as often as vacancies shall happen, whose duties and powers shall be prescribed by law.”

It is the contention of the attorney general that the office of prosecuting attorney is a constitutional office, created by the Constitution of this State, which expressly provides that such official shall be chosen by the electors of the respective counties, and that such electors have no ■ authority, under the Constitution and laws, to elect other than one of their own number to such office. On the other hand, it is contended by the respondent that the Constitution and laws do not expressly require that the prosecuting attorney shall be an elector, while for some other offices named in the Constitution this qualification is distinctly required, and that this would indicate that, as to those offices in regard to which the instrument is silent, no such qualification is necessary; for, if the qualification of an elector is needed in order to hold the office of prosecuting attorney, then every other officer elected by the people and named in the Constitution must also be an elector. It is also contended by the respondent that the common law of the State does not forbid a woman to hold the office of prosecuting attorney.

There being no express provision of the Constitution or the laws of the State conferring upon the respondent the right to hold this office, the question must be determined by the principles of the common law, and the manner in which those principles have been construed in this. State for the past years. It is conceded that the respondent is not an elector, and that she could not vote for a candidate for this office. Section 1, art. 7, of the Constitution, provides who shall be electors. There can be no question of the common-law rule that a woman cannot hold a general public office, in the absence of express constitutional or statutory authority conferring upon her such right. If she is eligible to this office, then she is eligible to any constitutional office within the State. Judge Cooley, in his work on Principles of Constitutional Law (page 357), in discussing the question of eligibility to office, says, “ When the law is silent respecting qualifications to office, it must be understood that electors are eligible, but no others.” For more than 60 years this has been regarded as- the settled law of this State. It commenced when this State was admitted into the Union, and, during all the time since, no one, to our knowledge, has ever insisted that women are eligible to those offices which must be filled by the votes of the qualified electors of the State or other municipalities.

In Cush. Law & Prac. Leg. Assem. § 57, it is said:

“It may also be laid down as a general principle founded in the nature of representative government, which supposes the electors, except in particular instances, to elect from among themselves, that no person can be elected to any office who is not himself possessed of the requisite qualifications for an elector. * * * Whatever other and different qualifications or disqualifications may be specified, every person who is voted for * * * must, at all events, possess the qualifications and be free from the disqualifications which attach to the character of an elector.”

This language is quoted by Throop with approval in his work on Public Officers (section 73).

The supreme court of Wisconsin, in State v. Smith, 14 Wis. 497, and State v. Murray, 38 Wis. 96 (9 Am. Rep. 489), held that, in the absence of statutory authority, no one but a qualified elector could hold office. In the latter case it was said:

“We have already seen that the grounds upon which a person not an elector is excluded from holding public office is that the powers and franchises of a free and inde•pendent government must be exercised by those by whom such government was instituted, — that is, by the electors thereof; so, if a person who is not an elector attempts to exercise the functions of a public office, the courts, upon proper proceedings being instituted for that purpose, will oust him.”

In Wilson v. Genesee Circuit Judge, 87 Mich. 495 (24 Am. St. Rep. 173), the contention was whether a woman could hold the office of deputy county clerk. Mr-Justice Champlin said:

“ The relator contends that, under the provisions of the Oonstitution, none but an elector can be chosen to the office of county clerk. In this I think he is correct, but its decision is not essential to the determination of the present case.”

In Robinson's Case, 131 Mass. 376 (41 Am. Rep. 239), the right of a woman to vote or hold office was fully discussed, and the common-law rule, that in the absence of express authority a woman has no legal right to hold office, was fully sustained.

The case of Atchison v. Lucas, 83 Ky. 451, is quite in point with the present. The constitution of that State confers the right to vote upon white male citizens of the proper age, etc., and bases the right to hold office upon citizenship. It was said:

“ The fourteenth amendment to the Constitution of the United States defines who are citizens, in the following language: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.’ It is therefore not necessary to discuss the meaning of the word ‘ person ’ or the word ‘ citizen ’ as used in the State constitution, as both include women as well as men, in the most comprehensive sense. But being a citizen does not necessarily entitle one to the right of suffrage, or the right to hold any constitutional office. By the provisions of the constitution of this State adopted in the year 1792, and by a like provision of the constitution of 1799, as well as in the present constitution, women were excluded from the right of suffrage by conferring that right upon male citizens alone; and it would be a singular construction of that provision in either constitution to determine that women should have no voice in the selection of those who are to fill the offices created by the constitution, and at the same time given the right to fill, those offices if elected by the popular vote. * * * It necessarily follows,- it seems to us, that when women are excluded .from the right to vote when these officers are to be 'elected, they are also excluded from the right to hold the offices voted for.”

Whatever may be said of some of the decisions of other 'States which counsel contend are at variance with the cases above cited and quoted from, it is difficult to get away from the proposition laid down by Judge Cooley, above quoted, that, “when the law is silent respecting qualifications to office, it must be understood that electors are eligible, but no others.” Cooley, Const. Law, 257. Judge Cooley undoubtedly wrote that with the full understanding of its significance. He had in mind, without doubt, that that had been the uniform practice in this State for nearly 60 years at that time, and that such was the common law of the State.

It follows that a judgment of ouster must be entered.

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