State v. Stevens

44 P. 898, 29 Or. 464, 1896 Ore. LEXIS 69

• Court: Oregon Supreme Court
• Decided: May 11, 1896
• Status: Published

Opinion

Pee Curiam.

1. The necessity for an immediate decision renders it impossible for us to do anything more than indicate very briefly our conclusions. It is claimed that the complaint is defective because it does not in terms tender an issue upon the constitutionality of the act of the legislature authorizing women to hold educational offices: Laws, 1893, 62. But it is unnecessary to set out the statute or allege its unconstitutionality in a complaint, for the court will take judicial knowledge of its existence and provisions; and, besides, in a proceeding of this kind a general allegation that the defendant unlawfully intrudes into and usurps the office is sufficient to call upon him to disclose and set up his title thereto: High on Extraordinary Remedies, § 712. The ordinary rule in civil actions which imposes the burden upon the plaintiff to allege and prove his title does not apply in a quo warranto proceeding, the object of which is to require the occupant of a public office to show by what right or authority he holds and exercises the same, and if he fails to show a complete title to it judgment must go against him

2. It is next claimed that the complaint is insufficient because it does not allege that the action was instituted by the district attorney in his official capacity, but this objection is without merit. The action is brought in the name of the state, upon the relation of a private party and is signed by the district attorney in his official capacity, and this is sufficient to comply with the provisions of section 357 of Hill’s Code, * authorizing such proceedings, if, indeed, the action could not be maintained under the statute in the name of the state by a private relator without the consent of the district attorney. The case of State ex rel. v. Lord, 28 Or. 498, (43 Pac. 480,) is not in point. It was there held that a suit in equity in behalf of the state in its sovereign capacity for an injunction could only be instituted by the proper law officer in his official capacity, and under the responsibility of his office, and it must so appear in the complaint, but this is an action at law authorized by statute, and therefore this rule has no application.

3. Next, it is claimed that, since the commencement of this action the relator has removed from Union County, and abandoned the office by accepting an incompatible one, but this does not appear from the record, and' we are not aware of any rule of law which authorizes us to take judicial knowledge thereof on this appeal. If such is a fact, and it constitute a defense to these proceedings, it must be made to hereafter so appear in some appropriate manner. The only question for us to now determine is whether upon the facts stated in the complaint the judgment of the court below is erroneous.

4. This disposes of the objections made to the complaint, and the only remaining question is whether, under the constitution and laws of the state, a woman is eligible to the office of county superintendent of common schools. The contention of the defendant is that the act of eighteen hundred and ninety-three which provides that: “Women over the age of twenty-one years, who are citizens of the United States and of this state, shall be eligible to an educational office within this state,” (Laws, 1893, p. 62,) authorizes her to hold the office in question. But, if the statute was so intended, it is plainly in violation of the provisions of the constitution, and to that extent void. Article VI, section 8 of the constitution provides that “ No person shall be elected or appointed to a county office who shall not be an elector of the county”; and article II, section 2, of the same instrument defines an elector as a male citizen. Hence it necessarily follows that none but male citizens can be elected or appointed to county offices. Now the office of superintendent of common schools, although not so mentioned in the constitution, was, at the adoption of that instrument, and ever since has been, and is now, plainly and unmistakably a county office. It is so named and designated in both the territorial and state statutes creating the office and defining the jurisdiction and duties of the occupant thereof. The incumbent is nominated and elected at the same time and in the same manner as other county officers. His jurisdiction is coextensive with the boundaries of his. county; his salary is fixed and paid by the county, and vacancies in the office are filled by appointment of the county court. In short, the office is in every sense a county office. It therefore follows, that, whatever views we may entertain as to the propriety of the. constitutional provisions prohibiting women from holding county’ offices, we have no alternative but to declare that under the provisions of that instrument as it now exists, they are ineligible to the office in question, and that the act of eighteen hundred and ninety-three, so far as it conflicts with the constitution, is void. The judgment of the court below is therefor affirmed. Afeiemed.