99 Ill. 501 | Ill. | 1881
delivered the opinion of the Court:
The single question is presented by this record, whether a female is, by reason of her sex alone, disqualified to hold the office of master in chancery.
The origin and duties of that office are thus explained by Bouvier’s Law Dictionary, p. 121, title, “ Masters in Chancery:” “ The chancellors, from the first, found it necessary to have a number of clerks, were it for no other purpose than to perform the mechanical part of the business, — the writing. These soon rose to the number of twelve. In process of time this number being found insufficient, these clerks contrived to have other clerks under them, and then the original clerks became distinguished by the name of masters in chancery. He is an assistant to the chancellor, who refers to him interlocutory orders for stating accounts, computing damages, and the like. Masters in chancery are also invested with other powers, by local regulations. Vide Blake’s Ch. Pr. 26; 1 Madd. Pr. 3; 1 Smith’s Ch. Pr. 9, 19.”
By our statute (Rev. Stat. 1874, p. 697, title “Masters in Chancery,” section 6,) “ master’s in chancery, in their respective counties, shall have authority to take depositions, both in- law and equity, to administer oaths, to compel the attendance of witnesses, take acknowledgments of deeds and other instruments in writing, and in the absence from the county of the judge, to order thé issuing of the writs of habeas corpus, ne exeat, and injunction, and perform all other duties which, according to the laws of this State and the practice of courts of chancery, appertain to the office.” The seventh section of the same chapter also empowers masters in chancery to award the issuing of writs of certiorari.
It would seem quite clear, therefore, there is nothing in the origin of the office, or in the nature of the duties to be discharged, which renders it impossible that a female should fill the office.
Our constitution does not forbid females holding offices of this-character, — and there is no such prohibition to be found in any statute.
At common law, females were incompetent to be attorneys at law, and to hold office, in general.
At our September term, 1869, Mrs. Myra Bradwell applied to this court for a license to practice as an attorney and counselor at law, and her request was refused, because of her sex; and in the opinion then filed it was, among other things, said: “If it be desirable that those offices which we have borrowed from the English law, and which, from their origin, some centuries ago, down to the present time, have been filled exclusively by men, should also be made accessible to women, then let the change be made, but let it be made by that department of the government to which the constitution has entrusted the power of changing the laws.” In re Bradwell, 55 Ill. 535.
Presumably in response to this, the General Assembly passed an act, which was approved on the 22d of March, 1872, the first section whereof is in these words: “ That no person shall be precluded or debarred from any occupation, profession or employment (except military) on account of sex: Provided, that this act shall not be construed to affect the eligibility of any person to an elective office.” Rev. Stat. 1874, p. 478.
The word “ profession ” was doubtless intended to, and certainly does, cover the exact case involved In re Bradwell, supra, and that word is not, in its commonly accepted signification, appropriate to describe the occupancy of a public office. But “occupation” is a generic term, and includes every species of that genus, — and holding or discharging the duties of a public office is one species of occupation, just as carpentering, tailoring, farming, etc., are* other species of occupation. Webster, in defining “ occupation,” mentions “office” as synonymous with “avocation,” “engagement,”, “calling,” “trade,” etc., and as, hence, being embraced within the definition of “ occupation.” See Unabridged dictionary, titles “ occupation” and “office;” and to the same effect is Rojet’s “Thesaurus of English Words,” 625.
The saving clause embraced by the proviso, shows that it was supposed by the General Assembly, in the enactment of this statute, that “occupation” includes the discharge of the duties of a public office, — for, otherwise, there could not have been the slightest imaginable necessity for that clause. Because the eligibility of women to office generally — i. e., to all offices — was presumed to be affected, it was necessary, in order to confine the effect of the statute to offices filled by appointment only, to expressly say, “this act shall not be construed to affect the eligibility of any person to an elective office,” — but (implication) it may affect, that is to say will affect, those to be filled by appointment, by allowing women as well as men to be appointed.
In our opinion appellant was eligible, and her appointment valid.'
The judgment of the Appellate Court is reversed, and the cause remanded, with direction to that court to reverse the judgment of the circuit court, and remand the cause to that court for further proceedings consistent with this opinion.
Judgment reversed.
Walkee, J: I am unable to concur in the construction,
given to the statute in this case, and hold that appellant, under the law, is ineligible to hold the office.