State ex rel. Crow v. Hostetter

| Mo. | Feb 20, 1897

Barclay, P. J.

This is an original action in this court to ascertain by what warrant defendant holds the office of clerk of the county court of St. Clair county. The proceeding was instituted by an information of the Attorney-general in his official capacity. The information contains a full recital of the facts. They have been admitted by the demurrer which defendant has filed. Counsel in this court, with commendable fairness, have waived formalities that might have caused delay, and have submitted the cause for prompt decision upon briefs that have been of great help toward the speedy determination of the controversy.

In the view taken by this division of the court, the following are the decisive facts:

Mr. Wheeler was elected clerk of the county court at the general election of 1894 for a term ending in January, 1899. He died October 24, 1896. Two days later the defendant, Mr. Hostetter, was commissioned by the Governor to fill the vacancy. He qualified and entered on the duties of the office, before the general election of November 3, 1896. He now holds the hffiee by virtue of that appointment.

At the general election mentioned, Mrs. Maggie B. Wheeler and Mr. Hostetter, received votes in St. Clair county for the office in question. On the twenty-sixth day of October,. 1896, Mrs. Wheeler had been declared nominated for said office by the republican party in said county. Her said nomination had been certified and acknowledged, and the certificate had been duly filed in the office of the clerk of the county court. Her name accordingly appeared (in advance of the election) upon the printed official ballot, as prepared for use at the election. The official ballot contained no other printed name as nominee for said office. The county tickets of the other political parties all showed blanks under the name of the office of clerk of the county court.

At the close of the election, it was found that Mrs. Wheeler had 1938 votes for the office, while Mr. Hostetter had received 92. He so certified as county clerk. In due time Mrs. Wheeler received her commission from the Governor, and thereupon duly qualified, having complied with all the required forms of law, notwithstanding which, the defendant still holds possession of the office. The object of this proceeding is to test his right to do so, from and after January 4, 1897, the date on which Mrs. Wheeler took the last formal step toward qualifying to enter upon the duties of the office.

There are two general grounds on which defendant seeks to justify the position he has assumed.

1. Defendant first contends that there was, in legal effect; no vacancy to be filled at the election of 1896. The substance of the argument on that point is that the existing ballot law makes no provision for a nomination to fill such a vacancy, occurring within fifteen days of the general election; and hence that no election to fill the vacancy could properly be held in the circumstances of this case.

But we consider section 1964'a complete answer to that contention, when-read in connection with section 4766 as amended in 1893 (Laws, 1893, p. 155):

“Sec. 1964. Vacancy, how filled. When any vacancy shall occur in the office of any clerk of a court of record by death, resignation, removal, refusal to act or otherwise, it shall be the duty of the governor to fill such vacancy by appointing some eligible person to said office, who shall discharge the duties thereof until the next general election, at which time a clerk shall be chosen for the remainder of the term, who shall hold his office until his successor is duly elected and qualified, unless sooner removed.”

A special provision governing the filling of a vacancy in a particular office should be obeyed, even as against a later law on the same general topic, unless the court finds ground to conclude that' the later general law was intended to repeal or limit the more particular provision of the prior law.

But the terms of section 4766, as amended in 1893, show no intent to repeal any part of section 1964, touching the conduct of an election to fill such a vacancy.

The word “vacancy” as it is found in the last proviso of section 4766, no doubt means, as the learned counsel for defendant contend, a vacancy in some nomination. But where, by reason of death, as in this case, a vacancy in an office occurs shortly before a general election at which some one to fill the office for the unexpired term should be chosen, and no one has been nominated to said office, there is a vacancy in the nominations within the meaning of the election law. The omission to make a nomination for an office to be filled at the ensuing election constitutes a vacancy on the ticket, and it is the plain duty of the officers who prepare the official ballots to cause the name of any such office to be printed on the ballot whether any nomination thereto has or has not been formally certified. Under section 4766 of the election law, such a “vacancy” certainly may be supplied at any time prior to the election, by a nomination authenticated in the mode pointed out by the ballot law.

But even if we should concede that the vacancy caused by the death of Mr. Wheeler happened too late to permit of placing a formal printed nomination on the ballot, under the present ballot law, the people would nevertheless have the right to express their choice by writing on the ballot the name of any qualified person whom they desired to designate for any office which the law (section 1964) permitted to be then filled by election. The electors are not restricted to the names or offices printed on the official ballot. People v. Shaw (1892) 133 N.Y. 493" court="NY" date_filed="1892-06-17" href="https://app.midpage.ai/document/people-ex-rel-bradley-v--shaw-3629436?utm_source=webapp" opinion_id="3629436">133 N. Y. 493 (31 N. E. Rep. 512); People v. President (1895), 144 N.Y. 616" court="NY" date_filed="1895-02-05" href="https://app.midpage.ai/document/people-ex-rel-goring-v-president--board-of-trustees-3603056?utm_source=webapp" opinion_id="3603056">144 N. Y. 616 (39 N. E. Rep. 641); Sanner v. Patton (1895) 155 Ill. 553" court="Ill." date_filed="1895-04-02" href="https://app.midpage.ai/document/sanner-v-patton-6966184?utm_source=webapp" opinion_id="6966184">155 Ill. 553 (40 N. E. Rep. 290); Cole v. Tucker (1895) 164 Mass. 486" court="Mass." date_filed="1895-10-19" href="https://app.midpage.ai/document/cole-v-tucker-6425400?utm_source=webapp" opinion_id="6425400">164 Mass. 486 (41 N. E. Rep. 681).

We hence conclude that the election of a county clerk was properly held at the general election in St. Clair county in November last.

2. The question then remains whether Mrs. Wheeler is ineligible.

Some objections of a technical nature are raised by the plaintiff against any consideration of that question on this occasion. But we pass them by, because we find it unnecessary to decide them, since we have reached the conclusion that Mrs. Wheeler is eligible.

The qualifications required of incumbents of certain offices in Missouri are prescribed by the constitution. For instance, the Governor, Lieutenant-governor, Secretary of state, Auditor, Treasurer, Attorney-general and Superintendent of public schools must be “male” citizens, as must also be the members of the General Assembly. Const. 1875, art. 4, secs. 4 and 6; art. 5, secs. 5, 15 and 19. Every circuit judge must be a “qualified voter,” which requirement is in effect the same as the word “male” imposes (as used in reference to the state officers above named). Const, art. 6, sec. 26; art. 8, sec. 2.

The following general command of the organic law applies to all offices (including, of course, that in view in this case): “No person shall be elected or 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 next preceding his election or appointment.” (Art. 8, sec. 12.)

There is no provision of the constitution, or of the statute law of Missouri, expressly requiring the clerk of the county court to be a male. But it is argued that the intent to so declare appears from the use of the word “7lis” in the section of the constitution just quoted, referring to all offices.

If this view is sound, then the special caution observed in the constitution by the sections requiring the state officers above mentioned to be males was wholly useless, as the general section last cited would imply that requirement. A construction of the constitution which renders meaningless any of its provisions should not be adopted.

It is part of the general law of the State (and was before the time of the present constitution) that where persons are referred to by words importing the masculine gender, females as well as males shall be deemed included thereby, unless a contrary intent appears by the context or otherwise. R. S. 1855, p. 1024, sec. 10; R. S. 1889, sec. 6568-9. The mere use of the word “his” in the constitution, in referring to the qualification of officers, we do not regard as evidencing a purpose to limit all office-holding to the male sex, or as depriving the people of St. Clair county of the right to select a woman as clerk of their county court.

The section of the constitution last above quoted was a new enactment in the organic law of 1875. In view of the care'with which the electoral franchise was. limited to males by the terms of the second section of the same article of the constitution, the omission of similar language, in negatively defining certain qualifications of office-holding, has a significance which tends toward the conclusion we have reached in this case.

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. Art. 6, sec. 39.

Turning to the statute law we find this provision in regard to the qualifications of clerks of the county court, viz:

“Sec. 1965. Qualifications of a clerk. — No person shall be appointed or elected clerk of any court, unless he be a 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 three months before the election; and every clerk shall, after his election, reside in the county for which he is clerk.”

The above section and several other neighboring sections concerning clerks exhibit the words “he” and “his” in treating of these offices. But we do not regard that fact as of moment when we recall the general rule for construction of laws, above alluded to (section 6568).

Women in Missouri have been licensed as attorneys at law by the supreme court. They have for years been recognized as eligible to office as notaries public. A woman now holds the responsible office of state librarian by appointment of the supreme court. Yet all of the laws under which such action has been taken display similar language to that in the law regarding clerks of courts from which the learned counsel for defendant seek to draw the inference that only males are eligible as such clerks. R. S. 1889, secs. 605, 607, 608, 7109, 7110, 8198, 8199, 8202.

The particular qualifications pointed out by section 1965 (except those of citizenship and age) are far less vital and important than that of sex. If the lawmakers had regarded sex as determining eligibility, it seems to us that they would have expressed themselves plainly to that effect, as they did in former years. 'They have so expressed themselves in other statutes; .as, for instance in the school law, which requires directors in certain cities to have the qualifications of voters. R. S. 1889, sec. 8086. We have held that as only males can be voters, under the constitution of 1875, a woman is not eligible to be a school director under the section cited. State ex rel. Ing v. McSpaden (1897), 137 Mo. 628" court="Mo." date_filed="1897-02-20" href="https://app.midpage.ai/document/state-ex-rel-ing-v-mcspaden-8012386?utm_source=webapp" opinion_id="8012386">137 Mo. 628 (39 S.W. 181" court="Tex. App." date_filed="1897-01-20" href="https://app.midpage.ai/document/seay-v-fennell-3905302?utm_source=webapp" opinion_id="3905302">39 S. W. Rep. 181). The fact that in the la,w governing clerks of courts no similar requirement .appears is a clear pointer to the conclusion that no such qualification was intended to be demanded.

Moreover, the change which the legislature has made in the language of the law on this very subject has much meaning in solving the question before this division.

In 1855 the present section 1965 had the form shown in the copy below. It so remained until 1879 when it was amended by dropping the words we have noted by italics, viz:

“No person shall be appointed or elected clerk of any court, unless he be a free white 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, three months, before the election; and every clerk shall, after his election, reside in the county for which he is clerk.” (R. S. 1855, p. 336, sec. 10.)

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?

It is always allowable in interpreting statutes to consider the prior law as compared with the present, in endeavoring to reach the true intent of the legislature which, when found, is the spirit of the law that the courts should enforce. That women may be citizens of the United States and of Missouri is a proposition that requires no discussion at this day. Minor v. Happersett (1874), 21 Wall. 162" court="SCOTUS" date_filed="1875-03-29" href="https://app.midpage.ai/document/minor-v-happersett-88998?utm_source=webapp" opinion_id="88998">21 Wall. 162; State ex rel. v. County Court (1887), 90 Mo. 593" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/state-ex-rel-mccampbell-v-county-court-8008888?utm_source=webapp" opinion_id="8008888">90 Mo. 593 (2 S. W. Rep. 788).

Mrs. Wheeler is a citizen of the United States and of this State. She is over the age of 21 years. She has resided in Missouri one year next preceding her election, and she possesses all the. other qualifications named in section 1965. It is conceded that she is in all respects qualified, barring the supposed objection on account .of her sex.

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..

We regard the question at bar as one depending on the force and intent of the law of this State, organic and statutory. We hold that, under'that law, there is no express or implied barrier to the election of a woman to such an office as that in question in this case, and that her fellow citizens may call her to discharge its duties if they see fit.

Mrs. Wheeler is qualified to hold the office, and Mr. Hostetter is not entitled to retain it on the facts disclosed. Hence the demurrer will be overruled, and judgment of ouster will be entered against defendant unless he plead further within ten days.

Macfarlane, Bobinson, and Brace, JJ., concur.^*