16 Kan. 601 | Kan. | 1876
The opinion of the court was delivered by
Is a woman eligible to the office of county superintendent? In favor of it is the fact that the constitution contains no express disqualification of her, and no affirmative statement of the qualifications therefor, leaving, as is
“A superintendent of public instruction shall be'elected in each county, whose term of office shall be two years, and whose duty and compensation shall be prescribed bv law.” (Art. 6, §1.) _ _ '
_ _ There is here not only no express disqualification of females, and no affirmative statement of qualifications which would exclude them, but also nothing in the shape of pronoun, or in the terminology, or in the duties imposed, which would imply the necessary or intended exclusion of either sex. But it is said, that there is such a connection between voting and office-holding, that excluding females from the former, is by implication an exclusion of them from the latter; and that in the language of Ch. J. Dixon of "Wisconsin, it is “an enormous absurdity that a person who by the organic law of the state has not one voice among thousands in designating by whom an office shall be filled, may himself be elected to such office, and enjoy its franchises and perform its duties.”
In reference to the argument that at the time of the adoption of the constitution there was no serious thought of woman’s holding the office, and therefore that the framers thereof could not have intended by that instrument to authorize it, we cannot do better than to quote from the dissenting opinion of Justices Walton and Barrows of the supreme court of Maine, in reply to the question whether in that state a woman could under the constitution hold the office of justice of the peace:
“It may be true, that the framers of the constitution did not contemplate, did not affirmatively intend, that women should hold office. But it by no means follows that they intended the contrary. The truth probably is, that they had no intention one way or the other; that the matter was not even thought of. And it will be noticed that the unconstitutionality of such a law is made to rest, not on any expressed intention of the framers of the constitution that women should not hold office, but upon a presumed absence of intention that they should. This seems to us a dangerous doctrine. It is nothing less than holding that the legislature cannot enact a law unless it appears affirmatively that the framers of the constitution intended that such a law should be enacted. We cannot concur in such a doctrine. It would put a stop to all progress. We understand the correct rule to be the reverse of that, namely, that the legislature may enact any law that they may think proper, unless it appears affirmatively that the framers of the constitution intended that such a law should*607 not be passed. And the best and only safe rule for ascertaining the intention of the makers of any written law, is to abide by the language they have used; and this is especially true of written constitutions, for in preparing such instruments it is but reasonable to presume that every word has been carefully weighed, and that none are inserted, and none omitted without a design for so doing.’’
There is but little of authority to be cited upon this question. In the state of Maine five of the eight Justices were of the opinion that under the constitution a woman could not hold the office of justice of the peace, but could be authorized to administer oaths, take acknowledgment of deeds, and solemnize marriages. (Chicago Legal News, vol.7, p. 10; 62 Maine, 596.) To a question of the legislature, whether under the constitution women could act as members of a school committee, the supreme court of Massachusetts replied as follows:
“The question is limited to the effect of the constitution upon the capacity of a woman to hold this office, and involves no interpretation of statutes. If the constitution prevents a woman from being a member of a school committee, it must be by force of some express provision thereof, or else by necessary implication, arising either from the nature of the office itself, or from the law of Massachusetts as existing when the constitution was adopted, and in the light of which it must be read. But the constitution contains nothing relating to school committees; the office is created and regulated by statute; and the constitution confers upon the general court full power and authority to name and settle annually, or provide by fixed laws for naming and settling all civil officers within the commonwealth, the election and qualification of whom are not in the constitution otherwise provided for. The common law of England, which was our law upon the subject, permitted a woman to fill any local office of an administrative character, the duties attached to which were such that a woman was competent to perform them. The duties of a school committee relate exclusively to the education of children and youth in the town or city for which it is elected. They consist of the general charge and superintendence of the schools, including the employment of teachers, the selection of school-books, the regulation of the attendance of scholars, and the preparation of school registers and returns; and they are in no respect of*608 such a nature that they cannot be well and efficiently performed by women. The necessary conclusion is, that there is nothing in the constitution of the commonwealth to prevent a woman from being a member of a school committee, and the proposed question must be respectfully answered in the affirmative.” (115 Mass. 602.)
Without pursuing this matter further, our conclusion is, that women are in this state eligible to the office of county superintendent. The judgment therefore will be reversed, and the case remanded with instructions to proceed in accordance with the views herein expressed.