Bickett v. Knight

• Decision Date: 25 May 1915
• Docket Number: (No. 547.)
• Citation: 85 S.E. 418,169 N.C. 333
• Court: North Carolina Supreme Court
• Parties: BICKETT, Atty. Gen. v. KNIGHT.

85 S.E. 418

169 N.C. 333

BICKETT, Atty. Gen.

v.KNIGHT.

(No. 547.)

Supreme Court of North Carolina.

May 25, 1915.

Clark, C. J., and Brown, J., dissenting.

Appeal from Superior Court, Buncombe County, Webb, Judge.

Action by the State, on the relation of the Attorney General, against Nolan Knight. Judgment for defendant, and the State appeals. Reversed.

This is an action instituted by the state, upon the relation of the Attorney General, against the defendant, a married woman, to inquire into and test her right to hold the position of notary public under chapter 12 of the Public Laws of 1915, which provides:

"That the Governor is hereby authorized to appoint women as well as men to be notaries public, and this position shall be deemed a place of trust and profit, and not an office."

There was a judgment in favor of the defendant, and the state appealed.

T. W. Bickett, Atty. Gen., for the State. Martin, Rollins & Wright, of Asheville, and John A. McRae, of Charlotte, for appellee.

ALLEN, J. There are five questions directly or indirectly involved in this appeal:

(1) Is a woman a voter in North Carolina?

(2) If not a voter, is she eligible to office?

(3) Is the position of notary public a public office?

(4) If an office, can the General Assembly affect its character by calling it a "place of trust and profit, " without changing its functions?

(5) Has this court the power to say that the General Assembly has exceeded its authority, and that the act passed by it is unconstitutional?

The right to hold the position of notary public is of slight moment to the women of the state or to the public, but it is of supreme importance that these questions shall be correctly decided, because they involve constitutional principles, and we approach their consideration mindful of our duty to declare what the law is, and not what we would have it to be, and of our obligation to maintain and uphold the Constitution until it is changed by the people, in whose hands the power of amendment rests.

1. Is a woman a voter in North Carolina, and can she be one without Constitutional amendment?

The law writers agree that the right of suffrage is not a natural or inherent right, and that it is a privilege conferred by the state.

Judge Cooley, in his treatise on Constitutional Law (page 260) says:

"Suffrage cannot be the natural right of the individual, because it does not exist for the benefit of the individual, but for the benefit of the state itself. Suffrage must come to the individual, not as a right, but as a regulation which the state establishes as a means of perpetuating its own existence, and of insuring to the people the blessings it was intended to secure. Suffrage is never a necessary accompaniment of state citizenship, and the great majority of the citizens are always excluded, and are represented by others at the polls."

And in 15 Cyc. 280, the editor sums up the authorities in the following statement of the law:

"In all periods and in all countries it may be safely assumed that no privilege has been held to be more exclusively within the control of governmental power than the privilege of voting; each state in turn regulating the subject by sovereign political will. The right of suffrage once granted may be taken away by the exercise of sovereign power, and, if taken away, no vested right is violated or bill of attainder passed. None of the elementary writers include the right of suffrage among the rights of property or of person. It is not an absolute unqualified personal right, but is altogether conventional. It is not a natural right of the citizen, but a franchise dependent upon law, by which it must be conferred to permit its existence."

If, therefore, the right to vote is not a natural right, but one conferred by law, only those can exercise the privilege upon whom it is conferred, and when we turn to our Constitution (article 6, § 1) we find it provided that:

"Every male person born in the United States, and every male person who has been naturalized, twenty-one years of age, and possessing the qualifications set out in this article, shall be entitled to vote at any election by the people in the state, except as herein otherwise provided."

And, as the privilege of voting is not a natural right, and is conferred on males alone, this, of course, excludes females.

The exact question was considered in Spencer v. Board, 1 McArthur, 169, 29 Am. Rep. 582, Gougar v. Timberlake, 148 Ind. 38, 46 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 487, and in People v. Barber, 48 Hun (N. Y.) 198, and it was held in each that women are excluded from voting under a constitution which confers the right to vote on males, and in Minor v. Heppersett, 88 (21 Wall.) U. S. 162, 22 L. Ed. 627, the whole decision rests upon the assumption that this is the law.

2. If not a voter, can a woman hold office in North Carolina?

We turn again to the Constitution, and find it provided in article 6, § 7, that:

"Every voter in North Carolina, except as in this article disqualified, shall be eligible to office."

And the construction placed upon this section by our court in an opinion written by Chief Justice Clark in Pace v. Raleigh, 140 N. C. 65, 52 S. E. 277, is that no one can hold office who is not a voter. He says in that case:

"Nor have we been inadvertent to the fact that under the former constitutional provision one who was an 'elector, ' that is, qualified to register, was eligible to office, though not registered, and that under the 'amendment' no one is eligible to office unless he is 'voter.' "

The language "except as in this article disqualified" refers to voters—males—who deny the existence of God, or who have been convicted of crime. Article 6, § 8. In other words, voters are eligible to office except as they are disqualified, and the word "persons, " appearing in section 8, while comprehensive enough to include women, only applies to voters, as they are the only persons referred to in the article. This is the construction placed on these sections of the Constitution in Lee v. Dunn, 73 N. C. 602, which is cited with approval in State ex rel. Attorney General v. Bateman, 162 N. C. 588, 77 S. E. 768. The court says:

"The Constitution (article 6, § 1) prescribes the qualification of voters to be as follows: 'Every male person, etc., twenty-one years old or upwards, who shall have resided in this state twelve months next preceding the election, and thirty days in the county in which he of-fers to vote, shall be deemed an elector.' The fourth section is as follows: 'Every voter, except as hereinafter provided, shall be eligible to office', etc. The exception above is contained in the fifth section, as follows: 'The following classes of persons shall be disqualified for office: First, all persons who shall deny the being of Almighty God. Second, all persons who shall have been convicted of treason, perjury, or of any other infamous crime; or of corruption or malpractice in office; unless such person shall have been legally restored to citizenship.' So that every voter who does not deny the being of God, and has not been convicted of crime, is eligible to office in this state. And this comes so near including every man that it may be said that almost every man is eligible to office; that is to say, is electable, if the people choose to elect."

This statement of the law is in accord with authority elsewhere.

In Mechem on Public Officers, § 64, the author says:

"The right to hold a public office under our political system is not a natural right. It exists, where it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it."

And in section 69:

"Where no limitations are prescribed, however, the right to hold a public office under our political system is an implied attribute of a citizen, and is presumed to be coextensive with that of voting at an election held for the purpose of choosing an incumbent of that office; those and those only who are competent to select the officer being competent to hold the office."

And in State v. Murray, 28 Wis. 96, 9 Am. Rep. 489, the court says:

"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 functions of a free and independent 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."

This conclusion that only voters are eligible to office under our Constitution is an application of the maxim, "Expressio unius est exclusio alterius, " of which the Supreme Court of Illinois said, in People v. Hutchinson, 172 Ill. 498, 50 N. E. 599, 40 L. R. A. 770, quoting from State v. Wrightson, 56 N. J. Law, 201, 28 Atl. 56, 22 L. R. A. 548:

"In the construction of statutes it is a cardinal rule, which applies as well to constitutional provisions, that when the law is in the affirmative that a thing shall be done by certain persons or in a certain manner, this affirmative matter contains a negative that it shall not be done by other persons or in another manner, upon the maxim, 'Expressio unius est exclusio alterius.' " 1 Plow. 206; 9 Bac. Ab. 235; Sedg. Stat. Con. 30.

Under this rule, as the Constitution says affirmatively that "every voter, etc., shall be eligible to office, " the affirmation contains the negative that no one except a voter can hold office. It follows that, as a woman is not a voter, she is not eligible to office.

3. Is the position of notary public an office?

What is the definition of "notary public" as given by the lexicographers? Black's Law Dictionary: "A public officer whose functions are, " etc. Bouvier's Law Die.: "An officer appointed by, " etc. The Century: "A public officer authorized, " etc. Webster: "A public officer who, " etc.

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