In re Opinion of the Justices

• Decision Date: 04 October 1927
• Citation: 139 A. 180
• Parties: In re OPINION OF THE JUSTICES.
• Court: New Hampshire Supreme Court

139 A. 180

In re OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

Oct. 4, 1927.

Request by the Governor and Council, through the Secretary of State, for the opinion of the Justices of the Supreme Court on certain questions. One question answered.

Application having been made to the Governor and council by Jennie Blanche Newhall to be appointed a justice of the peace, they directed the secretary of state to request the opinion of the justices upon the following questions:

(1) Does the Constitution of New Hampshire disqualify a woman from being appointed a justice of the peace by the Governor and

Council?

(2) Has the Ninteenth Amendment to the United States Constitution changed the fundamental law so that women may now be appointed to the same offices as men, so far as the Constitution of New Hampshire is concerned?

Jennie Blanche Newhall, of Concord, pro se.

The following answer was returned: To His Excellency, the Governor, and the Honorable Council:

The undersigned, the justices of the Supreme Court make the following answer to your inquiries, forwarded to us through the secretary of state:

I. Your first inquiry relates to the power to appoint women to the office of justice of the peace. The office is named in our Constitution. Accompanying your inquiry is the suggestion that all constitutional limitations upon the capacity of women to hold office were abrogated by the Ninteenth Amendment to the Constitution of the United States. Authorities from Massachusetts and other states are cited to sustain this position.

The suggestion that the conclusion reached by the justices of the Supreme Judicial Court of Massachusetts (Opinion of the Justices, 240 Mass. 601, 135 N. E. 173) is an authority for the proposition that under their Constitution women are now eligible to appointive offices, and that enabling legislation is unnecessary, is not well founded. That opinion is carefully limited to the matter there under consideration. It deals only with constitutional limitations as to certain offices, and with the power of the Legislature to pass an enabling act.

The justices were of opinion that under the Constitution of Massachusetts the limitation of the office holding privilege to men was an implied one. This view rendered necessary a consideration by them of the effect of the federal amendment upon such implication. The earlier opinions in Massachusetts, upon which reliance is there placed, all deal with appointive offices. Those earlier opinions being put upon the ground that there was in their Constitution a general implied inhibition against women holding public office, there had been no occasion to take up the question whether there might also be an express prohibition as to elective offices. And in the Opinion of the Justices, 240 Mass. 601, 135 N. E. 173, it is suggested that, if the use of the word "male" in describing the qualification for voters were to be treated as also relating to the right to hold office, the elimination of that qualification for voters removed "all express limitation upon eligibility for office founded upon sex created or recognized by the Constitution." Id.

As we understand the reasoning of that opinion, it concludes that the inference theretofore drawn, that there was an implied, intent upon the part of the framers of their Constitution to exclude women from public office, could not be drawn after the federal amendment conferred upon women the right of suffrage. But it seems to us that, if there was such an original intent, it could not be reversed or altered by any subsequent event. The intent of the framers of the Constitution, in the use of certain language, was a completed fact when the words were written. Subsequent change of that intent is plainly impossible. In our opinion a present right for women to hold office cannot be based upon the grounds mentioned.

The conclusion of the justices in Massachusetts (240 Mass. 601, 135 N. E. 173) is the same as that of a majority of the justices in Maine (Opinion of the Justices, 62 Me. 596). The view there adopted is that, because by the common law women did not hold public office, therefore the framers of the Constitution understood that office holding was limited to men by that document, although no mention of the subject was made therein. But the minority of the Maine justices thought otherwise (Id.), and their view was adopted by the court of Kansas, in an opinion written by Mr. Justice Brewer (Wright v. Noell, 16 Kan. 601).

Upon a later occasion, the justices of Maine seem to imply that they concur in the earlier minority view. Opinion of the Justices, 119 Me. 603, 113 A. 614. The statement that "there was neither sentence, clause, nor word in the Constitution forbidding the passage of a legislative act authorizing the appointment of women as justices of the peace" is quoted with apparent approval, although the majority found other grounds upon which to reach the conclusion that women are now eligible to office in that state.

The authorities elsewhere appear to be unanimous in the opinion that there are now no constitutional limitations upon the eligibility of women to public office. The conclusion is not always based upon the same reasoning, and is of course reached with reference to the particular provisions of the Constitution of the state where the question arose.

In addition to the removal of constitutional inhibitions, express or implied, it is the conclusion in most states that legislative action, abolishing the common-law rule of disability, is also required to enable women to hold office. Apparently that view still obtains in Massachusetts, as the Opinion of the Justices, 240 Mass. 601, 135 N. E. 173, was given in response to a legislative inquiry as to the power to enact such legislation. Had the legislation been unnecessary, it seems probable that the justices would have so advised. See, also, Opinion of the Justices, 237 Mass. 591, 130 N. E. 685; Opinion of the Justices, 119 Me. 603, 113 A. 614; State v. James, 96 N. J. Law, 132, 114 A. 553, 16 A. L. R. 1141; People v. Barltz, 212 Mich. 580, 180 N. W. 423, 12 A. L. R. 520.

In order to reach a conclusion as to the particular matter inquired about, it becomes necessary to examine the general subject of the provisions of our Constitution as to office holding capacity. The express provisions applicable to the matter under consideration are as follows:

"* * * Every inhabitant of the state, having the proper qualifications, has equal right to elect, and be elected, into office. * * *" Bill of Rights, art. 11.

"Every male inhabitant of each town * * * shall have a right * * * to vote in the town." Const. pt. 2, art. 28.

"Every person, qualified as the Constitution provides, shall be considered an inhabitant for the purpose of electing and being elected into any office." Id. art. 30.

The meaning of these provisions is entirely clear. The right of suffrage is made the general test of the right to hold elective office. The Nineteenth Amendment to the Constitution of the United States having made women qualified voters upon equal terms with men, the suggestion is made that by force of this change they are now also qualified to hold office.

As opposed to this conclusion, it is argued (and rightly) that the federal amendment affects our Constitution only so far as may be necessary to give full and substantial effect to the supreme law. It is also said that, as the provision as to office holding refers to the then existing limitation of the suffrage right to limit the office holding right, the latter right is not enlarged by a change of the former. It being provided that the qualifications prescribed in the Constitution should be the test for office holding capacity, it is argued that a federal amendment making those qualifications void as to the right to vote has no effect upon their validity as limitations upon the right to hold office. The argument is not without weight, but it is not conclusive of the present problem. The vital question is whether the provision as to office holding was originally meant to be an independent one, or whether the idea sought to be expressed was that all voters should be eligible to elective offices. The latter is the true construction. The fundamental idea was and is that the rights of electing and being elected are equal, save for the specific constitutional limitations as to certain offices.

The federal amendment, relating to the right of suffrage only, did not change or impair the provisions of our Constitution limiting the right to hold office. Those provisions remain what they were...