In re Opinion of the Justices

• Decision Date: 13 April 1922
• Citation: 135 N.E. 173,240 Mass. 601
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 601

135 N.E. 173

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 13, 1922.

Answers to questions propounded to the Justices of the Supreme Judicial Court by the Senate concerning the eligibility of women to hold office.

To the Honorable Senate and House of Representatives:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in the order of February 16, 1922.

The questions are considered strictly with reference to the pending bill, copy of which accompanies the order.

Prior to the adoption of the Nineteenth Amendment to the Constitution of the United States women were not voters and could not be made by the General Court voters at state elections or for state officers. Theretofore by the Constitution of this commonwealth every male citizen of twenty-one years of age and upwards, except paupers and persons under guardianship and persons temporarily or permanently disqualified by law because of corrupt practices in respect to elections, who had resided within the commonwealth one year and within the town or district in which he claimed a right to vote six calendar months next preceding any election, except that in cases of change of residence within the Commonwealth the right to vote in the place of former residence continued for a period of six calendar months, and who was able to read the Constitution in the English language and write his name unless prevented by physical disability or unless entitled to vote on May 1, 1857, had a right to vote, and no other person was entitled to vote. See Const. Mass. c. 1, § 2, art. 2, chapter 1, § 3, art. 4, and articles 3, 17, 20, 28, 30, 31, 32 and 40 of the Amendments to that Constitution. Opinion of the Justices, 226 Mass. 607, 115 N. E. 921.

Prior to the adoption of the Nineteenth Amendment to the federal Constitution women were not eligible for election or appointment to any office established by the Constitution. That is clear from several opinions of the Justices.

In 1871 the Governor and council requested an opinion on the question whether a woman could legally be appointed as a justice of the peace, an office recognized by the Constitution. In reply to that question it was said in an opinion by the justices in 107 Mass. 604, 605:

‘By the Constitution of the commonwealth, the office of justice of the peace is a judicial office, and must be exercised by the officer in person, and a woman, whether married or unmarried, cannot be appointed to such an office. The law of Massachusetts at the time of the adoption of the Constitution, the whole frame and purport of the instrument itself, and the universal understanding and unbroken practical construction for the greater part of a century afterwards, all support this conclusion, and are inconsistent with any other. It follows that, if a woman should be formally appointed and commissioned as a justice of the peace, she would have no constitutional or legal authority to exercise any of the functions appertaining to that office.’

That principle was affirmed and amplified in Opinion of the Justices, 150 Mass. 586, 23 N. E. 850,6 L. R. A. 842. See Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627. In Opinion of the Justices, 165 Mass. 599, 602,42 N. E. 927, 928 (32 L. R. A. 350) it was said:

‘There is nothing in the Constitution which in terms prohibits women from being appointed to judicial offices, any more than from being appointed to military offices or to the executive civil offices, the tenure and mode of appointment of which are provided for in the Constitution. It was the nature of the office of justice of the peace, and the usage that always had prevailed in making appointments to that office, that led the Justices to advise that it could not have been the intention of the Constitution that women should be appointed justices of the peace. 107 Mass. 604.’

The reasoning of these opinions applied to all elective or appointive officers named or described in the Constitution.

The power of the General Court to determine the selection and qualification of civil officers not otherwise ordained by the Constitution was confined to enactments to the effect that women might be eligible to certain administrative or executive offices not named or described in the Constitution. Opinions of the Justices, 115 Mass. 602;Id., 136 Mass. 578; Robinson's Case, 131 Mass. 376, 41 Am. Rep. 239.

[3] The Nineteenth Amendment was validly adopted and has become a part of the Constitution of the United States. That amendment is binding upon the people and the several departments of government of this commonwealth. Leser v. Garnett, 258 U. S. 130, 42 Sup. Ct. 217, 66 L. Ed. 505, decided February 27, 1922. That amendment declares that--

‘The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.’

It makes no provision concerning the right to hold office. By its own force it struck from the Constitution of this commonwealth the word ‘male’ wherever it occurred as a limitation upon the right of the citizen to vote. Opinion of the Justices, 237 Mass. 591, 130 N. E. 685. This is the extent of its operation. It contains no declaration concerning the right to hold office. That amendment, like all other provisions of the Constitution of the United States, is complete in itself. It is supreme within its sphere. The federal government possesses all incidental powers necessary to execute it. But under our dual system of government no implications extend the powers of the United States beyond those granted.

‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ Article 10 of the Amendments to the United States Constitution; Hodges v. United States, 203 U. S. 1, 16, 27 Sup. Ct. 6, 51 L. Ed. 65.

The power to fix the qualifications of those who shall hold state as distinguished from federal office is to be determined by the several states according to their differing needs and varying views of internal policy, subject to any controlling provisions of the federal Constitution.

The right to hold office is not necessarily coextensive with the right to vote. That is recognized by the Constitution of the United States. The President of the United States must be a natural-born citizen of the United States, at least thirty-five years of age, and fourteen years a resident within the United States. Article 2, § 1. A Senator must have attained the age of thirty years, been nine years a citizen of the United States, and be a citizen of the state from which he is chosen. Article 1, § 3. A representative to the Congress must be twenty-five years old, seven years a citizen of the United States, and an inhabitant of the state from which he is elected. Article 1, § 2. These qualifications are in addition to those of voters for these offices. Const. U. S. art. 1, § 2; article 2, § 1; article 17 of the Amendments.

There are several provisions in the Constitution of Massachusetts and its amendments which illustrate the principle that eligibility to office is not an incident of the right to vote. By chapter 1, § 2, art. 5, no person was capable of being elected a senator or councillor who was not seized in his own right of a freehold within the commonwealth of the value of £ 300 at least or possessed of personal estate to the value of £>>>>>>>>>>>>>>>>>>>>600 or of both to the amount of the same sum, and who had not been an inhabitant of this commonwealth for the space of five years immediately preceding his election and who was not at the time of his election an inhabitant of the district for which he was chosen. By chapter 1, § 3, art. 3, every member of the House of Representatives was required to be for at least one year preceding his election an inhabitant of and seized in his own right of a freehold of the value of £>100 within the town he shall be chosen to represent or any ratable estate to the value of £200. By chapter 2, § 1, art. 2, no person was eligible to the office of Governor unless at the time of his election he had been an inhabitant of the commonwealth for seven years next preceding and unless seized in his own right of a freehold within the commonwealth of the value of £1,000 pounds and unless he declared himself to be of the Christian religion. The same conditions as to the eligibility of persons for lieutenant governor were imposed by chapter 2, § 2, art. 1. By chapter 1, § 2, art. 2; chapter 1, § 3, art. 4 and chapter 2, § 1, art. 3, electors for councillors, senators and members of the House of Representatives and for the Governor were required to have a freehold estate of the annual income of £3 or any estate of the value of £60, with the qualifications as to residence therein stated. All property and religious qualifications for holding office have been abolished from time to time, the last in 1892 by article 34 of the Amendments to the Constitution. Property qualifications for voters also have been removed. The Governor must now have been an inhabitant of the commonwealth for seven years,¹ councillors,² the secretary, treasurer and receiver general, auditor and Attorney General ³ for five years respectively, senators for five years and also inhabitants of the districts for which chosen, and representatives for one year inhabitants of the district for which chosen. ⁵ As has already been pointed out, the qualifications for the voter as to length of residence are less stringent. The use of the words ‘the right to vote, or be eligible to office’ in article 20 of the Amendments, and the words ‘shall be entitled to vote, or shall be eligible to office’ in articles 23 and 26 of the Amendments, show that the eligibility to office is not necessarily coterminous with the right to vote.

Thus it is apparent that the question whether one has a right to hold office...