State ex rel. Crow v. Hostetter

• Decision Date: 20 February 1897
• Citation: State ex rel. Crow v. Hostetter, 137 Mo. 636, 39 S.W. 270 (Mo. 1897)
• Parties: The State ex rel. E. C. Crow, Attorney-General, v. Hostetter
• Court: Missouri Supreme Court

39 S.W. 270

137 Mo. 636

The State ex rel. E. C. Crow, Attorney-General, v. Hostetter

Supreme Court of Missouri, First Division

February 20, 1897

Judgment of ouster entered.

Edward C. Crow, attorney-general, with Graves & Clark and Francisco Bros. for relator.

(1) The provisions of the law for filling vacancies, section 1964, Revised Statutes 1889, govern, as against the general statute upon the same subject. State ex rel. v. Rankin, 49 N.W. 1121. (2) Where the time or tenure is fixed, and no provision for holding over is found, then the tenure ceases on the day fixed in the statute creating the tenure, and the right to hold ceases upon that day. State ex rel. v O'Leary, 66 N.W. 264. (3) Maggie B. Wheeler is duly commissioned and qualified on the face of the record. Her certificate and commission are prima facie evidence of her title to the office, and neither her eligibility or the regularity of the election can be questioned in this proceeding. If she is ineligible, or has not been legally elected, that is a question to be determined in a direct proceeding against her, if she enters and takes possession of the office. Com. ex rel. v. Kempsmith, 13 Pa. Co Ct. 667; Stevens v. Carter (Or.), 40 P. 1074; State v. Johnson, 16 S. Rep. (Fla.) 786; State v. Callahan, 61 N.W. (N. D.) 1025; Cameron v Parker, 38 P. 14 (Okl.) ; Huffman v. Mills, 18 P. 516; St. Louis County v. Sparks, 10 Mo. 117; Reg. v. Morton, 45 E. C. L. R. 146. The record shows that Hostetter sent out the ballots, as the official ballots, and he is now estopped from denying or questioning their validity. Bowers v. Smith, 111 Mo. 45. (4) There is no inhibition in the constitution against a woman. While as to some officer the constitution says, the person to be eligible must "be a male citizen of the United States" (Const. of Mo., art. 5, sec. 19), yet there is nothing concerning clerk of county court, except the general inhibition, which does not bar a woman. Const. of Mo., art. 8, sec. 12; Const. of Mo., art. 6, sec. 39; Const. of Mo., art. 14. (5) There is no statutory inhibition. The constitution, article 6, section 39, recognizes the office and makes it elective, but leaves the further particulars thereof to the legislature. The statute does not in words expressed, or by implication, bar a woman from holding this office. R. S. 1889, sec. 1965. (6) Nor was or is she barred from an office of this kind, by the common law. Comyn's Digest, Laws of England, tit. Officer, B. 2, and cases cited; Chitty, Prerog. Crown, 84; Opinion of the Justices, 115 Mass. 602; Bac. Abr., tit. Offices and Officers, I; 2 Ld. Raym. 1014; Rex v. Stubbs, 2 T. R. 395; Throop's Public Officers, sec. 68, et seq. (7) And in this country the common law rule thus announced has been thoroughly approved, and even in many instances considerably extended, in consideration of the progressiveness of our age; only limited where there were express words of limitation in the organic law. Wright v. Noell, 16 Kan. 601; In re Leach, 21 L. R. A. (Ind.) 701; Russell v. Guptill, 13 Wash. 360; Warwick v. The State, 25 Ohio St. 21-24, 25; Jeffries v. Harrington, 17 P. 505; Opinion of the Justices, 115 Mass. 602; In re Hall, 50 Conn. 131; Margaret Richardson's case, 3 Pa. Dist. R. 299; Wilson v. Newton, 87 Mich. 493-496; Van Dorn v. Mengedoht, 59 N.W. 800-803; Foltz v. Hoge, 54 Cal. 28; Findlay v. Thorn et al., 1 How. Pr. (N. S.) 76; Nathaniel C. Moak in Alb. Law Jour., vol. 41, p. 244. (8) At common law infants and women were placed upon the same footing in many respects, as to eligibility to office. Our courts, both federal and state, have recognized both infants and women, where there are no express inhibitions in the constitution or laws. U. S. v. Bixby, 10 Biss. 520; Moore v. Graves, 3 N.H. 408-412; Golding's Petition, 57 N.H. 146-149. (9) "The office of county clerk is wholly ministerial," and hence falls in that class of cases which women, and even infants, could hold at the common law. Wilson v. Newton, 87 Mich. 493-496. (10) A woman is a citizen of the United States and of the state the same as a man. Webster's Law of Naturalization, p. 75; XIV Amd. to Const. of U. S.; Pomeroy, Municipal Law, pt. 2, chap. 2, p. 425; 1 Abbott Law Dict. [Ed. of 1879], 224; U. S. v. Kellar, 11 Biss. 314-316; Ware v. Wisner, 50 F. 310; Comitis v. Parkerson, 56 F. 556; Hatch v. Ferguson, 57 F. 959; Belcher v. Farren, 89 Cal. 73-77, 78; U. S. v. Susan B. Anthony, 11 Blacth. 200; Minor v. Happersett, 21 Wall. 162; Spencer v. Board, etc., 1 McArthur, 169; Wright v. Noell, 16 Kan. 601; State ex rel. v. Co. Court, 90 Mo. 593. (11) The pronouns "he" and "his" include women as well as men, so that there is no statutory inhibition by the use thereof. R. S. Mo., sec. 6568; State v. Jones, 102 Mo. 305-307; In re Thomas, 16 Colo. 441; Margaret Richardson's case, 3 Pa. Dist. R. 299; 41 Albany Law Journal, p. 244. (12) The word "citizen" as used in the constitution and statute, must be taken in its ordinary sense and meaning. Martin v. Hunter's Lessee, 1 Wheat. 304-326; Clark v. City of Utica, 18 Barb. 453; R. S. Mo. 1889, sec. 6570; Henry & Coatsworth Co. v. Evans, 97 Mo. 47; R. S. Mo. 1889, sec. 6568; Warren v. Barber Paving Co., 115 Mo. 572.

Johnson & Lucas for respondent.

(1) No election can be held in this state except under the Australian ballot. Article 3, chapter 60, Revised Statutes, 1889, and amendments thereto. (2) An election not provided for by "law is void; no case has been known where a volunteer election has been held valid, even though the term of the incumbent has expired." State ex rel. McHenry v. Jenkins, 43 Mo. 261; Kimberlin v. State, 30 Am. S. R. 208. (3) No election can be held to fill a vacancy occurring within fifteen days of the day of election. R. S. 1889, sec. 4766; 39 N.Y.S. 388. (4) It is contended, however, that under section 1964, Revised Statutes, 1889, that provision is made for the filling of a vacancy until the next general election, and that a successor shall then be elected, and that the term of the appointee is limited to the next general election. There might be some force in this contention were it not for the fact that our constitution provides that: "In the absence of any contrary provision, all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold during their official terms, and until their successors shall be duly elected or appointed and qualified." sec. 5, art. 14, const. 1875; Throop, Public Officers, sec. 329; Burton v. Buck, 8 Kan. 302. Hence it is immaterial whether section 1964 or 4705, Revised Statutes, 1889, be held to apply, the defendant would hold until his successor is duly elected or appointed and qualified. The name of Maggie Wheeler was legally placed on the official ballots. The voters have the right to write in such name, whether nominated or not. It is their constitutional and legal right and such ballots are legal and valid. Bowers v. Smith, 111 Mo. 45; State ex rel. v. McMillan, 108 Mo. 165; Montgomery v. O'Dell, 67 Hun, 169; People ex rel. v. Shaw, 31 N.E. (N. Y.) 512; Chateau v. Jacob, 88 Mich. 170; Sanner v. Patton, 155 Ill. 553. But all of the votes cast, counted, and returned for her, are made, by the returns, prima facie valid. Merritt v. Hinton, 55 Ark. 12; S. C., 17 S.W. 270; Gumm v. Hubbard, 97 Mo. 311-320. And no contest having been made, the same are sealed from the view of this court, and such, prima facie, can not be rebutted. State ex rel. Ewing v. Francis, 88 Mo. 557. (5) Maggie B. Wheeler is not eligible to the office of county clerk. See Const. Mo., art. 8, sec. 12. The word "citizen" when used in its more common and comprehensive sense doubtless includes "women," but a woman is not by virtue of her citizenship, vested by the constitution of the United States or by the constitution of the commonwealth, with any absolute right, independent of legislation, to take part in the government, either as a voter or as an officer. Robinson's case, 131 Mass. 376; S. C., 41 American Reports, 240. (6) And when considered in connection with our constitution requiring personal attention to the performance of the duties to the same belonging, it will be seen that no rule of the common law could be invoked in claimant's behalf. Sec. 18, art. 2, Mo. Const.; Robinson's case, supra; 19 Am. and Eng. Ency. of Law, page 403. (7) The word "citizens" (when used in reference to elections) means only male inhabitants. Nevada M. Bloomer v. Todd, 1 Lawyers' Rep. Ann. 111. (8) "Citizen," as ordinarily used, means one entitled to vote. State v. Pagels, 92 Mo. 309. (9) In the absence of some constitutional or statutory provisions on the subject, a woman is ineligible to hold a public office. Peters v. Davidson, 20 L. R. A. 311. (10) Election of a disqualified person gives him no right to hold the office or claim a certificate of election and mandamus to issue must be refused. Throop, Public Officers, sec. 82; State ex rel. Snyder v. Newman, 91 Mo. 445; State ex rel. v. Coffee, 59 Mo. 67; State ex rel. Thomas v. Williams, 99 Mo. 291; State ex rel. v. Boal, 46 Mo. 528; State ex rel. v. Meek, 129 Mo. 438; People v. Sheffield, 47 Hun (N. Y.), 481; Pucket v. Bean, 11 Heisk. (Tenn.) 600. (11) Mrs. Wheeler's name could not be put on the official ballot and was not placed thereon by the defendant, or anyone acting for him, but was placed thereon by the printer, acting under the direction of the chairman of the political organization to which Mrs. Wheeler belonged, prior to the time defendant was permitted to qualify. Sec. 4772, R. S. 1889; sec. 4773, R. S. 1889; Acts 1891, sec. 4, page 133; Atkeson v. Lay, 115 Mo. 550; In re Cuddeback, 39 N.Y.S. 388. That the ballot used was a nullity and could not be counted. Sec. 4772, R. S. 1889.

Barclay P. J. Macfarlane, Robi...