State ex rel. Gray v. Hodges

Decision Date03 March 1913
Citation154 S.W. 506,107 Ark. 272
PartiesSTATE ex rel. GRAY v. HODGES
CourtArkansas Supreme Court

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Judgment affirmed.

Rose Hemingway, Cantrell & Loughborough, for appellant.

"The Governor may appoint a convenient number of notaries public for each county, who shall be citizens of the county for which they are appointed," etc. Kirby's Dig. § 5743. The only requirement is that they be citizens, and it is not necessary that one be an elector in order to be a citizen. 6 Am. & Eng. Enc. of L. 15; 21 Wall. (U.S.) 165 169, 170; 24 Ark. 159.

Unless there is something in our Constitution to prevent, a woman may be a notary public in this State. Since it is not an elective office but appointive, and there is no succession in the office, and no vacancies, section 3 article 19, of the Constitution does not apply, and no other provision appears to prevent. 92 P. 846. See also as supporting the view that a woman may be a notary public, 60 S.W. 186; 59 N.W. 803, 41 Neb. 535; 9 F. 78; 49 N.W. 868.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

Women were not eligible under the common law to hold the office of notary public, and since there is no express provision in our statutes giving them the right to hold the office, the prohibition in article 19, section 3 of the Constitution applies against appellant's contention. As to the point that a notary public is merely an appointive officer, and that there is no succession in the office, there is a legislative determination to the contrary. Kirby's Dig. § 5750. On the point that women are not eligible where there is no constitutional or statutory provision allowing it, see 6 L. R. A. (Mass.) 842, 843, 844; 32 L. R. A. (Mass.) 350; 41 L. R. A. (Ohio) 727; 20 L. R. A. (Tenn.) 311, 312; 22 Ky. L. Rep. 1169; 5 L. R. A. (N. S.) 416, note; Id. 415; 9 Col. 628, 21 P. 473.

OPINION

HART, J.

A petition for a writ of mandamus to compel the Secretary of State to issue a commission as notary public to Mary B. Gray was filed in the Pulaski Circuit Court. The petition states that Mary B. Gray is a citizen of Pulaski County and was appointed a notary public by the Governor of the State. That she applied to the Secretary of State to issue her a commission and that he refused to do so on the ground that she was a woman. The circuit court denied the petition for the writ of mandamus and the case is here on appeal.

Section 5743, Kirby's Digest, provides that the Governor may appoint notaries public. The issuance of the commission by the Secretary of State is a mere ministerial act, and mandamus is the proper remedy to compel its performance, provided the petitioner possesses the qualifications to serve as a notary. 29 Cyc. 1372; 26 Cyc. 252.

A notary public is a public officer. Sonfield v. Thompson, 42 Ark. 46; 29 Cyc. 1069; Opinion of Justices, 73 N.H. 621, 6 A. & E. Ann. Cas. 283, 5 L. R. A. (N. S.) 415, 62 A. 969. This is conceded by counsel for appellant, but they contend that a woman is not prohibited by our Constitution from filling the office of notary public, and that she is a citizen within the meaning of section 5743, Kirby's Digest. Section 3, article 19, of the Constitution provides that no person shall be elected to or appointed to fill a vacancy in any office who does not possess the qualifications of an elector. Counsel for appellant contend that this section of the Constitution has reference solely to elective officers and has no application to the office of notary public. In making this contention we do not think that they have taken into consideration the other sections of the Constitution bearing on the question.

It is a cardinal rule of construction that the Constitution must be considered as a whole and to get at the meaning of any part of it we must read it in the light of other provisions relating to the same subject, as well as of the whole frame and purport of the Constitution. Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785.

Section 6, article 5, of the Constitution provides that certain named officers shall not be eligible to a seat in either house of the General Assembly. Notaries public are expressly excepted from the officers thus prohibited. Section 26, article 19, of the Constitution provides that militia officers, officers of public schools and notaries may be elected to fill any executive or judicial office. In the case of the State v. Ashley, 1 Ark. 513, the court said:

"There are two ways of imposing a constitutional restriction or limitation. The grant may contain negative words, denying in express terms the exercise of the power claimed or attempted to be usurped; or it may simply contain an affirmation, which amounts to as positive a negation of any other power upon the same subject, as if the grant itself had employed negative and not affirmative, words, in the declaration. The constitutions of the United States and of the States furnish satisfactory and conclusive proof of the truth and importance of the principle here stated. Indeed it will be found from an examination of...

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27 cases
  • State v. Butler
    • United States
    • Florida Supreme Court
    • July 9, 1915
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    • October 30, 1929
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  • Carroll v. Johnson
    • United States
    • Arkansas Supreme Court
    • April 24, 1978
    ...or the meaning of any part of it, we have always read it as a whole and its various provisions in the light of each other. State v. Hodges, 107 Ark. 272, 154 S.W. 506; Collins v. Humphrey, 181 Ark. 609, 27 S.W.2d 102; Hopper v. Wolfe, 238 Ark. 932, 385 S.W.2d 783; State v. Jones, 242 Ark. 1......
  • State ex rel. Attorney General v. Irby
    • United States
    • Arkansas Supreme Court
    • April 8, 1935
    ... ... course they are bound to obey it." ...          In the ... more recent case of State ex rel. Gray v ... Hodges, 107 Ark. 272, 154 S.W. 506, we expressly ... conceded that a notary public was a public office, but denied ... the privilege of ... ...
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