State v. Armijo

• Decision Date: 20 April 1914
• Docket Number: No. 1519.,1519.
• Citation: 18 N.M. 646,140 P. 1123
• Court: New Mexico Supreme Court
• Parties: STATEv.DE ARMIJO.

18 N.M. 646

140 P. 1123

STATE

v.DE ARMIJO.

No. 1519.

Supreme Court of New Mexico.

April 20, 1914.

Syllabus by the Court.

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

The right may be conferred by act of the Legislature, or exist by virtue of the common law, in those jurisdictions where the common law is in force, and no statute expressly or impliedly denies the right.

Section 1 of chapter 134, Sess. Laws 1909, which provides that “No person prevented by the Organic Act of the territory of New Mexico * * * shall be entitled to vote or hold public office in this territory,” refers to the original act of Congress creating the territory of New Mexico, and the only limitations thereby imposed upon the right to vote or hold public office are that such rights shall be exercised only by citizens of the United States, including those recognized as citizens by the treaty with the republic of Mexico, etc.

The statutory law of the territory of New Mexico neither expressly conferred nor denied the right of women to vote or hold public office; hence we must look to the common law, if it was in force in the territory, to ascertain and determine the right of women to vote and hold public office.

The common law is the rule of practice and decision in New Mexico, by virtue of section 2871, Comp. Laws 1897, except where modified by statute.

The office of State Librarian is a ministerial office.

Under the common law, a woman was eligible to hold a purely ministerial office, whatever might be the nature of the office, if she was capable of performing the duties thereof, and there was no incompatibility between the nature and character of the duties of the office and their due performance by a woman, where, in so doing, she was not called upon to exercise judgment and discretion.

Such political rights as were recognized by the common law, and not in conflict with our established laws, institutions, and customs, and suitable to our conditions, were carried into the body of our law.

The appellee being rightfully in office at the time of the adoption of the Constitution, she was continued in office by virtue of section 9, art. 22, of the Constitution.

Appeal from District Court, Santa Fé County; E. C. Abbott, Judge.

Quo warranto by the State, to oust Lola Chaves de Armijo from the office of state librarian. From a judgment of dismissal, plaintiff appeals. Affirmed.

Hanna, J., dissenting.

Under Comp.Laws 1897, §§ 2187-2215, relative to the territorial library, custody, and management thereof, the office of State Librarian is a ministerial office.

Frank W. Clancy, Atty. Gen., and Felix Lester and Summers Burkhart, both of Albuquerque, for appellant.

Renehan & Wright, of Santa Fé, for appellee.

ROBERTS, C. J.

This is a quo warranto proceeding to oust the respondent from the office of state librarian. The sole basis for the proceeding is the fact of the alleged ineligibility of the respondent to hold the office on account of sex; she being a woman. The district court held that the respondent was eligible and dismissed the petition, and the state appealed.

A discussion of the matter involved would seem naturally to present the following inquiries, viz.:

1. What is the nature of the right to hold public office, and what is the source of that right?

2. What provision, either statutory or common-law, or both, had been made in this jurisdiction in that regard prior to the adoption of the state Constitution?

3. What effect, if any, did the Constitution have upon the right?

[1][2] 1. It may be stated that the right to hold a public office is not a natural right. It exists, where it exists at all, only because and by virtue of some law expressly or impliedly conferring it. Mechem on Public Officers, § 64; 29 Cyc. 1375. It may be conferred by act of the Legislature, as is usually the case, or exist by virtue of the common law, in those jurisdictions where the common law is in force, and no statute expressly or impliedly denies the right. In the latter case recourse must of course be had to the common law to determine the limitations upon and extent of the right.

[3] 2. It therefore becomes necessary to examine the condition of the law in this jurisdiction in regard to the right of women to hold office. The territory of New Mexico was organized by the act of Congress of September 9, 1850 (Act Sept. 9, 1850, c. 49, 9 Stat. 449). Section 6 of that act provides:

“That every free white male inhabitant, above the age of twenty-one years, who shall have been a resident of said territory at the time of the passage of this act, shall be entitled to vote at the first election, and shall be eligible to any office within the said territory; but the qualifications of voters and of holding office, at all subsequent elections, shall be such as shall be prescribed by the legislative assembly: Provided, that the right of suffrage, and of holding office, shall be exercised only by citizens of the United States, including those recognized as citizens by the treaty with the republic of Mexico, concluded February second, eighteen hundred and forty eight.”

The provisions of this section appear in R. S. U. S. of 1878, as sections 1859 and 1860, in somewhat different language, but in the view we take of the case such revised sections are of no importance in determining the issues involved herein.

By an act of the territorial Legislature, approved July 20, 1851, which will be found on page 196 of the Session Laws of 1851, a complete election law was enacted. Section 19 of the act defined the qualifications of voters and of holding elective office as follows:

“Sec. 19. Every white male citizen of the United States, over twenty-one years of age, who shall have resided in the territory one year, and in the county in which he offers to vote, for three months shall be entitled to vote and be elected to office in any election provided for in this act, unless in the cases hereinafter specified.”

By this section it will be observed that the right to vote is limited to white male citizens of the United States, who possess the required qualifications as to residence. Likewise, by the section no one could be “elected to office, in any election provided for in this act,” unless he possessed the required qualifications. Under this section a woman was debarred from voting, and could not be elected to any office, at any election held under the act in question. Section 21 of the same act reads as follows:

“Sec. 21. No person prevented by the organic law of the territory, no officer or soldier in the United States Army, and no person included in the term ‘camp followers' of the United States Army shall be entitled to vote or hold office in this territory.”

It will be observed that the latter section is broader in its scope than section 19. It denies the right to hold office, either elective or appointive, to any person “prevented by the organic law of the territory.” Section 19, in so far as it prescribed the qualification of voters, was evidently superseded by the registration law, which required all voters to be registered, and prescribed the qualifications required for registration, which will be found as section 1703, C. L. 1897, and permitting all registered voters to vote. Section 1706, C. L. 1897. Section 21, supra, however, was carried into the Compilation of 1897 in its original form as section 1647. It will therefore be seen that section 19 of the original act is of no importance in this case, except as an aid to the proper construction of section 21. Section 21, supra, was amended by chapter 21, S. L. 1907, and again by chapter 134, S. L. 1909. The amendment of 1907 need not be set out, as it is, in so far as material, in the same identical language as section 1 of chapter 134, S. L. 1909, which, in so far as pertinent, reads as follows:

“Sec. 1. No person prevented by the organic act of the territory of New Mexico, * * * shall be entitled to vote or hold public office in this territory. * * * ”

It will be observed that the original section used the term “Organic Law,” whereas the amendment refers to the “Organic Act,” thus clearly meaning the original act of Congress creating the territory, and not the section of the Revised Statutes of 1878, hereinbefore referred to. It is evident, therefore, that we must look to the terms of the Organic Act to determine who were prevented from holding office by its terms. It prescribes the right of suffrage and of holding office at the first election, and then provides that the qualifications of voters and of holding office at all subsequent elections shall be prescribed by the legislative assembly, and concludes with the following proviso:

“Provided, That the right of suffrage, and of holding office, shall be exercised only by citizens of the United States, including those recognized as citizens by the treaty with the republic of Mexico, concluded,” etc.

From a reading of the section, it would appear to the legal mind that the proviso was a limitation upon legislative power, and that it was not intended to operate directly upon the right of suffrage. But in what light did the legislative assemblies regard the proviso when they referred to the limitations upon the right of suffrage and of holding office contained in section 21 of the original act and the amendments thereto? It is clear that they treated it as an independent section, and as a limitation upon the right itself, rather than a legislative limitation. The only limitations upon the right, or the only reference to the subject, in the Organic Act, are found in the section above quoted. It must be apparent that the Legislature did not refer to the limitations upon the right of suffrage and of holding office at the first election, for to so hold would present insurmountable absurdities. For instance, at the first election the...