State ex rel. Jordan v. Quible

Rose, J. This is an original application to this court for a peremptory writ of mandamus commanding respondent to turn over to relator the property, money, books, records and papers belonging to the office of county treasurer of Cherry county, Nebraska. At the general election November 2, 1909, relator, who is a woman, and respondent, who was county treasurer at the time, Avere rival candidates for that office. He received 683 votes and she received 925, a majority of 242 in her favor. The canvassing board so found and issued to her a certificate of election. At the proper time she took the necessary oath, gave an official bond, which the county board approAed, and made a demand on respondent for possession of the office. He declined to vacate, and this suit followed. Relator is 30 years of age. For more than ten years she has been a citizen of the United States and a citizen and resident of Cherry county, Nebraska. For seven years prior to June 1, 1909, she was the duly appointed and acting deputy county treasurer of Cherry county. January 5, 1910, respondent took the oath of office and tendered to [418] the county board an official bond for tlie term beginning January 6, 1910. The bond, however, was rejected. That relator is a woman is shown on the face of her application, and the other facts stated are established by stipulation of the parties. Respondent resists the writ on the ground of relator’s ineligibility. He argues that a county treasurer of Cherry county must be an elector thereof, and that relator does not possess that qualification, since she is not a male person within the meaning of the following provision of the constitution: “Every male person of the age of twenty-one years or upwards belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector. First, citizens of the United States. Second, persons of foreign birth who shall have declared their intention to become citizens conform-ably to the laws of the United States, on the subject of naturalization, at least thirty days prior to an election.” Const., art. VII, sec. 1. Neither this section nor any other provision of the constitution or statutes declares that a woman shall be ineligible to hold the office of county treasurer. No constitutional or statutory provision inconsistent with the right of a woman to hold that office has been found. A familiar legislative enactment, however, adopts “so much of the common law of England as is applicable and not inconsistent” with the federal and state constitutions and the statutes of this state. This court in its early history announced that the common law thus adopted permitted women to hold offices administrative in character, the duties of which they were competent to discharge. State v. Cones, 15 Neb. 444. The office of county treasurer is administrative in character: The duties thereof are in no way incompatible with the incumbency of a woman who is competent to fill the office. The record shows that relator performed the duties of deputy county treasurer of Cherry county for seven years. With knowledge of her past services in that capacity, she [419] was chosen by the electors in a contest with respondent who was performing the duties of county treasurer at the time of the election. Under the statutes of this state she is competent to make contracts and to bind herself by her official bond. In support of the argument that a county treasurer must, be an elector, respondent has cited State v. McMillen, 23 Neb. 385. The controversy therein involved the title to the office of county treasurer of Dawes county. For that office Richards received a majority of the votes cast at the election November 3, 1885. At that time he had not been a resident or citizen of the state six months, and for that reason it was held he was ineligible to election under the constitutional provision quoted and section 64, ch. 26, Comp. St., providing for the contest of an incumbent’s election, where he was not eligible to the office. The right of a woman to hold such an office was not considered. The office-holding privilege conferred upon a woman by the common law was not presented or decided. In these respects the case cited by respondent is distinguishable from the present one. Ineligibility or disability on part of relator does not appear in the record. She has shown a legal title to the office of county treasurer of Cherry county, and the writ will be allowed as prayed. Whit allowed.