State v. Chaves de Armijo

OPINION OF THE COURT.

BOBEKTS, 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 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, sec. 64, 29 Oyc. 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.

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. Section 6 of that act provides:—

“That every free white male inhabitant, above the ago of twenty-one j^ears, 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 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 Eepublic of Mexico, concluded February second, eighteen hundred and forty-eight.”

The provisions of this section appear in B. S. U. S. of 1878, as sections 1859 and 1860, in somewhat different language, but in the view we take of the ease 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 3eaTs 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 eléction 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:

“Section 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 'W, insofar as it prescribed thé 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 sec.Ji703, C. L. 1897, and permitting all registered voters to vote; sec. 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 sec. 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. 1-909. The amendment of 1907, need not be set ■out, as it is, insofar as material, in the same identical language as sec. 1, of chapter 134, S. L. 1909, which, insofar •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; ****.”

•3 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 tprms 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 o f 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 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 right was confined to “free white male-inhabitants.” Now is it to be presumed that the legislature-in 1907 and 1909 would attempt to violate the Fifteenth-Amendment of the Constitution of the United States, and the- Act of Congress making such amendment applicable-to territories? Again the section limits the right of suffrage and of holding office, at the first election to free white male inhabitants “who shall have been a resident of' said Territory at the time of the passage of this act,” consequentiy, should we hold that the limitations referred to,, were those prescribed for the first election, it would necessarily result that the legislature, as late as 1909 was attempting to deny the right of suffrage to all those, who-were not residents of New Mexico in 1850. Such, of course, was never the intention, and, therefore, the legislature necessarily must have had in view the limitations contained in the proviso, and intended that the right of suffrage and of holding office should be exercised only by citizens of the United States, including those recognized as-citizens by the treaty with the Kepublie of Mexico, etc.

“The Supreme Court of the United States, in Minor v. Happersett, 21 Wall. 162, has held that the word ‘citizen/ as used in the Constitution and Laws of the United States,, has uniformly conveyed the idea of membership of a nation, and nothing more, and hence include either sex alike.” Cronly v. City of Tucson, 56 Pac. 876, (Arizona.)

4 5 Hence, from a review of the statute law of the Territory, it will be seen that there was no express denial of the right of suffrage, or of holding office, to women, neither was: the right granted in terms. In this connection it is-to be remembered that the civil law of Spain and Mexico was in force in this Territory at the time of the original enactment by the territorial legislature, under which women had no such right as is contended for, and this remained the situation until January 7, 1876, when the act was passed by the legislature, adopting the common law in this jurisdiction. This appears as section 2871, R. S. 1897, and reads as follows:

“In all the courts in this Territory the common law as recognized in the United States of America, shall be the rule of practice and decision.”

There being no statute, either denying or conferring the right of suffrage and of holding office upon a woman, it is clear that we must look to the common law, if the above section adopted it in New Mexico, to ascertain and determine the right of women to vote and hold office. Under the common law, the right of women to vote, was, of course, never recognized, and such right is not involved in this case, but merely the right to hold an appointive office, which is purely ministerial. Before discussing the right of a woman to hold such an office, under the common law, it will be necessary to dispose of appellant’s contention, viz.: That the civil law and not the common law, is in force here, except where modified by statute. In support of the contention, Ward v. Broadwell, 1 N. M. 85; Chaves v. McKnight, 1 N. M. 147; Ilfeld v. Baca, 14 N. M. 65, are cited and relied upon. The first two cases cited were decided long prior to the passage of the Act of January 7, 1876, and at the time such decisions were rendered the civil law was in force in New Mexico, except where changed by statutej or abrogated by the organic act. No such point was involved in the last case cited. On the other hand, as early as 1886, in the case of Browning v. Est. of Browning, 3 N. M. 659, the Supreme Court of New Mexico construed the above statute and held:—

‘‘The legislature intended, by the language used in that section to adopt the common law, or Lex non scripta, and such British statutes of a general nature not local to that kingdom, nor in conflict with the Constitution or laws of the United States, nor of this Territory, which are applicable to our condition and circumstances, and which were in force at the time of our separation from the mother country.”

This construction of the effect of the above statute has been consistently adhered to by the courts of the Territory for more than a quarter of a century. (Territory v. Ashenfelter, 4 N. M. 93; Dye v. Crary, 12 N. M. 160; Sandoval v. Albright, 14 N. M. 345.)

Adopting the construction of sec.-2871, supra, in the Browning case as correct, it is, therefore, necessarj'' to inquire into the right of a woman, under the common law of England, at the time of our separation from that country, to hold such an office as Librarian of the State Library. Before reviewing the common law, however, it • would perhaps be well to consider the statutes of the Territory, creating the office and defining the duties of the librarian, in order to determine the nature of the office, for, as we shall later see, under the common law, women were only permitted to hold certain offices, and their right to so hold such offices depended, to a large degree, upon the nature and duties of the office.

6 The statutes relating to the Territorial library, the custody and management thereof, will be found under section 21S7, to and including section 2215, C. L. 1897. Under said sections the management of the library is placed in the hands of a board of trustees, .and said board is given the power to adopt rulés-for the conduct and management thereof. All books must be purchased by the board. The act defines the duties of the Territorial Librarian, which may be briefly summarized as follows: (a) Such librarian has the care and custody of the library, (b) is to keep same in a room in the Capitol building provided for that purpose, and to provide for the safe keeping therein of all things belonging or appertaining thereto, (c) has charge of all books, maps, etc., belonging to the library or directed to be deposited therein, (e) must keep the library open during certain hours, (f) not to permit books to be removed from the library, except by certain officials, and to take a receipt for all books removed, (g) to prepare an alphabetical catalogue of the library, (h) to label each book in the library in a specified manner, (i) to report to the Governor, when required, a list of books missing and the fines collected, and to report to the legislature, (j)tc institute suit,' in, the name and use of the Territory, for the recovery of certain penalties, for the unauthorized removal from the library of any books, etc. From a review ol the statutes upon the subject it will be found that the librarian is not required to exercise his or her judgment in any respect. The duties are precsribed by statute- or defined by rules adopted by the board of trustees. The office is purely ministerial.

“Ministerial offices, it is said, are those which give the-officer no power to judge of the matter to be done, and which require him to obey some superior.” State v. Loechner, 65 Neb. 814, 59 L. R. A. 115.

Under the statute in question, the librarian was required to conform to the rules adopted by the board of trustees. He was given no initiative as .to any matter, or power to-determine any question. He was to perforin the duties prescribed bj the act, and the rules of the board, in the manner directed.

“A ministerial act is defined to be ‘one which a person performs in a given manner, in obedience- to the mandate-of legal authority, without regard to or or the exercise of his own judgment upon the propriety of the act being-done/” Fornney v. Jefferson Vello, 17 Ind. 169, 79 Am. Dec. 468.

An officer, performing only ministerial acts, is, of course,, only a ministerial officer.

7 The office, being purely ministerial, it remains to determine the right of a woman to hold such an office under the common law. From a review of the American cases, where the common law rights of women to hold public office have been considered, there appears to be a decided conflict of authority upon the subject. We have, however, been referred to no case, where the duties were so purely ministerial, in which the right to exercise-the duties of the office have been denied to women.

In Opinion of Justices, 107 Mass. 604, the right of a-woman to hold the office of Justice of the Peace was denied. But this office, under the Constitution of that State, was a judicial office, the duties of which must be exercised by the incumbent in person. The case cannot, therefore,. be considered in point in this- ease, -where the office is ministerial.

Again, in Lelia J. Robinson’s case, 131 Mass. 376, the same court denied the right of a woman to be admitted as an attorney and counsellor of the court. The Court say: ■

“An attorney at law is not, indeed, in the strictest sense, a public officer. But he comes very near it. As was said by Lord Holt, 'The office of an attorney concerns the public, for it is for the administration of justice.’ ”

In the opinion, the Court evidently treats an attorney at law as an officer, and denies the right of a woman to be admitted thereto, because under the common law a woman was not permitted to- hold any office that concerned the administration of justice, where she was required to exercise the duties of the office in person.

The same Court, later, in Opinion of Justices, 136 Mass. 578, held, that- under the statutes of 1879, c. 291, sec. 2, which provided that the Governor, with the advice and consent of the council, should appoint nine persons, who should constitute a state board of health, lunacy, and charity, it was competent to appoint a woman member of the board. While the Court does not, in terms, base the right upon the common law, it does say:

“The duties of the board are mostly administrative, and are such as may well be performed by women. There is no incompatibility between the nature and character of the duties and their due performance by women,” thus recognizing the common law limitations upon the right, and implying, that under the statute, a contrary doctrjne would have been announced were the office under consideration one, which at common law, a woman would have no right to hold.

In an earlier case, the same Court, in Opinion of Justices, 115 Mass. 602, held, that under the Constitution a woman might be a member of a school committee. The Constitution was silent upon the question of the right, and the Court, in discussing the right of a woman to hold such an office, under the common law, say :•—

“The common law of England, which was our law upon the- subject, permitted a woman to fill any local office of ■an administrative character, the duties attached to which were such that a woman was competent to perform them.”

The Supreme Court of Michigan, in the case of Attorney General v. Abbott, 121 Mich. 540, 47 L. R. A. 92, 80 N. W. 372, held that a woman could not be elected to the office of prosecuting attorney, under an article of the Constitution ■of that State which provided that such officers shall be “chosen by the electors,” in the absence of an express provision conferring the right to hold such an office on women. The Court say:

‘‘There being no express provision of the Constitution ■or laws of the State conferring upon respondent the right to hold this office, the question must be determined by the principles of the common law, and the manner in which those principles have been construed in this State for the past years. * * * * There can be no question of the common law rule that a woman cannot hold a general public office in the absence of express constitutional or statutory authority conferring upon her such right.”

The opinion of the Court was based chiefly upon the exposition of the common law right of women to hold office. By Chief Justice Gray, in Bobinsom’s case, supra. It will be noted from the above quotation, that the Court say, that at common law, a woman could not hold “general public •office.” The Court does not undertake to define the meaning of “general public office,” but it will be seen from the concurring opinion of Mr. Justice Hooker, that the Court had in view the disqualification of women under the common law, to hold general public office, connected with the administration of justice, where she was compelled to perform in person the duties of the office, calling for the exercise of personal discretion and judgment. The Justice says: — ■

8 ,“It remains to inquire whether the office of prosecuting attorney is such a ministerial office as to render a woman ineligible.” Thereby implying that women would be eligible to hold certain ministerial offices, even though they might fall within the meaning of the term “general public office.” Certainly the' criterion, is not whether the office be a State, District or County office, for the Supreme Court of Massachusetts, in the Opinion of Justices, 136 Mass. 578, recognized the right of -women to be appointed to, and hold, the office of member of the State board of health, lunacy and charity, which clearly would make her a State officer. It would seem, that under the common law, a woman was not capable of holding a public office, connected with the administration of justice, or the legislative department of the government, for her powers could not be delegated and in either position she would be called to exercise judgment and discretion, and, it was generally supposed, in that period of the history of the world, when the common law had its birth, that women were incapable mentally of exercising judgment and discretion and were classed with children, lunatics, idiots and aliens insofar as their political rights were concerned, but we have been cited to no English case which denies the right of a woman under the common law, to hold a purely ministerial office, whatever might be the nature of the office, if she was capable of performing the .duties thereof, and in so doing was not called upon to exercise judgment and discretion. The Michigan Court evidently recognized this distinction in the case of Attorney General v. Abbott, supra, for Justice Hooker says, in discussing the inquiry suggested as to the nature of the office of prosecuting attorney:

“That, I think, is-settled by one of our own decisions, the case of Eagle v. Chipman, 51 Mich. 524, 16 N. W. 886. It was there held that a prosecuting attorney could not delegate his powers; that he was vested with a personal discretion as a minister of justice. He might perhaps employ assistants when authorized by law, but could not delegate his official discretion. It seems clear that this judicial discretion takes the office out of the class recognized by the common law, and the cases, both English and American, as within the right of women to hold.”

Even in the above case, where the official was “vested with a personal discretion as a minister of justice,” a strong dissenting opinion was filed by Justice Moore, wherein he 'contended that a woman was eligible to that office.

The Supreme Court of Oregon, In re Leonard’s Application to be admitted as an attorney, 12 Ore. 93, denied the right of a woman to be admitted as a member of the bar. The opinion was based entirely upon the Robinson case, supra. The Massachusetts Supreme Court denied the right of a woman to be appointed a notary public. See Women as Notaries Public, 6 L. R. A. 842; Opinion of Justices, 165 Mass. 599.

The New Hampshire Supreme Court, In re Opinion of Justices, 62 Atl. 969, 5 L. R. A. (N. S.) 415, denied the right of a woman to hold the office of notary public on the ground that the office was “public and governmental,” and could not, at common law, be held by a woman.

On the other hand, many courts have recognized the right of women to hold various offices, where no statute or constitutional provision existed, either expressly or impliedly denying the right. Thus, in the case of Wright v. Noell, 16 Kan. 601, in an opinion by Justice Brewer, the Supreme Court of Kansas held that a woman in that State, was eligible to hold the office of Superintendent of Schools. Likewise, the Supreme Court of Washington announced the same doctrine in the case of Russell v. Guptill, 13 Wash. 361. The Supreme Court of Indiana, in the case of In re Leach, 134 Ind. 665, held that a woman could be admitted to practice law. As did the Supreme Court of Connecticut in the case Matter of Hall, 50 Conn. 131. The Indiana Court say:—

‘‘We have searched in vain for an expression from the common law excluding women from the profession of the law.”

The Supreme Court of Michigan, in the case of Wilson v. Newton, 87 Mich. 493, held that a woman could be appointed deputy County Clerk, as the office of County Clerk was wholly ministerial. A woman was held eligible to election as County Clerk, under a constitutional provision, which provided that no person shall be chosen to an office, “who is not a citizen of the United States, and who shall not have resided in this State one year.” State, ex rel. Crow, v. Hostetter, 137 Mo. 636, 38 L. R. A. 208.

The Supreme Court of Nebraska, in the case of State, ex rel. Jordan, v. Quible, 86 Neb. 417, 125 N. W. 619, 27 L. R. A. (N S.) 531, held that a woman was eligible to the office of County Treasurer.

The Court say:—

“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 office administrative in character, the duties of which they were competent to discharge.” See also Opinion of Justices, 57 Southern, 351, (Fla.) Exhaustive notes on the right of women to hold office generally will be found appended to the cases of State, ex rel. Crow, v. Hostetter, 38 L. R. A. 208, and State, ex rel. Jordan, v. Quibble, 27 L. R. A. (N. S.) 531. From a review of the cases it will be found that the courts in this country are by no means agreed upon the rights of women under the common law to- hold office. The right, as to many offices, has has been denied by some courts and upheld by others. We do not believe, however, that an American case can be found expressly 'depying the right of a woman to hold a purely administrative, ministerial office, such as the one here in question. On the other hand, many cases affirm their right to hold offices, even where judgment and discretion must be exercised by the incumbent. A review of the English cases will show that women have held many important offices in that country, some by appointment, others by inheritance. Her right to hold a purely ministerial office, so far as we have been able to ascertain, .was never denied by the English courts, and her eligibility to judicial office sometimes was made to depend -upon whether the duties of the office could be performed by a deputy. Eleanor was appointed Lord Keeper of England. 1 Campbell, L. L. Ch. 134. An unmarried woman was held to be eligible to appointment as arbitrator, 8 Edw. 4; 1 Br. 37. A woman was chosen sexton, by election, and her right to the office upheld; Olive v. Ingram, 2 Str. 1114.

In King v. Stubbs, 2 T. R. 395, it was held that a woman could be elected to and hold the office of overseer of the poor. Counsel, in arguing against the right, said:—

“Wherever it is said that a woman may hold any particular office, it is either because the office is ministerial, or because, though partly judicial, it is hereditary, and then she may appoint a deputy.”

The Court say:

“The only question then is, whether there be anything in the nature of the office that should make a woman incompetent and we think there is not. There are many instances where, in offices of a higher nature, they are held not to be disqualified; as in the case of the office of High Chamberlain, High Constable and Marshal; and that of a common constable, which is both an office of trust, and likewise, in a degree jfidicial. So in the case of the office of sexton.”

Other English cases will be found cited in the note in 38 L. R. A. 208, and note to Schuchardt v. People, 39 Am. R. 34. We shall not attempt to review them all. The common law rule upon the subject, deducible from the cases, may be stated as follows: — that while women did not generally hold public office, and the question of their competency was not well settled, they did hold various offices, some of which were of great importance; some were appointive and some hereditary;. that their right to hold a ¡ourely ministerial office was never denied, and has been upheld; that they were ineligible to hold any office, which called for the exercise of judgment and discretion, unless the duties of the office could be exercised by deputy, it being generally supposed that women, from the nature of the sex, and their inexperience, were incapable of exercising that judgment and discretion which was necessary to properly discharge the duties of the office. Another con sideration was, that there must be incompatibility between the nature and character of the duties of the office and their due performance by women; if the duties of the office could be performed by a deputy she was held capable of holding-the office. It is worthy of note, as stated by the Annotator of the case note, in 38 L. R. A. 208, “That in every instance in which a woman’s right to any office was questioned, prior to the present generation, she was held to be competent, although the courts often took occasion to say that women were not competent to hold all offices.”

The office of State Librarian is clearly such an office as a woman might hold under the common law of England, at the time of our separation from that country. The office is purely ministerial and called for the exercise of neither judgment nor discretion, and the duties of the office are not incompatible with the ability of a woman to perform.

Another argument, were it needed, might be advanced in favor of such a construction of the law by the courts, viz: — the long-continued executive construction of the law upon the subject. Since the year 1905, the Governor, in whom, by the act creating the Territorial library, the appointing power was vested, has uniformly appointed women to fill this office. Such appointments have been confirmed by the legislative council of the Territory without question as to the right of a woman'to fill the office. Governor Otero, in 1905, appointed Mrs. Anita Chapman as librarian, and she was promptly confirmed by the council. The present incumbent was twice appointed to the office by Governor Curry, and the present Governor of the State nominated a woman for the office, whose appointment, however, failed of confirmation by the senate, but not because of the fact that the appointee was a woman. Other instances might be cited where the executive authority of the Territory recognized the right of women to fill various offices. Women were appointed notaries public, and served without question, even prior to the Act of 1909, which distinctly authorized their appointment. The people, in various parts of the State, have elected women to the office of County Superintendent of Schools, and their right to hold such offices has never been questioned. The Supreme Court of the Territory, in 1908, admitted a woman to practice law in the Territory, and twenty-five years ago a woman was admitted to the bar at Las Vegas. The people of the Territory, the chief executive of the Territory, and the courts, have long recognized the right of women to hold various offices and the .office in question having been acceptably filled for many years by women, it is clear that this Court should not oust a woman from the office, because of her sex solely, unless it is clearly and unrnistakabty demonstrated that she holds the office without right or lawful authority. The most that can be said against her right to so hold, is that the statute does not, in terms, make her eligible. This is true, but on the other hand it does not deny such right. Under the common law, no case lias been cited denying the right of a woman to hold the particular office in question, nor, on the other hand, have we found a case affirming the right. But on principle, 'deducible from the old English cases, we are of the opinion, that under the common law she coiild have held the office, and no statute of the Territory denying her the privilege, she was rightly in office at the time of the adoption of the State Constitution.

But it is insisted, that the right to hold- the office is a political right, which was not carried into the law of the Territory by the statute adopting the common law of England. It is sufficient answer to this contention to say, that we adopted all of the common law, or Lex non scrvpta of England and such British statutes as were of a general nature and not local to that kingdom, in force at the time of our independence, in so far as the. same did not conflict with the Constitution or laws of the United States and the organic act of the Territory and the legislative enactment thereof, which were applicable to our conditions and circumstances and our form of government. Many of the political rights recognized by the common law were in conflict with our customs and institutions and not suited to our conditions and, of course, were not brought into our law, but such as were recognized by the common law, and not in conflict with our established laws, institutions and customs, and suitable to our conditions, were, of course, carried into the body of our law. That the common law is applicable to the question involved in this case, in the absence of a statute upon the subject, has never been denied by an American court, even in those cases which denied woman the right to hold office.

It is also suggested, that at the time of the adoption of the common law, the legislature did not have in view, or contemplation the fact that a woman would claim the right thereunder to hold office. This is doubtless true.' But it is also probable that the question was not considered .by the legislature. This can be no argument against the right of a woman to hold office under that law. Since the adoption of the common law in New Mexico, it is as much the rule of decision in this State, as in those States in which it was the law from the beginning of their political existence. Swayne v. Lone Acre Oil Co., 98 Tex. 597. Again, innumerable rights, privileges and immunities were conferred, recognized, protected, preserved and en forced by the common law, and it is hardly imaginable that the legislative assembly when it adopted the common law in the Territory, had in mind each particular right or privilege which would be claimed under that law. The legislature adopted it alb to the extent hereinbefore stated, and the courts will not deny a right asserted under that law, on the ground that the legislature did not have the particular right or remedy in view at the time of the adoption of the law.

The question as to the right of a woman to be appointed to such an office under the Constitution of the State, is not involved in this case. It is conceded that if the present incumbent was rightfully in office, at the time of the adoption of the Constitution, she was continued in office by virtue of sec. 9, article XXII, of. the Constitution, which provided:—

“All courts existing, and all persons holding offices or appointments under authority of said Territory, at the time of the admission of the State, shall continue to hold and execute their respective jurisdictions, functions, offices, and appointments until superseded by the courts, officers, or authorities provided for by this Constitution.”

This clause was for the purpose of continuing in office those legally entitled thereto at the time of the adoption of the Constitution, until succeeded by their successors, appointed or elected according to law. It did not, of course, divest the courts of the power given them by law to remove officers for the causes prescribed by law, or to oust intruders from such offices. If the appellee was rightfully in office at the time of the adoption of the Constitution, she was continued therein by the above clause, until her successor was appointed and qualified, according to law, subject only to removal for legal cause prior to that time.

9 Appellee, rightfully holding the office at the time of the adoption of the Constitution, was entitled to retain the office at the time of the institution of this suit, and the judgment of the lower court sustaining the demurrer to the information will be sustained, and it is so ordered.