that a woman was incapable of being elected a member of a county council."

In §69 he thus sums up a woman's common law right to office in the United States: "In some of the states of the Union, the right of suffrage, and the power to hold office generally, or to hold particular offices, have been conferred expressly upon women; but in those where the Constitution does not confer that power, the question whether a woman is competent to hold a public office, has arisen in several cases. In accordance with the English decisions it has been ruled that a woman cannot hold a judicial office, for example, that of justice of the peace. But where a statute provides that no person shall be debarred from any 'occupation, profession, or employment' on account of sex, and the Constitution contains nothing to the contrary, a woman may hold an office pertaining to the administration of justice, as that of master in chancery. In the absence of any constitutional prohibition, a statute authorizing a woman to be a member of a school committee is valid. "The common law of England, which was our law upon this 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.' A statute, conferring upon a woman the right to hold an office, is valid, although enacted after a judgment that she was ineligible. In the absence of any express constitutional or statutory provision on the subject, a woman cannot hold the office of jailer, or of director of a workhouse. The Constitution and Statutes of the United States contain no provision

expressly or impliedly prohibiting a woman from holding office under the authority of the United States; and appointments of women to national offices of a minor character are frequently made."

38. Property qualifications.-Though the Federal Constitution provides no property qualification for the holding of office and very few of our state constitutions provide any, such qualification may in the absence of constitutional inhibitions be required by statute, as is done in several states. In State ex rel. Thompson v. McAllister a statute requiring councilmen to be freeholders was held constitutional. The Constitution merely provides that "no person except a citizen entitled to vote shall be elected or appointed to any office, state, county or municipal." The court did not consider this as providing that all electors would be eligible to hold office, as was contended by counsel. It quotes with approval the language of the Supreme Court of Colorado, in Darrow v. People,65 construing a similar constitutional provision: "The right to vote and the right to hold office must not be confused. Citizenship and the requisite sex, age and residence constitute the individual a legal voter, but other qualifications are absolutely essential to the efficient performance of the duties connected with almost every office; and certainly no doubtful implication should be favored for the purpose of denying the right to demand such additional qualifications as the nature of the particular office may reasonably require. We do not believe that the framers of the Constitu

64 38 W. Va. 485.

65 8 Colo. 426.

tion by this provision intended to say that the right to vote should be the sole and exclusive test of eligibility to all civil offices, except as otherwise provided in the instrument itself; that no additional qualification should ever be demanded and no other disqualifications should be imposed."

Where property qualifications are required as a prerequisite to the right to hold office, it is upon the theory that the ownership of property in a community is evidence of an attachment to and interest in that community and that this will serve to make one a more zealous and efficient officer. It is not for the purpose of fostering class distinctions. It tends to guarantee greater conservatism among public officers, which of course has its advantages and disadvantages, and on which side the balance will fall depends upon the type of mind striking the balance.

39. Educational qualifications. Although no test is absolutely accurate for the purpose of determining in advance who will make an efficient public officer, educational qualifications constitute a more logical test for determining one's fitness to perform the duties of a public office than do property qualifications. A civil service examination will sift out those who are absolutely incapable of performing the duties of an office, while a property qualification will leave many of them in. To the mind of the ultra conservative the educational test is not as desirable as the property test. The power of the legislature to impose it is, however, the same. In State v. Covington, the court in interpreting a provision of the Consti

66 29 Ohio St. 102.

66

tution that "no person shall be elected or appointed to office in this state unless he possesses the qualifications of an elector," laid down the rule that such a provision "does not by implication forbid the legislature to require other reasonable qualifications for office," and held that the legislature might provide that the ability to read and write should be a qualification for holding office.

40. Religious qualifications. Our constitutions, practically without exception, forbid religious "tests" as a qualification for holding civil office. In the face of such provisions a statute providing any qualification which the courts would interpret as a religious test would be declared null and void. A provision requiring an oath of office is not repugnant to provisions in constitutions against religious tests.

41. Loss of qualifications.-The possession of the necessary qualifications by a public officer at the beginning of his term does not of course insure that these qualifications will continue until the end of his term. Where good moral character is a necessary qualification it may be lost by the commission and conviction of crime and this would result in the loss of the legal right to continue in office. Where residence within the district is a necessary qualification, moving out of the district with the intent to remain, which intent may be inferred from the facts, is sufficient to cause a vacancy in the office."s

42. Disqualifications. — The constitutions and statutes not infrequently proceed in a negative way

67 Barker v. People, 3 Cow. 686 (N. Y.).

68 Prather v. Hart, 17 Nebr. 598.

and provide disqualifications. Where the disqualifications enumerated by the constitution are intended to be exclusive, the statutes may not add to them. Where such is not evidently the intent of the makers of the constitution, the legislature is free, in the absence of specific prohibitions, to add such disqualifications as in its judgment are necessary. Where such disqualifications are provided in the statutes the courts in construing them follow the rule of strict construction.69

The acceptance of an incompatible office amounts at common law to a disqualification and in addition is frequently made so by statute. Offices are incompatible where, though the holding of the two and performing the duties thereof may be physically possible, the temptation not to perform the duties of both in an impartial manner is so great that ordinary human nature cannot stand the strain. Take, for instance, the offices of governor of a state and mayor of a city, where as governor it might become one's duty to remove himself as mayor. In discussing this the Supreme Court of Michigan says in Moreland v. Common Council: "If a superior officer is clothed with power to remove from office an inferior officer, there is certainly no logic or reason in holding that one person may hold both. No more marked incompatibility is possible. We have been unable to find a decision which holds that one person may hold two offices, in one of which he is clothed with power to remove the person holding the other. It follows that

69 State v. Cosgrove, 34 Nebr. 386.

70 State v. Weston, 4 Nebr. 234; Rex v. Jones, 1 B. & Adolph. 677 (Eng.).