The times., 1899-07-03
Her RIGHT TO THE OFFICE
Michigan Now Struggling With a
Burning Question.
The Courts Called Upon to Decide II
Mrs. Abbott, Who Has Been Elect
ed n County Prosecutor, Can Legal
Iy Perform the Duties of That PO-
sitfon-A Plea in Her own Behalf.

nOId tne ONCE OF prosecuting attorney In
Michigan. The case is that of Horace NJ.
Oren, Attorney General, against Mrs. Mer-
rie H. Abbott.
The facts are, that in June, 1898, Mrs
Abbott was graduated from the law depart
ment of the University of Michigan, and
was admitted to practice by the Supreme
Court. The following November Mrs. Alb
bott was nominated for prosecuting attor-
ney of Ogemaw county by the Democrats
and was elected by majority OF four
votes. She received her certificate of cleo
tion and promptly qualified. Soon there
after Attorney General Oren instituted quo
warranto proceedings to test her eligibil-
| ity.
| In arguing the case the attorney general
| admitted that the sole question of the
| court to determine is whether or not a
woman is eligible, under the constitution
and laws of this State, to hold and perform
| the duties of the Office of prosecuting at
torney. The only constitutional provis-
ion bearing upon the question is as fol-
| lows: In each organized county there
shall be a sheriff, county clerk, county
| treasurer, register of deeds and a prose-
! cutting attorney, chosen by the electors
| thereof once in two years and as often as
| Sudll ndppen, whose duties ana
powers shall be prescribed by law"
In Michigan the constitution and laws do
not expressly state the qualifications nee
| essary to hold and discharge the duties
OF the office of prosecuting attorney, Lor
do they confer upon any woman the right
| to vote and hold Office, except in certain
| school elections and district offices created
solely by statute, upon which the constitu-
tion is silent and even then they are re-
CfrtC nl to iNtYla nj
instances, and have no general authority
to vote or hold Office therein.
Attorney General Oren insisted that there
can be no question as to the common law
rule, which is to the effect that woman
cannot hold a general public Office in the
absence of any express constitutional or
statutory authority comforting upon her
such right She may be citizen in its
technical sense, but cannot hold Office
The right to hold office is a political right
or privilege, except when the duties thereof
| are purely ministerial. This it was ar
gued, has been the unwritten law in Michi-
gan for more than sixty years. and from
its admission as a State up to the present
! time it has been uniformly the rule that
in order to be eligible to the office of
prosecuting attorney one should be twenty
one years old, citizen of the United
States, an elector of the county and an at
torney at law, duly licensed to practice
as such
Much stress was placed on the contention
| that the people of this State having placed
construction upon the constitution with
| reference to the eligibility to hold the
| Office of prosecuting attorney, to the effect
that said office could be held only by a
male of proper age and qualifications, and
this having been the law in this State for
years, the rule is as effective as though
| 1t was the expressed enactment of the
people of the State, and until such time
as the Legislature may see fit to grant such
political right to women the latter can
not lawfully hold such Office.
Authorities were cited to show that it
is plain that the office of prosecuting at
torney was created by the constitution,
which provides that such official shall be
chosen by the electors of the respective
counties, and that such electors have no
authority under the constitution and laws
of the State to elect other than one of
their own number to this Office.
Michigan, it was contended is recog-
nized as one of the leading common law
States in the Union, and the principles OF
the common law are found throughout the
decisions of its courts from its earliest
history and consequently the common law
rule should prevail The question of COM
potency, irrespective of the question of
eligibility, did not enter into the case. The
attorney general argued that If the people
OF Michigan wish to confer upon women
the right to hold Office, there is a proper
and legal way whereby this result may be
accomplished. If the time has come in
this State when to women should be ac-
corded equal privileges with men in the
affairs of government, they should accom-
plish that privilege in the regular way.
1t was insisted that II Mrs. Abbott is en-
titled TO hold the Office of prosecuting
attorney there is no Office within the gift
of the people of the State. except the very
few where the word elector is used in de-
fining their qualifications, which she would
not be entitled to hold in the absence OF
any further action of the Legislature in the
premises. In conclusion, the attorney
general submitted that the acknowledged
construction of the constitution for many
years and the policy of the State in gov
ernmental affairs should prevail and
should not be set aside at this time and a
new policy inaugurated.
| Former Chief Justice Allen B. Morse the
principal counsel for Mrs. Abbott, declared
that but one ground OF ineligibility was as
, signed, and that was that God made her a
woman instead of a man. This" he said
might have been a good reason in the
, dark ages of the law when women were
! little better than slaves, but in the light
of our day and in our State, where women
personal and property rights, but in all the
essentials of freedom, it has no foundation
in common sense, justice, or law
Mr.. Morse made much of the fact that
by virtue of the certificate given her by
the Supreme Court, Mrs. Abbott can defend
/ a man charged with murder. while under
the ruling asked for by the Attorney Gen.
, eral she cannot prosecute him for steal
ing a whip. He declared that there was nc
clause in the State constitution prohibit
ing woman from holding the office oi
] prosecuting attorney, nor any qualifica-
tions attached to the Office that by implica-
5 tion inhibits her and he insisted thai
1 where there was no clause bearing upor
r the subject there is nothing for the courts
to construe or interpret
e Answering the Attorney Generals argu.
S ment as to the practice of the State fol
sixty years, Mr.. Morse argued that. prac.
!. tice or belief does not make constitutions
e nor deprive citizens of rights. 1t may Civ,
+. them rights that courts viii not disturb
Il because of their long standing but II
takes something more potent than usag,
to deprive citizen of his equal rights witt
another citizen. Nor. il was maintained
can woman or any other citizen, by non.
1 use, lose rights belonging to him or her
and not prohibited by the constitution ant
y laws of the State. Emphasis was given Il
the assertion that neither the copstitu
tion nor the laws forbid the holding of thi,
Office by citizen because she is woman
5 and therefore the latter has the same righ
to hold 1t as a male citizen. II not, she II
Disseminated against by the courts an,
not by the lawmaking power. And shal
), all progress in the rights OF men AM
r women be stopped forever it was asked
n because, forsooth. they now wish to ex
g ercise a right not forbidden, which the,
o have never exercised before and which
: at the time the constitution was adopted