Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-03-10
Women Eligible
CONTINUED from Page One)

swers.
The request was accompanied by
| the following statement:
STATEMENT.
| The Seventy-ninth Legislature or
the State, of Maine. at special SEES
sion thereof. to wit, on August thirty
first, nineteen hundred and twenty,
enacted the following statute, to wit:
IAN Act to prevent the denial OF
abridgmentof the right to hold office
on account of sex.
Be it enacted by the People of the
State of Maine. as follows:
No citizen of the United States hav-
ing a right to vote in this State shall
be denied the right to hold any civil
office under this State or any sub
division thereof on account Of sex"
On July 16, 1874, a majority of the
Justices of the Supreme Judicial Court,
advised the Executive Council that I'M
der the then existing Constitution and
laws of this State, a woman could not
be legally appointed as Justice OF the
Peace, the opinion of such Justices
being found in the sixty-second volume
of the Maine Reports, page five hum
bred ninety six.
QUESTION ONE.
Can the Governor now lawfully APP
point a woman as Justice of the
Peace under the existing provisions or
the Constitution Of the United States
and of this State, and the statute
enacted by the Seventy ninth Legis-
1ature referred to in the foregoing
statement of facts?
ANSWER TO QUESTION ONE.
This question we answer in the af-
firmative.
The office Of Justice of the Peace is
judicial office, the establishment,
method of appointment and tenure of
which are governed by our State Con-
stitution, Art V, Part First, Sec. s,
and Art. VI, Sec. 5.
The qualifications and eligibility of
persons holding the office are not speci-
fed in the Constitution, except in the
general educational clause in Article
xxx, which provides that mo per-
son shall have the right to vote or be
eligible to office under the Constitu-
ton of this State, who shall not be
able to read the Constitution in the
English language and write his
name; ~
This precise question was submitted
to the Justices of this Court by the
Executice Council on February 6, 1874,
6e Maine, sos, and a minority then
held that even under the Constitution
as then existing it was competent for
the Legislature to enact a law author
izing the appointment OF a woman as
Justice of the Peace, and that such
statute would not be in violation of the
Constitution. The opinion was based
upon the fundamental principle that
the sovereign power is lodged in the
people, and that the powers of the
LEGISLATURE as representatives of the
people in matters of legislation, are,
broadly speaking, absolute, except
when restricted and limited by the
Constitution; Sawyer V. Gilmore. 1O9
Maine, 1863, 1870; that the Constitution
of Maine while providing for the mode
of appointment and tenure of the office
of Justice of the Peace did not specify
the qualifications therefor, and that
there was neither sentence, clause nor
word in the Constitution forbidding
the passage of a legislative act author
izing the appointment of women as
Justices of the Peace. Therefore, the
minority held that under their reserv-
ed powers, the people, acting through
the Legislature, has full authority to
enact such a law. There was great
logical force in this, position and it
has received the approval and concur
,, renee of cases in other jurisdictions
one of the most enlightening of which
is Wright v. Noell, 16 Kan. COL, in
. which Justice Brewer, then of the Su-
. preme Court of that state and later
of the Supreme Court of the United
States analyZed the conflicting views
, with chara cteristic power and clarity
and adopted the minority view Of the
Maine Justices.
The majority of the Justices how
ever were Of the opinion that under
the then existing Constitution wo-
man could not be appointed JUS
tice of the Peace. This view was
based upon the fact that the entire
political power of the State was vest
ed in it's male inhabitants of a pre-
SCrlDeQ age, anu IHdl IOtilillS III lt'-
Constitution, or in the debates in the
convention which framed it, indicat-
ed any purposes to surrender that
power on the part of those who had
previously enjoyed it, or to transfer it
to those who had never possessed it.
They therefore concluded that lit
, was never in the contemplation or in
tention of those forming our Consti-
; tuition that the offices thereby Great
ed should be filed by those who could
take nc part in it's original formation,
and to whom no political power was
intrusted for the organization of the
government then about to be estab-
lshed under it's provisions or for its
, continu ed existence and preservation
when established"
This view has the support of the
Massachusetts Court. OPP. Jus. i07
Mass GOA 165 Mass. 500.
Conceding for the sake of argument
that the majority view was the cor
rect one at the time when rendered
as interpreting the Constitution in it's
hen existing form, changed situa-
ton presents itself today and this
questl' II when re-asked must be ex-
amincd and determined in the light
of he Constitutional provisions as
they Low obtain.