§ 609. Physical. The fitness to perform the duties of certain offices may depend upon the physical strength of the incumbent, and since women 101 ble to be elected, and if any one of them during the time for which he was elected shall fail to retain all the qualifications necessary to render him eligible to election, he shall forfeit such office and such forfeiture shall be declared by the said city council and the vacancy caused thereby shall be immediately filled as herein provided. * * On the 25th of October, 1899, the appellant, a tax-paying citizen and a legal voter, in the city of Cumberland, filed a petition in the circuit court for Allegheny county, wherein it is alleged that the appellee, Edwin F. Rizer, was on the 16th day of May, 1898, at a municipal election held in the city of Cumberland, elected to the office of city councilman for the term of two years; that, subsequently, he was sworn in, and has acted and continues still to act in that capacity; that the appellee is not a bona fide owner in his own right of property to the amount in value of $500 and was not at the time of his election, nor for the year next prior thereto, and does not possess and retain the said qualifications that would render him eligible to be elected and retain the office of city councilman, and so has not at any time been duly and legally qualified to occupy the office and discharge its duties. # It is well settled law that * the election of a disqualified person is a nullity-the election is a failure and a new election must be held. * * * It it quite certain, then, that if the appellee, Edwin F. Rizer, did not possess at the time of his election, as alleged, the quali fications prescribed by the charter for the office of city councilman of Cumberland, he was never legally elected thereto." 101 Jeffries v. Harrington, 11 Colo. 191, 17 Pac. 505. A woman may hold a deputy clerkship of a county court. Schuchardt v. People, 99 III. 501. A woman may be master in chancery. Huff v. Cook, 44 Iowa, 639. A right to hold an elective office may be conferred upon a woman even by a retrospective statute. Wright v. Noell, 16 Kan. 601; Harbour-Pitt Shoe Co. V. Dixon, 22 Ky. L. R. 1169, 60 S. W. 186. The office of notary public is created by statute and not by the constitution; a married woman is, therefore, eligible. Atchison v. Lucas, 83 Ky. 451. A woman is not eligible to the office of jailor. Wilson v. Genessee Circuit Judge, 87 Mich. 493, 49 N. W. 869. A woman may be appointed deputy county clerk. State v. Gorton, 33 Minn. 345. Eligible for office of county superintendent. Rupp v. Rust, 4 Ohio Cir. Ct. R. 329. See, also, Washington Laws 1889-90, p. 564; Warwick v. State, 25 Ohio St. 22; State v. Hostetter, 137 Mo. 636, 39 S. W. 270, 38 L. R. A. 208. Where the court holds that no restrictive intent is shown by the use of the word "his" as used in the Constitution, art. 8, § 12, declaring who is eligible to office, a woman is, therefore, eligible to the office of clerk of county court. See, also, Wisconsin Statutes, Laws 1891, c. 34, p. 27; c. 119, p. 141, which allow married women to act as court commissioners or receivers since or minors 102 of both sexes are usually regarded as inferior in this respect to males of full age, by constitutional provisions or legislative enactment in some states these have been debarred from holding the particular offices specified and to which the qualifications may apply. The question of whether women shall vote or hold office is one of local public policy merely. It is not to be compared with the same question in respect to aliens; the inclinations, interests and duties of the latter are presumptively with the nation of which they are citizens and otherwise antagonistic. The present tendency is to remove the disabilities and restrictions imposed upon women in respect to their holding office and the rule almost universally obtains in the United States of their right to vote on questions connected with public education and to hold office in connection with the public school system.103 § 610. Mental. To properly perform the duties of many offices special educational or professional attainments are necessary and special qualifications based upon these conditions are usually required of those desiring to fill the offices where such qualifications are regarded as expedient and necessary.104 Age may also affect the mental their admission to the bar is authorized. But see Opinion of Justices, 115 Mass. 602. Member of school committee. State v. McSpaden, 137 Mo. 628. Not eligible for office of school director. State v. Stevens, 29 Or. 464. A woman is ineligible to the office of county superintendent of public schools. 102 State v. Bradley, 48 Conn. 548; In re Golding's Petition, 57 N. H. 146; People v. Dean, 3 Wend. (N. Y.) 438; Green v. Burke, 23 Wend. (N. Y.) 490; McConnell v. Kennedy, 29 S. C. 180. See, also, In re Golding's Petition, 57 N. H. 146; Lynch v. Livingston, 6 N. Y. (2 Seld.) 422; Lambert v. People, 76 N. Y. 220. But see United States v. Bixby, 10 Biss. 520, 9 Fed. 78. 103 Huff v. Cook, 44 Iowa, 639; Wright v. Noell, 16 Kan. 601; Abb. Corp. Vol. II — 34. Koontz v. Kurtzman, 12 Wash. 59. But see State v. Stevens, 29 Or. 464, 44 Pac. 898. Laws 1893, p. 62, unconstitutional in so far as it makes women eligible to the office of county superintendent of schools. Const. art. 6, § 8, and art. 2, § 2, provide that only electors who must be male citizens are eligible to county offices. 104 State v. City Council of Wilmington, 3 Har. (Del.) 294; State v. Blanchard, 6 La. Ann. 515; People v. May, 3 Mich. 598; State v. Starkey, 49 Minn. 503, 52 N. W. 24. The provision that a building inspector shall be "a practical architect and engineer" is mandatory and the election is void of one not possessing such qualifications. State v. Gylstrom, 77 Minn. 355, 79 N. W. 1038; Stearns v. Tew, 6 Misc. 404, capacity of candidates. This is especially true of all those offices which require for the proper performance of their duties, the exercise of that judgment and discretion which usually accompany age and experience.105 Since youth may be regarded as a disqualification, so, on the other hand, extreme old age may be considered as having dulled the mental faculties to such an extent as to incapacitate those having reached a certain age from performing the duties of particular offices.106 § 611. Condition of the candidate. It was said by Judge Dixon of Wisconsin that "it is an acknowledged principle, which lies at the very foundation, and the enforcement of which needs neither the aid of statutory nor constitutional enactments or restrictions, that the government is instituted by the citizens for their liberty and protection, and that it is to be administered and its powers and functions exercised 27 N. Y. Supp. 26; People v. City of Buffalo, 18 Misc. 533, 42 N. Y. Supp. 545. But see State v. Nichols, 83 Minn. 3, 85 N. W. 727, which holds that a qualified voter is eligible to the office of city attorney although he has not been duly admitted as an attorney at law; the city charter providing that all qualified voters shall be eligible to any municipal office. It is interesting to note that in Maryland, Delaware, Kentucky and Tennessee no minister or preacher of any religious denomination can be a member of the state legislature. In Kentucky they are not eligible for the office of governor and in Delaware they cannot hold any civil office. See Stimson, Am. St. Law, § 223, subd. 1. See, also, Bacon's Abr. tit. "Offices and Officers" (I), where it is said: "If an office, either of the grant of the king or subject, which concerns the administration, proceeding or cution of justice, or the king's rev exe enue, or the commonwealth, or the interest, benefit or safety of the subject, or the like; if these or any of them be granted to a man that is unexpert, and hath no skill and science to exercise or execute the same, the grant is merely void, and the party disabled by law, and incapable to take the same, pro commodo regis et populi; for only men of skill, knowledge, and ability to exercise the same, are capable to serve the king and his people." 105 United States v. Bixby, 9 Fed. 78. U. S. Const. art. 2, § 1, subd. 5. No one is eligible to the office of president of the United States who shall not have attained the age of 35 years. State v. Gastinel, 20 La. Ann. 115; In re Golding's Petition, 57 N. H. 146; McConnell v. Kennedy, 29 S. C. 180. 106 Keniston v. State, 63 N. H. 37, 56 Am. Rep. 486. See, also, People v. French, 52 Hun (N. Y.) 464; People v. Carr, 100 N. Y. 236; People v. Duane, 121 N. Y. 367. only by them and through their agency." 107 This principle has acted so universally that all of the states require as one of the first qualifications for the proper performance of public duties that one of citizenship.108 In further maintaining the principle of local self-government, the condition of residence 109 within the 107 State v. Smith, 14 Wis. 497. 108 Scott v. Strobach, 49 Ala. 477; Walther v. Rabolt, 30 Cal. 186; Drew v. Rogers (Cal.) 34 Pac. 1081; McCarthy v. Froelke, 63 Ind. 507. One necessarily need not be a citizen of the United States if he is a voter under the state constitution where a "voter" is declared eligible to an office. State v. Kilroy, 86 Ind. 118. The terms "inhabitant" and "citizen" are not synonymous; one need not necessarily be a citizen of the county where an inhabitant is eligible under the statutes to hold office. State v. Van Beek, 87 Iowa, 569, 54 N. W. 525, 19 L. R. A. 622; State v. Fowler, 41 La. Ann. 380, 6 So. 602. One who has declared his intention to become a citizen of the United States is a citizen of the state and qualified to hold office. State v. Abbott, 41 La. Ann. 1096, 6 So. 805; Justices Opinion, 70 Me. 560. A person not a citizen of the United States may be a selectman of the town so that his official acts will bind it. Taylor v. Sullivan, 45 Minn. 309, 11 L. R. A. 272; State v. Streukens, 60 Minn. 325, 62 N. W. 259; State v. Boyd, 31 Neb. 682, 48 N. W. 739, 51 N. W. 602; State v. Smith, 14 Wis. 497; State v. Murray, 28 Wis. 96. and State v. Streukens, 60 Minn. 325, 62 N. W. 259; In re Conway, 17 Wis. 526. 109 Wheat v. Smith, 50 Ark. 266, 7 S. W. 161. One does not lose his domicile as to disqualify him from holding office by residing abroad as consul for the United States. People v. Brite, 55 Cal. 79; Wristlen v. Donlan, 79 Cal. 472, 21 Pac. 868; Bergevin v. Curtz, 127 Cal. 86, 59 Pac. 312; Jain v. Bossen, 27 Colo. 423, 62 Pac. 194; State v. George, 23 Fla. 585, 3 So. 81; Jones v. Mills, 11 Ill. App. 350; Laimbeer v. People, 48 Ill. 490; State v. Allen, 21 Ind. 516; Yonkey v. State, 27 Ind. 237; State v. Kilroy, 86 Ind. 118; Police Com'rs v. City of Louisville, 66 Ky. (3 Bush) 598; Barker v. Southern Const. Co., 20 Ky. L. R. 796, 47 S. W. 608; Gibson v. Wood, 20 Ky. L. R. 1547, 49 S. W. 768. A charter provision required a residence in the city for three years as a qualification for office; under this provision, one who has resided for three years in territory annexed to the city becomes immediately eligible to office. State v. Blanchard, 6 La. Ann. 515; Stow v. Common Council of Grand Rapids, 79 Mich. 595, 44 N. W. 1047; Auditor General v. Longyear, 110 Mich. 223, 68 N. W. 130. Deputy township treasurers may, however, be appointed who do not reside in the township. Safford v. Board of Health, 110 Mich. 81, 33 L. R. A. 300; State v. Holman, 58 Minn. 219; State v. Banta, 71 Mo. App. 32; Dowty v. Pittwood, 23 Mont. 113, 57 Pac. 727; State v. limits of the corporation as to which the public office exists is almost universally required and the lack of this qualification is sufficient to debar one from holding certain prescribed offices. In some instances, the ownership of real property is a necessary qualification for eligibility to office; the principle which is a sound one being that the ownership of property, real or personal, will make one more conservative in his official acts as affecting the public welfare and that he will, in all respects, exercise the duties of his office more carefully, efficiently and honestly since he will be personally affected in his property interests by any neglect, extravagance or misfeasance in office.110 In a succeeding section 111 will be considered the various acts required in properly qualifying, as it is termed, for office; the formal acceptance, the taking of a prescribed oath and the furnishing of an official bond; a failure to qualify by performing those acts which may be required by statute is sufficient to create a condition through which a candidate for office duly elected may be prevented from assuming and exercising the duties appertaining thereto.112 McMillen, 23 Neb. 385, 36 N. W. 587; People v. Platt, 50 Hun, 454, 3 N. Y. Supp. 367; People v. Merick, 61 Hun, 396, 16 N. Y. Supp. 246; People v. Hull, 64 Hun, 638, 19 N. Y. Supp. 536; Fahey v. Johnstone, 21 App. Div. 154, 47 N. Y. Supp. 402; Jones v. Jones, 12 Pa. 356; State v. McGeary, 69 Vt. 461, 38 Atl. 165, 44 L. R. A. 446; Kempster v. City of Milwaukee, 97 Wis. 343, 72 N. W. 743. But see Salamanca Tp. v. Wilson, 109 U. S. 627, which holds that where there is nothing in either the constitution or laws of the state which require a township treasurer to be a resident of the township when elected or qualified, the fact that he moves across the line into a joining township cannot create a vacancy in his office. See, also, Steusoff v. State, 80 Tex. 428, 15 S. W. 1100, 12 L. R. A. 364. 110 Darrow v. People, 8 Colo. 417; Crovatt v. Mason, 101 Ga. 246; People v. Hamilton, 24 Ill. App. 609; Pettit v. Yewell, 24 Ky. L. R. 565, 68 S. W. 1075; Spear v. Robinson, 29 Me. 531; Vanneman v. Pusey, 93 Md. 686, 49 Atl. 659; Davis v. School Dist. No. 1, 81 Mich. 214; State v. Macklin, 41 Mo. App. 335; State v. Williams, 99 Mo. 291, 12 S. W. 905; Wynn v. State, 67 Miss. 312; Roane v. Matthews, 75 Miss. 94, 21 So. 665; Mayer v. Sweeney, 22 Mont. 103, 55 Pac. 913; State v. Ruhe, 24 Nev. 251, 52 Pac. 274; State v. McAllister, 38 W. Va. 485, 24 L. R. A. 343; Kempster v. City of Milwaukee, 97 Wis. 343. 111 See §§ 617 et seq., post. 112 Pearson v. Wilson, 57 Miss. 848. The requirement to qualify within a prescribed time does not, where an election is contested, apply until the termination of the contest. Johnson v. Mann, 77 Va. 265; Vaughan v. Johnson, 77 Va. 300; Carr v. Wilson, 32 W. Va. 419, 9 S. E. 31, 3 L. R. A. 64. |