Pennsylvania Advisory Opinions December 22, 1920: AGO 153

Advisory Opinion Text

Women, in the absence of a constitutional or statutory provision specifically disqualifying them from holding office, are now eligible to hold public office in Pennsylvania. The XIX Amendment to the Federal Constitution abrogated any contrary common law rule.

Office of the Attorney General, Harrisburg, Pa., December 22, 1920.

Honorable William C: Sproul, Governor of the Commonwealth, Harrisburg, Pa.

Sir: I am in receipt of your communication of the 16th instant asking to be advised whether a woman is eligible for appointment to fill a vacancy in the office of Clerk of the Court of Quarter Sessions of the County of Luzerne.

Your inquiry raises the general question of the eligibility of women to hold public office in this Commonwealth.

Section 3 of Article X of the Constitution makes women "eligible to any office of control or management under the school laws of this State." This is not to be construed as implying that they are necessarily excluded by the Constitution from all other offices upon the principle expression unius est exclusio alterius, but simply as inhibiting the Legislature from disqualifying them from becoming school officials. The Legislature has so interpreted it in the act authorizing their appointment to the office of notary public.

Under the common law women were disqualified from holding public office, and pursuant thereto this Department, from time to time, held them to be ineligible for certain offices. Attorney General Kirkpatrick in an extensive review and citation of the common law authorities decided that a woman was ineligible for the office of notary public, (Attorney General's Reports, 1887-1888, page 7); Attorney General Carson ruled that they were ineligible for the office of commissioner of deeds, (Attorney General's Reports, 190S-1904, page S51) ; and Deputy Attorney General Cunningham for that of mercantile appraiser, (22 District Reports, 182).

These opinions are entitled to the great weight justly attaching to all the utterances and deliverances of the learned officials delivering them. In my opinion, they correctly stated the law at the time of their rendition, but we now face a changed situation arising out of the extension to women of the right to vote by virtue of the Nineteenth Amendment to the Federal Constitution. While the Nineteenth Amendment does not limit the power of, or impose any restriction upon, the States to prescribe, as they may see fit, the qualifications to hold office therein, yet having effected an absolute equality of women with men in the right to vote, can we deem their common law disqualification to hold office longer in force? Had our own State, by amendment to the Constitution, conferred the right to vote upon women, it could scarcely be doubted that it would have operated also to vest them with the right to hold office in all cases where there was no specific provision to the contrary. The reason upon which the common law disqualification of a woman to hold office was based disappeared when she was vested with the right to take part in the government as a voter. A rule valid in view of her status as a non-elector was rendered invalid upon her attaining the franchise of an elector. Under our scheme of government the right of a citizen to take part in the work of government as an elector implies the further attribute of eligibility to participate therein as an office-holder, in the absence of a disability specifically imposed. It certainly would be anomalous to have one-half of the voting citizens of the Commonwealth ineligible to hold an office for which they may vote, solely for a reason which by the supreme law of the land is expressly inhibited as a ground for denying them the right to vote.

I am of the opinion that women, in the absence of a constitutional or statutory provision specifically disqualifying them from holding an office, are now eligible to hold public office, and that any common law rule to the contrary is abrogated. The obligations and duties resting upon women as voters are precisely the same as those in the case of men, and a rational construction of our laws leads to the conclusion that the privileges of citizenship should be measured by the same standard for both.

Since there is no constitutional or statutory provision specifically disqualifying a woman from holding the office of Clerk of the Court of Quarter Sessions, you are advised that she is eligible to be appointed thereto.

Yours very truly,

GEORGE E. ALTER, Attorney General.