The People ex rel. Demarest et al. agt. Farley et al.

action of quo warranto to determine the right to a public office, an injunction restraining generally the functions of the office is not authorized by law.

In Morris agt. Whelan (64 How., 109), the application was for an injunction to restrain the defendant from acting as president of the common council of Troy, and it was distinctly held that where a person usurps and intrudes into a public office, civil or military, and the attorney general brings his action to oust him, no injunction can be obtained pendente lite. In Thompson agt. Commissioners of the Canal Fund (2 Abb., 248), Mr. justice MITCHELL held that the courts of this state have no power to restrain by injunction the acts of officers of the state who are proceeding under authority of a law of this state; and the fact that such law is unconstitutional forms no ground for granting such injunction.

In The Mayor agt. Conover (5 Abb. Pr. R., 171), Mr. justice ROOSEVELT decided that a preliminary injunction, the effect of which would be in effect to oust a party, although only temporarily, from the exercise of the functions of an office, by preventing his access to the books and to papers appertaining to it, should not be granted. That the title to a public office could not be indirectly tried in an injunction suit brought to restrain a claimant of such office from interfering with the books and papers appertaining thereto.

Long prior to the decisions in the cases above referred to, chancellor WALWORTH had decided in the case of Tappan agt. Gray (9 Paige's R., 507) that "this court ought not to assume the jurisdiction to oust an officer in no way connected with the administration of justice here, and over whose appointment it has no control, from an office the duties of which he is discharging under color of an appointment from the executive of the state, until his right to such office has been settled in a mode prescribed by law by the Revised Statutes for the determination of his claim," and as that would be the necessary effect of the injunction prayed for in that case, the chancellor reversed the decision of the vice-chancellor who had

Findlay agt. Thorn et al.

overruled the demurrer to the bill, the action having been brought by Tappan, claiming that he had been duly appointed by the governor, with the consent of the senate, as an inspector of flour for the city of New York, and that the defendant Gray had intruded himself into that office and entered upon the discharge of its duties, and was receiving the fees and emoluments thereof. The decision of the chancellor was affirmed by the court of errors (See 7 Hill, 259).

From this review of the cases bearing upon the right to a preliminary injunction restraining the incumbent, pending the suit, from exercising the functions of the office in dispute, it will be seen that such injunctions have been uniformly denied by the courts of this state. If there is anything in the case of Kerr agt. Trego (47 Penn., 292), cited by the counsel for the relators, conflicting with the decisions to which I have referred, it cannot, of course, be regarded as an authority by me.

For these reasons I am of the opinion that no injunction should be granted herein, and that the temporary injunction heretofore granted should be vacated and set aside.

CITY COURT OF NEW YORK.

WILLIAM C. FINDLAY agt. LEANDER H. THORN et al.

Female notaries— Right to office cannot be tested in a collateral manner.

A verification certified to by a female notary is valid as to third persons, and furnishes no ground for returning the pleadings. The parties to the record cannot test the eligibility of a female to hold office in any such collateral manner. The right can be tested only in a direct proceeding brought for the purpose in which the notary may defend her title.

Whether a female may hold public office in this state, quære.

Special Term, January, 1885.

Findlay agt. Thorn et al.

C. G. Kidder, for motion.

W. Parker, opposed.

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MCADAM, C. J. - The reply interposed to the counter-claim contained in the defendant's answer was returned, because the certificate to the jurat is signed "Jennie Turner, notary public." The complaint and answer were verified, and unless the reply contains a legal verification the defendants had the right to return it as an unverified pleading. The defendants place their objection upon the ground that Miss Turner, being a female, is ineligible to public office, and cannot therefore legally perform the functions of a notary. Miss Turner was appointed by the governor, and the appointment was confirmed by the senate. She has filed her official oath and has received her commission and is in possession of the office exercising its functions, and her right to the office cannot be questioned except in a direct proceeding brought by the attorney general in the name of the people, in which the notary may defend her right to the office. It cannot be determined in the collateral manner in which the defendants present their objection. When the appointing power can lawfully be exercised upon a particular office, the appointee, after qualifying and entering upon the office, becomes an officer de facto; if not de jure, his acts are legal so far as the public is concerned, and his capacity or qualification for the office cannot be inquired into collaterally (People agt. White, 24 Wend., 520; People agt. Lambert, 76 N. Y., 220).

In The People agt. Dean (3 Wend., 438) it appeared that a minor was appointed a commissioner of deeds. The clerk of the common pleas refused to administer the oath of office upon the ground that the appointee, being a minor, was incapable of holding the office. The supreme court held: "It is not the province of the officer to whom application is made to administer the oath of office to determine whether the person presenting himself is or is not capable of holding an office. It is the duty of such officer, on the production of the com

Findlay agt. Thorn et al.

mission, to administer the oath. If an appointment has been improvidently made, there is a legal mode in which it may be declared void," and a mandamus was thereupon ordered directing the clerk to administer the official oath.

Whether a female is capable of holding public office has never been decided by the courts of this state, and is a question about which legal minds may well differ. The constitution regulates the right of suffrage and limits it to "male" citizens (Const., art. 2, sec. 1). Disabilities are not favored and are seldom extended by implication, from which it may be argued that if it required the insertion of the term "male" to exclude female citizens of lawful age from the right of suffrage, that a similar limitation would be required to disqualify them from holding office. Citizenship is a condition or status, and has no relation to age or sex (Lectures of Prof. Dwight).

It may be contended that it was left to the good sense of the executive and to the electors to determine whether or not they would select females to office, and that the power being lodged in safe hands was beyond the danger of abuse. If, on the other hand, it be seriously contended that the constitution, by necessary implication, disqualifies females from holding office, it must follow as a necessary consequence that the act of the legislature permitting females to serve as school officers (1880, chap. 9), and all other legislative enactments of like import removing such disqualification are unconstitutional and void. In this same connection it may be argued that if the use of the personal pronoun "he" in the constitution does not exclude females from public office, that its use in the statute can have no greater effect. The statute, like the constitution, in prescribing the qualifications for office, omits the word "male," leaving the question, whether female citizens of lawful age are included or excluded, one of construction.

I make these observations for the purpose of showing that the question whether females are eligible to public office in this state is one not entirely free from doubt, and should not therefore be decided where it arises, as it does here,

Matter of David T. Davis et al.

incidentally and collaterally. When the law officers of the state see fit to test the question in a direct proceeding brought for the purpose, it will be time enough for the courts to attempt to settle the contention. In such a proceeding the case of Robinson (131 Mass., 376, and that reported in 107 Mass., 604), holding that females cannot hold public office, and those decided in other states that they can hold office, may be examined and considered.

For the purpose of this motion, it is sufficient to decide that the reply was verified before a person holding the office of notary public, under a commission granted by the legally constituted appointing power; that the defendants cannot, in a collateral proceeding, to which the notary is not a party, try the question of her eligibility to the office; that her acts are valid as to third persons and the parties to this record.

The motion to compel the defendants to accept the reply as a properly verified pleading will therefore be granted.

SUPREME COURT.

In the Matter of the General Assignment of DAVID T. DAVIS et al. to OWEN D. PERRY.

Assignment - By copartners which does not cover individual property nor provide for the payment of individual debts.

Where an assignment was in substance as follows: "We, D., J., B. & E., all of Utica, comprising the firm of D., J., B. & Co., doing business as manufacturers in Utica, for one dollar to us paid, hereby assign to P. all of our personal and real property not exempt from execution, in trust for our creditors. We direct said trustee to take possession of all our estate and convert the same into cash for our creditors. We direct him out of the first to pay expenses of administration; and, whereas, divers persons have each indorsed notes and drafts for our use and benefit and for the benefit and accommodation of our firm, and we have given a mortgage on our stock and goods to P. the first indorser on most of said paper which has been used by us and is now held by parties to us