
    State ex rel. The Attorney-General v. Adams.
    
      Notary public — Invalidity of act of April %6, 1898 — Rendering women eligible to office of notary public — Constitutional law.
    
    The act of April 26, 1898, to amend section 110 and other sections of the Revised Statutes, (93 O. L. 405) is ineffectual to render a -woman eligible to the office of notary public, in view of the provisions of section 4 of Article 15, and section 1 of Article 5 of the constitution, the former section requiring that an officer shall be an elector, and the latter that an elector shall be a male citizen.
    (Decided June 21, 1898.)
    In Quo Warranto.
    The petition of the attorney-general alleges that on the fourth day of March, 1898, the defendant, Miss Adams, was by the governor commissioned as a notary public for Lake county; that she then gave bond and took an official oath as prescribed by statute ; that she has ever since claimed, and now claims, to be holding such office and exercising its functions; that she is usurping said office because of the invalidity of the act assuming to authorize her appointment.
    For the purpose of final judgment the facts alleged in the petition are admitted to be true.
    
      Frank S. Monnett, attorney general, and John L. Lott, for the state.
    Brief of John L. Lott, assistant attorney-general, for relator.
    It appears to be entirely unnecessary to discuss the question, as to whether a notary public is an officer. Wherever the term “notary” is used, it is always used in connection with the term “office.” 2Bouvier’s Law Die., 255; United States 
      v. Hartioell, 6 Wall., 385; 16 Am. & Eng. Ency. of Law, 753; Proffatt on Notaries, section 1.
    The framers of our constitution regarded a notary as an officer, as is apparent from a readingof article 2, section 4, of the constitution, which forbids persons holding office under authority of this state or the United States, from being eligible to a seat in the general assembly.
    It is regarded as an office in the very section of the statutes providing for the appointment of notaries public. See sections 110, 112, 114, 121, 122 and 123, Revised Statutes; Hill v. Bacon, 43 111., 477. In the matter of Notaries. 9 Colorado, 628; State v. Wilson, 29 Ohio St., 347, and many cases are therein cited. State ex rel. v. Jennings el al., 57 Ohio St., 415; Gayón v. Insurance Go., 68 Wis., 519.
    Section 4, of article 15 of the constitution, defines who shall be eligible to hold office in this state.
    The qualifications of an elector are expressed in section 1 of article 5.
    The precise question involved in this proceeding has been decided by this court in the case of the State ex rel. Hellie G. Bobinson v. William McKinley, Governor, on January 14, 1896, and is reported in 57 Ohio St., 627. The- opinion of the court is plain, and reads: “Under the constitution and laws of Ohio, a woman is not eligible to the office of notary public.”
    This decision is in line with the decisions of the Supreme Courts of other states upon this question, whose constitutions are similar of that of Ohio. 9 Colorado, 628; Story on Constitution, sections, 789-792; United States v. Hartioell, 6 Wall., 385; Hill v. Bacon, 43 111., 477; Article 7, section 6, of the Colorado Constitution. In the matter of notaries, 150 Mass., 586.
    It will undoubtedly be urged by counsel for the defendant that the rule laid down by the circuit court and affirmed by this court in the case of the State ex rel v. Board of Education, 9 C. C., 134; s. c. 6 Circ. Dec., 36, wherein it was held that a woman might vote and be voted for at elections for school officers, applies in the case of a notary public. But the court in that ease proceeded upon the theory that the constitution conferred upon the legislature (Const., article 1, section 7; article 1, section 2) the authority to provide for the organization and maintenance of a system of common schools; and that a member of a school board is not an officer of any political subdivision provided for by the constitution. State ex rel v. Cincinnati, 19 Ohio St., 197.
    In the case of Warwick v. The State, 25 Ohio St., 21, the court held that a woman might be appointed a deputy clerk of a probate court, but that was upon the theory that the acts of the deputy were the acts of the principal.
    We contend that the qualifications prescribed by article' 15, section 4, for persons holding office, apply to all offices which may be created to aid in the permanent administration of the government, and performing general functions of government. The office of a notary has to do with the general protection and security of property. While in this state the duties of notaries are ministerial in character, yet the functions performed by such officers are so general in character, and so connected with the carrying on of government, that they cannot be considered as merely local in character as in the case of school directors; and that the rule laid down in the election of members of local boards of education cannot be held to apply to the office of notary public.
    
      A. G. Reynolds; John Kenney; James R. Garfield and IF. K. Fink, Jr., attorneys for Grace A. Adams, respondent, submitted no briefs.'
   By the Court :

The commission was issued to Miss Adams under authority supposed to be conferred upon the governor by the act of April 26, 1898, to amend sections 110 and other sections of the Revised Statutes, (93 O. L., 405). Before the amendment, the pertinent provision of this section was: ‘ The governor may appoint and commission as notaries public as many persons having the qualifications of electors,” etc. In the amended section the phrase “having the qualifications of electors,”is omitted.

The amendment is ineffectual for the purpose contemplated, because section 4, of article 15 of the constitution ordains that “no person shall be elected or appointed to any office in this state unless he possess the qualifications of an elector.” The qualifications of an elector are prescribed in section 1 of article 5 of the constitution, and it is required that an elector shall be a male citizen of the United States. That a notary public is an officer, seems clear from the nature of his functions, as well as from the authorities upon the subject.

That a notary is an officer, and that a woman is ineligible under these constitutional provisions, are propositions distinctly held in 9 Col., 628. That a notary is an officer, is held in Hill v. Bacon, 43 Ill., 477 and 150 Mass., 586. The same conclusion is implied in Warwick v. The State, 25 Ohio St., 21, where it is held that a woman may be deputy clerk of the probate court, because the acts of such deputy are nob independent, but are the acts of the principal.

The contrary view is not supported by the State ex rel v. Cincinnati, 19 Ohio, 178, and the State ex rel. v. Board of Education, 9 O. C. C. R., 134. It was held in those cases that the qualifications of an elector are not essential to the holding of positions of an official character under the school laws, because of the effect of the constitutional provisions relating especially to the subject of schools. Those cases have not sufficient breadth or strength of foundation to admit of additional superstructure.

The conclusion here reached is in accord with that announced in State ex rel. v. McKinley, 57 Ohio St., 627.

Judgment of ouster.  