tion in the constitution making the right to hold office co-extensive with the right to vote. It is asserted that the one right necessarily depends upon the other;1 there is, however, this distinction: the vote is a power of sovereignty; the office, the means whereby the power operates. It is a non sequitur that, in limiting the classes of voters, the constitution is necessarily limiting the classes of officeholders through whom the voters may make their wishes effective. Several cases have pointed out that the restriction upon those who can hold office would be a restriction upon the freedom of choice of the voters, and have repudiated any such implied limitation upon the exercise of the voters' will. The rule is also repudiated, although not in words, where the same court holds. that the restriction does not extend to offices created by the legislature, as distinguished from those created by the constitution, but that the legislature, in creating offices, cannot make the franchise for the new positions any broader than it was for the old ones; for the result is that voters are allowed to elect non-voters. Even this attitude, so far as it imposes the qualification upon any officeholders, seems incorrect."

6

Whether, if there is a common-law ineligibility, it is incorporated in the constitution, is a quite different question. A clause giving the right to elect to office must be read in the light of what such a privilege meant at common law, just as a clause that no one shall answer to a criminal charge unless indicted must be read in the light of the common-law rule that a grand jury cannot indict unless twelve jurors so vote. This would seem clear, but it is not so clear that such ineligibility could only be removed by a constitutional amendment. It could be argued, on the one hand, that, although implied, a restriction upon those who can take part in governmental functions is as much a part of the constitution as any express enactment; on the other, that, while the constitution must be interpreted under the common law, it does not enact the common law of its time, and that the common-law rule of ineligibility can be changed. Taking this second view, it might be maintained that the law on this point can and should adapt itself to altered circumstances without waiting for legislative enactment; that courts which can declare

1 See COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 894, note 1; MECHEM, PUBLIC OFFICES AND OFFICERS, § 67.

2 Wright v. Noell, 16 Kan. 601 (1876); Steusoff v. State, 80 Tex. 428, 15 S. W. 1100 (1891); Opinion of the Justices, 62 Fla. 1, 57 So. 351 (1912); and see Barker v. The People, 3 Cow. (N. Y.) 686, 703 (1824); People v. McCormick, 261 Ill. 413, 419, 103 N. E. 1053, 1056 (1914). Contra, State v. Smith, 14 Wis. 497 (1861); State v. McMillen, 23 Neb. 385, 36 N. W. 587 (1888); Attorney General v. Abbott, 121 Mich. 540, 80 N. W. 372 (1899); State v. Hodges, 107 Ark. 272, 154 S. W. 506 (1913); State v. Knight, 169 N. C. 333, 85 S. E. 418 (1915).

Huff v. Cook, 44 Iowa, 639 (1876).

4 See Coggeshall v. City of Des Moines, 138 Iowa, 730, 736, 117 N. W. 309, 311. (1908); In re Carragher, 149 Iowa, 225, 227, 128 N. W. 352, 353 (1910).

5 66 "It would seem but fair reasoning, upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites.' I STORY, COMMENTARIES ON THE

CONSTITUTION, 5 ed., § 625.

State v. Barker, 107 N. C. 913, 12 S. E. 115 (1890).

7 See Arthur W. Machen, Jr., "The Elasticity of the Constitution," 14 HARV. L. REV. 200, 273; 24 HARV. L. REV. 139.

Schuchardt v. The People, 99 IlÍ. 501 (1881).

a newspaper syndicate a public utility and can hold a trust to promote atheism not against public policy 10 should be able to hold that the modern woman has intelligence and discretion enough to hold public office. The analogies are not strictly in point, for this question would involve, not the determination of whether a new fact fits an old conception, but a change of status. It could, however, be said that statutes have gone so far in removing women's legal incapacity that the courts do not have to effect a change of status but merely to accept it." It is significant, in this aspect of the problem, that Lord Ronan has declared in a dictum in the recent case of Frost v. The King 12 that, whatever may have been the previous law, women can no longer be held ineligible for office.

That there was a general common-law ineligibility is by no means certain. Cases which hold that there was usually assume that such an ineligibility must have existed, and then treat the numerous early cases where women's rights to hold offices have been upheld as exceptions to the rule assumed. An English case usually cited by the courts as holding that there is an ineligibility at common law in reality holds no more than that the framers of an act giving the right to hold a certain office did not mean to open it to women; 13 dicta to the effect that women are ineligible at common law are based upon a preceding case, which only decided they could not vote at common law,14 a question which may involve quite different considerations.15 There are many early cases holding that women can fill offices whose functions can be performed by deputy,16 which would seem to show that the law did not regard women as incapable of the necessary discretion, for of course the deputy is subject to the officeholder's control. The consideration of feminine sensitiveness does not seem to have kept women out of the positions of prison-keeper 17 and commissioner of sewers.18 Most of the cases concern women's eligibility to administrative offices, and it is generally said, even by courts which hold that there is no ineligibility here, that the eligibility does not extend to judicial and legislative offices. Certainly the capacities required by the three classes of office differ; in each, common-law eligibility depends upon custom, and, as there is considerably less evidence of women holding offices of the last two classes,1o the distinction will probably be maintained. As for administrative offices, the tendency of recent years has been to hold women eligible. Some of the cases have been concerned with offices purely ministerial,20 but some

• The Interocean Publishing Co. v. The Associated Press, 184 Ill. 438, 56 N. E. 822 (1900).

10 Bowman v. Secular Society, Limited, [1917] A. C. 406.

11 Ward v. Berkshire Life Insurance Co., 108 Ind. 301, 9 N. E. 361 (1886).

12 [1919] 1 I. R. 81, 106.

13 Beresford-Hope v. Lady Sandhurst, L. R. 23 Q. B. D. 79 (1889).

14 Chorlton v. Lings, L. R. 4 C. P. 374 (1868).

15 See supra.

16 See 38 L. R. A. 208, note.

17 Rex v. Lady Braughton, 3 Keb. 32 (1672).

18 See CALLIS ON SEWERS, 4 ed., 296, 299.

19 But see 24 HARV. L. REV. 139, notes 7 and 8; 38 L. R. A. 208, note.

20 Gilliland v. Whittle, 33 Okla. 708, 127 Pac. 698 (1912). Here it was held that,

under the wording of the state constitution, a woman could be clerk of court. State v. De Armijo, 18 N. M. 646, 140 Pac. 1123 (1914) (state librarian).

have gone much further.21 England" and Quebec 23 have recently held that, at common law, women cannot be attorneys, but these cases involve only the custom in a particular profession. In both England and America, should the question of common-law eligibility arise again before the matter is finally settled by statute, the dicta and discussion in Frost v. The King" may lead the court to decide in favor of eligibility.

LEGAL STATUS OF VOLUNTARY ASSOCIATIONS.1 In the absence of a statute, it is clear that a voluntary or unincorporated association cannot sue or be sued in the name of the association.2 But statutes in many jurisdictions allow actions by, or against, such organizations in their ordinary name, or in the name of some officer. The famous case of the Taff Vale Railway Co. v. Amalgamated Society of Railway Servants♦ held that an Act of Parliament 5 which gave unincorporated trade unions a right to hold property for their own use and provided for a registry of their names, by implication made the unions liable to suits against them in such registered name. For the purposes of that case, it is submitted, it would have made no great difference whether the association were regarded as a legal entity distinct from its members, or whether the trade union's name were considered merely as an authorized compendious designation, by way of procedure, for all or for certain representative members of the union. The House of Lords did adopt the view that the union was a legal entity, and this seems a proper and desirable result. But since the suit was for an injunction only, the suggestion of Lord Macnaghten and of Lord Lindley," that a representative action,

State v. Quible, 86 Neb. 417, 125 N. W. 619 (1910) (county treasurer); Opinion of the Justices, supra (county treasurer).

22 Bebb v. Law Society, L. R. [1914] 1 Ch. D. 286.

23 Langstaff v. Bar of Province of Quebec, 25 Que. K. B. 11 (1915). The American authorities are divided.

24 Supra.

1 For a discussion of the general problem of the jurisdiction of courts over a controversy between a voluntary association and a member, see Universal Lodge No. 14, F. & A. M. v. Valentine, 107 Atl. 531 (Md. 1919).

Francis v. Perry, 82 Misc. 271, 144 N. Y. Supp. 167 (1913). See Allis-Chalmers Co. v. Iron Moulders' Union, 150 Fed. 155, 183 (1906); New England States Sangerbund v. Fidelia Musical & Educational Society, 218 Mass. 174, 105 N. E. 629 (1914).

Francis v. Perry, supra; Court Harmony, A. O. F. v. Court Abraham Lincoln, A. O. F., 70 Conn. 634, 40 Atl. 606 (1898). Colorado, Michigan, Minnesota, New Jersey, Pennsylvania, and a number of other states have similar statutes. In some cases they are limited to fraternal benefit societies paying more than a minimum death benefit, as in West Virginia. See CODE 1913, c. 55 A, §§ 3226-3263. In Minnesota, the statute has been held to apply only to business partnerships and only to parties defendant. St. Paul Typothetæ v. St. Paul Bookbinders' Union, 94 Minn. 351, 102 N. W. 725 (1905). Other modifications are found in the interpretations of the Ohio and the Nebraska statutes.

[1901] A. C. 426. See 15 HARV. L. REV. 311.

TRADE UNION ACT 1871, 34 & 35 VICT. c. 31, as amended by ACT OF 1876, 39 & 40 VICT. C. 22.

See page 438 of report. See also Pickett v. Walsh, 192 Mass. 572, 589, 78 N. E. 753, 760 (1906); American Steel & Wire Co. v. Wire Drawers' & Die Cutters' Unions, 90 Fed. 598, 605 (1898). See POMERoy, Code REMEDIES, 4 ed., 267.

See page 443 of report.

even in the absence of statute, would have bound all members of the society, seems tenable.

In many cases, however, the decision of the question, whether statutes allowing suits against voluntary associations in the association name. affect the adjective or the substantive law, is of importance practically as well as theoretically. Thus, since the common law dealt with associations solely in accordance with the principles governing partnerships, such an organization could not sue a member or be sued by a member at law, and the only remedy lay in equity. Hence a court which regarded the change as procedural merely, might be expected to hold that this right was not enlarged, and the Connecticut court has taken this view.10 The New York court, on the other hand, has held that such an action at law was permitted" under the New York Code. 12 Again, in the case of Saunders v. Adams Express Co.,13 the New Jersey court decided that the question of the party to be sued was one of procedure, to be regulated by the lex fori, and that the action need not be brought against the president or treasurer of this New York joint-stock association, as the New York statute provided, but that it might be brought against the association in its usual name, in accordance with the provisions of the New Jersey Code.14 A Michigan case,15 however, finds a statute of this type sufficient reason for treating a voluntary association as a legal entity, distinct from its members.

In the satisfaction of a personal judgment rendered against a voluntary association, the question of the status of the association is again raised. At common law, such a judgment was, of course, void and could not be enforced.16 But under the statutes it has been held that such a judgment could be enforced against the property of the association.17 And many cases have limited the right of the plaintiff to levy execution, under such a judgment, to this association property.18 But this does not mean that the liability of a member is a limited liability. If an action against the association fails to secure the satisfaction of the debt, then an action will still lie against the individual associate.19 Nor is limited liability the sine qua non of corporateness. It is submitted that if the legislature should pass a law providing for the unlimited liability of

McMahon v. Rauhr, 47 N. Y. 67 (1871); Cheeny v. Clark, 3 Vt. 431 (1830). 'McDowell v. Joice, 149 Ill. 124, 36 N. E. 1012 (1893); Labouchere v. Earl of Wharncliffe, L. R. 13 Ch. D. 346 (1879).

10 Huth v. Humbolt Stamm No. 153, 61 Conn. 227, 23 Atl. 1084 (1891). "Westcott v. Fargo, 61 N. Y. 542 (1875); McCabe v. Goodfellow, 39 N. Y. St. 941, 15 N. Y. Supp. 377 (1891).

12 CODE OF CIVIL PROCEDURE, § 1919.

13 71 N. J. L. 270, 57 Atl. 899 (1904).

14 P. L. 1903, p. 545, § 40.

15 Detroit Light Guard Band v. First Michigan Independent Infantry, 134 Mich. 598, 96 N. W. 934 (1903).

16 McConnell v. Apollo Savings Bank, 146 Pa. 79, 23 Atl. 347 (1892); Methodist Episcopal Church v. Clifton, 34 Tex. Civ. App. 248, 78 S. W. 732 (1904).

17 Gale v. Townsend, 45 Minn. 357, 47 N. W. 1064 (1891); Welsh v. Kirkpatrick, 30 Cal. 202 (1866); Allen v. Clark & Thompson, 65 Barb. 563 (1873).

18 Davison v. Holden, 55 Conn. 103, 10 Atl. 515 (1887); Schuylerville Nat'l Bank v. Van Derwerker, 74 N. Y. 234 (1878); Mertz v. Fenouillet, 13 App. Div. 222, 43 N. Y. Supp. 217 (1897).

19 See Allen v. Clark, supra, p. 571.

stockholders for the debts of a certain class of corporations this would not make the corporations any less entities. And there seems no good reason why an unincorporated association should not be regarded as just this sort of an entity. If the association is regarded as an entity, certain difficulties are avoided, which are presented if the obligation is treated as an ordinary joint obligation. Under the latter view, for instance, if one of the members of the association were a nonresident of the state in which judgment was given, and if he had not been served with process within the state, the entry of judgment against the association would be void, in accordance with the interpretation of the Fourteenth Amendment, laid down in Pennoyer v. Neff.20 Execution could not even be levied upon joint property under such a void judgment. Of course, the plaintiff might reach the property by an action quasi in rem, but there are advantages connected with a personal judgment for which a judgment in rem would hardly be an adequate substitute. As a practical matter, a voluntary association does act as a unit, and it would appear that the liability ought to be primarily that of the unit. To the man in the street who deals with a labor union or a club, there is no difference apparent between the conduct of that organization, unincorporated, and the conduct of a similar incorporated association. Nor is any difference apparent to a member. Affairs are managed in quite the same fashion: business is transacted in the association name: the entity in the world of things is quite as definite. It seems, too, that the view of these associations which confirms the popular notion of them is at least as much in harmony with the language of these statutes as the procedural view. Perhaps it would be possible to recognize such voluntary societies as entities, even where there is no statute. In Simpson v. Grand International Brotherhood of Locomotive Engineers, an interesting recent case, the West Virginia court has refused to go this far.21 At any rate, the statutes afford a desirable opportunity to make the law accord with ordinary thought, and, at the same time, to lessen the divergence between the treatment of organizations substantially similar.

ADOPTION OF ADMIRALTY RULES BY COMMON-LAW COURTS. The United States Supreme Court has recently held that in personal actions for damages due to the negligence of shipowners, the state common-law courts must adopt the admiralty rule, which denies compensation for consequential damages. The question is whether this is in accordance with the intent of the Constitution and the former apparent attitude of the court, which has said that the "legislation of a State, not directed against commerce or any of its regulations, but relating to rights, duties, and liabilities of citizens, and only indirectly and remotely affecting 20 95 U. S. 714, 733 (1878). See also Blessing v. McLinden, 81 N. J. L. 379, 79 Atl. 347 (1911).

21 98 S. E. 580 (W. Va. 1919). See RECENT CASES, infra, p. 325.

1 Chelentis v. Luckenbach S. S. Co., 247 U. S. 372 (1918).

2 Laws of Oleron, Arts. VI-VII; Laws of Hanseatic Towns, Arts. XXXIX-XL; Laws of Wisby, Arts. XVIII-XVIV; Marine Ordinances of Louis XIV, Bk. III. Title IV, Art. XI. See also The City of Alexandria, 17 Fed. 390 (1883).