Ex parte Stratton

Berkshire, President.'

Tbis is a petition of William Stratton for a mandamus to tbe judge of tbe 8th circuit to compel bim to allow tbe said Stratton to qualify as clerk of tbe circuit court of Logan county, (to which office be claims to have been duly elected by tbe voters of said county,) without taking tbe oatb prescribed by tbe act of the 16th of *306 November, 1863, known as tbe “test oath.” The said Strat-ton claims that this act, in so far as it requires this oath of loyalty, is unconstitutional and void, and that he has a right to qualify and discharge the duties of the office without taking it.

The very delicate and important question, therefore, is presented, whether or not the legislature transcended its legitimate powers in passing the act under consideration, in so far as it requires this test oath from the officers of the State. Unlike the general government, the legislatures of the several States possess all the legislative powers of state, except so far as they are withheld or restricted by the fundamental law of each, whereas the Congress of the United States can exercise no powers except such as are expressly granted by the constitution of the United States, and such incidental and implied powers as are proper and necessary to carry into effect the powers so expressly granted. In other words, in order to ascertain what powers belong to Congress, we must look to the constitution of the United States to see what are granted, while on the other hand we look to the constitutions of the States to ascertain not what powers are given, but what are withheld, and what restrictions and limitations are imposed by their provisions.

Our legislature possessing all the legislative power of the State, it follows that it was competent for it to pass the act prescribing the test oath in question, unless such power is excluded by the terms of the constitution, requiring the officers of the State to take an oath to support the constitution of the United States and of this State, or by clear and necessary implication.

Now in the absence of this supposed restriction, the power of the legislature to pass the. act in question, I presume, would not be seriously questioned, and it would seem equally clear, that this provision was not intended to impose upon the legislature any other restriction than a prohibition to pass any law dispensing with these oaths and allowing a person elected or appointed to be inducted into office without taking them, but does not, as I think, prohibit it from *307 passing an act requiring a party elected or appointed to an office to take, for instance, an oatb of office or any others deemed proper and necessary. The provision does not in terms impose any such restrictions, and it does not, as it seems to me, result by clear and inevitable implication, and when it is remembered that we are not at liberty to declare an act unconstitutional in a doubtful case, I think we should not be warranted in so holding in the present case upon merely remote and obscure implication.

The provision, in my judgment, is not retrospective nor ex post fado. No one having a natural or inalienable right to an office, it follows that all who seek it must accept the office with all the restriction^, and conditions imposed by law. For the reasons, thus briifly and imperfectly expressed, I am of opinion to deny the writ of peremptory mandamus.

The other judges concurred with the President.

Writ dehied.