Shaw v. City Council ( 1905 )

Sherwin, C. J.—

1. constitusoidiers^preference statute. But little need be said concerning the national Constitution. The fourteenth amendment declares that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. The privileges and immiinj^[eg pere protected are those of citizens of the United .States, as distinguished from the citizens of a state, and the fourteenth amendment deals only with the rights of citizens of the United States as such. Blake v. McClung, 172 U. S. 239 (19 Sup. Ct. 165, 43 L. Ed. 432); Slaughter House Cases, 16 Wall. 36 (21 1. Ed. 394). In Minor v. Happersett, 21 Wall. 162 (22 L. Ed. 627), it was held that the amendment did not add to the privileges and immunities of a citizen, but simply furnished an additional guaranty for the protection of such as he already had, and it was said: “ Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the Constitution and laws of the states; but it operates for this purpose, if at all, through the states and the state laws, and not directly upon the citizen.” The case was one which involved the right of women to vote in the state of Missouri, and it was held that, while they might be citizens, the Constitution of the United States had not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. See, also, Bradwell v. State, 16 Wall. 130 (21 L. Ed. 442); In re Lockwood, 154 U. S. 116 (14 Sup. Ct. 1082, 38 L. Ed. 929); Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. 231, 32 L. Ed. 623); Newton v. Board, 100 U. S. 548 (25 L. Ed. 710); Wilson v. State of North Carolina, 169 U. S. 586 (18 Sup. Ct. 435, 42 L. Ed. 865); Van Valkenburg v. Brown, 43 Cal. 43 (13 Am. Rep. 136.)

2. Same: special privileges. Does the statute in question contravene the provisions of section 6, article 1, of the state Constitution, which says that the General Assembly shall not grant to any citizen or class citizens privileges or immunities which upon -¿he game tej-mg ghall not equally belong to all ? Whether it does or not clearly depends upon the answer that shall be made to the further question whether the right of appointment to a minor municipal office is a privilege within the meaning of the Constitution. That the right to hold office, as one of the privileges protected by the Constitution, was not contemplated by its framers, is manifest from the Constitution itself. The right of suffrage is given to male citizens only (section 1, article 2), and there are provisions expressly limiting the right to hold certain offices to the male citizens of the state. The Constitution itself implies that women may become citizens of the state, and they undoubtedly are, and yet it will not be claimed that they 'are entitled to hold offices under this provision of the Constitution. See Minor v. Happersett, 21 Wall. 162 (22 L. Ed. 627); Huff v. Cook, 44 Iowa, 639; Opinion of Judges, Mass. Supreme Court, 115 Mass. 602. The precise meaning of the words “ privileges and immunities ” is not very definitely settled by the decisions. In speaking- of the words as used in the Constitution of the United States, Mr. Justice Curtis, in Conner v. Elliott, 18 How. 591 (15 L. Ed. 497), said: “We do not deem it needful to attempt to define .the meaning of the word 1 privileges ’ in this clause of the Constitution. It is safer and more in accordance with the duty of a judicial tribunal' to leave its meaning to be determined in each case upon a view of the particular rights asserted and denied therein.” In Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230, the question was considered by Mr. Justice Washington, who said in part: “What are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental, which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several states which compose this Union from the time of their becoming'free, independent, and sovereign.” This statement of the general meaning of the words has been often approved by the Supreme Court of the United States, and, while the language was used with reference to the Constitution of the United States, it is none the less applicable to the Constitution of this state, so far as a definition of the word “ privileges ” is concerned.

Limiting our discussion to the precise question under consideration, is the right to hold office one of the fundamental privileges which belong of right to all the citizens of the states, to be classed as a natural right and standing equally with the rights of life, liberty, and property ? The right to hold office can be no more a natural and a personal right, nor more sacred, than the right of suffrage, and it is the general holding of the courts that the right of suffrage is not a natural and personal right, but a political and civil right. It owes its existence to .the constitution of civil government and not to the personality of the individual; nor does the right necessarily follow and become an attribute of citizenship, as we have already pointed out. It is a right which is conferred, withheld, or limited at the pleasure of the people, acting in their sovereign capacity. Once granted, it may be taken away by the same power that granted it, and it is therefore not a natural right, which is held to be inalienable like the rights of conscience. Hale v. Everett, 53 N. H. 9 (16 Am. Rep. 82); Barker v. People, 3 Cow. (N. Y.) 686 (15 Am. Dec. 322); People v. Barber, 48 Hun, 198; Anderson v. Baker, 23 Md. 531; Minor v. Happersett, supra; Blanck v. Pausch, 113 Ill. 64; Morris v. Powell, 125 Ind. 315 (25 N. E. 231, 9 L. R. A. 326); Gougar v. Timberlake, 148 Ind. 41 (46 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 487); Mechem on Public Officers; Bryan v. Cattell, 15 Iowa, 538; People v. Loeffler, 175 Ill., 585 (51 N. E. 785); Van Valkenburg v. Brown, 43 Cal. 43 (13 Am. Rep. 136). A public office has in it no element of property, but it is rather a personal public trust, created for the benefit of the state, and not for the benefit of the individual citizens thereof. Nor are the prospective emoluments of a public office property in any sense, for the salary or other perquisites may be reduced or otherwise regulated by law at all times, unless such change is forbidden by the Constitution. Bryan v. Cattell, 15 Iowa, 553; Ex parte Lambert, 52 Ala. 79; Taylor v. Beckham, 178 U. S. 548 (20 Sup. Ct. 890, 44 L. Ed. 1187); Donahue v. County of Will, 100 Ill. 94.

The state has the same freedom of employment that belongs to the individual, and no one will contend that the individual may not employ any person whom he wishes to employ, or that he may not choose his employes from a certain class. If it were otherwise, liberty of contract would be destroyed, and legislation in that direction would be clearly unconstitutional. The right to pursue any lawful calling in a lawful way is undoubtedly a fundamental right; but there is a marked distinction between this right and the so-called right to be employed by a particular person or in a particular line of service. For the purpose of government, the counties, cities, and towns of the state are its agents and under its control; and what the state may constitutionally do with reference to public matters it may direct its agents to do, and by the act in question the state has simply said that it will employ in all public departments and upon all public works only those of a certain class of its citizens, other things being equal.

Nor do we believe that the act is class legislation, within the accepted meaning of the term. It imposes no special obligations or burdens on those who are excluded from its benefits, and, as we have seen, privileges may be granted to particular individuals without reserve when by so doing the rights'of others are not interfered with. It does not forbid the right to the acquisition or enjoyment of property, nor prevent the disposal of person or property, which may be conceded to be among the natural rights, and to be protected by the natural liberty of the individual. That equality of rights, privileges,’ and capacities should be the aim of the law no one will question. But we are not here called upon to deal with the question of inequality in privileges or immunities, for the right to hold a public office or to be employed by the state in any capacity is not a privilege within the meaning of the Constitution; and, if opr conclusion on this question is right, it follows that there can be no inequality or injustice in the statute under consideration, for the sufficient reason that no right protected by the Constitution has been invaded. And consequently our conclusion that the statute does not contravene either the Constitution of the United States or the Constitution of this state is not in conflict with the cases cited by the appellee on the question of’the equality of privileges and immunities, among which is the case of the State v. Garbroski, 111 Iowa, 496. It is fundamental that the Legislature has the power to legislate on all subjects, unless it is expressly or impliedly prohibited from so doing by the Constitution, and the act of the Legislature which is assailed must be plainly at variance with the Constitution before the court will so declare it. AH doubtful questions will be resolved in favor of the validity of the act. Stewart v. Board of Supervisors, 30 Iowa, 9; Huff v. Cook, 44 Iowa, 639. See, also, Jacobson v. Massachusetts, 197 U. S. 11 (25 Sup. Ct. 358, 49 L. Ed. 643).

That the principal question involved in this case is not entirely free from doubt may be conceded, but after a full examination of the principles involved and the reasoning of the cases supporting our conclusions, we are satisfied that the act is not unconstitutional. Furthermore, similar acts have been sustained in several of our sister states, and, while the constitutional question under consideration- has not been considered in many of the decisions, they nevertheless lend support to our conclusion in a general way. The leading case is In re Wortman, 2 N. Y. Supp. 324. This decision was followed by the New York courts until the state Constitution was amended in 1894, giving preference of employment to veterans. People v. Stratton, 80 N. Y. Supp. 269; People v. Tobey, 153 N. Y. 381 (47 N. E. 800); People ex rel. Fallon v. Wright, 150 N. Y. 444 (44 N. E. 1036); People v. Lathrop, 142 N. Y. 113 (36 N. E. 805); Lewis v. Board, 51 N. J. Law, 240 (17 Atl. 112); Ingram v. Board, 63 N. J. Law, 542 (43 Atl. 445); MacDonald v. Newark, 5 N. J. Law, 267 (26 Atl. 82); State v. Miller, 66 Minn. 90 (68 N. W. 732); Goodrich v. Mitchell, 68 Kan. 765 (75 Pac. 1034, 64 L. R. A. 945, 104 Am. St. Rep. 429); Opinion of Justices, 166 Mass. 589 (44 N. E. 625, 34 L. R. A. 58); Opinion of Justices, 145 Mass. 587 (13 N. E. 15). The Constitution of Kansas differs from our own with respect to granting privileges. The Kansas Bill of Eights contains the provision “ that no special priviliges or immunities shall ever be granted by the Legislature which may not be altered, revoked, or repealed by the same body, and this power shall be exercised by no other tribunal or agency.” And it is probably true that the Goodrich case is. not an authority on the constitutional question that we have before us.

'The appellee relies on Brown v. Russell, 166 Mass. 14 (43 N. E. 1005), and on State v. Whitcom, 122 Wis. 110 (99 N. W. 472), as authorities against the constitutionality of the law, but neither is so in fact. In Brown v. Bussell the precise question determined was whether the Legislature could “ constitutionally provide that certain offices and employments which it has created shall be filed by veterans in preferment to all other persons, whether the veterans are or are not found or thought to be actually qualified to perform the duties of the office and employments by some impartial and competent officer or board charged with some public duty in making the appointments.” And it was held that such legislation was unconstitutional because the appointing power could not be compelled to appoint to public offices persons of a certain class, in preference to all others, regardless of their qualifications. In State v. Whitcom, supra, the question here presented was not involved and was not decided.

Our conclusion is not without support in principle in our own cases, however. By chapter 7, page 6, of the Laws of the Extra Session of 1861, it was provided that in all actions then pending in any of the courts of this state it should he sufficient cause for a continuance on motion of the defendant if it was shown that he was absent from home in the military service of the United States. This act was assailed as unconstitutional in McCormick v. Rusch, 15 Iowa, 127, but it was upheld in an opinion written by Mr. Justice Wright, wherein it was said: “ In the first place, it may be doubted whether it is a law of a general nature within the meaning of the Constitution. This conceded, however, why is not its operation uniform? It gives the same rule to all persons placed in the same circumstances. It does not prescribe one rule for one citizen or soldier, and another for his neighbor, if they are in the same situation. . . . So all persons in the actual military service of the United States, or of this state, can claim the benefit of the statute, and any one can have the same benefit if in the service. Those that are not, are not entitled to the same advantage (so to speak), because, in the discretion and wisdom of the Legislature it was deemed inexpedient. And yet this advantage may be, and is, extended to all upon the same terms. See Dalby v. Wolf and Palmer, 14 Iowa, 228, and cases there cited.”

Again, in 1862,. an act was passed exempting the property of Iowa-volunteers in the military service of the United States from levy and sale, and this act was sustained in Hannahs v. Felt, 15 Iowa, 141. And a later act in the same year permitted citizens of the state in the military service to cast their votes outside of the state of Iowa. This act was also assailed as unconstitutional,- but its validity was sustained by this court in an opinion that was also written by Mr. Justice Wright, in which it was said: “ But let us suppose there is doubt as to the correctness of the above construction, then what is our duty in the premises ? The law has been passed by the Legislature, a co-ordinate branch of the government, acting under like solemn obligations and responsibilities with ourselves, has been approved by the executive, who has taken a like oath to support the Constitution, and we are now called upon to declare it invalid. If it is so in our judgment — that is, if we conclude that the infraction is clear, palpable, and plain — then most unquestionably it is our duty to so declare. ... We cannot forget that among the fundamentals of the law is the proposition that we can declare an act void only when it violates the Constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation on our minds. . . . It is certainly true that we cannot, with conclusive satisfaction, place our finger upon the language of the Constitution which is clearly and palpably violated (Sears v. Cottrell, 5 Mich. 251), and, though we might not be satisfied of its constitutionality, it ia our duty to uphold the law.” The language last quoted is peculiarly applicable to the situation in this case. A Legislature containing many able lawyers, and an executive who is himself one of the ablest lawyers in the state, all acting under the solemn obligation to support the Constitution of the state, have passed upon the act, and we should not declare it unconstitutional unless we find it clearly 'and plainly so.

3. Mandamus: appointment to office. Finally, the allegations of the petition presented a case that left no matter to the discretion of the defendants. The case thus presented was admitted by the demurrer, and there is no question of discretion involved in . m . , „ . . the case, lhe act itself provides for a remedy . . • , by mandamus, and we think there is no-merit in the appellees’ suggestion that the writ will not lie. The demurrer to the petition should have been overruled.

The judgment is therefore reversed, and the case remanded for further proceedings not inconsistent with this opinion. — ■ Reversed.