131 Iowa 128 | Iowa | 1905
Lead Opinion
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
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
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.
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, re
'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
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 Constitu
The judgment is therefore reversed, and the case remanded for further proceedings not inconsistent with this opinion. — ■ Reversed.
Dissenting Opinion
(dissenting).— I am unable to yield my assent to the general conclusions reached by the majority of the court, as found expressed in the opinion written by the Chief Justice. Without foreword, I go directly to a consideration of the questions involved, and to a statement of the reasons which impel me to declare for an affirmance of the judgment appealed from. Whoever runs may read that to the legislative power of the state is intrusted the exclusive right to formulate and proclaim the written law of the state. And it is to be said that this right is subject to but one limitation, and that is that no legislative act may be put forth which shall operate to contravene any of the expressed provisions of the written Constitution of the state, or have the effect to interfere with or take away any
In turning to the Constitution, we find it written that “ We the people ” declare that “ all men are by nature free and equal, and have certain inalienable rights, among which are those of enjoying and defending life and liberty,” etc. Such is the primal declaration of the instrument, and not only was it selected to lead all the other provisions thereof, but it was intended to give character to each and every of such provisions. Stated otherwise, the Declaration served not only to make announcement of the flaming sentiment which dominated the hour in which it was put forth, but it heralded the adoption of that sentiment as the corner stone of our constitutional form of government. Impressed with this thought, it is not possible for me to say, as it must be said in order that the legislative act now before us may be sustained, that within the contemplation of those delegated citizens who framed the instrument, and of the people who ratified it at the polls, such primal declaration should be subject to future interpretation as no denial of legislative right to make distinguishment between the citizens of the state in respect of their rights as citizens. And I have studied the instrument with some degree of assiduity, and I find therein no expressed word, nor does there arise therefrom any suggested thought, upon, which reliance may be placed for such interpretation. On the other hand, and- in direct line with the primal declaration, there is to be found the provision upon which the demurrer in this suit was predicated, that “ the General Assembly shall not grant to'any citizen, or class of citizens, privileges or immunities which upon the same terms shall not equally be
Of course, I do not wish to be understood as in any sense making denial of the doctrine that, for the purposes of efficient and beneficial legislation, the lawmaking power may, where necessary, divide the subjects upon which such legislation is intended to operate into classes. Nor do I deny but that in many cases, where the peculiar relations or circumstances suggest the necessity or propriety thereof, the General Assembly may so legislate, either specially or generally, that a privilege shall result to individuals or to a class of individuals. Indeed, the very language of the Constitution contemplates that in proper cases such may be done. But it remains to be said that this power is confined in its operation to matters solely nonpolitical; for instance, such matters as are incident to social or industrial life, or which have relation in some form to the exercise of property rights. In no case has it ever been rightfully extended, nor can it ever be while the Constitution lasts, to those things the subject-matter whereof is by nature political, or which inhere in the essential fact of citizenship. And it is to be remembered that the power thus conceded to exist can only be exercised upon some apparent reason suggested by necessity. “ All the authorities agree that the distinction in dividing may.not be arbitrary, and must be based on differences which are apparent and reasonable.” State v. Garbroski, supra. “ Privileges may be granted to particular individuals Avlien by so doing the rights of others are not interfered with; but every one has the right to demand that he be governed by general mleá, and a special statute, which singles his case out to be regulated by different laws from those
It will be observed, upon reading, that the opinion of the majority is made to turn upon the proposition that inci-‘ dent to citizenship there is no inherent right to hold office, either by election or appointment; and the conclusion is that, there being no right, and hence no privilege, there can be no invasion of the constitutional guaranty by providing in such matters through the medium of legislative fiat that one class of citizens may properly be subordinated to another class of citizens. As applied to this case the argument is wholly misplaced, and this I will proceed to demonstrate. To begin with, I deny that the case presents any question .as of the right to hold office or to be given employment. I‘ grant, freely and fully, that as applied to a particular citizen there is no inherent right to hold a particular office, or to have a particular employment. Accordingly it cannot be said that one is denied a constitutional privilege if, under the particular circumstances of his case, he is not permitted to enter upon the duties and to enjoy the emoluments of such office or employment. This is because — and I quote with approval the language of the Chief Justice —“ a pub-
The field of the question with which we have to deal lies back of all that. 'It is whether citizens generally — granting the matter of competency — shall have the right to present themselves upon equal footing one with another for any office or employment arising under the Constitution. It is to the existence of such constitutional right that I commit myself, and in defense of which I declare for the utter futility of any effort on the part of the Legislature to take it away. In the relation between the state and the citizen this right stands as the counterpart of that right which the former has to call to its aid and service every citizen, and this without reference to rank or. any matter based upon past consideration, but having in view present conditions and needs alone. Moreover, if legislative power to grant privileges in character as proposed by the instant act were to be admitted, then it must follow of necessity that the sufficiency of the consideration necessary, to support such a privilege is determinable alone from the expression of the legislative will; and this must be true because, in such view, the ’Constitution is silent upon the subject. Accordingly we might be compelled to approve an act, if presented, providing that no black man should be considered for appointment while there remained white men willing to serve the state. We would be compelled to remain silent in the face of an act' providing that a preference should be given in all cases to graduates of the State University, or to citizens bom within the state," or to those who own property up to a certain fixed value, or to those who belong to some fraternal or
Again, it is said in the course of the argument of the majority opinion that “ 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 right.” As already stated, I deny that the question at issue is in any wise related to the right to hold office; but, if it were, there is no force in the argument as thus made. Indeed, this is irrefutably shown by what immediately follows in the opinion: “ It [the right-of suffrage] owes its existence to the constitution of civil government, and not to the personality of the individual.” And again: “ It is a right which is conferred, withheld, or limited at the pleasure of the people, acting in their sovereign capacity.” It will be observed that here an appeal is made to the power of the sovereign people. I do not find it necessary, even if I had the disposition, to question the power of the people, speaking directly upon matters of government, to either grant or withhold privileges; and I am willing to concede that by vote of the people the right to grant or withhold privileges may be delegated to the Legislature. But we are not dealing with the powers of the sovereign people. It is not a question whether there was power in the people to put into thé instrument, to stand as fundamental law of the state, a provision that only male citizens
That my position has abundant support in the authorities will be made plain by consulting the cases that I shall cite. I have already referred to the case of Clark v. Board. Let me add that it is quite evident to my mind that it did not occur to counsel who presented that case, or to the learned judge who wrote the opinion that, inasmuch as there was no absolute right on the part of children, black or white, to receive an education at the hands of the. state, a result directly the opposite from that reached was dictated by the record. State v. Garbroski, supra, was one arising upon section 1347 of the Code, which provides, in substance, that peddlers shall pay a county tax; but “ nothing in this section shall he held to’apply . . . to persons who have served in the Union army or navy,” etc. It was sought by the defendant to take his case out of the operation of the constitutional provision by making claim that the circumstances warranted the classification and privilege or immunity. The court refused to adopt such view, and it was said: “ The classification here attempted rests solely on a past and completed transaction, having no relation to the particular legislation enacted. All citizens are divided [by the act] into two classes — those who served in the army and navy thirty-five years ago, and all those who did not. True, as sug
Eeference is made in the majority opinion to the case of Brown v. Russell, 166 Mass. 14 (43 N. E. 1005). I do not agree with the Chief Justice as to the effect of the holding in that case. The question there presented was as follows : “ Can the Legislature constitutionally provide that
The case of Evansville v. State, 118 Ind. 426 (21 N. E. 267, 4 L. R. A. 93), on principle, is in point. The legislative act there under consideration provided that eligibility for appointment to the board of commissioners on fire and police should be based on five years’ residence in the city. Accordingly there were two classes, those who had been residents five years and those who had not; and as to
Of another class, but involving the same principle, is the case of Fiske v. People, 188 Ill. 206 (58 N. E. 985, 52 L. R. A. 291). In that case the court considered an ordinance of the city of Chicago which undertook to provide for a preference in favor of union labor, in connection with all work to be done under contracts with the city, and it was held that under the Constitution of that state — similar in its provisions to ours — the ordinance was void. See, also, Adams v. Brenan, 177 Ill. 194 (52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222), and Holden v. Alton, 179 Ill 318 (53 N. E. 556); Noel v. People, 187 Ill. 587 (58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238). In the case of Van Harlingen v. Doyle, 134 Cal. 53 (66 Pac. 44, 54 L. R. A. 771), the court considered an act of the Legislature forbidding boards • of supervisors from publishing-official matter in a newspaper which had not been established in the county one year. There, too, the constitutional provision was the same as ours, and the act was held to be void. The court said: “ The act confers particular privileges upon certain publishers, and imposes peculiar disabilities and burdensome conditions on other publishers, all of whom stand in the same relation to the law. It is not within the power of the Legislature to evade the operation of the constitutional provisions by creating an arbitrary and unnatural distinction between persons thus related to the law.” I cannot undertake to carry further my discussion of the cases. The following, among others that might be cited, will be found to lend support, in principle at least, to my position: Johnson v. Goodyear, 127 Cal. 4 (59 Pac. 304, 47 L. R. A. 338, 78 Am. St. Rep. 17); Blake v. McClung. 172 U. S. 239 (19 Sup. Ct. 165, 43 L. Ed. 432); State v. Ins. Com'rs, 37 Fla. 564 (20 South. 772, 33 L. R. A. 288); Maynard v. Association, 92 Fed. 435 (34 C. C. A. 438); In re Keymer, 89 Hun, 292 (35 N. Y. Supp. 161);
I desire now to take brief note of the cases cited in the majority opinion, and consider how far my position is opposed by them. If I have read them aright, no one of them is authority for the conclusion in support of which they are cited. State v. Miller, 66 Minn. 90 (68 N. W. 732), may serve for a precedent, but it is not an authority. The opinion occupies but a few lines, and consists of a bare statement to the effect that a law giving preference to ex-soldiers in matters of public office or employment is not violative of the Constitution. There is no reasoning, nor is there citation of authority. The court contents itself by merely saying that “ the county attorney states that he was directed by the county board to take the appeal, . . . but he suggests no reason why the act is unconstitutional. On the contrary, he admits that similar statutes have been held valid in other states. No provision of the Constitu-' tion- occurs to us with which the act conflicts.” The case relied upon as the leading one is In re Wortman, 2 N. Y. Supp. 324. Without stopping to discuss the weight 'that should be accorded the decision of an intermediate court, my reading persuades me that the case is not an authority on the question here involved. The laws of New York provided for a preference to veterans in the matter of appointments under the civil service laws of the state. Wortman, a veteran, brought his action — a proceeding for mandamus — to compel his appointment to the office of street inspector in the city of Buffalo. The application was defended against upon several grounds, but the only one having any pertinency here was that the law providing for preference was in conflict with section 1 • of the fourteenth amendment to the federal Constitution. That section prohibits the state from making or enforcing “ any law which shall
In addition to what I have said, I desire to add that I am fully persuaded that the instant act is unconstitutional upon the further ground that the classification attempted is discriminative, as well as arbitrary and unreasonable. I have already taken so much time that I can justify no more than a mere statement of the point, and, indeed, it would seem that that ought to be sufficient. The
I am authorized to say that Mr. Justice Weaver concurs in the conclusions for which I contend.