*1 demands were made. Neither repeated has Mr.- Johnson manner in these responded any Such con- proceedings. duct is violation of the Canons of Professional Ethics 11) effect when the (CPE charged acts occurred. (See DR for 9-102(3) and (4) of the Code comparable provisions of Professional effective Responsibility, January 1972.) In view the extensive and nature of the personal notices in these Mr. Johnson’s given failure proceedings, complete can respond only be taken as refusal account “[Rjefusal him in money given to trust-. ... disburse or properly account funds entrusted to the care of an In attorney begets Hutchins, disbarment.” re P.2d In Wn.2d re (1965); Chantry, 67 190, 193, P.2d Carroll, Wn.2d re (1965); 633, 343 P.2d 1023 (1959). Wn.2d be, is is, It ordered that Jerald R. Johnson he hereby from disbarred of law in the state of practice Washing- from ton, and his name the roll of attor- hereby stricken entitled to law in this neys practice jurisdiction. July 27, En Banc. 1972.] 42051.

[No. City of et v. The Appellants, al., H. Herriott James et al., Respondents. Seattle *2 Iversen, Diamond & Lycette, Sylvester, Lyle L. by appéllants. Harris,

A. John P. Newbould, L. and James Taylor, M. for respondents. Eligibility to take service Seattle’s civil

Stafford, J. is limited to examinations citizens United States. This involves the appeal validity city’s provisions charter civil service rules which create such limitation. lawfully appellants reside in the

Both are aliens who applied naturalized United have to become States who King County, Washington. taxpayer is citizens. Each a city “provisionally” employed by Both as transit are operators competent Their 'are and each a worker. duties by by they performed as them as such that can be well security issue is involved. citizens. No continuously Ramsay Appellants have Herriott and been respectively. employed from 1966 and relatively during They initially employed period of were Changing employment. conditions, however, full economic seeking brought per- applicants forth number citizen operators. employment A as transit list manent civil service eligible persons civil service appointing positions in such made available to was authority appellants that, June were notified effective discharged employ- they “provisional 12, 1970, would be *3 ees”. required

Appellants requests civil ser- filed take the rejected by applications Their were vice examination. solely they city’s not because were service commission civil of the United States. citizens city enjoin brought

Appellants from this action provisions discharging of the charter and to have them and taking1 requirement making citizenship a rules, They appeal from examination, void. declared civil service complaint. dismissing judgment The tem was their a dismissing appellants porarily enjoined, however, from appeal. pending of this the outcome challenged provisions involved are the same as those The P.2d Wn.2d in Hsieh v. Civil Serv. (1971): eligibility only appellants’ to take the civil 1We are concerned upon attempt pass their civil make no service examination. We knowing appel way qualifications. whether the have no service We successfully pass being examination, lants, will it take the authorized to citizenship, requirements, to the than admission meet other or system. city’s civil service City provides § Charter 16, 6 the Seattle Article part: places applicants in the classified

All for offices subject examination, shall civil service be open competitive public, all citizens of shall be specified as to resi- limitations the United States with age, . . health, moral character . dence, habits and adopted pursuant to charter au- 4.01, Civil service rule thority, provides qualify that in order to for examination applicant the 7.07 be a citizen of the United Rule must States. provisional employment service allows noncivil persons regular register eligible there is no suitable when civil service personnel provi- available. Such pe- 60-day, sional is restricted to renewable availability regis- pending “adequate eligible riods, days ter,” regular and must cease after notice that within employee available, is an ex- civil service unless secretary granted by is of the civil service tension department. currently However, Hsieh before does resolve the issues not city’s application us. In that case held that the we challenged appellants provisions charter and rule to those immigration. In the conflicted with the federal scheme case, however, instant are to determine whether we unable such conflict exists. Immigration Nationality amended, Act of 1952as (hereinafter § seq. (1970)

8 U.S.C. 1101 et referred to 8), sections of United States Code Title the source policy upon the federal which we our decision in based (a) quota system. Hsieh. The act establishes a Section 1151 sets numerical limitations on the total number immi grants may lawfully appor However, admitted. “special immigrant”2 tionment therein is exclusive of *4 Definitions, (1970) “(a) 2 8 chapter— U.S.C. As § used in this “(27) ‘special" immigrant’ The term means— “(A) immigrant any independent an foreign who in was born coun- try Hemisphere of the spouse Western or in the Canal Zone and the any immigrant, following and accompanying, children of such if or join Provided, immigrant pursuant him: That no visa shall be issued receipt this clause until the consular officer is in of a determination relatives” of United citizens.

“immediate States Section of for the allocation in immigrant visas provides limitations sub categories percentage “preference” in There are seven (a). the section ject quota “pref categ eighth and an erence” categories4 “nonpreference” Thus, immigrants all admitted into the United States ory.5 immigrants”, fall of four groups: (1) “special into one subclassifications; (2) “immediate rela which includes five one cate tives”; in of seven (3) immigrants “preference” (4) immigrants. or gories; “nonpreference” of the regulating particular aspect The federal scheme by Secretary pursuant provisions to the made the Labor of section title; 1182(a) (14) of this lawfully residence, “(B) immigrant, admitted who an for temporary abroad; returning from a visit immigrant may, “(C) and an who was a citizen of the United States reacquisition apply 1435(a) title, or of this under section citizenship; years continuously (i) immigrant “(D) for at least an who two immediately preceding application of his for admission to time solely been, and who seeks to enter the States United States has United religious carrying purpose on the vocation of minister religious denomination, are needed such denomi- and whose services (ii) having organization States; and nation a bona fide United any immigrant, accompanying spouse or or the child of such if join following him; or immigrant honorably “(E) employee, retired is an or an who abroad, employee, who the United States and former Government years, more, performed and for a of fifteen has faithful service total accompanying spouse Provided, principal That his children: Foreign establishment, discretion, in his have of a Service shall officer immigrant granting special alien in status to such recommended the Secretary approves exceptional of State such circumstances grant finds is in national interest it recommendation such status.” (1970). referred to “The relatives’ 1151(b) ‘immediate 3 8U.S.C. § spouses, children, (a) this section mean subsection shall Provided, parents That in the case States: of a citizen United twenty-one years age. The parents, must at such citizen least specified are otherwise this who subsection immediate relatives such, immigrants qualified with be admitted as shall for admission chapter.” regard limitations in this out to the numerical (1970). 1153(a)(1)-(7) 8 U.S.C. §

4See (1970). 1153(a)(8) 5See 8 U.S.C. § *5 in Hsieh derives from section 1182 discussed

immigration of the Secretary .6 That section Labor to (14) requires (a) as a following the determination condition precedent inake of certain classes of immigrants: the admission to 1. are not in the That there sufficient workers United able, and willing, States who are available: qualified of for visa; a. the and application At time alien At to which the is destined to perform b. the place labor; such and

2. That the of such aliens not employment will adversely affect the and of in wages conditions the workers working United the States similarly employed. determination for

Such four classes of required only immigrants: (1) “special immigrants” in bom indepen- dent country Western or Canal Zone Hemisphere (one of five (2) subclasses mem- “special immigrants”); or professions bers in persons ability exceptional the sciences or arts seven (one of “preference” catego- ries); (3) qualified immigrants capable performing spec- ified skilled or unskilled in United labor needed the States (one seven categories); (4) and “preference” “nonpref- 1182(a) “Except provided (1970): 6 8 U.S.C. as otherwise in this § following ineligible chapter, shall classes of aliens be to receive visas and shall be excluded from admission into the United States: seeking “(14) purpose to Aliens enter United States for performing Secretary labor, skilled or unskilled unless the of Labor has Secretary Attorney determined and certified to the of State and to the (A) there are not General sufficient workers in the United States willing, able, qualified, application are who available at the time place for a visa and admission to the United States and at the to which perform labor, (B) alien to is destined such skilled or unskilled adversely wages of such aliens will not affect working similarly conditions workers United States em- ployed. paragraph apply The exclusion aliens under this shall immigrants special (a) (27) (A) (other defined in section of this title parents, spouses, than children United citizens or of States lawfully residence), aliens admitted to the States United immigrant preference 1153(a)(3) aliens described sections (a) (6) immigrant title, nonpreference of this and to aliens described 1153(a)(8) title;” in section this immigrants. immigrants erence” No other classes of need determination to have made such admitted. 1182(a) (14), Secretary of Labor

Pursuant section regulations implement promulgated has the federal delay processing request To an alien’s scheme. reduce *6 secretary required visa, a has made the determination the § published in three it schedules. 29 C.F.R. has 60. categories employment “A” lists Schedule which shortage there adversely a and in not is workers which aliens will wages working

affect the conditions of simi- larly employed § in the United 29 C.F.R. workers States. 60.2(a) (1); originally § pub- schedule, C.F.R. 60.6. This 1965 and amended in is in effect until lished in applies the entire a amended and United States unless regard specific geographic exempted spe- area is with to a 60.2(b). category. employment § cific 29 C.F.R. categories employment “B” lists for which Schedule required could not made at time determination (2); (a) § § publication. 29 C.F.R. 60.2 29 C.F.R. 60.6. its precertification list, a unlike “C” also but Schedule is categories employment in “C” “A”, the Schedule Schedule published at “C” is are continuous review. Schedule under 60.3(c). § quarterly. Modification in the 29 C.F.R. least request by directing a to the initiated schedules can be (c). § Secretary Labor. 29 C.F.R. 60.2 immigrants a in one of the four classes which If are required by Secretary is as of Labor determination they qualified prerequisite in and if are to be for admission category “A” in or in listed Schedule an requirement in appropriate “C”, section Schedule they possess 1182(a) (14) do not skills But if satisfied. categories “C”, “A” or an individual listed in Schedules § 60.3. their case. C.F.R. made in must be determination 488 P.2d v. Civil Serv. Wn.2d In Hsieh engineers, employ plaintiffs (1971), civil were secretary’s category “A”. We Schedule ment listed page 532: held, at immigration as exercised supremacy in the field

federal by Congress precludes establishing from for civil citizen- eligibility ship tion for as condition examina- service general public employment occupations designated Secretary as have been needed Labor. appellants opera case, however,

In the instant are transit employment category is not tors. That listed in Schedules “B”,7 “A” or and the record does reveal not whether it was appropriate listed in the Further, Schedule “C”. the record Secretary does not reveal that the indi Labor made an appellants’ vidual determination fact, case. In the record immigrant appellants does disclose the not class in which impossible Thus, fall. it is for us to decide whether section 1182(a) (14) applies to them. the absence of such infor citizenship mation we cannot determine whether the re quirement, applied appellants, to these conflicts Immigration Nationality federal scheme under the Act of 1952. *7 brings appellants’

This hiatus us to contention the that citizenship requirement charter and civil service equal protection rules the violates clause of the Fourteenth Amendment. questioned city’s excluding

It is not that the act of aliens from civil service is within the ambit of Four the supra. teenth Amendment. Hsieh Civil Comm’n, v. Serv. protection equal applies The clause aliens well resident Comm’n, as citizens. v. Fish & Game 334 Takahashi U.S. (1948); 410, 420, 92 1478, L. Ed. 68 Ct. 1138 S. Truax v. (1915) Raich, 33, 39, ; 239 U.S. 60 L. Ed. S. Ct. Hopkins, 356, 369, Yick Wo v. Ed. U.S. L. (1886). by Murphy’s As Justice concur S. Ct. 1064 stated ring Bridges opinion Wixon, v. 135, 161, in L. (1945): Ed. 65 S. Ct. brings obviously him no an alien constitu- Since Congress rights, may in- him in the exclude first

tional Railway category 7Schedule “B” includes and defines the “Street operators.” “bus No reason and Bus Conductors” does not include but given. the fine distinction is 29 C.F.R. 60.6. for § Williams, for reason it sees fit. Turner stance whatever Rights authority Bill of is a 194 U. 279. The futile seeking the time the alien admission for first to these lawfully alien But once an enters resides shores. rights country guaran- this teed Such he becomes invested with the people by the all our borders. Constitution to within rights protected by those and the include the First by process the due clause of the Fifth Amendments provisions ac- Amendment. None these Fourteenth knowledges any distinction citizens and resident between They privileges to all extend their inalienable aliens. against any “persons” guard encroachment on those rights authority. state federal or century, Supreme the turn of the United States Since the rights of aliens Court of the economic has been solicitous supra, Raich, In Truax v. court under the constitution.8 provided one that if an Arizona statute which invalidated employed employees, percent not than 80 five more less Basing equal its on the thereof must be citizens. decision page protection clause, court at 41: stated right argument requires that the to work It no in to show community living occupations common very oppor- personal freedom and is of the tunity essence purpose Amendment it was secure. exception could court, however,

The allowed an if the state respect particular “special a show interest” with business. exception “special public remained interest” sustaining citizenship re rationale in decisions

court’s began quirements its Taka until erosion supra, & culminated hashi Fish Game *8 Law, Konvitz, in 8See M. Alien and the Asiatic American The Supremacy Equal Clause Comment, Protection and (1946); 171-221 Restricting Legislation Aliens, 136 Limitations on State Utah Rev. L. Against Foreign Discrimination (1970); to Control National Power State Federalism, Study (1960); in 12 Rev. A L. 355 Goods and Persons: Stan. Right Work, Constitutionality on Aliens’ to 57 Restrictions Comment, Supreme Court: 1947-48 Term the (1957); Note, 1012 Colum. L. Rev. Right Work, (1949). The Alien’s 49 Colum. L. Rev. 257 57 Richardson, 365, 534, 403 29 L. Ed. 2d 91 S. U.S. Graham v. (1971). 1848 Ct. 175, 206, 239 60 L. Ed. 36 Ct. McCall, Heim v. U.S. S.

In (1915) York, 195, New 239 60 L. Ed. Crane v. U.S. 78 (1915) upheld court the constitution 218, Ct. 85 36 S. restricting employment, ality York of a New statute In Ohio ex citizens of the United works, to States. 1115, Deckebach, 392, v. 71 L. Ed. rel. Clarke U.S. (1927), the court held constitutional an ordinance S. Ct. 630 prohibited issuance, of Cincinnati which pool aliens, of to conduct rooms.9 licenses billiard companion upholding Heim cases. and Crane were In Judge writing statute, Cardozo, for the then Chief New Appeals, York Court of that: observed right, may privilege made Whatever is a rather than be dependent upon citizenship. (1915).

People Crane, 154, 164, 108 427, N.Y. N.E. affirming court, McKenna, the New York Mr. Justice writing Supreme for the Court in the com United States slightly panion adopted approach. Heim, different case “ ‘prescribe He reasoned that the state could the conditions upon permit public which it done on its will work ” municipalities.’ McCall, Heim behalf, or on of its behalf (1915). L. 175, 191, 206, 60 Ed. 36 Ct. reasoning Judge

The and Justice Chief Cardozo both opinion formed for this court’s Cor McKenna the basis (1923). 550, 213 P. There Seattle, nelius v. 123 Wash. franchises, for the we held that restriction Seattle’s equal swill, collection violative of the citizens was not protection clause. “special public protected 9The in Ohio ex rel. Clarke v. interest” (1927) Deckebach, was 274 U.S. 71 L. Ed. 47 S. Ct. power regulate occupations harmful, it considers the state vicious, Konvitz, See The Alien and the Asiatic antisocial. M. Suprem Equal (1946); Comment, American Law Protection and 175-81 acy Legislation Restricting Aliens, Utah L. Clause Limitations on State occupation type (1970). Clarke is considered in

Rev. opinion express appeal no about not the court in this we before , applied continuing validity “special public interest” doctrine as there.

Cornelius relied on Jahn Seattle, v. 403, 207 P. Wash. (1922), upheld city’s power require had private public projects pay contractors on works their employees paid by at a rate no less than that work of like character. The John decision had been based on reasoning Mr. Justice McKenna’s in Heim and Crane. In Hsieh v. Civil Serv. Comm’n, 79 529, Wn.2d 488 P.2d 515 (1971), acknowledge at 533-34,we that Cornelius’ reliance on inappropriate. Jahn was developments rights,

Further in the law of alien subse- quent inappropriate to Cornelius, have made reliance, our opinion, in that right-privilege on the distinction articu- by Judge lated Chief Cardozo.

In Takahashi v. Fish & Game 410, U.S. (1948), L. Ed. 1478, 68 S. Ct. 1138 the court voided a Cali- fishing fornia statute which denied commercial licenses to ineligible all aliens to become citizens. The statute’s effect against Japanese had been to aliens, discriminate since fed- immigration policy ineligible eral made them for citizen- ship. sought validity The state sustain the its classifi- alleged “special public owning cation under an in interest” conserving fishery rejected its resource. The court finding, page “spe- contention, state’s 421, at that whatever public by cial interest” California reason of had its owner- ship inadequate justify of the fish was the exclusion of “any or all aliens who are residents of the State lawful making living by fishing from off ocean its shores permitting while all others to so.” do Recognizing rejection “special public interest” Supreme Takahashi, doctrine in the California Court subse- quently prohibiting ruled that a statute projects, except emergencies, aliens works vio- equal protection lated clause as well the federal immigration policy. Purdy Fitzpatrick State, & 71 Cal. 2d Rptr. (1969). 566, 456 P.2d 79 Cal. The court found Purdy alienage that the fact bore no rational relation- ship suitability upon public proj- to the of those who work employment. ects the need the laborer such recently position rein- of the California court was Supreme Court in Graham forced the United States Richardson, 29 L. Ed. 2d 91 Ct. denying (1971). held ben- Graham that a state law welfare solely alienage efits on the basis was violative holding, expressly equal protection clause. so the court *10 thereby rejected public “special seri- the interest” doctrine ously undermining precedential Heim and the value both Crane. page

In Graham the court stated at 372: upheld It is this on occasion has state true that Court differently, and statutes that treat citizens noncitizens ground having the for distinction been that such laws necessary protect special were interests of or the State its citizens. discussing

Nevertheless, after Heim Crane, and the court say, page on went at 374: Takahashi v. Fish & Game 334 U.

(1948), continuing validity however, cast on doubt the special public-interest of the in all doctrine contexts. special heavily public . . . interest doctrine was “[wjhatever grounded privilege, on the notion is a that right, may dependent upon rather than a be made citi- zenship.” People Crane, Y., E., N. at 108 N. at rejected concept 430. But this Court has now turn that rights governmental upon constitutional whether “right” “privilege.” benefit is characterized as a aas policy Supreme The clear of the United Court to States apply guarantees pro- Fourteenth Amendment rights particularly aliens, tection the economic rejection “special public doctrine,” court’s interest holding supra. Seattle, undermine our in Cornelius v. We, expressly portion therefore, overrule of Cornelius that citizenship requirement, applied which holds that as equal protection therein, did not violate of our clause state and federal constitutions. doing, adopt approach

In so we the more modem of the '60 State, & supra at Purdy Fitzpatrick

California court 581. That case much common sense: observed with citizens in the

May the state favor its own -simply First, since aliens support disbursement of funds? public dollars, any the State of California their tax prefer- ence in the excludes disbursement of funds which aliens . classifica- appears any unfair . . manifestly tion all and all United undeserving which treats aliens citizens as deserving very States ble basis. The citizen rests upon questiona- to the state

may be a newcomer has the alien community; may who little “stake” be a resident has lived in for a lengthy who California forces, firmed demon- period, paid taxes, served in our strated his being, worth as a constructive human contributed much to the growth development state.

(Footnotes have time omitted.) We since long passed history when resident aliens Boston were met with here signs which read: wanted—Irish need not apply “Help for work!” *11 of the our state laws under Equal protection -

federal situ similarly constitutions that requires persons re ated to the of the law legitimate purpose with respect in the generally, Development treatment. See ceive like Protection, 1065, 1076 (1969). Law—Equal 82 Harv. L. Rev. classify Without retain discretion to states broad question so a reasonable basis. as their classifications have long 2d McGowan v. 420, 425-27, 6 L. Ed. Maryland, 366 U.S. Doud, v. 457, 465, 354 (1961); Morey 393, 81 Ct. 1101 U.S. S. bear, 1 1344 how 1485, (1957). L. Ed. 2d 77 S. Ct. They of their classification ever, establishing the burden of a legitimate means necessary accomphshing constitutes v. 11, 18 L. Ed. Loving Virginia, 1, 388 U.S. state interest. Florida, 379 McLaughlin v. 1817 1010, (1967); 2d 87 Ct. S. Fur 222, (1964). 85 Ct. 283 184, 196, 13 L. Ed. 2d S. U.S. inherently suspect on is ther, alienage a classification based v. Richard Graham scrutiny. to close subject judicial 534, 91 Ct. 1848 son, 403 U.S. 365, 372, 29 L. Ed. 2d (1971); 535, 529, Hsieh v. Civil Serv. 79 Wn.2d (1971). P.2d create two rule

The charter and civil service Seattle except indistinguishable applicants classes of civil service they To respect citizens. are United States with whether a rea to be classification must be shown sustain this there citizenship requirement relationship sonable between the applicant’s qualification the civil service and an to take general employment position for a of examination city. showing such

The has not sustained its burden relationship purpose of service is The civil reasonable here. system public to establish merit discipline appointment, and dis selection, matter Department employees. Gogerty charge Inst., v. civil (1967); ex rel. Voris 1, 4-5, 426 P.2d 476 State Wn.2d (1913). It Seattle, 133 P. A.L.R. 198 Wash. arbitrary employment thought is that elimination county, procedures spoils system state, enables governments municipal more efficient services to render Foley, public. 364, 371, Ariz. Civil Serv. Comm’n v. way (1953). citizenship requirement in no 257 P.2d 384 general legitimate area of em to these ends relates ployment.

Citizenship persons en accorded the status those governing. participate Citizens are titled to in the act political community “who, in their associated of a members capacity, themselves to the have established submitted gen promotion government for the their of a dominion protection their individual well eral welfare and rights.” Cruikshank, United States as their collective (1875). (2 Otto) See also Minor 542, 549, 23 L. Ed. *12 (21 Wall.) Happersett, 162, 165-66,22 L. 627 Ed. 88 U.S. v. (1874). distinguishes the citizen

The critical attribute which political rights: possesses the citizen from alien is that society enjoys, is one who a citizen in democratic 62

among pate privileges right partici his immunities, and. legal norms—public in the formulation of the private—to responsible. he is In the American granted membership scheme, an alien is not full sovereign people Equal but, under the Clause, Protection body. granted membership is enjoy only limited in that He does not political rights may country full reside government, at the of sufferance the national but his private rights tion protected are from ac unreasonable state during residence.[10] political rights right These include the to hold vote,11 juror. They elective office and to serve as a from differ private rights by or civil held aliens in common with citi right zens, such as the not to from be excluded solely ground on the and, to hold if property,13 alienage,12 qualified, to receive assistance.14 In addition to the distinction on based the exercise political rights, distinguished citizens are from aliens allegiance they country. duty allegiance owe this by obliga owed the citizen is an absolute and duty allegiance tion whereas the alien, owed country, while domiciled in this is local and temporary.15 Privileges Citizenship 10Stout, and Immunities National Suffrage States, (1952). 48, in the 14 U. Pitt. Rev. 69 L. badge citizenship only recently has, however, 11Thefranchise as a recognition. During century come into full the nineteenth the laws and granted 22 constitutions at least states and territories aliens or right Konvitz, declarant aliens the to vote. M. The Alien and the (1946). Asiatic in American Law 1 Valentine, (D.P.R. Supp. 957, See also United States 288 F. 980 Privileges 1968). Citizenship Stout, But see Immunities National Suffrage States, (1952). and the 14 Pitt. 48 U. L. Rev. 1478, 410, Fish 12Takahashi v. & Game 92 L. U.S. Ed. Raich, 33, 131, (1948); 68 S. Ct. 1138 Truax v. L. Ed. 239 U.S. (1915). Ct. 7 Oyama California, (amendment 2, 42); 332 U.S. 13Const. art. § 633, (1948). L. Ed. S. Ct. 269 Richardson, 14Graham v. Ed. 2d 91 S. Ct. L. (1971). 15Although allegiance may quality temporary, an alien’s materially allegiance required from that of him does not differ States, required of Eisler v. United native-born or naturalized citizens.

63 (16 Wall.) 21 154, L. Carlisle v. United States, U.S. (1872). Ed. 426 fidelity allegiance, political rights

Exercise distinguish from the the citizen characteristics that relationship qualification to to take a no rational alien, bear general public position civil a service examination for public employment16 to the which does not rise status security. requirement office or no which involves position general operator position is The transit office that rises to the status of neither security. requirement Application of the nor involves appellants, citizenship requirement therefore, vio- to these pro- constitutionally guaranteed right equal lates their tection of the laws. city permit appellants to take the civil service

The must position operator. transit Whether examination for the appellants depend on will their attain civil service status performance compliance and their with the examination requirements, citizenship, for to the other than admission city’s civil service. judgment for and the cause remanded reversed opinion.

disposition consistent this with C.J., Rosellini, Hunter, Neill, and Wright, Hamilton, JJ., concur. concurrence)—I (special signed J. the ma- have

Neill, jority opinion, point appellants but out that are resident applied citizenship. aliens who have for United States We (D.C. may 1948). 170 F.2d Cir. An alien be drafted serve in (50 App. (1970)) the armed forces take U.S.C. where he must § “support oath defend Constitution of the United States.” See e.g., (1970) (oath enlistees); (1966) 10 U.S.C. for all U.S.C. 3331 § § (oath officers; may officers, for aliens serve as reserve 10 U.S.C. § 591(b) (1) (1970)). App. allowing (1970), But see 50 U.S.C. alien § Regular doctors and dentists to become commissioned officers Forces, they may providing (unspeci- Armed but take a different fied) prescribed Secretary oath Defense. n.2, Civil 16See Hsieh v. Serv. 79 Wn.2d 488 P.2d (1971). expressing right opinion public employ- are no as to the apply ment of a resident alien who does not elect to citizenship. right Neither does this case involve the of a preferences service establish its classified seeking persons eligibility on lists who have attained are citizenship. proper American These issues await a case. Hamilton, C.J., JJ., Wright, Hunter concur Neill, J. *14 (dissenting)—The or a J. court holds that the state

Hale, citizenship constitutionally prescribe American cannot deciding, permanent court for the civil service. In so country for aliens, seems unaware that admitted to this permanent may under no residence, in due time but are compulsion Thus, become citizens United States. country permanent residence, an alien admitted to this country possibly harboring contempt for this a hatred and retaining loyalty and undivided and its institutions and country origin nation, his or to another devotion to right—which acquires never he somehow a constitutional civil in the Seattle had before—to service. opinion one of familiar Seattle

The court’s reminds young, highly-trained, during Ger- mid-’30s when scene standing technologists salute in seen at the Nazi were man played gardens musicians rathskellers as the beer they song. Curiously, denied would have been Horst Wessel municipal civil service appointment then to the state citizenship under identical consti- American for want granted says provisions must be court which the tutional them now. right Amend under the Fourteenth has a

That an alien in a equal protection denied work clause not to be ment’s alienage operated on the sole basis privately restaurant 131, Ct. 7 (Truax L. Ed. 36 S. 33, 60 Raich, 239 U.S. v. fishing license if (1915)); a state act under to obtain (Takahashi Game citizenship v. Fish & ineligible

65 410, Ed. Comm’n, 1478, U.S. L. Ct. 1138 (1948)); private employers publicly- on to work (Purdy Fitzpatrick construction contracts & v. financed Rptr. (1969)); 645, State, 566, 71 Cal. 2d P.2d Cal. equally share with citizens the United States public part provided assistance benefits in substantial by (Graham Richardson, states 29 L. (1971)), Ed. 2d 91 S. no Ct. means more than rights stop participa- that he has far short of active government. tion in always thought legal

There was exist in final circles a line of in the distinction alien and constitution between change American citizen. Without the so much as a solitary state constitution, word that line has now virtually been erased this state. It for this remained coup grace preservation court to deliver the de of that citizens—per- fundamental distinction between aliens and professional employment public manent service (Hsieh Civil Serv. 79 Wn.2d 488 P.2d (1971)), privilege calling practicing and the law—a al- ways the courts one held with the affected *15 Li, 561, In re Chi-Dooh interest. 79 Wn.2d 488 259 P.2d (1971). striking requirement down the American citizen

ship government, for who for those would work and the ignores completely principle the court a basic constitu “Equal protection require identity tional that does law not Louis, 231, 237, treatment.” Walters v. St. 347 L. U.S. 98 (1954). very 660, Ed. 505 The 74 S. Ct. act classification degree Equal protection involves some discrimination. only requires feigned that rest on and classification real not differences; have some and that distinction relevance purpose for the classification is v. made. Walters supra. prohibition equal protection Louis, St. The goes no than invidious Mark clause further discrimination. Advertising State, 405, ham Co. 73 Wn.2d P.2d (1968). long As classifications are reasonable, as the legislation

apply equally class, all those within protection equal the Fourteenth Amend within (1907); Ames, 47 Ter 328, State v. Wash. P. 137 ment. Thompson, 197, 255, 68 L. 44 Ct. 15 Ed. S. race Dwyer, (1960), (1923); 425, Clark v. 353 P.2d Wn.2d denied, 5 L. 2d 81 Ct. 379 cert. 364 U.S. Ed. (1961); Hemphill v. State Tax 65 Wn.2d (1965). P.2d recognize the differences alien between

Our constitutions obligations privileges and citizen, in their in their both they recognize, country; too, that these differences to this feigned; no 'and it is invidious discrim- are real and not that jobs public for service Ameri- ination reserve Conversely, it does constitute an invidious dis- can citizens. against citizens, I rule that think, American crimination provi- they despite charter, or must, statute constitutional public compete employment in the service with sion, for simply throughout world, aliens have who aliens from entry residence no more than obtain done immigration quota. on an here rights present not concern an alien’s basic case does by jury, witnesses, from com- counsel and freedom

to trial pulsory in criminal cases and other freedoms incrimination Rights guaranteed the Bill of and the Four- him under recognized generally in all civilized Amendment teenth this to the individual. Nor does case countries inalienable right living employ- private to earn a concern alien’s public trea- nor to assistance from the ment; draw personal, judicial interpretation vindicating sury. these But rights no rational basis whatever de- affords individual right claring they vote, office, run for include operation governmental engage civil within the service. rights enough of these latter for the assertion Time allegiance, privileges alien taken oath of when the has *16 loyalties, a and become citizen. What his former renounced lump together here under the done is to the court has rights privileges all of and Amendment the Fourteenth separately, guaranteed that there ex- and aliens so citizens precluding genuine ists no constitutional whatever basis joining anyone practice service, or the civil from the law holding serving juror, voting, public office, a or or or or pe- signing promoting recall initiative, referendum and and titions. actively right operate to

If a aliens have constitutional equal pro- practice under law service partici- tection the Fourteenth Amendment or clause of pate government, applicant to the an alien it follows that acquired Commission has bar or the Civil Service Seattle assuming obliga- virtually all of benefits without respects, citizenship. puts In the court now tions of some superior position citizen, the alien in to that of the for it a any imposing awards him all the benefits without earning chooses, alien, he after burdens. Whenever may depart country retirement, civil service this to resume country allegiance life in the has which he retained his taking loyalty, and with him all of his ten- benefits retaining ure here and in all of meanwhile the benefits citizenship there. prescribing citizenship American as a condition for the political and service, civil its state subdivi- no sions have more than exercise their done constitutional legislate classify power recognize, and on the basis of that most vital distinction citizen and alien: the between obligation allegiance country loyalty to this and the allegiance loyalty renunciation of all toward others. people generally particular of this state and Seattle in in its simply right charter have asserted a basic self-government country: vouchsafed all citizens of this right government keep of local the control and direction government of business in the hands of American citizens.

Accordingly, since the line of demarcation under law between precise citizen and alien clear, and definitive represents upon most elemental classification a ra- tional distinction between alien citizen, wherein does it contravene the Fourteenth Amendment? To declare as the *17 provision restricting has that the charter the

court done to American citizens the civil service violates only not the Fourteenth Amend- constitution misconstrues my opinion, in it. The ment, but rewrites Fourteenth the same distinction between citizen Amendment makes the charter does: and noncitizen that Seattle persons States, All bom or naturalized in the United and jurisdiction subject thereof, the are citizens of the they of the state wherein No United and reside. States any abridge which shall state shall make or law enforce privileges the the or immunities citizens United any any deprive person life, States; nor shall state liberty, property, process law; due nor without jurisdiction equal deny any person pro- its within the of the tection laws. Const,

(Italics mine.) amend. 14. lay rest case, the court seems unable to the instant gnawing says entirely apparent It that driv- some doubts. security, ing does not involve a transit in Seattle bus thereby implying if citizen- that, charter limited Seattle affecting security, positions ship the Fourteenth to those such a distinction. But Amendment would countenance distinguish on alien and citizen the basis secu- between rity, posits unsoundness of the court’s think, I basic holding opinion that, is under the case. If the court in this city accept aliens Amendment, need not Fourteenth security, positions it can be said to involve which into positions necessarily implies do with those that it must so requires even rewrit- This more extensive do not. comprehen- ing Amendment, and more of the Fourteenth security explain just legislation judicial and sive define equal protection why the alien to award denial of it jobs One not others. some and status for civil service occupy policemen readily do firemen and assume that can involving security; civil, public positions too, electri- so, do security, engineers sanitary hydraulic involve and cal, city’s they being electrical control, are, of the in direct high- sanitary generation, supply, and installations water bridges. ways, electricians And about what dikes, dams and inspectors, plumbers plumbing and and electrical inspectors, performing those all of the services other preserve rendered to its citizens intended to safety? inspec- peace, health And what food honesty weights tion services? And and measures goods daily throughout city? millions of dollars sold Under Fourteenth is the distin- Amendment, court to guish along principles constitutional between Woodland policeman Park zoo, the civil service custodians *18 doing respective jobs people both their for of Seattle Woodland Park?

Is it held to that Fourteenth Amendment means may city appointment park police- that the restrict the citizens, men to do but cannot so to the employees gardens who maintain the and the and zoo, that, city although the need not under the charter hire aliens for compelled the first, it is the Fourteenth Amendment to hire them for the latter? The ad reductio of this absurdum striking power court’s chain of decisions down to state’s public callings directly restrict certain affected public interest to American citizens be seen cir- will when require public cumstances it to make classifications ser- employment upon security, excluding vice the basis of some admitting security and others. If be the touchstone con- stitutionality, its then, decisions, under fine of the court interpreting escape itself in its decisions will not the need distinguish—or prefer I discriminate. would the clear- readily cut, definable distinctions that has drawn in vague its charter and the nebulous, between citizen alien to undoubtedly incomprehensible line demarcation the surely court in the must draw future.

Assuming, public security, is, however, that health safety, major decision, not the reason for is court’s long leap it is still a carries which the court from those statutory abridgment cases sustain of an alien’s rights (Cockrill 258, land v. California, hold 268 69 U.S. (1925); L. 944, Ed. 45 Ct. 490 Webb v. 263 O’Brien, S. U.S. Webb, (1923); 44 313, 318, 68 L. Ed. 112 S. Ct. v. Porterfield 70 (1923); 225, 278,

263 U.S. 68 L. Ed. 44 21 Terrace v. S. Ct. Thompson, (1923)); 255, 197, 263 U.S. 68 L. Ed. 44 15 S. Ct. agricultural (Frick corporations Webb, toor stock in v. own (1923)); impair 326, 263 L. 323, U.S. Ed. S. Ct. sharing by restricting his in the hunt state’s resources ing privileges (Patsone v. citizens United States Pennsylvania, 138, 539, Ed. Ct. U.S. L. S. (1914)); prohibit harvesting oysters planting him from (McCready Virginia, 94 U.S. state’s tidal waters (1876)); ineligible L. and render him Ed. (Heim employment public McCall, 239 U.S. works (1915); Kansas, 191 60 Ed. 36 Ct. 78 Atkin v. L. S. present (1903)), 148,24 Ct. 124 207, 48 L. Ed. holding municipality—and state, therefore— that a sovereign powers make constitutional cannot its within qualification citizenship a American principle jump It across that basic the civil service. is government can make reasonable law that constitutional according legislate exclude them. To classifications employ occupations private common aliens from the thing, quite it an one but is assistance ment people say nor the have that neither other to state *19 gov operation keeping their of special active in interest publicly-owned performed on or about business, ernmental contrivances, publicly-owned and property tools with treasury, wholly public in the exclusive paid for from United States.. of the citizens hands of purpose, ought court not over- laudable the However may general opinion it in law, its become that, should look periods operate long to the detriment of aliens. run surplus, recession, a labor inflation, economic compensation unemployment consequent overloads country, mention invasion of-this public assistance—not danger if the state and that, ais imminent—there or actual the Fourteenth governments must, under municipal jobs provide aliens on the same basis Amendment amendatory proc- questionable but citizens, drastic as to its kind, may long in the run a that initiated bewill esses- may prove repressive to itself aliens—or that civil service drastically be curtailed. gone court.

No court an as does this has such extreme Rights See Fourteenth Protection Alien Under the (No. 3) has Amendment, Duke 583. None so cava- L.J. lierly ignored principle law the cardinal of constitutional Maryland, Ed. stated in 6 L. McGowan v. 366 U.S. (1961): 2d 81 S. Ct. Although precise developed, the no formula been has has, permits

'Court held that the Fourteenth Amendment enacting scope the States a in laws wide discretion groups differently 'affect oth some of citizens than safeguard only ers. The if the constitutional is offended grounds wholly classification on rests irrevelant objective. legislatures achievement of the State’s State presumed are to have acted their within constitutional power despite practice, that, the fact their laws result inequality. statutory in some A will not be discrimination any may reasonably if set aside state of facts con justify ceived it. See Kotch v. Board River Port Metropolitan Casualty Comm’rs, Pilot 552; Ins. Lindsley Brownell, Co. v. 294 U. 580; S. v. National Car bonic Gas Co., 61; 220 U. Atchison, T. & S.F. R. Co. 96.q Matthews, 174U. S. sight The court loses a fact that transit driver enjoys higher hving, greater Seattle a standard of economic security family, for himself and his better medical 'and care opportunities, politi- educational and the enormous boon thousands, literally engineers, freedom, cal do than scien- lawyers technologists, tists, Asian, American, South European African and most countries. To thousands capacity aliens, the Seattle civil service in whatever must extremely appointment seem desirable and one assidu- ously sought. says to be civil, The court if a now engineer, English electrical mechanical fluent in gets higher grade resident, here employed examination, civil service he must be to the ex- who, a citizen education, clusion of because of lesser will *20 grade. appointment must, And the have a lower under this alien decision, who, here, made once elects never a citizen on the until public payroll but remains become native land full circle and he to his departs time comes and his security pension, his benefits Seattle with social taxes, live his free of American out at last burden in contentment and comfort. days never I think the Fourteenth Amendment was intended erase the distinction between alien and citizen to so nearly great so accordingly corresponding dispar- nor to work of American agement citizenship. therefore, affirm. would,

I J. Hale, Ott, J. Pro Tern., concurs July 27, En Banc. 42153. [No. 1972.] Roy Deceased. Estate the Matter C. Thornton, Lucy Petitioner, v. Theo Thornton, H. Antoine, Executrix, Respondent.