Goodrich v. Mitchell
| Decision Date | 06 March 1904 |
| Docket Number | 13,751 |
| Citation | 75 P. 1034,68 Kan. 765 |
| Parties | H. K. GOODRICH v. PORTER MITCHELL |
| Court | Kansas Supreme Court |
Decided January, 1904.
Original proceeding, in quo warranto. Opinion filed March 12 1904. Judgment in favor of plaintiff.
SYLLABUS BY THE COURT.
CONSTITUTIONAL LAW -- "Veterans' Preference Law" Valid. Section 1, chapter 186, Laws of 1901 (Gen. Stat. 1901, § 6509), which provides that those who have served in the army and navy of the United States in the war of the rebellion, and have been honorably discharged therefrom, shall be preferred for appointment to office in every public department, and upon all public works of the state, and of the cities and towns thereof, is constitutional.
David Overmyer, and Thomas Dever, for plaintiff in error.
M. T. Campbell, for defendant in error.
OPINION
H. K. Goodrich and Porter Mitchell are each claiming the office of superintendent of the electric-light plant of Topeka. The term of this office is two years, and there is a provision that all officers of the city shall hold their offices until their successors are elected and qualified. Goodrich was duly chosen as superintendent and continued to act in that capacity until April, 1903, which was the end of the term, as fixed by ordinance. He then applied to the mayor and council of the city for appointment to the next regular term, and Mitchell made a like application. These were the only applicants for the place, and it is agreed that both are men of good reputations, are equally competent to perform the duties of the office, and equally eligible for appointment, unless Goodrich has a right to be preferred because of services and honorable discharge from the army of the war of the rebellion. Goodrich was a soldier in that war and received an honorable discharge, while Mitchell never served in the army or navy at any time. With a knowledge of these facts, the mayor and council appointed Mitchell to this office, but the refusal to appoint Goodrich was not because he was lacking in qualifications, fitness, or eligibility, nor because Mitchell possessed any superior qualifications for the office. After Mitchell was appointed and had qualified, he demanded the possession of the office, and, when Goodrich declined to surrender it, Mitchell took forcible possession and ousted Goodrich therefrom.
It is conceded that the result of this proceeding and the right to the office in this contest depend upon the constitutionality of an act spoken of as the "veterans' preference law." It provides :
"That section 1 of chapter 160 of the Laws of 1886 be and is hereby amended so as to read as follows: In grateful recognition of the service, sacrifices and sufferings of persons who served in the army and navy of the United States in the war of the rebellion and have been honorably discharged therefrom, they shall be preferred for appointment and employed to positions in every public department and upon all public works of the state of Kansas, and of the cities and towns of this state, over other persons of equal qualifications, and the person thus preferred shall not be disqualified from holding any position in said service on account of his age or by reason of any physical disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for; and when any such ex-soldier or sailor shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, before appointing any one to such position, make an investigation as to the qualifications of said ex-soldier or sailor for such employment, and if he is a man of good reputation, and can perform the duties of said position so applied for by him, said officer, board or person shall appoint said ex-soldier or sailor to such position, place, or employment." (Laws 1901, ch. 186, § 1; Gen. Stat. 1901, § 6509.)
Other provisions are that a like preference shall be given if it becomes necessary to reduce the force in any of the departments, cities or towns of the state, and penalties are also declared against those who wilfully refuse or neglect to obey the provisions of the act.
The fundamental infirmity in the act is not specifically pointed out. It is said to be unequal and arbitrary in its operations; that the preference given to veterans necessarily restricts the privileges of others, and that it is given as reward for past services, without regard to the public service or the general welfare of the people. It is not contended that the act conflicts with any express provision of the state or federal constitutions, but, rather, that it is contrary to the implications and spirit of our constitution.
The general doctrine is that, in the absence of constitutional limitations, the legislature may prescribe how and by whom offices shall be filled. There is no contract right or property interest in an office, and hence some of the constitutional principles invoked have no application. An office is a public agency, and an officer is a mere agent of the public, entitled to exercise the functions and perform the duties of the office for the public benefit and not for his own. The main consideration in the selection of officers and agents is the public welfare, and the state, like any other principal, may select its agents; may determine for itself who can best accomplish its purpose and whose appointment will best subserve the public good. When the constitution prescribes a method or imposes a limitation, the legislature is to that extent guided and controlled in choosing its officers; but no provision has been called to our attention which prohibits the giving of a preference to veterans of the civil war. Constitutional limitations are prescribed with respect to eligibility and the holding of office, and among them is the provision that a member of congress, or officer of the state or of the United States, cannot hold the office of governor. (Art. 1, § 10.) Neither is a United States officer eligible to a seat in the legislature. (Art. 2, § 5.) Justices of the supreme court and judges of the district court cannot hold any other office during the terms for which they are elected. (Art. 3, § 13.) Persons who are under guardianship, have been convicted of a felony, have defrauded the government, have given or received a bribe or offered to do so, have voluntarily borne arms against the government, with some exceptions, cannot hold office. Any one who gives or accepts a challenge to fight a duel, or who carries a challenge to another, or who goes out of the state to fight a duel, is ineligible for office, and every one who has given or offered a bribe to secure his own election is disqualified from holding office during the term for which he has been elected. (Art. 5, §§ 2, 5, and 6.) In the main, these are the provisions affecting the holding of office, and aside from these restrictions the whole matter is committed to the legislature by section 1 of article 15, wherein it is provided that "All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law."
It is conceded that the matter of holding office is a political privilege, but it is argued that it becomes a special privilege when a class of citizens are given a preference over all others. Our constitution differs materially from those of many of the states with respect to the granting of privileges. The only provision we have touching the subject is found in section 2 of the bill of rights, which is:
In most of the states the granting of special privileges or immunities is expressly prohibited; but, as will be observed ours seemingly contemplates that such privileges may be granted, as it provides that none shall be granted that may not be altered, revoked, or repealed. The legislature may, then, exercise its judgment and discretion in the selection of officers, unhampered by restrictions, unless some are to be implied from those expressed or from the theory of our government. As an office is a public trust, to be held and exercised for the public benefit,...
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