Shaw v. The City Council of Marshalltown

Decision Date21 November 1905
Citation104 N.W. 1121,131 Iowa 128
PartiesC. H. SHAW, Appellant, v. THE CITY COUNCIL OF MARSHALLTOWN, Marshall County, Iowa ET AL
CourtIowa Supreme Court

Rehearing denied Friday, June 29, 1906.

Appeal from Marshall District Court.--HON. OBED CASWELL, Judge.

THIS is an action of mandamus brought to obtain an order commanding the city council of the city of Marshalltown to employ the plaintiff as city clerk of said city. It is bottomed on chapter 9 of the Laws of the Thirtieth General Assembly which reads as follows:

Section 1. Preference in Appointments and Promotions. That in every public department and upon all public works in the state of Iowa and of the counties, cities and towns thereof, honorably discharged soldiers, sailors and marines from the army and navy of the United States in the late Civil War, who are citizens and residents of this state, shall be entitled to preference in appointment, employment and promotion, over other persons of equal qualifications, and the person thus preferred shall not be disqualified from holding any position hereinbefore mentioned on account of his age or by reason of any physical disability, provided such age or disability does not render him incompetent to perform properly the duties of the position applied for, and when such soldier, sailor or marine shall apply for appointment or employment under this act, the officer, board or person whose duty it is or may be to appoint or employ some person to fill such position or place shall, before appointing or employing anyone to fill such position or place, make an investigation as to the qualifications of said soldier, sailor or marine for such place or position, and if he is a man of good moral character and can perform the duties of said position so applied for by him, as hereinbefore provided, said officer, board or person shall appoint said soldier, sailor or marine to such position, place or employment. A refusal to allow the preference provided for in this and the next succeeding section to any honorably discharged soldier, sailor or marine, or a reduction of his compensation intended to bring about his resignation or discharge, entitles such honorably discharged soldier, sailor or marine to a right of action therefor in any court of competent jurisdiction for damages and also a remedy for mandamus for righting the wrong.

Sec. 2. Removals. Any person whose rights may be in any way prejudiced contrary to any of the provisions of this section shall be entitled to a writ of mandamus to remedy the wrong. No person holding a position by appointment or employment in the state of Iowa or in the several counties, cities or towns thereof, who is an honorably discharged soldier, sailor or marine having served as such in the Union army or navy during the late Civil War, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employe or appointee to a review by writ of certiorari. The burden of proving incompetency or misconduct shall rest upon the party alleging the same. Nothing in this act shall be construed to apply to the position of private secretary or deputy of any official or department, or to any person holding a strictly confidential relation to the appointing officer.

The plaintiff is an honorably discharged soldier from the army of the United States in the late Civil War and a citizen and resident of the state. He alleged in his petition that he had made an application for the position of city clerk of said city and that the city council, "without consideration of said application and in total disregard of said law and without investigation," refused to appoint him to the position and appointed as such city clerk one L. Derby, who was not a soldier of the late Civil War. The defendant demurred to the petition on the ground that the act is unconstitutional, being in violation of section 6 of article 1 of the Constitution of the state, which provides 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 belong to all citizens," and in violation of section 1 of article 14 of the amendments to the Constitution of the United States, which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," and, further, because the statute contravenes section 1 of article 1 of the Constitution of the state, which declares 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, acquiring, possessing and protecting property and pursuing and obtaining safety and happiness," and fourth, because the writ of mandamus could only issue "to compel the defendant's council to act, but not to control its discretion in action." The demurrer was sustained generally, and, the plaintiff electing to stand on his petition, there was a judgment dismissing the suit. The plaintiff appeals.

Reversed.

Theo. F. Bradford, Chas A. Clark, and Warren Walker, for appellant.

C. H. Van Law, for appellees.

SHERWIN, C. J. BISHOP, J., Mr. Justice Weaver, (dissenting).

OPINION

SHERWIN, C. J.

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 immunities here 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 S.Ct. 165, 43 L.Ed. 432); Slaughter House Cases, 16 Wall. 36 (21 L.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 S.Ct. 1082, 38 L.Ed. 929); Dent v. West Virginia, 129 U.S. 114 (9 S.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 S.Ct. 435, 42 L.Ed. 865); Van Valkenburg v. Brown, 43 Cal. 43 (13 Am. Rep. 136.)

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 of citizens privileges or immunities which upon the same terms shall 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 '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, 6 F. Cas. 546, Fed. Cas. No. 3,230, the question was considered by Mr. Justice Washington, who said in part: "whet 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...

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