Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1905-11-23
Numerically Opposed Reason
ing In the Opinions Deciding
Soldiers Preference Law
SOME COMPARISONS MADE
Both ths Majority and Minority opin-
ions Regarded as the Most Care.
* fully Written Recently Handed Down
Exhaustive Discussion Of the Sub
jeet by Court.
to rlmes-Republlcan.

Des Moines, Nov 23.-The dissent
ing opinion Of Judge Bishop Of the SUI
preme court in the case from Marshall
county OF C. III. Shaw against the city
council Of Marshalltown is one Of the
most carefully written and exhaustive
opinions that has been handed down
from the supreme bench. The fact
that it is the minority opinion of the
court does not detract from its inn
portance for undoubtedly in all future
litigation over such a subject the
opinions OF Judges Sherwi,l and Bish-
OPP, the opinions Of the majority and
minority of the court presenting both
sides Of the question most exhaustive-
ly, will be referred to and will be
determining factor in future litigation
In Iowa or other states along that
line. The opinions are so lengthy
that thus far no newspaper has given
an adequate presentation Of the reas-
ons on which they are based.
f Judge Sherwin In writing the opin-
ion of the majority Of the court, states
that the fright to hold an office can
be no more natural or personal right
nor more sacred, than the right Of
suffrage, and 1t is the general holding
Of the courts that the right Of suffrage
is not a natural and personal right
but a political right" Around that
sentence in his opinion all his claims
are clustered. He holds that the same
right that exists with an employer to
hire whomsoever he wishes rests with
the sovereign people ITO hire whomso-
ever they will IN public Offices. He
holds that IL citizen desires only
colored men in his restaurant he was
right to employ them and no court
would sustain as constitutional law
compelling a citizen to give employ
ment to everyone alike or to abridse
the employment, to one class of per-
sons. For the same reasons he holds
that the state has right through the
legislature to give preference to the
old soldiers or to any other class of
people in any or all public offices. He
holds that holding offices is not a
privilege or immunity to which all are
entitled. He cites cases in other
states and goes exhaustively into the
matter but the gist of his reasons and
contentious are here given.
Judge Bishop for the opposite side.
preference In public office is unconst.-
tutional and takes direct issue with
Judge Sherwin partly but in the main
argues that Judge Sherwin starts from
the wrong premises. Judge Bishop does
not deny but that the people acting In
their sovereign capacity have an TN
Questioned right to give old soldiers
or any other class of people preference
in public office, but claims. that they
have never delegated to the legisla-
ture that right. This briefly stated is
the fundamental ground on which
Judge Bishop stands. After reading
the opinion Of Judge Sherwin large
majority of the people will be convinc-
ed that the old soldiers law is un-
questionably constitutional. After
reading the opinion Of Judge Bishop
as large a majority will be sure that
they don't know whether it is or not.
I. Judge Bishop takes the claim of
Judge Sherwin that every citizen has
a right to employ whomsoever he
wishes and turns it around and says
that the legislature has no authority
to compel citizen to employ one class
to the exclusion Of other classes. He
claims that the right of every citizen
to equal opportunity to hold office is
counterpart Of the right of the state
to call upon all citizens for aid and
service. He claims that if, the state
| a. RI on Md
soldier it has right to debar black
man or give preference to graduates
Of the state university. Judge Shervvin
speaking of the right to hold office
says: "It owes its existence to the
constitution Of the civil government
and not to the personality of the in
dividual' and at is a right which Is
conferred. withheld or limited at the
pleasure Of the people acting in their
sovereign capacity" Though denying
that the question Is one Of the right to
hold office, Judge Bishop contends at
1ust. this point that the people have not
acted in their sovereign capacity In
enacting the soldiers preference law
Surprising the word male" to be
eliminated from the constitution, he
asks: Gould anyone be found to de-
clare for the validity of an act Of the
legislature providing that only males
should exercise the right Of franchise"
or that those only who had served IN
the army or navy should vote. He
holds that the country Is indebted to
| the old soldiers who fought so gal
lantly but holds that the legislature
has no right to coin this gratitude into
favors. Other reasons he advances
against the constitutienality of the law
are that there are other old soldiers
to whom the country is also indebted
such as the soldiers OF the Mexican
war and the war with Spain. He holds
! that the old soldiers are not class by
themselves, but that the legislature is
seeking to make class of them, but
without right or authority so to do.
The case will be tried again In the
Marshall county district court on its
merits, the matter of the constitution
atty having now been fixed.
There Will be warm fight in the
state during the next campaign over
/ the office OF railroad commissioner
The present rate agitation is partly
responsible for the situation. The
/ people are looking closely just now t.
the men who have the dealing with
the railroads and tho the state board