Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1905-11-22

holds have no bearing on the Iowa
case, as that law provided that GER
tain offices should be created for the
benefit Of the veterans.
He cites the decision Of Chief JUS
tice Wright in the case Of Mccormick
VS.. Rusch (15 Iowa, 1910 as having
direct bearing on the present law. The
statute passed by the Iowa legislature
in the extra session Of 1861. providing
certain benefits and contlnuances in
legal actions then pending, in which
any of the parties affected were vol
unteers, was held valid.
in 1862, another act was passed by
the legislature exempting volunteers
property from sale or levy. This was
also sustained in the case OF Hanna VS..
Felt az Iowa, 141) Justice Wright
also wrote the opinion in this case. In
concluding his opinion, he said:
ut Isl certainly true that we cannot.
with conclusive satisfaction, place our
fingers upon the language Of the con-
stitution which is clearly and palpably
violated and though we might not be
satisfied of its constitutionality, 1t Is
our duty to uphold the law"
It Is, in reference to this last deci-
sion that Justice Sherwin pays tribute
to the abilities Of the governor and the
lawyers of the general assembly which
passed the Iowa soldiers preference
law. He says that this case is pecu-
liarly applicable to the present liti-
cation.
In concluding his decision, Chief
Justice Sherwin says /:
Finally, the allegations of the Pc
tition presented case that left no
matter to the discretion Of the defen-
dants. The case thus presented was
admitted by the demurrer and there is
no question of discretion involved In
the case The act itself provides a
remedy by nandarnus and we think
there is no merit in the appellee's sug-
gestlon that the writ will not lie. The
demurrer to the petition should have
been overruled The judgment is
therefore reversed and the case re-
manded for further proceedings not In
consistent with this opinion"
Judge Bishop Dissents.
Justice Bishop, who wrote the dis
senting opinion in which Justice Wea-
yer concurred, oftimes grows ironical
in his criticism of the opinion OF the
majority of the court. He says that he
bases his reasoning for affirming the
decision of the lower court, which
holds the law unconstitutional, upon
the preamble to the constitution. which
provides that call men are free and
equal, etc."
What 1 have to contend and stated
in sentence, Is this" says Justice
Bishop, that in virtue of the provi-
sions Of the constitution, adopted long
before the war Of the rebellion, there
is conferred upon and guaranteed to
every citizen the right, political in its
nature, to compete on equal terms with
every other citizen for any office or
employment created for the benefit Of
the state. AS a necessary corrollary,
I declare for the fmpotency of every
legislative act whereby 1t is sought
to abridge or work inequality In such
right, and, in so declaring, / do no
more than to announce my belief in,
ard adherence to the doctrine to
which this court stands committed:
(ssee Chief Justice Coles opinion In
Clark VS.. Board, etc, "a Iowa. 266,
which is upon the attendance of col
ored children in special schools; also
SStA.'
Ill Iowa, 1867"
In concluding his opinion, Judge
Bishop says. concerning the law as in
terpreted in this case:
Accordingly we might be compelled
to support an act If presented. pro-
viding that no black men should be
considered for appointments while
there remained white men willing to
serve the state. We would be COM
s.oelled to remain silent in the face of
an act providing that a preference
should be given In all cases to gradu-
ates of the state university, or to cit
liens born within the state. or to those
owning property up to certain fixed
value or to those who belong to GER
tain fraternal organization or relig-
ious sect
".rhe act gives preference only to
the soldiers OF the war Of the rebel
lion. 1t is we'll known that we have
in our midst a remnant off the SOL
diers who engaged in the war with
Mexico and we have an army of men
who followed the flag in the more re-
cent war with Spain. Now, if service
in the army or navy could be made
ground Of distinction such as to justify
legislation granting a privilege of the
character here intended, upon what
possible theory can there be constftu-
tional warrant for drawing line be
tween the men who fought at Vicks-
burg under Grant and those who fol-
lowed Roosevelt UP San Juan Hill?"