cise some of the powers of government. We are of opinion that §§ 2 and 6 of St. 1895, c. 501, so far as they purport absolutely to give to veterans particular and exclusive privileges distinct from those of the community in obtaining public office, cannot be upheld as enactments within the constitutional power of the General Court.

The result is, that the commissioners were not authorized by St. 1895, c. 501, §§ 2 and 6, without an examination, to place the name of Edward D. Bean at the head of the list to be certified for appointment upon the detective force of the district police of the Commonwealth in preference to all other applicants not veterans or women; and that they should be commanded to strike his name from the list.

Mandamus to issue accordingly

MATTER OF WORTMAN.

New York Supreme Court. Erie Special Term; July, 1888. 22 Abbott's New Cases 137.

Motion for a mandamus to compel the common council of the city of Buffalo to give its consent to the appointment of the petitioner to the position of street inspector.

DANIELS, J. The applicant shows by his petitioner that the street commissioner of the city of Buffalo was empowered by the common council of the city to select thirteen health and street inspectors of the city of Buffalo; that under the civil service rules adopted and in force in the city of Buffalo, the relator was certified to the street commissioner for one of such appointments. And his selection for that office was reported by the commissioner to the common council of the city.

By section 50 of title 2 of the existing charter of the city, the street commissioner was empowered by and with the advice and consent of the common council, to appoint the applicant with a sufficient number of others to supply the offices as street and health inspectors of the city. The common council, however in the action which they took upon the selections by the street commissioner on the 7th day of May, 1888, declined to consent to the appointment of the applicant, and it "is to

oblige the common council to give such consent that this application for the writ of mandamus has been made. And it proceeds upon the statement that the applicant is an honorably discharged Union soldier of the war of the rebellion, having suffered no physical impairment incapacitating him from the full performance of his duty as such street and health inspector, and having the business capacity necessary to discharge the duties of the position, and was so certified by said civil service commission to said street commissioner."

It is further stated in the petition "that subsequent to such appointment and on or about the 7th of May, 1888, the said Henry Quinn, street commissioner, communicated and transmitted to the common council of the city of Buffalo his appointment of your petitioner as health and street inspector."

The application in behalf of the petitioner has been made under the authority of chapter 464 of the Laws of 1887, which has provided that "in every public department and upon all public works of the State of New York and of the cities, towns, and villages thereof, and also in non-competitive examinations under the civil service laws, rules or regulations of the same, whereby they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment. Age, loss of limb, or other physical impairment, which does not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved."

It has been further objected by the counsel for the city that the laws are in conflict with section 1, of amendment 14, of the Constitution of the United States, prohibiting the State from making or enforcing "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 law."

The only part of this section which by any possibility could be relied upon by way or argument to defeat the application, is that contained in the last branch of the sentence. But neither of these statutes has denied to any person within the jurisdiction of the State the equal protection of its laws. No citizen is deprived of any right or privilege constitutionally secured to him by reason of those laws. A preference only for official em

ployment has been given to honorably discharged soldiers and sailors as a reward for meritorious service performed by them during the war by which the Union was sustained and the rebellion suppressed.

So far as the laws extend, there seems to be no constitutional objection against their validity, and no officer or appointing power as these words have been employed by the statutes of 1886has authority to deny this preference to the class of persons who are brought within the provisions of these statutes. And where the proceeding may be such as arbitrarily to deny the privilege secured by these statutes a mandamus would be the appropriate remedy to enforce the performance of the duty (People v. Leonard, 74 N. Y. 443). And authority for its allowance has been secured by sections 2068 and 2070 of the Code of Civil Procedure.

But a radical defect appears in the petition preventing the success of the applicant's motion, for it has nowhere been stated that the fact that he was an honorably discharged Union soldier of the war of the rebellion had been brought to the attention of the common council before it took its action upon the selections or appointments of the street commissioner of the street inspectors. It has been stated in the petition that this fact has been brought to the knowledge of the commissioner himself and it rightly, on that account, influenced his action. But the petition does not show that knowledge of this fact was communicated to the common council. All that is stated upon this subject is that the commissioner communicated and transmitted to that body his appointment of the petitioner as health and street inspector. This was very far from apprising that body of the fact that he had been selected and appointed, or was entitled to be, under the laws securing to him this preference as a discharged Union soldier.

Without notice of that fact the common council was authorized and empowered to proceed with the consideration of the case precisely the same as though the fact itself did not exist, and to reject his selection and appointment under the authority of the charter, rendering it dependent upon the advice and consent of the common council. On this account the application of the petitioner must fail, and the motion for the writ of mandamus will be denied.

3. Political Qualifications.

ATTORNEY GENERAL V. THE BOARD OF COUNCILMEN.

Supreme Court of Michigan. October, 1885.
58 Mich. 213.

CAMPBELL, J. The Attorney General applies for a mandamus to compel the respondents to take action upon certain nominations made by the mayor of Detroit of four persons, two being Republicans and two being Democrats, to act as a "Board of Commissioners of Registration and Election" for the city of Detroit. Respondents refused to consider the nominations because they regarded the statute which provides for such board as unconstitutional and invalid. To an order to show cause they interpose that ground of defense. No other question is of much importance in the case.

The new statute undertakes to provide a Board of Commissioners to appoint ward registers and inspectors who are to perform the duties formerly imposed on the boards made up of aldermen and their appointees and of persons elected by the voters. The board thus provided for is required to be composed of four members holding office for four years, the first board being appointed for one, two, three and four years respectively, so that one vacancy shall be filled each year. They are all to be resident electors of the city, and "two members thereof to be from each of the two leading political parties in the said city.'

It is most important principle under our constitutional system, that no one shall be affected in any of his legal and political rights by reason of his opinions on political subjects or other matters of individual conscience. The political right to freedom of belief and expression is asserted in the most distinct way, and applies to every privilege which the constitution confers. No one has ever supposed that any new condition could be added to those which the Constitution has imposed on the right of suffrage, beyond such as are necessary to guard against double voting, or to prevent its exercise by those who are not legal voters. The only legitimate object of registration laws is to secure a correct list of actually qualified voters. Any

attempt to inquire into the sentiment of voters is not only an abuse, but one which it is the chief purpose of the ballot system to prevent. The ballot is a constitutional method which cannot be changed, and its perpetuation means the security to vote without any inquisition into the voter's opinion of men or measures. And it would be entirely meaningless if the voter's choice of candidates for any office must be made from any particular party or number of parties. But the constitution has made this more specific (although this was hardly necessary), by providing, after giving the form of an official oath, that "no other oath, declaration or test shall be required as a qualification for any office or public trust."

It is manifest that every important function of government comes under one or the other of these heads of office or public trust. The board of registration commissioners consists, under this statute of persons holding permanent offices. The district registrars, clerks and inspectors perform functions connected with the most vital and important action of citizens in their capacity as choosers of the officers of government. The constitutional rule covers them all, literally as well as impliedly.

It was urged in the argument that if the term test can be held applicable to inquiries into party affiliations, it is equally applicable to those other qualifications often required for public service, such as education, scientific acquirements in surveyors and other specialists, legal knowledge in law officers, and the like. But this is not so. Not only is it evident from the other provisions in this clause that all of the exemptions referred to are such as would be applicable in all sorts of offices, but the use of the word test is especially significant because its recognized legal meaning in our Constitution is derived from the English Test Acts, all of which related to matters of opinion, and most of them to religious opinion. Such has been the general understanding of framers of constitutions. If this were not so, and if the power of the legislature in imposing conditions of office is at the same time only restrained by express clauses applying in terms to officers and to no one else, it would not be difficult for any dominant party controlling the legislature to perpetuate its power until overthrown by revolution. But such discriminations are as repugnant to the rights of voters in selecting as to the rights of those chosen in assuming office, and this clause is but an additional assertion of a principle found in other parts of the Constitution, expressed or clearly implied.