The sole issue raised by this appeal is the validity of the provision in the Seattle City Charter and civil service rules which limits eligibility for the city's civil service examination to United States citizens. We hold that such provision as applied to these plaintiffs constitutes an invalid interference with laws of the United States in a field of federal supremacy.
Plaintiffs appeal from a judgment of dismissal of their declaratory judgment action. The action seeks a decree (1) permitting plaintiffs to take civil service examinations and (2) enjoining Seattle city officials from discharging plaintiffs from their current employment, other than as provided for termination of employment of persons within the city's civil service system.
Article 16, § 6 of the Seattle City Charter provides in part:
Civil service rule 4.01, adopted pursuant to charter authority, provides that in order to qualify for examination the applicant must be a citizen of the United States. Rule 7.07 allows provisional employment of noncivil service persons when there is no suitable eligible register of regular civil service personnel available. Such provisional employment is restricted to 60-day, renewable periods, pending availability of an "adequate eligible register," and must cease within 21 days after notice that a regular civil service employee is available, unless an extension is granted by the secretary of the civil service department.
Plaintiffs are 18 residents and taxpayers of King County. Each is a "resident alien", having been granted permanent residency in the United States by the United States Department of Justice. During oral argument we were advised that each of the plaintiffs had filed his declaration of intent to become a United States citizen pursuant to federal naturalization
The city recruited plaintiffs during a period of critical shortage of engineers in the Puget Sound area. Recruiting advertisements were broadly published in the city's search for trained engineers. Plaintiffs moved to Seattle from other states (and in one instance from Canada) in response to this solicitation. They were not required to take civil service examinations at the time of their employment, but were employed as "provisional" employees under civil service rules.
In the fall of 1969, a register or list of persons eligible for permanent civil service employment in the positions held by plaintiffs was certified under the civil service rules. Faced with discharge under civil service rule 7.07, plaintiffs applied to take the examination for admission to the classified service. Each application was rejected, solely on the basis that the applicant was not a citizen of the United States. There is no issue as to the competency, character or work performance of any plaintiff.
Plaintiffs asserted to the trial court and here contend that the citizenship requirement of the city charter and the civil service rules is invalid on any one of five grounds: (1) conflict with the federal scheme under the Immigration and Naturalization Act of 1952, as amended (8 U.S.C. § 1101, et seq.); (2) conflict with the Washington Anti-discrimination Law (RCW 49.60); (3) conflict with the Civil Rights Act of 1870 (42 U.S.C.A. § 1981); (4) violation of the Due Process Clause (U.S. Const. amend. 14); (5) violation of the Washington and federal equal protection clauses (Const. art. 1, § 12; U.S. Const. amend. 14).
We find it unnecessary to deal with each of plaintiffs' contentions as we are of the opinion that the federal supremacy in the field of immigration as exercised by Congress precludes the city from establishing citizenship as a condition to eligibility for civil service examination for general public employment in occupations which have been designated as needed by the Secretary of Labor.
The memorandum opinion of the trial judge makes clear that he felt compelled to his decision by language in our prior cases that "the state and the various municipalities within it have the right to say that public work shall be done in any manner, at any price, and upon any terms
We do not read Jahn and Cornelius as establishing a rule of absolute discretion in state or local governments as to who will be allowed employment relating to public works. Jahn was a departmental decision in which we upheld a municipality's power to require that private contractors on public works projects pay their employees at a rate no less than that paid by the municipality for work of like character. In the context of that issue, we said:
Jahn v. Seattle, 120 Wn. 403, 406, 207 P. 667 (1922). We there also took note of then extant United States Supreme Court cases upholding provisions regarding nonemployment of aliens on public work. Heim v. McCall, 239 U.S. 175, 60 L.Ed. 206, 36 S.Ct. 78, Ann. Cas. 1917B 287 (1915); Crane v. People of New York, 239 U.S. 195, 60 L.Ed. 218, 36 S.Ct. 85 (1915). However, see Graham v. Richardson, 403 U.S. 365, 29 L.Ed.2d 534, 91 S.Ct. 1848 (1971), wherein, in referring to Heim and Crane, the Supreme Court stated: "But this Court now has rejected the concept that constitutional
Cornelius v. Seattle, 123 Wn. 550, 213 P. 17 (1923), also a departmental decision, involved a city ordinance limiting the collection of swill from public eating places to responsible citizens of the United States. Unfortunately, in the course of that decision, we made the overbroad statement that Jahn "held" that a city may limit public employment to United States citizens. There, we stated at page 557:
We then concluded that the ordinance did not violate the equal protection clause of the Fourteenth Amendment. But to say that a city may limit public employment to United States citizens in some instances is not to say that such limitations are valid in all instances. Whatever the continuing validity of this conclusion, the present point is that Cornelius, even with its broad reading of Jahn, does not stand for the proposition that state or local governments are completely free to discriminate against aliens in public employment. Cornelius does not preclude courts from assessing such discrimination in the light of superior statutory law.
Thus, as we understand those cases, neither Jahn nor Cornelius grants an unrestricted license to discriminate against aliens in public employment.
Our purpose in tracing these developments is not to discuss constitutional arguments as they might pertain to this case. We do not reach the constitutional issues raised by plaintiffs. Rather, our purpose is to note the expanding
With the foregoing as background, we turn to the argument that these Seattle citizenship restrictions are an invalid interference with the authority of the federal government to control immigration. At the outset we reiterate the fact that we are dealing with a case involving qualifications for general employment. Conversely, this is not a case involving preferences in public employment or qualifications for public office, law enforcement, or policy making positions.
For our purposes, the relevant congressional scheme derives from the Immigration and Nationality Act of 1952, as amended (8 U.S.C. § 1101, et seq.). The import of this legislation
It is of more than passing interest that the California court used, as an example of clear conflict, a case where a state statute precluded architects and civil engineers (certified as needed by the Secretary of Labor) from employment on public works. In Purdy, the court was not faced with an actual conflict between state exclusionary law and federal regulation in this field. The court there struck down a California law proscribing employment of aliens on public works, because "[T]he opportunity for potential conflict is too great to permit the operation of the state law." The facts now before us are more direct. Plaintiffs are civil
Clearly, the federal scheme for immigration is intended to and does regulate alien employment to some extent. The schedule promulgated by the Secretary of Labor defines those aliens whose immigration to this country is desirable because they possess needed skills. This determination is not made in ignorance of local conditions; rather, in certifying the schedule, the secretary must consider the labor conditions in "the place to which the alien is destined." 8 U.S.C. § 1182(a) (14). Whatever the wisdom of this part of the comprehensive federal scheme, the inescapable fact is that the determination is preempted by federal law and placed in the hands of the Secretary of Labor. We see no basis in the present facts for a suggestion that the secretary has exceeded proper limits in designating civil engineers within his schedule, and the city of Seattle makes no such suggestion. To the extent that Seattle's local provisions discriminating against these aliens have the effect of deterring the execution of the federal law, those provisions intrude upon federal prerogatives and cannot stand.
It is asserted by the city that the instant facts are distinguishable from those in the Purdy case because (1) Purdy involved "ordinary" occupations, whereas this case involves engineers and, (2) Purdy involved a statute which proscribed all employment of aliens on public works, whereas the provisions here do not prevent employment but only the job-security (tenure) of civil service for aliens.
As to the first asserted distinction, we find nothing which militates in favor of these discriminatory provisions. To the contrary, the occupations of plaintiffs are within the schedule certified by the Secretary of Labor, while the occupations involved in Purdy were not so certified. From the standpoint of federal preemption, this difference favors plaintiffs rather than the city.
State and local governments can "neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states." Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419, 92 L.Ed. 1478, 68 S.Ct. 1138 (1948). If labor conditions within the area render the federal scheme unwise as applied, then the appropriate remedy is with the federal officials concerned. We note, as did the California court in Purdy & Fitzpatrick v. State, 71 Cal.2d 566, 456 P.2d 645, 79 Cal.Rptr. 77, 85 (1969), that Seattle "does not remain, therefore, without power to act, but merely without power to act with final authority upon a matter for which Congress has determined that one national
Accordingly, we conclude that the citizenship restrictions of Seattle City Charter, art. 16, § 6, and of Civil Service Code 4.01 b(1), as applied in areas of general public employment, are invalid obstructions to the execution of the comprehensive federal scheme for immigration and naturalization. Our conclusion finds added support in the rationale of the recent pronouncement of the United States Supreme Court in Graham v. Richardson, supra. Plaintiffs are entitled to take the civil service examination.
Plaintiffs urge that upon taking the civil service examination, and assuming their success thereon, they should be afforded civil service status nunc pro tunc to the dates of their respective initial employment. But, beyond the controverted assertion that the city "waived" the examination when hiring plaintiffs, there is no affirmative evidence on which to base a claim to such early status. The trial court found that plaintiffs were hired as provisional employees. We see nothing in the civil service rules which makes provisional hiring, for which examination is not required, ipso facto a waiver of examination to attain civil service status. Plaintiffs could have made application at any time and we see no injustice, absent countervailing evidence, in limiting plaintiffs' potential retroactive status to such time as each would have been entitled had he taken and passed the first examination following his application. The trial court did not reach this issue and the record is inadequate for a determination by us.
Reversed and remanded.
According to the Seattle charter, professional engineers in the permanent civil service must be citizens of the United States. This court, however, acting partly upon what it perceives to be a superior federal policy, not only voids this citizenship provision of the Seattle
Being unable to find any signs of such a federal policy — other than the court's assertion that it is there — I doubt its existence; but should it be located, I doubt even more that it would prove superior. Assuming, arguendo, such a policy, wherein can it be held to control purely local policy over purely local affairs? Congress has plenary powers over the entry, stay, exclusion, naturalization and expulsion of aliens (Henderson v. Mayor of New York, 92 U.S. 259, 23 L.Ed. 543 (1875)), but these powers do not in any way purport to control, override or impinge upon local laws establishing and governing a municipal civil service system. The one power has little or nothing to do with the other. It should not be overlooked that certain basic tenets of self-government inhere in both constitutions, which effectively preclude the emergence of the very kind of federal policy asserted by the court here, i.e., that a city or state, contrary to its organic laws be compelled to employ resident aliens. If there is not and cannot in law be a federal policy supreme and overriding in the premises, it follows that the Seattle charter, when fairly applied and reasonably administered, does not violate either the due process clause or the equal protection clause of the constitutions.
The issue, then, is whether the City of Seattle acts within its legislative and constitutional powers in requiring that professional engineers, permanently employed and paid by the city, must be citizens of the United States. Any federal policy purporting to abrogate these powers must rest on constitutional authority or else be held incompatible with the structure of self-government as set up by the constitutions. A city is not only a body corporate, but a body politic as well. It is a basic unit of self-government designed to carry out and exercise the delegated powers of state sovereignty reserved to the states by the constitution. A city is a completely public body; it owns or uses no property, carries
To require American citizenship as a condition for appointment to the classified civil service seems to me to be neither unfair nor oppressive nor unreasonable. There is nothing about it to indicate that the people of Seattle were animated with a spirit of oppression or purpose of discrimination against resident aliens in putting such a provision in their charter. They did no more than adopt what has become a standard requirement in most areas of government throughout this country — a standard implicitly recognizing that nearly all eligible resident aliens who have declared it their purpose to become citizens of the United States will in the due course of time become naturalized; that where there is a will there is a lawful way. The charter provision
Requiring that naturalization be completed, in my judgment, is a good rule; it elevates citizenship without disparaging alienage; it does not in any way repudiate the recognition of what the immigrant and his posterity have done for this country, nor does it disparage their status as resident aliens. Where this nation has contributed greatly to the welfare of the immigrant and his family, the immigrant and his family have made reciprocal contribution to the welfare of the nation. Our national progress and development, the preservation and extension of our constitution, the expansion of our ideas of personal freedom and the vigorous perpetuation of democratic ideals — everything we have been and hope to be as a nation — rests in substantial degree upon the devotion, talents and skills and unstinting industry of the millions who came here from foreign shores to adopt this country as their own. Fighting its wars, working the mines and mills, farms and factories, building its railways and ships and structures and loading and hauling its goods and products alongside those who were born here
Thus, I see nothing unreasonable, oppressive, or invidiously discriminatory in requiring that the petitioners here complete their probationary sojourn, take the oath of allegiance and renunciation without mental reservation and make a binding promise to uphold the constitution and laws of the United States, and promise to protect and defend this country even in such extreme contingencies as armed conflict with their native land, before they join Seattle's civil service as professional engineers.
The function of a professional engineer on the city's payroll is on its face an activity identified with the public interest and one affecting the public welfare and safety. If the federal government entertains any policy concerning such activity or employment, it has kept that policy a secret. And whatever federal policy may exist toward employment of aliens, it is quite unlikely to encompass the idea that their entry and presence make them eligible before naturalization for permanent classified professional civil service of either cities or counties or the several states or of the United States. The federal government in all of its legislation appears to place no lower value upon citizenship than do the states and cities.
Such signs of a federal policy affecting the Seattle civil service as do exist point, moreover, to a policy 180 degrees opposite to the one postulated by this court. Before an immigrant is permitted entry, he is subject under federal law to a complex, restrictive and highly selective quota system. Aliens and Nationality, 8 U.S.C. §§ 1101, 1153 (1970). His admission is based on priorities and preferences. Aliens and Nationality, 8 U.S.C. §§ 1151-54 (1970).
Nothing about the immigration and naturalization statutes conveys the idea that Congress intended that aliens admitted for ultimate naturalization be eligible for employment in the public service before they attain citizenship. They do not invite a reciprocal arrangement either. Just as federal policy does not intrude upon Seattle's civil service laws, neither do Seattle's charter provisions intrude upon nor presume to override entry quotas, the conditions of entry, the duration of the alien's stay here, the grounds for exclusion or expulsion. The charter is and remains a local law limited precisely to local affairs.
In summary as to a purported federal policy, the statutes
Nor are we faced here with the more complex question of a resident alien's treaty rights, for no treaty provisions between the United States and the Republic of China — or with any other nation, for that matter — germane to this issue have been brought to our attention, and presumably no treaty exists contemplating the remedy petitioners seek here.
While the charter does effectuate a basic right of self-government, it does not presume to interfere with Congress' plenary powers over immigration and naturalization nor to repudiate the idea that a resident alien cannot be denied the ordinary means of earning a livelihood by state law. It simply exercises a basic tenet of constitutional doctrine that the state and its subdivisions may make reasonable classifications in protecting or advancing legitimate state and municipal interests. So long as a regulation applies equally to all within the classification and is fairly administered, it cannot be held unreasonable or discriminatory.
Congress is without power to control the exercise of police powers by the states in legislating generally with respect
There is no magic either in the petitioners' status of being now admitted for permanent residence as mentioned by the court. Lawful admission for permanent residence is but one of the conditions an alien must meet before seeking citizenship; he cannot even initiate proceedings for naturalization unless he has been admitted to this country as, or later becomes, a permanent resident and declares under oath his intention of filing a petition for naturalization. Aliens and Nationality, 8 U.S.C. § 1445(f) (1970). The status of admission for permanent residence imposes no obligation to pursue the next step or steps toward citizenship. An alien's declaration of intention is merely preliminary to and far removed from achieving citizenship for the statute specifies:
Aliens and Nationality, 8 U.S.C. § 1445(f) (1970). Prevailing concepts of international law recognize the existence of significant differences between citizenship and alienage. However loyal an alien's intentions to this country may be, he is subject to the foreign power which has calls upon his
This court ought not interfere with federal immigration and naturalization policy. Where yesterday agencies of the federal government might have hoped that all aliens be admitted to employment on precise and equal terms with citizens, today they may well take an opposite view and be actively engaged in reserving governmental employment for citizens only depending upon economic conditions here and abroad and our current relationships with foreign countries. The court's decision in this case can have far-reaching and unexpected consequences in innumerable instances. American citizenship has been fixed by law as a standard in hundreds of instances for callings, professions and businesses so identified with or affecting the public interest as to be subject to regulation by the state under the police power. The court, holding in effect that the requirement of citizenship here is void, now places these standards in jeopardy.
Washington statutes requiring United States citizenship cover a wide range of activity, circumstances and conditions. Thus, a court commissioner must be both an elector and a citizen of the United States (RCW 2.24.010); attorneys and counselors at law are required by statute to be United States citizens (RCW 2.48.190), and must, by similar statute, take an oath that they are citizens. RCW 2.48.210. The judicial council is under a duty to consider suggestions from "judges, public officers, members of the bar, and citizens" concerning "remedies for faults in the
Membership in the State Aeronautics Commission is restricted to citizens of the state (RCW 14.04.030); and so is membership on the Apple Advertising Commission (RCW 15.24.020); and the same applies to a commission established to carry on fruit tree research (RCW 15.26.050); and to the Washington State Fruit Commission (RCW 15.28.030); and to the Washington State Dairy Products Commission (RCW 15.44.030); and the Washington State Wheat Commission. RCW 15.63.040. Members of commodity boards must be citizens of this state (RCW 15.65.230), and the same applies to commodity commissions (RCW 15.66.110), and local agricultural committees (RCW 15.68.130), as well as the beef commission. RCW 16.67.040. To vote for the office of director of a weed control district, the elector must take an oath that he is a "citizen of the United States." RCW 17.04.070; RCW 17.06.050.
Members of the State Board of Accountancy must be citizens of the United States. RCW 18.04.030, .040, .050. Temporary permits to practice accounting may be revoked or canceled if the licensee fails to become a citizen within 6 years of the issuance of his temporary license. RCW 18.04.300. As to practicing as an architect, the statute requires citizenship or intended citizenship. RCW 18.08.140.
Optometrists (RCW 18.53.060) and pharmacists (RCW 18.64.080) cannot be licensed to practice or serve on the state board (RCW 18.54.030; RCW 18.64.001) unless they are citizens. Doctors serving on the Board of Medical Examiners are required to be United States citizens (RCW 18.71.015); and the members of the Board of Registered Professional Nurses must be citizens. RCW 18.88.060. There are many other boards, professions and callings which by law require citizenship as a prerequisite.
Under the Washington Business Corporation Act (RCW Title 23A) and other statutes, one cannot serve as a receiver in a conservation or insolvency proceeding unless he is a citizen of the United States. RCW 23A.28.190; RCW 24.03.275; RCW 24.06.310. Nor can aliens teach in the public schools, except that temporary permits may be granted under certain circumstances to exchange teachers from foreign countries by the Superintendent of Public Instruction. RCW 28.67.020; RCW 28A.67.020. The Board of Regents of the University of Washington may exempt from payment of registration fees veterans provided they were citizens of the United States at the time of their enlistment and are citizens at time of registration. RCW 28.77.070. There are several statutes, too, prescribing United States citizenship as a requirement for membership on college boards and educational councils. RCW 28.85.050; RCW 28.89.040; RCW 28.89.060. United States citizenship is required for the five
No license to sell alcoholic beverages shall be granted to any noncitizen unless the privilege is granted by specific treaty. RCW 66.24.010. Aliens cannot serve on the State Horse Racing Commission. RCW 67.16.012. A resident alien farmer is not qualified to participate in flood control (RCW 86.09.364) or irrigation (RCW 87.03.045; RCW 87.60.150) district elections. No person may serve as a licensed ship's pilot within this state unless he is a citizen of the United States. RCW 88.16.090.
If, as it appears, these callings and professions are said to be affected with the public interest, the public interest even more directly and explicitly affected with the activity is that of public employment paid for entirely by public funds and dealing almost exclusively with publicly-owned property in serving the public.
Resident aliens, of course, have certain fundamental rights. They cannot under the Fourteenth Amendment constitutionally be deprived of life, liberty or property by the states without due process of law (Terrace v. Thompson, 263 U.S. 197, 68 L.Ed. 255, 44 S.Ct. 15 (1923)), nor under the Fifth Amendment by the United States. Brownell v.
But the equal protection provisions of both constitutions do not forbid all distinctions in state law between citizens and resident aliens. Cockrill v. California, 268 U.S. 258, 69 L.Ed. 944, 45 S.Ct. 490 (1925); Terrace v. Thompson, supra. Thus, where the entry of certain aliens would have
There is a discernible line separating rights and privileges guaranteed resident aliens under the constitutions and those guaranteed a citizen as a birthright or by naturalization. Limiting the professional civil service, as the Seattle charter does, to citizens does not, so far as I can see, cross that line or intrude upon any of these protections or deprive an alien of due process of law. Thus, the alien and the citizen alike are on the same side of a line delineated to indicate those rights which directly operate upon and militate to sustain individual freedom and afford direct protection against oppression by the state. But with respect to other rights, privileges, immunities and duties, the legislative power may recognize distinctions between alien and citizen.
Section 1 of the Fourteenth Amendment, both in text and spirit, preserves these distinctions:
(Italics mine.) Thus, the line of demarcation between citizens and noncitizens is made clear. The privileges and immunities of citizens shall not be abridged, but everyone, whether alien or citizen, cannot be denied life, liberty or property without due process of law, nor deprived of equal protection of the law.
To hold, as I think the court does, that equal protection of the law means that virtually all distinctions between citizens and aliens are abolished, reads an idle redundancy into the Fourteenth Amendment and creates a manifest absurdity. It operates to abolish the essential distinctions in law between alien and citizen and, in doing so, removes one of the basic motives for attaining citizenship. Not only where there is a direct public interest but also where the police power is directly involved or where the subject matter relates to the public safety, health and welfare, may aliens be excluded or subjected to qualifying conditions not required of citizens. See Chy Lung v. Freeman, 92 U.S. 275, 23 L.Ed. 550 (1875). Thus, if the legislature is dealing with matters of inherent public danger, it may make classifications based on domicil, allegiance, duty, habits and such other factors as may bear a rational connection to the protection sought to be effected. Both the United States and the states have the right, in legislating upon the subject of immigration and naturalization, to assume the existence of a relationship between one's native culture, customs and ability to adapt to our laws and institutions and the length of the alien's sojourn in this country before naturalization may be accomplished; that time is a relevant factor in encouraging and fostering adherence to the law and the constitutions. By its very nature, citizenship relates to questions of allegiance and acceptance of local and national law and culture and the adaptation of personal habits and life patterns to life in this country. Fixing a minimal time for naturalization makes rational distinctions between citizen and resident alien under both federal and state policy and
Plaintiffs, as resident aliens in Seattle but citizens and subjects of the Republic of China, educated and trained in engineering, claim in essence that, in being denied the right to compete on equal terms with citizens for appointment to and employment in the Seattle civil service they are being denied not any rights and privileges granted them by treaty laws but those basic rights shared under our constitutions by all citizens. A city, they contend, is without constitutional right to restrict its civil service for professional engineers to citizens of the United States for such a classification, they imply, amounts to an invidious discrimination. As earlier observed, the line of demarcation separating citizens of the United States from resident aliens under our constitutions is quite clear. A state, I think, may constitutionally prohibit aliens from holding public office,
The court's opinion depends in a large degree upon three decisions, none of which applies, I think, whatever to the Seattle City Charter: Truax v. Raich, supra; Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 92 L.Ed. 1478, 68 S.Ct. 1138 (1948); and Purdy & Fitzpatrick v. State, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645 (1969).
In Truax, one Raich, a native of Austria, lawfully in the United States, and living in Bisbee, Arizona, was employed as a cook by Truax in the latter's restaurant. Of Truax's nine restaurant employees, seven were aliens. By a 1914 statute, Arizona required that 80 per cent of the employees had to be citizens of the United States "regardless of kind or class of work." The statute made it a misdemeanor for the employer to violate this provision or the employee to misrepresent his "nativity or citizenship," and fixed punishment at a fine of not less than $100 and imprisonment for not less than 30 days. Truax was arrested for employing
That Truax has little or nothing to do with citizenship requirements in the public service and is limited to ordinary private callings — particularly characterized in the opinion as one of "the common occupations of the community" — is clear from the language employed:
After pointing out that the main purpose of the statute would be to force the complainant "out of his employment as a cook in a restaurant, simply because he is an alien," the court made a distinction which I think clinches the difference between that case and this: "No special public interest with respect to any particular business is shown
Citing Graham v. Richardson, 403 U.S. 365, 29 L.Ed.2d 534, 91 S.Ct. 1848 (1971), the court asserts that its opinion rests not on constitutional principles, but rather on a doctrine of federal preemption. Graham, I believe, however, stands directly upon the equal protection clause of the Fourteenth Amendment and holds that, under it, aliens cannot be deprived of public assistance by the states in the absence of a compelling state interest. Graham may be cited, I think, for the proposition that public assistance is not to be equated with the professional civil service and that there does exist a compelling state and municipal interest enabling the City of Seattle to require that its professional civil service engineers be citizens of the United States.
This court relies substantially, too, upon Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 92 L.Ed. 1478, 68 S.Ct. 1138 (1948). There, California in 1947 had enacted a statute barring the issuance of commercial fishing licenses to persons "ineligible to citizenship." Prior to that enactment, commercial fishing licenses had been issued without regard to alienage or ineligibility to citizenship and Takahashi had been fishing regularly since 1915 under such a license in the ocean waters both within and outside the 3-mile limit off the coast of California, bringing his fish ashore in that state for sale. After the war and during a period when, under the immigration and naturalization laws of the United States, Japanese nationals, regardless of their length of residence here, were ineligible for citizenship, Takahashi applied for his commercial fishing license entitling him to fish in the ocean off the coast of California and sell his catch in the state. The state refused — not because he was an alien — but because he was of a class of aliens ineligible then to ever become citizens of the United States.
Takahashi, I think a sound decision. It rests squarely upon the premise that, although Congress may constitutionally classify and discriminate with respect to nationality in
(334 U.S. at 420.)
Seattle's charter gives no hint of such an invidiously discriminatory classification among aliens as was revealed in Takahashi; one group of resident aliens is not given preference over another. The charter treats all aliens alike with respect to the civil service.
Not to be overlooked, also in Takahashi, is the statement that the court was "unable to find that the `special public interest' on which California relies provides support for this state ban on Takahashi's commercial fishing." Holding that California's claim of special public interest through a collective claim of ownership by its citizens in ocean fish swimming inside the 3-mile limit is extremely tenuous, the court referred to overriding federal interests in migratory birds sustained under the Federal Migratory Bird Treaty Act, 40 Stat. 755 (1918); Missouri v. Holland, 252 U.S. 416, 64 L.Ed. 641, 40 S.Ct. 382, 11 A.L.R. 984 (1920).
And, while questioning California's ownership of ocean fish in the waters off the California coast, the court did reaffirm the existence in the states of an abiding special public interest in wild game:
(334 U.S. at 421.)
In the third case, Purdy & Fitzpatrick v. State, 71 Cal.2d 566, 456 P.2d 645, 79 Cal.Rptr. 77 (1969), which cites
A state cannot deny to aliens the right to earn a living in ordinary occupations in private employment or business. But "where the work is public and therefore wholly subject to the police power, the exclusion of aliens is justifiable ... The equal protection clause does not estop a governmental body from preferring citizens over aliens in the matter of employment." 3 Am.Jur.2d Aliens and Citizens § 38 (1962). Employees of a municipality do not have a vested right to public employment. State ex rel. Ford v. King County, 47 Wn.2d 911, 290 P.2d 465 (1955). The question of whether the City of Seattle may constitutionally restrict its employment of professional engineers in the city civil service has, I think, been long resolved. If the plaintiffs, or the people, feel that such a policy is unfair and unwarranted, they may change their charter or submit their views to the legislature.
I would affirm.
HUNTER, J., concurs with HALE, J.
Petition for rehearing denied November 5, 1971.