The opinion
Hale, J.
(dissenting)—The court holds that the state or a city cannot constitutionally prescribe American citizenship for the permanent civil service. In so deciding, the court seems unaware that aliens, admitted to this country for permanent residence, in due time may but are under no compulsion to become citizens of the United States. Thus, an alien admitted to this country for permanent residence, possibly harboring a hatred and contempt for this country and its institutions and retaining undivided loyalty and devotion to his country of origin or to another nation, somehow acquires a constitutional right—which he never had before—to permanent employment in the Seattle civil service.
The court’s opinion reminds one of a familiar Seattle scene during the mid-’30s when highly-trained, young, German technologists were seen standing at the Nazi salute in beer gardens and rathskellers as the musicians played the Horst Wessel song. Curiously, they would have been denied appointment then to the state and municipal civil service for want of American citizenship under the identical constitutional provisions which the court says must be granted them now.
That an alien has a right under the Fourteenth Amendment’s equal protection clause not to be denied work in a privately operated restaurant on the sole basis of alienage (Truax v. Raich, 239 U.S. 33 , 60 L. Ed. 131 , 36 S. Ct. 7 (1915)); to obtain and act under a state fishing license if ineligible to citizenship (Takahashi v. Fish & Game *65 Comm’n, 334 U.S. 410 , 92 L. Ed. 1478 , 68 S. Ct. 1138 (1948)); to work for private employers on publicly-financed construction contracts (Purdy & Fitzpatrick v. State, 71 Cal. 2d 566 , 456 P.2d 645 , 79 Cal. Rptr. 77 (1969)); and to share equally with citizens of the United States in the public assistance benefits provided in substantial part by the states (Graham v. Richardson, 403 U.S. 365 , 29 L. Ed. 2d 534 , 91 S. Ct. 1848 (1971)), means no more than that he has rights which stop far short of active participation in government.
There was always thought to exist in legal circles a final line of distinction in the constitution between alien and American citizen. Without the change in so much as a solitary word of the state constitution, that line has now been virtually erased in this state. It remained for this court to deliver the coup de grace to preservation of that fundamental distinction between aliens and citizens—permanent professional employment in the public service (Hsieh v. Civil Serv. Comm’n, 79 Wn.2d 529 , 488 P.2d 515 (1971)), and the privilege of practicing law—a calling always held by the courts as one affected with the public interest. In re Chi-Dooh Li, 79 Wn.2d 561 , 488 P.2d 259 (1971).
In striking down the requirement of American citizenship for those who would work in and for the government, the court completely ignores a basic principle of constitutional law that “Equal protection does not require identity of treatment.” Walters v. St. Louis, 347 U.S. 231, 237 , 98 L. Ed. 660 , 74 S. Ct. 505 (1954). The very act of classification involves some degree of discrimination. Equal protection requires only that classification rest on real and not feigned differences; and that the distinction have some relevance to the purpose for which the classification is made. Walters v. St. Louis, supra. The prohibition of the equal protection clause goes no further than invidious discrimination. Markham Advertising Co. v. State, 73 Wn.2d 405 , 439 P.2d 248 (1968). As long as the classifications are reasonable, and *66 apply equally to all of those within the class, the legislation is within the equal protection of the Fourteenth Amendment. State v. Ames, 47 Wash. 328 , 92 P. 137 (1907); Terrace v. Thompson, 263 U.S. 197 , 68 L. Ed. 255 , 44 S. Ct. 15 (1923); Clark v. Dwyer, 56 Wn.2d 425 , 353 P.2d 941 (1960), cert. denied, 364 U.S. 932 , 5 L. Ed. 2d 365 , 81 S. Ct. 379 (1961); Hemphill v. State Tax Comm’n, 65 Wn.2d 889 , 400 P.2d 297 (1965).
Our constitutions recognize the differences between alien and citizen, both in their privileges and in their obligations to this country; they recognize, too, that these differences are real and not feigned; 'and that it is no invidious discrimination to reserve the jobs in the public service for American citizens. Conversely, it does constitute an invidious discrimination against American citizens, I think, to rule that they must, despite charter, statute or constitutional provision, compete for employment in the public service with aliens from throughout the world, aliens who simply have done no more than obtain entry for permanent residence here on an immigration quota.
The present case does not concern an alien’s basic rights to trial by jury, counsel and witnesses, freedom from compulsory incrimination in criminal cases and other freedoms guaranteed him under the Bill of Rights and the Fourteenth Amendment and generally recognized in all civilized countries as inalienable to the individual. Nor does this case concern an alien’s right to earn a living in private employment; nor to draw public assistance from the public treasury. But judicial interpretation vindicating these personal, individual rights affords no rational basis whatever for declaring that they include the right to vote, run for office, or engage in governmental operation within the civil service. Time enough for the assertion of these latter rights and privileges when the alien has taken the oath of allegiance, renounced his former loyalties, and become a citizen. What the court has done here is to lump together under the Fourteenth Amendment all of the rights and privileges guaranteed citizens and aliens separately, so that there ex *67 ists no genuine constitutional basis whatever for precluding anyone from the practice of law or joining the civil service, or voting, or holding public office, or serving as a juror, or promoting and signing initiative, referendum and recall petitions.
If aliens have a constitutional right to actively operate the public service or to practice law under the equal protection clause of the Fourteenth Amendment or to participate in government, it follows that an alien applicant to the bar or the Seattle Civil Service Commission has acquired virtually all of the benefits without assuming the obligations of citizenship. In some respects, the court now puts the alien in a superior position to that of the citizen, for it awards him all of the benefits without imposing any of the burdens. Whenever he chooses, an alien, after earning a civil service retirement, may depart this country to resume life in the country to which he has retained his allegiance and loyalty, taking with him all of the benefits of his tenure here and in the meanwhile retaining all of the benefits of citizenship there.
In prescribing American citizenship as a condition for the permanent civil service, the state and its political subdivisions have done no more than exercise their constitutional power to recognize, legislate and classify on the basis of that most vital distinction between citizen and alien: the obligation of allegiance and loyalty to this country and the renunciation of allegiance and loyalty toward all others. The people of this state generally and Seattle in particular in its city charter have simply asserted a basic right of self-government vouchsafed all citizens of this country: the right of local government to keep the control and direction of the business of government in the hands of American citizens.
Accordingly, since the line of demarcation under law between citizen and alien is clear, precise and definitive and represents a most elemental classification upon a rational distinction between alien and citizen, wherein does it contravene the Fourteenth Amendment? To declare as the *68 court has done that the charter provision restricting the permanent civil service to American citizens violates the constitution not only misconstrues the Fourteenth Amendment, in my opinion, but rewrites it. The Fourteenth Amendment makes the same distinction between citizen and noncitizen that the Seattle charter does:
All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
(Italics mine.) U.S. Const, amend. 14.
In the instant case, the court seems unable to lay to rest entirely some apparent gnawing doubts. It says that driving a transit bus in Seattle does not involve security, implying thereby that, if the Seattle charter limited citizenship to those positions affecting security, the Fourteenth Amendment would countenance such a distinction. But to distinguish between alien and citizen on the basis of security, I think, posits the basic unsoundness of the court’s opinion in this case. If the court is holding that, under the Fourteenth Amendment, the city need not accept aliens into positions which can be said to involve security, it necessarily implies that it must do so with those positions which do not. This requires an even more extensive rewriting of the Fourteenth Amendment, and more comprehensive judicial legislation to define security and explain just why it is a denial of equal protection to award the alien civil service status for some jobs and not for others. One can readily assume that firemen and policemen do occupy public positions involving security; so, too, do civil, electrical, hydraulic and sanitary engineers involve security, being in direct control, as they are, of the city’s electrical generation, water supply, sanitary installations and highways, dikes, dams and bridges. And what about electricians *69 and electrical inspectors, and plumbers and plumbing inspectors, and those performing all of the other services rendered by the city to its citizens intended to preserve the public peace, health and safety? And what of food inspection services? And honesty in weights and measures in the millions of dollars in goods sold daily throughout the city?
Under the Fourteenth Amendment, is the court to distinguish along constitutional principles between the Woodland Park policeman and the civil service custodians of the zoo, both doing their respective jobs for the people of Seattle in Woodland Park?
Is it to be held that the Fourteenth Amendment means that the city may restrict the appointment of park policemen to citizens, but cannot do so as to the permanent employees who maintain the gardens and the zoo, and that, although the city need not under the charter hire aliens for the first, it is compelled by the Fourteenth Amendment to hire them for the latter? The reductio ad absurdum of this court’s chain of decisions striking down the state’s power to restrict certain public callings directly affected with the public interest to American citizens will be seen when circumstances require it to make classifications of public service employment upon the basis of security, excluding some and admitting others. If security be the touchstone of constitutionality, then, under its fine of decisions, the court itself in interpreting its decisions will not escape the need to distinguish—or discriminate. I would prefer the clear-cut, readily definable distinctions that the city has drawn in its charter between citizen and alien to the nebulous, vague and undoubtedly incomprehensible line of demarcation the court must surely draw in the future.
Assuming, however, that public security, that is, health and safety, is not the major reason for the court’s decision, it is still a long leap which carries the court from those cases which sustain statutory abridgment of an alien’s rights to hold land (Cockrill v. California, 268 U.S. 258 , 69 L. Ed. 944 , 45 S. Ct. 490 (1925); Webb v. O’Brien, 263 U.S. 313 , 68 L. Ed. 318 , 44 S. Ct. 112 (1923); Porterfield v. Webb, *70 263 U.S. 225 , 68 L. Ed. 278 , 44 S. Ct. 21 (1923); Terrace v. Thompson, 263 U.S. 197 , 68 L. Ed. 255 , 44 S. Ct. 15 (1923)); or to own stock in agricultural corporations (Frick v. Webb, 263 U.S. 326 , 68 L. Ed. 323 , 44 S. Ct. 115 (1923)); impair his sharing in the state’s resources by restricting hunting privileges to citizens of the United States (Patsone v. Pennsylvania, 232 U.S. 138 , 58 L. Ed. 539 , 34 S. Ct. 281 (1914)); prohibit him from planting and harvesting oysters in the state’s tidal waters (McCready v. Virginia, 94 U.S. 391 , 24 L. Ed. 248 (1876)); and render him ineligible for employment in public works (Heim v. McCall, 239 U.S. 175 , 60 L. Ed. 206 , 36 S. Ct. 78 (1915); Atkin v. Kansas, 191 U.S. 207 , 48 L. Ed. 148 , 24 S. Ct. 124 (1903)), to the present holding that a municipality—and the state, therefore— within its sovereign constitutional powers cannot make American citizenship a qualification for employment in the civil service. It is a jump across that basic principle of constitutional law that government can make reasonable classifications and legislate according to them. To exclude aliens from the common occupations of private employment or public assistance is one thing, but it is quite another to say that neither the state nor the people have a special interest in keeping the active operation of their governmental business, performed on or about publicly-owned property with publicly-owned tools and contrivances, wholly paid for from the public treasury, in the exclusive hands of citizens of the United States..
However laudable the purpose, the court ought not overlook that, should its opinion become general law, it may in the long run operate to the detriment of aliens. In periods of inflation, economic recession, and a labor surplus, with consequent overloads of unemployment compensation and public assistance—not to mention invasion of- this country, actual or imminent—there is a danger that, if the state and municipal governments must, under the Fourteenth Amendment provide public jobs to aliens on the same basis as to its citizens, drastic but questionable amendatory processes- will be initiated of a kind, that in the long run may *71 prove repressive to aliens—or that civil service itself may be drastically curtailed.
No court has gone to such an extreme as does this court. See Protection of Alien Rights Under the Fourteenth Amendment, 1971 Duke L.J. (No. 3) 583. None has so cavalierly ignored the cardinal principle of constitutional law stated in McGowan v. Maryland, 366 U.S. 420, 425 , 6 L. Ed. 2d 393 , 81 S. Ct. 1101 (1961):
Although no precise formula has been developed, the 'Court has, held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which 'affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrevelant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. See Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 ; Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580 ; Lindsley v. National Carbonic Gas Co., 220 U. S. 61 ; Atchison, T. & S.F. R. Co. v. Matthews, 174 U. S. 96 .q
The court loses sight of the fact that a transit driver in Seattle enjoys a higher standard of hving, greater economic security for himself and his family, better medical care 'and educational opportunities, and the enormous boon of political freedom, than do literally thousands, of engineers, scientists, lawyers and technologists, in Asian, South American, African and most European countries. To thousands of aliens, the Seattle civil service in whatever capacity must seem an extremely desirable appointment and one assiduously to be sought. The court now says that if a civil, electrical or mechanical engineer, fluent in English and here as a permanent resident, gets a higher grade in the civil service examination, he must be employed to the exclusion of a citizen who, because of lesser education, will have a lower grade. And the appointment must, under this decision, be made to the alien who, once here, elects never *72 to become a citizen but remains on the public payroll until time comes full circle and he departs to his native land with his social security benefits and his Seattle pension, free at last of the burden of American taxes, to live out his days in contentment and comfort.
I think the Fourteenth Amendment was never intended to so nearly erase the distinction between alien and citizen nor to work accordingly so great a corresponding disparagement of American citizenship.
I would, therefore, affirm.
Ott, J. Pro Tern., concurs with Hale, J.