in a concurring opinion in the same case, stated that the Fourteenth Federal amendment had no application to the exclusion of aliens working upon public works, holding that such discrimination was proper under the “ police power ” of the State but adding, however, that such power did not give the right to discriminate on account of race or religion as such grounds sustain no relation to the general public welfare.
Willard Bartlett, Ch. J.,in a further concurring opinion m the same case (at p. 175) said, however: “ I can find no reason to suppose, however, that the Fourteenth Amendment was designed to limit or restrict the rights of a state as an employer of labor. Other employers, individual or corporate, possess the undoubted and absolute right to withhold employment from whomever they see fit. The Constitution could hardly have been intended to deprive the states of equality with private employers in this respect,” and at page 176 the same judge stated: “ If the alien labor law Under consideration is violative of the Fourteenth Amendment, the preference given to veterans by the Constitution of the state of New York must likewise be invalid. (Const, of New York, art. V, sec. 9.) Appointments and promotions in the civil service of the state anc of all civil divisions thereof, including cities and villages, are thereby required to be made according to merit and fitness to be ascertained as far as practicable by examinations, which so far as practicable shall be competitive; ‘ provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any fist from which such appointment or promotion may be made/ Here is a preference in the public service based wholly upon a status acquired half a century ago, and a preference of one class of citizens over all others. There could not be a clearer case of discrimination. I think that the Federal Constitution permits such discrimination but I should not think so if it be held that the statute in question here is in conflict with the Fourteenth Amendment.”
It must be clear that by its decision in Heim v. McCall the *615Supreme Court did not intend to hold that the State as an employer might commit a clear violation of the express constitutional restrictions such as the inhibition against discrimination on the grounds of race or color and the guaranty of equal protection of the laws.
The question then remains whether the present discrimination violates any right guaranteed by the Fourteenth Amendment.
Not all discrimination is prohibited by the guaranties of equal protection of the law or that against abridgement of privileges of citizens. The test to be applied is whether the discrimination is arbitrary or unreasonable or whether it is based on some ground which may have appeared to the Legislature as having some relation to the subject of the legislation (Gulf, Colorado & Santa Fe R. R. v. Ellis, 165 U. S. 150); some basis which may have appealed to the Legislature of the State as having some relation to the advancement of the public welfare. (People v. Crane, supra.)
The courts may not upset the legislative classification because judges doubt its wisdom or disagree with the soundness of the legislative reasoning.
As was said in Atkin v. Kansas (at p. 223): “ So, also, if it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s representatives. We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true — indeed, the public interests imperatively demand — that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution.”
Can, then, the present discrimination be said to be based on any reason relating to the subject of the legislation or within the purview of legislative decision based on its view of the advancement of public welfare or must it be said to violate the fundamental constitutional rights?
It is evident that the restriction of the preference to those disabled veterans who were residents and citizens of the State when they entered the military or naval service was for the purpose of limiting *616the number of veterans who might obtain the benefits thereof. If the Legislature can say that citizenship at the time of hiring has some relation to the right of employment on public work or that military service rendered in the past has proper relation to civil preferment, why may it not say that citizenship of and residence in the State at the time of past military service has relation to preference in civil service? The patriotic citizen of to-day whose age or other fortuitous circumstance prevented him from offering his services in a past war would be discriminated against even if the class preferred included all veterans, citizen and alien, able or disabled. The veteran who received or claimed no disabling injury in war is discriminated against in favor of one who did. No attack is made on the statute on these grounds. While it might well be said that we owe a greater debt to the alien who entered the service of this country than to a citizen who did likewise, on the other hand, those who were aliens when the late war was on were under different restrictions with respect to military service than were citizens and among aliens the requirements varied according to the relation between our government and the country of origin. As to those who were citizens of the United States but residents of other States at the time of entering service the Legislature or the people might well determine that they should not receive the benefits of preference in the employment of this State on the mere circumstance that they acquired residence in this State after they entered the service or perhaps because they may have come here after the adoption of the law granting preference and for the purpose of taking advantage of it. The court is not advocating the wisdom of the legislative reasoning. It is only attempting to indicate that this amendment with its discrimination might have been based on reason and not merely on whim or caprice, that its classification was not necessarily exercised arbitrarily but might have some relation to the legislation involved. A court can go no further. It is enough that the law does not preclude the possibility of a rational basis for the legislative judgment. (Clarke v. Deckebach, 274 U. S. 392.)
It cannot be said that the provisions of law under consideration preclude such possibility or clearly violate the hmitations of the Federal Constitution by abridging privileges or denying equal protection of the laws as such terms have been judicially interpreted. Of course, the fact that the provision for this preference has been ratified by popular vote strengthens the effect to be given it. Therefore, the petition for mandamus is denied. Order signed.