dissenting, said:
I think the indictment is plainly defective in form, and that on that ground the defendant’s demurrer ought to have been sustained by the hustings court. For this reason I concur in reversing the judgment, but I dissent from the opinion of the court, in so far as it holds the'act in question unconstitutional. In doing so, I express no opinion as to the constitutionality of the first section of the act. The indictment manifestly was intended to he drawn under the second section, and to that and subsequent sections I shall confine what I have to say.
The object of the act, as expressed in its title, is “ to prohibit the active participation in politics of certain officers of the state government.” It was duly approved by the governor, and has thus received the sanction of both the legislative and executive branches of the government. The second section declares it unlawful for any of the officers or employees mentioned in the first section to participate actively in- politics, and further declares that making political speeches, or the active or official participation in political meetings, shall be deemed to be an active participation in politics within the meaning of that section. It is further enacted that any person violating the provisions of the act, shall he deemed guilty of a misdemeanor, and upon conviction thereof shall he punished in the manner prescribed by the act.
It certainly requires no argument to show, and I shall not, therefore, undertake to argue, that if the legislature may by law prohibit officers and employees of the state government from actively participating in politics, it may prescribe penalties for a violation of the law in addition to the forfeiture of the offender’s office or employment. To my mind, the only question is whether *208it is competent for the legislature to pass the act at all. And in determining that question we look to the constitution, not to ascertain what are the powers of the legislature, but what restrictions upon its powers are there imposed. Plenary power in the legislature for all purposes of civil government is the rule, a prohibition to exercise a particular power is an exception ; and it is for those who question the validity of a statute to show that it is forbidden. An act of the legislature is, therefore, presumed to be constitutional, and in no case ought it to be declared invalid, unless its invalidity is established beyond a reasonable doubt. This, I think, has not been done in the present case; and in view of the importance of the case, I will briefly state the reasons for this conclusion.
To my mind it is a self-evident proposition that the legislature may establish reasonable regulations for the conduct of those in the service of the state, and may by law prohibit them from engaging in any employment incompatible with the faithful discharge of their official duties. And of what is thus incompatible the legislature is the judge, provided always that no constitutional right is denied or abridged. The consequences of any other doctrine might be serious, if not disastrous, to the best interests of the state. Take, for illustration, the case before us. Can it be said that the active participation in politics by the superintendent of public instruction and the various county superintendents of schools would not be in the highest degree injurious to the public free school system of the state—a system in which the people of all classes and opinions are so deeply interested ? Or can it be denied that such participation in politics by the judges could result otherwise than in degrading the judiciary in the estimation of all right-minded men ? And does not sound policy, and even humanity, forbid those in charge of the unfortunate insane of the state from quitting their important posts for the political arena? To ask, is to answer these questions. Yet the truth is, the offices of the country have come to be. regarded by very many, not so much as public trusts to be *209administered for the general welfare, as means for the attainment of political ends, and thus a system is established which tends to produce dependence and disorder rather than independence and efficiency in the civil service of the state and nation. In my judgment it is within the power of the legislature, in a measure at least, to correct the evil, by forbidding those in the service of the state from active participation in politics, and by imposing adequate penalties for a violation of the law.
But it is said that the act in question denies to the citizen his constitutional liberty of speech, and is, therefore, null and void. The provisions of the constitution relied on are these: “Any citizen may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Art. I, § 14. And again: “The general assembly shall not pass any law * * * abridging the freedom of speech or of the press.” Art. V, § 14. I am unable to see how the right here guaranteed is denied by the sections of the act I am considering. It seems to me it is not the exercise, hut the abuse of the right which those sections forbid; for when the citizen voluntarily assumes the duties of an office, it becomes his duty, and he solemnly swears to discharge its duties faithfully and -to the best of his ability, according to law. His right to speak and to write and to publish his sentiments on any subject is not denied, hut it does not follow that he may, with impunity, neglect his official duties to devote his time and attention to politics.
In like manner, the freedom of the press is guaranteed by the constitution, hut he who abuses the right and publishes a libel may be indicted and punished therefor, and that, too, ordinarily without regard to the truth of the publication ; like, as has been said, the right to keep fire-arms, which does not protect him who uses them for annoyance or destruction.
But I do not desire to enter into any extended discussion of the case, for it seems to me that the principle upon which the legislation in question rests has been emphatically asserted in a recent decision of this court. In the case of Gallalee v. Calvert *210et als., decided at the last term at Richmond, it was held that although the legislature cannot, except under peculiar circumstances, prescribe qualifications for office in addition to those prescribed by the constitution, yet that it may by law exact the forfeiture of any state, county, city or town office, the incumbent of which accepts or continues in any office or employment under the government of the United States. And accordingly it was further held that the petitioner in that case, by his continuance in the employment of the United States as a laborer or mechanic in the Portsmouth navy yard, had waived and vacated the office of registrar to which he had been appointed. Now, here was a positive and distinct affirmation of the power of the legislature to prohibit those holding state ofiices from engaging in any employment which, in its judgment, is incompatible with the faithful discharge of their official duties. For on no other ground could the act reviewed in that case have been sustained. It certainly cannot be contended that the legislature may prohibit a citizen of Virginia from holding a federal office, hut undoubtedly it may provide that no person shall hold a state and federal office at one and the same time. And this it may do, notwithstanding the right of the citizen to aspire to, and if he possesses the proper qualifications, to hold, if tendered, a federal office is a constitutional right as firmly secured as is the freedom of speech or any other right recognized by the constitution, state or federal. Nor is the freedom of speech a more sacred right than the absolute right of the citizen to acquire property and to use it for such purposes as he pleases, not in themselves unlawful. In these particulars the guaranties of the federal and state constitutions are substantially the same, and, therefore, it seems to me the present case is analogous in principle to the recent case of ex parte Curtis, 106 U. S. 371.
In that case the facts were these: By an act of congress, approved August 15th, 1876, all executive officers and employees of the United States, not appointed by the president *211with the advice and consent of the senate, were prohibited from requesting, giving to, or receiving from any other officer or employee of the government any money or property, or other thing of value, for political purposes. And it was provided that any such officer or employee who should offend against the provisions of. the act, should be discharged from the service, and moreover should be deemed guilty of a misdemeanor, and, on conviction, fined in a sum not exceeding five hundred dollars. Under this act Curtis, the petitioner, was indicted and convicted in the United States circuit court for the southern district of New York, and having been committed to the custody of the marshal until payment of the fine imposed should be made, he applied for a writ of habeas corpus, upon which the case was heard and determined by the supreme court of the United States, the only question being whether the act was constitutional. For the petitioner it was urged that to deny the citizen the privilege of associating with and making joint contributions to such of his fellow-citizens as he might choose, was a wrongful restraint of his constitutional right to propagate and promote his views on public affairs; that the right, like the freedom of speech and of the press, was secured by the constitution, and could not be restrained by congress. But the court held the act to be constitutional. As a regulation of the conduct of certain officers of the government, it was said to rest on the same principle as many previous statutes of a kindred character, the constitutionality of which had never been questioned. In delivering the opinion of the court, the chief justice said: “ The evident purpose of congress in all this class of enactments has been to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the just scope of legislative power, and it is not easy to see why the act now under consideration does not come fairly within the legitimate means to such an end.”
How if, with this object in view, the legislature may prohibit an officer from giving to another a single penny of his own *212means, to be legitimately applied for political purposes, why may it not prohibit him from devoting his time and attention to the promotion of the same ends? I perceive no distinction in principle between that case and this. In the one case, the officer is protected against enforced contributions of his means, in the other against demands upon his time and services, for political purposes; the primary object in both cases being to secure the independence of certain officials, and consequently increased efficiency in the public service.
I think the opinion of the majority denies to the legislature a power it clearly possesses, and for the foregoing reasons I feel constrained to dissent from its conclusions.
Fauntleroy and Richardson, Js., concurred in the opinion of Lacy, J.
Hinton, J., reserved his opinion.
Judgment reversed.