Shaw v. City Council

Bishop, J.

(dissenting).— I am unable to yield my assent to the general conclusions reached by the majority of the court, as found expressed in the opinion written by the Chief Justice. Without foreword, I go directly to a consideration of the questions involved, and to a statement of the reasons which impel me to declare for an affirmance of the judgment appealed from. Whoever runs may read that to the legislative power of the state is intrusted the exclusive right to formulate and proclaim the written law of the state. And it is to be said that this right is subject to but one limitation, and that is that no legislative act may be put forth which shall operate to contravene any of the expressed provisions of the written Constitution of the state, or have the effect to interfere with or take away any *140of those inalienable rights of the citizen which lie behind the Constitution and to which that instrument is itself subordinate. And it is at the point of limitation that the duty of the courts begin. We may not consider the wisdom or policy of any law. It is for us to consider only those questions which arise upon challenge of an act of the Legislature as in excess of the constitutional right.

In turning to the Constitution, we find it written that “ We the people ” declare that “ all men are by nature free and equal, and have certain inalienable rights, among which are those of enjoying and defending life and liberty,” etc. Such is the primal declaration of the instrument, and not only was it selected to lead all the other provisions thereof, but it was intended to give character to each and every of such provisions. Stated otherwise, the Declaration served not only to make announcement of the flaming sentiment which dominated the hour in which it was put forth, but it heralded the adoption of that sentiment as the corner stone of our constitutional form of government. Impressed with this thought, it is not possible for me to say, as it must be said in order that the legislative act now before us may be sustained, that within the contemplation of those delegated citizens who framed the instrument, and of the people who ratified it at the polls, such primal declaration should be subject to future interpretation as no denial of legislative right to make distinguishment between the citizens of the state in respect of their rights as citizens. And I have studied the instrument with some degree of assiduity, and I find therein no expressed word, nor does there arise therefrom any suggested thought, upon, which reliance may be placed for such interpretation. On the other hand, and- in direct line with the primal declaration, there is to be found the provision upon which the demurrer in this suit was predicated, that “ the General Assembly shall not grant to'any citizen, or class of citizens, privileges or immunities which upon the same terms shall not equally be*141long to all citizens.” And, turning over the page, this also is enjoined upon the legislature: “Where a general law can be made applicable all laws shall be general and of uniform operation throughout the state.” What I contend for, stated in a sentence, is this: That in virtue of the provisions -of the Constitution, adopted long before the War of the Rebellion, there is conferred upon and guarantied to every citizen the right, political in its nature, to compete on equal terms with- every other citizen for any office or employment created for the benefit of the state. As a necessary corollary, I declare for the impoteneyof every legislative act whereby it is sought to abridge or work inequality in such right; and in so declaring I do no more than to announce my belief in and adherence to the doctrine to which this court has heretofore stood committed. Said Cole, J., in writing the opinion in Clark v. Board, etc., 24 Iowa, 266: “In view the principle of equal rights to all, upon which our government is founded, it would seem necessary, in order to justify a' denial of such equality of right to any one, that some express sovereign authority for such denial should be shown.” The case was one arising under the clause of the Constitution which declares that provision shall be made “for the education of all the youths of.the state through a system of common schools.” It appears that an attempt had been made to require all colored children to attend a school separate from that provided for the attendance of white children, and the right so to do was denied upon constitutional grounds. The opinion proceeds: “ All the youths are equal before the law, and there is no discretion vested in the board of directors, or elsewhere, to interfere with or disturb that equality.” The italics are mine. So, too, this was said in the course of the opinion in State v. Garbroski, 111 Iowa, 496: “ Equality in right, privilege, burdens, and protection is the thought running through the Constitution and laws of 'the state; and an act intentionally and necessarily creating inequality therein, *142based on no reason suggested by necessity or difference in condition or circumstances, is opposed to the spirit of free government, and expressly prohibited by the Constitution.” And again: The Constitution aims at equality of rights, privileges, and capacities, and the state has no favors to bestow, except such as, from the nature of the case cannot be possessed and enjoyed by all.”

Of course, I do not wish to be understood as in any sense making denial of the doctrine that, for the purposes of efficient and beneficial legislation, the lawmaking power may, where necessary, divide the subjects upon which such legislation is intended to operate into classes. Nor do I deny but that in many cases, where the peculiar relations or circumstances suggest the necessity or propriety thereof, the General Assembly may so legislate, either specially or generally, that a privilege shall result to individuals or to a class of individuals. Indeed, the very language of the Constitution contemplates that in proper cases such may be done. But it remains to be said that this power is confined in its operation to matters solely nonpolitical; for instance, such matters as are incident to social or industrial life, or which have relation in some form to the exercise of property rights. In no case has it ever been rightfully extended, nor can it ever be while the Constitution lasts, to those things the subject-matter whereof is by nature political, or which inhere in the essential fact of citizenship. And it is to be remembered that the power thus conceded to exist can only be exercised upon some apparent reason suggested by necessity. All the authorities agree that the distinction in dividing may.not be arbitrary, and must be based on differences which are apparent and reasonable.” State v. Garbroski, supra. “ Privileges may be granted to particular individuals Avlien by so doing the rights of others are not interfered with; but every one has the right to demand that he be governed by general mleá, and a special statute, which singles his case out to be regulated by different laws from those *143that are applied in all similar eases, would not be legitimate legislation, but would be sueb an arbitrary mandate as is not within the province of free government. Those who make the laws are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for the rich and poor — for the favorite at court and the countryman at the plow.” Cooley on Const. Lim. (6th Ed.), section 482. “Every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by restricting .the privileges of certain •classes of citizens, and not all others, when there is no public necessity for such discrimination, is unconstitutional and void.” State v. Goodwill, 33 W. Va. 179 (10 S. E. 285, 6 L. R. A. 623, 25 Am. St. Rep. 863); Sutton v. State, 96 Tenn. 696 (36 S. W. 697, 33 L. R. A. 589); Railway v. Ellis, 165 U. S. 150 (17 Sup. Ct. 255, 41 L. Ed. 666).

It will be observed, upon reading, that the opinion of the majority is made to turn upon the proposition that inci-‘ dent to citizenship there is no inherent right to hold office, either by election or appointment; and the conclusion is that, there being no right, and hence no privilege, there can be no invasion of the constitutional guaranty by providing in such matters through the medium of legislative fiat that one class of citizens may properly be subordinated to another class of citizens. As applied to this case the argument is wholly misplaced, and this I will proceed to demonstrate. To begin with, I deny that the case presents any question .as of the right to hold office or to be given employment. I‘ grant, freely and fully, that as applied to a particular citizen there is no inherent right to hold a particular office, or to have a particular employment. Accordingly it cannot be said that one is denied a constitutional privilege if, under the particular circumstances of his case, he is not permitted to enter upon the duties and to enjoy the emoluments of such office or employment. This is because — and I quote with approval the language of the Chief Justice —“ a pub-*144lice office has in it no element of property, but it is rather a personal public trust, created, for the benefit of the state, and not for the benefit of the individual citizens thereof.” The authorities cited in the majority opinion abundantly support the conclusion thus reached. Restated in another form, it is my contention that there is no power in the Legislature to compel the people of the state to make choice of their officers and employes from one class of citizens to the exclusion of another class, or all other classes; and it can make no difference whether the matter of choice is to be determined by a direct vote of the people or through an instrumentality which has been provided for that purpose. It is in no sense derogatory to the position that I occupy to make the further admission that the state may, when deemed necessary for the good of the service, prescribe reasonable qualifications for an office or employment, as, for instance, in the matter of age, physical condition, learning, etc.: all such are related, not to the matter of right, but to the question of personal fitness or competency. And, further, there is nothing in my position which conflicts in any way with the doctrine that the state may exercise the same freedom in making the choice of its servants and employes as belongs to an individual. As to this, if the office be elective, the people may choose by majority vote any one of the candidates. If an appointive office or employment, the appointing power may look over the field and freely make choice therefrom. And no one of the candidates. may be heard to complain that the citizen on his right or left, having an equal right with himself, was selected as the one to fill the place. It is quite a different thing to say, however, that the appointing power must — not may — arbitrarily, and based alone upon some past consideration, arrange the candidates for appointment or employment, each confessedly competent, in two ranks, and that no one from the rear rank shall be selected while any remains to be chosen from the front rank. Who is there who needs argument to help him *145.reach the conclusion that in such case the citizen candidates do not stand upon an equal footing, and that a special privilege is granted to those who occupy positions in the front rank over those who are forced to stand behind. Plainly enough, as it seems to me, there qrises out of such a situation po question of inherent or vested rights to hold onto an office or employment or to be inducted into an office or emplyment.

The field of the question with which we have to deal lies back of all that. 'It is whether citizens generally — granting the matter of competency — shall have the right to present themselves upon equal footing one with another for any office or employment arising under the Constitution. It is to the existence of such constitutional right that I commit myself, and in defense of which I declare for the utter futility of any effort on the part of the Legislature to take it away. In the relation between the state and the citizen this right stands as the counterpart of that right which the former has to call to its aid and service every citizen, and this without reference to rank or. any matter based upon past consideration, but having in view present conditions and needs alone. Moreover, if legislative power to grant privileges in character as proposed by the instant act were to be admitted, then it must follow of necessity that the sufficiency of the consideration necessary, to support such a privilege is determinable alone from the expression of the legislative will; and this must be true because, in such view, the ’Constitution is silent upon the subject. Accordingly we might be compelled to approve an act, if presented, providing that no black man should be considered for appointment while there remained white men willing to serve the state. We would be compelled to remain silent in the face of an act' providing that a preference should be given in all cases to graduates of the State University, or to citizens bom within the state," or to those who own property up to a certain fixed value, or to those who belong to some fraternal or*146ganization or religions sect. I admit the improbability of such extreme legislation. That is not the question; but rather,' would it be possible ? To again sum up in a sentence, it is the legislative right to enter such field and assume to act therein that I deny; and I deny, not only because the Constitution in express terms forbids that such shall he done, but because it would be inimical to every proper notion of free government among men — a government having for its cardinal doctrine that as to everything having relationship to citizenship there shall be equal rights for all and special privileges to none.

Again, it is said in the course of the argument of the majority opinion that “ the right to hold office can be no more a natural and a personal right, nor more sacred, than the right of suffrage, and it is the general holding of the courts that the right of suffrage is not a natural and personal right, but a political right.” As already stated, I deny that the question at issue is in any wise related to the right to hold office; but, if it were, there is no force in the argument as thus made. Indeed, this is irrefutably shown by what immediately follows in the opinion: It [the right-of suffrage] owes its existence to the constitution of civil government, and not to the personality of the individual.” And again: “ It is a right which is conferred, withheld, or limited at the pleasure of the people, acting in their sovereign capacity.” It will be observed that here an appeal is made to the power of the sovereign people. I do not find it necessary, even if I had the disposition, to question the power of the people, speaking directly upon matters of government, to either grant or withhold privileges; and I am willing to concede that by vote of the people the right to grant or withhold privileges may be delegated to the Legislature. But we are not dealing with the powers of the sovereign people. It is not a question whether there was power in the people to put into thé instrument, to stand as fundamental law of the state, a provision that only male citizens *147should exercise the right of suffrage. We are dealing here with a question of legislative power, and the limitations which the people themselves have put thereon. It is as if by the Constitution the right of suffrage was declared simply to be an incident of citizenship; that is, for instance, as though-the word “male” did not appear in the instrument. In the face of such a provision, and especially conceding, as our previous holdings do, that women are citizens, could any one be found to declare for the validity of an act of the Legislature providing that only males should exercise the right of suffrage? Or that only white men should vote? Or that only those who had served in the army or navy should voté?

That my position has abundant support in the authorities will be made plain by consulting the cases that I shall cite. I have already referred to the case of Clark v. Board. Let me add that it is quite evident to my mind that it did not occur to counsel who presented that case, or to the learned judge who wrote the opinion that, inasmuch as there was no absolute right on the part of children, black or white, to receive an education at the hands of the. state, a result directly the opposite from that reached was dictated by the record. State v. Garbroski, supra, was one arising upon section 1347 of the Code, which provides, in substance, that peddlers shall pay a county tax; but “ nothing in this section shall he held to’apply . . . to persons who have served in the Union army or navy,” etc. It was sought by the defendant to take his case out of the operation of the constitutional provision by making claim that the circumstances warranted the classification and privilege or immunity. The court refused to adopt such view, and it was said: “ The classification here attempted rests solely on a past and completed transaction, having no relation to the particular legislation enacted. All citizens are divided [by the act] into two classes — those who served in the army and navy thirty-five years ago, and all those who did not. True, as sug*148gestee!, the veterans came from no particular class ; hut the trouble with this statute is that it attempts to make of them a class in legislation, in the operation of which there can he no substantial distinction between them and others. In present conditions and circumstances there are no differences between them, in their relation to society and the administration of the law, and other citizens of the state.” State v. Whitsom, 122 Wis. 110 (99 N. W. 468), which case is put aside by the majority opinion as not in point, was an action involving the construction of a statute exempting ex-soldiers from payment of a tax. The statute was condemned, and' in the opinion I find this language: No one denies that to those who sacrificed their comfort, and often their health and vigor, to the public, there is.a legitimate and proper feeling of gratitude from the entire community, which each member thereof should appreciate; hut this does not answer the question whether by Constitutions enacted half a century or more ago there was conferred upon agents of the public — the Legislature — authority to coin this gratitude into all forms of favor, whether by direct donation or by exemption from the duties and burdens resting upon other citizens after these men had returned from their military service and again become as they were before part of the mass of citizenship.” And it is said arguendo that “ for the purpose of performing work for a government the ex-soldier stands upon no different footing from the civilian.” See, also, the following cases, in which was involved the question presented by the Grarbroski ease; State v. Shedroi, 75 Vt. 277 (54 Atl. 1081, 63 L. R. A. 179); Ex parte Jones, 38 Tex. Cr. R. 482 (43 S. W. 513); Com. v. Snyder, 182 Pa. 630 (38 Atl. 356).

Eeference is made in the majority opinion to the case of Brown v. Russell, 166 Mass. 14 (43 N. E. 1005). I do not agree with the Chief Justice as to the effect of the holding in that case. The question there presented was as follows : Can the Legislature constitutionally provide that *149certain public offices and employments which it has created shall be filled by veterans in preferment to all other persons, whether the veterans are or are not found or thought to be actually qualified to perform the duties of the offices and employments by some impartial officer or board charged with some public duty in making the appointments % ” And the court said: Public offices are created for the purpose of effecting the ends for which government has been instituted, which are the common good, and not for the profit, honor, or private interest of any one man, family, or class of men. In our form of government it is fundamental that public offices are a public trust, and that the person to be appointed should be selected solely with a view to the public welfare. ... We are of opinion that [the statutes], 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.” Subsequent to the filing of the opinion in Brown v. Bussell, the Legislature took the opinion of the justices of the Supreme Court upon the question of the constitutionality of the civil service law and rules of that state creating a preference in favor of veterans in the labor service of the state. Pour of the justices certified that such might be done, and three certified that it could not be. I cannot within reasonable limits discuss the questions presented to the court or the reasoning of the answers made. -The opinions will be found in 166 Mass. 589 (44 N. E. 625, 34 L. R. A. 58).

The case of Evansville v. State, 118 Ind. 426 (21 N. E. 267, 4 L. R. A. 93), on principle, is in point. The legislative act there under consideration provided that eligibility for appointment to the board of commissioners on fire and police should be based on five years’ residence in the city. Accordingly there were two classes, those who had been residents five years and those who had not; and as to *150this it was said: “To the first class, privileges and immunities are granted which upon the same terms do not equally belong to the second class.” It will be observed that the ease differs from the instant case only in the fact that there the privilege granted was without qualification, while here it is made dependent only upon the fact that an ex-soldier presents himself for the office or employment in question. It is ,to be remarked that it did not occur to the Indiana court that the classification attempted could be justified on •the ground that no one had- a natural or personal right to hold office. The legislative act there in question also classified the citizens of the city as to the positions and employments on the police force and in the fire department by requiring that all officers and employes be selected from the two leading political parties found in the city. As to this the court says: “ It is well known that members of probably a half dozen political parties reside in the city, a;nd that a large number of citizens reside therein who belong to no political party. All such are disqualified. If it was competent to require as a test . . . membership in a political party or organization, it is difficult to understand why a religious or any other test may not be made.” And it was held that the act contravened not only the spirit but the letter of the Constitution. See, also, State v. Denny, 118 Ind. 449 (21 N. E. 274, 4 L. R. A. 65). That was an action brought to test the constitutionality of an act similar to the one involved in the Evansville Case, supra, and the same conclusion was reached. In the course of the opinion it was said that “ the right to hold public office is a right which be-, longs alike to every voter residing within the political division of the state from which such officer is chosen, unless otherwise provided by the Constitution.” I assume that it was not within the intended meaning of the language used by the court that any particular voter had any personal or natural right to any particular office, but rather that he had *151the right common to all others to present himself as an applicant for any office to which he chose to aspire.

Of another class, but involving the same principle, is the case of Fiske v. People, 188 Ill. 206 (58 N. E. 985, 52 L. R. A. 291). In that case the court considered an ordinance of the city of Chicago which undertook to provide for a preference in favor of union labor, in connection with all work to be done under contracts with the city, and it was held that under the Constitution of that state — similar in its provisions to ours — the ordinance was void. See, also, Adams v. Brenan, 177 Ill. 194 (52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222), and Holden v. Alton, 179 Ill 318 (53 N. E. 556); Noel v. People, 187 Ill. 587 (58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238). In the case of Van Harlingen v. Doyle, 134 Cal. 53 (66 Pac. 44, 54 L. R. A. 771), the court considered an act of the Legislature forbidding boards • of supervisors from publishing-official matter in a newspaper which had not been established in the county one year. There, too, the constitutional provision was the same as ours, and the act was held to be void. The court said: “ The act confers particular privileges upon certain publishers, and imposes peculiar disabilities and burdensome conditions on other publishers, all of whom stand in the same relation to the law. It is not within the power of the Legislature to evade the operation of the constitutional provisions by creating an arbitrary and unnatural distinction between persons thus related to the law.” I cannot undertake to carry further my discussion of the cases. The following, among others that might be cited, will be found to lend support, in principle at least, to my position: Johnson v. Goodyear, 127 Cal. 4 (59 Pac. 304, 47 L. R. A. 338, 78 Am. St. Rep. 17); Blake v. McClung. 172 U. S. 239 (19 Sup. Ct. 165, 43 L. Ed. 432); State v. Ins. Com'rs, 37 Fla. 564 (20 South. 772, 33 L. R. A. 288); Maynard v. Association, 92 Fed. 435 (34 C. C. A. 438); In re Keymer, 89 Hun, 292 (35 N. Y. Supp. 161); *152In re Dorsey, 7 Port. 293; Luman v. Hitchins, 90 Md. 14 (44 Atl. 1051, 46 L. R. A. 393); State v. Washburn, 167 Mo. 680 (67 S. W. 592, 90 Am. St. Rep. 430); Harmon v. State, 66 Ohio St. 249 (64 N. E. 117, 58 L. R. A. 618).

I desire now to take brief note of the cases cited in the majority opinion, and consider how far my position is opposed by them. If I have read them aright, no one of them is authority for the conclusion in support of which they are cited. State v. Miller, 66 Minn. 90 (68 N. W. 732), may serve for a precedent, but it is not an authority. The opinion occupies but a few lines, and consists of a bare statement to the effect that a law giving preference to ex-soldiers in matters of public office or employment is not violative of the Constitution. There is no reasoning, nor is there citation of authority. The court contents itself by merely saying that the county attorney states that he was directed by the county board to take the appeal, . . . but he suggests no reason why the act is unconstitutional. On the contrary, he admits that similar statutes have been held valid in other states. No provision of the Constitu-' tion- occurs to us with which the act conflicts.” The case relied upon as the leading one is In re Wortman, 2 N. Y. Supp. 324. Without stopping to discuss the weight 'that should be accorded the decision of an intermediate court, my reading persuades me that the case is not an authority on the question here involved. The laws of New York provided for a preference to veterans in the matter of appointments under the civil service laws of the state. Wortman, a veteran, brought his action — a proceeding for mandamus — to compel his appointment to the office of street inspector in the city of Buffalo. The application was defended against upon several grounds, but the only one having any pertinency here was that the law providing for preference was in conflict with section 1 • of the fourteenth amendment to the federal Constitution. That section prohibits the state from making or enforcing “ any law which shall *153abridge 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.” The court undoubtedly had in mind the thought which is given expression to in the majority opinion in the instant case, -that “ the privileges and immunities here [in the fourteenth amendment] protected are those of citizens of the United States, as distinguished from the citizens of a state, and the fourteenth amendment deals only with the rights of citizens of the United States as such.” This I take to be the situation, because the court, after quoting the fourteenth amendment, proceeds to say that the only provision thereof which by any possibility could be relied upon was the last, “ nor deny ... the equal protection of the laws/’ And it is then declared that the giving of a preference to veteran soldiers cannot be considered as a denial of equal protection. It is true that some language is used from which it may be inferred that the court undertook to write it down that no constitutional provision existed anywhere to which the law in question was vulnerable. But I think it fair to say that the loose and unguarded expressions found in the opinion ought to be given weight only as the same tend to a determination of the question the court had before it for decision. I have not gone to the reports to ascertain in what, if any, cases the Wortman case has been relied on as an authority. As to the other cases from the New York courts cited in the majority opinion, it is to be said of each that they were decided in accordance with a constitutionál provision of that state declaring for a preference to veterans. Accordingly they have no value as authorities here. The Kansas case, as pointed out by the Chief Justice, was decided under a Constitution differing from ours. In no one of the remaining cases was any constitutional question raised or attempted to be decided.

*154In my judgment the cases of McCormick v. Rusch, 15 Iowa, 127, and Hannahs v. Felt, 15 Iowa, 141, do not lend any strength t'o the majority view. In the former no more was involved than the power of the Legislature to add to causes which might be assigned for the continuance of an action the fact that the defendant was absent in the military service of the general government. _ As the operation of the act was uniform, it was held that it was not assailable on constitutional grounds. My reading of the opinion in Hannahs v. Felt, supra, does not disclose that the constitutionality of the act there drawn in question was passed upon by the court. Speaking now of the case referred to by the Chief Justice involving the act which permitted citizens of the state in the military service to cast their votes outside of the state, I shall not attempt to discuss the question of the validity of the act, nor shall I say but little concerning the opinion as written. We all know that it was a time of dire distress, the clouds of civil war seemed about to overwhelm the government, and the vote of every loyal citizen was needed to enable it to hold up its hands. In this extremity the Legislature passed the act, and this court refused to condemn it, because unable to place its finger upon the exact language of the Constitution which was clearly and palpably violated. The opinion has passed into history as an example of what courage can impel even the judicial officers of a state to do in the face of an internecine struggle threatening dissolution of the government and the destruction of national life. I doubt if it will ever come to be regarded as a sound exposition of constitutional law.

In addition to what I have said, I desire to add that I am fully persuaded that the instant act is unconstitutional upon the further ground that the classification attempted is discriminative, as well as arbitrary and unreasonable. I have already taken so much time that I can justify no more than a mere statement of the point, and, indeed, it would seem that that ought to be sufficient. The *155act gives a preference only to soldiers of the War of the Rebellion.- It is well known that we have in our midst a remnant of the soldiers who engaged in the War with Mexico, and we have an army of men who followed the flag in the more recent War with Spain: Now if service in the army or navy could be made a ground of distinction such as to justify legislation granting a privilege of the character here intended, upon what possible theory can there be constitutional warrant for drawing a line between the men who fought at Vicksburg under Grant and those who followed Roosevelt up San Juan Hill ? Certainly no one will claim that the one army was more conspicuous for bravery than the other. There is a difference in the fact situation in this: that the service in the one war was of longer duration and more arduous in character than the other. There is the further difference that the soldiers of the one war are now old men, while in the matter of the other the men are still young or in middle life. But out of such considerations can arise no ground upon which to plant an invasion upon constitutional rights. The soldier of 1861-65 is no more a citizen than is the soldier of the War with Mexico or the soldier of the War with Spain. From the viewpoint of the Constitution they are all citizens, and it is the mandate of The People,” speaking through that instrument, that there shall be equal rights for all and special privileges to none.

I am authorized to say that Mr. Justice Weaver concurs in the conclusions for which I contend.