(Dissenting.) — I cannot concur in the decision, nor with all the opinion, in this case. I do not believe it to be within legislative competency to arbitrarily deny to certain citizens mere privileges which are enjoyed by others of the same class. This, in my judgment, is the necessary effect of the decision though not of the opinion. It makes no- difference whether the privileges are conferred by natural, civil, com*595mon, constitutional, or statutory law; they cannot be taken arbitrarily from certain individuals, if others of the same class are allowed to enjoy them, without violating the constitution. Ours is “a government of laws, and not of men.” I am, therefore, of the opinion that if the provisions of the act here in question are held to be lawful provisions, and to be retroactive, then four citizens of this state are deprived arbitrarily of rights, and denied privileges, which are enjoyed by all other citizens of the same class. I know the majority opinion does not concede, but denies, that the act is even retroactive; but to this I cannot agree, and shall try to state the reasons which induce me to believe it is retroactive.
I do not doubt, much less deny, the power of the Legislature to fix any reasonable qualifications upon the privilege of holding office, and to deny the privilege to any citizen who does not possess the qualifications so fixed; but I do deny the power of the Legislature to take arbitrarily from certain individuals privileges enjoyed by others of the same class. I do not believe that an act of the Legislature, attempting so to do, is made valid by a classification of the citizens which did not then, never did, and never can, apply to any other citizens than those intended to be discriminated against. Such I believe is the effect, if not the purpose, of the provisions of the act in question. Experience may demonstrate fitness or unfitness to discharge given official, or nonofficial, duties; but it certainly does not tend to disqualify one for the discharge of duties which he is accustomed to discharge, nor can it be for the public good to deny the right to those who have experience; and this is the only thing that distinguishes these four incumbents from other citizens qualified to' be elected to *596office. This is both an unwarranted and unreasonable classification.
The qualification for holding office must be a reasonable one; it cannot be an arbitrary or an unreasonable one. Is it a reasonable qualification to say that only inexperienced persons are eligible, or that three years’ experience disqualifies? To give the law a prospective, and not a retrospective, operation, the qualification is reasonable, because the-public is benefited thereby; the officer then has no temptation to use the office to perpetuate himself in office, or to build up a political machine at the expense of the public; this he knows when he accepts the office and assumes the burdens and duties; if, however, the. law under which he was elected and has served allowed him to succeed himself, and he has served three years, that service cannot be improved,. changed, or recalled by subsequent statutes. Such is not within legislative competency. Omnipotence itself cannot do this. The state having granted these four officers the right and privilege to hold these offices for four years, as well as the right to succeed themselves, and they having accepted the grant and served for three years, the state cannot now lawfully take from them the right to serve the remaining year, nor that to succeed themselves. As was said by Justice Johnston in the case of Fletcher v. Peck, 6 Cranch, 143, 3 L. Ed. 162, a state cannot revoke its grant. It cannot do so, from the reason and nature of tilings, which imposes “laws even on Deity.” Marshall, C. J., spoke on the same subject .as follows: “The principle asserted is that one Legislature is competent to repeal any act which a former Legislature was competent to pass, and that one Legislature cannot abridge the powers of a succeeding Legislature. The correctness of this principle, so far as respects gener*597al legislation, can never be controverted. But, if an act be done under a law, a succeeding Legislature cannot undo it. The past cannot be recalled by the most absolute power.” — 6 Cranch, 136, 3 L. Ed. 162.
“It is, then, the unanimous opinion of the court that in this case, the estate having passed into the hands of a purchaser for a valuable consideration without notice, the state of Georgia was restrained, either by general principles which are too common to' our free institutions, or by the particular' provisions of the Constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises SO' purchased could be constitutionally and legally impaired and rendered null and void.” — 6 Cranch, 139, 3 L. Ed. 162.
Here, the Legislature has attempted to- do what the Legislature of Georgia attempted to do; that is, to make an act or deed void, when it was valid and lawful when done or executed. This the courts and text-writers say cannot be done lawfully and constitutionally, because “the past cannot be lawfully recalled by the most omnipotent power, and is contrary to the principles which are common to our free institutions.”
It will be noticed that, if these four incumbents are disqualified from succeeding themselves, they are, a fortiori, disqualified from holding office for the remaining year. The disqualification is from holding office, and not from being a candidate thereto. I do not believe that any one will contend that the Legislature could constitutionally thus arbitrarily remove these men from office; yet if the statute applies to- them, and to their present terms, then the attempt to remove them from office is more certain, looking to- the language of the act, than is the attempt to prevent them from succeeding themselves. Moreover, I submit, if the Legislature can thus *598arbitrarily deprive these four incumbents of the right or privilege to succeed themselves, then it can and has arbitrarily disqualified them from holding office for the remaining part of their terms.
I am not unmindful of other provisions of the act, which fix the term of office at four years, and which are therefore in conflict with this construction of the act; but the act certainly gets no- virtue by being inconsistent with itself. The Legislature, of course, cannot constitutionally deprive a citizen of a vested right, by any kind of act, or of classification of persons or things, whether reasonable or unreasonable. It can, however, deprive him of a statutory right or privilege not vested, if for the public good, and if done by a classification of persons or things which is reasonable. It cannot, however, deprive him of a mere privilege or immunity, though for the public good, if done by means of a classification of persons or things which is arbitrary or unreasonable. This is not equal protection of the law; it is class legislation, which our Constitutions, state and federal, abhor.
The prime error in the majority opinion is in the failure to observe this distinction. Mr. Cooley well states the law when he says: “A statute would not be constitutional which should proscribe a class or a party for opinion’s sake, or which should select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens, from which others in the same locality or class are exempt.” — Const. Lim. (7th Ed.) pp. 556, 557.
A law directing all males in jail to' have their hair cut to a uniform length of one inch, mentioning no persons, class, or race, other than males in jail, was held void, because it could not apply,’ and was not intended *599to apply, to any persons except the Chinamen who were in jail. — Lin Sing v. Washburn, 20 Cal. 534, Brown v. Haywood, 4 Heisk. (Tenn.) 363, and Yick Wo’s Case, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, collect .many cases like the one in question. It is as certain that the provisions of the act in question, if given a retroactive effect, cannot apply to or include any person, except the four incumbents, as to eligibility to office at the next general election.
It may be an accepted theory that a citizen is not “punished,” within the meaning of that word as used in Bill of Bights, § 7, when he is thus arbitrarily denied the right to be a candidate for one of the most honorable and lucrative offices; but the opinion and experience of all mankind is against the theory. I believe that the best-reasoned cases are against the “accepted theory,” and are in line with the common experience of mankind. I believe that the genus homo of American citizenship, if it could speak, would say a man does suffer who is arbitrarily denied the right and privilege of holding one of the most honorable and lucrative offices in this state, or of being a candidate therefor. If Dorsey, of 7 Port. 293, Cummings, of 4 Wall. 277, 18 L. Ed. 356, and Garland, of 4 Wall. 333, 18 L. Ed. 366, were punished by the acts there under consideration, I fail to see why Brassell, of this case, is not punished by the act in question.
The following quotations are from Hawker’s Case, 170 U. S. 203, 18 Sup. Ct. 573, 42 L. Ed. 1002: In Cummings v. Missouri, 4 Wall. 277, 321, 18 L. Ed. 356, the court said: “The theory upon which our political institutions rest is that all men have certain inalienable rights, that among these are life, liberty, and the pursuit of happiness, and that in the pursuit of happiness *600all avocations, all honors, all positions, are alike open to' every one, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.”
In Ex parte Garland, 4 Wall. 333, 377, 18 L. Ed. 366, which involved the validity of an act of Congress requiring, among other things, a certain oath to be taken as a condition of the right of one to appear and be heard as an attorney at law by virtue of any previous admission to the bar, the United State Supreme Court, referring to certain clauses of the act relating to past conduct, said: “The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is' to exclude them from the profession of the law, or at least from its practice in the court of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of «life for past conduct can be regarded in no other light than as punishment for past conduct.”
Our Bill of Rights provides, among other things: “That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”
“No person shall be punished but by virtue of a law established and promulgated prior to the offense and legally applied.”
“That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government as*601sumes other functions it is usurpation and oppression.”
“That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Bights is excepted out of the general powers of government, and shall forever remain inviolate.”
In Dorsey’s Case, he was by the act in question, denied the right to practice law because he had sent a challenge to fight a duel, which was made a crime by the act, and the act because retrospective, or to the extent only in which it was retrospective, was held void, and it was then (in 1838) decided that: “The Declaration of Bights is the governing and controlling part of the Constitution, and with reference to this are all its general provisions to be expounded, and their operation extended or restrained. The Declaration itself is nothing more than an enumeration of certain rights, which are expressly retained and excepted out of the powers granted; but as it was impossible, in the nature of' things, to provide for every case of exception, a general declaration was added, that the particular enumeration should not be construed to disparage or deny others retained by the people. What those other rights are, which are thus reserved, may be readily ascertained by a recurrence to the preamble to the Declaration of Bights. The object to be attained by the people, when assembled in convention, was not' the formation of a mere government, because such might, and in many cases would, be arbitrary and tyrannical, although democratic in its form. It was to form a government with clearly defined and limited powers, in order that The general, great and essential principles of liberty and free government might be recognized and established.’ The Gen*602eral Assembly is not expressly prohibited from enacting laws requiring political test oaths to be taken, nor from excluding some of its citizens from the pursuit of certain trades or avocations, yet no one would contend that any such laws could be operative, because it is evident that they are adverse to the principles of liberty and free government.”
Is not the provision of the act in question, so far as this appellant is concerned, adverse to principles of liberty and free government? I ask, under the decision of the majority, is not appellant denied privileges which other citizens in the same class are allowed to enjoy, and so denied, not because of any wrong which he has done, but because he has done what the law authorized him to do?
In Dorsey’s Case, it was further said, per Goldthwaite, J.“I have arrived at the conclusion (satisfactory to myself, at least) that the authority to pass disqualifying laws, whether affecting the citizen as an individual, or as an officer, is derived from the sections of the Constitution quoted, and exists in no other cases. * * * I have omitted any argument to show that disqualification from office, or from the pursuit of a lawful avocation, is a punishment; that it is so is too evident to require any illustration; indeed, it may be questioned whether any ingenuity could devise any penalty which would operate more forcibly on society.” — 7 Port. 365, 366.
Similar language was used by the other Justices who wrote in this case, and if Dorsey’s Case does not decide that disqualification for holding office on account of past acts, which were lawful when performed, is punishment, then I confess I do not understand the opinion, or the decision, the English language, or the Constitution.
*603The cases relied upon in the majority opinion, in my judgment, are not in point, for the reason that the disqualifications in those cases were crimes and went to the character of the citizen, while the previous convictions or the past acts went only to the evidence to establish the crimes. This was emphasized in the majority opinion in Hawker’s Case, 170 U. S. 196, 18 Sup. Ct. 573, 42 L. Ed. 1002, where it was said: “If the Legislature enacts that one who has been convicted of crime shall no longer engage in the practice of medicine, it is simply applying the doctrine of res judicata and invoking the conclusive adjudication of the fact that the man has violated the criminal law, and is presumptively, therefore, a man of such bad character as to render it unsafe to trust the lives and health of citizens to his care. That the form in which this legislation is cast suggests the idea of the imposition of an additional punishment for past offenses is not conclusive. We must look at the substance, and not the form, and the statute should be regarded as though it in terms declared that one who had violated the criminal laws of the state should be deemed of such bad character as to be unfit to practice medicine, and that the record of a trial and conviction should be conclusive evidence of such violation. All that is embraced in these propositions is condensed into the single clause of the statute, and it means that and nothing more. The state is not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character. The vital matter is not the conviction, but the violation of law. The former is merely the prescribed evidence of the latter.”
This same line of thought is applicable, and is controlling, in the other cases cited, including that of our *604own court. Here appellant has committed no crime and no wrong, being a man of unimpeachable character, and his three years’ experience in the office is the only reason assigned for disqualifying him. I submit that the reason is unnatural and arbitrary. What was said. by Marshall, C. J., in Fletcher v. Park, 6 Cranch, 137, 138, 3 L. Ed. 162, is apt here and should be remembered: “Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the Constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the states are obviously founded in this sentiment; and the Constitution of the United States contains what may be deemed a Bill of Rights for the people of each state [some of which are]: -No state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.’ ” — 6 Cranch, 137, 138, 3 L. Ed. 162.
The act of Georgia, there being considered, was an act repealing an act of a former Legislature, which it had the undoubted right to do; but, in doing so, it, like the one in question, attempted to annul acts and deeds done under the former statute. As to such acts or deeds of the past, the court said the most omnipotent power could not recall the past, and make that void which was valid when done. That statute was not an ex post facto law, or a bill of attainder*, nor did it attempt to impair the obligation of a contract; but the court said it had the same effect as laws of that kind, and. was *605therefore void. So, in this case at hand, the act is not in terms within the letter of any of the acts expressly prohibited by the state or federal Constitutions, yet it is within the spirit of several of the provisions and attempts to do indirectly what the Constitutions say shall not be done.
I concede that offices are mere agencies of trust, and are not property, as between the officer and the state or the public, that unearned salaries or compensation are not property, and that officers have no contract right to hold or continue in office. I also agree that an office created by the Legislature, may, at the same will, be .abolished by subsequent statute, and the term of office thereby extinguished, and the right to the salary destroyed ; but a very different question is presented where the office is continued, and the officer arbitrarily removed, or arbitrarily declared ineligible. Due process .and equality of the law prevent the Legislature from doing this. To deprive a citizen of a right or a privilege arbitrarily is to deprive him illegally; to so deprive him is injurious both to him and to the public. It was said in the former case of Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, that: “The very essence of civil liberty is the right of every individual to claim the protection of the law.”
The Supreme Court of the United States and this court have frequently said that the Bills of Rights were intended to secure the individual from the arbitrary exercise of even the very powers of government which the people conferred on the government. — Bank of Columbia v. Okely, 4 Wheat. 244, 4 L. Ed. 559.
“For centuries Bills of Rights have been the English speaking peoples’ chief defenders against the aggression .and encroachments of all monarchs, crowns, and sover*606eigns upon the rights of the citizens. At the formation of all our American governments, these Bills of Rights were each named, selected, and reserved by the people who formed the government as the ‘home guards’ and ‘defenders’ to protect their lives, liberties, and properties from all illegal assaults by the government which they had created. To make doubly sure of this, they often inserted in their Constitutions provisions like 36 of ours, which reads as follows: ‘That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government and shall forever remain inviolate.’ ”
“These cardinal principles of the Magna Charta are memorable and revered, because of their assertion of precious truths, so necessary to the individual happiness, liberty, and life of the citizen. They are historic in their associations. They have served humanity faithfully as beacon lights in the progress of liberty and righteousness, and are the controlling parts of our fundamental law.”
“Lord Chatham said that these provisions of the Magna Charta were worth all the classics, because they protected the personal liberty and property of all men, by giving security from arbitrary imprisonment and spoliation. He further said that to have procured this great charter, to have preserved and matured it, constituted the immortal claim of England upon the esteem of mankind. Under its provisions all persons, from those of the highest station to the humblest individual, are equally bound to render it obedience. All men and the sovereign are governed by this general law.” — 7 Mayf. Digest, 165.
*607The very principle now contended for by me has been well decided and well expressed, and based on the same authority on which I base my conclusions. That court has said: “In Commonwealth v. Jones, 10 Bush (Ky.) 735, that court, referring, to the provision in the Constitution of Kentucky depriving any person who fought a duel of the right to hold an office,- said: ‘It, in effect, dispossesses him of a right which the Supreme Court of the United States terms inalienable (4 Wall. 321, 18 L. Ed. 356), takes from him "rights, privileges and immunities to which he was theretofore entitled, and strips him of one of the most valuable attributes of citizenship. The word ‘deprived’ is used in this section in the same sense in which it is used in section 12 of the Bill of Bights and in the fifth article of amendment to the federal Constitution.’ ” — Taylor v. Beckham, 178 U. S. 599, 20 Sup. Ct. 890, 1009, 44 L. Ed. 1187.
Judges Cooley and Story have construed the matter as follows, and I know of no better authority than these two, certainly when- they agree. Judge Cooley, speaking for the Supreme Court of Michigan in People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103, after observing that some things were too plain to be written, said: “Mr. Justice Story has well shown that constitutional freedom means something more than liberty permitted; it consists in the civil and political rights which are absolutely guaranteed, assured, and guarded, in one’s liberties as a man and a citizen — his right to vote, his right to hold office, his right to worship God according to the dictates of his conscience, his equality with all others who are his fellow citizens. All these guarded and protected, and not held at the mercy and discretion of any one man or any popular majority. — Story, Miscellaneous Writings, 620. If these are not now the absolute *608rights of the people of Michigan, they may he allowed more liberty of action and more privileges, but they are little nearer to constitutional freedom than Europe was when an imperial city sent out consuls to govern it.”