(dissenting).
I subscribe to the views of Mr. Justice McDonough. I believe also that the main opinion overlooks the letter and spirit of our own Constitution. Article VIII, § 15, in language as strong or stronger than that found in S.B. 235, prohibits, as to the judicial branch of government, employment of relatives under any circumstance when a judge is appointed or elected, whether or not the relative has been employed by the court for 27 years or any other period. That section reads as follows:
“No person related to any judge of any court by affinity or consanguinity within the degree of first cousin, shall be appointed by such court or judge to, or employed by such court or judge in any office or duty in any court of which such judge shall be a member.”
Here is a constitutional interdiction, which most certainly recognizes the public welfare aspect of the problem. Who will declare this Constitutional provision unconstitutional? Every argument advanced in the majority opinion is as apropos to this provision as it is to S.B. 235. The clerk, the stenographer, or any other employee of a court loses his job when a judge related to him takes the bench, — even though he may have been employed for 27 years as Mr. Backman was, and even though he may have paid for many years into a state retirement fund. Yet the majority opinion says that a statute that prohibits nepotism in the Executive branch of government is constitutionally offensive and void, immunizing against loss of employment the clerk, the stenographer, or any other employee of a commission or board.
The opinion would allow continued employment as long as the employee, not his employer, pleases. If he has a vested right to his job, how could the Board refuse to renew his yearly contract? All of us have a right to work, if we can get a job, if we are capable of holding one, if we don’t get fired, if we don’t embezzle our employer’s funds, — ad infinitum. Another “if” that affects the plaintiff’s' job is the statutory *170directive that makes consanguinity a matter of disentitlement. Would the majority go so far as to say that because some one had built up a long tenure and had paid into a retirement fund, that he would have a vested right to teach communism where a statute prevented it? If the legislature doesn’t want relatives working for relatives in public employment where taxpayers’ money pays the freight, it would seem to be the business of the legislature, just as it is its business to say that we judges cannot sit for more than ten years on the bench without being re-elected, even though we may have many years behind us, have paid into the state retirement fund, and great hardship would accrue in the loss of employment.
The majority, it seems, has gone on a semantic voyage, forgetting to take the statute along as a passenger. It theorizes that personal liberties and property rights must be safeguarded, and then arbitrarily says in this case they are such as cannot be limited by the police power because such limitation would bear no “reasonable relationship to the seriousness of the evil which is sought to he corrected.” It is suggested that such a conclusion is not justified.
■ The majority sees no harm in continuing the employment of one whose relative becomes his employer. I may see little' harm in it either but the legislature did, and it is Ú10 answer--to say the bounds of reason were exceeded because we see no harm in the situation. The main opinion stresses the hardship that the act produces, but harsh results, as such, cannot render legitimate legislation impotent for that reason. It also laments the plight of public servants, guessing that individuals would shun public office were we to declare the act valid. The answer is simple: If public office be unbearable under existing laws, no one need seek or hold it. The very liberty about which so much is said, guarantees alike the right of non-labor as it does that of employment. Lost jobs accrue to thousands each time the political pendulum makes its sweep. Hardly are they made secure by contribution to a fund, unless protected by job-security legislation.
The Chief Justice’s opinion adds but a conviction that those participating in and having a vested interest in some sort of retirement plan have a vested right in their employment! Mr. Justice McDonough answers such contention completely.
For the Chief Justice to hold that the act . is void because it would interfere with an interest in a retirement fund, is to hold that no statute can be passed to prevent or limit a public servant’s employment if he happens to participate in some sort of retirement plan, — and if that is the law, I would favor a plan for retirement at birth. If that be the law, any anti-nepotism law would be emasculable by the simple device of creating and contributing to a fund. If that be *171the law, the Board would have to hire an employee against its will.
An examination of the authorities makes it clear that nepotism in public employment is a legitimate subject for legislative attention.1 As has been pointed out, the framers of our Constitution recognized the public welfare aspect of the practice as to one of the three branches of government. S.B. 235 is no different than the Constitutional provision against nepotism, except as it is applicable to the executive rather than the judicial branch of government, and it should be upheld, particularly where every presumption is indulged in favor of constitutionality and in favor of protecting taxpayers’ money from abuse.
The main opinion says the vice at which anti-nepotism statutes are aimed is inefficiency in public employment by favoring relatives. This may be one of the aims of anti-nepotism acts, but I believe they are directed also, and more probably, against favoritism in employing kinfolk to the exclusion of other employables, when the compensation comes from taxes. At the root of anti-nepotism appears to lie the traditional and time-honored philosophy of our people that every one, having the ability and initiative, has an equal opportunity to advance his fortune, — ultimately, even, to the Presidency, — without unreasonable interference or roadblock born of favoritism toward kinship.
. Barton v. Alexander, 27 Idaho 286, 149 P. 471.