LEGAL ANALYSIS 107 



would the court have reached if the claim of the police officer had 

 been that he was suspended or dismissed because of his racial back- 

 ground? 



In a later case dealing with employment by a state institution, 

 Nostrand v. Little ^"^^ finally decided in 1961, the court was again 

 faced with constitutional questions surrounding public employment. 

 In fact, the earlier decision of the Washington court in this same 

 case, rendered in 1959,^"*^ had been appealed to the United States 

 Supreme Court and there, after hearing, remanded to the Washington 

 court for further proceedings to determine a state law question which 

 had not been raised in the earlier stage of the proceedings. ^"^^ The 

 United States Supreme Court deemed this question (whether the 

 litigants were entitled to a hearing under certain circumstances) as 

 essential to a decision on the constitutional questions presented. In 

 the second phase of the case before the Washington court, the opinion 

 refers to the Aberdeen policeman case in these terms: 



"This court has very recently held . . . that, in the absence of civil 

 service or other tenure rights, public employees may be discharged by 

 their employers without any reason being assigned therefor. There is no 

 vested right to public employment in the state of Washington unless the 

 employee has some tenure rights provided for by law. Since the power 

 to discharge is absolute except for such tenure rights, the discharged public 

 employee is not entitled to a hearing regarding the reason for his dis- 

 charge."i49 



Despite the possible inference from this language that constitu- 

 tional considerations might have been thought immaterial in the 

 mind of the Washington court, the opinion then proceeds to discuss 

 the constitutional questions, deciding, incidentally, that the employees 

 could be required to sign the loyalty oath which was the subject 

 matter of the litigation. 



The difficulty of this right-privilege approach was illustrated at 

 the other end of the regulatory range in an early case dealing with 

 a municipal ordinance which would have required the examination 

 and licensing of those who engage in the business of shoeing horses. 

 The court in this case. In re Aubrey ^^^ decided in 1904, first dif- 

 ferentiated the regulation of the medical profession as necessary to 



146. 58Wn. 2d 111,361 P. 2d (1961). 



147. 53 Wn. 2d 460, 335 P. 2d 10(1959). 



148. 362U. S. 474 (1960). 



149. 58 Wn. 2d at 123; 361 P. 2d at 558, 559. 



150. 36W^ash. 308, 78 Pac. 900(1904). 



