Commonwealth Ex Rel. Maurer v. O'Neill.

Dissenting Opinion by

Me. Justice Allen M. Stearne:

The majority have reached what in my opinion is an incongruous and untenable legal position. They have decided that while an act of assembly granting a preference of a ten point bonus in civil service examinations of war veterans is constitutional when applied to original appointments it is unconstitutional when applied to promotional examinations.

The Act is the Veterans Preference Act of May 22, 1945 P. L. 837, 51 PS 492.3, as amended. In express words it provides: “Whenever any soldier shall successfully pass a civil service appointment or promotional examination . . . such soldier’s examination shall be marked or graded an additional ten points above the mark or grade credited for the examination, and the total mark . . . thus obtained . . . shall determine his standing on any eligible or promotional list, certified or furnished to the appointing or promoting power.”

As the Act unequivocally applies to both appointment and promotional examinations, it is impossible *376 for me to discover why the act is constitutional to appointments but unconstitutional to promotions.

This Court has ruled upon the constitutionality of veterans preference acts: Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568 , 3 A. 2d 701 ; Carney et al. v. Lowe et al., 336 Pa. 289 , 9 A. 2d 418 . The veteran first must possess the minimum qualifications to perform the duties involved. The preference is not permitted to be employed as an aid in establishing eligibility. The theory on which the constitutionality of a veteran’s preference is sustained is that “. . . there must be some reasonable relation between the basis of preference and the object to be obtained, the preference of veterans for the proper performance of public duties” (emphasis supplied) : Commonwealth ex rel. Graham v. Schmid, supra. Chief Justice Kephart said in that case, pp. 573, 574: “. . . it is not unreasonable to select war veterans from candidates for office and to give them a certain credit in recognition of the discipline, experience and service represented by their military activity.” .. . (emphasis supplied)

. . where war service is appraised . . . beyond its value, and the preference goes beyond the scope of the actual advantages gained in such service, the classification becomes void and the privilege is held unreasonable and arbitrary.” (emphasis supplied)

There is no basic distinction in principle between an appointment and a promotion. In Pittsburgh School District Appeal, 356 Pa. 282 , 52 A. 2d 17 , Mr. Justice Horace Stern said, p. 286: “. . . this court held in Simmler v. Philadelphia, 329 Pa. 197, 202 , 198 A. 1, 3 , that a demotion is, in reality, a removal from one position and an appointment to a lower one; by the same token, a promotion is really a surrender of one position and an appointment to a higher one.” It, therefore, follows that what we said concerning reasonableness of classification relating to appointments *377 of veterans has equal application to promotions. Should, however, this view now be rejected when it relates to war veterans, the Act in terms applies both to appointments and promotions. The discipline, experience and military service of a veteran have the same potential value in promotions as they do in appointments. For example: the military training and service of a veteran is conceded to be of value when he applies for a position of hoseman in a fire department. But who can deny that military training as captain, major or colonel might not better qualify an applicant for promotion to the civil position of fire chief?

The majority maintains that after a non-veteran joins the fire department, he necessarily must acquire during the course of his service the discipline, experience and loyalty which his counterpart, the veteran, possesses before he becomes a member of the department. In addition, the majority assumes that in almost every case the non-veteran acquires the additional discipline, loyalty and experience which the veteran acquires after he joins and serves in the fire department. In other words, the majority holds that the non-veteran necessarily “catches up” with the veteran in experience, loyalty and discipline when the time arrives for the two to take a promotional examination. They maintain this to be so in nearly every instance and hence hold the act to be unconstitutional. For the Act to be unconstitutional it must constitute an unreasonable classification. And in order for the classification to be unreasonable it must follow that in almost every case the non-veteran necessarily “catches up” with the veteran. But this is but an assumption, which may not be true in fact. The presumption attending a legislative enactment endures until it unquestionably appears that the challenged statute violates fundamental law: Hertz Drivurself Stations, Inc. v. Siggins et al., 359 Pa. 25 , 58 A. 2d 464 . In a vast number of cases obviously the *378 non-veteran does not “catch up” with the veteran: The non-veteran does not necessarily acquire during the course of his service with the fire department that loyalty, discipline and experience already possessed by the veteran before assuming or being promoted to a position with the department. The presumption that legislation is constitutional always places the burden of proof upon him who contends that the act is unconstitutional: Flynn et al. v. Horst, 356 Pa. 20 , 51 A. 2d 54 . There is not the slightest evidence before the court in the present case to demonstrate that it is an unreasonable classification in examinations for promotions to grant a veteran 10 points in addition to his passing grade. There is no evidence before the court to indicate that a non-veteran “catches up” with a veteran. Nor can this be accepted as true as a matter of judicial knowledge.

The Legislature took into consideration when it enacted the Veterans Preference Act the fact that the veteran, as distinguished from the non-veteran, was unavailable to the fire department because of his absence. The veteran was unable to take a promotional examination while in military service even though he was eligible in every other respect for promotion. Had he been available it is obvious that in many cases a veteran would have taken and successfully passed promotional examinations. The Act is, therefore, an endeavor by the Legislature to compensate a veteran who because of his military service was unable to take a promotional examination even though eligible.

Courts in sister states have upheld the constitutionality of statutes dealing with preferences to veterans when taking promotional examinations: Jones v. O’Toole et al., 190 Cal. 252 , 212 P. 9 ; Herman et al. v. Sturgeon, 228 Ia. 829 , 293 N. W. 488 ; Geyer et al. v. Triplett, 237 Ia. 664 , 22 N. W. 2d 329 ; Zanfes v. Olson, 232 Ia. 1169 , 7 N. W. 2d 901 ; Opinion of the Justices, *379 324 Mass. 736 , 85 N. E. 2d 238 ; Bateman et al v. Marsh et al., 64 N. Y. S. 2d 678. Cf. Cook v. Mason et al., 103 Cal. App. 6 , 283 P. 891 ; Goodrich v. Mitchell, 68 Kan. 765 , 75 P. 1034 ; State ex rel. King v. Emmons et al, 128 Ohio St. 216 , 190 N. E. 468 .

As 1 view it, the majority has assumed a function reposing exclusively with the Legislature. Heretofore we have held that the wisdom of the classification is for the Legislature and is not reviewable by this Court: Dufour v. Maize et al., 358 Pa. 309 , 56 A. 2d 675 . It is the Legislature, and not the court, who should determine the wisdom of granting veterans preference in appointments and promotions.

As the Act in express terms grants the preference in both appointments and promotions, and since in my view there is nothing unconstitutional in such classification, I would affirm the judgment of the court below.

Mr. Justice Horace Stern and Mr. Justice Ladner join in this dissent.