dissenting.
I respectfully dissent. In this case, two bus drivers, public employees of the school district, applied for the position of bus mechanic, for which they were equally well qualified. According to the law, by statute, the veteran was entitled to preference. Instead, the arbitrator determined that the applicant with seniority in service should prevail, in accordance with the terms of a collective bargaining agreement. The majority affirms, because the transfer from bus driver to bus mechanic was a promotion, and finds that Section 7104(a) of the act commonly known as the Veterans Preference Act (Act), 51 Pa.C.S. § 7104(a), which clearly applies to both original appointments and promotions, is unconstitutional as applied to promotions, which is to say, it is unconstitutional on its face.
In Maurer v. O’Neill, 368 Pa. 369, 83 A.2d 382 (1951), the Supreme Court examined a provision of the Act which granted a ten-point bonus to veterans in all competitive examinations as it applied to examinations for promotions. After analyzing the difference between original appointments and promotions, the O’Neill court concluded that the test to be applied was whether the preference granted was reasonable in light of public policy considerations. The court concluded that the provision of the Act which granted the same preference to veterans in a promotional context as was granted in appointments to original positions is unreasonable and, thus, unconstitutional.
I believe that the majority construes this decision too broadly, by interpreting it to mean that granting any preference to veterans in the context of promotions is unreasonable, and, therefore, unconstitutional. In my view, this court must undertake the same analysis as set forth in O’Neill and determine whether the preference as applied is reasonable, a determination which must be based on the facts of each case. “A statute may operate in an unconstitutional manner as to *1205one particular individual or company, as to which it may be declared void, and yet may, as to others, still be effective.” 7 P.L.E. Constitutional Law § 30 (1980), p. 296. I would hold that the reasoning of O’Neill is inapplicable to the facts presented here, and does not bar application of the preference granted under the Act, as here we begin with the assumption that both parties are equally well qualified.