dissenting:
Justice sometimes takes strange forms. This case is illustrative.
When Jensen first brought his case here, Jensen v. State (1984), [213 Mont. 84,] 689 P.2d 1231, 41 St.Rep. 1971, this Court held that the absolute preference accorded veterans under the Veterans and Handicapped Civilian Employment Preference Act (Section 10-2-201, et seq. MCA) was applicable, and therefore we remanded the case so that the manager position could be reopened and a decision made in the accordance with the preference. In that case both Justice Harrison and myself dissented, saying that since Jensen had borne the heat of the battle to secure the result that recognized the veterans preference law, he should be the recipient of that benefit.
In a later case involving Charles F. Femling v. Montana State University, (Mont. 1986), [_ Mont. _,] 713 P.2d 996, 43 St.Rep. 235, this Court held that the legislature could retroactively withdraw all veterans preference rights without violating the due process clause of the state or federal constitution. I dissented in the Femling case on the ground that Femling had applied for state employment at a time when he had a statutory right to preference, he had claimed the preference, his right had vested and so he was entitled to the job.
Now, Jensen is back again. What happened to him before the Department was what we predicted, that the Department of Labor and Industry would never grant him the job to which he had proven his right, but in retaliation for beating the Department in court, the appointment would go to some other veteran. The majority opinion now condones this result.
I dissent from the majority opinion here on the grounds that Jensen was entitled to the job from the beginning, was entitled to the job by reason of his being successful in the first Jensen case, and that his right had become vested, as I argued in Femling, from the time that he demanded the benefit of the preference law in his application for appointment.
In an era when this country seems to be undergoing a binge of patriotism with country-rock singers blazing out their love for the flag, and our armed forces confronting every two-bit nation in the world, the attitude of this State through its legislature and courts towards the men and women who actually gave something of themselves to protect the country is a contradiction. Rudyard Kipling must have been looking down the long years to this State when he wrote of the *51difference in treatment accorded Tommy Atkins in peace-time and in war-time:
Then its Tommy this an’ Tommy that and “Tommy, “ow’s your soul?”
But its “Thin red line of ‘eroes” when the drums begin to roll.
The drums begin to roll my boys, the drums begin to roll.
Oh it’s “Thin red line of ‘eroes” when the drums begin to roll.
We aren’t no thin red ‘eroes nor we aren’t no blackguards too,
But single men in barricks most remarkable like you.
An’ if sometimes our conduck isn’t all your fancy paints
Why, single men in barricks don’t grow into plaster saints.
While its Tommy this and Tommy that an’ “Tommy fall be’ind”,
But it’s “Please to walk in front, sir” when there’s trouble in the wind.
There’s trouble in the wind, my boys, there’s trouble in the wind.
Oh it’s “Please to walk in front, sir”, when there’s trouble in the wind.MR. JUSTICE MORRISON joins in the dissent of MR. JUSTICE SHEEHY.