Commonwealth Ex Rel. Maurer v. O'Neill.

Opinion by

Mr. Chief Justice Drew,

This complaint in qno warranto challenges the constitutionality of the Veterans Preference Act of May 22, 1945, P. L. 837, as amended. The court below upheld the constitutionality of the act and dismissed the complaint.

The facts are undisputed and may be stated briefly. George Braden and the defendants all took a civil service examination in 1949 for promotion to Captain of the Fire Bureau of the City of Philadelphia. On December 30th of that year the list of those eligible for promotion was published and included both Braden and the defendants. Braden, a non-veteran, received an average of 79.59. Defendants, all being veterans, received a ten point bonus under the provisions of the Veterans Preference Act and with this bonus their grades ranged from 81.47 to 88.05. As a result, defendants were promoted to the rank of captain on January 11, 1950 but Braden was not.

The ten point bonus to veterans was granted in accordance with §3 of the Veterans Preference Act which 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.” It is the application of this section to promotional examinations that Braden here challenges as unconstitutional class legislation.

At the outset it is conceded that the granting of a preference in the ease of original appointments is constitutional. That question was decided in Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 3 A. *3722d 701. We there laid down the test to be used in determining such cases, stating at p. 573: “. . . 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. Public policy, as well as constitutional restrictions prohibits an unrestrained preference as it does a preference credit based on factors not representative of true value.”

When we apply that test to the facts of this case, we can come only to the conclusion that, because of the difference between an original appointment and a promotion, the award of the ten percentage point preference to veterans in examinations for promotions is unreasonable and therefore unconstitutional. In the Schmid case, Mr. Chief Justice Kephart pointed out that preferences to veterans in appointments to public office are reasonable because the discipline, experience and service represented by the veterans’ military activity makes them more desirable applicants for public positions where discipline, loyalty and public spirit are essential, than those who have not served in one of our military organizations. But, the former Chief Justice qualified the right of the legislature to grant such preferences when he added that “where war service is appraised, in the allotment of public positions, 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.” We do not doubt but that the military training received by veterans during thé course of their service renders them superior candidates for public offices of the nature now under consideration. However, we are convinced that the legislature, in-authorizing the addition of ten percentage points to the véterans’ final examination mark's in all competitive • examinations for higher positions than: the orig*373inal appointments, has placed far too high a value on the benefit to the public service of the military training of veterans. In the case of an original appointment, the training a veteran has received in the armed forces will, no doubt, make him more amenable to the following of orders, the observance of regulations and, in other ways, tend toward making him a desirable employe. But the advantages to the public of this training are not absolute and, as time passes, the proportional benefit accruing to the public from the employment in such a service of veterans in preference to non-veterans gradually diminishes as both become proficient in the performance of their duties. In determining who is to be awarded a promotion, the skill of the particular examinees in the performance of their tasks is the prime consideration and compared to it the training gained by veterans solely as a result of military service becomes of very little importance. To credit veteran examinees in examinations for successive promotions with the same total of gratuitous percentage points as in the instance of their original appointment to a public position is, therefore, a totally unjustified appraisal of the value of their military training and highly prejudicial to the public service.

It is argued that there is no distinction between an appointment and a promotion; that, since it is conceded by Braden that the grant of a ten percentage point preference to veterans in the instance of an appointment to public service is reasonable and constitutional, the awarding of an identical preference to veterans in the case of promotions in that service is equally reasonable and constitutional. To support this conclusion, reliance is placed on the statement in Pittsburgh School District Appeal, 356 Pa. 282, 52 A. 2d 17, that “a promotion is really a surrender of one position and an appointment to a higher one”, and it is argued from that that we are now required to hold that an *374appointment and a promotion are one and the same tiling. There is clearly nothing in that language to warrant such a conclusion nor is there a basis in any other part of the opinion. In that case we held that, although §403 of the School Code did not expressly set forth that the approval of a majority of the members of the Board of Public Education was necessary before a teacher could obtain a promotion, nevertheless it did state that the approval of the members was required before an appointment could be made and that since “a promotion is really a surrender of one position and an appointment to a higher one”, their approval was impliedly necessary in the instance of a promotion. We therefore recognized the distinction between an appointment and a promotion and held that under that section of the School Code, the consent of the Board of Education to both appointments and promotions was necessarily required before either or both could be effected. Furthermore, §33 of Article III of the Statutory Construction Act of May 28, 1937, P. L. 1019, requires that words of a statute shall be construed according to their common and approved usage and to interpret the word “promotion” as synonymous with “appointment” would be to ignore this mandate. Webster’s New International Dictionary (2nd Ed.) 1943, defines “promotion” as “the act of promoting”, i.e. “to advance from a given grade or class as qualified for one higher” and “appointment” as “the designation of a person to hold an office”. Authorities too numerous to mention offer similar definitions and none propose that the two terms are used interchangeably. To assert that the legislature attempted to do so in drafting the Veterans Preference Act is erroneous and cannot be sustained by lifting language of this Court out of context of one of its opinions. There is a definite difference between an appointment and a promotion and there is nothing in the language of the instant act to indicate *375that the legislature intended that the two words were to be construed as synonymous.

It follows from what has been said that the Veterans Preference Act, in granting the same preference to veterans in examinations for promotions as is granted in their original appointments to a public office is unreasonable and class legislation and therefore unconstitutional.

The order is reversed and the appointments of the named defendants to the positions of captains of the Fire Bureau of the City of Philadelphia are set aside and declared null and void. Costs to be paid by defendants.