Commonwealth ex rel. Graham v. Schmid

• Decision Date: 12 December 1938
• Docket Number: 271
• Citation: 3 A.2d 701,333 Pa. 568
• Parties: Commonwealth ex rel. Graham (to use of Markham et al., Appellants) v. Schmid
• Court: Pennsylvania Supreme Court

3 A.2d 701

333 Pa. 568

Commonwealth ex rel. Graham (to use of Markham et al., Appellants) v. Schmid

No. 271

Supreme Court of Pennsylvania

December 12, 1938

Argued October 5, 1938.

Appeal, No. 271, March T., 1938, from decree of C.P. Erie Co., May T., 1938, No. 283, in case of Commonwealth ex rel Mortimer E. Graham, District Attorney, to use of Stephen P Markham et al., v. Joseph A. Schmid. Decree reversed.

Quo warranto proceeding. Before BARNETT, P.J., specially presiding, without a jury.

The opinion of the Supreme Court states the facts.

Decree entered dismissing writ. Plaintiffs appealed.

Errors assigned, among others, were various conclusions of law of the lower court.

The decree is reversed and it is directed that judgment be entered in favor of the Commonwealth and that Joseph A Schmid be and is hereby ousted and excluded from the office of Assistant Building Inspector of the City of Erie and the City Council is directed to appoint James J. Leach, appellant veteran, to that office unless cause be shown, as indicated, why he should not be appointed. Costs to be paid by appellee.

Harold F. Mook, with him Russell M. Orcutt, O. J. Graham, Elmer L. Evans, J. S. Jiuliante, Emmett C. Wilson, H. Stewart Dunn and Al. J. Kane, for appellants.

Wm. B. Washabaugh, Jr., with him David S. Gifford and Edward M. Murphy, City Solicitor, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. CHIEF KEPHART, JUSTICE.

This appeal raises the constitutionality of preferences given to war veterans under the civil service provisions in the Third Class City Law, enacted June 23, 1931, P.L. 932. ^[1] The City of Erie examined applicants for the position of assistant building inspector. Fifteen were reported as having successfully passed the examination, and the names of the four highest were certified to the city council. Appellee, not a war veteran but highest on the list, was selected. The two use-appellants, both war veterans, instituted quo warranto proceedings to oust him for the reason that there was a mandatory preference in the law in their behalf. ^[2] The court below held the fifteen per cent advance credit proper, but declared the mandatory provisions of Section 4407 preferring war veterans unconstitutional as an invasion of Article III, Section 7, prohibiting laws granting special or exclusive privileges or immunities to any individual, and the veterans were not entitled to oust the appointee.

Preferences for war veterans in public employment have been widely enacted. This state has not been remiss in according this recognition, and the Third Class City Law is merely an instance of the many laws adopted. ^[3] This Court has not passed on the validity of these acts, but other jurisdictions have considered similar statutes from a constitutional viewpoint. Generally speaking, the laws have been sustained, but only if they prescribe that the veteran possess the minimum qualifications necessary to the discharge of the public duties involved. Although the subject of preferences is not discussed elaborately, the results are clear and consistent. These preferences have been considered by the courts under constitutional prohibitions against special privileges and unreasonable classification, and while the constitutional provisions differ somewhat in the various jurisdictions, they are similar in that all permit reasonable classifications and prohibit unreasonable ones and arbitrary privileges.

The underlying principle in all cases is that the veteran must possess the minimum qualifications to perform the duties involved. Some states so provide by law; in others the courts have read into the statutes this proviso so as to be consistent with constitutional requirements. Where such qualifications are not provided for it is generally held that the law violates constitutional inhibitions, since the preference for veterans is commanded regardless of ability. The theory on which the cases are decided is that, while it may be perfectly lawful to prefer veterans, 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.

As a basis for appointment 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. No one should deny that these advantages are conducive to the better performance of public duties, where discipline, loyalty, and public spirit are likewise essential. The fact that veterans, either through voluntary enlistment or conscription, have been to wars for the preservation of their country should be given some consideration. It is the greatest service a citizen can perform, and it comes with ill grace for those of us not in such wars to deny them just consideration. Where the preferences reasonably and fairly appraise these advantages, there can be no question of illegal classification and arbitrary privilege. But, on the other hand, 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. Public policy demands such a rule of law. It is essential to the administration of public affairs that governmental employees be selected on the basis of their ability to perform the duties imposed upon them in an efficient manner, and if public servants are not selected on this basis, the appointing power violates its oath of office; where the legislature so provides, it offends the constitutional mandate.

In the cases considering preferences, the various statutes fall into groups or types. Some give preferences to veterans where the position does not require an examination. In these cases, the positions not being in the civil service class, statutes providing a preference for war veterans in the discretion of the appointive power, or where they possess reasonable qualifications, or equal qualifications with other candidates for the same position, have been held proper. Many statutes were enacted after the Civil War providing that veterans should be preferred for public position. Some of these statutes expressly required that the veteran be preferred only if reasonably qualified to discharge the duties involved. See Spang v. Roper, 13 F.Supp. 840, reversed on other grounds in Gossnell v. Spang, 84 F. (2d) 889; Phelps v. Byrne, 36 S.D. 369, 154 N.W. 825. The federal statute used the words "if qualified to perform the duties required." The South Dakota statute provided that Civil War veterans must possess the "requisite qualifications and business capacity necessary to discharge the duties of the position involved." Other statutes expressly provided that veterans were to be preferred only over non-veterans possessing equal qualifications. In such a case, of course, the veteran's qualifications were superior because of his military and public training. See Shaw v. City Council of Marshalltown, 131 Iowa 128, 104 N.W. 1121; Goodrich v. Mitchell, 68 Kans. 765, 75 P. 1034.

Other statutes, though ostensibly mandatory and not expressly requiring that veterans be equally qualified with other candidates or at least reasonably qualified to handle the position, have been held constitutional by construing them to contain the implied condition that the preferred veterans be qualified to do the work in a reasonably efficient manner. See State v. Empie, 164 Minn. 14, 204 N.W. 572, and also Platt v. Prince, 167 A. 540 (R.I.), where the court held that, despite the words "shall be preferred," the appointing official retained discretion in making appointments, the statute merely giving "a certain preference." In all these cases the courts found, though mandatory words were used, the implied condition that the veteran must possess reasonable qualifications for the position.

Another class of cases deals with civil service requirements creating varying types of preferences, such as: an absolute or discretionary preference regardless of standing on the list if a passing grade has been obtained; complete exemption from examinations required of non-veterans; giving veterans additional points or percentage credits in determining a passing grade, or the equivalent, lowering the passing grade for veterans; and, finally, giving added points when the veteran has passed the examination at the regular passing grade and is thus placed on the eligible list.

When civil service systems were adopted, preferences similar to those under non-civil service systems found their way into the statutes. Most of them made eligibility for positions depend primarily upon the passing of civil service examinations. Preferences were of the varying kinds described, with the minimum requirement generally that the veteran pass the examination at the regular passing grade.

There seems to be no question in other states that where a statute provides that a veteran who passes an examination shall be preferred, the legislature has acted constitutionally. In an elaborate opinion the Supreme Judicial Court of Massachusetts held that, under a statute providing for such a mandatory preference, involving no considerations other than the passage of an examination, it was proper to prefer the veterans. The court pointed out that the passage of the examination was equivalent to establishment of the qualifications...