Commonwealth Ex Rel. Graham v. Schmid

3 A.2d 701, 333 Pa. 568, 120 A.L.R. 777, 1938 Pa. LEXIS 818
CourtSupreme Court of Pennsylvania
DecidedOctober 5, 1938
DocketAppeal, 271
StatusPublished
Cited by73 cases

This text of 3 A.2d 701 (Commonwealth Ex Rel. Graham v. Schmid) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Ex Rel. Graham v. Schmid, 3 A.2d 701, 333 Pa. 568, 120 A.L.R. 777, 1938 Pa. LEXIS 818 (Pa. 1938).

Opinion

Opinion by

Mr. Chief Justice Kephart,

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 *571 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 *572 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 *573 qualifications necessary to the discharge of the pxxblic 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 sucli 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 *574 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 Fed. 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 qualifica *575 tions and business capacity necessary to discharge the duties of the position ihvolved.” 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 Pac. 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 Atl. 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.

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Bluebook (online)
3 A.2d 701, 333 Pa. 568, 120 A.L.R. 777, 1938 Pa. LEXIS 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-graham-v-schmid-pa-1938.