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COMMONWEALTH EX REL. MAURER v. O'NEILL (09/24/51)

September 24, 1951

COMMONWEALTH EX REL. MAURER, APPELLANT
v.
O'NEILL



Appeal, No. 79, Jan. T., 1951, from order of the Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1949, No. 4170, in case of Commonwealth of Pennsylvania, ex rel. John H. Maurer, District Attorney of Philadelphia County, to use of George Braden, et al. v. Joseph P. O'Neill, et al. Order reversed; reargument refused October 30, 1951.

COUNSEL

Lewis R. Linet and J. H. Brennan, with them Robert I. Morris and Brennan and Brennan, for appellants.

Hyman A. Guth, with him Fred C. Gartner, for appellees.

Walter E. Alessandroni, for The American Legion, Pennsylvania.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Drew

[ 368 Pa. Page 371]

OPINION BY MR. CHIEF JUSTICE DREW

This complaint in quo warrantor 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 for 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 the 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 of 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 case of original appointments is constitutional. That question was decided in Commonwealth ex ...


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