Mr. Justice HORACE STERN and I dissent; the position of former Chief Justice SCHAFFER is stated in a note.1
Effect must be given to a statute unless it clearly appears beyond all doubt that the legislature had no power to pass it.2 When a statute is challenged as prohibited special legislation, the court must remember that it is the duty of the legislature to make the classification; that the duty of the court is limited to considering whether the legislature could have had any reasonable ground for making it. The court must support the classification if it is one that the legislature, in good faith, could say there was some basis for.3 "If the distinctions are genuine the courts cannot declare the classification void, though they may not consider it to be on a sound basis. The test is, not wisdom, but good
faith in the classification."4 Judges may not say that the legislature should not have made the classification merely because if they had been members of the legislature, instead of judges, they would have voted against it.
The statute now in question is a regulation of public employment5 in its relation to national defense. We examine it in the light of our legislative history of preference to the veteran and his dependents which culminated in the constitutional provision authorizing appropriations for "pensions or gratuities for military services." There was nothing new in the idea of preferring the soldier. Ever since the Act of March 12, 1783, 2 Sm. L. 62, our legislation has preferred soldiers and their dependents. An Act of March 27, 1790, 2 Sm. L. 517, provided relief for widows and children of soldiers; the Act of March 19, 1816, 6 Sm. L. 377, benefited widows and children of soldiers killed in the war of 1812; the Act of March 30, 1866, P. L. 89, section 1, 51 PS section 331, provided gratuities and annuities for veterans and widows of veterans of the same war; the Act of May 15, 1861, P. L. 749, section 16, 51 PS section 351, provided benefits for widows and children of soldiers killed in the service of the Union. The Act of March 25, 1864, P. L. 85, construed in Speer v. SchoolDirectors of Blairsville, 50 Pa. 150, provided for bounties for volunteers in the Civil War. An Act of May 16, 1923, P. L. 236, 51 PS section 421, provided world war veterans' compensation. The statutes passed prior to 1873 antedated the constitutional prohibition of special legislation now invoked, but that hundred and fifty years' legislative history furnishes the setting for the more recent action. It was a well known fact, when the present constitution was adopted, and, we may assume, that the members of the convention of 1873
had this long recognized preference in mind when they provided in Article III, section 18, that "No appropriations, except for pensions or gratuities for military services, shall be made for charitable, educational or benevolent purposes. . . ." It has since been amended to read: "No appropriations shall be made for [certain classes] Provided, That appropriations may be made for pensions or gratuities for military services. . . ."6 The challenged Act of 1917, as amended, rests on those provisions. It is significant that after the Act of 1917 had been administered during the first World War without challenge on the ground that it involved unlawful classification of the recipients of "pensions or gratuities," the people a few years ago, amended Article III, section 18, and expressly authorized appropriations "for pensions or gratuities for military services." Whether the provision for the soldier's dependents be called a pension or a gratuity is not important for present purposes. What is important, is that by their action, the people themselves created a separate class for the benefit of veterans. This court should therefore not say that the legislature, in adopting a classification made by the people themselves, made an unreasonable classification.
The legislature may legislate for public employes as a class; compare the Unemployment Compensation Law of December 5, 1936, P. L. (1937) 2897, 43 PS section 751, considered inCommonwealth v. Perkins, 342 Pa. 529, 21 A.2d 45; see also Com.ex rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d 701; RetirementBoard of Allegheny Co. v. McGovern, 316 Pa. 161, 174 A. 400;Henn v. City of Mt. Vernon, 198 App. Div. (N.Y.) 152; Heim v.McCall, 239 U.S. 175. In Lewis Clark County v. Industrial Accident Board, 52 Mont. 6, 12, 155 P. 268, in dealing with a claim made by a county employe for workmen's compensation, the court said: "We are unable to appreciate much of counsel's argument in support of the contention that this statute is open to the objection that it is obnoxious class legislation. In the absence of any restriction in the Constitution, the legislature was free to establish a measure of duty owing to a public employee different from that owing to a citizen who is not in the public service, and it cannot be contended that a classification of workmen based upon the risks of their employment is either arbitrary or unreasonable." Legislation establishing and regulating public employment is therefore not obnoxious merely because it is class legislation.
This court has decided that preference of the veteran does not render a statute invalid as class legislation; we sustained legislation classifying veterans in applications in civil service. In Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568,571, 3 A.2d 701, we considered the subject from various angles and decided that a veteran who passed the examination may be preferred over non-veterans passing the same examination. In the opinion, former Chief Justice KEPHART said: "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. 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. . . . 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." On page 577, we said: "Our conclusions from these decisions is that, so long as the statute requires passage of the examination, a veteran may constitutionally be preferred over non-veterans whether the statute be mandatory or directory. In either case the minimum qualification for appointment is success in an examination. Its passage satisfies the requirement that appointments of public employees be made only of persons reasonably fitted for the position. There can be no objection to the provision of section 4407 which permits a preference of any veteran on the eligible list." On page 572, a footnote refers to a number of acts passed by our legislature in 1935, 1936 and 1937, giving preferences to veterans seeking employment with specified state agencies. All of these statutes are class legislation. We also held, as the majority opinion states, that section 4405, giving 15% credit in advance to veterans was unconstitutional.
The term "class legislation" adds nothing for or against a statute; much of our legislation is, and necessarily must be, class legislation. If a statute applies to all the members of the class and it appears that the legislature could reasonably say there was a sensible basis for creating such a class, the court has no lawful power to declare it invalid. Certainly, this Act of 1917, as amended, is general in its application; it applies to every public employe; any one of them possessing the service qualifications may bring himself within its provisions by entering the service, thereby entitling himself to ask payment for his dependents. If the statute provided for payment of part of their salaries direct to the employes while in the armed forces, no valid question could arise as to its constitutionality any more than it could as to payments when on sick leave. We are unable to detect any constitutional difference between payments to them direct and through them to their dependents in the first instance. The latter method merely provides
administrative means by which the money immediately reaches the beneficiary and avoids the delay that would result if the money had to be sent to the soldier in some distant place and be returned by him to his dependent; it is paid in relief of the soldier's duty to support and is paid pursuant to the constitutional provision authorizing "pensions or gratuities for military services." On the authority of cases cited above, we reject the majority's conclusion that the Act is not of general application because confined only to public employes and not to the employes of other employers. That it need not apply to all employes, is illustrated by reference to some of a number of familiar statutes. For example, the Workmen's Compensation Law is a general law though many exceptions to its application are familiar. Such legislative discriminations do not make the Act any the less a general act in the sense in which the term is used in the law. It is still a general act, is class legislation and is also constitutional. It is constitutional because the circumstances are such that the court may not say the legislature could not have had reasonable ground for the classification. The same lawful discriminations are also illustrated in the class legislation regulating borrowing and lending money. A man desiring to borrow a hundred dollars may attempt to do so, for example, from any one of three different classes of lenders, each governed by different class legislation. (1) He may borrow from a bank or trust company when the transaction will be controlled by the general banking laws; (2) he may borrow from one doing business pursuant to the statute generally known as The Small Loans Act; this Act was challenged as prohibited special legislation, but we applied the rule that it did not appear that we could declare that the legislature was not justified in making the classification: Equitable Credit and Discount Co. v. Geier,342 Pa. 445, 21 A.2d 53; (3) the same loan transaction may be governed by the Act regulating pawnbrokers; this Act also was assailed as prohibited
class legislation, but again we decided there was no ground to permit the court's interference with the legislative classification: Equitable Loan Society v. Bell, 339 Pa. 449,14 A.2d 316. These Acts, though applying to special classes of our residents, were general Acts.7 The majority opinion refers to these three instances of class legislation and concedes, as it must, that when the Small Loans Act and the Pawnbrokers' Act were challenged as unlawful classification, we held that this court could not substitute its judgment for that of the legislature in making the classifications. The same concession and for the same reason is made in the majority opinion with respect to the discrimination resulting from the provisions of the Workmen's Compensation Law entitling only some, but not all, workmen to its benefits.
When, in the light of these conceded rules and their frequent application by this court, we examine what is said in the opinion of the majority, as basis for impeaching the judgment of the legislature with respect to this Act of 1917, we find two classes of hypothetical illustrations given for the purpose of showing unlawful discrimination. If these illustrations should be regarded as showing possible inequality in the operation of the Act, that possibility is not sufficient to impeach the judgment of the legislature. To condemn the legislation, the plaintiff must go farther and show that the inequalities result from legislative caprice; but there is not the slightest basis for such suggestion. "The rule of equality permits many practical inequalities." Rapid Transit Corp. v.New York, 303 U.S. 573, 578. Among
the illustrations given by the majority are the hypothetical cases of the soldier, who had been a night watchman, and the soldier who had been a civil engineer, with the result that, in the illustration, the dependents of the one receiving the higher salary received a greater sum for support. But that does not show that the legislature acted capriciously in providing that the benefits payable shall be according to the compensation received by the employe; the legislature merely adopted a convenient — apparently the most convenient — measure of allotment. Another comparison is of the employe who served "for only a brief period and an employe who had served many years. . . ." This, again, is only an incident in the system. The New York court, in Henn v. City of Mt. Vernon, 198 App. Div. (N.Y.) 152, had no difficulty in disposing of such inequalities. By the New York statute, the amount payable by the municipality was the soldier's pay from the federal government subtracted from what he used to receive from the city; the statute applied to employes of long standing as well as of recent employment and took no account of comparative salaries. We have heard of no complaint against the Workmen's Compensation Act because the compensation is the same for injuries of a recently employed workman as it is for an employe of long standing. It is said to be an "anomalous provision" that in the case of a soldier who owns real estate and has dependents, a municipal subdivision may not be able to collect the tax owing by him on the real estate, yet "the subdivisions are subject to assume the heavy financial burdens imposed upon them by this legislation." We are unable to see how that incident supports the view that the legislature acted capriciously in providing benefits for a soldier's dependent. The municipal subdivisions throughout the state are the agencies of the state and must raise such taxes as the state directs, subject, of course, to the uniformity provision which is not in question here. Another comparison made in the majority
opinion is of the two citizens, each receiving a salary of $4,000 a year, one from the state, the other from private industry. Only recently, we held that in providing conditions of public employment, the legislature might require a city to prefer a soldier who had passed the civil service examination and give him a preferential position over others who had also passed the same examination. The comparison between the public and the private employe, therefore, even though it shows accidental inequality in result, is not one which makes this legislation unlawful class legislation; if the legislature may make the preference — and this court has held that it may — it is immaterial that the soldier in public employment may be in a better position than the private employe. With respect to these illustrations suggested by the majority, parts of the opinion of the New York court in Henn v. Mount Vernon, 198 App. Div. (N.Y.) 152, may be quoted. At pp. 155-157, it was said: "Defendant's brief urges that the act, in the feature here under consideration, violates section 1 of the 14th Amendment of the Federal Constitution, in that it denies to others who served in the war equal benefits because it confers such advantage upon merely a selected class of the few, who chanced to be in city or municipal service; whereas the great mass of those who served are left to lose the difference between their ordinary earning and their military pay. I am not impressed with this reasoning. It appears to me to be no more apt than it would be against the various statutes giving to veterans preferences in public employment, which have been so uniformly regarded as constitutional that it is difficult to find a decision directly passing upon the question. . . . Defendant's brief also contends that the said provision here under consideration violates the State Constitution in two respects, viz.: Section 10 of article 8, in that it requires the city to make to the plaintiff a gift, and that too for something which is not at all a city purpose; and also section 28 of article 3,
because it requires the city to grant to the plaintiff extra compensation. Both of these contentions amount to one and the same thing, namely, that the effect of the provision is to require the city to pay the plaintiff for services not rendered by him. This contention to my mind presents the only serious question involved. . . . The World War and our participation in it constituted a very great emergency, and the very widest scope in favor of legislative power to provide for action therein should be given by way of constitutional interpretation. We have recently had a striking instance of this in the decisions both of the Court of Appeals and of the United States Supreme Court maintaining the constitutionality of the recent rent statutes of this State. (See People ex rel.Durham Realty Corp. v. LaFetra, 230 N.Y. 429; Marcus Brown Co.v. Feldman, 256 U.S. 170). It is, indeed, now somewhat difficult to define what the lawmaking power may not do in aid of the prosecution of a war in which the nation is engaged, and, therefore, as well each component part of the nation. My conclusion, therefore, is that the said provision of chapter 435 of the Laws of 1917 is constitutional and valid." See, also, Hoyt v. Broome County, 285 N.Y. 402; 34 N.E.2d 481; 134 A.L.R. 916.
We were told in argument that "The New York decisions are . . . not persuasive in reasoning and are moreover distinguishable because based on a constitution which did not contain any prohibition against special legislation." That comment must be rejected as unsound. Some state constitutions, like ours, contain provisions prohibiting class legislation in given circumstances; some do not. But the legislatures of all the states are limited in classification by the equal protection clause of the 14th Amendment which prohibits arbitrary or capricious class legislation by the states, the test of valid legislation, when the 14th Amendment is invoked, being the same test that is applied when a specific provision against special legislation
is invoked. The object of the prohibition against special legislation in the state constitution and the object of the prohibition against infringement of the rights guaranteed by the equal protection clause are the same — to preserve equality — and, for that reason, the same test of validity is applied. In Rapid Transit Corp. v. New York, 303 U.S. 573, at page 578, it was said, "Indeed, it has long been the law under the 14th Amendment that 'a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, . . .' " The provisions against special legislation may be invoked to prohibit a favored few from receiving something to which they are not entitled, at the expense of the many; the equal protection clause is applied to protect the rights of the many from infringement in the interest of a favored few; they are alternate expressions of the same thing.
Public employment rests on contract with the state or some subordinate governmental agency, which must comply with the lawful directions of its principal. The statute is merely a term in the contract; all employes who bring themselves within its terms are entitled to its benefits; the regulation is therefore not discriminatory in any unlawful sense. Being a term in every contract of public employment, the court may not say that the legislature should not have graded the benefit according to the wages of the employe; some measure was required and, as that adopted was rational, the courts are bound by it.8 It was suggested that inequality may result from the fact that an employe, whose period of employment has been short, receives, to that extent, more benefit than one of long standing; but such result is also only an incident inherent in the regulation and not a result capriciously designed by the legislature. Dependency is a fact which must be shown and we understand that proof of it is required in the administration
of the Act: Benefits to Dependents of Persons in MilitaryService, 43 Pa. D. C. 411. Something is also said about an employe of one day's standing, but that contingency, as a practical element in administration, was ruled out years ago; if short time employment is fraudulently obtained for the purpose of obtaining the benefit of the regulation, it will fail, as Deputy Attorney General Hargest advised in 1918: See,State Employees in Military Service, No. 2, 27 Dist. Rep. 872. These opinions, rendered by the Department of Justice, are referred to only for the purpose of showing that there is no difficulty in construing the Act in a constitutional sense and that, in fact, it has been so administered; the opinions are not binding on this court but the fact that the Act can be so construed and applied is binding; the court must accept and apply a reasonable construction where that is possible: section 52, Statutory Construction Act of May 28, 1937, P. L. 1019, 46 PS section 552.
The opponents of the Act assert that the legislature could not have had any basis for the classification. To succeed, they must establish that assertion; if they establish it, the Act is unconstitutional. To assert is, of course, not enough; we find nothing to support the assertion; the presumption is that the legislature acted in good faith and had some reason for doing what it did. The statute grants leave of absence during the period of military service and six months thereafter, a provision of the Act agreed to be valid. The employe therefore remains an employe, though not on duty, during all that period. It would seem clear, as was held in New York, that the preference of the soldier over employes in private industry does not deprive the private employe of the benefit of the equal protection clause of the 14th Amendment, and, by the same standard, does not constitute unlawful discrimination in favor of the public employe over the private employe. In Com. ex rel.Graham v. Schmid, 333 Pa. 568, 571, we recognized that "Preferences for war veterans in public
employment have been widely enacted;" it is a fact which our legislature must be assumed to have known. It was also said in that case that the legislature might have justified the preference by attributing ". . . 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." In theHenn case, the Appellate Division said that participation in the world war ". . . constituted a very great emergency, and the very widest scope in favor of legislative power to provide for action therein should be given by way of constitutional interpretation." In the Hoyt case, 285 N.Y. 402,34 N.E.2d 481, the New York Court of Appeals said: "We have held that pensions to municipal officers and employees are not grants of gratuities, but a recognition by the Legislature of an obligation founded upon the fidelity of services rendered for the State through its political subdivisions;" the court referred to the fact that the preferences ". . . were devised to secure the continuance in the public service of those who should be found competent to discharge the duties thereof." Our legislature doubtless had all these considerations in mind.
The existence of the Act of 1917, and amendments, constituted an offer to anyone accepting or remaining in public employment, that if he joined the armed forces, he should have the specified leave of absence and his dependents, if any, should receive dependency payments. There is no doubt that when the legislature, with executive approval, made the promise of the state
contained in the Act, it did so with the conviction that its action would result in obtaining better performance of public duty, superior discipline, loyalty and public spirit; in short, a more competently performed public service than would have resulted without it. It was certainly an encouragement to enlist and may have induced employes to enlist without claiming deferment on the ground of dependents, which, but for the promise of the state, the employe might not have surrendered. We think his confidence in the promise of the state was not mistaken; that the considerations we have mentioned are such that this court should not declare them insufficient to justify the classification made by the legislature, and that, on the contrary, even if the wisdom of the legislation can be doubted, this court may not deny the power of the legislature to make the classification.
We think the bill to enjoin enforcement of the Act should be dismissed.
1 Former Chief Justice SCHAFFER heard the argument of this appeal and prior to the expiration of his term of office joined in a dissenting opinion of which this is an amplification.
2 Busser v. Snyder, 282 Pa. 440, 449, and cases cited p. 449,128 A. 80; Kelley v. Earle, 325 Pa. 337, 345, 190 A. 140;Chester County Institution Dist. v. Commonwealth, 341 Pa. 49,68, 69, 17 A.2d 212; Pennsylvania Railroad Co. v. Riblet,66 Pa. 164, 169; Collins v. Lewis, 276 Pa. 435, 438, 120 A. 389. As the plaintiff also relies on the equal protection clause of the federal constitution, New York Rapid Transit Corp. v. Cityof New York, 303 U.S. 573, 578, may also be cited.
3 National Transit Co. v. Boardman, 328 Pa. 450, 197 A. 239;Chester County Institution Dist. v. Commonwealth, 341 Pa. 49,17 A.2d 212.
4 Seabolt v. Commissioners of Northumberland County, 187 Pa. 318,323, 41 A. 22.
5 That is, employment by the state or any of its civil subdivisions.
6 In Busser v. Snyder, 282 Pa. 440, 449, 450, 128 A. 80, this court said, "Pensions or gratuities for military service are in the nature of compensation for a special and highly honored service to the State, implying the idea of a moral obligation on the part of the government . . ."
7 Other illustrations might be given, among them: Harr v.Boucher, 142 Pa. Super. 114, 15 A.2d 699; Commonwealth v.Grossman, 248 Pa. 11, 93 A. 781, Licensing private banking;Retirement Board of Allegheny Co. v. McGovern, 316 Pa. 161,174 A. 400; Dornan v. Phila. Housing Authority, 331 Pa. 209,200 A. 834; Commonwealth v. Girard Life Ins. Co., 305 Pa. 558,158 A. 262; Burkley v. Phila., 339 Pa. 426, 15 A.2d 201; TurcoPaint and Varnish Co. v. Kalodner, 320 Pa. 421, 184 A. 37. Statutes regulating occupations also suggest themselves.
8 See cases cited in notes 2 and 3.