31 A.2d 257 | Pa. | 1942
Lead Opinion
In this case1 the constitutionality of the Act of June 7, 1917, P. L. 600, as amended by the Acts of June 25, 1941, P. L. 207, and of April 21, 1942, P. L. 50, and May 6, 1942, P. L. 101, is challenged. This act provides that the dependent wives and children of regular employees of the state and political subdivision when such employees shall enter the armed forces of the United States shall be paid during the absence of such employees in such service, one half the employee's salary, such payment not to exceed $2000 per year and that the dependent parents of such employees so serving in the armed forces shall be paid annually such sums as the employees had been accustomed to pay such parents. In no case shall the one half of the employee's salary, when added to the remuneration paid him by the United States exceed the salary or wages paid the employee when he entered the military service.2 These payments to dependents are attacked by the plaintiff taxpayer as an unconstitutional "giving of gratuities *365 to dependents of a chosen class composed of the employees" of the State and its subdivisions, who are in the nation's armed forces, and not to the dependents of other Pennsylvania citizens in the same service, and therefore as being in plain contravention of Article 3, sec. 7, of the State Constitution which declares that "the General Assembly shall not pass any local or special law, granting to any . . . individual any special or exclusive privilege or immunity . . ."
The bill sets forth, inter alia, "Other taxpayers of the City of Pittsburgh who are serving in the armed forces, or whose sons and husbands are so serving, are receiving no dependency payments other than the allotments provided for in the Soldiers' and Sailors' Federal Allotment Act of 1942, but are required nevertheless, as taxpayers, to pay additional dependency claims to the dependents of former employees of the Commonwealth and counties, municipalities, townships and school districts.3
The amount of the allowance to dependent kin, including parents, is based not on the needs of these beneficiaries but on the civil salary of the employee before entering war service. If, for example, a soldier was a night watchman of the City of Pittsburgh and received a salary of $1,800 a year, his dependent wife and children would under this act receive $900 a year. If a soldier was a civil engineer of the City of Pittsburgh and received $4,000 a year, his dependent wife would receive under this Act $2,000 a year (provided this sum did not exceed the difference between the sums paid by the United States to the employee and his salary as a public employee). A dependent wife, child or parent is, under our decisions, one who is either partially or exclusively supported by the wage earner. See Morris v. Yough Coal Supply Co.,
Other anomalous provisions of this legislation are these: (1) No distinction is made between an employee who served the state or political sub-division for only a brief period, and an employee who had served many years as such an employee.4 (2) As men who have dependents and also own real estate are inducted into war service, the municipal sub-divisions will be confronted with a situation where they cannot collect taxes on such real estate because of the Federal Soldiers' and Sailors' Relief Act of 1940, 6888, Section 501, as amended, 50 U.S.C.A. sec. 560, yet these sub-divisions are expected to assume the heavy financial burdens imposed upon them by this legislation. Counsel for the City of Pittsburgh stated that this legislation has already imposed on the City a burden of $100,000 a year and as the war continues, this burden "will be of staggering proportions". These anomalous provisions do not in themselves prove that the challenged act is unconstitutional but *367
they tend to show that the classification instead of being based on "necessity" (Ayers Appeal, supra) or as being based "on genuine substantial distinctions of the subjects classified" (Com. v. Grossman,
While courts do not sit in judgment on legislativewisdom but only on legislative power, it is their duty to declare an act void which they adjudge to be beyond the legislature's authority. Fidelity to the fundamental law is the only guarantee of the permanence of constitutional government. 11 American Jurisprudence sections 88 and 89 says: "Since the Constitution is intended for the observance of the judiciary as well as the other departments of government and the judges sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands. . . . This duty of the courts to maintain the Constitution as the fundamental law of the state is imperative and unceasing . . ." See also Marburyv. Madison, 1 Cranch (U.S.) 137,
Class legislation has frequently been declared void by this Court, and what is class legislation has been defined and illustrated in a long line of decisions. In Penna. Co. *368 for Insurances on Lives and Granting Annuities et al.,Appellants, v. Scott, Prothonotary, et al.,
In Ayars' Appeal,
In Com. v. Casey,
In Laplacca v. Phila. R. T. Co.,
That the legislation now before us utterly fails to meet the constitutional test of reasonable classification "imperatively demanded . . . by the manifest peculiarities" of the respective classes (Laplacca v. Phila. R. T. Co., supra) is made plain by a realistic consideration of it. For example, A B are citizens who were inducted into the national war service. Each had received a salary of $4,000 a year; one from the state, the other from private industry. Each owns a property on which he pays taxes. Each has a wife and children. Each is rendering his country identical war service. This act singles A's dependents out for the special privilege of receiving $2,000 a year from the state treasury, while it says in effect to B's dependents: "Since the head of your family was employed on a farm (or in a coal mine or in a department store or on a railroad, as the case may be) you will receive no gratuity from the state treasury."6 There is no pretence in this legislation that a public employee's dependents are being rewarded for any special service he rendered the state or for any "sacrifice" he made in accepting a public job. The acceptance of a public job is not generally regarded as a personal sacrifice. *371
The Commonwealth chiefly relies on the case of Speer v.School Directors of Blairsville,
The distinction between that case and this7 is so obvious as to make extended discussion of it unnecessary. For the municipality to pay public money to all volunteers who protected that community, and the state and nation of which it was a part, was, of course, a proper *372 use of public funds for a public purpose. It was no more "class legislation" than is a law authorizing the payment of public money to policemen and firemen. If it paid bounties only to those volunteers who were in the public employment at the time of volunteering we would have a parallel to the present case, except that in the constitution then in force (1864) there was no prohibition against class legislation.
Article 3, section 18, of the constitution permits appropriations for pensions or gratuities for military services, but when such appropriations are made, they cannot arbitrarily be made to favored individuals. If, for example, the legislature should grant pensions or gratuities for military services to those who in this war serve in the nation's armed forces in the Pacific-Asia area of combat operations and deny such pensions or gratuities to those who serve in the nation's armed forces in the Atlantic-Europe-Africa area of combat operations, no court would hesitate to pronounce such a classification unreasonable and unconstitutional.
No case can be found in Pennsylvania where a classification of persons to receive benefits from the public treasury based on the identity of the employers of such persons, or based on anything like that, has ever been upheld as constitutional. It is a classification purely arbitrary and without reason and is a perfect example of the evil practice of permitting payment of public funds for the benefit of one class of people without any special corresponding benefit being derived by the public from that class of people. It is paternalism8 "run riot" and if this *373 Act is not declared void as special legislation there can be no logical limit to the legislature's power to confer gratuities on the kinsmen of public employees or on the employees themselves. The dependents of state and city and school district employees in the national war service have no claim for gratuities from the public treasury which cannot be made with equal merit by the dependents of the employees of private industry or by farmers or professional men who are in the national war service.
The legislation now under review is a perfect example of the kind of legislation which Article 3, sec. 7, of the Constitution of 1874 was ordained to prevent. InCommonwealth v. Gilligan,
The State Employes Retirement System and the Teachers' Tenure Act are cited in the Commonwealth's brief as examples of constitutional laws providing for gratuities and pensions. These Acts bear no legal resemblance to the instant Act. The payments made to state employees and to teachers are made out of funds to which the beneficiaries have made large contributions *374
and are commensurate with the length of service of the recipients, and they are not gratuities made to the dependents of some employees. In Retirement Board of Allegheny County v.McGovern et al., Commissioners, Appellants,
The Workmen's Compensation Act does not sustain by analogy the Act now under review. That act is expressly authorized by Art 3, Sec. 21, of the Constitution. Any law passed pursuant to that authority must be "reasonable".
In Rich Hill Coal Co. et al. v. Bashore,
The fact that the Workmen's Compensation Law excepts from its provisions agricultural services and domestic services performed in a private home for another for a valuable consideration has never given rise to any challenge of that part of the Act as unconstitutional, for that classification is obviously reasonable. The Court in Carville, Appellant, v. A.F. Bornot Co.,
This legislation cannot be constitutionally justified (as suggested) as encouragement by the state of its employees to enlist before they are drafted. If the public welfare requires such encouragement to engage in war it should be applied toall residents of the Commonwealth who are qualified for military service and not merely to a select minority.
It has been suggested that the power to do what the state attempted to do here is an incident to the relation of employer and employee. What a private employer can do with his own funds10 in granting gratuities to his *376 employees or the latter's dependents, furnishes no guide as to what the state as an employer can do in using public funds as gifts to its employees and their dependents. In the disbursing of public funds the organic law is the sovereign guide, and that guide protects the public funds as much against gifts to public employees as it does against gifts to any other citizens. There must be a reasonable relationship between the compensation received by public employees and the public service they render. The gratuities given by this Act to the kindred of employees is certainly not compensation for the service these employees are rendering the state and itspolitical sub-divisions. In Com. v. Casey, supra, Justice STEWART said: "If . . . municipalities with respect to matters not political and governmental but proprietary and private, are to be regarded as private corporations . . . then the inquiry must be whether the Act under consideration is a special or [a] general law."
It has also been suggested that what the state as an employer attempts to do here is analogous to its granting "sick leaves" with pay to its employees. The answer to that is that if such reasonable leaves are granted by the state or a municipality toall of its employees there is no ground for attacking the statute under which the grant is made as special legislation. As nearly every individual is subject to occasional illness, sick leaves become an inevitable incident to all employment. If the state as an employer chooses to grant such leave with pay, for limited periods (such laws are usually for ten days or two weeks annually) this action does not involve an unconstitutional misuse of public funds. When a person enters into the service of the state at a weekly or annual salary he contracts to give his employer all the service required *377 of him during working days, subject only to occasional interruptions by the illnesses common to man. Vacations and sick leaves reasonable in length of time, without deduction of pay, are now generally recognized as implied in contracts of public employment. If vacation and sick leave with pay were unreasonably protracted in duration they would justify the charge that public funds were being illegally used in payment for services not performed. Such leaves would be particularly offensive to the constitution if they were granted tospecial classes of employees, with no reciprocal benefit to the state.
To argue that every public employee possessing war service qualifications may bring his dependents within the provisions of this act by entering the service, helps the proponents of this act not at all. In the first place, all public employees obviously do not possess war service qualifications. Secondly, if they did and if all of them abandoned the service of the state for national service, this act would still be unconstitutional. In Com. v. Quaker City Cab Co.,
In Com. ex rel. Graham et al. v. Schmid,
In Carney et al. v. Lowe et al.,
The decision in Equitable Credit Discount Co. v. Geier,
In holding this legislation unconstitutional we are not taking a position inconsistent with the position this Court took in Com. ex rel. Schnader v. Liveright et al.,
The state and its political sub-divisions have no funds at their disposal except funds exacted as taxes directly and indirectly from every self-supporting person in the Commonwealth. The protection of private property against unwarranted taxation by keeping public expenditures within constitutional limits is one of the most important duties of the judiciary. To exactly the extent public officials can impose by statute or by contract pecuniary burdens on the state or its political sub-divisions they can despoil the citizens of their possessions under the guise of taxation.
It is asserted by counsel for the intervener, Irene Bigley, that the legislature is "the sole judge as to laws that are in the interest of the public." The constitution has declared that "a special law" granting to any individual "any special or exclusive privilege" (as this law does) is interdicted as contrary to the public interest. The same counsel characterizes as "startling, the doctrine that the Commonwealth is powerless in this time of war to make laws governing its employees and the employees of the political and municipal divisions of the *381 Commonwealth because the same benefits are not extended to every employee throughout the Commonwealth." What was said about the United States Constitution by the United States Supreme Court in the historic case of Ex Parte Milligan, 4 Wall. 2, applies with equal appositeness to the constitution of this Commonwealth: "The Constitution . . . is a law for rulers and people, equally in war and in peace. . . . No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." If the legislature can grant gratuities to the dependents of public employees in time of war, while denying them to the dependents of other citizens, it can do the same thing in time of peace.
This statute has no bearing on public employment and no bearing on national defense except as it uses the narrow base of public employees engaged in national defense as a classification authorizing the payments to the dependents ofsuch employees of gratuities from the public treasury, while the dependents of all other employees and the dependents of allother Pennsylvania citizens, engaged in the national defense receive nothing from the public treasury.
This act is clearly not a gratuity for military service, within the meaning of Article III, section 18, for if it was such a gratuity it would apply to all who rendered military service and not merely to that limited class of persons who before they entered military service had the good fortune to be on the public payroll.
The people of Pennsylvania never authorized the creation by the legislature of a class of persons to receive gratuities from the public treasury and consisting only of those soldiers, sailors and marines who before becoming such were public employees. To authorize "pensions or gratuities for military services" to all who render such services is one thing; to interpret such a provision as authorizing gratuities to that small percentage of *382 persons now in war service but who were public employees is so obviously a different thing that it should require no argument to point it out. The legislature has no more warrant under the constitution of this Commonwealth to grant pensions and gratuities only to its former employees now in the national service than it would have to grant pensions and gratuities only to college graduates or former carpenters now in the national service. In practical effect this legislation creates a special and favored class consisting of the dependents of fewer than two* percent of those 750,000 Pennsylvanians now in the nation's war service.
The power to impose obligations on the taxpayers implies the power to tax them to discharge those obligations, and as Justice MILLER of the United States Supreme Court well said inLoan Association v. Topeka, 20 Wall. 655, 663: "The power to tax is the strongest, the most pervading of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice MARSHALL, in the case of McCulloch v. The State of Maryland [4 Wheaton 315, 431], that the power to tax is the power to destroy. . . . This power can as readily be employed against one class of individuals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised. To lay, with one hand, the power of the government on the property of the citizen, and with the other bestow it upon favored individuals . . . is none the less a robbery because it is done under the forms of law and is called taxation. . . ."
The decision in Henn v. City of Mt. Vernon,
As to the holding of the New York Court that the act in question did not offend the equal protection of the laws clause of the Federal Constitution this is to be said: (1) It was not a decision by the highest court of the state and even if it was, its strength as a precedent is based on the cogency of its reasoning, and its reasoning is not cogent. It classes the act with "the various statutes giving to veterans preferences in public employment which have been so uniformly regarded as constitutional. . . ." Our review of Com. ex rel. Graham v.Schmid, supra, clearly shows the distinction between those cases where veterans who qualify in civil service examinations for public jobs are given some advanced rating because of their previous military discipline and training and the case now before us where "dependents" are given "out and out" gratuities because the man they "depend" on had a public job before entering war service.
A decision of the highest court of New York in the following case is far more apposite in principle to the question now before us than the just referred to decision of a lower appellate New York court. In Bush v. Board of Supervisors,
In Colgate v. Harvey,
In the act before us the classification is not founded upon pertinent and real differences but upon irrelevant and artificial ones. The class favored is neither the dependents of all who enter the nation's armed forces nor *385 of all public employees. It is a narrow and restricted group of the dependents of these who were public employees and are now in the armed forces. The legislature cannot "get around" the constitutional limitation invoked here by arbitrarily creating a class and then bestowing gratuities on the dependents of the comparatively few* (out of the hundreds of thousands in the armed forces and out of the tens of thousands of public employees) who bring themselves within that favored class.
The legislation challenged is class legislation, contrary to the clause of Article 3, section 7 of the Constitution, hereinbefore quoted, because it "lays with one hand the power of the government on the property of the citizens" in general and "with the other bestows it" upon those "favoredindividuals" who for a period had been enjoying the status of public servants before they, with hundreds of thousands of other Pennsylvanians in private pursuits, were called to war.
We agree with what was said in Com. ex rel. Graham v. Schmid, supra, that "the fact that veterans . . . have been to wars . . . should be given some consideration", and this state has always been generous in its recognition of the military and naval services of its sons, but there has never been another act on the statute books by which this Commonwealth has attempted to favor by gifts of public funds to the dependents of its own employees in war service over the dependents of those other Pennsylvania citizens who were rendering precisely the same kind of war service but who before doing so were employed on farms or in mines and factories or elsewhere in private industry. It is precisely that kind of arbitrary classification which the constitutional provision here invoked was ordained to prevent and we conceive it as a performance of our judicial duty to "support, obey and defend" the constitution when we declare, *386 as we now do, this challenged law to be unconstitutional and void.
It is not necessary to discuss the other constitutional objections earlier referred to.
The Act of June 7, 1917, P. L. 600, as amended by the Act of June 25, 1941, P. L. 207 and by the Act of April 21, 1942, P. L. 50 and the Act of May 6, 1942, P. L. 106 so far as this original act and these later amendatory acts provide for the payment to dependent wives and children of public employees in the armed services of the United States, of one half of the salary of such employees, not to exceed $2000 per year, and the payments to parents of such sums as the employees had heretofore been accustomed to contribute to their dependent parents, are adjudged to be unconstitutional and void, and the City of Pittsburgh and each and all of its officers are enjoined from expending or causing to be expended any public funds under the provisions of these just cited acts and amendatory acts.
The costs to be paid by the City of Pittsburgh.
Mr. Justice LINN and Mr. Justice HORACE STERN dissent.
The term of Chief Justice WILLIAM I. SCHAFFER ended and he retired from the Court on January 3, 1943, which was before this draft of the Court's opinion was written and before a final decision was reached.
12 Employer Number of Regular Employees Employees in the Armed Forces
Phila. City and County ...... 19,740 667 Phila. School District ...... 10,000 289 Pittsburgh .................. 5,100 427 Pittsburgh, School Dist. .... 4,200 85 Scranton .................... 559 20 Scranton, School District ... 873 30 ______ _____ 40,472 1,518
State of Pennsylvania ....... 28,753 2,151
Philadelphia, Pittsburgh and Scranton constitute 27% of the population of the State. They have 1,518 "regular" employees who are now in the nation's armed forces. If this average is maintained in other political sub-divisions, the total number of employees of all state political sub-divisions, in such service, would be 5,620. Adding this number to the number of state "regular" employees in the armed forces, 2,151, makes a total of 7,771 or less than 2% of the total number of Pennsylvanians in the nation's armed forces. Not all of these have dependents. (These figures are based on reports from qualified public officials and relate to dates near February 1, 1943.) *387
Dissenting Opinion
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 *388 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,
The legislature may legislate for public employes as a class; compare the Unemployment Compensation Law of December 5, 1936, P. L. (1937) 2897,
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,
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 *392
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,
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,
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 *397
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,
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 *398 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,
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 *400 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.