PARRACK et al.
FORD et al
Appeal from Superior Court, Maricopa County; Thomas J. Croaff, Judge.
Reversed with directions.
Darrell R. Parker, of Phoenix, for appellants.
Jack Choisser, City Atty. and Howard W. Gibbons, Asst. City Atty., both of Phoenix, for appellees.
De Concini, Justice. LaPrade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[68 Ariz. 206] The sole question presented by this appeal is whether an ex-serviceman under the terms of our law is entitled to a veteran's 5% preference rating on a promotional examination.
This action against the Civil Service Board of the City of Phoenix and two individual members of the Phoenix Fire Department, as representatives of veterans in the department, and the City of Phoenix, was brought by three nonveteran members of the fire department, seeking a declaratory judgment to determine their rights and status under section 2, chapter 14, Laws of 1941, Regular Session.
Plaintiffs are nonveterans who on September 5, 1945, took promotional examination No. 402 for the position of engineer in the fire department. They qualified and were placed upon the eligible list for ensuing two-year period. This list was still in effect when the present action was instituted. Thereafter, on April 3, 1947, appellees Echols and Guthrie and fourteen other veterans all of whom had theretofore [68 Ariz. 207] been members of the Phoenix Fire Department were permitted to take the same examination, and by virtue of the fact that
they were veterans of the armed services of the United States, were given an additional 5% over and above their earned grade. All of them were enabled thereby to be placed ahead of the plaintiffs who were nonveterans. Consequently, plaintiffs were deprived of promotion to the position of engineer, which, but for the giving of the veteran's preference to the others, they would have received.
This examination was a promotional examination and all parties taking it were theretofore regularly appointed members of the fire department under the merit system.
Chapter 14, section 2, Laws of 1941, known as 16-2702, Arizona Code Annotated, 1939, provides as follows: "Veterans' Examination Preference. -- Any veteran of the army, navy or marine corps of the United States, holding an honorable discharge therefrom, who served therein during time of war, and who takes an examination pursuant to an application for employment by any city, town, county, or other political subdivision under a merit system of employment described in section 1, shall, in the determination of his final rating on the examination, be given a preference of five per cent over persons who are not veterans, to be added to the grade earned by him, but only in the event he earns a passing grade without the preference." (Emphasis supplied.)
Said section 16-2702 was amended by the legislature, 1947, 2nd S. S., chapter 30, section 2, to read in part as follows: "Veteran preference. -- (a) Any veteran of the army, navy or marine corps of the United States, holding an honorable discharge therefrom and who served therein during time of war, who takes any examination ...