asserted that the Court is without jurisdiction since § 1343(3) confers jurisdiction only in cases involving “personal rights,” not in disputes involving “property rights.”
When this case was argued, this contention was the subject of much controversy on the part of both courts and scholars.5 However, subsequent events have provided this Court with an authoritative answer. In the recent case of Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), the Supreme Court clearly rejected the “personal — property” distinction first enunciated in Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (Stone, J., concurring), and more recently resurrected by Judge Friendly in Eisen v. Eastman, 421 F.2d 560 (2nd Cir. 1969). This removes any doubt as to the impropriety of such a distinction.
On the basis of this authority there can be no doubt that' the Court has jurisdiction under the provisions of 28 U. S.C. § 1343(3) and (4).
PREFERENCE TO VETERANS IN PUBLIC EMPLOYMENT
Plaintiffs have made a broad attack on veterans’ preference, challenging both the initial absolute preference given by subsection 2 and the five point promotional preference granted by subsection 3. In the event we are not prepared to rule so broadly, they have proposed, as an alternative, that subsection 3 be considered separately and declared unconstitutional. Thus, for purposes of our analysis, the two subsections will be considered independently of each other.
Subsection 2 of § 197.45 gives an absolute preference in public employment to veterans, provided they meet the minimal requirements for other applicants, i. e., that they have scored a passing grade on civil service tests. In other words, all veterans who score a passing mark on the civil service exam must be appointed before any non-veteran, regardless of the relative scores of the various individuals.
Plaintiffs claim that this section creates a class of citizens — “veterans”— who are able to receive certain employment rights at the expense of all other citizens. This legislative classification, they assert, is prohibited by the Fourteenth Amendment in that it denies non-veterans equal protection of the laws.
In analyzing an equal protection claim it is first necessary to carefully view the statutory classification. The general rule is that great latitude is allowed legislatures in making classifications in social and economic legislation. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Because of the broad discretion given the legislature, the proponent of a constitutional attack on a statute usually has the burden of proving the statute denies him equal protection. Madden v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 84 L.Ed. 590 (1940). However, when a statutory classification is either based upon “suspect criteria”6 or affects a “fundamental right,”7 the burden of proof shifts and such a classification will be held to deny equal protection unless it can be
5
Compare Eisen v. Eastman, 421 F.2d 560 (2nd Cir. 1969), with German v. Schmidt, 330 F.Supp. 480 (W.D.Wis.1971). See also, Note, Section 1343 of Title 28— Is the Application of the “Civil Rights-Property Rights” Distinction to Deny Jurisdiction Still Viable?, 49 B.U.L.Rev. 377 (1969) ; Note, The Proper Scope of the Civil Rights Act, 66 Harv.L.Rev. 1285 (1953).
6
Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944) ; Harper v. Virginia Board of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).
7
Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) ; Reynolds v. Sims, 377 U.S. 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ; Harper v. Virginia Board of Elections, supra; Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).