Allen v. Wegman

• Decision Date: 04 April 1934
• Docket Number: No. 42254.,42254.
• Citation: 218 Iowa 801,254 N.W. 74
• Parties: ALLEN v. WEGMAN.
• Court: Iowa Supreme Court

218 Iowa 801

254 N.W. 74

ALLEN

v.WEGMAN.

No. 42254.

Supreme Court of Iowa.

April 4, 1934.

Appeal from District Court, Polk County; Frank S. Shankland, Judge.

A certiorari proceeding brought in the district court to test the legality of the discharge of the plaintiff from the office of head bookkeeper in the office of the state treasurer. The plaintiff claimed a preference and rights under the Soldier's Preference Law. There was a finding by the trial court that the plaintiff was competent and not guilty of misconduct, and that he was not occupying a strictly confidential position, and that his discharge was wrongful. The defendant appeals.

Reversed and remanded.

CLAUSSEN, C. J., and EVANS, STEVENS, and ALBERT, JJ., dissenting in part.Edward L. O'Connor, Atty. Gen., and Clair E. Hamilton, Asst. Atty. Gen., for appellant.

George A. Mahoney and H. W. Hanson, both of Des Moines, for appellee.

ANDERSON, Justice.

The plaintiff-appellee, Clint A. Allen, had been employed as bookkeeper in the state treasurer's office under different state treasurers for a period of about eleven years. On January 2, 1933, the defendant-appellant, Leo J. Wegman, succeeded Ray E. Johnson as treasurer of state. The appellee had been reappointed to his position every two years during the time he was employed in the office. He was replaced by one William Schultes on January 2, 1933, but continued as an assistant, without any definite employment until on or about the 12th day of January, 1933, when his services were discontinued by the said Leo J. Wegman. On February 8, 1933, the appellee commenced this action in the district court of Polk county, Iowa, alleging that he is a citizen of the United States and state of Iowa and residing in Polk county, Iowa; that he is a veteran and an honorably discharged soldier of the United States Army, and that as such is entitled to the preference under the provisions of chapter 60 of the 1931 Code of Iowa (sections 1159-1165); that he was discharged from his employment as bookkeeper in the state treasurer's office of state of Iowa, on or about the 12th day of January, 1933, without just cause or excuse; that charges had been preferred against him by the treasurer of state, but that no hearing on said charges was ever had, although appellee had demanded such hearing, and he had also demanded that he be reinstated to his position as bookkeeper in the said office of state treasurer. The plaintiff further alleges that he has no plain, speedy, or adequate remedy at law, and prays for the issuance of a writ of certiorari commanding the defendant, Wegman, to certify to said court a transcript of the record and proceedings had with reference to the dismissal of the plaintiff from his position as bookkeeper in the treasurer's office, “together with all the facts relating to said matters,” and asks that said proceedings be annulled and set aside, and that he have judgment for the salary of which he has been illegally deprived.

The writ was issued upon the foregoing petition, as prayed, directed to the defendant-appellant, commanding him to certify and return fully to the court, “a transcript of the records and proceedings and facts in this cause relating or appertaining to the discharge of this plaintiff.”

The defendant-appellant filed a return to said writ alleging that he has neither knowledge nor information as to whether or not the plaintiff-appellee is an honorably dischargedsoldier of the United States, and specifically denies that the plaintiff is entitled to any preference under the provisions of chapter 60 of the 1931 Code; that shortly after the 12th day of January, 1933, the plaintiff demanded a hearing under the Soldier's Preference Law, and, in order to comply with such demand, the defendant filed charges under section 1163 of the 1931 Code. A copy of the charges so filed was attached to the return and alleged that the plaintiff, Allen, by reason of his inattention to the duties of his office, was incompetent to handle the business of said office and was guilty of misconduct. The defendant-appellant further stated in his return that no hearing was had upon the charges thus filed for the reason that the said plaintiff-appellee was not entitled thereto, and that he is within the exceptions specified in section 1165 of the 1931 Code. The defendant further alleges, in his return, that the discharge of the plaintiff was not malicious and that it was upon good cause and for a good excuse, and that the charges made against the plaintiff were true, and that the plaintiff was incompetent and also guilty of misconduct.

The defendant further states that the position of head bookkeeper in the office of the treasurer of the state of Iowa is one which is classed as a strictly confidential relation to the appointing officer, and for that reason the Soldier's Preference Law does not apply to the said position.

The defendant further states that he desires upon the submission of the case to present evidence in support of the statements contained in the return to the writ, and asks that the writ be annulled.

The plaintiff moved to strike certain portions of the foregoing return to the writ, but this motion was not ruled upon by the court, and the plaintiff filed a general denial to the return.

The cause proceeded to trial before the court, and evidence was introduced upon the issues presented by the plaintiff's petition and the defendant's return to the writ of certiorari. It appears that the plaintiff was first employed as bookkeeper in the office of the state treasurer in January, 1922, and continued to hold that position until on or about January 2, 1933; that the plaintiff was an honorably discharged soldier of the United States Army. It appears that it was a part of the appellee's duties to post in a loose-leaf ledger some three hundred accounts, including all of the various department and trust funds of the state; that in doing this he posted from the warrant redeemed register, and also from the journal. The register and journal were kept by other employees, but were under the supervision of the plaintiff. It also appears that the plaintiff was in general charge of the bookkeeping department of the treasurer's office, and that, if the treasurer wanted to know the balance in any particular fund on any particular day, he would have to call upon the plaintiff for such balance, that it would be impossible for the treasurer himself to perform all of the duties connected with his office, including that of bookkeeping, and that it was necessary that that part of the work be delegated by the treasurer to a head bookkeeper and other assistants. The position of head bookkeeper was one which called for a man of integrity and trust and who could be depended upon as to his competency and as to his conduct of the office. The head bookkeeper is the only place or department in the office of the state treasurer where down to the minute information could be obtained concerning any of the state accounts; and that any misconduct or inattention to the duties of the position of head bookkeeper would reflect on the position of the treasurer of state. There is no testimony in the record as to the competency of the plaintiff, other than the fact that he was retained therein for approximately eleven years. There is evidence, however, that his competency and conduct in the office had been questioned and complained of by the state treasurer immediately preceding the defendant, Wegman. There is direct testimony from other employees in the office that the plaintiff on many occasions and over a considerable period of time during the latter years of his employment allowed his work to accumulate and become delinquent for periods of time ranging from one week to two months, and that during such times it would be practically impossible for the state treasurer or any one else to obtain up-to-date and accurate information as to the condition of any of the various funds of the state. It is significant that this testimony was produced from employees of the office who had worked with the plaintiff for from five to eleven years. We have such testimony from R. M. Williams, who had been deputy treasurer for a five-year period, E. L. Brown, who had been cashier for five years, Rebecca Lipson, who classified the warrants for the various funds when they first came into the office, and who had been so employed for five years, Mrs. Ella Ulrich, who was warrant clerk and kept the warrant register and posted the register before it was handed to the head bookkeeper, and who had been employed in that capacity for twelve years, Cecelia McGrevy, who was bonus clerk and took care of the state's sinking fund and also took the treasurer's dictation, and who had been employed for a period of six years, Ellen Lathrop, who was employed in the office with the plaintiff for a period of six years. It is true all of these employees were retained in the office by Mr. Wegman, and were employed by him at the time their testimony was offered in the trial of this case, but such fact should not detract from the weight of their testimony. On the other hand, should the plaintiff be reinstated to his position, he would necessarily be in the atmosphere created by their adverse testimony. These witnesses all testified that the plaintiff was very inattentive to the duties of his office, and that he absented himself from the office approximately one-third of the time during each day, without any cause, reason, or excuse therefor, and that his books were always from two weeks to two months behind. Mr. Wegman, the defendant, testified that at the time he went into the office on December 20, 1932, the books of Mr. Allen were in arrears two months, and that they were not brought up to date until about the 12th of January, 1933, and that he kept Mr. Allen in the office up to that time in order to get the books posted up to date. Wegman also testified that, when he found...