Allgood v. City of Oskaloosa, No. 45767.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: OLIVER
• Citation: 1 N.W.2d 211,231 Iowa 197
• Parties: ALLGOOD v. CITY OF OSKALOOSA et al.
• Docket Number: No. 45767.
• Decision Date: 09 December 1941

231 Iowa 197
1 N.W.2d 211

ALLGOOD
v.
CITY OF OSKALOOSA et al.

No. 45767.

Supreme Court of Iowa.

Dec. 9, 1941.

Appeal from District Court, Mahaska County; Frank Bechly, Judge.

Action in mandamus by discharged city patrolman against city officials to secure reinstatement and salary lost. Defendant's motion to dismiss asserted the statutory remedy by appeal to the civil service commission was a bar to mandamus. Said motion was sustained and the cause dismissed. Plaintiff appeals.

Affirmed.

Harold J. Fleck, McCoy & McCoy, and Ver Ploeg, Ver Ploeg & Ver Ploeg, all of Oskaloosa, for appellant.

L. R. Carson and H. S. Life, both of Oskaloosa, for appellees.

OLIVER, Justice.

In January, 1941, plaintiff instituted action in mandamus against defendants, City of Oskaloosa, its chief of police, mayor, members of the city council and other city officials. Therein plaintiff alleged his appointment to the city police department, as a patrolman, under civil service rules, on April 5, 1937, and his subsequent appointment on said date as chief of police of Oskaloosa; that on April 2, 1939, a new chief of police was appointed; that on April 3, 1939, plaintiff reported for duty as a patrolman to the new chief of police and mayor and was, by them, orally advised that there was no vacancy in the police department or work for the plaintiff; that immediately

[1 N.W.2d 212]

thereafter two members of the police department were elevated to the position of patrolman and two new men were given the positions vacated by them; that the aforesaid acts were without authority, arbitrary and illegal; that plaintiff was not removed, demoted or suspended for neglect, disobedience, misconduct or failure to properly perform his duties; that no copy of said order of discharge was given to the civil service commission, nor was any such order made; that no report was made to the mayor and no charges were filed before or hearing had by the civil service commission; and that said actions and procedure did not comply with the civil service law, Chapter 289, Code of Iowa, 1939, § 5689 et seq. Plaintiff also alleged that at all times since, he was ready, able and willing to perform any duties assigned to him as a patrolman upon said police force. He prayed that the chief of police be ordered to reinstate him as a patrolman and that the proper city officials be ordered to allow and pay his salary as such from April 3, 1939.

The petition was assailed by motion to dismiss, which asserted the provisions of the civil service law afforded plaintiff a remedy of which he had failed to avail himself. The court sustained said motion and entered judgment against plaintiff. From said ruling and judgment plaintiff prosecutes this appeal.

I. It is suggested by appellant that the statements made plaintiff by the chief of police and mayor “that there was no vacancy in the police department or work for the plaintiff” were not sufficient to constitute the removal or discharge of appellant within the meaning of the civil service law. In Markey v. Schunk, 152 Iowa 508, 512, 132 N.W. 883, 885, the court said: “* * * to * * * discharge means to remove, * * * permanently, from employment.”

No particular words or acts are essential to constitute a discharge. It is sufficient if there be an intention to discharge evidenced by words or acts, which unequivocally show the intent. The petition in this case alleged that the words of the chief of police and mayor, refusing plaintiff the right to work as a patrolman, were immediately followed by other appointments to and promotions in the police force.

In Dickey v. King, 220 Iowa 1322, 1324, ...