Andreano v. Gunter

• Decision Date: 19 September 1961
• Docket Number: No. 50400,50400
• Citation: 110 N.W.2d 649,252 Iowa 1330
• Parties: Charles ANDREANO, Appellee, v. Elder GUNTER, City Manager, Des Moines, Iowa, and Charles Iles, Florence Wallace, Jens Grothe, William Leachman, Reinhold Carlson, City Council, Des Moines, Iowa, Appellants.
• Court: Iowa Supreme Court

Page 649

110 N.W.2d 649

252 Iowa 1330

Charles ANDREANO, Appellee, v. Elder GUNTER, City Manager, Des Moines, Iowa, and Charles Iles, Florence Wallace, Jens Grothe, William Leachman, Reinhold Carlson, City Council, Des Moines, Iowa, Appellants.

No. 50400.

Supreme Court of Iowa.

Sept. 19, 1961.

Leonard C. Abels, Corp. Counsel, and Don Hise, Asst. City Atty., Des Moines, for appellants.

Philip Colavecchio and I. Joel Pasternak, Des Moines, and Carl Smedal, Ames, for appellee.

THOMPSON, Justice.

On November 18, 1958, the plaintiff who had then been a member of the department for about 17 years, was advanced to the position of assistant chief of police in Des Moines. On March 8, 1961, he was summarily discharged by the defendant Gunter, the city manager of the City of Des Moines. This action of the city manager was approved by the city council on March 13, 1961. On March 10, 1961, the plaintiff served a notice on the civil service commission of the city appealing the order of discharge under the provisions of Chapters 365, the civil service statutes, and Chapter 70, the soldiers' preference statutes. After the city council had approved the order of discharge on March 13, the plaintiff served another notice of appeal. On March 20, the city manager filed charges and specifications against Andreano with the civil service commission, and on the same date the commission entered its order fixing March 27th next as the time for hearing the appeal. On March 24 plaintiff amended his notice of appeal challenging the jurisdiction of the commission to hear the appeal. On the same date the plaintiff filed a petition in certiorari in the Polk district court, and on the same date, and ex parte, the court ordered the writ to issue and stayed all further proceedings of the city against the plaintiff.

Thereafter the matter came on for hearing in the Polk district court, and after trial judgment was entered holding that the defendnat Gunter acted illegally in discharging the plaintiff peremptorily and without notice or hearing, setting aside the discharge and in effect at least reinstating the plaintiff in his position of assistant chief. From this judgment the defendants have appealed.

Involved in this case are Chapters 70 of the Code of 1958, I.C.A., the soldiers' preference statutes, and 365, the civil service laws of Iowa. The defendants assign four errors relied upon for reversal. As we view the case it is necessary only to consider the second and third assignments. We quote the second and third assignments:

'II The trial court erred in holding that Section 365.19 of the Code is not a specific, later-enacted statute which supercedes the provisions of Section 70.6 of the Code, which is a prior-enacted general statute, insofar as the two statutes are in conflict.

'III The trial court erred in holding that an Assistant Chief of Police of the City of Des Moines is not a 'person holding a strictly confidential relation to the appointing authority' within the meaning of the exception contained in Section 70.8 of the Code.'

I. It will be noted that assignment number II rests upon a proper construction of Sections 70.6 of the soldiers' preference laws and 365.19 of the civil service statutes. Since we consider them of controlling importance in the case they are set out here, so far as material. '70.6 Removal--certiorari to review. No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by a writ of certiorari.'

'365.19 Removal or discharge of subordinates. The person having the appointing power as provided in this chapter, or the chief of police and the chief of the fire department may peremptorily suspend, demote, or discharge any subordinate then under his direction, for neglect of duty, disobedience of orders, misconduct or failure to properly perform his duties.

'Chiefs of police and fire departments of cities under the commission plan shall report suspensions, demotions, or discharges made by them to the superintendent of public safety within twenty-four hours thereafter.

'In cities under the manager plan, such report shall be made to the manager, unless the suspension, demotion, or discharge is made by him, in which case he shall report the same to the city council.

'In other cities, the report shall be made to the mayor.

'Such report shall be in writing, stating the reasons for such suspension, demotion, or discharge, and a copy thereof shall promptly be given to the clerk of the commission. The person or body to whom the report is made shall affirm or revoke such suspension, demotion, or discharge, according to the facts and merits of the case.'

Some history of these statutes is pertinent. The soldiers' preference law was first enacted by the Thirtieth General Assembly, in 1904. The removal provision, with which we are here concerned, was substantially the same then as it now appears in section 70.6. The civil service statute, 365.19, pertaining to removals from office first appeared as section 14 of chapter 48 of the Acts of the Thirty-second General Assembly, in 1907. This enactment, however, pertained only to cities organized under the commission form of government. The Thirty-fourth General Assembly, in 1911, amended the section on removals, and it was again amended a few years later to bring it substantially within its present form. But each of these amendments limited the application to cities under the commission plan. It was not until 1921 that the Thirty-ninth General Assembly by section 4 of chapter 216 of its Acts made it applicable to city manager plan cities. Two years later the statute was again amended by the Acts of the Fortieth Ex.General Assembly, section 13 of S.F. 155, so that it appeared in its present form as set out above. This amendment made it applicable to all cities, and so far as city manager plan cities are concerned changed the lower of removal from the 'city manager' to 'the person having the appointing power'. But since the city manager has the appointing power there was no change in the effect or meaning of the law. He has the removal power under the statute.

We must start with the holding that chapter 70 is a general statute governing all appointments and removals to and from positions in the public service in Iowa; and chapter 365 is a special statute relating only to civil service appointments and removals in cities. We so held in Ervin v. Triplett, 236 Iowa 272, 275, 276, 18 N.W.2d 599, 601. Nor does the plaintiff otherwise contend. His argument is based on the contention that sections 70.6 and 365.19 are not in conflict. Clearly 70.6 is a general statute and section 365.19 is a special one, both by precedent and logic. It is also well settled law that when a general and a special statute are in conflict and cannot be reconciled the special one prevails. Shelby County Myrtue Memorial Hospital v. Harrison County, 249 Iowa 146, 152, 153, 86 N.W.2d 104, 108, 109, and citations.

Nor do we think it can fairly be held that there is no conflict between sections 70.6 and 365.19. Section 70.6 says no person holding a public position under the soldiers' preference law may be removed except for incompetence or misconduct shown after a hearing. If this statute governs the present situation, the plaintiff could not be removed except after notice and hearing. But section 365.19, which in addition to being a special statute is also a later enacted one, says any one under civil service may be peremptorily discharged by the person having the appointing power, with following provisions for appeal to the civil service commission; and, of course, a later appeal from the holding of the commission to the courts available. The first statute says no one may be removed without notice and hearing; the second, special and later enacted, says anyone under civil service may be summarily discharged. Many persons under civil service will also have rights under the soldiers' preference law, as has the plaintiff here. This must have been understood by the legislature when it enacted and amended the present section 365.19; yet, although it would have been easy to say that section 365.19 did not apply to those qualified under the soldiers' preference law, it did not do so. The section is broad; it gives to the person having the appointing power the right to peremptorily discharge 'any subordinate then under his direction * * *', without exception. We are concerned with the intent of the legislature; but in determining such intent, we apply certain rules and one of these, well defined and often applied, is that a special statute takes precedence if the two cannot be reconciled. The only way in which these two statutes under consideration could be reconciled is by ignoring the plain language of the special one, section 365.19, and reading into it an exception which the legislature did not see fit to place there.

The rule giving precedence and authority to the special statute in case of conflict is well settled; and we think it hardly admits of fair debate that there is a conflict here. The solution would then be easy but for the language of certain cases cited and relied upon by the plaintiff, which seems to say that there is no conflict between the soldiers' preference law and the civil service statutes. One of these, Geyer v. Triplett, 237 Iowa 664, 665, 22 N.W.2d 329, is easily distinguished. It involved an appointment rather than a removal. It is true we said in broad terms that we saw no conflict between the soldiers' preference law and the civil service law, and that the civil service law neither modifies nor repeals any of the provisions of the soldiers' preference act. Loc. cit. 237...