Babcock v. City of Des Moines
| Decision Date | 14 May 1917 |
| Docket Number | 30811 |
| Citation | 162 N.W. 763,180 Iowa 1120 |
| Parties | FRED BABCOCK, Appellee, v. CITY OF DES MOINES et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, SEPTEMBER 29, 1917.
Appeal from Polk District Court.--W. H. MCHENRY, Judge.
SUIT in equity, involving whether defendants have acted in contravention of what is known as the Soldiers' Preference Law.
Reversed.
H. W Byers, Guy A. Miller and Thos. Watters, Jr., for appellants.
O. M Brockett, for appellee.
I.
The plaintiff is within a class who may invoke the so-called Soldiers' Preference Law. He claims, and the district court found, that he was unlawfully discharged, in violation of that law. Its provisions are found in Sections 1056-a15 and 1056-a16, Supplement to the Code, 1907. In effect, and so far as material here, they are: That, in every public department of cities, certain persons shall be entitled to preference in appointment, employment and promotion over other persons of equal qualifications. A refusal to allow the preference, or a reduction of compensation intended to bring about the resignation or discharge of one entitled to the preference, gives a right of action. No one entitled to the preference shall be removed save after hearing upon due notice upon stated charges, and with right of review.
As we understand it, no refusal to allow a preference is involved here; that is to say, it does not seem to be claimed, and, at any rate, is not established, that anyone was preferred over plaintiff in an original giving of employment. The most plaintiff claims on this head is that he was employed, was discharged, and that others than he have since been doing the work which he could and would have performed had he not been discharged. While such discharge and permitting the work to be done by others might, in some circumstances, violate the statute, the violation would not be undue preferment in employing, but unjustified discharge. It should be added that, at all events, there is no evidence that those now doing the work aforesaid are not, as well as plaintiff is, honorably discharged soldiers, and, as much as he, entitled to the benefit of the Soldiers' Preference Law.
On careful examination, the contention of the plaintiff narrows to two claims: First, that his discharge was forced upon him by a reduction of salary, made in bad faith, and unjustifiable. He presents, and it is true, that no charges were filed against him, and we assume that no charges were justified. But the salary of an employee, even one entitled to the benefits of said statute, may be reduced without violating that statute, and it is only a reduction which is intended to bring about a resignation or discharge that the statute condemns. His compensation was reduced. But the decree of the district court finds expressly:
"That the evidence in support of that part of the plaintiff's petition which complains of reduction of his salary, and charges that the same was had and done by the defendants in bad faith, and for the purpose of bringing about the resignation or discharge, is not sustained by the evidence."
The appellants, of course, do not complain of this finding, because, so far as it goes, it is in their favor. The appellee has not appealed, and is in no position to have this finding, or rather the decree upon such finding, set aside or disregarded. It therefore becomes the law of the case on this appeal, though the appeal is triable de novo; and we must find that the statute was not violated in reducing the salary of the plaintiff.
II. The plaintiff charges further that he was unlawfully discharged by the agency of a pretended abolition of the position he occupied in the employ of the city. As we understand him, he says: First, that said position was never abolished; that, notwithstanding, the city insists that what action was taken does abolish the position; and second, that, if there was an abolition, it was in bad faith, and a violation of the statute, as much so as if resignation or discharge had been brought about by a colorable and unjustified reduction of compensation.
The statute prohibits reducing compensation with intent to bring about resignation or discharge, and, so far, as its terms go, stops there; that is to say, it does not in words prohibit the bringing about a discharge by the agency of an abolition of place made in bad faith to work a discharge. But the statute is highly remedial, and intended to give special and deserved privileges to one class of our citizens in consideration of services rendered the country in time of need. We should construe it, when within reason possible, so that its evident purpose may be accomplished. So construing, we hold that a bad-faith abolition, intended to bring about the discharge of one within the Soldiers' Preference Law, is within the spirit of that law and prohibited by it. If a city that had through its officers expressed ill will towards an employee, and so declared an avowed purpose to accomplish his resignation or discharge, should one day abolish the position occupied by that employee, and the next day re-create it and fill it with someone not within the Soldiers' Preference Law, not more competent than the former and soldier employee, and should pay the new incumbent of the re-created position a larger compensation than had been paid before, no one should contend that the mere going through of the ceremony of abolishing the place or office would avoid the law. The supposed is an extreme case. Others differing in degree only may present an abolition that the law condemns. The vital questions, then, are whether the position occupied by the plaintiff was abolished, and, if so, whether the abolition was in bad faith and made with intent to force the discharge of the plaintiff.
2-a
If the position once occupied by plaintiff has been abolished, the abolition was effected by the adoption of a resolution about April 28, 1914, wherein the governing body of the defendant city resolved that certain salaries, with certain exceptions, be fixed at the same figures that prevailed the year preceding, one of the exceptions being "the clerk in the record room, which is hereby abolished." Since the adoption of this resolution, and by reason of the interpretation thereof on part of the city, the plaintiff has not been permitted to work for the city, and has received no payment for services, though he has tendered such services, and may be assumed to be ready, able and willing to perform them. As we gather it, the plaintiff contends that the foregoing things did not work the abolition of the position held by him, because it deals in terms with "the clerk in the record room," and that he has never been such clerk, if it be assumed that anyone has been. To deal with this contention, we are required to give consideration to so much of the record as discloses or tends to disclose just what position the plaintiff held under employment by the appellant city. This employment began in the spring of 1904, and then consisted of examination of the city's records and accounts of the various offices of the city, and at this time, according to his petition, plaintiff became regularly employed as a clerk in the office of the city auditor, entering his duties as such on June 1, 1904. At the time he thus began work, such work was limited to assisting the auditor and his deputy in the work of their office, such as looking after the bills, checking schedules, checking and entering warrants, and making the proper entries in the various records of the office. In the course of a few months, the care of the requisite printing for the various offices of the city, and of the office supplies, and of the work of preparing and altering various blanks and forms used, was assigned to plaintiff. About April 1, 1910, his salary was raised to $ 100 a month, and at this time, the classification and organization of the work assigned to him had assumed the character of a distinct department or position under the immediate charge of the auditor's department, and under the general supervision of the superintendent of the department of accounts and finances.
When about this time, the city adopted what is known as the commission plan of government, the duties of the position occupied by plaintiff came under the supervision of the superintendent of accounts and finances, but still continued to be a subordinate position in or department of the work of the office of the city auditor. The work assigned to plaintiff developed, and by his help became classified and systematized, and he finally became the custodian of the room devoted to the deposit of records and filing appliances, wherein supplies for the various offices of the city government were kept, and where requisitions therefor were honored and supplies issued thereon. In addition, he was put in charge of keeping the accounts for printing and...
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