Dennis v. Bennet, 51784

• Decision Date: 08 February 1966
• Docket Number: No. 51784,51784
• Citation: 140 N.W.2d 123,258 Iowa 664
• Parties: Paul DENNIS et al., Appellants, v. Gordon BENNET et al., Appellees.
• Court: Iowa Supreme Court

Page 123

140 N.W.2d 123

258 Iowa 664

Paul DENNIS et al., Appellants, v. Gordon BENNET et al., Appellees.

No. 51784.

Supreme Court of Iowa.

Feb. 8, 1966.

Barnes & Schlegel, Ottumwa, for appellants.

Herman J. Schaefer and Bookin & Moreland, Ottumwa, for appellees.

RAWLINGS, Justice.

The City of Ottumwa, Iowa, is a municipal corporation organized and operating under the commission plan. Defendants were members of the city council. One of the members of the city council serves as superintendent of public safety. Plaintiffs Paul Dennis, Robert H. Knox and Hubert L. Smith, each being a member of the Fire department and a war veteran, together with Hugh Stufflebeam, a member of the fire department but a nonveteran, were all on the chief's civil service eligible list. Save and except for the matter of veterans preference, each of these applicants had equal qualifications for the appointment. A vacancy occurred in the office of chief of the fire department, and Hugh Stufflebeam, the nonveteran, was appointed. By mandamus plaintiffs challenged the action contending each, being a veteran, had preferential right to appointment.

The trial court sustained defendants' motion to dismiss plaintiffs' action in mandamus to compel veterans preference in civil service appointment of chief of a fire department, and plaintiffs appealed.

I. The ultimate question to be resolved in this case is whether a member of the city council acting as superintendent of public safety in a municipality operating under the commission plan, was governed by the veterans preference law in the selection of a chief of the fire department from the chief's civil service eligible list.

Since civil service and veterans preference and both creatures of legislation, any problem relating to either or both can be resolved only be reference to applicable statutory provisions.

This usually means resort must be had to what is known as statutory construction. Our task then is to determine the legislative intent as shown by what the legislature has said rather than what it should or might have said. Rules of Civil Procedure, 344(f)(13).

Section 365.8, Code, 1962, provides for original entrance examinations of applicants for positions under civil service other than promotions.

Section 365.9 makes provision for competitive promotional examinations and specifically declares all vacancies in civil service grades above the lowest in each department shall be filled by promotion of subordinates.

Turning to section 365.17 pertaining to qualifications under civil service, we find this relevant provision: '* * * In no case shall any person be appointed or employed in any capacity in the fire or police department, or any department which is governed by civil service, unless such person:

'1. Is a citizen of the United States and has been a resident of the city for more than one year, but such residence in the city shall not be a necessary qualification for appointment as chief of fire department. * * *'

Then Code section 365.13 provides in part as follows: 'The chief of the fire department shall be appointed from the chief's civil service eligible list and shall hold full civil service rights as chief, and the chief of the police department shall be appointed from the active members of the department * * *.'

'In cities under the commission plan of government the superintendent of public safety, with the approval of the city council, shall appoint the chief of the fire department and the chief of the police department. * * *'

And, section 365.14 states as follows: '* * * A police officer under civil service may be appointed chief of police without losing his civil service status, and shall retain, while holding the office of chief, the same civil service rights he may have had immediately previous to his appointment as chief, but nothing herein shall be deemed to extend to such individual any civil service right upon which he may retain the position of chief.'

Also section 365.10 serves to give preference in all examinations and appointments, other than promotions, to war service veterans.

An examination of these statutes clearly discloses an intent on the part of our legislature to differentiate between appointments and promotions. The terms are not synonymous.

As was stated in Daub v. Coupe, 9 A.D.2d 260, 193 N.Y.S.2d 47, 52: 'To appoint is to designate or assign to a position. To promote is to advance or progress to a higher grade, position or degree. Promotion cannot occur until there exists a condition or status from which there can be advancement or progress.'

This means, in the field of civil service, an appointment necessarily precedes promotion and creates the condition upon which a promotion may be effected.

Referring now to Code sections 365.6(2)(a), 365.13 and 365.14, we find the chief of the fire department must be appointed from the chief's civil service list and once appointed holds full civil service rights as such.

On the other hand, the law specifically provides the chief of police must be appointed from the active members of the department and holds no civil service status in that office. In fact, he, as chief, retains only those civil service rights which were held prior to appointment as head of the department. Noticeably the law does not provide that the chief of the fire department be appointed from the active members of the department.

Section 365.17 discloses any person appointed to a subordinate position in a fire department must have been a resident of the city for more than one year. However, the chief need not possess such residential qualifications. The self-evident intent and purpose of this law is to permit cities to look elsewhere, if desired, for trained and expert fire fighters in the selection of an individual to guide and direct the operations of its fire department. Impliedly he need not be an acting member of the department within the appointing city in order to qualify for the office.

We are satisfied any person desiring a civil service appointment as chief of the fire department in a city operating under the commission plan, must take and pass an entrance examination in order to secure a listing on the chief's civil service eligible list. From this list only may an appointment of fire chief be made.

II. Having determined the office of chief of a fire department in cities operating under the commission plan, is a civil service appointive position, we turn now to the matter of veterans preference.

In dealing with the matter of appointments, we have heretofore held there is no conflict between the civil service law (Code chapter 365), and the soldiers preference law (Code chapter 70). Geyer v. Triplett, 237 Iowa 664, 22 N.W.2d 329; Ervin v. Triplett, 236 Iowa 272, 18 N.W.2d 599; and Case v. Olson, 234 Iowa 869, 14 N.W.2d 717.

In Andreano v. Gunter, 252 Iowa 1330, 110 N.W.2d 649, this court was primarily concerned with the matter of discharge or removal of civil service employees. We there dealt with and, in fact, found a conflict between sections 70.6 and 365.19 of the Code. But those statutes have nothing to do with the matter now before us.

In connection with the case now at hand, we find no irreconcilable conflict in the statutes relating to appointment of chief of a fire department under civil service and the soldiers preference law.

III. The question with which we are now confronted is whether the chief of a fire department in a municipality operating under the commission plan is a private secretary or deputy of any official or department, or a person holding a strictly confidential relation to the appointing officer. Section 70.8, Code, 1962.

This legislative enactment is in the nature of a proviso, standing as an exception to a rule. However, difficulty has usually been encountered in the determination of its applicability. In fact, statutes like or similar to section 70.8 have constantly created problems in the interpretation and administration of soldiers preference and civil service laws. See Annos. 146 A.L.R. 818.

The able trial court held the chief of a fire department holds a confidential relation to the appointing officer. We cannot agree.

While this appeal is not triable de novo, it still remains that a determination of the status of chief of a fire department is not a simple factual finding. Rather it is a matter for judicial determination and we...