O'Donnell v. Civil Serv. Comm'n of Des Moines

• Decision Date: 10 July 1919
• Docket Number: No. 32716.,32716.
• Citation: 173 N.W. 43
• Parties: O'DONNELL v. CIVIL SERVICE COMMISSION OF CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

173 N.W. 43

O'DONNELL

v.CIVIL SERVICE COMMISSION OF CITY OF DES MOINES ET AL.

No. 32716.

Supreme Court of Iowa.

July 10, 1919.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

Certiorari by M. J. O'Donnell against the Civil Service Commission of the City of Des Moines and others. From ruling against them on their “demurrer” to the sufficiency of the record to sustain the writ, defendants appeal. Reversed.H. W. Byers, Reson S. Jones, D. Cole McMartin and C. A. Weaver, all of Des Moines, for appellants.

Thomas Watters, Jr., and Miller & Wallingford, all of Des Moines, for appellee.

WEAVER, J.

The plaintiff in the trial court sued out a writ of certiorari to review the action of the civil service commission of the city of Des Moines in discharging him from the city's police force. From the statements in the pleadings, and from the record certified in return to the writ, it appears without dispute that on and for some time before June 6, 1917, he was a member of the regular police force of the city. On the date named the city's chief of police laid before the civil service board a communication in writing as follows:

“Honorable Board of Municipal Service Commissioners, Municipal Building, City: I have the honor to report that I have this day and date suspended from duty for 30 days, without pay, Officers C. J. Mohr and M. J. O'Donnell for conduct unbecoming an officer while on duty. Suspension of Patrol C. J. Mohr to commence June 5th, and M. J. O'Donnell on June 6th.

Respectfully submitted,

C. C. Jackson, Chief of Police.”

On the following day the order of suspension was reported to and approved by the superintendent of the public safety of said city. At a meeting of the civil service board on June 17, and again on June 28, 1917, an investigation was had on its own motion into the fitness of the plaintiff for service in the police department. The plaintiff appeared and testified as a witness. Other witnesses were also examined. On July 11, 1917, the commission caused written notice to be served upon plaintiff to appear at the council chamber on July 17, 1917, for hearing on charge of misconduct against him in being under the influence of liquor while performing the duties of a police officer on the 5th day of June, 1917.

On July 17th the hearing appears to have been adjourned until the next day, when the matter came up for final consideration. The plaintiff appeared, and was also represented by counsel. Witnesses were examined with reference to the charge, and it was also stipulated that the testimony taken at the hearing had on June 28, 1917, should be considered a part of the record. At this meeting, plaintiff by his counsel demurred to the sufficiency of the notice served on him by the board under date of July 11, 1917, because it did not comply with the rules and regulations of the board--more particularly that part thereof reading as follows:

Manual of Des Moines Police Department, page 12, par. 4: “Charges preferred against any member of the police force must be in writing in duplicate and sworn...