Douglas v. City of Des Moines

• Decision Date: 26 June 1928
• Docket Number: 38457
• Citation: 220 N.W. 72,206 Iowa 144
• Parties: B. B. DOUGLAS, Appellee, v. CITY OF DES MOINES et al., Appellants
• Court: Iowa Supreme Court

220 N.W. 72

206 Iowa 144

B. B. DOUGLAS, Appellee, v. CITY OF DES MOINES et al., Appellants

No. 38457

Supreme Court of Iowa, Des Moines

June 26, 1928

Certiorari to Polk District Court.--W. G. BONNER, Judge.

Proceeding by plaintiff in the district court to review and declare void the action of the appellants, as defendants, in refusing to retain the said Douglas as a city employee. The relief was granted, and the plaintiff was ordered restored to his former position as a policeman.

Reversed.

Reson S. Jones, Eskil C. Carlson, Chauncey A. Weaver, George W Vest, and Don G. Allen, for appellants.

E. S Thayer, for appellee.

KINDIG, J. STEVENS, C. J., and EVANS, FAVILLE, and WAGNER, JJ., concur.

OPINION

KINDIG, J.

This controversy involves the Soldiers' Preference Law, as contained in Chapter 60 of the 1924 Code. Section 1159 thereof reads as follows:

"In every public department and upon all public works in the state, and of the counties, cities, towns, and school boards thereof, including those of cities acting under special charters, honorably discharged soldiers, sailors, marines, and nurses from the army and navy of the United States in the late Civil War, Spanish-American War, Philippine insurrection, China relief expedition, or war with Germany, who are citizens and residents of this state, shall, except in the position of school teachers, be entitled to preference in appointment, employment, and promotion over other applicants of no greater qualifications."

Appellee, as plaintiff below, bases his cause of action upon that section, claiming that on the 13th of July, 1923, he was duly appointed and employed as a police officer of the city of Des Moines, and thereafter served and received compensation as such until about the 19th day of April, 1926, when he was removed from his position, in violation of Section 1163 of the same chapter, which provides:

"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."

To accomplish this "review," appellee made application for and obtained the allowance of a writ of certiorari from the trial court, directed to the appellants, the city and officers thereof, commanding that they make return of their doings in the premises. After hearing in that court, the writ was sustained, and the cause comes here by appeal therefrom. For return to that writ, appellants, in due time, made the following showing in the district court: That the appellee, Douglas, who had a defective and useless right arm, was originally permitted to do police department work as an extra special, from July 13, 1923, to September 15, 1924, as an assistant in the traffic regulations. On November 1, 1924, he was allowed to help in the police department as an emergency assistant, continuing as a special extra until March 15, 1925. Then, on September 15th of that year, appellee was again permitted to help out in emergency, and served as bulletin clerk until November 15, 1925. Following some intermission, he was again employed, November 15, 1926, as a special member of a patrol crew, until April 30, 1927, at which time he was retired, for the ensuing reasons:

"* * * 2. The emergency causing his employment had passed. 3. Our [the city's] appropriation for the current year would not allow the employment of special help. 4. Douglas was never a regular member of the Des Moines police department. He never passed a civil-service examination. He never contributed to the pension fund. He has the misfortune to have a crippled arm, and is not physically qualified for police duty. His physical condition has been the same throughout his entire period of connection with the Des Moines police department."

At the trial, additional evidence was introduced by appellee, to show that: First, he was not employed as an emergency officer; second, no complaint was made about his services, but, on the other hand, he was complimented for his efficiency; third, while appellee never took the civil-service examination, yet he wore a civil-service policeman's badge; fourth, no notice was given of the contemplated discharge, nor was any hearing permitted in reference to the city's right so to act; and fifth, the city has other employees who have not passed the civil-service examination. Such were the issues upon which the case was tried, and we are now called upon to investigate the errors alleged to have been committed by the district court.

I. Appellants contend that the first mistake made at the trial was the admission of additional evidence on behalf of the appellee, supplementing the writ. Their argument is that the dispute is to be decided entirely upon said "return." With this thought, however, we are compelled to disagree. Butin v. Civil Service Com., 179 Iowa 1048, 162 N.W. 565. Under certain conditions, further testimony may be introduced; for, as said in the Butin case, supra, it is the intent of the act "to permit the reviewing court to consider anything which legitimately bore on whether the discharge was for any reason wrongful; * * *"

II. Fundamentally, the "Preference Statute" (Section 1159, supra) contemplates competition between two applicants: that is to say, an honorably discharged soldier, on the one hand, and a non-soldier, on the other. Without such situation, that legislative enactment has no application. Before us is not a demand for an appointment to a position, within the scope of that section...