Ervin v. Triplett

• Decision Date: 06 May 1945
• Docket Number: 46654.
• Citation: 18 N.W.2d 599,236 Iowa 272
• Parties: ERVIN v. TRIPLETT.
• Court: Iowa Supreme Court

18 N.W.2d 599

236 Iowa 272

ERVIN v. TRIPLETT.

No. 46654.

Supreme Court of Iowa

May 6, 1945

F T. VanLiew, B. J. Flick, Paul Hewitt, and Harvey Bogenrief all of Des Moines, for appellant.

Ralph N. Lynch, of Des Moines, for appellee.

WENNERSTRUM Justice.

Plaintiff brought an action at law on a petition for a writ of certiorari thereby seeking to determine the right of the plaintiff, a police department patrolman holding civil service status in the City of Des Moines, to retain a rank or rating on the police force as a detective by virtue of the soldiers preference act. The plaintiff, as will be herein shown, previously held the position of patrolman but was thereafter assigned and transferred to that of detective. After holding the position of detective for a period of time he was again reassigned or transferred to that of patrolman which provided a lesser compensation. The trial court, upon submission of this cause, entered a judgment ordering the defendant to restore the plaintiff to his former detective duties. The defendant has appealed.

The appellee is an honorably discharged soldier of World War I. The record discloses that he has been on the police force in the City of Des Moines for 21 years; that he held a civil service rank in this department as patrolman which carried with it the compensation of $180 per month. It is shown that in April 1926 he was assigned to the position of detective and that after a period of six months he asked to be put back as patrolman. It is also shown by the record that on February 1 1941 he was again assigned as a detective, that thereafter he was reassigned as a patrolman on July 16, 1941, then assigned as detective to the liquor and vice bureau April 16, 1942, then transferred to the position of defective April 4, 1944. It is further shown that the appellee was thereafter transferred to the position of patrolman June 12, 1944. It is shown that the compensation of a detective was $190.75 per month which is $10.75 more compensation than that which the position of patrolman provided.

It is conceded that the appellee has a civil service rating as patrolman in the City of Des Moines, Iowa. It is also admitted that the appellee, through his attorney, notified the appellant by mail that he claimed his assignment or transfer from his prior duties as a detective to the duties of patrolman was illegal under the Iowa soldiers preference law. It is appellee's claim that the transfer to that of patrolman was illegal in that there were no charges filed against him asserting that he was guilty of any incompetency or misconduct. It is shown that no hearing was held bearing upon either his incompetency or misconduct and no notice was given him whatsoever of the contemplated transfer, which action he claims was required under the provisions of the soldiers preference law. It is further condtended on behalf of the appellee that the appellant in removing him from the office of detective acted illegally and in excess of his jurisdiction and authority under the provisions of section 1163 of the 1939 Code of Iowa, and the other provisions of chapter 60 thereof.

It is the appellant's contention that the appellee was not demoted or removed from office but was merely transferred from one division or rank of patrolman to the other and it is denied that appellant acted illegally or in excess of his jurisdiction or authority. The appellant further contends that he merely transferred the appellee from the position of a detective, which involved a confidential relationship, to the position of a uniform patrolman which had been the custom and practice followed in the City of Des Moines for many years past, and that the appellee had been many times so transferred. It is further contended that this transfer involved no demotion or discharge from any office which the appellee claimed to occupy.

The question which is presented to us for review involves the legal authority of the superintendent of public safety in a commissioned governed city in the State of Iowa to assign a civil service patrolman to detective duties and to thereafter transfer him to a position that paid less compensation without notice or hearing of stated charges and, in the instant case, the removal or reassignment, within the police department to a position that paid less compensation, of one who is an honorably discharged soldier of World War I.

The principal difference of opinion between the appellee and appellant is that the appellee contends that the provisions of the general soldiers preference law (chapter 60) are applicable under the facts in this particular case while the appellant maintains that under the record and the facts as disclosed the general soldiers preference law is not involved.

I. It is the contention of the appellant that it was error on the part of the trial court to hold that the appellee, Ervin, was illegally demoted from the office of detective to that of patrolman. It should be kept in mind that the appellee received his original appointment of employment by reason of qualifying as a civil service employee. Section 5697, which is found in Chapter 289 of the 1939 Code, and which chapter relates to civil service employment in certain cities, states: 'Preferences. In all examinations and appointments under the provisions of this chapter, honorably discharged soldiers, sailors, or marines of the regular or volunteer army or navy of the United States shall be given the preference, if otherwise qualified.'

It is contended by the appellant that the position of detective is not such a position in the Des Moines police force as is contemplated by the provisions of the civil service act in that there is no examination necessary under the procedure employed in the City of Des Moines for that particular type of service. It is further contended that the position of detective is merely a division within the duties of a patrolman in the Des Moines police department.

It is the appellee's claim that the statutes incorporated in the general soldiers preference act, Chapter 60, of the 1939 Code are the ones that are applicable and must be followed. The particular sections that the appellee contends should be given consideration are as follows:

'1159. Appointments and promotions. 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...