Fetters v. Guth

• Decision Date: 10 March 1936
• Docket Number: 43217.
• Citation: 265 N.W. 625,221 Iowa 359
• Parties: FETTERS v. GUTH et al.
• Court: Iowa Supreme Court

265 N.W. 625

221 Iowa 359

FETTERS v. GUTH et al.

No. 43217.

Supreme Court of Iowa.

March 10, 1936

Appeal from District Court, Polk County; F. S. Shankland, Judge.

This is an action in certiorari testing the validity of the action of the Civil Service Commission of Des Moines in discharging plaintiff from the Police Department. The lower court held the discharge illegal. Defendants appeal.

Reversed.

F. T Van Liew, C. I. McNutt, J. A. Ralls, C. A. Weaver, and D William Ash, all of Des Moines, for appellants.

Sloane & Sloane, of Des Moines, for appellee.

KINTZINGER, Justice.

On November 22, 1933, plaintiff Walter W. Fetters, was, by a written order signed by H. A. Alber, chief of police approved by Roscoe P. Bane, superintendent of public safety " indefinitely suspended" from the police department of the city of Des Moines for " conduct unbecoming an officer."

On November 23, 1933, Fetters took an appeal from said order of suspension to the civil service commission, by serving a due and legal notice of appeal therefrom upon the civil service commission of Des Moines, notifying the commission " that said appeal will come on for hearing and trial before the Commission upon charges and grounds as may be specified," in the manner provided by chapter 289 of the Code of 1931.

On November 24, 1933, said chief of police filed with the civil service commission the following specifications and charges against said officer:

" Specification No. 1: On November 19th, he (Fetters) abandoned his regular beat on two different occasions. On one occasion he went to other parts of town on business personal to himself, and not connected with Police duties.

Specification No. 2: He wilfully neglected the duties of his office as a Police Officer, in that he failed to make a report as to his conduct and whereabouts on said * * * date as prescribed by police rules, that he failed to report when he left duty on that date, and that he left his beat unpatrolled and unprotected contrary to the rules and regulations of the Police Department."

A hearing on said appeal and upon said charges was held before the commission on December 6, 1933. After said hearing, the civil service commission entered the following order:

" Be it remembered that on the 6th day of December, 1933, the appeal of Walter F. Fetters from an Order of discharge from the Police Department of the City of Des Moines, Iowa, came on for hearing before the Civil Service Commission.

The Commission having heard all the evidence introduced, the statements of counsel, and being fully advised in the premises, finds:

That the appellant, Walter F. Fetters, was guilty of charges and specifications filed by the Chief of Police and that the appeal should be dismissed.

It is therefore, ordered that the appeal of Walter F. Fetters from the order of discharge from the Police Department of the City of Des Moines be and it is hereby dismissed and the order discharging said Walter F. Fetters is hereby affirmed." (Signed by all members of the commission.)

A writ of certiorari was sued out of the district court, and the foregoing facts substantially constitute the record certified to that court. At the trial in the court below, it was also stipulated that if H. A. Alber, chief of police, were present, he would testify that for many years past " he, as Chief of Police, has been ‘ indefinitely suspending’ police officers; that he has done this to give the Civil Service Commission an opportunity to either discharge the officer or fix the term of his suspension at a definite period; that he has done this in lieu of discharging the officers; that in his mind indefinite suspension and discharge are one and the same thing."

Upon the foregoing record, the district court in the certiorari proceedings found " that there is nothing in the record indicating that said Walter F. Fetters was ever discharged. On the contrary, the record discloses * * * that * * * Fetters was ‘ indefinitely suspended’ * * *. It would therefore appear that said Fetters has never had a hearing on the question of his suspension, there being a wide difference between a suspension and a discharge." The case was, therefore, remanded to the commission for a hearing on the order of the " indefinite suspension." From this order, defendants appeal.

It is the appellee's contention that the order for his " indefinite suspension" was not an order of " discharge," and that the civil service commission had no jurisdiction to dismiss the appeal of Fetters from an " order of discharge," when the only order made by the chief of police was one for an " indefinite suspension." Appellee, therefore, contends that he had no hearing upon his appeal from the order of " indefinite suspension."

Appellants contend that the lower court erred in holding that the finding and order of the civil service commission was invalid because the commission had ample authority, on the showing made at the hearing on the appeal, to justify either a dismissal of the appeal from an order of " indefinite suspension" or an order of discharge. There was only one order made relieving appellee Fetters from his duties on the police department, and his appeal was from that order. The specifications, hereinabove referred to, charging appellee with conduct unbecoming an officer, were filed with the civil service commission before the hearing on said appeal. These charges were investigated by the civil service commission at the hearing on Fetters' appeal.

The record clearly shows that the only order made by the chief of police relieving Fetters from his duties on the police department was the order of " indefinite suspension" ; it also shows that the only notice of appeal taken was that from the order of such " suspension" ; it also shows that the only specifications and charges made against Fetters were those filed in connection with the appeal referred to. There was only one hearing had, and that was based upon the charges and specifications filed.

The order of the civil service commission was based upon plaintiff's appeal and upon the charges and specifications of misconduct filed. He was personally present and appeared at the hearing to resist the appeal and defend himself against the specifications and charges of misconduct filed against him and pending before the civil service commission at that time. As a result of that hearing on the appeal and on the specifications and charges made, the commission found " that the appellant, Walter F. Fetters, was guilty of charges and specifications filed by the Chief of Police and that the appeal should be dismissed" . It was therefore ordered " that the appeal of Walter F. Fetters from the order of discharge from the Police Department * * * be and it is hereby dismissed and the order discharging said Fetters is hereby affirmed." This action of the commission was unanimous.

It is obvious from this record that the commission found that Fetters was guilty of the charges and specifications filed against him, and that it was the intention of the commission to dismiss the appeal. It...