Geyer v. Triplett

• Decision Date: 02 April 1946
• Docket Number: 46846.
• Parties: GEYER et al. v. TRIPLETT, Superintendent of Public Safety.
• Court: Iowa Supreme Court

22 N.W.2d 329

237 Iowa 664

GEYER et al. v. TRIPLETT, Superintendent of Public Safety.

No. 46846.

Supreme Court of Iowa

April 2, 1946

Rehearing Denied June 21, 1946.

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

F T. Van Liew, Paul Hewitt, and Harvey Bogenrief, all of Des Moines, for appellee.

MANTZ Justice.

The present controversy grows out of an appointment made on June 11 1945, by Charles F. Triplett, Superintendent of Public Safety of Des Moines, Iowa, wherein he promoted John W. Rider sometimes known as John Rider, from the position of patrolman to that of sergeant in said department.

This appointment was and is challenged by Stanger R. Geyer, Louis J. Volz, and E. W. Ervin, all members of the police force of such city and all having the rank of patrolmen. These objectors are the plaintiffs herein. Rider, the appointee, and the three objectors had been members of such police force for a number of years; all were eligible to promotion under and by virtue of the civil service statute. Rider is an honorably discharged sailor of the regular United States navy, having served therein from July 7, 1921, to July 6, 1925. He had no other military service. All of the plaintiffs are honorably discharged soldiers of the war with Germany which ended in 1918, and all became eligible to promotion on July 15, 1943.

Rider was promoted on June 11, 1945, and on June 20th following, plaintiffs made written demand that Triplett, as superintendent of public safety of such city, demote Rider from the position of sergeant and appoint one of the three plaintiffs to such position, basing their demands upon their superior rights to Rider under the Soldiers' Preference Law as set forth in Chapter 60, Code of Iowa 1939. Such demand was refused and the plaintiffs brought an action in mandamus to enforce their demand. Upon hearing in the district court their petition was dismissed and this appeal followed.

I. It will be observed that this is a contest between what might be termed a peacetime veteran on the one hand and three war veterans on the other, as to preference rights in promotion from the position of patrolman to that of sergeant in the police department of the city of Des Moines, Iowa. All had been members of the police force for a number of years; all were on the civil service list, and therefore all were eligible to promotion. In the civil service examination the three war veterans outranked the peacetime veteran.

The ultimate question is the respective rights of promotion as between Rider and appellants. No civilian rights are involved. The facts are not in dispute. Those essential have heretofore been set forth. They are shown by the unchallenged pleadings and the stipulation entered into by the parties when the case was tried.

The court in its conclusions of law made at the time the decree of dismissal was filed held, among other things:

(1) Plaintiffs' positions on the eligible list under civil service do not grant a preference.

(2) The plaintiffs, as wartime veterans on the eligible list for civil service promotion have no prior and superior rights and preference over John W. Rider, an honorably discharged sailor of the regular United States navy in peacetime.

(3) That the appointment of John W. Rider was made under the civil service law and the provisions as to preference contained in the civil service law itself control, and as to such appointments the provisions of Chapter 60 do not apply.

Appellants challenge the correctness of such conclusions. They contend that their rights to promotion over John W. Rider are superior by reason of the provisions of Chapter 60 of the Code of 1939 and particularly section 1159 thereof.

On the other hand, appellee contends that the statute involved under the record herein is section 5697 of the chapter on civil service.

Evidently the trial court was of the opinion that the preference which controlled was the one referred to in the Civil Service Act, and particularly section 5697 thereof, and that the preference granted in Chapter 60 of the 1939 Code of Iowa had no application to the record in this case. The language of these two sections is as follows:

'Section 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 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, Phillipine 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.'

'Section 5697. 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 preference, if otherwise qualified.'

It will be noted that there is a difference in these two sections. The difference deals with both classification and application. Obviously, the coverage of section 5697 would exceed that of section 1159. The first (section 5697) covers all honorably discharged veterans of the army or navy and this would include wartime veterans. The other (1159) limits its coverage to wartime veterans,--soldiers, sailors, marines, and nurses.

Section 5697 gives preference to those named therein 'if otherwise qualified.' Section 1159 gives preference to those named therein over other applicants of 'no greater qualifications.'

Appellants and Rider appellee have civil service standing, and under the record it appears that in the examination for eligibility to promotion, the grades given appellants were higher and above those given Rider appellee. The record shows that appellants have equal qualifications to those possessed by appellee.

Appellee urges that there is a conflict between the Civil service section (5697) and the Soldiers' Preference Law (1159); that the former, being the special statute should prevail, and therefore John W. Rider, being otherwise qualified, should be preferred. The question of a conflict between the two statutes was recently passed upon by this court in the case of Ervin v. Triplett, 18 N.W.2d 599. Therein this court, speaking through Justice Wennerstrum, stated that there was no inconsistency between Chapter 60 (Soldiers' Preference Law) and section 5697. As indicated above, all veterans, whether peace or wartime, come within the purview of section 5697. Wartime veterans only are preferred by Chapter 60 and particularly by section 1159. Appellee urges that the Soldiers' Preference Law does not apply to promotions under civil service. In the case of Ervin v. Triplett, supra, we held otherwise. Herman v. Sturgeon, 228 Iowa 829, 293 N.W. 488, 492. We quote from the last cited case: 'Appellant also contends that a soldier's preference does not to promotions under Civil Service. There is no merit in this.'

We think the above holdings are correct. We see no conflict between the Civil Service Law and the Soldiers' Preference Law. We think the two acts are to be construed together with the purpose of giving each proper application and construction.

The Civil Service Law, including section 5697, Code of 1939 , neither modifies nor repeals any of the provisions of the Soldiers' Preference Law. Jones v. City of Des Moines, 225 Iowa 1342, 283 N.W. 924.

The Soldiers' Preference Law (Ch. 60, Code of 1939) became a law on March 21, 1904. It has since been amended by Chapter 227 of the 40th General Assembly to include veterans of the war with Germany. Said amendment further provides that any aggrieved veteran could proceed by mandamus or by certiorari, depending upon the nature of the complaint or the remedy sought.

The Civil Service Law (Ch. 289, Code of 1939) became a law March 29, 1907. As the later enactment, said chapter did not purport to repeal, change or modify Chapter 60 in express terms, or by necessary implication.

We think that the spirit and purpose of the Soldiers' preference act was to reward those who served their country in time of need, such as the civil war, or the war with Germany. In construing this act this court has so held in a number of decisions. In Tusant v. City of Des Moines, 231 Iowa 116, 300 N.W. 690, this court held that the Soldiers' preference statute should be given a liberal construction. Herman v. Sturgeon, supra.

In the case of Babcock v. City of Des Moines, 180 Iowa 1120-1123, 162 N.W. 763, this court held that the Soldiers' Preference Law was highly...