Glenn v. Chambers

• Citation: 48 N.W.2d 275,242 Iowa 760
• Decision Date: 05 June 1951
• Docket Number: No. 47860,47860
• Parties: GLENN v. CHAMBERS, Mayor, et al.
• Court: United States State Supreme Court of Iowa

Page 275

48 N.W.2d 275

242 Iowa 760

GLENN v. CHAMBERS, Mayor, et al.

No. 47860.

Supreme Court of Iowa.

June 5, 1951.

John A. Blanchard and Harris M. Coggeshall, both of Des Moines, for appellants.

Howard M. Hall, of Des Moines, for appellee.

GARFIELD, Justice.

This certiorari action involves the legality of the action of defendant city council of Des Moines, affirmed by defendant civil service commission, in summarily removing plaintiff Glenn as sanitary inspector in the city's health department for the assigned reason that his appointment violated soldiers' preference rights to the position of one Rank under section 365.10, Codes 1946, 1950, I.C.A. (Unless otherwise stated all Code references are to these three Codes.)

Only law questions are presented. The facts are not in dispute and consist mainly of matters agreed to upon plaintiff's appeal to the civil service commission as shown by the return to the writ of certiorari.

From April 1, 1948, to October 1, 1949, plaintiff performed the duties of sanitary inspector in the health department of Des Moines. Before that he had done similar work for four years in a state hospital. On August 24, 1949, plaintiff passed the civil service examination for the position of sanitary inspector and was duly certified by the civil service commission as eligible for appointment to that position. The certified list consisted of five names. Plaintiff, only nonveteran of the five, was third on the list. Rank was fifth.

On September 29, 1949, plaintiff and Wickersham, first on the list, were appointed sanitary inspectors by the city commissioner of public safety with the approval of the city council, effective October 1, 1949. There were then two vacancies to be filled. Rank knew of these appointments and took no action in regard thereto until March 30, 1950, when he filed with the council a petition claiming the job of sanitary inspector in preference to plaintiff under the Soldiers' Preference Law, Code chapter 70, I.C.A. As of April 3, 1950, Des Moines changed to the city manager plan of government and new councilmen took office.

Plaintiff performed the duties of sanitary inspector under his appointment form October 1, 1949, to April 10, 1950, when 11 plaintiff was reemployed as a sanitary him as a civil service employee for the assigned reason that his appointment violated the soldiers' preference rights of Rank under Code section 365.10. On April 11 plaintiff was reemployed as a sanitary inspector on a temporary basis by the then city manager. Plaintiff appealed from his discharge to the civil service commission on April 26, 1950. On the same day the city manager notified plaintiff his duties would terminate on May 15. Rank was appointed April 27 to fill the vacancy created by the discharge of plaintiff, effective May 15. Plaintiff also appealed to the civil service commission from his discharge by the city manager.

Following a hearing the civil service commission upheld plaintiff's discharge and dismissed his appeals because when plaintiff was appointed there were veterans on the certified list who were entitled to preference in the appointment. It was conceded plaintiff's services as sanitary inspector were always satisfactory.

On certiorari to the district court (heard principally upon the agreed record made before the civil service commission) it was held plaintiff's removal was illegal and he was entitled to retain his position with pay down to September 9, 1950, date of the decree, since plaintiff had served the six months probation period (see Code section 365.8), acquired permanent civil service status, and was not removed for any cause stated in section 365.18. Defendants, mainly the city council and civil service commission and their members, have appealed to us.

Defendants do not contend Rank is entitled to the position in question in preference to plaintiff under the Soldiers' Preference Law, Code chapter 70. This is because plaintiff was rated ahead of Rank on the certified list contemplated by section 365.11 and because section 70.1, in chapter 70, gives a preference to veterans only 'over other applicants of no greater qualifications.' Defendants claim Rank was and is entitled to preference over plaintiff under section 365.10 (in the Civil Service chapter) which provides that in all appointments under that chapter honorably discharged war veterans 'shall be given the preference, if otherwise qualified.'

A war veteran is 'otherwise qualified' under 365.10 if his name is on the certified list regardless of its position there. Zanfes v. Olson, 232 Iowa 1169, 7 N.W.2d 901; Geyer v. Triplett, 237 Iowa 664, 22 N.W.2d 329, disapproving certain language in Zanfes v. Olson not here applicable. Section 365.10 therefore gave Rank preference over plaintiff although Rank's name was last on the list. We have noted, although we think it unimportant, that Rank's petition to the city council erroneously based his claim to preference upon chapter 70 rather than section 365.10.

Section 365.8 provides that all appointments to civil service positions shall be conditional upon a probation period of not to exceed six months during which the appointee may be removed by the appointing body without right of appeal to the civil service commission. 'Continuance in the position after the expiration of such probationary period shall constitute a permanent appointment.' Here it will be noted plaintiff served ten days after the probation period expired before he was first removed and Rank did not question plaintiff's appointment until the next to the last day of such period.

The statement just made assumes the probation period commenced, as defendants contend, on October 1 when plaintiff began work under his appointment and not on September 29 when he was appointed. O'Grady v. Low, 74 App.Div. 246, 77 N.Y.S. 661, cited by defendants, is perhaps authority for such view. However, an annotation in 131 A.L.R. 383, 387, states that generally the date of appointment to a civil service position marks the commencement of the probation period. There would seem to be good reason for so holding where, as here, the appointee was performing the duties of the position at and long before the time of his appointment. Since plaintiff was not removed until after the probation period in any event we regard it as unimportant whether such period started on October 1 or two days earlier.

Code section 365.18 states that no person holding civil service rights shall be removed, demoted or suspended arbitrarily, except as otherwise provided in the chapter, but only 'after a hearing by a majority vote of the civil service commission, for neglect of duty, disobedience, misconduct, or failure to properly perform his duties.' It is not claimed plaintiff was thus removed nor for any of these specified causes. No statute called to our attention authorizes summary removal after the probation period for such reason as that assigned by defendants--soldiers' preference rights of another to the appointment.

While ordinarily appointment to a civil service position is final after the probation period has expired it is generally held the appointment may be set aside irrespective of statute where the appointee had not passed the required civil service examination and was therefore ineligible for appointment or where it was obtained by fraud of the appointee. Decisions cited by defendants are of this type. State ex rel. King v. Harris, Fla., 49 So.2d 803; People ex rel. Hannan v. Board of Health, 153 N.Y. 513, 47 N.E. 785; People ex rel. Lee v. Gleason, 32 App.Div. 357, 53 N.Y.S. 7; People v. Martin, 91 Hun 425, 36 N.Y.S. 851 (fraud); State ex rel. Buchanan v. City of Seattle, 171 Wash. 113, 18 P.2d 3.

In Application of Katz, 260 App.Div. 495, 23 N.Y.S.2d 150, cited by defendants, the appointee had passed the examination but had misstated her age in a sworn document--actually she was two years younger than the minimum age which entitled her to take the examination. The theory of these decisions upon which defendants rely is that statutes providing for removal only after notice and hearing and for cause presuppose a legal appointment, there is no legal appointment where the appointee is ineligible or procures it by fraud, and the appointment therefore confers no rights upon the appointee. See especially People ex rel. Hannan v. Board of Health, supra; Page v. Kern, 176 Misc. 36, 26 N.Y.S.2d 379, 381. See also 67 C.J.S., Officers, § 61, page 257; 10 Am.Jur., Civil Service, section 11, page 932.

A mere irregularity or mistake in making the appointment is ordinarily insufficient basis for setting it aside after the probation period has expired, especially where the appointee was not responsible for the error. See State ex rel. Carstater v. Civil Service Board, 215 Minn. 515, 10 N.W.2d 422; People ex rel. Finnegan v. McBride, 226 N.Y. 252, 123 N.E. 374; Page v. Kern, supra, 176 Misc. 36, 26 N.Y.S.2d 379; State ex rel. Byrd v. Sherwood, 140 Ohio St. 173, 42 N.E.2d 889; Kluth v. Andrus, Ohio Com.Pl., 94 N.E.2d 823, 830; Field, Civil Service Law, pages 102, 106.

No authority directly in point has come to our attention. We think the decisions upon which defendants rely are not applicable. We are not disposed to extend the doctrine of those cases to the situation here. This case seems to resemble more nearly the decisions last cited. On consideration of the authorities as well as upon principle we are inclined to affirm the trial court's holding that plaintiff was illegally removed.

There is no suggestion that plaintiff was guilty of any fraud or other improper conduct or was in any way responsible for any error in his appointment originally. It is of course admitted he passed the required examination and was duly certified as eligible for the appointment he received. After serving the probation period he is told for the first time, in effect, his appointment was void ab initio and conferred no civil service...