Herman v. Sturgeon
| Decision Date | 06 August 1940 |
| Docket Number | 45231. |
| Citation | 293 N.W. 488,228 Iowa 829 |
| Parties | HERMAN et al. v. STURGEON. |
| Court | Iowa Supreme Court |
Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.
A mandamus action to compel the defendant to cancel the promotional appointment of John J. Corcoran as lieutenant of the fire department of Sioux City, and to promote instead one of the plaintiffs, as preferred under both civil service rating and the soldiers preference statute. From a judgment granting the writ the defendant has appealed. Affirmed.
Ralph W. Crary, Virgil DeWitt, and Herman Slotsky, all of Sioux City, for appellant.
Fred Free and Everett Waller, both of Sioux City, for appellees.
Sioux City, Iowa, is a city of the first class operating under the commission form of government. Among its municipal officials is a duly qualified Civil Service Commission operating under the provisions of Chapter 289 of the Iowa Code. Prior to April 8, 1939, the Commission, in compliance with what is now Section 5696.1 of that chapter of the 1939 Code, by posting and newspaper publication, gave notice that it would hold a promotional competitive examination open to members of the city fire department to determine the qualifications of any applicants to the position of lieutenant in that department. This section provides that the " examinations shall be practical in character, and shall relate to such matters as will fairly test the ability of the applicant to discharge the duties of the position to which he seeks promotion."
The written examinations were held on April 8, 1939, and among the members of the department who took part were the three plaintiffs and John J. Corcoran. Each of the plaintiffs is an honorably discharged soldier or sailor of the United States and within the purview of Chapter 60 of the Iowa Code-the " Soldiers Preference Law." Corcoran was not such a service man. Since the commencement of this action, the plaintiff, McNally, received a promotion and no longer asks for relief. Sometime after the written examination, the Commission gave the applicants what is termed an " adaptability test" . This was an oral examination and was given on June 28, 1939, although plaintiff, Herman, who was on his vacation on that date, took this last test on July 7, 1939. The " adaptability test" is made up from a special sheet which relates to the appearance, manner, and temperament to determine whether those examined are fitted for the particular position sought.
Under Section 5698 the Commission, on July 7, 1939, notified the mayor and city council in writing of the result of the examinations, with the names of the ten having qualified with the highest standings. They were listed in the order of their standings, with the one having the highest standing named first, and the others following in the order of their rating with the one having the lowest standing of the ten named last, all as provided by said Code section. The list of ten for each position subject to civil service thus certified shall be the preferred roster from which all vacancies in that particular office or position shall be filled for the following two years, or until the next examination and certification. As there were thirteen lieutenants in the department it is apparent that there might be a number of vacancies within the two year period. On the preferred list of eligibles for the position of lieutenant that was certified on July 7, 1939, the plaintiff, Herman, was first on the list, the plaintiff, Koppen, was third, McNally was fourth and Corcoran was ninth. Herman, Koppen and McNally were the only ones entitled to preference as soldiers on the list.
Under the legislation then in effect, which is now Section 5699.2 of the 1939 Code, the defendant, as Superintendent of Public Safety, was authorized to make this appointment, with the approval of the city council. The defendant had known since the first of June, 1939, that there would be a vacancy in one of the lieutenancies on July 1st following. He knew of the examinations, and on June 28, 1939, went to the secretary of the Civil Service Commission, to learn, if he could, their results. Although Herman had not then taken his adaptability test, the secretary told defendant that he thought there would be no change in his rating, and he gave defendant a list of the highest ten which corresponded exactly with the list certified on July 7th following. The plaintiffs had no knowledge of the standings until after the certification.
The defendant had taken his office on April 4, 1938, and prior to that time had had no connection with the fire department in any capacity, and did not know much about the ranking or discipline of the men. He had some personal acquaintance with Herman, Koppen and Corcoran through other associations some years previous.
Herman became a member of the fire department in 1921, and Koppen and Corcoran became members in 1922, and their membership had been continuous. They were all of the same rank and were members in good standing, and the Civil Service Commission had given them the same service rating. On June 28th or 29th the defendant interviewed the chief of that department, who had held that position for fifty years. Defendant left the list of ten with him, and the chief and his assistant discussed the merits of the men, and on June 30th, the three of them agreed upon Corcoran as the best qualified of the ten. On July 1st the defendant promoted Corcoran to the office of lieutenant, and on July 3rd the council approved the appointment. Because all of this action had taken place before the certification and posting of the list on July 7th, defendant appointed Corcoran on August 1, 1939, and secured the reapproval of the appointment. When the plaintiffs first became members of the fire department their applications stated that they were honorably discharged soldiers of the United States. About July 1st, and before they knew their standings in the examination, Herman and Koppen had talked with defendant about the promotion. Herman at this time told him of his service in the Army. He also discussed with the defendant the fact that he was an ex-service man during the year previous.
Plaintiffs in their petition allege many of the facts herein set out and base their right to the relief prayed for not only upon their superior standings as certified by the Civil Service Commission under Chapter 289 of the Code, but also under the provisions of that Chapter and those of Chapter 60 of the Code, giving them preferential rights as honorably discharged soldiers of the United States. As required by statute the action was tried as an equitable one.
Plaintiffs introduced in evidence as an exhibit a report of the Civil Service Commission giving the standings of Herman, Koppen and Corcoran in the examinations. In substance it is as follows:
| Written grade | Oral grade | Written grade 60% | Oral grade 20% | Service Record | Final Average |
| Corcoran | 73.0 | 81.7 | 43.8 | 16.34 | 20.0 | 80.14 |
| Herman | 84.0 | 86.7 | 50.4 | 17.34 | 20.0 | 87.74 |
| Koppen | 85.0 | 80.0 | 51.0 | 16.00 | 20.0 | 87.00 |
Other evidence was introduced on both sides supporting the fact statements herein stated. The court, by its judgment, found generally in support of plaintiffs' allegations, and that the examinations were held with the results as stated; that Herman and Koppen, under Chapters 60 and 289 of the Code, were both entitled to preference in said appointment over Corcoran " and over all other persons certified on said eligibility list of equal or lower rating on said list" ; that the appointment and reappointment of Corcoran were illegal and contrary to law, and that it was the duty of the defendant to forthwith cancel and revoke his appointment, and to appoint and promote to the office and rank of lieutenant of the Fire Department either Herman or Koppen. A writ of mandamus was ordered and adjudged to be issued to carry into effect these findings.
On this appeal the appellant has urged propositions for reversal which were also raised by him in his motion to dismiss appellees' petition, and in his answer thereto.
The case is one of first impression in this court, and we find but little authority elsewhere that is directly in point.
Appellant urges that under Section 1161 of the Code, the defendant, as the appointing power, was required to make an investigation as to the fitness of the applicants, and that since he made a good faith investigation, the court had no right to interfere by mandamus with his discretionary appointment. His argument would be more applicable if the...
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