Herman v. Sturgeon, 45231.

• Citation: 228 Iowa 829,293 N.W. 488
• Decision Date: 06 August 1940
• Docket Number: No. 45231.,45231.
• Parties: HERMAN et al. v. STURGEON.
• Court: United States State Supreme Court of Iowa

228 Iowa 829
293 N.W. 488

HERMAN et al.
v.
STURGEON.

No. 45231.

Supreme Court of Iowa.

Aug. 6, 1940.

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.

BLISS, Justice.

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

[293 N.W. 489]

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...