Kitterman v. Bd. of Sup'rs of Wapello Cnty.
| Decision Date | 15 February 1908 |
| Parties | KITTERMAN v. BOARD OF SUP'RS OF WAPELLO COUNTY ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wapello County; C. W. Vermillion, Judge.
The plaintiff in his petition asked for a writ of certiorari and also a writ of mandamus with reference to the protection and enforcement of his right to be appointed and continued in the office of janitor of the courthouse in Wapello county, alleging that he was a veteran of the late Civil War, honorably discharged from the service of the United States, and entitled to a preference in appointment and a continuance in that office under the provisions of chapter 9, p. 8, of the Acts of the Thirtieth General Assembly (1904). The defendant Dorothy answered that he was holding the office or appointment under a contract with the board of supervisors of the county. The board of supervisors, and the members of the board individually, who were made parties defendant, joined in this answer. The defendants also filed objections to the issuance of the writ asked for by plaintiff and to the granting of a restraining order as applied for by him. The plaintiff demurred to defendants' answer and objections, which demurrer being overruled, and plaintiff electing to stand upon his demurrer, judgment was rendered against plaintiff for costs. From this judgment, the plaintiff appeals. Reversed and remanded.Chester W. Whitmore, for appellant.
Smith & Lewis and Seneca Cornell, Co. Atty., for appellees.
From the allegations and admissions found in the answer to which plaintiff demurred we may make the following abridged statement of the facts to which the provisions of the veterans' preference act are to be applied: On January 5, 1906, the defendant board of supervisors, by resolution providing for the appointment of various officers “for the year ending March 1, 1907,” designated plaintiff as janitor of the courthouse. Plaintiff had, however, already been serving as janitor from March 1, 1905. On January 4, 1907, defendant Dorothy made application to the board in writing, asking that he be appointed and employed as janitor, and showing himself to be an honorably discharged soldier of the Civil War. On the next day plaintiff made application for reappointment “as janitor of the courthouse at the expiration of my present term,” setting forth his claim of preference as an honorably discharged soldier. On February 8th following defendant Dorothy was appointed janitor for the year ending March 1, 1908, and plaintiff on the 16th of the same month protested against the failure of the board to favorably act on his application, and demanded the right to be heard in an investigation of any charges that might be made against him. Nevertheless the board, on the 20th of the month, entered into a contract with defendant Dorothy to perform in general and specifically the duties of janitor of the courthouse at an agreed compensation for the year commencing March 1, 1907. It was alleged in the answer that the board made an investigation as to the qualifications of the two applicants, and, after being duly advised by such investigation, decided and determined that as between them, both being honorably discharged soldiers of the late Civil War, defendant Dorothy possessed superior competency, qualifications, and fitness for said appointment; but it is not alleged that any charges of incompetency or unfitness were made as against the plaintiff, nor that in any hearing of which he had notice he was found to be incompetent or to have been guilty of any misconduct.
1. The first section of chapter 9, p. 8, Acts of the Thirtieth General Assembly, which need not be quoted at length, provides that preference in appointment in departments and public works of the state, and of the counties, cities, and towns thereof, shall be given to the honorably discharged soldiers, sailors, and marines of the late Civil War who are citizens and residents of the state over other persons of equal qualifications, and that any officer, board, or person whose duty it is or may be to appoint or employ some person to fill such position or place shall, before appointing any one, make an investigation as to the qualifications of such soldier, sailor, or marine who is an applicant for the position, and shall appoint such applicant, if he is a man of good moral character, and can perform the duties of the position so applied for by him. Under this section there is no specific obligation so far as we can discover to make an investigation as between two applicants both of whom are honorably discharged soldiers, sailors, or...
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