Klatt v. Akers

• Decision Date: 29 September 1942
• Docket Number: 45613.
• Citation: 5 N.W.2d 605,232 Iowa 1312
• Parties: KLATT v. AKERS, State Auditor.
• Court: Iowa Supreme Court

5 N.W.2d 605

232 Iowa 1312

KLATT v. AKERS, State Auditor.

No. 45613.

Supreme Court of Iowa

September 29, 1942

John M. Rankin, Atty. Gen., and Floyd Philbrick First Asst. Atty. Gen., for appellant.

Sullivan & Scholz, of New Hampton, and J. R. McManus and M. H Johnson, both of Des Moines, for appellee.

BLISS Justice.

This case and that of Warner v. Akers, 5 N.W.2d 603, and the case of Neargard v. Akers, 5 N.W.2d 613, were tried in the court below, to the same judge, on successive days, and the testimony of some of the witnesses in the Warner case was, by consent of court and counsel, considered by the court without repetition, in the other two cases. While the pleadings, evidence, issues, and judgment in the trial court and the assignments of error urged in this court, are substantially the same in each case, there are some variances which we wish to point out.

The plaintiff herein began work in the office of the State Auditor, who preceded the defendant, as an assistant or junior examiner about August 15, 1933. He continued in that capacity until January, 1934, when he was promoted to a state examiner, or senior examiner, such as is referred to in section 114, Codes 1931, 1935, 1939, and was continuously so employed until January 26, 1939, when he was discharged in the manner complained of in his petition, by the defendant. Junior or assistant examiners, appointed under section 115 of said Codes, are paid four, five, or six dollars for each day they work, with the per diem in each case dependent upon the aptitude and efficiency of the employee. When the plaintiff was employed he was told that the length of the term of his appointment as junior examiner would depend upon his showing of capability, and the time of his appointment as senior examiner and the length of that work would depend upon his ability. The plaintiff and each other senior examiner received $7 for each day of work. Plaintiff lost but a few days during his term of service. There is no question about his being a veteran. No charges were filed against him, nor was any hearing had, it being the expressed view of the defendant that the confidential nature of the position made such proceedings unnecessary.

The plaintiff was not employed as an examiner after January 26, 1939, the day that he reported the completion of his audit in Dallas County. The parties stipulated, subject to the plaintiff's objection of immateriality, irrelevancy and incompetency, which objection was overruled, that E. C. Hollowell, who was employed as a senior examiner on February 1, 1939, was an honorably discharged veteran of the World War between the United States of America and the Imperial German Government, and that Loomis and Wiley, who were named as senior examiners a little later, were also World War veterans. Mr. Truax, who held a supervisory position under both the defendant and his predecessors, testified without contradiction: "We (referring to the defendant) put eight veterans on, if I remember correctly, and discharged five in the county audit division." Plaintiff was employed in the county audit division.

The plaintiff pleaded his case on the "emoluments of office" theory, but tried it on the theory that he should be charged with earnings received by him from other work engaged in during the period of his discharge. He testified that though he tried diligently he was able to earn but $55 during this period. The trial court, on July 1, 1940, found the plaintiff entitled to $7 a day for every working day from January 26, 1939, or $3,021 less $55 and rendered judgment for $2,966. and further adjudged that the defendant certify said amount to the Comptroller of the State for payment, and that the defendant "do every act and thing as Auditor of the State of Iowa as may be necessary to cause said amount to be paid to plaintiff, together with the additional pay of plaintiff at the rate of $7.00 per diem, Sundays and holidays excluded, which will have accrued as plaintiff's back pay after this date and until he shall have actually been reinstated and given employment as such senior examiner by defendant herein."

I. Appellant assigns error as follows: "The position of senior examiner from which the plaintiff was discharged was a position of strictly confidential relationship, and as such was not within the provisions of the Soldiers Preference Law appearing as Chapter 60, Code of 1939, and the court erred in holding that the position was not one of strictly confidential relationship and in holding that the plaintiff was within the provisions of said chapter."

The question is always troublesome. The powers and duties of the appellant, as Auditor of State, are set forth in Chapter 10 of the Code of Iowa. In addition to his requiring full settlement between the state and all state officers and departments, annually or oftener, he is required to examine annually the financial condition and transactions of counties, schools, and cities. He shall appoint such number of state examiners of accounts, of recognized skill and integrity, familiar with the accounting systems of these municipal subdivisions, and with the laws relating thereto. Each examiner shall give bond in the sum of $2,000, conditioned as bonds of county officers, approved and filed as bonds of state officers. These examiners at all times shall be subject to the direction of the auditor. He may appoint such assistants to the examiners as may be necessary, who shall be subject to discharge at any time, who shall receive such reasonable compensation as the auditor may fix. The examiners shall have the right while making examinations to see all papers, books, records, etc. and, in the presence of the official custodian thereof, or his deputy, to have access to the cash drawers and cash, and the right to examine the public accounts of the municipality in any depository. All examinations shall be made without notice, and shall include investigation as to the financial condition and resources, cost price of improvements and materials as compared to those in like municipalities, whether the laws are being complied with, and the accounts and reports are being accurately kept. All examiners shall have power to issue subpoenas, administer oaths, examine witnesses, in all matters pertaining to an authorized examination. He may apply to a district court or judge to aid him, if necessary, with a recalcitrant witness. A report of every examination shall be in triplicate, signed and verified by the officers make the examination, and one copy each filed with the Auditor of State, the municipality, and if the examination discloses any irregularity in the collection or disbursement of public funds, a copy shall be filed with the County Attorney. Section 123 of the Iowa Code provides: "No such examiner shall make any disclosure of the result of any investigation, except as he is required by law to report the same or to testify in court. Any violation of this provision shall be ground for removal." Each examiner is required to file with the state auditor and with the municipal subdivision examined an itemized sworn voucher of his per diem and expenses, during the time actually engaged in the examination, which amount is charged against the municipality.

With respect to an examiner such as the plaintiff, there was undisputed testimony that "in making his examinations it is his duty to verify the cash on hand in the county treasurer's office when he begins the examination to see if it agrees with the daily cash book, to examine all moneys disbursed and received by the County Treasurer or County Auditor, and all county officials in their official capacity, and to inspect claims that have been paid; it is his duty to inspect the claims that have been paid to see if the payments made in one county for articles that are purchased in other counties compare favorably in costs; to see if the reports and accounts of the officers are being properly kept, and if the money that they receive is properly turned over and accounted for, and to see if the officials comply with the law. * * * It is the general practice, as I have observed, that if we find there is an official guilty of wrong-doing in his official account, we are called upon to verify some of his personal transactions, and are frequently required to make an examination of his personal bank account. As to the breadth and scope of investigations, there are times in connection with county affairs where it is necessary to investigate private individuals. I refer to cases where there is evidence of criminal liability, which is not an uncommon thing to find. Sometimes it is necessary to call in parties and inquire from them what relations they have had and what transactions they have had with officials and verify many of the transactions in matters of that kind in that way. The way we have conducted our office, the examiners are advised that whenever they find evidences of misconduct on the part of officials that they confer with the State Auditor's office and advise them as to what they ran into and keep us fully apprised as to what their findings are and, if necessary, to ask counsel and advice in handling the matter and it is my knowledge and information that our examiners follow the method of that procedure in doing those things."

Mr. Foarde, the deputy auditor under appellant's predecessor, testified that there were many defalcations during his tenure of office.

A supervisor of county audits, who had been in the auditor's office for many years, in various capacities, and who was employed there from May, 1937, to the time of the trial, testified in substance: That it was the practice of the examiner or assistant examiner to confer with the supervisor either in the office or in the...