Luke v. Civil Service Commission of Sioux City

• Citation: 279 N.W. 443,225 Iowa 189
• Decision Date: 10 May 1938
• Docket Number: 44145.
• Parties: LUKE et al. v. CIVIL SERVICE COMMISSION OF SIOUX CITY et al.
• Court: Iowa Supreme Court

279 N.W. 443

225 Iowa 189

LUKE et al. v. CIVIL SERVICE COMMISSION OF SIOUX CITY et al.

No. 44145.

Supreme Court of Iowa.

May 10, 1938

Appeal from District Court, Woodbury County; Robert H. Munger Judge.

Action in certiorari testing the validity of the discharge of John Diebert and Nile V. Luke, and also testing the commission's action in denying compensation to Kirby Kerr. The writs were annulled. All three appeal.

Affirmed.

George A. Gorder and Forsling & Cover, all of Sioux City, for appellants.

H Clifford Harper and John D. Beardsley, both of Sioux City for appellees.

KINTZINGER, Justice.

On May 15, 1935, John Diebert, Nile V. Luke, and Kirby Kerr, appellants, were discharged from the police department of Sioux City, Iowa, following which all three took appeals to the Civil Service Commission of Sioux City. Separate specifications of charges against each of the appellants were filed by the superintendent of public safety of Sioux City with the Civil Service Commission. The charges filed against each of the appellants were as follows: (1) That each demanded of Frank Caine protection money to permit violation of the state liquor laws; (2) that each made arrangements with and received from John Gibeau the sum of $50 per month for the privilege of selling intoxicating liquor; (3) that all of said appellants received money from Bert Welch for permitting violation of the state liquor laws.

Said appeals came on for hearing before said commission on August 27, 1936, under a stipulation that the cases were to be consolidated and submitted in one trial, but the case of each appellant was to be considered separately. On September 25, 1936, the commission filed its written order affirming the discharge of John Diebert and Nile V. Luke, and reinstating Kirby Kerr without pay for the time he was off duty under suspension.

Thereafter each of the appellants filed a separate petition for review by certiorari in the district court of Woodbury county, Iowa, and separate returns were made in each case; the combined record of all three was returned to the district court, and but one judgment found in favor of the commission and against all the appellants, resulting in the annulment of all three writs. Nile V. Luke, John Diebert, and Kirby Kerr appeal, the three cases being consolidated.

Prior to the hearing of the action before the commission, the grand jury of Woodbury county, Iowa, returned five indictments against the appellants wherein they were charged with bribery and conspiracy. All these indictments were dismissed on May 5, 1936, under the opinion of this court in Maley v. District Court of Woodbury County, Iowa, 221 Iowa 732, 266 N.W. 815.

At the hearing before the commission, the minutes of the testimony taken before the grand jury were introduced in evidence over appellants' objection upon the ground that the minutes of such testimony were not direct evidence, were not sworn to, and without any evidence showing that such minutes did, in fact, constitute any evidence taken before the grand jury. Such minutes were not identified and no foundation therefor was laid; there was no opportunity given appellants to cross-examine any of the alleged witnesses whose testimony was alleged to have been contained in said minutes. The Civil Service Commission demanded that Mr. Harper, the city attorney, offer the minutes in evidence. In refusing to do this, the city attorney made the following statement:

" There has been no opportunity of the defense to cross-examine the witnesses. You could not introduce an affidavit here to the Commission and not give the defense a chance to cross-examine * * * I am frank to say, of course, while it is probably for my side of the case, that it would be advantageous to introduce the minutes attached to these indictments and make them part of the record in the case, yet I am frank to say that I would hate to go to the District Court on that kind of a record."

Thereupon the chairman of the commission said: " We have a right to consider the minutes of evidence attached to the indictments and probably will; the Commission feels it has a right to demand the production."

Appellants objected to the consideration of the minutes of such testimony on the ground that they were merely hearsay and afforded no opportunity for cross-examination, following which the chairman of the commission stated that the commission " introduces the indictments in evidence to be considered for what they are worth," and that " the minutes of the testimony are the matters which the commission will consider."

Without describing in detail the statements of certain alleged witnesses contained in the minutes of the testimony attached to the indictments referred to, it is sufficient to say that, if the statements contained in said minutes could be considered as competent testimony, such testimony would tend to establish the charges made against appellants before the Civil Service Commission.

Appellants contend that the commission acted illegally in receiving in evidence the minutes attached to the indictments and contend that said minutes were purely hearsay and deprived the appellants of the opportunity of cross-examination.

It may be conceded that the minutes of the testimony so offered were incompetent and in and of themselves would not, as a matter of law, constitute sufficient evidence to support the allegations of the specifications of charges made. Appellants therefore ask a review of the proceedings by certiorari.

Section 12456 of the Code provides as follows: " The writ of certiorari may be granted when authorized by law, and in all cases where an inferior tribunal, board, or officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally, and there is no other plain, speedy, and adequate remedy." (Italics ours.)

As there is no statute in the chapter providing for or authorizing an appeal from the ruling of the Civil Service Commission upon the charges filed before it, a review of such findings can only be had under section 12456, authorizing a writ of certiorari, providing the commission is shown to have exceeded its proper jurisdiction, " or is otherwise acting illegally, and there is no other plain, speedy, and adequate remedy." Therefore, as no appeal from the action of the Civil Service Commission is authorized by law, it necessarily follows that there is no other plain, speedy, and adequate remedy if the commission exceeded its proper jurisdiction, or was otherwise acting illegally.

In accordance with the provisions of the foregoing section, it is to be noted that we are only concerned with the question of whether or not the commission exceeded its jurisdiction or acted illegally, as distinguished from the question of whether or not the findings of the commission were erroneous. Riley v. Crawford, 181 Iowa 1219, 165 N.W. 345; Dickey v. Commission, 201 Iowa 1135, 205 N.W. 961; Fronsdahl v. Commission, 189 Iowa 1344, 179 N.W. 874; Tiedt v. Carstensen et al., 61 Iowa 334, 16 N.W. 214; Maxey v. District Court, 182 Iowa 366, 165 N.W. 1005.

It it the settled rule of law in this state that, where the lower tribunal has jurisdiction, it is not within the province of the courts to review the findings of such tribunal if any competent evidence has been offered to sustain its findings, unless it is otherwise acting illegally, and there is no other plain, speedy, and adequate remedy at law. It is not for this court to review the evidence where it is in any manner conflicting, or where any of the testimony tends to support the finding of the commission. If, however, the evidence is entirely lacking in support of the finding of the commission, then the question becomes one of law and under such circumstances the action of the commission, in basing its finding upon no evidence whatsoever, would be such an illegality as to warrant a review of its findings by certiorari. Riley v. Crawford, 181 Iowa 1219, loc. cit. 1222, 165 N.W. 345, 346, in which case we said:

" We interpret the action and ruling of the court to be that, although having jurisdiction to entertain certiorari to review any action of the commission which is charged to be illegal or in excess of its jurisdiction, it does not extend to or include the determination of disputed questions of fact; and as the present controversy seems to have settled down to a dispute upon the sufficiency of evidence to sustain the action of the commission, the court refused to pass upon it in this proceeding. We are disposed to approve the ruling as correct. To hold otherwise is to make use of the writ of certiorari as a remedy for the correction of errors, an office it is not intended to perform. Lehigh Sewer Pipe & Tile Co. v. Town of Lehigh, 156 Iowa 386, 136 N.W. 934; Butterfield v. Treichler, 113 Iowa 328, 85 N.W. 19; Ferguson & Son v. Board of Review, 119 Iowa 338, 93 N.W. 352; Tiedt v. Carstensen, 61 Iowa 334, 16 N.W. 214. * * * It may be admitted that the showing in support of the charge is by no means conclusive, but on the contrary is weak and inconclusive, yet it would be going entirely too far to say that there is an entire absence of evidence on which to base a finding unfavorable to plaintiff. The rule which prevents the court upon certiorari or by any other proceeding from undue and meddlesome interference in the details of municipal government is one so manifestly wise as to deserve and command general approval."

So in the case at bar, if there is any competent testimony tending to support any of the charges against any of the appellants it is our conclusion that the cases of the appellants in which such evidence has been introduced cannot be reviewed by certiorari, no matter how incompetent some...