McClinton v. Melson

• Decision Date: 16 June 1942
• Docket Number: 45442.
• Parties: McCLINTON v. MELSON et al., Highway Commission.
• Court: Iowa Supreme Court

4 N.W.2d 247

232 Iowa 543

McCLINTON v. MELSON et al., Highway Commission.

No. 45442.

Supreme Court of Iowa

June 16, 1942

John M. Rankin, Atty. Gen., George A. Clark, Jr. Sp. Asst. Atty. Gen., and Maxwell A. O'Brien, of Des Moines, for appellants.

Ralph N. Lynch, of Des Moines, for appellee.

H D. Keeley, of Maquoketa, J. R. McManus and M. H. Johnson both of Des Moines, and R. J. Sullivan, of New Hampton, amici curiae.

MILLER Justice.

This cause has been submitted to us for reconsideration after the granting of a rehearing. For our former opinion, see McClinton v. Melson, 230 Iowa 340, 297 N.W. 810. Such opinion is now withdrawn and the following substituted in lieu thereof:

On January 25, 1940, petitioner filed a petition for a writ of certiorari asserting that he was employed by the Iowa State Highway Commission on or about April 9, 1935; he notified the district engineer at the time that he was a veteran of the war with Germany; he continued in such employment until September 23, 1939, when respondents, the members of said commission, discharged him without notice or hearing in violation of Sections 1159 to 1165 of the Code, 1939; the discharge occurred in Polk County, Iowa; he made a demand for reinstatement and for payment of his wages on December 6 1939; on January 2, 1940, he was reinstated by respondents but his back pay was denied him; he used reasonable diligence to obtain other employment; he was illegally deprived of wages amounting to $294. The prayer was that respondents certify the record and that the court reverse the illegal action of respondents and order them to restore to him his wages.

Respondents' answer denied all allegations of the petition not admitted. It admitted the employment and discharge of petitioner, the official capacities of respondents, the fact that petitioner is an honorably discharged soldier of the war with Germany; that no charges were filed and no hearing had thereon, the rate of pay, the re-employment of petitioner on January 2, 1940, the refusal to pay back wages and incorporated in the answer the return to the writ, wherein the facts are set out in detail.

The answer further asserted that the court was without jurisdiction for the following reasons: (1) The official acts complained of occurred in Story County rather than Polk County; (2) the controversy is now moot because of petitioner's reinstatement; (3) the action is in truth one for a money judgment against the State which cannot be maintained without its consent; (4) the act of respondents was not a judicial act but an administrative or executive act in which they had discretion which the court cannot control; (5) respondents did not act illegally nor in excess of their jurisdiction; (6) petitioner seeks to compel performance of an alleged ministerial duty which cannot be done by certiorari; (7) he seeks to compel officials to expend state funds; (8) he has another plain, speedy and adequate remedy; petitioner did not tender his services after his discharge. Respondents prayed that the writ be quashed.

Petitioner testified that, following his discharge, he made various efforts to secure employment but was unable to secure anything that produced any income and was always ready to go back to work for respondents. After his discharge, a man by the name of Anderson was employed to do the work petitioner had done and was paid a salary therefor.

The court determined that certiorari was a proper remedy herein, that petitioner's discharge was arbitrary and illegal, in violation of Sections 1159 to 1165 of the Code, 1939, that, between the date of his discharge and re-employment, petitioner would have earned $294 which sum was refused him, that he made a good faith effort to secure employment without success, that the illegal and arbitrary action of respondents in depriving petitioner of $294 in wages should be corrected. The court ordered respondents to correct said illegal and arbitrary action and to take all steps necessary within their power to see that said sum was restored to petitioner, directed that they pay all costs of the action and retained jurisdiction to enforce the order. Respondents appeal.

Appellants' first assignment of error asserts that the district court of Polk County was without jurisdiction because the official action took place in Story County. They cite Brownell v. Aetna State Bank, 201 Iowa 781, 208 N.W. 210, and College of Physicians & Surgeons v. Guilbert, 100 Iowa 213, 69 N.W. 453. In each of those cases there was a motion for change of venue which was overruled. No such motion is shown to have been filed herein. The question is one of venue, not jurisdiction. Section 11053, Code, 1939. Since the question was not properly presented to the court below, it cannot be considered here. See Baker v. Chicago Joint Stock Land Bank, 205 Iowa 1259, 217 N.W. 621.

Appellants' third proposition asserts that the order appealed from is erroneous because, in effect, it requires double payment for the same work. Upon the former submission of this case, a majority of this court was of the opinion that there was no merit in the contention. We now hold that the contention must be sustained. This requires a reversal herein.

In the case of Harding v. Des Moines, 193 Iowa 885, 890, 891, 188 N.W. 135, 138, wherein two policemen, who had been erroneously suspended by the Civil Service Commission, sought to recover their salaries during the period of such suspension, we state:

"While, as above adverted to, no particular appointees could be singled out as the successors of appellees, as de facto officers supplanting appellees, while appellees were suspended, but the police force having been filled up to the full quota, there were officers who took appellees' places and were paid for their services; and [the question is whether] the city, having acted in good faith in the payment of officers who took their places, can it be held liable on the claims of appellees for salary not earned? The city paid for services rendered which appellees would have rendered had they been continued in the service. In other words, can the city be held liable twice? Under our holding in Brown v. Tama County, 122 Iowa 745, 98 N.W. 562, 101 Am.St.Rep. 296, this central and controlling question must be answered in the negative. In the Brown case, we held, in effect, as stated in the syllabus:

"'Where a county pays an officer de facto, during his incumbency, the salary provided by law, the rightful officer after obtaining possession of the office by judgment of the court cannot recover from the county the salary for the same period.'

"See, also, McCue v. County of Wapello, supra [56 Iowa 698, 10 N.W. 248, 41 Am. Rep. 134].

"While there is lack of harmony in decisions of courts of other jurisdictions and courts of high authority hold to the contrary, a decided preponderance of the authorities sustain our holding in the Brown case, to the effect that by payment of a salary to a de facto officer the right of the officer de jure to collect his salary from a municipality is lost."

As above stated, one Anderson did the work appellee would have done during the time he was wrongfully discharged and was paid a salary therefor. Appellants' third proposition in effect asserts that the rule applied in Harding v. Des Moines, supra, should be applied herein. The proposition is sound.

The division of authority referred to in the above quotation is discussed more fully in the case of Brown v. Tama County, 122 Iowa 745 750, 98 N.W. 562, 101 Am.St.Rep. 296, cited above. Reference is made to the case of Andrews v. Portland, 79 Me. 484, 10 A. 458, 10 Am.St.Rep. 280, perhaps the leading case in favor of the right of a public servant, wrongfully discharged, to recover his salary, this court stating as follows [122 Iowa 745, 98 N.W. 564, 101 Am.St.Rep. 296]: "It is to be said of several, if not all, of the cases last cited, that they present a materially different state of facts than we have here to pass upon. For instance, the plaintiff in the Andrews case was duly appointed and...