Miller v. Hanna

• Decision Date: 13 February 1936
• Docket Number: 43344.
• Parties: MILLER v. HANNA et al.
• Court: Iowa Supreme Court

265 N.W. 127

221 Iowa 56

MILLER v. HANNA et al.

No. 43344.

Supreme Court of Iowa.

February 13, 1936

Appeal from District Court, Wapello County; George W. Dashiell Judge.

Action in mandamus to compel defendants to appoint plaintiff as superintendent of the Wapello County Poor Farm. The petition was dismissed, and plaintiff appeals.

Affirmed.

Gillies & Schaefer, of Ottumwa, and Mabry & Mabry, of Albia for appellant.

Edward J. Grier, of Ottumwa, for appellees.

KINTZINGER, Justice.

On December 28, 1934, the appellant, age 46, an honorably discharged soldier of the World War, filed an application with the board of supervisors of Wapello county for the position of steward of the Wapello County Home, under the Soldier's Preference Law of Iowa. There were ten other applications for the position, but appellant was the only one filing under the Preference Act. On January 15, 1935, the board met and appointed one Lester W. Corbett, who was not an ex-service man, to that position.

Thereafter on May 17, 1935, a writ of mandamus was issued, and a hearing was had thereon before the court. The defense urged was that the power to select the steward was a discretionary power with the board of supervisors, and that the appointee had greater qualifications than the appellant. At the close of the testimony, the district court found that the requirements of the act were met, and plaintiff's petition was dismissed. Hence this appeal.

Section 1159 of the Code of 1931, being the Soldier's Preference Law, provides that: " In every public department and upon all public works in the state, and of the counties, * * * honorably discharged soldiers * * * [in various wars, including the] war with Germany, * * * shall * * * be entitled to preference in appointment, * * * over other applicants of no greater qualifications." (Italics ours.)

Section 1161 of the Code of 1931 provides that: " When such soldier, etc., shall apply for appointment or employment under this chapter, the officer, board, * * * whose duty it is * * * to appoint * * * some person to fill such position * * * shall, before appointing or employing anyone to fill such position * * * make an investigation as to the qualifications of said applicant for such place or position, and if the applicant is of good moral character and can perform the duties of said position * * * as hereinbefore provided, said * * * board * * * shall appoint said applicant to such position * * * or employment." (Italics ours.)

Section 1162 of the Code of 1931 provides that: " A refusal to allow said preference * * * shall entitle the applicant * * * to maintain an action of mandamus to right the wrong." (Italics ours.)

These statutes impose a duty upon the board, first, to make an investigation as to the qualifications of the ex-service applicant before making the appointment; and, second, that, if it appears from such investigation that the qualifications of other applicants are no greater than those of the honorably discharged soldier, he shall be entitled to the appointment, if otherwise qualified. At the trial of the case below, it was shown without dispute that the appellant was an honorably discharged soldier of the World War, that he was of good moral character, and that he had qualifications fitting him for the position.

The only questions for our consideration are, first, whether the board made an investigation as to appellant's qualifications, and, second, whether the board acted arbitrarily and abused its discretion in finding that the qualifications of the appointee were greater than those of appellant.

I.

The appellees contend that the power of making the appointment vested them with a discretion with which the courts cannot interfere. It is the wellsettled rule of law in this state and elsewhere that, where the performance of an official act involves the exercise of a discretion on the part of the appointing officer or board, the discretion of such officer or board cannot ordinarily be controlled by the courts; they can only be directed to act, leaving the matter as to what particular action he will take to his determination. Otherwise the discretion of the court would be substituted for the discretion of the appointing board, and the courts will not, as a general rule, interfere with this discretion. 18 R.C.L. 124, § 38.

This rule under our statutory action of mandamus is based upon sections 12440 and 12441 of the Code. Section 12440 provides that: " The action of mandamus is one brought to obtain an order commanding an inferior tribunal, board, corporation, or person to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust, or station."

Section 12441 provides that: " Where discretion is left to the inferior tribunal or person, the mandamus can only compel it to act, but cannot control such discretion."

This rule is also recognized in this state by the following cases: Coy v. City Council of Lyons City, 17 Iowa 1, 85 Am.Dec. 539; Clark v. Board of Directors, 24 Iowa 266; State v. Morris, 43 Iowa 192; Scripture v. Burns, 59 Iowa 70, 12 N.W. 760; Christy v. Whitmore, 67 Iowa 60, 24 N.W. 593; Milwaukee Malt Ext. Co. v. Ry. Co., 73 Iowa 98, 34 N.W. 761; Preston v. Board of Education, 124 Iowa 355, 100 N.W. 54; Kinzer v. Directors of Ind. School Dist., 129 Iowa 441, 105 N.W. 686, 3 L.R.A.(N.S.) 496, 6 Ann.Cas. 996; Neilan v. Board of Directors of Independent School District, 200 Iowa 860, 205 N.W. 506; Addison v. Loudon, 206 Iowa 1358, 222 N.W. 406.

This rule has also been applied in this state and elsewhere in cases involving the Soldier's Preference Law, in which it is held that, if the board, in the exercise of a sound discretion, determines that the qualifications of the ex-soldier applicant are not equal to those of the appointee, the judgment of the board cannot be interfered with in mandamus by the courts. McBride v. City Council of Independence, 134 Iowa 501, 110 N.W. 157; Ross v. City Council of Sioux City, 136 Iowa 125, 113 N.W. 474; Arnold v. Wapello County, 154 Iowa 111, 134 N.W. 546; Boyer v. Mayor and City Council of Creston (Iowa) 113 N.W. 474; 18 R.C.L., § 180; Keim v. U.S. 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774; 10 L.R.A.(N.S.) 825, note.

In McBride v. City Council of Independence, 134 Iowa 501, loc. cit. 503, 110 N.W. 157, 158, this court said: " Before making the appointment the board or officer required to select is bound to make an investigation as to the applicant's qualifications. If these are not equal to those of the other persons under consideration, he is not of the class of persons * * * in whose favor the preference was created. If of equal qualification, however, he would not necessarily be entitled to the position or office, for all might prove to be disqualified, and therefore to render his employment or appointment obligatory and enforceable by proceedings in mandamus, it is further exacted that he must be of good moral character and able to perform the duties of the position applied for. * * * Appellant argues that the provision relating to equal qualifications is general and must give way to the more particular specifications enumerated later on, and that bare competency and good moral character constitute the ‘ equal qualifications' mentioned in the forepart of the section. * * * The trouble with appellant's contention is that the language employed * * * does not bring the statute within this rule; for preference is conferred only on such veterans as possess qualifications equal to those possessed by other candidates for the office. * * * For no other is the preference provided. That some persons are better able to and will perform the duties of a position with greater efficiency than others, who are barely competent to discharge them, is recognized by every one, and it was not the design of the Legislature to deprive the state or any of its governmental subdivisions of the very best service attainable. To this end equality in the matter of qualifications is a condition to awarding any preference."

In Ross v. City Council of Sioux City, 136 Iowa 125, loc. cit. 127, 113 N.W. 474, 475, this court says: " A board may be compelled to act, but its discretion cannot be controlled in such a proceeding. The statute gives to the complaining party a remedy by mandamus to right the wrong involved in a refusal to allow the preference provided for; but this can mean no more than that the board shall be required to determine whether the applicant is entitled to the appointment which is sought. * * * McBride v. City Council 110 N.W. 157, and Boyer v. Mayor and City Council of Creston [Iowa] 113 N.W. 474."

In Arnold v. Wapello County, 154 Iowa 111, loc. cit. 114, 134 N.W. 546, 547, the court distinctly says: " The duty of appointment involves the exercise of judgment and discretion which the court cannot forbid. The question of the relative merits of the contestants is not triable de novo before the trial court nor before us. We can only interfere when the record discloses bad faith and abuse of discretion in a legal sense. * * * McBride v. City Council of Independence, 134 Iowa 501, 110 N.W. 157; Ross v. City Council of Sioux City, 136 Iowa 125, 113 N.W. 474."

In the case of Boyer v. Mayor of Creston (Iowa) 113 N.W 474, the evidence shows that the ex-service appellant and the one appointed to the position were present the day the appointment was made, and that at that time evidence was heard as to the qualifications of each, and following the hearing an appointment was made. The court there says: " The preference act says that an ex-soldier having equal qualifications shall have preference in appointments, etc. Who is to determine this matter of qualification, and whether that...