Misbach v. Civil Service Commission of Cedar Rapids
| Decision Date | 08 April 1941 |
| Docket Number | 45408. |
| Citation | 297 N.W. 284,230 Iowa 323 |
| Parties | MISBACH v. CIVIL SERVICE COMMISSION OF CEDAR RAPIDS et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Linn County; Chas. J. Haas, Judge.
The Civil Service Commission of the City of Cedar Rapids after a hearing suspended Carl Misbach, an employee of the Fire Department. Misbach sought to test the jurisdiction of the Civil Service Commission through an action of certiorari in the District Court of Linn County, Iowa. Plaintiff's petition was dismissed and writ of certiorari annulled. Misbach has appealed. Opinion states the facts.
Affirmed.
Crissman & Bleakley and G. P. Linville, all of Cedar Rapids for appellant.
Don Hines, of Cedar Rapids, for appellees.
Carl Misbach was an employee of the City of Cedar Rapids, Iowa since the 31st day of October, 1934, in the capacity of a fireman and as a member of the Fire Department of said city that he continued in such employment down to and including the 11th day of January, 1940; that he received a monthly compensation of one hundred fifty dollars ($150) per month.
On the 30th day of September, 1939, the Chief of the Fire. Department of Cedar Rapids wrote Misbach a letter to the effect that it would be necessary for him to discipline Misbach for certain misconduct on the 28th day of September, 1939; that his discipline would be to remain on continuous duty for a period of forty-five (45) days and to abstain from drinking intoxicating liquors in the future.
On the 30th day of September, 1939, Misbach acknowledged to the Chief of the Fire Department the aforesaid letter and disciplinary action and agreed to accept and abide by the penalty and punishment set forth.
On the 5th day of October, 1939, the Chief of the Fire Department addressed a letter to Edw. E. Lowe, Chairman of the Civil Service Commission of Cedar Rapids, Iowa, advising him and the Civil Service Commission of his disciplinary action taken against Misbach.
On the 11th day of October, 1939, the Civil Service Commission adopted a resolution to make a thorough investigation into the case.
On the 20th day of October, 1939, the Civil Service Commission addressed a letter to Carl Misbach reviewing his record as a member of the Cedar Rapids Fire Department and notified him that a hearing would be had and held in the Superior Court room in the City Hall building on October 31, 1939, at 8:30 a. m., and at said hearing his entire record as a member of the Cedar Rapids Fire Department would be investigated and the commission would determine at said hearing from investigation of his record whether or not he had violated the rules of the Cedar Rapids Fire Department, and further notifying him that should said commission from the investigation of his record find that he had violated the rules of said Department, the commission would exercise its right to either suspend or discharge the plaintiff from the Department; and further notifying him to appear at said hearing at said time and place and to offer evidence and explanation of his alleged acts.
On the 30th day of October, 1939, the Civil Service Commission was enjoined by the District Court in and for Linn County from holding said hearing. The injunction action was brought by Carl Misbach and on the 4th day of January, 1940, it was dissolved.
On the 5th day of January, 1940, the Civil Service Commission again addressed a communication to Carl Misbach, advising him that the hearing which was to have been held on October 31, 1939, and which was not held due to the injunction which he obtained, would be held on the 8th day of January, 1940, at 10 o'clock a. m., and further notifying him that the matters referred to in the Commission's letter of October 20, 1939, would be considered and investigated by the Commission. Misbach was again notified in said communication that he would be required to appear on the 8th day of January, 1940, and that he was privileged to have counsel and offer evidence.
On the 8th day of January, 1940, at 10 o'clock a. m., the Civil Service Commission held an investigation and hearing on the record of Carl Misbach as a member of the Fire Department in and for the City of Cedar Rapids, Iowa, and after hearing all witnesses who desired to be heard closed said hearing.
On the 10th day of January, 1940, the Civil Service Commission rendered its decision or ruling and suspended the said Misbach for a period of six months without pay, effective January 11, 1940, alleging that he had been guilty of misconduct, neglect of duty and failure to properly perform his duties.
On the 13th day of January, 1940, Carl Misbach filed his petition in the Linn County District Court praying that a writ of certiorari be issued commanding the Civil Service Commission and each member to certify a transcript of the proceedings in the matter of Carl Misbach, and asking that said order discharging Misbach be set aside. The writ was issued, a hearing held and the lower court dismissed plaintiff's petition and annulled the writ of certiorari. Misbach being dissatisfied has appealed to this court.
The first question to confront us is: Has the Civil Service Commission original jurisdiction under Section 5702 of the 1939 Code, or is its jurisdiction to suspend or remove civil service employees limited exclusively to appellate proceedings.
Section 5702 of the Code of 1939 is as follows: " No person holding civil service rights as provided in this chapter shall be removed, demoted, or suspended arbitrarily, except as otherwise provided in this chapter, but may be removed, demoted, or suspended after a hearing by a majority vote of the civil service commission for neglect of duty, disobedience, misconduct, or failure to properly perform his duties."
This section first appears in Section 1056-a32, Par. c, Code supplement of 1913. In the Code of 1924 the chapter was broken into sections, and the one in question appears as Section 5702 in the Code of 1939.
It is the contention of appellant that Section 5702 only has the effect to give the commission appellate jurisdiction because the section prohibits arbitrary removal " except as otherwise provided," and because of the...
To continue reading
Request your trial