Ross v. City Council of Sioux City

• Decision Date: 24 October 1907
• Citation: 136 Iowa 125,113 N.W. 474
• Parties: ROSS v. CITY COUNCIL OF SIOUX CITY ET AL.
• Court: Iowa Supreme Court

136 Iowa 125

113 N.W. 474

ROSS

v.CITY COUNCIL OF SIOUX CITY ET AL.

Supreme Court of Iowa.

Oct. 24, 1907.

Appeal from District Court, Woodbury County; F. R. Gaynor, Judge.

Action by mandamus to compel the defendant city council to employ the plaintiff as physician and health officer under the soldiers' preference law. There was judgment for the plaintiff, and the city council appeals. Reversed.Fred W. Sargent and A. Van Wagenen, for appellant.

A. D. Collier and J. S. Lothrop, for appellee.

PER CURIAM.

It appears that plaintiff was an applicant before the defendant city council for appointment to the position of physician and health officer for the city, and that it was shown to the council in proceedings with reference to the appointment to that office that plaintiff was a practicing physician in the city and a soldier of the Civil War; but, notwithstanding the claim on the part of plaintiff that he was entitled to appointment under the soldiers' preference statute (Acts 30th Gen. Assem. p. 8, c. 9 [1904]), the appointment was given to another. Plaintiff brought this action to have established his right to appointment to the office under the statute, alleging that he was such soldier, and that he was of good moral character, and competent to discharge the duties of the office, and therein asked that a writ of mandamus be issued directing the defendant city council to employ the plaintiff and remove the person appointed, who was also made defendant, from such office. Defendant's demurrer to the petition was overruled, and the court determined the issue of fact raised by an answer on the part of the defendant, and found the plaintiff to be an honorably discharged soldier of the army of the United States in the Civil War, a competent physician, a man of good moral character, and a person competent and able to perform the duties of the position applied for by him, and adjudged the appointment of the person who was appointed illegal, and issued a mandamus commanding the city council to appoint the plaintiff to the office.

The sole question for determination is whether an action of mandamus will lie to compel the appointment of a Civil War veteran to an office for the discharge of which he is shown to be competent, regardless of the exercise of any discretion on the part of the appointing board as to whether he is as well qualified, in all respects, to discharge the duties of the office as another person, also competent, not a veteran, who...