Stith v. Civil Service Commission of City of Des Moines

• Decision Date: 11 June 1968
• Docket Number: No. 52944,52944
• Citation: 159 N.W.2d 806
• Parties: Lloyd I. STITH, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF DES MOINES, Iowa, Wilton M. Seymour, Chairman and Member of the aforesaid Civil Service Commission; Richard L. Hankinson, as a Member of the aforesaid Civil Service Commission; M. B. Cunningham, as a Member of the aforesaid Civil Service Commission, Appellees.
• Court: Iowa Supreme Court

Page 806

159 N.W.2d 806

Lloyd I. STITH, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF DES MOINES, Iowa, Wilton M. Seymour, Chairman and Member of the aforesaid Civil Service Commission; Richard L. Hankinson, as a Member of the aforesaid Civil Service Commission; M. B. Cunningham, as a Member of the aforesaid Civil Service Commission, Appellees.

No. 52944.

Supreme Court of Iowa.

June 11, 1968.

Gill & Huscher, by Gary S. Gill, Des Moines, for appellant.

Philip T. Riley and Gary H. Swanson, Des Moines, for appellees.

SNELL, Justice.

The immediate problem before us is one of procedure and the limitations on relief by mandamus. In the background and the original cause of dispute are two separate chapters in our Code. Section 97B.45 the retirement provision under the Iowa Public Employees' Retirement System, commonly called I.P.E.R.S., provides for mandatory retirement at age 70 except under conditions not appearing here. Chapter 365 relates to Civil Service employees in cities and towns.

The facts condensed from the several pleadings and motions do not disclose any material factual dispute.

Plaintiff was an employee of the City of Des Moines in a civil service position and also under I.P.E.R.S.

Defendant is the Civil Service Commission of the City and the members thereof.

On or about April 1, 1967 plaintiff was removed and discharged from his position. Pursuant to section 365.21, Code of Iowa, he appealed to the Civil Service Commission. No specification of charges and grounds for discharge were filed as provided in section 365.22.

The City filed a motion to dismiss alleging the removal of appellant was pursuant to sections 97B.45 and 97B.46, Code of Iowa, and that the Civil Service laws had not been violated.

The Commission, after a hearing, found that by stipulation of the parties plaintiff was born November 28, 1895 and as of the date of hearing was 71 years of age. By stipulation the commission further found that plaintiff was under the I.P.E.R.S. system and was until the termination of his employment a member thereof.

The commission then found that the termination of employment was under the provisions of sections 97B.45 and 97B.46 of the Code and not under the Civil Service provisions prohibiting discharge other than for cause. Termination of employment was based solely on the provisions of the statute providing for mandatory retirement because of age. The commission found that under the evidence and facts the commission had no jurisdiction to entertain the appeal. Plaintiff's appeal was dismissed. Plaintiff also filed with the commission a motion to reinstate him in his civil service position.

Plaintiff brought action in mandamus in district court to command defendants to take all appropriate steps to take jurisdiction, reinstate plaintiff in his civil service position and determine the amount of compensation that may be due him.

In district court defendant moved to dismiss on several grounds. The motion was sustained on the ground 'That plaintiff has plain, speedy and adequate remedy in the ordinary course of law by a writ of certiorari.' The case was dismissed and plaintiff appealed to us.

The authority of the legislature to provide for mandatory retirement because of age is not challenged. The wisdom of mandatory retirement based on age alone is not within the scope of our review. The sole question here is whether plaintiff's complaint and alleged grievance may be reviewed in mandamus.

I. Section 97B.45 has been repealed and a substitute enacted. Section 97B.46, Code of Iowa, 1966, has been amended by the 62nd General Assembly, but the changes are not material here. Section 97B.45 authorizes retirement at age 65 and makes retirement mandatory at age 70. Section 97B.46 permits continued employment after age 70 at the request of the employer.

Section 365.19 (the civil service law) provides for suspension, demotion or removal for cause.

Section 365.20 provides for appeal to the civil service commission. Section 365.21 provides for notice.

Section 365.22 provides:

'Charges. Within five days from the service of such notice of appeal, the person or body making the ruling appealed from shall file with the body to which the appeal is taken a written specification of the charges and grounds upon which the ruling was based. If such charges are not so filed the person suspended or discharged may present the matter to the body to whom the appeal is to be taken by affidavit, setting forth the facts, and such body shall forthwith enter an order reinstating the person suspended or discharged for want of prosecution.'

This statute following in sequence as it does the prior statutes provide for full disclosure of the reason or reasons for suspension, demotion or removal. Statutes immediately following provide for hearing and determination.

In the case at bar there have been no charges of 'neglect of duty, disobedience of orders, misconduct or failure to properly perform his duties,' referred to in section 365.19. No specification of charges as required by section 365.22 has been filed.

There has, however, been a hearing by the commission. The commission determined that the termination of employment occurred solely because of plaintiff's age and that it had no jurisdiction to proceed under chapter 365 of the Code.

As noted, supra, plaintiff sought a mandate requiring the commission to proceed under chapter 365, hold hearings, reinstate and order plaintiff paid. This goes beyond the scope of mandamus and calls for an answer to a legal question not determinable in mandamus. The trial court so held and we agree.

II. Section 661.1 of our Code provides:

'Definition. 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 661.3 provides:

'Nature of action. All such actions shall be tried as equitable actions.'

An action tried as an equitable action is reviewable de novo. Rule 334, Rules of Civil Procedure. Chicago, Burlington & Quincy Railroad Company v. Iowa State Tax Commission, 259 Iowa 178, 142 N.W.2d 407, 408.

Section 661.7 provides:

'Other plain, speedy and adequate remedy. An order of mandamus shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law, save as herein provided.'

The purpose of a writ of mandamus is to require action to enforce an established right and to enforce a corresponding duty imposed by law. 55 C.J.S. Mandamus § 51, Pierce v. Green, 229 Iowa 22, 39, 294 N.W. 237.

'Since, * * * the purpose of a writ of mandamus is not to establish a legal right but to enforce one which has already been established, it is essential to the issuance of the writ that the legal right of plaintiff or the relator to the performance of the particular act of which performance is...