Tusant v. City of Des Moines, No. 45761.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHALE
Citation231 Iowa 116,300 N.W. 690
PartiesTUSANT v. CITY OF DES MOINES et al.
Docket NumberNo. 45761.
Decision Date18 November 1941

231 Iowa 116
300 N.W. 690

TUSANT
v.
CITY OF DES MOINES et al.

No. 45761.

Supreme Court of Iowa.

Nov. 18, 1941.


Appeal from District Court, Polk County; Frank S. Shankland, Judge.

Appeal by defendant Bert L. Zuver from decree of the district court reversing and remanding the order of the appointing board naming Bert L. Zuver as city assessor of the city of Des Moines.

Reversed.

STIGER and MITCHELL, JJ., dissenting.

[300 N.W. 691]

Carl J. Stephens and Ben C. Buckingham, both of Des Moines, for appellant.

Casper Schenk and H. W. Hanson, both of Des Moines, for appellee J. B. Tusant.


Herrick, Sloan & Langdon, of Des Moines, for appellee Board of Sup'rs.

HALE, Justice.

This suit is brought to determine whether or not the plaintiff, J. B. Tusant, is entitled to the office of city assessor of Des Moines, under the provisions of chapter 60, § 1159 et seq., Code of 1939. An appeal was brought by plaintiff in the district court of Polk county to review the action of the three taxing bodies,-the city council of the city of Des Moines, board of supervisors of Polk county, and the school board of the independent school district of Des Moines,-in the matter of the appointment of the defendant Bert L. Zuver to the office of assessor under the provisions of chapters 202 and 203 (being S.F. 3, as amended by S.F. 286), Acts of the Forty-ninth General Assembly.

It is not disputed that plaintiff is an honorably discharged sailor, as required by said chapter 60 when preference is claimed thereunder. He claims that as such he is entitled to the office, and that the above three taxing bodies acting as an appointing body, constituted as such under the said chapter 202 as amended, acted illegally in appointing Bert L. Zuver as city assessor, for the reason that they failed and refused to comply with the provisions of the soldiers' preference law (said Code ch. 60). To this complaint the defendants Zuver and the board of supervisors demurred on the ground that the soldiers' preference law is not applicable to the position of city assessor of the city of Des Moines. This demurrer was overruled; defendants Zuver and the board of supervisors elected to stand on their demurrer, and the cause was remanded by the court to the appointing board; from this ruling these defendants have appealed. Plaintiff Tusant also perfected an appeal on the ground that the district court, instead of remanding, should have entered an order directing his appointment as said assessor. This will be referred to later.

The first error complained of is the overruling of grounds 1 and 3 of the demurrer which assailed the complaint (notice of appeal) for the reasons: (1) that the soldiers' preference law does not apply to the head of a department where said head of a department is vested with discretion and is not subject to direction, supervision, or control of the appointing body or anyone else; that the office of city assessor is an office or department of which the assessor is the head, and that in the exercise of his duties as such he is vested with powers of a judicial, quasi judicial, and discretionary nature, requiring the exercise of judgment and discretion in the performance thereof; that he is vested with the power to appoint deputies, and with the powers and duties usually vested in the head of such department and that therefore the office of assessor does not come within the provisions of the soldiers' preference act as set out in chapter 60, Code of 1939, and that the plaintiff is not therefore entitled to preference; (2) that the court has no jurisdiction of the subject matter of this appeal in that the soldiers' preference act is not applicable to the head of an office, vested with discretion and subject to no supervision, direction, or control of the appointing body or anyone else. The other error complained of, and discussed hereafter, is the overruling of ground 2 of the demurrer, which sets out that the provisions of S.F. 3 as amended are in conflict with and repugnant to the provisions of the soldiers' preference act.

From the foregoing statement it will be seen that the question for our consideration on this appeal is whether or not the soldiers'

[300 N.W. 692]

preference law (ch. 60, Code of 1939) is applicable to the appointment of a city assessor provided for in chapter 202 as amended, Acts of the Forty-ninth General Assembly. Chapter 60, Code of 1939, contains sections 1159 to 1165, inclusive, section 1159 being as follows: “In every public department and upon all public works in the state, and of the counties, cities, towns, and school boards thereof, including those of cities acting under special charters, honorably discharged soldiers, sailors, marines, and nurses from the army and navy of the United States in the late civil war, Spanish-American war, Philippine insurrection, China relief expedition, or war with Germany, who are citizens and residents of this state, shall, except in the position of school teachers, be entitled to preference in appointment, employment, and promotion over other applicants of no greater qualifications.”

Section 1162.1 provides for appeal to the district court from any refusal to allow such preference to any person entitled thereto. Chapter 202 of the Acts of the Forty-ninth General Assembly, which became effective by publication February 20, 1941, prescribes the method of selection of a city assessor in cities having a population in excess of 125,000. The material parts of such statute are as follows:

“Section 1. Within thirty (30) days from the taking effect of this Act, in cities having more than one hundred twenty-five thousand (125,000) population, the city council, the school board and the county board of supervisors each shall appoint at a regular meeting by a majority vote of the members present, one qualified person to serve as a member of an examining board to give an examination for the positions of city assessor and deputy assessors. This examining board shall organize as soon as possible after its appointment, with a chairman and secretary. * * *

Sec. 3. Not later than thirty (30) days after its appointment, the examining board shall give notice of holding an examination for assessor by posting a written notice in a conspicuous place in the city hall and at one other public place, stating that at a specified date not more than sixty (60) days nor less than thirty (30) days from the posting of said notice, an examination for the position of city assessor will be held at a specified place. Similar notice shall be given at the same time, by one publication of said notice in a newspaper of general circulation in the city. * * *

Within fourteen (14) days from the holding of such examination, it shall certify to the city council, the board of supervisors and the school board, the names of all persons who in its determination, shall have passed with a grade of not less than seventy (70) per cent in such examination. Said list shall be in force and effect for two (2) years from the date of certification.

Sec. 4. Not later than seven (7) days after receipt of this list, the mayor of the city shall by written notice, call a meeting of the members of the board of supervisors, the school board and the city council, at the city hall or other specified public place, to appoint the city assessor from this list. Such selection shall not be made unless a majority of the members of two or more of said three taxing bodies are present. The mayor shall act as chairman of the meeting. The majority vote of the members present of each separate taxing body in favor of a candidate, shall count as one vote toward the selection of the city assessor.

The assessor shall be chosen by an approving vote of not less than two (2) out of three (3) taxing bodies. The physical condition, general reputation of the candidates and their fitness for the position as determined by the examination provided for in section three (3), shall be taken into consideration in making such selection.”

The representatives of the three taxing bodies constituted an examining board, and in compliance with the provisions of section 1 of the act, met on June 17, 1941, and reported the names of five persons who had passed the examination with a grade of 70 per cent or more, which list included the plaintiff Tusant and the defendant Zuver, it appearing by the record that Zuver's percentage was 84.6 and Tusant's 86.2. On June 24, 1941, the three taxing bodies met for the purpose of selecting a city assessor, at which meeting the plaintiff Tusant received the vote of the city council of Des Moines, and the defendant Zuver received the votes of the other two bodies and he was selected. From this action of the appointing board the plaintiff Tusant appealed to the district court.

There is no appeal from the appointment provided for in chapter 202, Acts of the Forty-ninth General Assembly (the assessor law), but there is such appeal provision in the soldiers' preference law, Code, ch. 60, section 1162.1. If the latter act is not applicable to the office of city assessor,

[300 N.W. 693]

there would be no jurisdiction in the district court or in this court to consider such an appeal. The case therefore resolves itself into and must be determined by the question heretofore stated: Does the soldiers' preference law apply to the office of city assessor in cities of more than 125,000 population, provided for by chapter 202 of the Acts of the Forty-ninth General Assembly as amended?

While the various parts of chapter 60 of the Code have been considered by this court in numerous cases, none has presented the question here raised. The new city assessor act was only adopted in February of this year. The question, however, has been determined by the supreme courts of other states having substantially the same statutory provisions as our Code chapter 60. In New York, in the case of People ex rel. Jacobus v. Van Wyck, 1897, 157 N.Y. 495, 52 N.E. 559, the question arose as...

To continue reading

Request your trial
5 practice notes
  • Thomas v. State, No. 47672
    • United States
    • United States State Supreme Court of Iowa
    • October 17, 1950
    ...promote its objects. Chiesa & Co. v. City of Des Moines, 158 Iowa 343, 138 N.W. 922; 48 L.R.A., N.S., 899; Tusant v. City of Des Moines, 231 Iowa 116, 300 N.W. 690. Code provisions must be liberally construed to promote objects and assist parties in obtaining justice. Arthaud v. Griffin, 20......
  • State v. Nelson, No. 45583.
    • United States
    • United States State Supreme Court of Iowa
    • November 18, 1941
    ...and constitutional guaranties of protection against the use of the torture chamber are not a whit less sacred than those which guarantee [300 N.W. 690]each and every citizen against illegal searches and seizures.” I have always understood that the Constitution protected all men, including t......
  • Miehls v. City of Independence, No. 49367
    • United States
    • United States State Supreme Court of Iowa
    • February 11, 1958
    ...Des Moines, 158 Iowa 343, 138 N.W. 922, 48 L.R.A.,N.S., 899; Sullivan v. Harris, 224 Iowa 345, 276 N.W. 88; Tusant v. City of Des Moines, 231 Iowa 116, 300 N.W. 690; Blakeley v. Shortal's Estate, 236 Iowa 787, 20 N.W.2d III. The majority opinion presents in support of its position the princ......
  • Geyer v. Triplett, No. 46846.
    • United States
    • United States State Supreme Court of Iowa
    • June 21, 1946
    ...war, or the war with Germany. In construing this act this court has so held in a number of decisions. In Tusant v. City of Des Moines, 231 Iowa 116, 300 N.W. 690, this court held that the Soldiers' preference statute should be given a liberal construction. Herman v. Sturgeon, supra. In the ......
  • Request a trial to view additional results
5 cases
  • Thomas v. State, No. 47672
    • United States
    • United States State Supreme Court of Iowa
    • October 17, 1950
    ...promote its objects. Chiesa & Co. v. City of Des Moines, 158 Iowa 343, 138 N.W. 922; 48 L.R.A., N.S., 899; Tusant v. City of Des Moines, 231 Iowa 116, 300 N.W. 690. Code provisions must be liberally construed to promote objects and assist parties in obtaining justice. Arthaud v. Griffin, 20......
  • State v. Nelson, No. 45583.
    • United States
    • United States State Supreme Court of Iowa
    • November 18, 1941
    ...and constitutional guaranties of protection against the use of the torture chamber are not a whit less sacred than those which guarantee [300 N.W. 690]each and every citizen against illegal searches and seizures.” I have always understood that the Constitution protected all men, including t......
  • Miehls v. City of Independence, No. 49367
    • United States
    • United States State Supreme Court of Iowa
    • February 11, 1958
    ...Des Moines, 158 Iowa 343, 138 N.W. 922, 48 L.R.A.,N.S., 899; Sullivan v. Harris, 224 Iowa 345, 276 N.W. 88; Tusant v. City of Des Moines, 231 Iowa 116, 300 N.W. 690; Blakeley v. Shortal's Estate, 236 Iowa 787, 20 N.W.2d III. The majority opinion presents in support of its position the princ......
  • Geyer v. Triplett, No. 46846.
    • United States
    • United States State Supreme Court of Iowa
    • June 21, 1946
    ...war, or the war with Germany. In construing this act this court has so held in a number of decisions. In Tusant v. City of Des Moines, 231 Iowa 116, 300 N.W. 690, this court held that the Soldiers' preference statute should be given a liberal construction. Herman v. Sturgeon, supra. In the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT