Zanfes v. Olson

• Decision Date: 09 February 1943
• Docket Number: 46226.
• Citation: 7 N.W.2d 901,232 Iowa 1169
• Parties: ZANFES v. OLSON.
• Court: Iowa Supreme Court

7 N.W.2d 901

232 Iowa 1169

ZANFES v. OLSON.

No. 46226.

Supreme Court of Iowa

February 9, 1943

Baron & Bolton, of Sioux City, for appellee.

Ralph W. Crary, and V. O. DeWitt, both of Sioux City, for appellant.

HALE, Justice.

Appellee was a policeman in Sioux City, Iowa and on April 10, 1941, with eighteen members of the police department, took an examination for promotion to the office of detective. After the examination the civil service commission of Sioux City made an eligibility list of ten of the eighteen taking the examination showing them to be eligible for appointment by promotion. Appellee was an ex-service man with an honorable discharge and is so shown on the records of the civil service commission. He is the only person on the eligibility list raising the question as to right to appointment by reason of the preference given to soldiers and sailors.

Appellee has never been appointed from such list to the office of detective, but appointment from the list was made of Edward A. Ballard on August 5, 1941 and he has since acted in that capacity. He is not an ex-service man. Among the names certified by the civil service commission Ballard stood fifth with a grade of 84.9 and Zanfes stood ninth on the list with a grade of 82.9. Since such list was certified three detectives have been appointed therefrom: Ballard, August 5 1941; Gibbons, who stood third on the list with a grade of 86.5, was appointed May 22, 1942; and Hoffman, who was fourth with a grade of 85.2, was appointed December 30, 1941. These were the only ones appointed. Zanfes, appellee, was the only veteran on the list. Mahr, the first man on the list, has never been appointed. O'Hara, the second, is dead, but at the time of his death had not been appointed.

Appellee's petition for a writ of mandamus was filed January 15, 1942 and after hearing the court on October 20, 1942. rendered judgment and decree finding that the appellee was entitled to the rank and privileges of a detective from and after August 5, 1941, and issued the writ directed to appellant commanding him to cancel and revoke the appointment of Ballard and appoint Zanfes in his place. The appellant, Forrest M. Olson Commissioner of Public Safety of the City of Sioux City appeals from this judgment and order of the district court.

The only question presented by this appeal is whether Zanfes, a veteran, was entitled to preference in appointment from the civil service eligibility list over the appointee, Ballard a nonservice man, who had a higher grade and standing on the list than the appellee. Appellant's contention is that the qualifications of a veteran, to entitle him to appointment, must be at least equal to the qualifications of other applicants; but appellee claims that the preference provision of the Civil Service Law makes no such requirement. Appellant argues that the rule is based on Section 1159 of Chapter 60, Code of Iowa, 1939, known as the Soldiers' Preference Law, which reads as follows: "In every public department and upon all public works in the state, and of the counties, * * * honorably discharged soldiers * * * shall * * * be entitled to preference in appointment, * * * over other applicants of no greater qualifications." (Italics ours)

Appellant cites various cases decided by this court which hold to the rule he claims. See McBride v. City Council, 134 Iowa 501, 110 N.W. 157; Arnold v. Wapello County, 154 Iowa 111, 134 N.W. 546; Boyer v. Mayor, Iowa, 113 N.W. 474; Ross v. City Council of Sioux City, 136 Iowa 125, 113 N.W. 474; Miller v. Hanna, 221 Iowa 56, 265 N.W. 127. These cases were all decided under the provisions of Chapter 60, Code of Iowa, 1939, which was originally Section 1, Chapter 9, Acts of the Thirtieth General Assembly. This action is brought, however, and the claim is made, that the right to preference is given under the Civil Service Law, Chapter 289, Code of Iowa, 1939. In this chapter, Section 5697, it is provided: "In all examinations and appointments under the provisions of this chapter, honorably discharged soldiers, * * * shall be given the preference, if otherwise qualified."

The difference between these two sections is apparent. Under what is generally known as the Soldiers' Preference Law the requirement is made that the qualifications of the preferred candidate must be equal. Under the Civil Service Law the requirement as to preference for veterans is only that they be otherwise qualified. There are certain exceptions to the preference under both statutes. Under the Civil Service Law the preference does not apply in some cases. However, under such law it is required that the civil service commission shall hold examinations for determining the qualifications of applicants for appointment and shall also hold promotional examinations at certain stated times as prescribed in Sections 5696 and 5696.1. After such examination in case of promotion or appointment the commission certifies to the person having appointive power a list of the names of the ten persons who qualify with the highest standing as the result of such examination, or such number as have qualified, if less than ten, in the order of their standing, and from this list is selected the applicant for the position or for promotion. Except in cases of emergency no person may be employed in the police department, except certain named officers, who do not possess the following qualifications: He must be a citizen of the United States, a resident of the city for more than one year, of good moral character, be able to read and write the English language, not be a liquor or drug addict, never have been convicted of a felony, must not have borne arms against the United States Government at any time, and must not have claimed exemption on account of being a conscientious objector. Subject to these restrictions and to the preference provided for in Section 5697 the appointive power is in the Commissioner of Public Safety, who is the head of the police and fire departments.

The controversy here then is whether the requirements of Chapter 60, under which the qualifications must be equal to entitle the applicant to...