I respectfully dissent from the majority opinion which is accomplished by judicial legislation.
The title to the Soldiers' Preference Law, chapter 9, 30th General Assembly, reads:
"AN ACT regulating appointments, employment, and removals in the public departments and upon public works in the state of Iowa, and the counties, cities and towns thereof."
Sections 1159 and 1163, Code, 1939, read in part as follows:
"1159 * * * In every public department and upon all public works in the state, * * * honorably discharged soldiers * * * shall, except in the position of school teachers, be entitled to preference in appointment, employment, and promotion over other applicants of no greater qualifications.
"1163 Removal — certiorari to review. No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment except * * *", etc.
Section 1165, Code, 1939, reads:
"1165 Exceptions. Nothing in this chapter shall be construed to apply to the position of private secretary or deputy *Page 130 of any official or department, or to any person holding a strictly confidential relation to the appointing officer."
The issue is whether the legislature in enacting the soldiers' preference law intended to limit the preference in appointment, employment and promotion of ex-service men over other applicants to subordinate positions. Such limitation is not expressly stated in the act. I find nothing in the act or its history that justifies an incorporation of the limitation into the act by construction.
It seems to me the law clearly includes all public positions, including the head of a department, filled by appointment or employment subject to the specific exceptions of positions involving confidential relationship between the appointing officer and appointee or employee found in section 1165.
I agree with the following statement of the trial court:
"Each section and the entire soldier's preference Act should be construed together. This act provides that with certain exceptions, applicants who are soldiers, shall have the preference over other applicants for appointment who have no greater qualifications. There is nothing complicated about the soldier's preference law. It is set forth in plain and simple language. It is easy to understand and not difficult to construe or interpret. If the soldier applicant has qualifications equal to or better than the non-soldier he is entitled to the preference. If the non-soldier proves himself to be better qualified to perform the duties of the office he is entitled to the appointment. This applies to all public appointments, except those which are specifically excepted. * * *
"If plain and unambiguous statutes can be dwarfed and twisted so as to express only the whims and fancies of courts and judges, then the people will lose confidence in the soundness and the integrity and honesty of the courts and our liberty and freedom will end. Respect for law is the strongest bulwark of constitutional government. It is a sentiment that should be so precious to the American citizen as it is essential to American prosperity and freedom."
The construction placed upon the law by the majority of the court would be sound if the act stated that in every public *Page 131 department honorably discharged soldiers shall be entitled to preference in appointment, employment and promotion over other applicants of no greater qualifications, provided, however, that the provisions of this chapter shall not apply to the head of a department but shall apply only to subordinate positions which do not require the exercise of discretion by the appointee or employee. But I find no such express or implied limitation in the law.
In Babcock v. Des Moines, 180 Iowa 1120, 1123, 162 N.W. 763,764, the court said:
"But the statute is highly remedial, and intended to give special and deserved privileges to one class of our citizens in consideration of services rendered the country in time of need. We should construe it, when within reason possible, so that its evident purpose may be accomplished."
In Herman v. Sturgeon, 228 Iowa 829, 835, 293 N.W. 488, 491, Justice Bliss, speaking for the court, has this to say about a soldier's preference:
"It is a recognition of and a slight recompense for the services performed and the sacrifices suffered by these men. It is also a legislative appreciation that these men by their service under arms have acquired those habits of industry, obedience, and fidelity so necessary as qualifications for any public office or service in times of peace."
A majority of the court believes the legislature intended to express to ex-service men the generous appreciation of the state of Iowa for their service under arms, for sacrifices suffered, for services rendered the state and nation in time of need, by giving them a preference in appointment and employment to subordinate positions only, limiting the preference to positions or employment requiring the exercise of substantially no discretion — as stated by the trial court "positions requiring plenty of muscle and no brains." I cannot believe the legislature intended to say to ex-service men that the privileges and preference deserved by them for services rendered the nation consisted only of inferior, subordinate positions. When it passed the act it was, of course, aware *Page 132 that ex-service men, citizens and residents of this state, constituted a fair cross-section of the culture and intelligence of the citizens of Iowa; that they occupied some of the highest and most important positions in the business, political, social and religious life of the state; that in the ranks of ex-soldiers and sailors there were men fully qualified to fill any elective or appointive office in the state. There is no suggestion in the title to the act or the law that suggests the legislature intended to recognize and recompense ex-service men for services performed under arms by giving them a preference to subordinate positions requiring only manual labor or no discretion or responsibility.
I do not see how my interpretation of the act would jeopardize the efficiency of administration of the affairs of state government. It seems to me that a careful selection of public servants is assured and safeguarded by the provisions of sections 1159 and 1161 which provide that the soldier must have equal or greater qualifications than other applicants and must be found, after investigation, to be of good moral character and able to perform the duties of the position applied for.
I will refer to some of the cases relied on by the majority opinion. In People ex rel. Jacobus v. Van Wyck, 157 N.Y. 495,503, 52 N.E. 559, 561, the question was whether the office of assessor was within the veterans' act. The case holds the act did not include the more important municipal offices, did not include officers vested with discretion in the performance of their duties. The court states this view is required by the statute when read in connection with its title, "An Act Respecting theEmployment of Honorably Discharged Union Soldiers, Sailors", etc. (Italics supplied.) However, the Van Wyck case, supra, rests primarily upon sheer dictum found in the case of People ex rel. Fonda v. Morton, 148 N.Y. 156, 42 N.E. 538, which bluntly states that the veterans' act applies only to subordinate positions.
The Minnesota court follows the New York rule and, as stated in the majority opinion, has held that the soldiers' preference laws do not apply to the head of a department. However, in Shaw v. Marshalltown, 131 Iowa 128, 104 N.W. 1121, 10 L.R.A., N.S., 825, 9 Ann. Cas. 1039; Hahn v. Clayton *Page 133 County, 218 Iowa 543, 255 N.W. 695; Maddy v. City Council of Ottumwa, 226 Iowa 941, 285 N.W. 208, the court sustained appointments to the offices of city clerk, city engineer and police judge. Apparently, however, the question whether the act applied to the head of a department or only to subordinate positions was not directly presented to the court in said cases. I am not in favor of adopting the New York rule and the reason for the rule expressed in the Van Wyck case.
I would affirm.
MITCHELL, J., joins in this dissent.