The appellee herein, Floyd A. Jones, held the position of license collector under appointment first made by the city council on April 5, 1934, and continued in such position under a second appointment dated April 23, 1936. There seems to have been no definite term for this position but appointments were made periodically.
While appellee was still occupying the position, and on March 2, 1937, a written competitive examination was held by the civil service commission of the city of Des Moines for various positions, among them being that of license collector. For a long time prior to that time there had been no such examinations held, and this appointment had been made without competitive examination. The examination was duly certified by the civil service commission to the city council, and disclosed that the appellee applicant had not received what the board had determined to be a passing grade, 70 per cent. The council thereupon appointed others to the three positions as license collectors, and the appellee was not appointed.
Prior to the holding of the examination and after notice thereof had been given, the appellee herein prepared and filed an application on the form prescribed by the commission, accompanied by the required certificate of character.
On June 10, 1937, appellee filed with the city council a protest against its action, alleging therein that the record of the examination showed that the grade markings given him were *Page 1344 incorrect; and also that he was a World War veteran. In such protest he further stated that the protest was filed preliminary to the institution of legal proceedings in order to preserve and adjudicate his rights. On July 8, 1937, this protest was withdrawn, and withdrawal placed on file and no action taken. An answer to the petition of appellee was filed, but stricken on motion; and thereafter, on September 16, 1937, an amendment was filed to the return of the writ of certiorari, setting out in detail the various provisions of the ordinances of the city of Des Moines relative to the civil service.
Hearing on the petition was had, evidence taken, and judgment and decree entered sustaining the writ of certiorari and finding that the mayor and city council of the city of Des Moines had no authority to oust appellee, and that their action in so doing was void because of absence of legal jurisdiction; that the appellee was an overseas veteran and protected in his official position by the provisions of chapter 60 of the Iowa Code, 1935; and for costs. Due exception being taken, this appeal is brought before us.
The contention of the appellants mayor and council is, first, that there was no ouster, but that the council failed to appoint appellee because of his failure to pass the competitive examination under the civil service; second, that the mayor and city council acted legally because appellee voluntarily submitted himself to the civil service test which he failed to pass, and at a hearing in respect thereto before the civil service commission sought to have the same reviewed by the city council; and, third, that the civil service law, being chapter 289, Code of Iowa, 1935, applies specifically to the office of license collector.
It is undisputed that the appellee was a World War veteran, and hence, to oust him from a continuing position it would be necessary that there should be notice and hearing, under the provisions of section 1163 of chapter 60, Code, 1935, unless, as claimed by appellants, such are unnecessary by reason of the civil service statutes.
Code section 1163 is as follows:
"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 [soldiers, sailors, marines, and nurses, enumerated in section 1159]. shall be removed from *Page 1345 such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by a writ of certiorari."
The position occupied by the appellee was a continuing one. There seem to have been no definite terms of appointment, but the position continued and the work was not temporary in character, but permanent. The council had authority to fix the time of the license collector for such period as it saw fit, or to make it a definite term; but, unless the civil service law permitted, it had no right to discharge except on charges, notice, and hearing. Slatter v. Herring, 217 Iowa 410, 251 N.W. 715.
[1] It is urged by the appellants that this is not a case of ouster, which comes within the provisions of section 1163, but a case of an appointment, which would come under the provisions of the civil service statute. However, as indicated above, the position was a continuing one, with no definite term, and the appellee was occupying it under an indefinite appointment. It seems to us that this is clearly a case of ouster rather than appointment. Slatter v. Herring, supra, and cases cited.
It appears from the record in this case that for many years no civil service examinations had been held, and that this was the first, for some time at least, under the provisions of that act. This brings us to the question of whether or not the civil service law did supersede or modify the provisions of the soldiers preference law as to this position to such an extent that no notice or hearing was necessary in order to deprive the appellee of his position and install therein another applicant.
The soldiers preference law, being chapter 60 of the Code of 1935, was passed by the legislature and became a law on March 21, 1904, being an act of the Thirtieth General Assembly. The civil service statute, being chapter 289 of the Code, was enacted by the Thirty-second General Assembly, and became a law on March 29, 1907. The latter law (the civil service statute) contains a provision giving preference in appointment to soldiers, sailors, and marines, but it does not, directly or by implication, repeal or modify the provisions of the soldiers preference statute, especially section 1163 of such statute. See Hahn v. Clayton County, 218 Iowa 543, 255 N.W. 695. The Hahn case holds that another section of the Code was not a modification of the *Page 1346 law; nor do we think that, in any sense, can the civil service law be termed either a repeal or modification, but that the soldiers preference law remained as it originally was intended for the protection of veterans of the various wars.
Under this holding we find that the decree of the district court was correct in holding that the civil service statute did not exempt the appointing authorities from the requirements of charges, notice, and hearing, as provided in section 1163.
[2] It is urged, however, that the appellee herein waived his rights under the preference statute by filing his application for the civil service examination and taking part therein. We cannot agree with the appellants in this contention, and do not think that the fact that appellee entered the examination was any relinquishment of his rights which he held, by virtue of being a veteran, in the position which he then occupied. The fact that he took part in an examination did not waive his rights to a position in which he was secure so long as he was capable and his duties were efficiently performed, even if it constituted an application for appointment under chapter 289, under the rules of the civil service commission.
[3] Waiver is the voluntary and intentional relinquishment of a known right, and is a question of fact. Under the facts in this case, the district court by its decree found no facts constituting waiver and we agree in such finding.
We find that the action of the appellants constituted an ouster; that there was no waiver of appellee's rights under the soldiers preference law; and that, regardless of whether or not the civil service law [chapter 289, Code of Iowa, 1935] applied to this particular position, it did not in this case modify or affect the soldiers preference law to the extent that it did away with the necessity of charges, notice, and hearing as required by section 1163 of the Code.
We hold, therefore, that the decree of the district court was correct, and that it should be affirmed. — Affirmed.
MITCHELL, C.J., and HAMILTON, SAGER, STIGER, BLISS, OLIVER, and MILLER, JJ., concur.
RICHARDS, J., dissents.