I am unable to agree with the majority opinion, and therefore respectfully dissent.
The opinion of the majority is based on the erroneous assumption that the remedies of mandamus and certiorari provided for in chapter 60, 1931 code (section 1159 et seq.), known as the Soldiers' Preference Law, are no broader in their scope than the general statutory actions of mandamus and certiorari. In my opinion the remedy of mandamus given an ex-soldier by code section 1162 for a refusal to allow the preference and the remedy of certiorari given by section 1163 for the wrongful removal of an ex-soldier from office are much broader in their scope than the general actions of mandamus and certiorari, and authorize the reviewing tribunal to weigh the evidence and determine whether or not, under the testimony, the refusal to grant the preference or the discharge was justified.
The majority opinion follows the case of Miller v. Hanna,221 Iowa 56, 65, 265 N.W. 127, 131. The Miller case was an action in mandamus to compel the defendants to appoint the plaintiff, an honorably discharged world war veteran, as superintendent of the Wapello County poor farm. The petition was dismissed and this court in affirming the action of the district court made the following pronouncement:
"As it was within the discretion of the board to determine *Page 754 the qualifications of the applicants for the position applied for, and as they, in the exercise of such discretion determined that the applicant appointed had greater qualifications for the position than appellant, it is beyond our power to interfere with such discretion."
It is thus apparent that the case of Miller v. Hanna, supra, holds that the remedy of mandamus given by section 1162 of the Soldiers' Preference Law is, in its scope, the action of mandamus provided for in section 12440 under the general chapter on mandamus which action can compel the inferior board or person to act but cannot control its discretion, and that all the appointing officer has to show to sustain his refusal to appoint an ex-soldier is that he acted, that is, made an investigation, and that in his opinion the ex-soldier does not have qualifications for the position equal to the qualifications of the person appointed. This construction makes the appointing officer or board the final judge of the fact question as to whether or not the ex-soldier has equal or greater qualifications than the other applicants, subject to the qualification that the appointing officer must not be guilty of a legal abuse of discretion. The Miller case relies on the case of Ross v. City Council of Sioux City, 136 Iowa 125, 113 N.W. 474, which was an action by mandamus under the Soldiers' Preference Law to compel the defendant to employ the plaintiff as City Physician. The court states on page 127 that, "It is elementary that the action of mandamus will not lie to control the exercise of discretion on the part of a board upon which the duty to investigate and determine is cast. A board may be compelled to act but its discretion cannot be controlled in such a proceeding."
As above stated, this is an erroneous construction of the remedy and the action of mandamus to right the wrong (Italics mine) provided for in the Soldiers' Preference Law is a broader remedy than the general action of mandamus. Under the rule followed in the majority opinion, if an honorably discharged soldier asked for a writ of certiorari to review the action of his employer in removing him from a public position, the only question for the reviewing court to decide would be whether or not the board or officer exceeded his proper jurisdiction or otherwise acted illegally. Such construction nullifies the statute and we have held directly against this contention in the case of Butin v. Civil Service Commission, 179 Iowa 1048, 162 N.W. 565. *Page 755
Section 1162-g1 provides in the Soldiers' Preference Law that in addition to the remedy of mandamus an appeal may be taken and further provides that on the trial the court shall receive andconsider any pertinent evidence, whether oral or documentary,concerning the appointment from which the appeal is taken, and ifthe court shall find that the applicant is qualified to hold theposition, the court shall direct the appointing officer to appoint the ex-soldier to the position. (Italics mine.)
All the remedies provided for in the Soldiers' Preference Law contemplate a trial and judgment on the merits.
In the case of Butin v. Civil Service Commission, supra, the plaintiff was under the Soldiers' Preference Law. The commission discharged the plaintiff, a policeman, and he removed the matter to the district court by writ of certiorari under section 1163. There was a trial in the district court on the evidence and the plaintiff was ordered reinstated. The appellants contended that because the commission had jurisdiction and did not act illegally, the reviewing tribunal may not, on certiorari, determine whether the action of the lower tribunal, on review, was sustained by the preponderance of the evidence. The court states, 179 Iowa 1048, on page 1049, 162 N.W. 565, 566:
"They plant themselves upon the single proposition that the district court had no power to pass upon the weight of that evidence. * * * If these general statutes control, the trial court lacked appellate power to weigh the testimony adduced before the commission, with a view of determining whether it justified discharge. If, on the other hand, said special provision in the Soldiers' Preference Law, construed with the general statutes on certiorari, so enlarge the review of such a discharge as to permit the testimony thus to be weighed, then the district court was right."
After stating that the purpose was to enlarge the scope of the review on certiorari to the extent of determining whether the discharge was justified on the merits, the court states on page 1051 [162 N.W. p. 567]:
"We think it must have been the purpose to enlarge the scope of the review to the extent of determining whether the discharge was justified on the merits. * * * We are of the opinion that the right to review by certiorari given in the Soldiers' Preference *Page 756 Act was intended to permit the reviewing court to consider anything which legitimately bore on whether the discharge was for any reason wrongful; that the legislature had power to enlarge the scope of review on certiorari; and that by the special provision aforesaid, it authorized the reviewing tribunal to pass upon whether the evidence justified the discharge. This construction alone gives force to all the statutes on the subject, and to the manifest legislative intent to make effective the prohibition against wrongful removals of honorably discharged soldiers."
It cannot be said that the legislature intended to enlarge the scope of the action of certiorari provided for by Code section 1163, and did not intend to enlarge the scope of the general action of mandamus in providing the action of mandamus to right the wrong in section 1162.
The construction of the remedies given to ex-soldiers in the Soldiers' Preference Law by the case of Butin v. Civil Service Commission, supra, is sound and gives full force and effect to the Soldiers' Preference Law. Prior to the case of Miller v. Hanna, supra, the Butin case was the latest construction of these remedies by this court. The Miller case does not refer to the Butin case but rests its decision on the case of Ross v. City Council of Sioux City. We should follow the Butin case, and the case of Miller v. Hanna and the cases on which the opinion relies should be overruled.
The question to be determined in this case is, Did the evidence justify the district court in finding that the action of Mayor Martin in appointing C.O. Paine as chief of police in place of plaintiff, Bender, was arbitrary and an abuse of discretion; that such appointment was not based solely upon the qualifications of the applicants and that appellee Bender was entitled to the appointment on the merits?
The trial court correctly assumed that the hearing was on the merits. I extend the following testimony into the record to show that beyond question, the qualifications of Mr. Bender for the position of chief of police of Iowa City were equal to or greater than the qualifications of Mr. Paine.
Appellee Bender offered the evidence of Glen L. Schmidt, Acting Chief of the Bureau of Investigation of the State of Iowa; S.T. Morrison who is engaged in insurance and bond business in Iowa City; W.H. Bates, secretary of the State University of *Page 757 Iowa; W.S. Buckley, sergeant instructor in the military department of the University of Iowa; A.A. Smith, supervisor of the buildings and grounds at the University; Mable R. Evans, probation officer of Johnson county; C.A. Bowman, postmaster at Iowa City; D.W. Crum, secretary of the Iowa City Chamber of Commerce; Mrs. Martin Pederson, executive secretary of Johnson County Chapter of American Red Cross; John McQuiston, connected with the police department of Iowa City 38 years and under the civil service 16 years; B.F. Carter, attorney and justice of the peace; Don McComas, sheriff Johnson County 4 years and present sheriff; M.E. Taylor, employee of the Iowa State Bank Trust Company and member of the Junior Chamber of Commerce; O.M. Solem, director of athletics, University of Iowa; Frank J. Mezik, superintendent of mail at the postoffice at Iowa City; Roy H. Tapper, chief of police, Cedar Rapids, Iowa, and president of the Iowa State Chiefs' Association; C.C. Warden, manager Hotel Jefferson, Iowa City; L.H. Cann, personnel officer at University of Iowa.
The defendants offered the evidence of Thomas E. Martin, mayor of Iowa City; Jacob Van Der Zee, W.F. Boiler, T.F. Foote, Earl Kurtz, George Bouck, H.F. Willenbrock, J.A. Swisher, all councilmen of the city of Iowa City and defendants herein; C.O. Paine, present chief of police and defendant; and George Dohrer and E.B. Raymond, city clerk and treasurer, respectively, of Iowa City. No disinterested witness testified for the defendants. Only four witnesses testified to the qualifications of Mr. Paine.
There was no evidence offered by the defendants other than their own testimony with the exception of the testimony of the city clerk and treasurer.
Prior to Mr. Paine's appointment he was a member of the city council for eight years, a member of the Iowa City Independent School Board for three years, and was on the police and fire commission from April 1, 1933, to April 1, 1935. He has been treasurer of the Carpenter's Union since 1918. He states that he knew what the duties of chief of police were at the time of his appointment from observation and from information acquired as a member of the police and fire commission. He is fifty-seven years old.
Mr. Bender, an over-seas veteran, is 43 years old, was a deputy sheriff of Johnson County from 1923 to 1926, a member *Page 758 of the Iowa National Guard for a period of 6 years and received an honorable discharge therefrom with the rank of sergeant. He is an expert in the use of firearms. While chief of police from 1933 to 1935, he was not off duty on account of ill health. He was a subscriber to periodicals on police work and studied the duties and requirements of a chief of police. He attended a school of instruction for chiefs of police. While in the National Guard he took training in the taking of finger prints and has had experience in that line. As sergeant in the National Guard he worked under his captain, Thomas E. Martin, in handling the traffic problems occasioned by athletic events at the University.
The defendant Foote testified that at the various meetings with the mayor at which appointments were discussed there was discussion and recommendation as far as the various groups that supported the new administration were concerned; that there might have been discussion about what these men would think of these appointments but the city council did not act on them; that he did not recall that there was any discussion as to the fact that Mr. Paine was loyal to the members that were elected; that he knew that Mr. Paine was quite a good worker for the group that elected the mayor and city council. He then stated: "That was not why Mr. Paine was appointed; it would be natural for the purpose of support." He further testified that he was not acquainted with Bender but did know Mr. Paine and was very much of the opinion that Mr. Paine was qualified to hold the office of chief of police; that his character is good as far as he knew.
Mr. Bouck, defendant, states in part, that he would not be ableto really say that Mr. Paine was the more qualified; (Italics mine), that from his observation of the work of Mr. Paine he was doing very good; that basing his opinion upon the personal qualifications of the men irrespective of their performance as chief of police, he would prefer Mr. Paine.
Mr. C.O. Paine, defendant, testified in part, as follows: During the two years prior to April 1, 1935, he observed slot machines or punch boards used by the public or available for the public use in Iowa City; that he heard of one hotel which was a house of prostitution in Iowa City; that there were days when the slot machines could be found and other days when they could not be found; that they would be taken out of use for a period of *Page 759 two or three days and then put back again; that he did not think there were as many gambling devices running as there were before he became chief of police. On cross-examination the witness testified that he did not file any information against the people conducting these offenses. Paine was on the police commission at this time.
Mr. Willenbrock, defendant, testified in part, that from his observation and acquaintance with Paine and Bender, that in his opinion, Mr. Paine was better qualified for the office of chief of police. He gives no reason for his conclusion.
Mr. Swisher did not testify as to the qualifications of Bender and Paine.
The defendant Van Der Zee, now serving his third term as councilman, testified in part, that he observed and saw in operation slot machines and punch boards during the two years Bender was chief of police; that such gambling had been going on for six or seven years; that he did not file information with the chief of police when he knew gambling was going on, or notify the mayor because he was interested in how long the thing would go on before the gambling would be stopped. He stated that six years ago, and before Bender was appointed chief of police, he did investigate the slot machine offense and reported to the council.
Mr. Martin, who was city attorney when Bender was chief of police, testified in part, that he consulted with a great many personal acquaintances about town about the qualifications of the applicants for the position of chief of police and that he considered his own personal acquaintance with applicants and the information obtained in arriving at his decision. Mr. Martin does not state the source of his information or what the information was. He further testified that from his investigation and from his acquaintance with the office of chief of police and from consideration of the merits and qualifications of the applicants, that Paine was the better for the office of chief of police; that he discussed the qualifications of the applicants for chief of police with the city council and considered such information in arriving at his decision; that he was anxious that his appointments meet with the approval of the city council and that they be satisfied with them; that at the time Mr. Bender was appointed chief of police, he thought he was qualified for the position but that he did not live up to his expectations and did not *Page 760 perform his duties in the manner he thought that he would when he suggested him to Mayor Breene for appointment; that he received during his investigation, complaints of Mr. Bender. The witness did not state from whom he received the complaints nor what the complaints were. Such negative testimony is entitled to little weight. The witness further states that he did not investigate the ability of Paine with firearms; knew he had no experience as a police officer; that he did not know whether or not he was a veteran of any war, and did not know whether or not he could take finger prints. The mayor's investigation of Mr. Paine's qualifications was limited. In answer to the question, "Don't you know several members of the council indicated that certain groups of people had elected you and you should favor those and consider their wishes?", his answer was, "I was very happy to consider the wishes of all my personal acquaintances at all times." Mr. Martin further testified that he was familiar with gambling conditions during the years of 1933 and 1935, while he was city attorney; that he discussed the matter with Mr. Breene and Mr. Bender; that he did not file any charges because he did not think that it was his duty, as city attorney, to file any charges. With regard to the immorality at the hotel, Mr. Martin testified, "I had reason to believe the matter of the New West Hotel was discussed and that the city attorney (Mr. Martin) in connection with the county attorney was investigating that matter and that it was under investigation by the chief of police (Bender) of Iowa City: I know that the chief of police was interested in the matter. I was present at the conference when Mr. Breene asked Mr. Bender to handle the situation. At that same meeting, Mr. Bender asked me for a legal opinion."
Mr. Van Der Zee testified that his personal objection to Bender was not based on malfeasance but on misfeasance and nonfeasance.
The only complaints against Mr. Bender seem to be the slot machine situation, the house of ill fame, and his failure to turn in certain fees. With regard to the slot machine situation, appellee Bender states that there were slot machines in public places in operation during the time he was chief of police; that he put out of operation perhaps a dozen during his term and filed charges in two instances; that there were punch boards in public places and there was a city ordinance prohibiting them, and they were removed from the counters; that there were no *Page 761 slot machines in operation and exposed to the public previous to his going out of office but were a few punch boards.
With reference to the house of ill fame, Mr. Bender testifies that prior to the expiration of his term he had obtained information and testimony as a basis for a proceeding in regard to clearing up the situation and so informed the county attorney, and that he and the county attorney were making an investigation and were well along in their efforts when his term expired.
With reference to the alleged failure of turning in fees belonging to the city, the defendant Martin testified that when he was considering appointments it came to his attention that no returns had been made to the city for fees collected on towed-in automobiles and from disposition of stray animals and that he took this into consideration in making his appointment. Martin stated on cross-examination that he had no personal knowledge of whether or not there were any fees for any services rendered for which fees could be collected during the two years; that he did not consider Mr. Bender dishonest in the matter of such fees.
An ordinance provided that for any vehicle serviced or towed, a fee of $2.00 must be paid for its release. About this matter Bender testified that in most cases the cars were towed in by garages who were paid for the services; in a few instances the cars were towed by the individual cars of the police and in such cases the fees were paid to the policeman using his car; that when the police car was used the funds collected were put into a box and used for office purposes. That he followed the same practice observed by his predecessor in the office and whether that practice was legal or illegal he followed it.
Plaintiff's witness McComas, present sheriff of Johnson county and former member of the Iowa City police department, testified that it was the custom while he was on the police department to put the fees obtained from towing by the police car into a kitty and used for stuff bought for police department.
Bender testified that the money was used for the purpose of ammunition, long distance phone calls and other small matters for which their was no appropriation. Bender further testified that he did not know there was an ordinance requiring a charge of $2.00 for towing automobiles until February 1935.
Mr. Dohrer testified that this ordinance was not contained in the published volume of ordinances. *Page 762
With respect to the fees to be collected from the disposition of stray animals, Bender testified:
"I have only knowledge of one horse and one dog that were taken from off the street of Iowa City during my term of office and we immediately notified the owners and there was no charge for holding or any care of such animals. We do not have any pound in connection with the police station."
The defendants offered no testimony that Bender was not of good character. Several witnesses for the plaintiff testified to the good character of Bender. The record shows without contradiction that Bender is a man of good character.
Mr. Bates, supervisor at the State University, testified in part, "Mr. Bender cooperated with the University; was very courteous and a little more so than the past administrations of the department; he seemed to be willing to give more time to it and more consideration. This is in regard to policing, parking, small thefts and things generally."
Mr. Cann, personnel officer of the State University, testified that: "As Assistant Juvenile Officer I had occasion to come in contact with the police department and chief of police. I observed the way he handled the police department and the juvenile cases. I had about four contacts a week with Mr. Bender. It is my impression that the relationship of the two offices was the best that I have had any contact with of any man that was acting as chief of police. Mr. Bender rendered the fullest cooperation in our juvenile cases."
Mr. Solem testified that: "I have not had any complaints regarding conditions which are not most conducive to good scholarship and athletics."
Mr. Mezik, superintendent of mail of the post office testified: "In my work with the commission they wanted reprints of finger prints and I knew of nobody better qualified so I asked the chief of police, Mr. Bender to assist me, which he did. I had a case of a crippled hand with the hand rather hard to get finger prints of owing to the club nature of the hand so I sent these in and they were not accepted; Mr. Bender helped me and the commission accepted them. I know Bender to be of good character."
Mable R. Evans, probation officer of Johnson County, for fifteen years, testified in part, that she had known Mr. Bender about eight years; that during his two years as chief of police *Page 763 she worked with him in his official capacity; that she had the cooperation and courtesy of the department; that she observed his ability as a deputy sheriff and chief of police in juvenile work and he worked very well with her office.
It would serve no good purpose to further extend the testimony into this record.
The witnesses for appellants do not describe the qualifications of Mr. Paine that entitle him to the office over Mr. Bender. They merely state their conclusion that Mr. Paine is better qualified than Mr. Bender. No disinterested witness testified for appellants.
They testify vaguely of complaints made against Mr. Bender but do not state what the complaints were or whether they were serious or trivial. Mr. Martin does not disclose the persons he questioned about the qualifications of the applicants for the position of marshal, nor the information received. He does state that he talked with the members of the city council whom he was anxious to satisfy and testified that: "It was understood that my appointments would be satisfactory to the council members prior to the meeting on Monday night, April 1st, 1935."
Mr. Foote did not know Mr. Bender.
Mr. Paine was a good worker for the group that elected the mayor and city council.
If Mr. Bender had closed his eyes to evil conditions in Iowa City, or had failed to do his full duty, the citizens of Iowa City would have been ready and willing to so testify and supplement the testimony of the official family.
Mayor Breene was ill and in the hospital during most of the time Bender was chief of police, and thus additional responsibilities were placed on Mr. Bender during the two years he was chief of police.
I find no substantial evidence of nonfeasance or misfeasance, or malfeasance in office by Bender. I find nothing in the record that justifies the statement in the majority opinion, in referring to Mr. Bender, "that during his previous term he apparently closed his eyes to wide open violations of law of which other citizens had knowledge." The majority opinion admits that, "If this case were to be determined by the court on the weight or preponderance of the evidence, we might not be disposed to disturb the finding of the trial court, but neither this court nor the *Page 764 trial court can substitute its discretion for the discretion of the appointing power."
I have carefully read the record, and I conclude that the evidence establishes by a clear, substantial preponderance of the evidence that Mr. Bender had equal or greater qualifications for the office of chief of police than Mr. Paine; that he was of good moral character and able to perform the duties of the position, all of which is established by such weight of the preponderance of the evidence that the failure of Mayor Martin to appoint appellee Bender to the office of chief of police was not justified on the merits. Furthermore, under the rule followed in the majority opinion the refusal to appoint Bender was an abuse of discretion.
I would affirm.
MITCHELL and DONEGAN, JJ., concur in this dissenting opinion.