Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1906-03-31
Important Decision by Judge
H. M. Towner Under the
Preference Law
BOARDS MAY USE DISCRETION
Right of Mandamus Docs Not Lie
Where the Appointing Power Is
Charged With observation-disclosures
Application Part of Evidence to
Show Applicants Incompetency.
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special to Times
Creston, March 31.-Judge Towner
in. the district court here has rendered
| a decision of great interest relating to
the soldiers preference law. Dir. Groves
made application for appointment UNI
position of physician to the poor of the
city of Creston, and the board appoint
ed DR.. Jay Fry. DR.. Groves by his at
torney, Jay Camp, then secured an or
der from the court to compel rehear-
ing of the case, and after the evidence
had been taken at this hearing, the
board still refused to change it's posi-
ton in the matter and stood by the
appointment of DR.. Fry. on the grounds
that DR.. Groves was incapacftated for
the place. DR.. Groves then went into
court to compel the board to appoint
the appellant by mandamus proceedings
and it was on this question that the
court rendered the decision.
Judge Towner holds in his decision
in effect that the courts have no right
to interfere with the decision of the
appointing power when their action is
based on an examination Of the appli-
cant's qualifications and ability to per-
form the duties Of the position he
seeks. After quoting portions of the
soldiers preference law and disposing OF
some technicalities in the matter OF
procedure, Judge Towner says:
at is next contended that the evidence
submitted was sufficient to show that
the plaintiff was qualified for the posi-
ton, and not such as to warrant the
board refusing him the appointment on
account of his age, physical disability
and consequent incompetency. In eff
feet, the plaintiff asks the court to re-
view the evidence and substitute its
Judgment for the determination of the
board.
Regarding this contention 1t may be
said in the first place, that 1t is not
contemplated that the court shall do
this in an action Of mandamus 1t Is
in no sense an appellate proceeding, in
which the Judgment or finding of an
inferior court may be re-examined.
Our statute defining it merely makes
specific and gives legislative sanction
to the common law definition when it
says that the action Is one brought to
obtain an order commanding an in
ferior tribunal, board, corporation or
person, to do or not to do an act, the
performance or omission Of which the
law enjoins as duty resulting from an
office, trust or station And it is fur
Their specifically stated that where dis
erection is left to the inferior tribunal
or person, the mandanus can only
compel it to act, but cannot control
such discretion The writ may prop
erly issue in any case where the law
enjoins upon an officer the perform
ance of a specific act in which no dis
erection was or could be exercised"
But it is urged by counsel for the
plaintiff that such rule applies only
where there is an appeal or other
method of rehearing provided that in
this case there is no appeal, and the
act provides. "a remedy for manda-
mus for righting the wrong" which
in effect means by such action re-
hearing on the merits may be thus
obtained. The court is not disposed
to go so far as this contention carries
If such had been the legislative inten-
ton, other and far stronger language
would have been necessary before the
general terms of the law regarding
would be nullified and re-
pealed. But where no appeal or
other method of review is provided,
the courts might and doubtless
u,o,,1d odoyt a rooro 1;horol y,oathod oF