Ottumwa tri-weekly courier. [volume] (Ottumwa, Iowa) 1903-1916, 1908-06-09
JUDGE vERMIIoN DECLARES
THAT KITTERMAN HAD
DEFINITE CONTRACT.
WAS ONCE oveRRuLED
Sent Back on the Point That If Jan.
,itor Had Been Employed Indef-
initely He Could Not be
Ousted.

Others, Judge Vermilion held last
evening that Mr.. kltterman had been
employed by the supervisors for a
certain specified period and that after
that time he was no more entitled to
the office of janitor than Mr.. Dorothy.
A former case appealed by Mr. Kit
terman to the supreme court was over
ruled by that body. The court at that
time held that if Mr.. Ktterman had
been employed for an indefinite time
he could not have been removed OK.
cept by process of law, but that If he
had been employed for definite time
any other honorably discharged sol
der could be appointed to the janitor-
ship by the board of supervisors.
The full opinion fthe court fol
lows:
The Opinion.
In the District Court of WapeIlo Coun-
George w. Kitterman, VS. Board OF
Supervisors of Wapelle County. ct al
Opinion.
Plaintiff brings this proceeding to
review the action of the defendant
board Of supervisors in failing to re-
tain him as janitor of the court house:
to compel the board to SO retain him
and for damages for beine. as is al
ieFed, removed from such position.
Plaintiff is an honorably discharged
soldier of the late Civil war and bases
his claim upon the provisions OF
Chapter IA of Title v of the Gods
Supplement, commonly called the Sol
dier's Preference Law.
ThiS action was commenced on Feb
ruary 10Th, 1907, and soon thereafter
the defendants appeared and answer
ed. To this answer plaintiff demur-
red. This demurrer was overruled and
plaintiff electing to stand on the ruiz
ing suffered a Judgment against hiru
for costs from which he appealed. On
appeal the action Of this court In over
ruling the demurrer was held to be
erroneous. The judgment was, there
fore, reversed and the cause remanded
for further proceedings in accordance
with the views expressed in the
opinion of the supreme court The
case Is reported in lis N. w. Reporter
l13
| After the cause was again in this
court by the filing Of procedendo the
defendants filed certain amendments
| to the answer. These amendments
plaintiff moves to strike from ths
files upon the ground that after the
appeal defendants cannot be permitted
to amend their pleadings It is clear
and prove, If they can, the matters Sc.
up In these amendments there is ar
end OF the controversy, for II the case
must now be tried on the pleadings az
they were at the time OF the appeal NJ
defense can be presented for the su-
preme court determined that the ORR
ginal answer presented no defense and
held the demurrer thereto should have
been sustained. But the law recog-
nizes the right Of party whose plead
Ing Is held bad on demurrer to amend
| Code $685. The right to amend ex
lists where, as In this case, the lower
court improperly overruied a demurrer
and the supreme court reverses thi:
ruling; and the party whose pleading
| is thus, in effect, held bad may amend
when the cause is remanded.
Ware vs. Thompson, 20 Iowa 65.
Plaintiffs motion to strike thu
amendments to the answer mus
| therefore. be overruled
Subject to the ruling on the above
| motion the cause was tried and sub
mitted on Its merits BY way of pre-
| face to the consideration Of tho case
presented by the evidence it is to is
observed that the validity Of the SOL
| diers preference law is in no way in
volved in this case. nor does any
question arise as to the effect or oper-
alton of the law where one applicant
| for appointment is soldier and the
other is not. Moreover, the case hay
! ing been once before the supreme
court the rulings there made are thu
law of this case and absolutely bind
| inp upon this court upon this trial.
| McF'all VS.. Railway 1o4 Iowa AZ.
Henderson vs.. Telegraph Co., ia
| Iowa 415.
Russ VS. Cereal Co.. 121 Iowa 639
| The only course open to the tria
court is to apply the rules of law laid
down by the supreme court to this
facts established on the trial.
| The first proposition announced b,
the supreme court is that where botf
| applicants for a place are HONORABLE,
discharged soldiers the board making
the appointment may select either one
| and Is not required to make an in
vestigation as to their relative quail
| fications.
The court uses this language:
* x x x as between two such ap
plicants we think that an appointine
officer or board may select at discre.
| ton without formal Investigation OF
finding as to their respective qualifi
cations"
| The person appointed by the boar:
as janitor In this case is admitted t.
| be an honorably discharged soldier OIL
! the Civil war. 1t is familiar rule o!
law that where discretion is lodged ir
anv officer or board the exercise O.
such discretion cannot be controlled
by the court. Manifestly, if the board
might make the appointment without
| investigation and at it's discretion tht
court cannot review it's act in so do
ing. Indeed, 1t has recently been hel;
that where the board is required {,
1 Investigate as between applicants onl,
one of whom is soldier the discre.
ton exercised In it's determination
after such Investigation as to whic.
should be appointed cannot be review.
ed blythe court
Ross vs. City Council, 113 N. w.
Rep. 474
474.
If the board OF supervisors failed /,
select the most competent man for tn.
place it's members may be held ac.
Icountable, as for any other exercise o
7, judgment or, discretion, at the bar o
! public opinion but such acts are no
to be reviewed or corrected by tn
court. If the board was not reuufret
by the statute to appoint the applican
having superior qualifications rnucI
! less was 1t bound to base it's appoint