Ottumwa tri-weekly courier. [volume] (Ottumwa, Iowa) 1903-1916, 1909-12-25
Kitterman- Wapello County Case
in Detail Decision of High Court

under the provisions of the Soldiers
Preference Act, chapter of the laws
of 1904. To this petition the defend
ants answered in substance as fol-
lows: admitting that plaintiff had been
acting as janitor of the court house
under the appointment of the board
from March 1, 1905 to February 25.
1907. the date of the pleading and that
plaintiff is an honorably discharged
soldier of the United States who serv-
ed in the late Civil war. They allege
that PLAINTIFFS term of appointment
will expire at the end of the current
month and admit he has made due ap-
plication to be continued in that
position. They further admit that
they do not intend to grant the plain
tiff's application and have appointed
to the position another person who is
also an honorably discharged soldier
of the Civil war, which person they
have found upon Investigation to be
possessed of superior qualifications for
the place, but they deny that in any
manner they have failed to observe
the spirit. or intent of the statute in
question.
Plaintiff demurred to this answer
and his demurrer being overruled he
appealed to this court where tthe rul
ing of the trial court was reversed.
The cause being remanded TO the dis
trict court, the defendants amended
their answer and alleged that upon APP
plication made by the plaintiff he was
originally employed to act as janitor
, OF the court house for the period OF
one year beginning March 1, 1905, al
stated salary of S70.S3 Is per month
and that before the expiration of said
term the said board of supervisors on
the application or request of plaintiff
| passed resolution reappointing him
| to said position for an additional term
of one year. They further claim that
plaintiff recognized said limitation up
on his term by making application 10
the board for reappointment for the
year beginning March l, 1907, and that
for many years it has been the Gus
tom of the county to appoint all of its
employees including the janitor of the
court house for terms of one year
only, and that such terms Of service
have at all times been made to ternli-
nate on March / OF each and every
year.
Plaintiff moved to strike these
amendments because they are design
ed to raise new issues after it has
been determined upon appeal that he
is entitled to hold the position he de-
mands. The court denied the motion
and plaintiff replying to the amended
answer admits that he originally came
to the position of janitor under the
contract mentioned by the defendants
He denies that he ever entered into
any renewal of said contract or that
he continued in said position during
the following year under the alleged
4 resolution of the board of supervisors,
but that he claimed said position and
continued to hold it and was permitted
to continue therein under and by
virtue of the provisions of the Sol
diers' Preference act
On trial of these issues to the court
plaintiff gave evidence tending to slls-
tain all the essential allegations of his
pleading. He swears that he continu-
eel in position as janitor the second
year under claim OF right as an old
soldier entitled to preference in said
service and did not enter into any re.
newal or extension of the contract
made at the beginning of the first
year.
In this he is, corroborated bv some
of the supervisors who took part in
passing the resolution reappointine
him in 1906 and who say that they
then understood that plaintiff was
claiming the right to continued EN-
ployment as an old soldier, and on this
point there is no direct conflict in the
evidence.
On the part of the defendants there
was offered in evidence the origina
contract of employment with the plain
tiff for the year beginning March
1905, and the resolution for his ap
pOintment for the second year as wei
as his application for the year 1907
There was also testimony tending tt
show the custom of the county or O.
; the supervisors to make appointment!
for only one year at a time. The tria
court found for the defendants anC
.. dismissed the petition and from Thu
Judgment plaintiff appeals.
/. The answer as amended resist
!, the plaintiffs claim on the ground
briefly stated, that he was employed
or appointed for a definite term ant
|
him no right to demand retention il
that position beyond the expiration o
!. such term The amendment to thi
effect was evidently framed to adjus
;, the defense to certain expression
. made use of in the opinion of thi
court on the former appeal, 1t wa
there said that the board has the RICH
| to employ or appoint person for
definite length Of time and that at tn
= expiration Of such time the employ
could not avail himself of the Soldier:
;, Preference law to keep the place S
filled by him. While this was said b
= way Of argument only it is doubles
a correct proposition as applied t
; service which is temporary or occa;
ional in chararacter.
The fact that a soldier is employee
y to do work for the county creates n
: obligation upon the county to keep hir
: upon its payroll when that work
. done and there is no longer any nee
! of his services; but when the servic
s. is one of an indefinite or continuou