Ottumwa tri-weekly courier. [volume] (Ottumwa, Iowa) 1903-1916, 1909-12-25


ests of the officer or board under
which he serves, To hold otherwise
and say that the supervisors may Ak
the term beyond which they are under
no obligation to keep the soldier ap-
pointee in a service the nature Of
which is continuous, is to convert the
position into political asset of the
successful party at each recurring
election. We think therefore that If we
are to give effect to the statute accord
Ing to the obvious purpose and intent
we must hold that the appointment of
veteran to public service or en-
ployment of a continuous character for
which no terms are fixed by the stat
ute must be treated as continuous and
that he may not be removed therefrom
except in the manner which the act
provides. A somewhat similar provis-
ion embodied in the constitution of
New York has been held to have in
tended not only a preference in ap-
pointment. but permanency of ten
ure except in case of misconduct or
incompetency to be declared upon
charges made and hearing had.
.Seeley vs.. Stevens, 100 N. Y, 1853.
That the mere fact of annual ap
pointment to a continuous service does
not deprive its tenure of the indefinite
character which is protected by the
law was clearly recognized by us on
the former hearing. 1t was so held
by the New Jersey court in State
VS.. Board, So, N. J. L. 81. There the
plaintiff was appointed janitor of a
court house in 1891 and at each annual
meeting Of the board thereafter for
several years he was re-appointed, at
the expiration of the last Of such ap-
pointments another person was select
ed to take his place. After the first ap
pointment was made a Soldiers Pref
erence law was enacted and it was
held that the incumbent was entitled
to its benefits and that the order ap
pointing his successor was invalid.
In disposing of the case the court said
that the janitor does not hold an "of-
fee" within the legal meaning of that
term, but position which may be
defined ito be a place, the duties of
which are continuous and permanent
and pertain to the position as such"
In a written opinion the trial court
in this case reached the opposite con-
clusion Relying upon the language Of
the opinion on the former appeal to
which we have already referred, it
holds that the effect of the resolution
or vote of the board of supervisors in
January, 1906, naming the appellee rs
janitor for the ensuing year, was an
appointment for definite term and
that the board could refuse to con-
| tinue him longer in the position with
out violating the law. This conclusion
! it grounds az upon the understand
ing the supervisors had of the effect
4 Of the order made by them, (2) upon
/ the express language of the order,
and (3) upon appellants understand
| ing or Interpretation of the order as
| indicated by the fact that at or near
the close of the year he made appli
cation for reappointment. The reason
ing thus employed does not appear to
us persuasive. In the first place, as al
ready suggested, the appointment
/ from year to year was not inconsistent
with the idea of an indefinite tenure
within the meaning of the term as
used by us on the former hearing.
In the next place substantially ev-
cry material fact elected on the trial
t(except possibly the contract for the
first years service) was conceded by
the parties and considered by us on
the former hearing and found to COLI
stitute no defense to plaintiffs de-
mand The effect of the resolution Of
the board in January, 1906, reappoint-
ing the plaintiff, and his application
for reappointment in 1907 on which
the trial court lays chief stress, was
not overlooked by us on that hearing
but both were examined, discussed
and disposed Of unfavorably to the de
, PENDANTS contention We find nothing
in the present record to lead us to any
, other conclusion. Indeed the evidence
: tends strongly if not conclusively, tc
) sustain the demand made in the pc
: titon.
At the beginning of the year 1906
, the appellant was claiming as an ole
soldier the right to be continued ir
, his position. So he testifies and so ad
| nit two of the supervisors, who testi
: fly as witnesses for the defendants
and the third one does not directly
: deny it. The resolution or vote for The
| reappontment was not passed wher
plaintiff was present. He says he die
} not know of it until this controvers,
t arose and there is no evidence tina
5 he was notified of the action of the
| board No written agreement wa!
! made nor was any demand for one
s made upon him. The trial court say:
on this point There is a conflict O
was said by plaintiff and members 0
4 the board as to his reappolntmen
i and if that were all upon the question
5 its satisfactory determination woult
n be difficulty but in its opinion the az
f plication of the plaintiff for reappoint
8 ment is sufficient to resolve the doub
+ against him.
5 A careful examination of the recor
S reveals no conflict whatever upon tn
S proposition that appellant was the
t claiming the right to be continued i
q the position as an old soldier. One c
e the supervisors does say that Sappe
g liant said to lfim on one or more occas
$ ions he would like to be reappointe
O under the conditions of his former al
y pointment, and that he expressed
S fear that with change in the politics
o complexion of the board he might los
5. his Job Conceding the truth of thi
testimony it shows no more than
d fear that an attempt might be made
o deprive him of his position and d.