McClinton v. Melson

I find myself unable to agree with the majority and respectfully dissent.

The majority hold that the veteran is not entitled to recover the salary which he would have been entitled to had he been permitted to retain his position from which he was wrongfully discharged. In order to do this, they have had to overrule the case of Dickey v. King, 220 Iowa 1322, 263 N.W. 823. With this I cannot agree. I believe this court was right in the original opinion in this case (reported in 297 N.W. 810, 812) when we said:

"In 46 C.J. 1017, it is stated: ``An officer wrongfully removed is entitled to the compensation accruing during the period of his removal.'

"In the case of Dickey v. King, supra, wherein certiorari proceedings were invoked to secure the reinstatement of a veteran who was discharged without a hearing, the court also allowed the veteran his back pay. This part of the court's decision was modified as to the rate per day, but was otherwise affirmed. While the question was not considered extensively in that opinion, the decision is in accord with sound principles of law.

"There are a number of cases where an employee, entitled to civil service rights, has been reinstated and back pay awarded him. Such cases include City of Des Moines v. Board of Civil Service Com'r., 227 Iowa 66, 287 N.W. 288, and Anderson v. Board of Civil Service Com'r., 227 Iowa 1164, 290 N.W. 493, 127 A.L.R. 489. Appellants point out that Section 5711 of the Code expressly enjoins upon the Civil Service Commission, upon ordering an employee reinstated, the duty to determine the compensation to which he is entitled. While this statute may constitute a basis for distinguishing Civil Service cases, it does not follow that our decision in Dickey v. King, supra, was wrong. If, as a matter of justice, one is entitled to reinstatement under Section 1163 of the Code, the right to a review by a writ of certiorari should include, as a part of the relief to be granted, an order for payment of compensation accruing while wrongfully deprived of the position."

It would seem to me that the finding "illegal and arbitrary" must in itself be a finding of bad faith, but to my way of thinking, the question of good faith or bad faith is not involved in this case. It is the wrongful discharge, whether it be in good faith or bad faith, that gives to the soldier his right to recover. The legislature passed the Soldiers' Preference Act. It had in mind certain reasons for doing so. First, it gave to war veterans a preference to secure certain positions. It was not the preference for the position that was important, it was the wages which that position carried with it that made the act of value to the men who had served their country. The second purpose was to protect the employed veteran from losing his wages due to a wrongful discharge by a public officer or board. To deny a veteran the right to recover the salary or wages of the office from which he was wrongfully discharged would defeat the very purpose of the legislation. If his wages are not protected by the act, then the legislation is meaningless and the obvious purpose of the preference act would be defeated.

I would affirm the case.

I am authorized to say that JUSTICE STIGER joins in this dissent.