136 Iowa 125 | Iowa | 1907
It appears that plaintiff was an applicant before the defendant city council for appointment to the position of physician and health officer for the city, and that it was shown to the council in proceedings with reference to the appointment to that office that plaintiff was a practicing physician in the city and a soldier of the Civil War; but, notwithstanding the claim on the part of plaintiff that he was entitled to appointment under the soldiers’ preference statute (Acts 30th General Assembly), the appointment was given to another. Plaintiff brought this action to have established his right to appointment to the office under the statute, alleging that he was such soldier, and that he was of good moral character, and competent to discharge the duties of the office, and therein asked that a writ of mandamus be issued directing the defendant city council to employ the plaintiff and remove the person appointed, who was also made defendant, from such office. Defendant’s demurrer to the petition was overruled, and the court determined the issue of fact raised by an answer on the part of defendant, and found the plaintiff to be an honorably discharged soldier of the army of the United States in the Civil War, a competent physician, a man of good moral character, and a person competent and able to perform the duties of the position applied for by him, and adjudged the appointment of the person who was appointed illegal, and issued a mandamus commanding the city council to appoint the plaintiff to the office.
Now, it is elementary that the action of mandamus will not lie to control the exercise of discretion on the part of a board upon which the duty to investigate and determine is cast. A board may be compelled to act, but its discretion cannot be controlled in such a proceeding. The statute gives to the complaining party a remedy by mandamus to right the wrong involved in a refusal to allow the preference provided for: but this can mean no more than that the board shall