142 Iowa 241 | Iowa | 1909
Lead Opinion
The action is brought under section 2446 of the Code, reading as follows: “It shall be the duty of the county attorney of each county to see that the provisions of this chapter relating to the mulct tax are enforced, and the district court or any judge thereof shall suspend or remove from office any county attorney who shall wilfully refuse or neglect to perform any such duty. Such suspension or removal may be made upon application of any citizen residing in the county, but shall not take place except upon due notice .to said officer and trial in court, and the provisions of this section shall apply to assessors, county treasurers and members of the boards of supervisors whose duty it is to enforce them.” The petition alleges that in the city of Burlington, in Des Moines County, there are over eighty saloons engaged in the sale of intoxicating liquors at retail; that only one of these had filed a bond with the county auditor as he might do to escape the penalties of the prohibitory law; that all kept open after ten o’clock at night, allowed women and intoxicated persons to enter their saloons, and various other violations of section 2448 of the Code relating to the bar of prosecutions under the general prohibitory liquor law. It is then averred that- defendant, who is county attorney, has had personal notice of these facts, and had been orally notified that the various dealers in intoxicating liquors had been and were violating the law, and that many of them
That the said H. F. Kuhlemeier was on or about the 17th day of Janualy, 1908, notified in writing that various persons engaged in the sale of intoxicating liquors at retail in the city of Burlington, Iowa, were violating the provisions of the mulct law, and that at the said time none of the persons so engaged in the sale of intoxicating liquor at retail in the city of Burlington, Iowa, had filed bonds with the county auditor of Des Moines County as by law provided; that at said time a demand was made upon the said H. F. Kuhlemeier, in the name of the Attorney General of Iowa, that the provisions of the law relating to the mulct tax be enforced in the county of Des Moines and State of Iowa; that thereafter, on the 12th day of February, 1908, H. W. Byers, Attorney General of Iowa, gave a written notice to the said Ií. F. Kuhlemeier demanding of him that he as county attorney of Des Moines County, Iowa, proceed in his official capacity to enforce the provisions of the mulct law relating- to the sale of intoxicating liquors, and the provisions of chapter 6, title 12, Code, relating to the mulct tax.
The prayer is that the defendant be removed from his office. The. demurrer is grounded upon the proposition that defendant has not refused to perform any of his duties with reference to the mulct tax, and that it does not appear that the saloon keepers in the city of Burlington had not paid the mulct tax as required by the mulct law.
*244 Peace officers shall see that all provisions of this chapter are faithfully executed within their respective jurisdictions, and when informed, or they have reason to believe, that the law has been violated, and that proof thereof can be had, they shall file an information to that effect against the offending party before a magistrate, who shall thereupon proceed according -to law. Upon trials of such causes, the county attorney shall appear for the State, unless some other attorney, selected by the peace officer who filed the information, shall have previously appeared. Any peace officer failing to comply with the provisions of this section shall pay a fine of not less than ten nor more than fifty dollars, and a conviction shall work a forfeiture of his office. Every peace officer shall give evidence, when called upon, of any facts within his knowledge tending to prove a violation of the provisions of this chapter, but his evidence shall in no case be used against him in any criminal prosecution. The attorney selected by ' a peace officer in accordance with the provisions of this section shall receive, for prosecuting such charge before a justice of the peace, five dollars, to be taxed as costs in the case.
Remembering that this proceeding is penal or quasi criminal in character, the statute must perforce be given a strict construction, and nothing can be added thereto by inference or intendment.
It will be observed from this resume of the law that the payment of the mulct tax is a matter distinct and separate from the bar arising after payment of the tax to prosecution under the general laws regulating the sale of intoxicants. Payment of the tax is exacted from every one except permit holders who sell or keep for sale intoxicating liquors in this State. This may be- enforced by county attorneys, and it is expressly made their duty to do so. The same statute also imposes a like duty upon assessors, county treasurers, and other officers. But nowhere is there any power given to any one to require liquor sellers to take the steps which, if performed, would make the payment of the tax a bar. It is entirely optional with the seller as to whether or not' he will take the necessary
As already stated, chapter 6 of title 12 of the Code relates to intoxicating liquors, and in that chapter there is an attempt to cover the entire subject. The sections found therein prohibit the sale or keeping for sale of intoxicants within this State except as provided in the chapter, provide punishments therefor, provide that pharmacists' and permit holders may sell for certain purposes, regulate the granting of such permits, provide for civil actions by wife, parent or child, transportation of liquors, and following this, under a separate heading entitled “Mulct Tax,” are the sections hitherto referred to. In the same chapter permission is given to manufacture under certain conditions. It will be observed that this chapter relates to many matters more or less related, yet, generally speaking, independent in character. The underlying thought is that prohibition is the rule and right to sell the exception. Permit holders are given the right to sell, and permission to manufacture is also given under certain conditions, but this has no reference to the mulct tax, which is to be imposed upon all except permit holders as an additional deterrent. Under certain conditions the payment of this mulct tax is a bar to proceedings, but this only upon certain
Now with this thought in mind, the proper interpretation of section 2446 of the Code is not difficult. The county attorney by that section is to see that the provisions of the chapter relating to the mulct tax are enforced. It is not the provisions of the chapter nor the provisions of the mulct law in general; but the provisions of the chapter relating to the mulct tax. The qualifying phrase is clear and unambiguous, and, to our minds, refers to the collection of the mulct tax and to nothing else. If prosecutions are to be instituted, it is not to compel one to perform the conditions which when performed would operate as a bar; but under the general prohibitory law and the payment of the mulct tax is no bar to such prosecutions. The duties of the county attorney with reference to this matter are provided in section 2428 of the Code, hitherto referred to. There is but one thing which the county attorney may do with reference to the mulct tax, and that is to see that it is levied, assessed, and collected as provided by law against all persons except permit holders engaged in the liquor business in his county. That done, the provisions of the chapter relating to the mulct tax are complied with. Whether or not this payment exempts or bars prosecutions under the general prohibitory law is another matter. . If the conditions which create the bar are fully complied with, then no proceedings may be had under the general law. If they
The place where this section is found is also significant. It follows the sections relating to the enforcement of the mulct tax and intervenes between these provisions and those relating to the effect to be given to payments thereof. It has reference to the mulct tax, and manifestly to those provisions of that law which are mandatory upon, and not optional with, the liquor seller. Clearly the county attorney is required by section 2446 to see that the provisions relating to the mulct tax are enforced, and there is no allegation in the petition in this case that defendant has in any way failed in his duty with respect thereto. That the Legislature had any other intent at any time is not made clear. Even under the original act (section 16, chapter 62, Acts 25th General Assembly) it is doubtful if the Legislature intended that the county attorney should do more than enforce the mandatory provisions of the act. Certainly he could not enforce a provision of that chapter which was optional with the liquor seller. But, however this may be, county attorneys are by the act in question placed upon the same plane with assessors, county treasurers, and. members of the county boards, and their duties are made the same. Surely an assessor could not be re
The judgment must be, and it is, affirmed.
Dissenting Opinion
dissenting. — The conclusion of the majority is stated in its opinion as follows: “And, as the provisions of the chapter relating to the mulct tax are the ones referred to in section 2446, the county attorney has performed his duty with reference to this tax when he has seen that it has been properly assessed, levied and collected.” I am unable to agree with this construction of section 2446. I believe it is altogether too technical and narrow,, and that it completely emasculates a statute that was evidently intended to enforce the'restrictive provisions of the mulct law. The opinion further says: “It is perfectly plain that the assessor, county treasurer, and members of the board of supervisors - have nothing to do with the enforcement of the penal part of the mulct statute, but they have very evident duties with reference to the assessment, levy and collection of the mulct tax.” I agree perfectly with that statement, and go still farther, and say that in my judgment the county attorney has nothing to do with the assessment, levy and collection of the mulct tax, except in the one particular which I shall hereinafter mention.
Section 2433 defines the duties of assessors, and provides that the assessor of each township, town or city or assessment district thereof shall return to the auditor a list of persons who are or who have been engaged in the business of selling intoxicating liquor, and also a description of the real property wherein or whereon the business is carried on, with the name of the occupant or tenant or owner or agent. And an assessor who fails to comply with these requirements is made criminally liable. In addition to the criminal liability imposed for a failure on the part of the assessor to perform this duty, section 2435
But the majority opinion says that this duty was and is imposed by the general law. If this be conceded, there is still no reason for saying that section 2446 was not enacted for the purpose of making the duty more explicit and certain. There are numerous instances where this has been done, evidently with the thought that some timid county attorney might mistake his responsibility or duty. Thus section 2389 expressly provides that the county attorney shall appear in proceeding asking for a permit, and section 2406 requires him to prosecute actions to enjoin nuisances created by the unlawful sale of liquors. And these requirements are made notwithstanding the provision of section 2428 which requires him to appear for the State upon trials of causes growing out of violations of the prohibitory laws. In my judgment it is a grave mistake to say that the duties of assessors, auditors, treasurers and boards of supervisors are the same under the provisions of the mulct law as are those of the county attorney, and unless they are, as the majority concedes, the majority opinion' is wrong.
I think the demurrer should have been overruled, and would reverse.
Concurrence Opinion
concurring. — It seems to me the view of the dissenting judges that the meaning of section 2446 of the Code as it now stands is the same as that of section 15, chapter 62, Acts 2,5th General Assembly, is sound; but I think the reasoning of the majority opinion is directly applicable to the original section, and, as so applied, it necessarily leads to the conclusion reached by the majority, in which I therefore concur.