Brennan v. Roberts
| Decision Date | 18 November 1904 |
| Citation | 101 N.W. 460,125 Iowa 615 |
| Parties | MICHAEL BRENNAN v. M. A. ROBERTS, Judge |
| Court | Iowa Supreme Court |
THE plaintiff was enjoined January 17, 1902, from selling intoxicating liquors or keeping the same for sale on premises described as "303 East Main street," in the city of Ottumwa, "except such sales are made in strict accordance with the mulct law." On information that the plaintiff had violated the terms of decree, presented July 14, 1903, the defendant issued a warrant requiring him to be brought before him July 21st following, which was done, and upon hearing the plaintiff was found guilty, and required to pay a fine of $ 400. To test the validity of the proceedings a writ of certiorari was issued.--Dismissed.
Case Dismissed.
Jaques & Jaques, and Smith & Lewis, for plaintiff.
E. F Simmons, for defendant.
The information filed with the judge accused the plaintiff of having violated the injunction, describing it, but omitted to set out a copy of the decree. This was not required. Section 2407 of the Code, rather than section 4372, prescribes the procedure in such a case. See McGlasson v. Scott 112 Iowa 289, 83 N.W. 974.
II. The information accused plaintiff of selling after ten o'clock, Sundays, and legal holidays. A motion that informant be required to state the particular days when this happened was overruled. If the ruling should have been the other way, the error, if any, was without prejudice, as the accused admitted having operated his saloon on the 4th of July previous. See Abrams v. Sandholm, 119 Iowa 583, 93 N.W. 563.
III. Objection was made to the prosecution by an attorney who resided in an adjoining county, instead of the county attorney. Section 2406 of the Code authorizes the county attorney to institute suit for injunction in the name of the State or any citizen of the county to bring such action. If brought by a citizen, he is free to employ any attorney he may choose. In maintaining the action he represents the public in such sense that the decree, when obtained, is a bar to another suit by any person against the same place and defendant. Carter v. Bartel, 110 Iowa 211, 81 N.W. 462; Steyer v. McCauley, 102 Iowa 105, 71 N.W. 194; Dickinson v. Eichorn, 78 Iowa 710, 43 N.W. 620. If any citizen may maintain the action, it logically follows that he may insist upon obedience to the decree when obtained, and in doing so enjoys the same freedom in selecting an attorney to aid him as in the original suit. In either there is no limitation as to the place of residence of the attorney employed. While proceedings to punish for contempt are in their nature criminal, they are not such as contemplated in section 301, requiring the county attorney to appear in criminal cases. Indeed, precisely the same reasons may exist for the prosecution for contempt without his aid as in the maintenance of the original suit for the injunction.
IV. In the judgment the judge taxed an attorney's fee as part of the costs, and it is contended that this cannot be allowed in addition to the ten per cent. of the fine. But section 2429 expressly authorizes both; the fee as compensation for securing conviction, and the ten per cent. for collecting the penalty imposed.
V. A change of forum was asked and denied. Without discussing the merits of the motion, if any it had, it is enough to say that the ruling was without prejudice, as the accused admitted that his place was open on the 4th of July, 1903, and did not deny the proof of sale of intoxicants therein.
VI. Lastly, it is contended that the operation of the saloon on the 4th day of July is not prohibited. Paragraph 9 of section 2448 of the Code provides that "it shall not be open at...
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