O'Brien Cnty. v. Mahon

• Citation: 102 N.W. 446,126 Iowa 539
• Parties: O'BRIEN COUNTY v. MAHON ET AL.
• Decision Date: 10 February 1905
• Court: Iowa Supreme Court

126 Iowa 539

102 N.W. 446

O'BRIEN COUNTY

v.MAHON ET AL.

Supreme Court of Iowa.

Feb. 10, 1905.

Appeal from District Court, O'Brien County; John F. Oliver, Judge.

Action to recover a mulct tax from the sureties on the bond of one Mahon, who was engaged in conducting a saloon in the town of Sanborn, in O'Brien county. The bonding and trust company interposed various defenses, to some of which we shall refer during the course of the opinion; and it also pleaded what it called a cross-petition in equity against Mahon, Henry Gund, and the John Gund Brewing Company, wherein it asked that, if plaintiff obtained judgment against it, the amount thereof be declared a lien upon the property whereon the saloon had been conducted, that plaintiff be required to sell this property before resorting to this defendant, and that special execution against the property be issued in its favor for the amount of any judgment rendered against it, and that it have judgment against Gund and the brewing company for any amount found due the plaintiff, and for general relief. Various other matters were pleaded in an amendment to this cross-petition, which need not be referred to at this time. To the cross-petition and the amendment thereto demurrers were filed, which eliminated them from the case. A jury was waived, and the case was tried to the court, resulting in a judgment for plaintiff against Mahon and the bonding and trust company, and the bonding and trust company appeals. Affirmed.Cory & Bemis, for appellant.

Joe Morton, for appellee county.

C. A. Babcock, for appellees Gund and Gund Brewing Co.

DEEMER, J.

The pleadings are very voluminous and complicated, covering more than 20 printed pages of the abstract, and we shall not attempt to set them out in extenso. The case was tried upon an agreed statement of facts, which, so far as material, are as follows: Bernhard I. Mahon was conducting a saloon under the so-called “Mulct Law” at Sanborn, in the county of O'Brien, during the year 1901, and on April 15th of that year he filed a bond with the bonding and trust company as sureties, conditioned that he (Mahon) “should faithfully observe and comply with all the provisions of the laws of the state of Iowa relating to the keeping and selling of intoxicating liquors; and especially with the requirements of the act of the 25th General Assembly [page 63, c. 62] known as an act to tax the traffic in intoxicating liquors, and to regulate and control the same, and shall pay all damages that may result from the sale of intoxicating liquors upon the premises occupied by Mahon.” Mahon failed to pay the mulct tax for the quarters ending June 30 and September 30, 1901, of $300. This action was to recover said tax, with interest and penalties, from Mahon and the surety on his said bond. The action in so far as the penalties are concerned was dismissed by the plaintiff, and we shall have no occasion to consider that matter further. Judgment was rendered against Mahon and his surety, for the amount of the quarterly taxes, with interest, and the appeal is from that decision.

Appellant's argument does not comply with our present rules, and we have had much difficulty in ascertaining just what its points are which are relied upon for a reversal. Taking up what is called its “argument,” we extract the following as being the claims relied upon: First, the defendant bonding company is not liable on its bond for the amount of the tax in any event; second, it is only liable for such taxes as accrued while Mahon was operating under the mulct law, and as soon as he failed to pay the tax he was not operating thereunder, and defendant is not liable for anything accruing after Mahon's failure to pay; third, it is not liable because the plaintiff county failed and neglected to collect the tax from Mahon, who was responsible when the tax accrued, but who thereafter frittered away his property; fourth, the county cannot recover the full tax, because one-half of it is due the town of Sanborn; fifth, the bond does not cover the tax for the quarter ending June 30th, for the reason that it was not given until April 15th; sixth, the bond does not describe the property and is therefore void; seventh, the bond does not cover interest; eighth, the bond is without consideration; ninth, the county, by inaction, lost its lien against the property whereon the business was conducted, and the surety is therefore released; tenth, the county should have resorted to its lien upon Mahon's property, and cannot hold the defendant bonding company without first exhausting that property, or showing that the tax cannot be collected therefrom. If there be any other points concealed in this so-called argument of 31 pages, we have been unable, after careful scrutiny, to discover or discern them, although in the statement of the case it appears that the bonding company is also relying upon the fact that the law under which the bond is said to have been given has been repealed, and was not in force when the bond was executed, and it is therefore void. We shall take up these points as nearly in order as possible, although the last suggestion should perhaps be first disposed of.

It is true that when the bond was given the act of the General Assembly referred to in the conditions thereof had been repealed, or, more properly speaking, superseded by the Code of 1897; but, as practically all the provisions thereof were re-enacted in that Code, there was no hiatus, and such parts of the Acts of the Twenty-Fifth General Assembly as were carried into the Code of 1897 are and have been in full force and effect ever since their original enactment. State v. Prouty, 115 Iowa, 657, 84 N. W. 670. But conceding arguendo that they were all repealed, the bond is so conditioned as that the bonding company expressly agreed that “Mahon should faithfully observe and comply with all the provisions of the laws of the state of Iowa relating to keeping and selling intoxicating liquors.” It was for the sum of $3,000, and fully complied with subdivision 3 of section 2448 of the Code. The other provisions of the bond may therefore be regarded as surplusage. They do not contemplate doing an illegal act; nor was the bond given to enable Mahon to violate the law. The provision we have quoted was to secure his observance of the law, and was therefore valid. Even if the bond did not strictly conform to the statute, it is good as a common-law obligation, and may be enforced as such.

But it is said that the surety company is in no event liable for the tax imposed by sections 2432 to 2445, inclusive, of the Code. That question has been decided adversely to appellant. See Breeding v. Jordan, 115 Iowa, 567, 88 N. W. 1090;Guedert v. Emmett County, 116 Iowa, 44, 89 N. W. 85;Knoll v. Marshall Co., 114 Iowa, 647, 87 N. W. 657;Id., 102 Iowa, 573, 69 N. W. 1146, 71 N. W. 571. An attempt is made to distinguish these cases on the theory that they were each decided...