Maloney v. Traverse
| Citation | 54 N.W. 155,87 Iowa 306 |
| Parties | PETER MALONEY et al. v. H. C. TRAVERSE, Judge |
| Decision Date | 26 January 1893 |
| Court | Iowa Supreme Court |
Certiorari to Wapello District Court.
THE plaintiffs at the suit of William Drake, were enjoined from maintaining a liquor nuisance on certain premises. The injunction was issued January 14, 1888. On the twenty-eighth day of March, 1892, contempt proceedings were instituted for a violation of the injunction, and on the fourth day of April, 1892, the plaintiffs were attached, and brought before the court, and a hearing set for April 9, 1892. On the day set for the hearing, an application for a postponement or continuance was presented and denied. The cause was then tried, and a judgment entered imposing a fine as to each with an order for imprisonment, under the law, until the fine should be paid. This proceeding is instituted to test the legality of the judgment, several complaints being made.
Affirmed.
J. J Smith, for petitioners.
No appearance for the respondent.
I.
As appears in the statement of facts, the injunction proceedings were with William Blake as plaintiff, and with the plaintiffs herein as defendants. In that proceeding the firm of Work & Blake were employed as attorneys, and prosecuted the suit. The firm also appeared in behalf of the state in the contempt proceeding, and from the examination there it appears that the firm appeared at the instance of the "Law and Order League," neither of them being the public prosecutor under the law, nor prosecuting the case at his instance. The showing is that the firm expected compensation for its services, but the understanding in that respect is quite indefinite. We think it fair to say that in the main their compensation was expected from the percentage allowed by law from the fines imposed. After the showing thus made, the defendants objected to the prosecution, for the reason that it is the duty of the county attorney to prosecute in criminal cases. The objection was overruled, because of which the proceeding is urged as illegal.
It is said, in substance, that the public has provided a county attorney, whose duty it is to see that the laws are honestly and fairly enforced, and we are referred to the holdings in Wisconsin and other states where it is held, upon statutory enactment and grounds of public policy, that attorneys employed by private parties can not be permitted to assist in the trial of criminal cases. Upon this particular feature of the case we need only say that, under our law, it has been held that, the right to have assistant counsel in criminal cases is a matter that may safely be left to the discretion of the court and the attorney for the state. State v. Fitzgerald, 49 Iowa 260; State v. Montgomery, 65 Iowa 483, 22 N.W. 639; State v. Ormiston, 66 Iowa 143, 23 N.W. 370. The point under consideration is, however, different. This was an appearance without reference to the county attorney, but it was, by the ruling upon the objections, with the express authority of the court. The attorneys were not there, however, to assist the regular attorney for the state, but to prosecute in behalf of the public. We think the matter may be properly disposed of without reference to the express authority of the court or county attorney.
In regard to liquor nuisances, our law provides that, "any citizen of the county where such nuisance exists, or is kept or maintained, may maintain an action in equity to abate and perpetually...
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