State ex rel. Hinkley v. Martland

• Decision Date: 19 March 1887
• Citation: State ex rel. Hinkley v. Martland, 71 Iowa 543, 32 N.W. 485 (Iowa 1887)
• Parties: THE STATE, EX REL. HINKLEY, v. MARTLAND ET AL
• Court: Iowa Supreme Court

32 N.W. 485

71 Iowa 543

THE STATE, EX REL. HINKLEY, v. MARTLAND ET AL

Supreme Court of Iowa, Des Moines

March 19, 1887

Appeal from Plymouth Circuit Court.

THIS is an action upon a bond given by the defendants for a permit to sell intoxicating liquors. The petition was dismissed upon the motion of defendants. The plaintiff appeals.

REVERSED.

Zink & Gosselin and Cole, McVey & Clark, for appellant

Curtis & Durley, for appellees.

OPINION

ROTHROCK, J.

It is averred in the petition that the defendants obtained from the board of supervisors of Plymouth county a permit to sell intoxicating liquors, and gave the bond required by law, and that, for the month of July, 1884, they failed. neglected and refused to file the reports required by the statute. The relator, a citizen of Plymouth county, claims to sue in behalf of himself, as well as for the benefit of the school fund, and he demands judgment for the county, for the use of the school fund, for $ 50, and judgment for himself for a like amount. The action is founded upon section 1538 of the Code, as amended by chapter 143, Acts of the Twentieth General Assembly, and which is as follows "Any person having such permit, who shall sell intoxicating liquors at a greater profit than is herein allowed, shall be liable to treble damages, to be recovered by civil action in favor of the party injured; and any person holding a permit, either to manufacture or sell, who shall fail to make monthly returns as herein required, or within five days thereafter, or who shall make false returns, shall forfeit for each offense the sum of one hundred dollars, to be recovered in the name of the state of Iowa upon the relation of any citizen of the county, by civil action on his bond, with costs; and one-half of the sum recovered shall go to the informer, and one-half shall go to the school fund of the county."

The defendants claimed, by their motion to dismiss, that the plaintiff was not authorized by law to maintain the action upon his own motion, and that an action can only be brought at the instance of the district attorney of the proper judicial district. They rely upon section 1532 of the Code which is as follows: "The bond shall be deposited with the county auditor, and suit shall be brought thereon at any time by the district attorney, in case the conditions thereof, or any of them, shall be broken. The principal and sureties therein shall also be jointly and...