Tennant v. Kuhlemeier

• Decision Date: 10 April 1909
• Citation: 142 Iowa 241,120 N.W. 689
• Parties: TENNANT v. KUHLEMEIER.
• Court: Iowa Supreme Court

142 Iowa 241

120 N.W. 689

TENNANT

v.KUHLEMEIER.

Supreme Court of Iowa.

April 10, 1909.

Appeal from District Court, Des Moines County; James D. Smyth, Judge.

Action to remove the defendant, who is the county attorney of Des Moines county, from office. The trial court sustained a demurrer to the petition, and plaintiff appeals. Affirmed.

See, also, 120 N. W. 340.

Sherwin and Weaver, JJ., dissenting. McClain, J., dissenting in part.H. W. Byers, Atty. Gen., and George Cosson, Asst. Atty. Gen., for appellant.

Seerley & Clarke, Poor & Poor, Tracy & Tracy, Lamonte Cowles, W. L. Cooper, C. H. Mohland, and E. L. Hirsch, for appellee.

DEEMER, J.

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 willfully 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 80 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 10 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 had filed no bonds with the county auditor. It was also alleged “that the said H. F. Kuhlemeier was on or about the 17th day of January, 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 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 law 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 H. 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, tit. 12, Code, relatingto 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.

The case presents nothing for our consideration save the proper construction of the section of the Code quoted. General provisions are made for the removal of all county, township, city, and town officers. See sections 1251 et seq., Code (but this action is not under these sections), and there is also a section 2428 of the Code which has some relevancy to the matter now in hand. It reads: “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.

The Attorney General, overlooking this rule, practically concedes that the statute as it is now found in the Code does not reach the case as made by the petition; but he contends that the original act before its incorporation into the Code was broad enough to cover the case, and that the decision should be governed by that act rather than by the section of the Code as it now appears. He refers to the report of the Code Commission with reference to the intoxicating liquor statutes, reading as follows: “Several successive acts covering almost the entire ground have been passed by the General Assembly since the adoption of the Code. The effort is here made to bring the statutes on the subject into one uniform system, embodying the law as it now is, for which purpose it has been necessary to largely rewrite the sections. It is believed that every feature of the prohibitory law as at present in force is effectually preserved”--and this special report, relating to sections 52 and 67 of what is called the “mulct tax law”: “These sections, covering the Twenty-Fifth General Assembly (page 63, c. 62, Mulct Tax Law), are designed to present the principle and policy of that statute in a more harmonious and effectual form without altering its general spirit.” From this he argues that the commissioners had no intent to change the law, and, a fortiori, that the Legislature had no such intent. There would be much force in this position if the language used in the Code were doubtful or capable of more than one construction. It is a well-known rule that the so-called legislative intent in the passage of any given act is a very uncertain guide whereby to interpret a statute, and so it is held that the opinions of individual legislators, remarks on the passage of an act or the rebates accompanying it, or the motives or purposes of individual legislators, or the intention of the draughtsman are too uncertain to be considered in the construction of statutes. See cases cited in 26 Am. & Eng. Ency. of Law, pp. 638, 639. Moreover, it is generally held that the legislative history of an act is inadmissible. Pa. Bank v. Commonwealth, 19 Pa. 156;Mason v. Township, 68 N. J. Law, 149, 52 Atl. 568;State v. Cable Co. (N. J.) 18 Atl. 581;Cable Co. v. Atty. Gen., 46 N. J. Eq. 270, 19 Atl. 733, 19 Am. St. Rep. 394. The Code Commission was nothing more than the draughtsman of the act, and its intent, although perhaps admissible, will not control over the bills as finally adopted by the Legislature.

Going now to the exact language of the act under consideration, it will be observed that the county attorney is to see that the provisions of the chapter (chapter 6, tit. 12, Code) relating to the mulct tax are enforced; and it will also be noted that the provisions of the section are expressly made applicable to assessors, county treasurers, and members of the board of supervisors, whose duty it is to enforce them. The word “them” in the last line of this act has direct reference to the provisions of the chapter relating to the mulct tax and to nothing else, and is very significant, in that it indicates beyond all peradventure that the duty referred to is common to all the officials named. 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 law statute. But they have very evident duties with reference to the assessment, levy, and collection of the mulct tax; and the use of the words “mulct tax” has great significance when applied to these officials, because, with reference to this tax, they have duties to perform which are strictly enjoined upon them, not only by section 2432 et seq. of the Code as it originally stood, but by the amendments thereto found in the Code Supplement as sections 2433, 2435, 2437, 2438, and 2439. The statute then must be given but one construction, whether applied to county attorneys or to the other officials named. The language to which we have just referred was not found in the original act. Compare section 15, c. 62, Acts 25th Gen. Assem., with section 2446, Code, and this change is very significant. Moreover, the mulct tax is to be assessed against every one except holders of permits carrying on the business of selling or keeping for sale intoxicating liquors or maintaining a place where intoxicating liquors are sold or kept with intent to sell. It is in itself an additional penalty imposed upon the sale of liquors. Hodge v. Muscatine Co., 121...