Audubon Republican. [volume] (Audubon, Iowa) 1894-1925, 1907-11-28
WILL ENFORCE LAW
TEXT OF ATTORNEY GENERALS
OPINION.
REMOVE DERELlcT OFFICIALS
Says He Has Authority and Opinion
Is Concurred In by the
Governor.

Des Moines.--Attorney General H.
w. Byers has written the following
letter to the Des Moines Register and
Leader:
To the Editor: In your editorial OF
recent date relative to the enforce
ment of the liquor law In Iowa you
call attention to the late decision of
the supreme court of Minnesota,
wherein the attorney general prose
cuted an action In the name of the
state to remove one Robinson from
the office of mayor of the city of St
Cloud. and also to recover the penalty
provided by section 1851 OF the re-
vised laws of Minnesota. You insist
that the attorney general of Iowa has
equal authority with the attorney gen.
eral of Minnesota.
Section 1861, revised laws of 1906
of Minnesota, makes II the duty OF
the mayor Of every municipality OF
that state, or other public officers
named there. to make complaint to
the proper magistrate of any known
violation of the laws of the state on
the subject of the sale of intoxicat'
ing liquors; and section 1862 declares
a neglect of that duty malfeasance
In office, subjecting the guilty officer
to removal and a penalty of not less
than 500 and not more than $500.
Section 4545 of the Minnesota code
provides, among other things, that
when any public officer does or suffers
.aA s.l h,,l Nx.. Ear
fixture of his Office, the attorney gen
eral may, when he has reason to be-
lieve that a cause of action can be
proved, bring an action In the name
of the state upon his own informa'
ton or upon the complaint of a pri'
vate person against the person offend.
ing.
Statute and Common Law.
II Is therefore erroneous to assume
that the Minnesota decision sustaining
the attorney generals rights to prose
cute an action for the removal Of an
officer for malfeasance or nonfeasance
In Office Is based upon the common
law powers of the attorney general.
The principal point decided In the
case was that the attorney general
had authority by virtue Of his Office
to maintain an action to recover the
penalty prescribed by section 1862
revised laws of Minnesota, notwith'
standing that section 1861 made it the
duty of the county attorney to col
lect such penalty. The court based
its decision partly upon the common
law powers, which 1t said inhered in
the Office OF the attorney general, but
also found that 1t was the evident
purpose Of the legislature In passing
the present liquor laws to re-establish
the supreme authority of the state
with reference to the control and
regulation of the sale of intoxicating
liquors.
The mulct law IN Iowa, which does
not repeal, but only suspends under
certain conditions, the prohibitory
law. contains method for it's enforce
ment, but the responsibility of en-
forcement rests almost wholly with
local officers. Judges are enjoined
with the duty Of instructing the grand
Jury with reference to violations OF
the liquor laws. and section 2406 pro-
vides that actions to aOate liquor
nuisances may be brought in the
name OF the state by the county at
torney, or any citizen In the county
may institute and maintain such a
proceeding in his name.
Section 2428 provides, that peace
officers shall see that all provisions
of the chapter relating to intoxicat.
ing liquors are faithfully executed
within their respective jrrfiI0fions
and when Informed, or tksy ha@s Ttsr
A. L.IS 4Lok 1o,xy 49, Ana
violated. they shall file an information
to that effect against the offending
party before a magistrate. and further
provides that the county attorney
Bhall appear for the state and prose
cute such cases, and that any peace
officer who fails in his duty shall, up.
on conviction, pay fine Of not less
than $40 nor more than $50 and for.
felt his office.
Section 5O99 designates peace Of
fcers to be, Cd sheriffs and their
deputies; (2) constables; (3) mar
shals and policemen of cities and
towns.
County Attorney and Mayor.
It is to be observed that the pro-
visions of said section do not include
county attorneys, and also that the
section is criminal In its nature. and
that the peace officer who fails to
comply with the provisions Of said
act may be proceeded against only
by information in the regular way.
Section 2446 of the code, which Is
currently supposed to give the judges
OF the various districts authority to
summarily suspend or remove from
Office any county attorney who neg.
lects or refuses to enforce the gener-
al provisions of the mulct law, merely
provides that 1t shall be the duty OF
the county attorney Of each county
to see that the provisions Of the
chapter relating to the mulct tax are
enforced, and for a failure in this re.
gard, the district court or Judge
thereof shall suspend or remove from
office any county attorney.
1t is contended by some that this
section only authorizes the court or