Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1908-12-15
Attorney General Byers Rules
That County Attorneys Have
Other Duties
MUST ENFORCE MuLcT LAW
Appeals Case of kuhImeier, From Bur-
ineton-Argues That Intent of MuIct
Law Was Not Changed When Word
ing Was Modified by Code Revision
Commission.
Special to Times-Republican.

SpeCldl 10 IllneS-ILepuUICa
Des Moines, Dec. 15.-The office o.
county attorney is not merely a col
General Byers, who comes to the de-
tense of the eminent lawyers who re-
vised the Iowa code in 1897, in a brief
and argument filed by him and Assist
ant Attorney General Cosson yester-
day, in supreme court, in the case from
Burlington affecting the removal from
office of County Attorney H. +. Kuhl-
emeier.
When the mulct law was passed in
1894 a provision appeared as follows:
1T shall be the duty of the county
attorney of each county to see that the
it shall be the duty of the distric.
court or any judge thereof to suspend
or remove from office any such county
attorney who shall wilfully refuse or
neglect to perform any of the duties
enjoined upon him by this act etc.
When the code revision commission
and the extra session OF the legisla-
ture got thru with it, the language had
been slightly changed and augmented
to read: that "it shall be the duty of
county attorney of each county to see
that the provisions of this chapter re-
lating to the mulct tax are enforced"
etc.
When Attorney General Byers went
to Burlington and found eighty sa-
looms running in violation of provisions
of the mulct law he appealed to County
Attorney Kuhlemeier to enforce the
statute. The county attorney pointed
out that he had collected the $600Nmulct
tax and had discharged his full duty
under the law, which provided that 1t
shall be the duty of the county at
torney to see that the provisions of the
act 'relating to the mulct tax are en-
forced.
Whereupon the attorney general
sought to impeach the county attorney
and asked the court to remove him.
Judge Smyth sustained the county at
torney's Interpretation of the law, and
it is from this decision that the at
torney general appeals. If we give the
phrase relating to the mulct tax the
meaning and Interpretation contended
for by the counsel for defendant," says
the attorney general, 1--WE must assume
that the code commissioners intention
ally intended by the use .of the term
to emasculate the original enactment"
And that the attorney general argues
at length not only is not true, but in
conceivable.
More Than a Mere Collector.
General Byers declares that the
county attorneys contention simply is
that the legislature intended merely
ito make a vigilant collector of the
county attorney and to transform his
office into that Of a collecting agency,
and if this duty was performed no 9TH
er obligation rested upon the chief law
officer of the county; and that so far
as the county attorney was concerned,
saloons without number might operate
in said county, and the keepers there
of openly, flagrantly and detiantly vio-
late any and all of the provisions OF
the mulct law"
eff that was the intention of the
legislature, we readily concede that the
courts should be governed according
w." says General Byers. I'VE believe,
however, that we can relieve the leg
islature of any such imputation.
"The conditions existing in Iowa at
and prior to the passage of the mulct
law were almost intoleraible. In GER
tain parts of the state the prohibitory
law was openly and defiantly violated.
The mulct law was passed in response
to the popular demand that something
- owl eff
ing.
"a reference to the house journal of
the Twenty fifth general assembly dis
closes the fact that during the session
several bills of various nature were
looking to the better enforce
ment Of the liquor laws. One measure
during that session was
similar to the state marshal bill. 1t
was also proposed to confer power up
on the executive council to see that the
provisions of the mulct law were en-
forced 1t was finally decided. how
ever to place the duty of enforcing the
provisions of the mulct law upon the
officer whose very existence was for
the purpose of enforcing the law and
to that end the law known as the mulct
tax law was passed.
Intent of Law Unchanged.
''The lay as originally enacted by
the Twenty-fifth general assembly did
not require that the county attorney
simply collect the mulct tax" says the
county attorney, "but it expressly made
It his duty to see that the provisions
IF the entire chapter were forced, and
It was made the duty of the district
court, or any judge thereof, to suspend
Or remove from office any county at.
.orney who wilfully refused or neglect
I'd to perform any of the duties en- !
Joined upon him by said act. He was
not then to be removed only if he failed |
20 perform the one duty of seeing that
he tax was collected but he was to |