Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1911-11-25
ASSISTANT ATTORNEY GENERAL
LEE GIVES LUCID OPINION ON
STATUTE.
ROAD DRAGGING LAW
SPECIFIC AND MANDATORY
and Removal Proceedings
Not Satisfactory Remedies, However,
Except in Cases Of WilfuI Neglect Of
Plain Duty, as lnducsment to Hold
Office is Not Sufficient.
oecial to Times-Republican


Des Moines. Nov. 25.-Road dragging
superintendent and contractors are H.
able to fine and imprisonment in case
they wilfully neglect or refuse to com
ply with the Iowa road dragging law.
The threat of removal from office is
net likely to influence any of these Of
ficiais or agents. but according to AS
sistant ATTORNEY General Lee thew are
no. only subject to the penalties found
in the read law but also to the general
law for failure to perform any official
duty. He suggests. however. In an opln-
ion rendered to an Allamakee county
official. thmat after all the right way
to have the road dragging law en-
formed and to get good out Of 1t is to
set the right men for handling the law
His statements are Of general applica-
ton and are as follows:
Assistant Attorney Generals Opinion.
Your complaint Is typical Of COM
plants concerning the same matter
which cohnes from all parts Of the state
and it is very difficult to know lust
what advice to give in many cases
The law relating to the dragging of
roads is very specific and Is mandatory
in all of its essential provisions. but
there are a number Of uniinportant de-
tails which 1 think ii Is difficult ard
in1practicable to comply with and
failure to do so. in the large majority
Of cases, can only be attributed to ne
slect and disregard of the duties i'm
posed by law.
Naturally considerable discretion is
reposed in the township trustees and
the road authorities in the dragging of
roads. and this is necessary and proper
and in cases where this discreti1n is
not wisely exercised or where the best
judgment is not exercised in the man.
ner of doing the work or in hiring
proper persons to do the work. no sat-
isfactory remedy is available. The rem
edy in such cases lies with the people
themselves in selecting officers and
servants who not only have the proper
qualifications but also have the proper
regard for the law. In cases, however
where there is no effort made to COM
ply with the law and there Is a total
disregard Of the plain duties and acts
required by the law. the law itself i'm
poses certain penalties upon those who
are guilty of such breaches.
Mandamus Not Effective.
"While road authorities and town.
ship trustees may be compelled to act
and do their duty by mandamus pro-
ceedings. yet that remedy would not, in
my Judgment. prove very satisfactory.
The average township trustee or road
superintendent or person holding con-
tract to drag a road usually accepts
said position under protest and from a
sense Of public duty. and If an attempt
were made to compel such officers to
act contrary to their own ideas in the
premises, they would. in many cases,
resign their office. Again. all such Of
fcers may be removed from office for
failure to perform the duties enjoined
by law, but this remedy is no more sat
isfactory than a mandamus proceeding
because. as suggested. there is not SUI
flcient inducement to hold such Office.
I'm cases where the superintendent
of dragging or the person with whom
contract has been made to drag the
roads violates any Of the provisions OF
the new road drag lay. a penalty is i'm
posed by that law. and penalty is
also inflicted upon the township clerk
for failing to set aside the funds re-
quired by said act. but the road drag
law itself does not impose any penalty
on the township trustees for failure to
perform the several duties cast upon
them by the law.
Wiful Neglect a Misdemeanor.
Section 1904 OF the code. howeevr.
provides that when any duty Is or. shall
be enjoined by law upon any person
holding any public trust OF employ
ment. every wilful neglect to perform
such duty, where no special provision
has been made for the punishment Of
such delinquency. Is a msdemeanor.
And section 1905 provides that anyone
convicted Of such misdemeanor shall be
punished by imprisonment in the
county Jail not more than one year. or
by fine not exceeding $500, or by both
such fine and imprisonment.
1T is my opinion that these provi-
sions of the law apply where township
trustees or other township officers will
fully fail or neglect to perform duties
that are imposed on them by law with
regard to the dragging and working Of
reads, and it would be the duty of the
county attorney to enforce the law In
respect to these matters by suitable