State of Iowa on the Relation of Milton Remley, Attorney-General, v. The Muscatine North and South Railroad Company.

On July 11, 1900, the board of railroad commissioners of this state made an order requiring the company to put in an undergrade crossing within ninety days from date of its order. The company did not comply with this order, and upon a request from the board this action was brought, as provided by law, to compel obedience to its order. A petition was filed in the Muscatine district court in October, 1899, to compel the company to comply with this order. After the issues were made up and the case submitted to the court, and after full deliberation thereon, the judge ordered that the company should construct an undergrade crossing, as ordered by the board of railroad commissioners of this state, and in the manner and at the point as ordered by the board, on or before the first day of July, 1901. State of Iowa v. Sioux County.

An action at law to recover a balance due the state from said county, for board of patients at the hospital for the insane, at Independence, Iowa, A change of venue was taken from defendant county to the county of Plymouth, where the case is still pending, and will be tried as soon as the same can be reached for trial.

State of Iowa on Relation of Milton Remley, Attorney-General, v. W. A. Smith.

A petition in equity was filed in the district court for the state of Iowa, in and for Pottawattamie county, praying an injunction to restrain defendant from draining Noble lake in said county. Noble lake is a permanent body of water and belongs to the state, and constitutes one of the principal waters of the state. An injunction was granted as prayed, and the case is still pending in the district court.

State of Iowa v. Suel J. Spaulding, et al.

This action was brought at the September term of the Polk county district court, on the official bond of Spaulding as treasurer of the pharmacy commission, to recover for the embezzlement of funds of the state. This action is still pending, and will be tried at an early date.

The following is a list of the criminal cases in which the state is interested, for the years 1900 and 1901, pending in the supreme court of the United States:

State of Iowa v. James H. Easton.

Defendant was indicted by the grand jury of Winneshiek county, under section 1885 of the code, for fraudulent banking.

He was tried upon the indictment, and a verdict of guilty was returned by the jury. Upon this verdict the judge imposed a sentence of imprisonment for five years in the penitentiary. The defendant appealed from the judgment of the district court to the supreme court of Iowa, and the judgment of the court below was affirmed on the 12th day of April, 1901.

On the 16th day of April, 1901, the defendant sued out a writ of error from the supreme court of the United States to the supreme court of Iowa, on the ground that a federal question was involved in the case, viz:

That the defendant, at the time of the receiving of the deposit charged in the indictment, was president of a national bank authorized to do business at Decorah, Iowa, under the laws of the Uni ed States; that the provisions of sections 1884 and 1885 of the code of Iowa are not applicable to national banks, and that an officer of such bank cannot be convicted thereunder for receiving a deposit in an insolvent bank; that the state court has no jurisdiction to inquire into, hear, try or determine the question of the authority of the defendant to receive a deposit of money in such bank.

The case is now pending in the supreme court of the United States. The following is a list of the civil cases in which the state is interested, for the years 1900 and 1901, pending in the district court of the United States in and for the Southern district of the state of Iowa:

Charles Spiegel, alias Charles Cohn, v. N. N. Jones, Warden of the State Penitentiary at Fort Madison, Iowa.

This was a petition for a writ of habeas corpus, on the ground that the information upon which the petitioner was extradited from Canada, charged the common law crime of arson, while the indictment, under which the petitioner was convicted and sentenced to serve a term in the penitentiary, charged the burning of a store building, which is made an indictable offense by the statutes of this state, but which is not included in the crime of arson as known to the common law. The court holds that the offense charged in the information is the same as charged in the indictment, and thereupon refuse to grant the writ.

SCHEDULE "D."

The following are official opinions of public interest given to state officers and county attorneys:

OLEOMARGARINE-The law prohibits anyone having in his possession a substitute for butter colored yellow, although it may be intended for the use of himself and his family.

DES MOINES, Iowa, January 9, 1900.

Hon. B. P. Norton, Dairy Commissioner, Des Moines:

DEAR SIR-Yours of the 6th inst. at hand, asking my opinion upon whether the dairy laws forbidding anyone to have in possession oleomargarine contrary to the provisions of chapter 13, title 12 of the Code, will be violated by a private individual having in his possession for the use of his own family oleomargarine of a yellow color."

In reply to this I will say that the last clause of section 2516 is as follows: "No one shall manufacture, have in his possession, offer to sell or sell, solicit or take orders for delivery, * * * ship, any imitation butter or cheese, except in the manner and subject to the regulations in this chapter provided."

The next section permits the manufacture, having in possession, selling and offering for sale, etc., a substitute for butter and cheese not having a yellow color, or colored in imitation of butter or cheese, if each tub, firkin, etc., shall have branded, stamped or marked on the side or top thereof in the English language in a durable manner the words, "substitute for butter." It also permits such substitute for butter to be kept, used or served as food, or for cooking in hotels, restaurants, etc., provided the proprietor or person in charge of such place shall post a card opposite each table where the guests are served, on which shall be printed: "Substitute for butter used here."

Section 2518 prohibits the coloring of any substitute for butter so as to cause it to resemble true dairy products. Section 2519 prohibits anyone having in his possession any substitute for butter unless the same is duly marked or branded as required in this chapter, "except for the actual consumption of himself and family. The prohibition contained in section 2516 above quoted is general. No one "shall have in his possession, except in the manner and subject to the regulations in this chapter provided."

I have called attention to the remaining clauses of the law to show that there is no exception in favor of having in possession any yellow substitute for butter. Any substitute for butter which may be manufactured may be kept by one for actual consumption for himself and family without being branded or marked as required, but this exception does not apply to yellow oleomargarine or substitute for butter.

It is evident that the entire provision with reference to the sale of oleomargarine or a substitute for butter is intended to prevent fraud and deceit being practiced upon the public, or any part thereof. It may be said that one knowingly having in his possession for the use of himself and family a yellow substitute for butter, is not deceived thereby, and that a construction of law which would prohibit anyone having in his possession for his own use a yellow substitute for butter, unnecessarily interferes with private rights. Such an argument, however, should be addressed to the general assembly. It is competent for the general assembly to prohibit anyone from having in his possession any yellow substitute for butter, even for his own use, if, in the judgment of the legislature, such a prohibition is necessary, or a proper provision to prevent the evasion of a law, or its violation, which law is wisely made to prevent fraud and deceit being practiced upon the public.

I am of the opinion that the law prohibits anyone having in his possession a substitute for butter colored yellow, although it may be intended for the use of himself and his family. Yours truly,

MILTON REMLEY,

Attorney-General.

WITHHOLDING PROPERTY FROM ASSESSMENT-Penalty-In construing section 1374 of the code, it is held to mean that if the delinquent taxpayer pays the amount of tax which would have been assessed against him had he listed his property, together with 6 per cent. interest thereon, he is discharged from further liability. The treasurer is not authorized to conclude in his own mind, with or without evidence, that there had been a fraudulent withholding of property from assessment, and demand a penalty.

DES MOINES, Iowa, January 9, 1900.

D. W. Hamilton, Esq., Sigourney, Iowa:

DEAR SIR-Yours of the 5th inst. came to hand yesterday. In reply I will say that a careful examination of section 1874 requires that the treasurer should demand the amount the property should have been taxed in each year the same was withheld, etc., together with 6 per cent. interest thereon from the time the tax would have become due and payable had such property been listed and assessed."

In other words, when property is discovered which has not been listed, it is the duty of the treasurer to demand the amount which would have been paid as taxes had the property been listed, together with 6 per cent. interest thereon. There is nothing up to this point in the section which implies that there is any penalty beyond the interest, and suppose the delinquent taxpayer pays the amount that is demanded within thirty days, could an action be maintained against him? I think not. There is nothing which suggests to my mind that the treasurer may have a hearing to determine whether the tax has been fraudulently withheld or not; nor would it be in accord with the spirit of our law to permit him to determine it in any star chamber proceed

ings of which the other party had no notice or an opportunity to be heard. I think the statute fairly means that if the delinquent taxpayer pays the amount of tax which would have been assessed against him had he listed his property, together with 6 per cent. interest thereon, he is discharged from further liability.

Referring to the latter part of said section, a failure to pay within thirty days, with all accrued interest (no penalty stated), gives a right of action to the treasurer. Until such failure has been made, no right of action exists. We come now to the last clause: "And when such property has been fraudulently withheld from assessment, there shall be added to the sum sound to be due a penalty of 50 per cent. upon the amount, which shall be included in the judgment." This evidently refers to the trial of the cause and the entry of the judgment. If the evidence on the trial shows the court that the property has been fraudulently withheld, then it is authorized to add a penalty of 50 per cent. which shall be included in the judgment. I do not think a fair construction of this section would authorize the treasurer to conclude in his own mind, with evidence or without evidence, that there had been a fraudulent withholding of property from assessment, and demand a penalty.

There are cases where a penalty is imposed on account of failing to pay a fixed sum, or an ascertained sum, at a given time. For instance, delinquent taxes bear a usurious rate of interest as a penalty. But I know of no case where any officer of the state or county may assess up a penalty for a fraudulent or an illegal act. It is one of the fundamental doctrines of our system of government that there must be a notice before a hearing, and nothing can be determined except upon a hearing after due notice. I am very clear that the legislature never intended to give to the treasurer such extraordinary powers without providing for a notice and a hearing to the person against whom the penalty is assessed.

Yours truly,

MILTON REMLEY,
Attorney General-.

GAME WARDEN--His duties as such do not require him to prosecute for the killing of deer, when owned by a private person. The wrong is a private one and not a public one.

DES MOINES, Iowa, January 26, 1900.

Hon. Geo. E. Delavan, Estherville, Iowa:

DEAR SIR-Your favor of the 24th inst., enclosing a letter from J. O. Walton, duly at hand. You ask whether you have jurisdiction of the matter. The matter referred to is concerning two deer which escaped from their owner and strayed away and were shot and killed by a man in violation of chapter 65, acts of the Twenty-seventh general assembly.

There was unquestionably, under the facts stated, a violation of the law. It is not made your especial duty to prosecute where private rights have been trespassed and injury done to private persons, although the act constitutes a violation of the criminal law. You as a citizen of the state have the right to file an information, and to begin prosecution for the violation of any law of the state. The owner of the deer in question is the one especially