(SnrtifU Cam Srljnnl SJibrarg ''''''iiiiiiimiuiiiiSteSXf aeneral relating t 3 1924 024 672 820 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024672820 OPINIONS OF ATTORNEYS GENERAL RELATING TO DUTIES OF COUNTY OFFICERS Published in Pursuance of Chapter 8, Acts of the 35th General Assembly By JOHN L. BLEAKLY Auditor of State Compiled by J. F. WALL Chief Clerk County Accountiag Department DES MOINES ROBERT HBINDBBSON, STATB PEINTBR 1914 ^^ ^ OPINIONS OF ATTORNEYS GENERAL RELATING TO DUTIES OF COUNTY OFFICERS Published in Pursuance of Ctiapter 8, Acts of the 35th General Assembly By JOHN L. BLEAKLY Auditor of State Compiled by J. F. WALL Chief Clerk County Accounting Department 1914 KOBEKT HHNDEKSON, STATE PRINTER DES MOINES 6^-5^^ 1 i^SHtS'i, FOREWORD The following contains opinions of Attorneys General covering a period from 1895 to May 1, 1914, relating to duties of county officers presented with a view of assisting county officers in the discharge of their official duties as required by law. Respectfully submitted, John L. Bleakly, Auditor of State. ATTORNEY GENERAL'S OPINIONS County Attorneys Legal Advisee of Local Officials. To all County and Township Officers of Iowa: So many requests for opinions are being daily received by the Department of Justice and the number is increasing so rapidly that it is now very seriously interfering with the regular ofScial duties of this office. These requests come from all county and township officers and many private citizens. One man is giving substantially his entire attention to these opinions but is unable then to answer the multitude of inquiries constantly being received. The county attorney is the official legal adviser of all county officers. Paragraph 7 of section 2 of chapter 17, Acts of the Thirty-third General Assembly, provides that it shall be the duty of the county attorney "to give advice or his opinion in writing without compensation to the board of supervisors and other county officers when requested so to do by such board or officer, upon all matters in which the state or county is interested," etc. Inasmuch then as county attorneys are by law made the official legal adviser of all other county officers, all requests for opinions from county and township officers should first be made direct to the county attorney, and in the event that he has doubt about the proposition after duly considering the matter he may receive an opinion from the attorney general. Generally speaking in matters of local concern the opinion of the county attorney should be accepted as conclusive but in mat- ters of state wide interest, if the question is doubtful and the law subject to various interpretations, the county attorney by submit- ting his request and stating specifically his views upon the ques- tion and his reason and authority relied upon, can receive an opinion from this office, but in all requests for opinions the county attorney should set forth his views specifically and the authorities relied upon for his position. This will save confusion, greatly relieve this office and tend to uniformity. Very respectfully, George Cosson, Attorney General of Iowa. 6 ATTORNEY GENERAL'S OPINIONS SCHEDULE G. Bonds. — Are binding ordinarily only for the term of office for which the principal is elected or chosen, and while by special agreement it might be extended beyond this term, the agree- ment extending it should be definite as to duration. SiE: I am in receipt of your communication of the 21st of Oc- tober enclosing copy of official bond given by Mr. Swisher as treas- urer of the State University of Iowa. The bond covers the term beginning July 1, 1909, and ending June 30, 1910, inclusive, and further provides that said bond shall cover said entire period, "also the terms of any and all successive re-elections by the State Board of Education of the said Lovell Swisher to the said office of treas- urer of the State University of Iowa." You request an opinion as to whether this is a valid, continuous bond covering successive terms of his election as indicated in the clause above mentioned, and whether it will obviate the necessity of giving a new bond at each successive re-election. It is elementary law, in the absence of a special agreement to the contrary, that a bond is only valid for the term for which it is given, and without passing upon the validity of the bond where it is given in perpetuity, I am of the. opinion that it would be un- wise to accept a bond which is unlimited as to time. I suggest that in order to avoid the necessity of the giving of a bond each year with each succeeding election, that the bond be made for the current term, and for the term of each and every successive re- election not to exceed four years from the date thereof. The bond ought to be made to cover the duties then existing with any addi- tional duties devolving upon said treasurer or created by law. The term of four years of course is wholly arbitrary but a four- year period commends itself as reasonable and in consonance with good business principles. Yours very truly, George Cosson, Attorney General of Iowa. Insane Persons — Settlement. — ^Where a wife has resided with her husband in a county of this state for six months when she is adjudged insane and committed to the hospital, and the hus- band continues to reside in such county for the remainder of the year required to establish his settlement in the county, that county becomes the legal settlement of the wife. ATTORNEY GENERAL'S OPINIONS 7 Sirs: I am in receipt of your communication advising that a Mrs. Sloan was adjudged insane by the Commissioners of Insanity of Wapello County, Iowa, something like one year ago, and com- mitted to the State Hospital at Mt. Pleasant. That prior to May 12, 1909, Mrs. Sloan had been confined in the State Hospital for the Insane in the State of Minnesota, and on said date was paroled from that institution and later was discharged from said hospital. Immediately after May 12, 1909, Mrs. Sloan, with her husband, came to Iowa with the intention of establishing their residence in this state.. They first came to Bremer County, Iowa, where they remained for about four months and then removed to Wapello County, Iowa, where Mr. Sloan procured employment and estab- lished a home and they continued to live there until Mrs. Sloan was adjudged insane and committed to the hospital as stated; that the period they so resided in Wapello County before her commit- ment was about six months and that Mr. Sloan, after his wife's commitment in said hospital, continued to make Wapello County his legal residence and home, and is his legal residence at this time. I understand further that no notice was served either upon Mr. Sloan or Mrs. Sloan to prevent them, or either of them, from ac- quiring a legal settlement within Wapello County. Upon the foregoing state of facts, you request an opinion as to whether Mrs. Sloan acquired a legal settlement in Wapello County such as to charge that county with liability for her maintenance in the hospital. I am of the opinion that under the facts and circumstances set forth, Mrs. Sloan acquired a legal settlement in Wapello County, and that Wapello County is liable for her maintenance in said hospital. This conclusion is supported by Section: 2224 and 2226 of the Code, Sections 2270 and 2727-a-28-a of the Supplement to the Code, 1907, and the following cases: Washington County vs. Mahaska County, 47 la., 57; Scott County vs. Polk County, 61 la., 616; Oilman vs. Heitman, 137 la., 333, and other eases and provisions of the statute. Respectfully, George Cosson, Attorney General of Iowa. 8 ATTORNEY GENERAL'S OPINIONS Teachers' Certificates. — When once registered need not be re- registered; a single registration is sufficient and extends throughout the life of the certificates. Sir: — Your letter of the 17th instant addressed to the attorney general has been referred to me for reply. You call attention to section 11 of chapter 130, acts of the Thirty-fourth General Assembly and propound the following question : "May the county superintendent fix any time limit as to the registration of certificates? In other words, may the county superintendents require certificates to be registered annually ? ' ' Prior to the acts of the Thirty-fourth General Assembly Code Supplement section 2734-q provided: "No person shall teach in any public school in this state whose certificate has not been registered with the county superintendent of the county in which such school is located. A registration fee of one doUar shall be charged for each year, or part of the year, for which the certificate or diploma is registered. All registration fees shall be paid into the county institute fund." Under the law as it then stood it is clear that a registration fee of $1.00 could be charged for each year or part of year for which the certificate is registered and it would indicate that same should be registered each year, but by section 12 of chapter 130 of the Thirty-fourth General Assembly, all of the underscored portion of the section above quoted was stricken out, with the intention, doubtless, to repeal the provisions requiring payment of registra- tion fee. So that under the section as it now stands, no fee is pro- vided for registration of certificates, hence, I am of the opinion that a certificate once registered in a particular county need not be registered but would be effective in that county without further registration during the entire period for which it was issued. There would be no purpose in having same registered inasmuch as the registration fee is abolished. The registration fee of $1.00 now provided for by section 2738 of the Code Supplement as now amended, is not a fee for regis- tration of certificate but registration of person applying for cer- tificate or desiring to teach and must be paid each year as follows : ATTORNEY GENERAL'S OPINIONS 9 First. Each applicant for certificate, $1.00. Second. Each person desiring to teach in the county not hav- ing already paid under above provision for the year and in the county in which she desires to teach, $1.00. If this $1.00 is not paid at time of enrollment at the normal institute it should be paid when certificate is applied for and each year thereafter when the certificate-holder engages by contract to teach. Respectfully submitted, C. A. EOBBINS, Special Counsel. July 19, 1911. Hon. a. M. Detoe, Superintendent of Puilic Instruction. Soldiers. — The wife of a soldier who is dependent may be received into the Soldiers' Home at Marshalltown although the husband elects not to remain in the Home. GrENTLEMEN : — I am in receipt of your communication of the 1st instant advising that ' ' a soldier and his wife married prior to the year 1885; were properly received in the Soldiers' Home at Mar- shalltown and remained therein for considerable time as members. The husband, without the consent of the wife, asked for the dis- charge of both, and both were discharged. When this fact came to the knowledge of the wife, she protested and asked that she be re-j instated. It appears that she has not been provided with any home by the husband;" and requesting an opinion as to whether under the above facts she may now be reinstated ; or in other words, as to whether the wife of a soldier, where both are qualified for membership, may be received into the Home or retained therein after admission if the husband be not a member of the Home. Under the facts stated by you, that both husband and wife are qualified for membership, and that both were duly and legally ad- mitted into the Home, I am of the opinion that she may now be received and reinstated considering that she is dependent and that her husband neglects or refuses to furnish her a home, notwith- standing that the husband prefers to remain away from the Home. Section 2601 of the Code; Section 2602, Supplement to the Code, 1907. Eespectfully, G-EOBGB Cosso2sr, Attorney General of Iowa. August 3, 1911. Honorable Board op Control OF State Institutions. 10 ATTORNEY GENERAL'S OPINIONS Schools. — School corporations may legally adopt or change text books without advertising for bids, but must advertise for bids when they purchase text books either for cash or exchange. SiE : — In yours of the 13th inst. you request an opinion upon the following question: "Can the school board of cities, towns, or any school cor- poration, under sections 2824 to 2837 legally adopt- text books, change text books and contract for the same without adver- tising for bids?" The question as written really embraces three distinct matters, and might be subdivided as follows: IstT Can the school corporation legally adopt text books, with- out advertising for bids? 2nd. Can it change text books without advertising for bids? 3rd. Can it contract for the same without advertising for bids ? Clearly, there is no reason or necessity for advertising for bids in connection with the adoption of text books, as provided ia Code section 2824, nor would there be any reason or necessity for adver- tisement for bids, in order that a change in books may be made in accordance with the provisions of Code section 2829. "Where, however, it is sought to purchase books already adopted, whether they are to be paid for in cash or part cash and the re- mainder by the exchange of old books, as provided in Code section 2826, then and in each instance the contract of purchase or ex- change should not be made until bids have been advertised .for and made in accordance with Code section 2828. Respectfully submitted, George Cosson, Attorney General of Iowa. September 15, 1911. Hon. a. M. Deyob, Superintendent of Puilic Instruction. Calendar Year. — The words "in any one year" mean a calendar year. Gentlemen: — I am in receipt of your communication of the 21st instant requesting an opinion as to the meaning of the words ATTORNEY GENERAL'S OPINIONS H "in any one year" as found in section 2489-e Supplement to the Code, 1907. Personally I am of the opinion that it was the legislative intent in using the phrase "in any one year" in our statute to mean a period of twelve months, unless there was something in the context clearly indicating that a fiscal or calendar year was intended ; but our supreme court in the case of Sawyer vs. Steinman, 126 N. W., page 1123, held that the phrase "in any one year" meant the year of our Lord and therefore a calendar year. There was a dissenting opinion filed in this case. The majority opinion, however, having announced this rule of law, it becomes my duty to follow the ruling of the supreme court and I therefore in answer to your inquiry hold that the words "in any one year" mean a calendar year. Eespectfully submitted, George Cosson, Attorney General of Iowa. September 22, 1911. HONOEABLE EXECUTIVE COUNCIL OF THE State of Iowa. County Superintendent. — A special primary state certificate is- sued under section 2630-b of the Code Supplement does not render the holder eligible to the office of county superintendent under Code section 2734-b. To be eligible, the party must have a first grade certificate, a state certificate or a life diplo- ma, as provided by the last section. The state superintendent cannot obtain at the expense of the county superintendent a special report unless the report is one required by law to be made by the county superintendent. Code Supplement, sec- tion 2622. Sir: — In yours of the 26th ultimo you propound the following question : "Will a special primary state certificate, issued under sec- tion 2630-b, Supplement, enable a candidate to qualify for the office of county superintendent under section 2734-b, Supple- ment?" 12 ATTORNEY GENERAL'S OPINIONS The first section to which you refer provides: "The educational board of examiners may issue a special certificate to any teacher of music, drawing, penmanship or other special branches, or to any primary teacher, of sufS- cient experience who shall pass such examination as the board may require ia the branches and methods pertaining thereto for which certificate is sought. Such certificate shall be desig- nated by the name of the branch and shall not be valid for any other department or branch." The last section referred to in your inquiry reads: "The county superintendent, who may be of either sex, shall be the holder of a first grade certificate as provided for in this act, or. of a.. state certificate or a life diploma." It would seem to be clear that the special certificate mentioned in the first section quoted is in no sense either a first-grade certificate or a state certificate, and hence, this inquiry should be answered in the negative. Your second question is: "Can the Superintendent of Public Instruction send a rep- resentative to secure a special report, which he deems neces- sary, requested of a county superintendent, but which the county superintendent neglects or refuses to give ? If so, must the county superintendent defray the expenses of such repre- sentative?" Code Supplement, section 2622, provides: "When any county superintendent fails to make any report as required of him by law, the superintendent of public in- struction may appoint some suitable person to perform such duties and fix reasonable compensation therefor, which shall be paid by the delinquent county superintendent." Hence, it will be observed that the county superintendent would not be required to pay the expense of procuring a special report which was deemed necessary by the state superintendent, but only such ' ' report as required of him by law. ' ' If the delinquent report was one required by law, then the expenses of the representative in procuring the same should be paid by the delinquent county superintendent. EespectfuUy yours, George Cosson, Attorney General of Iowa. April 27, 1912. Hon. a. M. Deyoe, Superintendent of Public Instruction. ATTORNEY GENERAL'S OPINIONS. 13 Patent Medicines — Sale of. — One may sell patent medicines from Ms fixed place of business without being required to pay an itinerant vendor's license. January 4, 1911. Mr. M. F. McDeemott, Wilton, Iowa. Dear Sir : Eeplying to your inquiry will say that if the patent medicines are sold only from your fixed place of business, you would not be required to pay an itinerant vendor's license, even though you deliver the medicines in connection with other com- modities after the same had been purchased at your fixed place of business. Tours truly, C. A. RoBBnsrs, Special Counsel. Drainage Warrants — Interest. — Under code supplement section 483 interest may be paid on drainage warrants. January 5, 1911. Hon. Herbert B. Hadley, Nevada, Iowa. Dear Sir: I beg to acknowledge receipt of your favor of the 3d instant referring again to your request of the 6th ultimo for an opinion from this office as to the right of the county treasurer to pay interest on drainage warrants presented to him and by him stamped unpaid for want of money, the board of supervisors hav- ing prior to the issuance of such warrants directed the county treasurer to pay interest thereon at the rate of six per centum per annum. From such investigation of the law bearing upon the question submitted as I have had the opportunity to make, I will say that the county treasurer under the circumstances recited would be authorized to allow interest on such warrants at the rate of five per centum per annum. I do not think the resolution of the board of supervisors is any authority for the treasurer to pay interest on drainage warrants. But under section 483, supplement to the code, 1907, he would be authorized to pay interest on warrants properly drawn at the rate mentioned. 14 ATTORNEY GENERAL'S OPINIONS Where drainage improvement certificates or drainage bonds are issued in connection with the establishment and construction of the drainage district, the board of supervisors is authorized ^;o fix the rate of interest Tipon such securities at a rate not exceeding six per cent per annum, but this does not extend to drainage warrants, and if the holder of such a warrant as you describe is entitled to interest at all thereon, it is by virtue of the section of the supple- ment to the code cited. That section being general in its termsk and the county treasurer being the custodian of all drainage funds and which are paid out by him upon warrants issued by the county auditor, and drainage taxes being collected in the same manner as ordinary county taxes, it would seem to follow that no different rule would apply to such warrants in respect to the pay- ment of interest than applies to other warrants drawn upon the county treasurer. Yours very truly, N. J. Lee, Special Counsel. Poll Taxes — ^Who Liable. — In order to be liable for the 50c poll tax the party seized to be charged must have been at least 21 years of age at the time the assessment was made, and one reaching that age after the assessment is completed and the books returned is not liable. One reaching the age of 21 years during the period within which labor upon the road is to be performed as road poll tax, that is between the first day of April and the first day of October, is liable for such tax. (Code supplement section 1550.) January 11, 1911. Me. R. a. Lawhead, Mt. Ayr, Iowa. Dear Sir : Replying to yours of December 29th with reference to the liability for poll tax of a person reaching' the age of twenty- one years after January 1st of any year, will say that in my opin- ion in order to be liable for the fifty-cent cash poll tax, the party taxed must have been of the age of twenty-one years at the time the assessment is made by the assessor for this tax is levied on the returns made by him, and that a party who reaches the age of twenty-one years after the assessment is completed and the books ATTORNEY GENERAL'S OPINIONS 15 returned, would not be liable for that tax. A different rule, how- ever, would apply to the road poll tax provided for in section 1550 of the code supplement. There the provision is that all able bodied male residents of his district between the ages of twenty-one and forty-five shall be required to perform two days' labor upon the roads between the first days of April and October of each year, and it is my opinion that if the party reaches the age of twenty- one years at any time during this period that he may be required to perform the labor or pay the penalty provided in section 1552. The exemption provided by section 2209 of the code in favor of oflScers and soldiers, and also the exemption in favor of members of the fire company would apply in each instance. Yours truly, C. A. ROBBINS, Special Counsel. County Attorney — Expenses While Attending Court at the County Seat When Not His Residence. — Under code supple- ment section 308 the county attorney is entitled to actual ex- penses while attending to his official duties at places other than the county seat and other than his place of residence, but is not entitled to such expenses while attending court at the county seat when that is not his residence. January 20, 1911. County Attorney Chas. W. Scholz, Guttenberg, Iowa. Dear Sir : Yours of January 14th asking for a construction of section 308 of the code supplement, 1907, and especially as to whether or not said section authorizes a county attorney to be reim- bursed for his actual expenses while attending to his official duties at the county seat when the county seat is not his place of residence, has been duly received. The statute is not very clear and I have been unable to find any decision that will throw any light upon the question pronounced; however, an examination of the original statute section 11 of chap- ter 73 of the acts of the twenty-first general assembly reveals the fact that the provision was therein worded somewhat differently, the language being: "shall be entitled to his necessary and actual expenses incurred attending the discharge of his duty at a place 16 ATTORNEY GENERAL'S OPINIONS other than his place of residence and the county seat, which shall be audited," etc. The change of the present form was made at the time of the revision of the code, that part of the section being re- written and shown on page 67 of the Black Code, but while the language was rewritten, there was no intention to change the com- pensation of the county attorney as is indicated by the language shown at page 5 of the code commissioners' report, wherein they used the following language: "No changes in * * * compensa-' tion of county officers have been recommended though in a few instances there are changes as to fees to be charged and such fees are to be accounted for by the officer receiving them." So that on the whole I am of the opinion that the statute as it now reads should be construed as though it read "at a place other than his residence and other than the county seat" and it neces- sarily follows that if this is the correct construction that the coimty attorney would not be entitled to expenses while attending his of- ficial duties either at the place of his residence or at the county seat. You will understand that it is not the duty of this office to render official opinions except to certain state officers, but out of courtesy to you I have given my personal views on the matter. Yours very truly, C. A. Bobbins, Special Counsel. Cities — Under Commission Form of Government — Assessor. — A city council under the commission form of government has the right to select the assessor under code supplement section 1056- a26, and to terminate the offices in force prior to their election to council under code supplement section 1056-a20 ; and where this has been done the assessor thus chosen rather than the as- sessor of the township in which the city is located is the law- ful assessor for the city. January 23, 1911. Mr. Theodore A. Craig, Keokuk, Iowa. Dear Sir : Yours of the 19th calling my attention to your former letter of the 2d instant duly received, and will state that your former letter was received at a time when the office was changing hands and had been overlooked until receiving your second letter. ATTORNEY GENERAL'S OPINIONS 17 In your first letter you state that Jolin A. Dimond was elected as assessor in Jackson township inside the city of Keokuk which is a township having the same boundary as the city, and that subse- quent to the election the city council (Keokuk being under the commission form of government) elected S. H. Johnson as city assessor. The question now rises whether the city assessor in the city of Keokuk should also act as township assessor and whether his selection by the city council entitles him to act, the substance of your inquiry being as to which of the two parties so chosen is rightfully entitled to the office of assessor. Assuming that prior to the election in November, 1910, the boundaries of Keokuk coincided with the boundaries of Jackson township, I am at a loss to know why a township assessor was elected, as the law only contemplates the election of a city assessor in such cases. See code sections 647 and 648; also section 650 which provides that the term of office of the assessor shall com- mence on the first day of January next ensuing his election. It is only in townships where the boundary lines thereof include territory other and in addition to that included within the corporate limits of the city or town, that a township assessor is also to be elected. Code section 565 as now amended by chapter 37, acts of the thirty-third general assembly. So that it occurs to me that the assessor which you say was chosen by Jackson township at the elec- tion in November, 1910, was in all probability an assessor elected by the city of Keokuk rather than by Jackson township, but be that as it may, the city having adopted the commission form of govern- ment, its council had the right to select the assessor under code supplement section 1056-a26, and also had the right to terminate the office in force prior to their election to the council, under code section 1056-a20. Assuming that they have so done, the assessor of their selection would be entitled to and should perform the duties of the office. Yours truly, C. A. EOBBINS, Special Counsel. 18 ATTORNEY GENERAL'S OPINIONS Justices of the Peace — Fees for Marriage Ceremony. — ^While a justice of the peace wko perforins a marriage ceremony is not required to charge the $2.00 fee allowed by law there- for, yet if he does make this charge it is on account of the service rendered in his official capacity and he should account for same under provision of code supplement section 4680. January 25, 1911. Mb. Chas. J. Haas, Marion, Iowa. Dear Sir: Yours of December 28th addressed to the attorney general has been handed to me for reply, and while as you are aware that it is not the duty of this office to render official opin- ions except to certain state officers, will say that I have given the matter some little attention and made some examination of the authorities, and while I have been unable to find any decisions of our own supreme court, I call your attention to the case of Austin vs. Johns, 62 Texas, 182, where by an ordinance it was provided that an attorney was to have ten per cent of all moneys collected by him, and also certain fees for actions brought by him, and it was held that he was entitled to the ten per cent of the moneys collected in addition to the fee provided in civil as well as criminal cases; also the case of Calloway vs. Henderson, 24 S. W., 437, where under a statute providing that the county clerk should render to the county court a statement of fees received and salaries paid deputies and assistants, and that the aggregate amount any clerk should retain for his serv- ices for any one year was eighteen hundred dollars, it was held that such settlement of the clerk must include "all fees for all services of whatever character done in his official capacity" and that he could not retain an additional four hundred dollars re- ceived in connection with his duties in keeping accounts between the treasurer and the county. See also Board of Commissioners of Hennepin Co. vs. Dickey, 90 N. W., 775, where it was held that the clerk's salary fixed should be in full for all services rendered in his official capacity, and that where he had during office hours furnished reports with reference to judgments and other liens entered in his office to abstract companies and commercial agencies, which reports were not authenticated, it was held that he was required to account for moneys received from the abstract companies and commercial ATTORNEY GENERAL'S OPINIONS 19 agencies for these reports even though he could not have been required to furnish the information except by furnishing an authentic copy of the record, so that on the whole I am inclined to the opinion suggested by you, that while the justice of the peace who performs the marriage ceremony is not required by statute to charge and collect the two-doUar fee, the statute read- ing "any person authorized to solemnize marriages may charge two dollars in each case for officiating and making returns," yet if he does make this charge it is on account of services rendered in his official capacity and he should account for the same under the provisions of section 4680 of the code supplement Yours truly, C. A. ROBBINS, Special Counsel. Peddlers — Hucksters — Feuit and Vegetables. — A peddler in- cludes transient merchants and itinerant vendors selling by sample or taking orders for future or immediate delivery. Code Supplement section 1347-a. To consitute an itinerant ven- dor it is not necessary that the person should travel all the time and have no fixed place of sale. Huckstering is carried on by persons who go from house to house buying from the farmer and selling either to customers or dealers at wholesale or retail. Timothy seed thus purchased and sold is a fruit as well as a vegetable and hence comes within the exception and one engaged in buying and selling the same is not required to have a license. January 27, 1911. Me. H. J. Mantz, County Attorney, Audubon, Iowa. Deae Sir: Yours of the 24th instant addressed to the attorney general has been referred to me for reply, and your question briefly stated is whether or not a farmer residing in your county who is a part of the time engaged in handling, buying and selling grass seed at public sales and other public gatherings by taking orders for future as well as immediate delivery, the seed being bought in large quantities and retailed to customers at various places, he hav- 20 ATTORNEY GENERAL'S OPINIONS ing no regular place of business where the seeds are stored or kept for sale or displayed, is a peddler within the purview of section 1347-a code supplement. It will be seen by an examination of this section that the term "peddler" shall be held to include and apply to all transient merchants and itinerant vendors selling by sample or by taking orders whether for immediate or future delivery. Our supreme court has said: "We do not understand that the term 'transient mer- chant' has reference to the residence of the individual. It more properly relates to the character of the business carried on by him." Oitumwa v. Zekind, 95 Iowa, 624. The defendant in that case being a non-resident of the plaintiff city, so that it would seem that the farmer in the case supposed by you would be a transient merchant within the meaning of this section. Our court has also said : "To constitute an itinerant vendor it is not necessary that the person should travel all the time and have no fixed place of sale. He may have a place of business where he sells his goods during a part of the time and he may travel for the sale of his medicines at other times." Snyder v. Closson, 84 Iowa, 186. So that it would seem that the party you have in mind would also be an itinerant vendor within the meaning of the law, md if he is either a transient merchant or an itinerant vendor, he would come within the statutory definition of the word "peddler" as defined in this section; however, it remains to be seen whether or not he would come within any of the exceptions provided for in the latter part of the section. While you say nothing in your letter about his making use of a wagon to transport the seed from the place of purchase to the place of sale or delivery, yet I presume that this must of necessity be the method of transportation employed, and if so, the question would arise whether or not he would be running a huckster wagon within the meaning of the section. The term ATTORNEY GENERAL'S OPINIONS 21 "huckster" signifies a petty dealer and a retailer of small articles of provisions, etc. Webster's Dictionary. "Huckstering is defined to be a business carried on by persons who go from house to house buying from the farmer and afterwards selling either to customers or to dealers at wholesale or retail." Cyc. Vol. 21, page 1116. And it would seem that this definition would be broad enough to cover the business in which the farmer you mention is engaged. If he could be held to be selling or distributing fruit or vegetables he would come within the exception. "Fruit is the natural product of trees, bushes or other plants. ' ' Anderson's Law Dictionary. "Fruit is the produce of a tree or plant which contains the seed. This term in legal acceptation is not confined to the produce of trees which in popular language are called fruit trees. ' ' Bouvier's Law Dictionary. The term "vegetable" has been held to apply to and cover beans in either dry or natural state even though they would also come within the definition of seeds. Robertson v. Salamon, 130 U. S., 412. In view of these definitions and in view of the fact that it is doubtful whether or not the legislators intended to prohibit promiscuous dealing in farm products, it is my judgment that the court would hold that the party would come within one or more of the exceptions mentioned in the latter part of this sec- tion and would therefore not be required to take out a license. Yours very truly, C. A. RoBBiisrs, Special Counsel. 22 attorney general's opinions Justices and Constables — Teial Fee in Default Cases. — Neither the justice of the peace nor constable is entitled to a trial fee in a civil default case as there would be no trial within the meaning of the law. Mr. Jas. D. Dunlavy, January 28, 1911. Harlan, Iowa. Dear Sie: Yours of the 24th inst. addressed to the attorney general has been referred to me for reply Your first question is, "Are the justice and constable per- mitted to charge and collect a trial fee in civil default cases?" Your second question is, "Where a prisoner pleads guilty are they then allowed the one dollar trial fee as part of the costs?" Answering the first question, will say that neither the justice nor constable would be entitled to trial fee in civil default cases, as there would be no trial within the meaning of the law. Answer- ing the second question, will say that section 4598, subdivision 14, allows the constable for attending each trial in a criminal case one dollar, and I am of the opinion that if in a criminal case the constable is notified to attend and does attended for the pur- pose of trial and the defendant at the time assigned for trial enters a plea of guilty, that the constable would still be entited to the trial fee. However, I do not believe he would be entitled to this trial fee if the defendant when first arrested and arraigned enters the plea of guilty, and I think the same rule should apply in the case of a justice where the ease is assigned for trial on a particular day and he attends for the purpose of that trial. The fact that the defendant may change his mind and enter a plea of guilty ought not to deprive the justice of the trial fee, pro- vided for in paragraph 21 of section 4598, yet the justice would not be entitled to this fee if the defendant when first arraigned before him entered the plea of guilty, for then the fee would be gov- erned by subdivision 7 of section 4597. Your third question with reference to the taxation of fees for three game wardens and only one filed the information, I am unable to answer without having further facts before me than those stated in your letter. If the others were summoned as witnesses and attended for that purpose, it is possible they would be entitled to a fee also. However, I would suggest that you take the matter up with your county attorney and be governed by his advice, as this department is not authorized to give opinions except to state ofSeers and the foregoing are simply the personal views of the writer. Yours truly, C. A. Bobbins, Special Counsel. attorney general's opinions 23 Sheeipp — Agent of the State in Requisition Matters — ^Mat Retain Mileage. — Since the enactment of chapter 35, acts of the thirty-third general assembly, a sheriff who acts as an agent of the state is not required to account for the. mileage earned under section 5169 but may retain the same. February 6, 1911. Mr. Lee N. Dowis, Centerville, Iowa. Dear Sir: Yours of the 1st instant addressed to the attorney general has been referred to me for reply. Your question in brief is whether or not the sheriff as the agent of the state under section 5169 of the code is entitled to retain the mileage therein specified in addition to his salary, or must he account for the same? It will be observed by an examination of this section that it is no part of the official duty of the sheriff to act thereunder; any other person may be the agent as well as the sheriff. I also call your attention to chapter 35 of the acts of the thirty-third general assembly amending section 510-a of the code supplement, and in my judgment the effect of this last amend- ment is to relieve the sheriff from the duty of accounting for mileage either in civil or criminal cases. My opinion is that in view of these statutes the sheriff is entitled, to retain the mileage under section 5169, and is not required to account therefor. Yours truly, C. A. ROBBINS, Special Counsel. National Banks — Loan and Trust Companies — Assessment op. — Real estate belonging to national banks should be assessed at its real value the same as other real estate. The capital stock in such banks should be assessed at its real value rather than its par value. February 10, 1911. Mr. J. Sid Anderson, "Waterloo, Iowa. Dear Sir: Yours of the 7th inst. addressed to the attorney general has been referred to me for reply. I cannot however com- ply with your request to compute the amount to be assessed to 24 ATTORNEY GENERAL'S OPINIONS national banks, the loan and trust companies. and the state savings banks in the instances which you cite for these reasons : First. I take it that you have listed the capital stock at its par value, rather than at its real value. Second. The time required to compute the tax in each instance would be such a draft upon the time of this office that we could not undertake it in any given case. However, I will say that the real estate in each instance should be assessed the same as other real estate. The surplus and un- divided earnings the same as other property of the kind. The capital stock should be assessed at its real value, in other words, if a share of $100.00 par value was worth 150 cents on the dollar, it should be assessed at its real value rather than its par value, and from the capital stock in each instance should be deducted the amount of capital invested in government bonds, if any. I note your position that no act of the present legislature will have any effect on the present assessment of bank stocks. Some courts have held that the legislature has power to pass a law and make it applicable to an assessment then being taken, and will say for your information that there are bills now pending in the present legislature, designed to furnish an immediate remedy, whether they will pass or not of course cannot now be determined, but I would suggest that the assessment of all bank stock and loan and trust companies be deferred, if possible, until it is ascertained whether or not these laws pass, and whether they will afford any immediate relief. You will understand' that this department is not authorized to give official opinions except to state officials and that the foregoing is simply the personal opinion of the undersigned. Yours very truly, C. A. ROBBINS, Special Counsel. Iowa National Guaed — Members Exempt From Poll Tax. — Members of a national guard are exempt from payment of poll tax only during their term of service. February 11, 1911. Mr. William Seals^ Creston, Iowa. Dear Sir: Your of February 5th addressed to the attorney general has been referred to me for reply. ATTORNEY GENERAL'S OPINIONS 25 Inasmuch as you state in your letter that you have been dis- charged from the Iowa national guard, the fact that you were once a member of the guard, will not exempt you from the payment of poll tax. Code section 2209 exempts members of the guard from such tax only and during their term of service. Code section 891, however, requires only able bodied men to work or pay poll tax, and pro- vides that a party may obtain exemption by filing his affidavit setting forth his disability, and if the sunstroke of which you speak has disabled you, the filing of such affidavit would doubtless secure your exemption. You will understand that it is not the duty of this department to give official opinions to private persons and that what has been said is only the personal view of the undersigned. I return herewith the governor's letter as requested. Yours truly, C. A. ROBBINS, Assistant Attorney General. Cleek op the District Court — Fees in Naturalization Matters — Must be Accounted For. — Fees received by a clerk of the district court in connection with the performance of his duties in naturalization matters should be accounted for by him the same as other fees received for official duties performed. February 28, 1911. Me. Frank L. May, County Attorney, Lansing, Iowa. Deae Sie: Your letter of the 10th inst., addressed to the at- torney general, has been referred to me for investigation and reply. You state the question upon which the opinion of this depart- ment is desired as follows: "Must the clerk report the fees collected from naturalization matters, to the board of supervisors and pay said fees to the county? Or, do the fees so obtained belong to the clerk as compensation from the federal government for his labors ? ' ' The proper solution of this question requires the consideration of the statutes of the United States, as well as of this state, bear- ing upon the question, and to some extent their history. 26 ATTORNEY GENERAL'S OPINIONS Prior to the act of June 29, 1906, the statutes of the United States, bearing upon the naturalization of aliens, were contained in sections 2165-2174 inclusive of the revised statutes of the United States of 1878, which will be found printed at length on page 30 of the Iowa Code of 1897. It will be observed that no provision is made with reference to clerks' fees in either state or federal courts, and the only portions material to this investigation are : 1st. "He shall declare on oath before a circuit or district court of the United States, or a district or supreme court of the territories, or a court of record of any of the states having common law jurisdiction and a seal and a clerk * * * * his intention to become a citizen of the United States," etc. Sec. 2165. 2d. "That the declaration of intention to become a citizen of the United States required by section 2165, may be made by an alien before the clerk of any of the courts named in said section." (Added by act of February 1, 1876.) Section 13 of the act of June 29, 1906, to which you refer, pro- vides : "That the clerk of each and every court exercising jurisdic- tion in naturalization cases shall charge, collect and account for the following fees in each proceeding: "For receiving and filing a declaration of intention and issuing a duplicate thereof, one dollar. "For making, filing and docketing the petition of an alien for admission as a citizen of the United States and for the final hearing thereon, two dollars; and for entering the final order and the issuance of the certificate of citizenship there- under, if granted, two dollars. "The clerk of any court collecting such fees is hereby authorized to retain one-half of the fees collected by him in such naturalization proceeding ; the remaining one-half of the naturalization fees in each case collected by such clerks, re- spectively, shall be accounted for in their quarterly accounts, which they are hereby required to render the Bureau of Im- migation and Naturalization, and paid over to such bureau within thirty days from the close of each quarter in each and every fiscal year. * * * * "Provided, That the clerks of courts exercising jurisdiction in naturalization proceedings shall be permitted to retain one- ATTORNEY GENERAL'S OPINIONS 27 half of the fees in any fiscal year up to the sum of three thou- sand dollars, and that all fees received by such clerks in nat- uralization proceedings in excess of such amount shall be ac- counted for and paid over to said bureau as in case of other fees to which the United States may be entitled under the provisions of this act. The clerks of the various courts exer- cising jurisdiction in naturalization proceedings shall pay all additional clerical force that may be required in performing the duties imposed by this act upon the clerks of courts from fees received by such clerks in naturalization proceedings." The sections of our Code, to which you refer, have contained their present provisions since 1894 and provide as follows: Section 297. ' ' The clerks of the district courts shall receive as full annual compensation for all services the following:" (Amounts to be fixed by the board of supervisors, with a maximum limit graded according to population.) Section 296 provides : Par. 23. "For declaration of intention by an alien to be- come a citizen, twenty-five cents." Par. 24. "For all services _ on naturalization of alien, in- cluding oaths and certificates, fifty cents." Par. 30 (last line). "All of which fees shall be paid into the county treasury." Consideration should also be made of section 299, which provides : "The clerk of the district court shall report to the board of supervisors of his county at each regular session, a full and complete statement of the amount of fees received by him, which shall be verified by his affidavit, and pay such fees into the county treasury as hereinbefore provided."' It will be observed that at the time of the enactment of para- graphs 23 and 24 above referred to, there was no United States law fixing the fees to be charged in such eases, either by clerks in the state courts or in the United States courts, and it had been held, notwithstanding the provision of the United States statute, section 833, which provides that every clerk of the district court shall on the first days of January and July in each year make to the attorney general a written return for the half year end- ing on said days, of all the fees and emoluments of his office of every name and character; that neither the clerk of the United 28 ATTORNEY GENERAL'S OPINIONS States court nor his bondsmen were liable for moneys which he had received in naturalization matters, none of which were in- cluded in his returns above provided for. United States vs. Hill, 120 U. S., 169. See also United States vs. McMillan, 165 U. S., 504, which was decided in 1897, eleven years later and was to the same effect. In the first cited case it was shown by the agreed state- ment of facts, and referred to as significant by the court, "that the clerks of the courts of Massachusetts under a fee-bill much like ours, and a statute requiring them to make to the county treasurer yearly a return of all fees received by them for their official acts and services" were never required to include in their returns the fees received in naturalization cases. This was changed by the (Mass.) act of 1879, C300, which defined what the fees in such eases should be and directed the clerks to include them in their returns. So it would seem that inasmuch as clerks were not under the old law required to account for these fees, that the provision of the new law permitting the clerk "to retain one-half of the fees col- lected hy him" should be construed as meaning that he might re- tain the same in his individual capacity rather than in his capacity as clerk (where he is clerk of a state court). This provision, in my judgment, had the effect of abrogating paragraphs 23 and 24 of 296 of our code above referred to and leaves the amount of the fee as fixed by the federal statute. It may be said, however, that the state would have the power to require its officer (clerk in this case), to account for the fees received by him even though for the performance of some duty not imposed upon him by the state, but, as in this case, by the United States, and even though it were for some service outside of his official duties, and that hence the clerk should account to the county for^the one-half of these fees which the United States law permits him to retain in view of the fact that his compensa- tion is on a salary basis. The courts have gone at great length along this line, our own su- preme court holding that the clerk must account, under the gen- eral provision requiring such accounting, for fees earned by him as a member of the insane commission. Moore vs. Mahaska Co., 61 Iowa, 177. And by the supreme court of Missouri that the clerk should ac- count for fees earned in keeping accounts between the county treas- urer and the county. Calloway vs. Henderson, 24 S. W., 437. ATTORNEY GENERAL'S OPINIONS 29 And by the supreme court of Minnesota, that the clerk should account for fees received for reports furnished abstractors and commercial agencies, although unauthenticated. Hennepin Co. vs. Dickey, 90 N. W., 775. And by the supreme court of California, that he must even account for illegal fees collected by him. People vs. Hamilton Co., 37 Pac. 627. And by the supreme court of Nebraska, that he must account for fees earned in taking acknowledgments, etc., when he was also a notary public and acted as such. State ex rel Frontier Co. vs. Kelley, 46 N. W., 714. And in cases more nearly like the one under consideration, the supreme court of Oklahoma held that a probate judge should ac- count for fees earned by him in townsite matters, even though in these matters he derived his powers from an act of congress. Finley vs. Feratory, 73 Pac, 273. In this case the court says: ' ' The contention of plaintiff in error that the probate judge, while acting in town-site matters, is a separate and distinct office, is not well founded. The authority conferred in town- site matters by congress was an additional power and juris- diction delegated to the probate courts of this territory. Con- gress conferred this power upon the office, and not on the individual, and congress did not thereby create a separate and distinct office. Can it be said that when the probate court exercises the powers and jurisdiction of a justice of the peace he is, while performing such duties, a justice of the peace? Or can it be said that when he exercises the jurisdiction of a district court in the trial of certain civil causes he is a dis- trict judge ? Or can it be said that when he is acting in town- site matters he is a judge of the United States court, or an officer of the United States? These questions must be an- swered in the negative. * * * * "The legislature of this territory has the undoubted power to fix the fees and salaries of the probate judges, and to re- quire them to report and account for all fees received by them. And this is what our legislature has done. * * * * 30 ATTORNEY GENERAL'S OPINIONS "He shall at the time of making such report, pay into the county treasury all moneys received as fees during the three months immediately preceding the date of filing of said re- port in excess of one-fourth of the amount allowed by law as the annual salary of the probate judge ; provided, that should the amount of fees received by the probate judge during any quarter be less than the amount allowed to him as his salary for said quarter under the provisions of this act, such defi- ciency may be made up out of the excess of his receipts from fees over the amount of his salary during any quarter of his term or terms of office." Section 15 of said act provides : "Any probate judge who shall fail to make a quarterly re- port under oath as herein required, shall forfeit to the county twenty-five dollars for each day he shall wilfully fail so to do, to be recovered from his bondsmen, as in other cases, tF 9r W TF ' ' In the light of these various statutory provisions, it clearly appears that the office of probate judge is purely a fee office, that he is required to keep a strict and accurate account of all fees received and charged by him, and that he is entitled to retain from such fees the maximum salary allowed by law, and the excess, if any, he is required to pay into the county treasury. "There is no question in this case as to the schedule of fees to be charged by the probate judge, or whether the amounts collected by him are the fees authorized to be charged by law, and there is no question as to whether the fees collected by him were legal or illegal. The law authorizes the probate judge to charge a specific fee for every official act he perforins by virtue of his official position; and where specific fees are not fixed by law, then he shall be entitled to receive therefor the same fee as may be by law allowed to district clerks for like services, and when received or charged, such fees must be entered in the book required for that purpose, and this without regard to the purpose for which the act was per- formed. * * * * "But it is contended that the statutes make no provision for charging a fee in town-site matters, and since no fee is provided for by law, that the probate judges are not required ATTORNEY GENERAL'S OPINIONS 31 to report and account for any compensation that they may have received for performing such extra services. This con- tention we think is untenable. * * * * "But it is contended that the term 'fees' does not include compensation or charges received for services while acting in town-site matters. We do not think so. We think the word 'fees' as used in our statutes, clearly includes all compensa- tion or charges received by the probate judge by virtue of his office. And this view of ours is sustained by the authorities. * * * * "The statute fixing the compensation for probate judges embraces every possible fee, compensation or emolument ac- cruing to the probate judge by virtue of his office, and does not permit him to withhold any of them. The test is, what- ever is done by such probate judge that could not be done by him as a private individual, and when not exercising the powers and duties of his office, is clearly within the purview of the statute requiring him to report and account for all fees and emoluments received by him. * * * * "But it is argued by counsel for plaintiff in error that the duties devolving upon the probate judge in respect to town- site matters necessarily involve a vast amount of labor, and that it is not contemplated that he should bear the burden, worry and expense of so onerous a duty without receiving just compensation for such additional labors. We think this ques- , tion should be addressed to the legislative branch of our gov- ernment, and is not a matter for judicial interpretation." In view of these authorities I am of the opinion that even though our present state statute no longer fixes the fees of the clerk in naturalization matters, yet under the general provision requiring the clerk to account he is required to account to the county for the one-half of fees in such matters which the federal laws permit him to retain. Respectfully submitted, C. A. ROBBINS, Assistant Attorney General. 32 ATTORNEY GENERAL'S OPINIONS County Recorder — Compensation op — ^No Right to Retain Out- side Compensation. — A county recorder must account to Ms county for compensation received from abstract companies and others to whom he furnishes material for their daily reports. March 1, 1911. Mr. William Dennis, Marion, Iowa. Dear Sir: Your letter of February 23rd addressed to the at- torney general has been referred to me for investigation and reply. Your inquiry in brief is, as to whether or not the county recorder would have a right to retain compensation received by him from, abstract companies and others to whom he furnished material for their daily reports. A question very similar to the one propounded arose in the case of Hennepin Go. vs. Dickey, 90 N. W.,-775. The supreme court of Minnesota in stating this case, which was an action by the commissioners against the county clerk, used the following language : "Respondent has been the incumbent of the clerk's office since January 1, 1891. After he took possession he continued a practice previously in vogue, to furnish daily reports to abstract companies and commercial agencies located at Minne- apolis. These reports were made upon printed blanks pre- pared for that purpose. They contained the title of suits commenced, amounts involved, as well as judgments entered and docketed, derived from an examination of the files and records and comprised the knowledge useful in furnishing ab- stracts of title and commercial reports. They were given out at stated times each day but without authentication." What the clerk did was not done secretly. For this work tie clerk received during the six years previous to the commencement of the action, a compensation agreed upon between him and those to whom the statements were furnished, aggregating several thou- sand dollars, which he has retained upon the claim that he had the legal right to the same. The existing fee schedule provides the measure of compensation for clerks' duties provided therein. The fees were to be collected and paid into the county treasury. From these sources the county derived a revenue taken from the clerk, but in lieu thereof he was to be paid a fixed salary. ATTORNEY GENERAL'S OPINIONS 33 While the statute fixes no fee for such information as was given out, yet a fee was designated for copies and exemplifications of records and pleadings, and under the law in this state the recorder would have a right to charge a statutory fee for such copies. The court in that case, after an exhaustive consideration of the subject, concludes its opinion as follows: "While respondent may not, perhaps, be criticised for fur- nishing the statements in the form and manner given to the agencies and abstract companies, yet he could not by a short cut or business arrangement of his own pursue a course that would dispense with copies or certificates, when such useful means might be an essential prerequisite to securing the knowl- edge desired by persons seeking the same. "If copies, certificates, or searches where no copies were made would within any fair intention or expectation provide a means by which services of a clerk would be given to secure legitimate ends, it ought not to be evaded by any plan that would deprive the county of its revenues. "We are therefore required to adopt the conclusion that a proper legal view of the clerk's duty to deal with the money thus received from the statements furnished to the abstract men and agencies, must be determined against his asserted rights to appropriate the same to his own use, upon the con- sideration that the statements were furnished in his ofScial capacity and it was likewise the interest and the clear right of the county to have the compensation received therefor turned into its treasury ; and it is of no significance that the specified fees provided for in the schedule were not in terms exacted, or even that more than legal fees had been received by the clerk ; for, such services being official in character and having been voluntarily paid, whatever was so paid -became a resource of the county and not a perquisite of the clerk." And it has been held by the supreme court of California that ' where fees were collected by a clerk without legal authority but under cover of his office, that the fees belonged to the state and not to the officer. People vs. Hamilton Co., 37 Pac, 627, and People vs. Van Ness, 21 Pac, 554. 34 ATTORNEY GENERAL'S OPINIONS The reasoning made use of by the court in these cases applies with equal force to the case presented by you and J am therefore of the opinion that it is the duty of the recorder to account to the county for whatever compensation he has received from the ab- stract companies. Tours very truly, C. A. Bobbins, Assistant Attorney General. Peimary Election — Percentage of Votes Required — Township Officers. — The provision of the primary law requiring 35% of the votes cast for that office in order to nominate applies only, to the offices to be filled by voters of a county and not to offices to be filled by voters of a subdivision of a county. Does not apply to township officers. March 2, 1911. Mr. F. B. Plumley, Ralston, Iowa. Dear Sir: Yours of February 22nd addressed to the attorney general has been referred to me for reply. You state your question as follows : "There are three trustees to be elected but four are voted for in the primary election, two of which are Democrats and two Republicans. Now as regards the two Democrats, one re- ceived one vote and the other received two, there being but three votes cast for the office on the Democratic primary ticket, which according to our understanding would not give the man with the one vote the right to appear on the general election ticket. "Now where our voters would like your ruling is in regard to how the Democrat that received but one vote had the law- ful per cent in order to get his name printed on the official ballot at the general election." I assume that the percentage to which you refer does not have reference to the two per cent of the total vote cast at the general election in order to entitle the political party (Democrat in this case) to have its ticket appear on the ballot, as required by sec- tion 1087-a3 of the code supplement, but that the percentage you ATTORNEY GENERAL'S OPINIONS 35 refer to is the thirty-five per cent of all the votes cast by the party for such office as mentioned in section 1087-al9, code supplement. A careful examination of this section will disclose the fact that this provision requiring the thirty-five per cent only applies to offices to be filled by the voters of the county and not to offices to be filled by the voters of a subdivision of the county. The pro- vision with reference to townships does not require any per cent of the total vote and reads as follows: ' ' And the candidate or candidates of each political party for each office to be filled by the voters of any subdivision of a county, having received the highest number of votes, shall be duly and legally nominated as the candidate of his party for such office," whereas, in county offices there is added the further provision: "and not less than thirty-five per cent of all the votes cast by the party for such office. ' ' So it will be seen that no percentage of the total vote whatever is required to nominate in the case of township officers. Further- more, in the case supposed by you, each of the parties received the entire vote cast for that office. It is true that one received two votes and the other only received one vote, yet they were not can- didates for the same office, but each was a candidate for one of the three places to be filled and each received the entire vote cast by his party for that office, and as the entire vote equals one hun- dred per cent, he had the thirty-five per cent and more, and was lawfully nominated and entitled to have his name printed on the ballot at the general election. Yours truly, C. A. Bobbins, Assistant Attorney General. Road Tax — Collection of. — ^Where the road taxes are ordered paid in money it is the duty of the county treasurer to collect same along with the other taxes. March 11, 1911. Mr. John F. Dalton, Manson, Iowa. Deak Sir : Yours of March 7th addressed to the attorney gen- eral has been referred to me for reply. 36 ATTORNEY GENERAL'S OPINIONS 1st. Q. "Under the township road district plan, the road super- intendent is appointed by the trustees. Can he collect any road tax in money if residents do not work out said taxes?" A. It is the duty of the county treasurer to collect road tax when the trustees order the same to be paid in money instead of labor. See code section 1533, but where this order is not made and the party fails to work out his road tax, the superintendent may recover the. statutory penalty of $3.00 per day, provided by section 1552, but this he would recover as a penalty and not by way. of collection of the tax. 2nd Q. "Is there any fixed compensation for work with team, or rather for the work of the team, per day on the roads ? ' ' A. No. 3rd Q. "What is the difference between the compensation for a man with a team and a man without a team, per day?" A. There is no difference. Where a man is working out poll tax and works with or without a team he is required to work the two days fixed by section 1550, and section 1535 requires eight hours work for a man, or man and team, to constitute one of the day's work required by section 1550. This should not be construed to apply to casas where the superintendent or other road author- ities employ men with teams, but only to cases where the party is working out his taxes. 4th Q. "What is the fixed compensation for road superintend- ent with team? Without?" A. There is no fixed compensation for road superintendent with or without team, but the superintendent's compensation is to be fixed by the trustees, and section 1533 code supplement requires it to be fixed not to exceed $3.00 per day, and no mention is made of superintendent having a team, so this compensation would be his compensation without team unless otherwise specified. 5th Q. "If enforcement of the weed cutting law more than uses up the levy for that purpose, may said law be enforced and penal- ties inflicted?" A. Yes. 6th Q. "The law gives compensation of township trustees at $2.00 per day. Can the board of supervisors cut bill for their services when only $2.00 per day is asked for all time rendered, that is, and do so legally?" A. No. ATTORNEY GENERAL'S OPINIONS 37 7th Q. "Has the board of supervisors set any fixed compensa- tion for the work of assessors and have they legal right to do so?" A. As to whether your board or any other board has fixed com- pensation for work of assessor, I do not know, but chapter 41 of the acts of the thirty-third general assembly provides: "Each township assessor shall receive in full for all sendees rendered of him by law, a sum to be paid out of the county treasury, and fixed annually by the board of supervisors at their January session; said compensation shall be for the suc- ceeding year, and shall not exceed the sum of two and one- half dollars ($2.50) for each day of eight hours which said board determines may necessarily be required in the discharge of all ofSeial duties of such assessors, except in townships having a population of thirty thousand (30,000) or over, and situated entirely within the limits of a city acting under special charter, such compensation shall be four dollars ($4.00) per day." and this would not only give them the legal right but make it their duty to fix the compensation. 8th Q. "Can promissory notes for the rent of land be legally classed as moneys and credits ? ' ' A. Yes. 9th Q. "If taxable may they be offset by debts?" A. Yes. Yours truly, C. A. ROBBINS, .Assistant Attorney General. Taxation — ^Assessment — ^Mortgage in Othee State. — ^A note held by a resident of this state should be assessed to him at his place of residence even though the same is secured by mort- gage on land in another state where such mortgage is also taxed. March 15, 1911. Me. Levi Talhelm, Hampton, Iowa. Deae Sir : Your letter of the 14th inst. addressed to the attorney general has been referred to me .for reply, and while this depart- ment is not authorized to furnish opiaions to persons other than 38 ATTORNEY GENERAL'S OPINIONS State officers, I will say for your information that our supreme court has held in the case of Snakenlerg vs. Stein, 126 Iowa, 650, that where moneys and credits had been assessed in the wrong county, they might also be assessed in the proper county, which was the county in which the owner of the note and mortgage re- sided, and for this reason, I am of the opinion that the court would hold that the note secured by mortgage would, under the section to which you refer (sec. 1313 of the code) , be assessable to the party in this state at the place where he resides, even though he had been required to pay some tax on the mortgage where recorded in the other state. Yours truly, C. A. Bobbins, Assistant Attorney General. School House Tax — Statute Fixing Time op Levy Dieectoey. — "Where the levy of a tax is authorized in manner provided by law but through negligence or mistake the levy is not made at the proper time a levy made a year later is valid. March 15, 1911. Mr. Dale Huntee, Westfield, Iowa. Deae Sie: Your letter of the 14th inst., addressed to the at- torney general, has been referred to me for reply. Your question in brief is : How to procure the levy of a school house tax, which was voted in March, 1910, and certified as re- quired by law, but through oversight the levy was not made by the county board of supervisors. There are two ways to remedy this matter, one way would be to have the board meet at this time, or before the legislature adjourns, make the levy and then have the legalizing act passed, curing the levy as against the defect of its being made after the time pre- scribed by law, as was done in the case of C, B. I. & P. Railway Company vs. Independent District of Avoca, 68 N. "W. (Iowa), 881. However, it would hardly be possible to have the tax thus levied spread upon the books and collected in such a way as to be avail- ATTORNEY GENERAL'S OPINIONS 39 able this year, hence, I am inclined to think that the best remedy would be to follow the rule announced in the case of Perrin vs. Benson, 49 Iowa, 325, wherein it is held : "If the levy of a tax, which has been authorized in the man- ner provided by law, is not made at the proper time, through negligence or mistake, it may be made at the time fixed by law for making the succeeding tax levy. This section of the code prescribing the time and manner in which a school tax shall be levied is directory merely, and a failure of the board of supervisors to levy the tax in the time prescribed is not fatal thereto, and a levy made a year later is valid. ' ' So that it would seem that all that is required would be to see that the levy is not overlooked, but is made by the board at its September meeting. Yours truly, C. A. ROBBINS, Assistant Attorney General. Delinquent Tax Collector — Compensation of. — The 5% com- pensation for delinquent tax collector provided by code sup- plement section 1407 should be collected from the delinquent and not from the county treasury. March 16, 1911. Me. Howabd E. Kittell, Audubon, Iowa. Dear Sir : Your letter of the 15th inst., addressed to the attor- ney general, has been referred to me for investigation and reply. You call for the opinion of this department as to the proper con- struction of code supplement section 1407, and say: "Our delinquent tax collector has been charging the 5% commission on all delinquent taxes that he has collected, but one of the resident attorneys holds that he has no right to do that only in cases where he has to make a levy on property to get the tax." I think the proper construction of the section authorizes the col- lection, by the collector, of the 5% from the delinquent in all cases where he makes the collection and pays over the proceeds. I do not believe the collector has authority to make distress and sale. 40 ATTORNEY GENERAL'S OPINIONS but that when necessary to collect by distress and sale, the statute provides that the treasurer shall place the same in the hands of the sheriff or constable, who shall proceed to collect the same, and either shall be entitled to receive in addition to the 5% the same compensation as constables are entitled to receive for the sale of property, or execution, and in such cases the collector would not be entitled to the 5%, but this 5% would go to the sheriff or constable making the collection by distress and sale. It therefore follows that your view is the correct one and that the view of the local attor- ney, as expressed by you, is erroneous. You will understand that this department is not authorized to give official opinions, except to certain state officers, and that the foregoing is simply the personal view of the undersigned. Yours truly, C. A. Bobbins, Assistant Attorney General. Automobiles — Dealer's Numbers. — ^Where a dealer has a place of business in 'two or more distinct places he should have a dealer's number and permit for each such place of business. March 18, 1911. Me. Orville A. Hammond, Spencer, Iowa. Dear Sir : Your letter of March 16th, addressed to the attorney general, has been referred to me for reply. Your questions are : "1. Has the purchaser of an automobile a right to run his ma- chine by using the dealer's number, or has he a right to run his machine after he has sent for a number, but before his number has been assigned to him?" "2. If a man or firm have automobile sales rooms or liveries in two different towns, have they the right to use the same number in each town?" The answer to both interrogatories will be found in chapter 103 of the acts of the thirty-third general assembly. Section 4 pro- vides, that "no person shall operate a motor vehicle on the public street or highway without a number displayed as above provided, nor with any other number than that assigned to said vehicle by the secretary of state and registered in the name of the owner thereof." The number of the automobile dealer would be regis- ATTORNEY GENERAL'S OPINIONS 41 tered in his own name, and hence would not be a protection to the subsequent owner of the machine, so that your first interrogatory will have to be answered in the negative. Section 3 of the same chapter provides, that "where a dealer has an established place of business in more than one city or town, he shall procure a separate and distinct dealer's number and per- mit for each such place of business," so that your second inter- rogatory will also have to be answered in the negative. Yours very truly, C. A. ROBBINS, Assistant Attorney General. Poll Taxes. — ^Where the poll taxes are payable in labor upon the highways persons liable therefor are entitled to three days' notice of the time and place- they are required to work before they can be required to pay the same ia money. March 23, 1911. Wallaces' Fabmee, Des Moines, Iowa. Gentlemen : Yours of the 20th inst., addressed to the attorney general, has been referred to me for reply. Your first question is : "Is the township road supervisor supposed to call out the farmer in his district to work his poll tax? Suppose he does not call on him, the farmer having time to work out the tax, can he be made to pay in cash ? Can the road boss do as he pleases in this matter by neglecting to notify the farmer and then charge him $3.00 in cash?", and the answer thereto will be found in code supplement, section 1551 and code section 1552, which provides as follows: "The road supervisor shall give at least three days' notice of the day or da,ys and place to work the roads to all persons subject to work thereon, or who are charged with a road tax within his district, and all persons so notified must meet him at such time and place, with such tools, implements and teams as he may direct, and labor diligently under his direction for eight hours each day; and for such two days' labor the super- visor shall give to him a certificate, which shall be evidence 42 ATTORNEY GENERAL'S OPINIONS that he has performed such labor on the public roads, and exempt him from performing labor in payment of road poll tax in that or any other road district for the same year. "Bach person' liable to perform labor on the roads as poll tax, who fails to attend, either in person or by satisfactory substitute, at the time and place directed, with the tools, im- plements or teams required, having had three days' notice thereof, or, appearing, shall spend his time in idleness, or disobey the road supervisor, or fail to furnish him, within five days thereafter, some satisfactory excuse for not attending, shall forfeit and pay him the sum of three dollars for each day's delinquency; and in case of failure to pay such forfeit within ten days, he shall recover the same by action in his name as supervisor, and no property or wages belonging to such person shall be exempt from execution therefor. Such action shall be before any justice of the peace in the proper township. The money, when collected, shall be expended on the public roads." Your second question is : "Is there any law to compel the farmer to drag the road with- out pay?" The answer to this will be found in chapter 101 of the acts of the thirty-third general assembly, which provides as follows : "The township trustees shall have all the main traveled roads, including mail routes, in their townships dragged at such time as in their judgment is most beneficial, and they shall contract at their April meeting to have a given piece of road dragged at a rate not to exceed fifty cents per mile for each mile traveled in dragging. In choice of persons to do the work or in making contracts to do such work, prefer- ence shall be given, 6ther things being equal, to the occupants of the land abutting the road or adjacent thereto at the point where the work is to be done, but if more than one occupant, the trustees shall decide to which preference shall be given. * * * * No compensation shall be paid to any person for dragging roads miless the same be authorized by the township trustees and in the manner directed by them." It follows that both your questions should be answered in the regative. Yours truly, C. A. ROBBINS, u Assistant Attorney Q^neral. ATTORNEY GENERAL'S OPINIONS 43 Domestic Corporations — Assessment of Capital Stock. — In the assessment of the capital stock of a domestic corporation the amount of its bonded indebtedness should not be added to its capital for the purpose of ascertaining the value of its prop- erty or the capital stock therein. March 25, 1911. Hon. Ben McCoy, Oskaloosa, Iowa. Dear Sir : Tour letter of the 11th inst. addressed to the attor- ney general has been referred to me for reply. The extraordinary demand made upon this department by the members of the legisla- ture now in session, has made it impossible for me to give the mat- ter attention until now, and while this department is not author- ized to furnish an official opinion upon such a matter, yet I am perfectly willing to give you the benefit of my personal views. You state the matter, as to which there is a dispute between your- self and the taxing officers, as follows : "I have one thought about the matter and the taxing officers have another. Let me illustrate by the round num- bers given. I seek to collect taxes on a domestic corporation capitalized at $250,000.00 paid in, invested in real estate and personal property not situated in Iowa. The corporation is bonded for $250,000.00, invested in the same way. It has a real estate assessment of $150,000.00. Under sections 1323 and 1324, my thought is that the bonded indebtedness should be added to the capital, making $500,000.00, from which should be deducted the real estate assessed at $150,000.00, which would leave net assessment of $350,000.00. * * # * The auditor and treasurer insist under the language of sec- tion 1323 that the shares of stock of any corporation shall be assessed to the owners thereof at the place where its principal business is transacted, the assessment to be on the value of such shares on the first day of January m each year,, and in- sist that the following is a correct method of arriving at the shares of stock for assessment. Taking a $250,000.00 capital corporation fully paid, with a bonded debt of $250,000.00 and an assessment on real estate of $150,000.00, with property tangible and intangible, including real estate of $500,000.00. They deduct the bonded debt from the amount of assets leav- ing $250,000.00 and deduct from that the assessed value of the 44 ATTORNEY GENERAL'S OPINIONS real estate leaving $100,000.00 for assessment on the shares of stock to the individual stock holder under section 1323 of the code. You will readily note that the assessment is $250,000.00 short of what we contend is the correct valuation for the pur- pose of assessment." On first blush it would appear to be a strange proposition that would require the indebtedness of a corporation to be added to its assets for the purpose of determining the value of its property and incidentally the value of shares of stock in such corporation. When we undertake to determine whether or not an individual is solvent, we ascertain the property which he has and deduct there- from his liability for the purpose of determining the net value of his property over and above liability, and I see no reason why this same rule should not apply in determining the value of a corpora- tion, and the value of a share of stock in a corporation is of course equal to its proportionate share of the property of such corporation. I have examined the Coggin case to which you refer, and while it announces the rule as contended for by you, yet I am inclined to think that the decision is based upon a misapprehension of the Illinois statute. The Illinois statute requires among other things that the corporation shall state under oath "the total amount of indebtedness except the indebtedness for current expenses. ' ' This statement and the other required by the statute are for the pur- pose of enabling the assessing officer to determine the value of the shares of stock in such corporation, and the court in that case, as well as other cases in that state, held that this required the in- debtedness to be added to the corporation stock, the very thing which I have stated would be an unlawful thing to do. However, it occurs to me that, in so deciding, the court assumed that the property procured with the bonded indebtedness was equal to such indebtedness, and instead of inquiring into the value of the prop- erty purchased with the proceeds of the bonded indebtedness, as- sumed that property to be of a value equal to the bonded indebted- ness, and hence added it to the value of the original property of the corporation, which would be approximately a correct method of ascertaining the value of its whole property, assuming that the property realized for the bonded indebtedness was worth what it cost and no more. If this be true then there is nothing seriously wrong with the rule in the Coggin case, provided however, that the bonded in- ATTORNEY GENERAL'S OPINIONS 45 debtedness should then be deducted from the whole property in order to ascertain the net value of the corporation over and above its indebtedness. It will be observed that our statute 1323, while it requires many of the same matters to be stated as is required by the Illinois statute, yet does not require any statement as to the amount of indebtedness owed by the corporation. Yet in the very nature of things this is one of the matters that must be taken into account by the assessing officer in placing the value upon the property of the corporation or of shares of stock therein, and in the case of the Illinois statute I think it was the design of the legislature in re- quiring this statement of indebtedness to be made not for the pur- pose of having it added to the corporation stock, but for the pur- pose of enabling the assessing officer to know the amount of such indebtedness in order that he might deduct the same from the value of the share of stock as shown by the property aside from the indebtedness. Assuming that the corporation which you mention in your ques- tion should, after the expiration of one year, earn enough money in the operation of its business, or by reason of increase in value of some of its property, so that they would be enabled to entirely liquidate the bonded indebtedness, then the corporation would have on hands its original $250,000.00, also the $250,000.00 of property purchased with the bonded indebtedness, which would make a total of $500,000.00, from which you would deduct the real estate assess- ment of $150,000.00, which would leave $350,000.00 for assess- ment aside from the real estate. This is identical with what you have in your supposed case before there has been any earnings, and yet it would be absurd to say, that, after the company has earned $250,000.00 and paid off that amount of its indebtedness and stiU had on hands the same property which it had at the time it incurred the $250,000.00 indebtedness, it is not worth more than it was at the time the indebtedness was first incurred. And this it seems to me demonstrates the fallacy of your position. On the other hand, if the plan contended for by the auditor and treasurer, as stated by you, was followed, the value of the stock would be increased by the $250,000.00 earned and applied to the payment of indebtedness. Yours truly, C. A. Bobbins, Assistant Attorney General. 46 ATTORNEY GENERAL'S OPINIONS Faem Names — Registration op. — An instrument by which a farm is given a name is one affecting real estate and should be acknowledged before being recorded. March 27, 1911. Matt Pareott & Sons, Waterloo, Iowa. Gentlemen : I am in receipt of your communication of the 25th instant directing attention to the recent act which passed the General Assembly providing for the recording of farms, a descrip- tion thereof and the name of the farm described. You request to be advised as to whether the instrument should be acknowledged. The bill itself is silent on this question but section 2925 of the code provides that no instrument affecting real estate is of any validity against subsequent purchasers for valuable consideration without notice, unless recorded in the office of the recorder of the county in which the same lies as hereinafter provided ; and section 2926 of the code provides : ' ' It shall not be deemed lawfully recorded unless it has been previously acknowledged or proved in the manner hereinafter prescribed. ' ' In my opinion the instrument should be acknowledged in view of these provisions of the law. The act however contained no pub- lication clause and therefore the same will not become effective until the 4th day of July, 1911. Yours very truly, George Cosson, Attorney General. Poll Books. — The judges of election should deliver one of the duplicate poll books to the township clerk and the other to the county auditor in both general and town elections. March 30, 1911. F. B. Wiley, City Clerk, Marshalltown, Iowa. Dear Sir : Your letter of the 29th inst. addressed to the attor- ney general has been referred to me for reply. While this department is not authorized to give an official opinion to persons other than state officers, yet, in view of the situation as ATTORNEY GENERAL'S OPINIONS 47 stated by you, I am glad to give you the benefit of my personal views with reference to the matter which is stated by you as follows : "I am handing you a copy of a written opinion of our city attorney, regarding my turning over the poll books to the county auditor. I am at a loss to know just what to do, on account of having advice from two sets of attorneys, and they disagree. ' ' I also note the opinion of your city attorney, expressed by him as follows: "I would call your attention to section 9, chapter 3 of the revised ordinance which it seems to me is conclusive of this controversy. It reads as follows : Sec. 9. When the polls are closed the ballots shall be strung as counted, replaced in the ballot box and with all poll books, tally sheets, etc., delivered immediately to the city clerk who shall preserve them for six months, or until the determination of any contract then pending. "The section which was called in question (1145) pertains, I believe, to the general election law and the code (642) pro- vides that city elections should be governed by the general election law so far as such law is applicable. "I can see no reason or necessity for any of the poll books being deposited with the county auditor. They did not originate in his oflBce, and under any circumstances if there has been any neglect of duty it was in the judges of election failing to deliver the poll books to the county auditor, but where the ordinance is specific as in the case for them to be returned to you and kept and preserved by you I think that should determine your conduct." The first section referred to by the city attorney, code section 1145, provides as follows: "One of the poll books containing such return, with the register of election attached thereto, shall be delivered by one of the judges of election, within two days, to the county audi- tor. In township precincts, the other of said poll books, with the register of election attached, shall be delivered by one of the judges of election to the township clerk. In city precincts, the other of said poll books with register of election attached, 48 ATTORNEY GENERAL'S OPINIONS shall be delivered by one of the judges of election to the city clerk. In town elections, the other of said p6ll books, with register of election attached, shall be delivered by one of the judges of election to the town clerk." It will be observed that this section specifically applies to town elections and hence it does not "pertain to general elections" alone as claimed by the city attorney. This section contemplates that one book shall be delivered to the auditor; this is clearly indicated by the language requiring "the other of said poll books" to be delivered "to the town clerk." No express provision is found elsewhere in the code requiring a like delivery to the auditor and city clerk in case of city elections and yet it will doubtless be conceded that there is no reason for re- quiring the poll book to be filed with the auditor in case of town elections that does not apply with equal force to city elections. The question immediately arises, whether the words "town elec- tions" and "town clerk," as used in section 1145, were used in the sense of referring to incorporated towns exclusive of cities, or as including cities as well as incorporated towns. The term town is a generic term, including every character of municipal govern- ment from a city to a village. Words and Phrases, pages 7019-20. This view is strengthened when we also take into account our own statute with reference to the construction of words and phrases, code section 48, subdivision 16, which reads as follows: "Town. The word 'town' means an incorporated town, and may include cities." And when we note the further language of sec- tion 1145, "with register of election atached" which must refer to the copy of registration list required by code section 1080 to be delivered to the judges of election before the opening of the polls, and to be by them returned with the vote from their precinct, and when we further consider that no registration is authorized or required in incorporated towns, but only "in cities having a population of thirty-five hundred or more," Code section 1076, there is no escape from the conclusion that the word "town" in each instance where used in section 1145, was used in the sense of city or incorporated town. It therefore follows that only one of the poll books should have been delivered to you and the other should have been delivered by the judge of election to the county auditor. ATTORNEY GENERAL'S OPINIONS 49 The city ordinance referred to by the city attorney, if construed to require the return of all poll books to you and to prevent the return of the one to the auditor as required by statute, would be in conflict with the state law and void, and would hence afford you no protection. lotva City vs. Mclnnery, 114 Iowa, 586; Code section 680. You should either deliver one of the poll books to the auditor for the judge of election or deliver it to the judge of election that he may do so. Respectfully submitted, C. A. ROBBINS, Assistant Attorney General. Deputy Auditor — Appointment of — ^Approved by Boaed op Su- PEEVtsoES. — It is not necessary that a county auditor have the approval of the board of the appointment of a particular person as his deputy, but he should have the consent of the board that one or more deputies be appointed. Me. C. a. Bkyson, April 6, 1911. Iowa Falls, Iowa. Deae Sie : Your letter of March 31st addressed to the attorney general has been referred to me for reply. The questions on which you desire the opinion of this department, as stated by you, are as follows: "1st. Has the board of supervisors the right, as defined by the code, to refuse to confirm the appointment of a deputy auditor, made by the auditor? "2d. If for any cause no deputy auditor is appointed, is it within the province of the auditor, though he may have made one appointment, to refuse to make any further appoint- ment? "3d. In case no deputy has been appointed has the auditor the right, under the statute, to employ continuously, or only temporarily, a clerk to perform the duties of deputy auditor! *'4th. If only temporarily, what period of time does that embrace ? ' ' 50 ATTORNEY GENERAL'S OPINIONS In answer to your first inquiry, will say that code section 481 provides : "Each county auditor may, in writing, with the consent of the board of supervisors, appoint one or more deputies not holding a county office, for whose acts he shall be responsible and from whom he shall require a bond, which bond shall be approved by the officer who has the approval of the principal's bond, and such appointment may be revoked in writing, which appointment and revocation shall be filed and kept in the auditor's office." I do not think that a proper construction of this section requires the board to confirm the appointment of a deputy, made by the auditor, but rather, in the first instance, requires the consent of the board that one or more deputies may be appointed, and if the board has given its consent that one or more deputies may be ap- pointed then the appointment may be made by the auditor with- out requiring the consent of the board to the selection pf the par- ticular individual chosen by the auditor as his deputy. ' The answer to your second inquiry is to some extent covered by the answer to the first. If the board has given its consent that a deputy may be appointed, the appointment may be made by the auditor at any time, even though he has attempted to make a pre- vious appointment. Bearing upon your third inquiry, the same section of the statute provides : "In case no deputy shall be appointed, but on account of the pressure of business in his office the auditor is compelled temporarily to employ an assistant, he shall file the bill for such service at their next regular meeting, and the board of supervisors shall make a reasonable allowance therefor." "While the statute contemplates that the appointment in such a case should be temporary and hence could not be said to be con- tinuous, yet I am inclined to think that the length of time during which such appointment might extend would depend upon the length of time that the "pressure of business in his office compelled the employment of such assistant," and if in any given case the pressure of business in the office compelled continuous employment, the board would be compelled to make a reasonable allowance therefor under the statute. Your fourth inquiry is fully answered by what has been said in reply to the third. Yours verj^ truly, C. A. ROBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 51 Banks — Taxation op. — General provisions concerning the taxa- tion of banks discussed. April 11, 1911. jMr. J. W. Gray, Sioux City, Iowa. Dear Sir: In accordance with my promise, I am writing you further with reference to the matters inquired about in your letter of March 31st, addressed to the attorney general. Your inquiries as stated by you are as follows : "1st. Is capital, surplus and undivided earnings to be con- sidered the full value of stock of which 20% is to be taken as taxable value ? "2d. From said full value is all real estate owned by the bank to be deducted or only that part on or in which the hank is located? Of course I understand leasehold interests are considered as ownership, also the amount of capital invested in shares of stock of corporations owning only real estate. The point I wish instructions on is, is this intended to cover on all real estate or only that passed on or in which bank is located ? "3d. Are any deductions to be made for government or Panama bonds? I was told by several, who took considerable interest in this bill, that government bonds are not to be de- ducted in any case. "4th. In making, up assessments, would it not be proper to assess under the head of the hank, all the stockholders, list- ing to each the number of shares owned and the value thereof, however treating and listing same as corporation stocks?" Tour first interrogatory should be answered in the affirmative but it should be borne in mind in fixing the value of any share of stock, in any given corporation that the par value of such share is not necessarily its real or true value. A share of stock in some corporations is worth 50 cents on the dollar and some 20 cents on the dollar. In answer to your second question, will say that section 4 of the new law, provides, in arriving at the total value of the shares of stock of such corporations, the amount of their capital actually invested in real estate owned by them and any shares of stock of corporations owning only the real estate, on or in which the trust company is located, shall be deducted from the real value of such 52 ATTORNEY GENERAL'S OPINIONS shares, and sueli real estate shall be assessed as other real estate, sb tha^ the rule should be to deduct not necessarily the real value of the, real estate or its taxable value from the shares of stock, but rather as stated in the section quoted, THE AMOUNT OF THEIR CAPITAL ACTUALLY INVESTED IN REAL ESTATE, ETC. In answer to your third inquiry, vrill say that there are no de- ductions to be made from the value of any share of corporate stock, as otherwise ascertained on account of the fact that the capital of such corporation, or any part thereof, may be invested in govern- ment securities of any kind. It is only where the corporation itself is sought to be taxed, rather than the shareholder, that these deductions are required to be made. The supreme court of the United States in the case of the Home Savings Bank vs. Des Moines, 205 U. S., at p. 516, in passing upon this question used the follow- ing language : "Although the states may not in any form levy a tax upon United States securities, they may tax, as the property of their owners, the shares of banks and other corporations whose assets consist in whole or in part of such securities, and in valuing the shares for the purpose of taxation it is not neces- sary to deduct the value of the national securities held by the corporation whose shares are taxed. The right to tax the shares of national banks arises by congressional authority, but the right to tax shares of state banks exists independently of any such authority, for the state requires no leave to tax the holdings in its own corporations. The right of such taxation rests upon the theory that shares in corporations are property entirely distinct and independent from the property of the corporation. ' ' Eeplying to your 4th inquiry, I can see no objection to having all bank shares and other corporation stock, held in any particular bank or trust company, listed in a place by itself for the purpose of convenience and for the purpose of enabling the books to be balanced as suggested by you, but care should be exercised, and the assessment made in such a way as to show beyond question that it is made against the individual stockholder and not against the bank, for if it could be construed as an assessment against the bank the tax would be illegal and unauthorized, unless ,the government securities were deducted as hereinbefore explained. ATTORNEY GENERAL'S OPINIONS 53 I would further suggest in reply to that phas€ of your letter which inquires, whether real estate deducted should be at its assessed value or at the value at which it is held and carried by the bank, that in any given case in which you are unable to determine the exact amount of capital invested in the real estate, that then the deduction should be made on the basis of the assessed value, as required by code section 1324. The law as finally amended was published in the Des Moines Capital of date April 8th, and also in the Register and Leader about the same time and you can doubtless secure a copy, in order to have the exact language before you. Yours truly, C. A. ROBBINS, Assistant Attorney General. Banks — Private — Taxation — Moneyed Capital — ^Deduction op Indebtedness. — Money employed in private banks is moneyed capital within the meaning of chapter 63, acts of the thirty- fourth general assembly, and indebtedness is not to be deducted therefrom. May 26, 1911. B. E. Norton, County Auditor, Algona, Iowa. Dear Sir: This will acknowledge receipt of your letter of the 19th inst. addressed to the attorney general in which you ask to be advised as to whether the assessment for taxation of private or partnership banks is affected by the act of the thirty-fourth general assembly, known as senate file No. 387. As a courtesy to you, I may say in a personal and unofficial way that the act in question undoubtedly does apply to the assessment of so-called private banks this year. The only specific reference to private banks in the act is that section which amends section 1321 of the supplement to the code, 1907, the effect of which is to strike from that section the provision permitting the deduction of certain debts and exemptions from the property and assets on which said banks were assessed under the section. But private banks as defined in that section undoubtedly is moneyed capital within the meaning of the new act, so that unless private banks as defined by the statute are assessed upon the same basis as the corporations mentioned in the new act, and upon the same basis as moneyed capital within the meaning of that act, a discrimina- 54 '•< ' ATTORNEY GENERAL'S OPINIONS ^oh would result in the assessment this year against state, savings aiijd national banks, and loan and trust companies, and moneyed capital other than private banks. There is a provision in the new act which expressly prohibits the deducting of debts from the value of moneyed capital and from the value of the property of the cor- porations mentioned in the new act, for the purpose of taxation, and if private banks are assessed under the old statute without reference to the new act, they would have the privilege of deduct- ing their debts which results in the discrimination referred to. Very truly yours, N. J. Lee, Special Counsel. Taxation — Bank Shares — ^Undivided Earnings. — The undivided earnings should be taken into account in fixing the value of bank stock for purpose of taxation. May 26, 1911. R. R. Craig, Cashier, Corydon, Iowa. Dear Sir: This will acknowledge receipt of your letter of the 24th inst. addressed to the attorney general, in which you state that your bank on the 1st day of January last had undivided earn- ings amounting to over $15,000.00 and that on the 4th day of January, you paid out as dividends therefrom the sum of $12,600.00 and charged off a further sum of $529.00 and you ask to be in- formed as to whether said undivided earnings should be taken into account in determining the value of the shares of stock of said bank for the purpose of taxation under the act of the thirty-fourth general assembly, known as senate file 387, providing for the taxa- tion of state banks and other banks and corporations. In a personal and unofficial way I may state, as a courtesy to you, that said undivided earnings undoubtedly should be taken into account in determining the value of the shares of stock of said bank, for the purpose of taxation this year. The value of all prop- erty for the purpose of tax;ation is determined and fixed as of January 1st of the year in which it is assessed. There is nothing in the new act which in any way changes this rule with respect to the property to be assessed thereunder. The statement and data required by this act and other sections of the statute to be fur-, ATTORNEY GENERAL'S OPINIONS 55 nished to the assessor by banks to enable him to perform his duty should include, among other things, the undivided earnings as of January 1st. Very truly yours, N. J. Lee, Special Counsel. Sewer Assessments — Church Property — Exemptions. — Church property is not exempt from special assessments, such as sewer assessments and the like. Rev. a. L. Curtis, May 27, 1911. Missouri Valley, Iowa. Dear Sir: Your favor of May 19th, addressed to Attorney General Cosson, has been handed to me with a request to answer same. Replying to your inquiry as to Avhether or not church property is exempt from a sewer assessment, will say that the general exemp- tions from taxation do not apply to special assessments, and for that reason the city can legally assess church property to meet the expense of constructing a sewer. Title VII, chapter 1 of the code provides for the assessment of taxes for the general support of the government. That chapter provides for the exemption from such general taxes of all church property. (Code section 1304, div. 2.) Title V, chapter 7 provides for the building of sewers and assess- ing the property abutting said sewer, in order to meet the expense of constructing said improvement, but this chapter makes no ex- emptions as to church property. You can readily understand that taxation for the maintenance of the government is entirely different from that of an assessment for the construction of a public improvement. The statute ex- pressly exempts church property from the former ; it makes no such exemption from the latter. Furthermore, in the matter of exemp- tions, it is construed strictly in favor of the authority making the assessment. If you have access to the following authorities you may be inter- ested in reading them : Griswold College vs. Iowa, 46 la., 275; Cassady vs. Hammer, 62 la., 359; Sioux City vs. Ind. Dist. Sioux City, 55 la., 150. 56 I • ATTORNEY GENERAL'S OPINIONS ,11^ is, my ^personal opinion that the special assessment of which you complain can be legally made if the city authorities so desire. YoiilWill, of course, understand that this is not an official opinion, but simply my personal views upon the matter, given out of cour- tesy to you. Very truly yours, Henry E. Sampson, Special Counsel. Moneyed Capital — Deduction op Capital Invested in Govern- ment Bonds. — Moneyed capital is capital invested in loans or securities for the payment of money where the object of the business is the making of profit by its use as money. Since the enactment of chapter 63, acts of the thirty-fourth general assembly, a state bank is not allowed to deduct from the value of its shares the amount of its capital invested in government bonds. May 29, 1911. Hon. Sherwood A. Clock, Hampton, Iowa. Dear Sir : Eef erring again to your valued letter of the 5th inst. addressed to the attorney general, in which you requested the attor- ney general to render an opinion as to certain questions arising in the application of the act of the thirty-fourth general assembly providing for the taxation of banks, moneyed capital, etc., I have to say that because of the large amount of official business demand- ing the attention of the entire department, it has been impossible to render an opinion construing all of the features of the act re- ferred to, which it was the purpose to do. The two questions you submit are : "1. What is meant by 'moneyed capital' as used in said act? "2. Is a state bank allowed to deduct the amount of its capital invested in government bonds?" It is not practicable to so define the terms "moneyed capital" as to indicate therein just what it applies to. The definitions of "moneyed capital" as contemplated by section 5219 of the revised statutes of the United States, as set forth in various decisions of the courts are more or less general. You will notice that the legis- ATTORNEY GENERAL'S OPINIONS 57 lature in the act in question used the term "moneyed capital" as within the meaning of said section of the United States statutes, and there is no attempt in the act itself to point out just what is included therein, and we are, therefore, left to ascertain what the courts have held "moneyed capital" to be within the meaning of said section 5219. I select a statement of the United States supreme court in the case of Mercantile National Bank vs. New York, reported in 121 U. S., 138, which is as complete and satisfactory a definition as can be found : ' ' The terms of the act of congress, therefore, include shares of stock or other interests owned by individuals in all enter- prises in which the capital employed in carrying on its busi- ness is money, where the object of the business is the making of profit by its use as money. The moneyed capital thus em- ployed is invested for that purpose in securities by way of loan, discount, or otherwise, which are from time to time, ac- cording to the rules of the business, reduced again to money and reinvested. It includes money in the hands of individuals employed in a similar way, invested in loans, or in securities for the payment of money, either as an investment of a per- manent character or temporarily with a view to sale or repay- ment and reinvestment. * * * * This definition of mon- eyed capital in the hands of individuals seems to us to be the idea of the law, and ample enough to embrace and secure its whole purpose and policy. ' ' Answering your second inquiry, I do not think that a state bank is entitled to deduct any part of its capital that may be invested in government bonds. The bank as a corporation is not assessed or taxed. The shares of stock of the bank are assessed to the in- dividual stockholders and I do not think it was the intention of the legislature to permit such deductions. Of course, you will not regard the statements contained in this letter as in any sense the expression of an official opinion from this department, but are largely the personal views of the writer, made without opportunity to make a proper and full study and investi- gation of the subject. Very truly yours, N. J. Lee, Special Counsel. 58 ATTORNEY GENERAL'S OPINIONS Moneyed Capital Defined — Value of Moneys and Credits — How Determined — Township Assessors' Compensation. — ^Money- ed capital embraces capital employed in banking and in other lines of business where profit is sought to be made by the use of moneyed capital as money. The value to be placed upon moneys and credits for the purpose of taxation is its actual market value. Additional compensation should be allowed as- sessors for correcting the assessment to conform to the provi- sions of chapter .63, acts of the thirty-fourth general assembly. May 29, 1911. Hon. p. J. Nelson, County Attorney, Dubuque, Iowa. Dear Sir: Referring again to your letter of the 14th ult. in relation to the act of the last legislature providing for the taxation of banks, trust companies, moneyed capital and moneys and credits, I have to say that this department has been so occupied with im- portant official business that no time was found to prepare an opinion construing the provisions of the act in question. The questions you submit are: "1. What is meant by 'moneyed capital'? "2. How is the value of moneys and credits to be deter- mined ? "3. Are township assessors entitled to additional compen- sation for their services in connection with the new act?" It is not practicable to so define the term "moneyed capital" as to indicate therein just what it applies to. The definitions of "moneyed capital" as contemplated by section 5219 of the revised statutes of the United States, as set forth in various decisions of the courts are more or less general. You will notice that the legis- lature in the act in question used the term "aioneyed capital" as within the meaning of said section of the United States statutes, and there is no attempt in the act itself to point out just what is included therein, and we are, therefore, left to ascertain what the courts have held "moneyed capital" to be within the meaning of said section 5219. In the case of Mercantile Bank vs. New York, 121 U. S., the supreme court said that : "The term 'moneyed capital' as used in section 5219 em- braces capital employed in national banks and capital employed ATTORNEY GENERAL'S OPINIONS 59 by individuals when the object of their business is the making of profit by the use of their moneyed capital as money; but it does not include moneyed capital in the hands of corpora- tions, even if its business be such as to make its shares moneyed capital when in the hands of individuals." In the same case the court, after having reviewed the previous decisions, states: "It follows as a deduction from these decisions that 'mon- eyed capital' in the hands of individual citizens does not necessarily include shares of stock held by them in all corpora- tions whose capital is employed, according to their respective corporate powers and privileges, in business carried on for the pecuniary profit of shareholders, although shares in some cor- porations, according to the nature of their business, may be such moneyed capital. The rule and test of this difference is not to be found in that quality attached to shares of stock in corporate bodies generally whereby the certificates of owner- ship have a certain appearance of negotiability, so as easily to be transferred by delivery * * * * It does not follow, because these are invested in such a way as properly to con- stitute moneyed capital, that the shares of stock in the cor- porations themselves must necessarily be within the same de- scription. * * * * The true test of the distinction, there- fore, can only be found in the nature of the business in which the corporation is engaged." The court also used this language, which probably is as good a definition as can be found : "The terms of the act of congress, therefore, include shares of stock or other interests owned by individuals in all enter- prises in which the capital employed in carrying on its business is money, where the object of the business is the making of profit by its use as money. The moneyed capital thus employed is invested for that purpose in securities by way of loan, dis- count, or otherwise, which are from time to time, according to the rules of the business, reduced again to money and reinvested. It includes money in the hands of individuals em- ployed in a similar way, invested in loans, or in securities for the payment of money, either as an investment of a per- manent character or temporarily with a view to sale or repay- ment and reinvestment. * * * * This definition of mon- 60 ATTORNEY GENERAL'S OPINIONS eyed capital in the hands o£ individuals seems to us to be the idea of the law, and ample enough to embrace and secure its whole purpose and policy." The valuation of moneys and credits for the purpose of taxation as contemplated by the new act, undoubtedly has reference to the market value, what the value actually is. As to your third question, I hardly know what to say. The board of supervisors in fixing the compensation of assessors this year, did so in view of the work to be done under the old law and virtually fixed the amount of time that was to be devoted to the work. The duties to be performed under the new act are not made necessary because of any neglect or omission of duty on the part of the assessors, but is due to a fault in the previous law, and it seems to me that where any material additional time is required to bring the assessment of the matters covered by the new act in harmony therewith, it would be only fair and equitable that addi- tional compensation be made to the assessors. In. any event, if the board of supervisors are disposed to allow additional compensation proportionate to the extra amount of time put in, I think it would be all right. Of course, you will not regard the statements herein in the light of an official opinion. They are largely the personal views of the writer, and made without opportunity of full investigation of the subject. Yours truly, N. J. Lee, Special Counsel. BoAKD OF Review— Meetings op. — The meeting of the board of review need not be published. The only persons interested are those notified to appear. May 31, 1911. John F. Dermody^ Town Clerk, Saint Ansgar, Iowa. Dear Sib : Your letter of the 8th inst. addressed to the attorney general has been referred to me for reply. Your first question, briefly stated, is whether or not the final meeting of the board of review must be an open and public meeting or whether their final action may be taken in private. ATTORNEY GENERAL'S OPINIONS 61 In my judgment, there is no necessity for this meeting being a public one. The only persons interested are the ones to whom notice has been given by the board of its intention to increase their assessment. They should, of course, have ample opportunity to appear with their counsel and such witnesses as they desire to use before the board, and there is no reason why the public generally might not be excluded from the meeting. Your second question is whether or not the final meeting of the board may be transferred from the usual place to a room across the street, and persons interested required to appear at the latter place of meeting. Code section 1370 provides : ' ' The board shall meet on the first Monday of April at the office of the township, city or town clerk or recorder, and sit from day to day until its duties are completed. ' ' Code section 1372 provides: "At the conclusion of the action of the board, the clerk shall post an aphabetical list of those whose assessments are thus raised. "The board shall hold an adjourned meeting with at least five days intervening after the posting of notices before final action, and the posted notices shall state the time and place of holding such adjourned meeting, which time and place shall also be stated in the proceedings of the board." It will thus be seen that the law fixes the place at which these meetings should be held, viz., at the office of the township, city or town clerk or recorder. In the case of Funk vs. Carroll County, 64 N. W., 768, it was held by our supreme court that where the law fixed the time and place of holding a district court and the judge adjourned the court to a private house for the purpose of a trial that the court thereby lost jurisdiction and that the proceedings at the house were of no effect, and I see no season why the same rule should not apply to proceedings of the board of equalization. With reference to the assessment of moneys and credits the new law, section 1 of senate file 387 requires all parties to furnish the assessor, upon demand, a full, complete, itemized sworn statement, showing the amount of same. Yours truly, C. A. Bobbins, Assistant Attorney General. 62 ATTORNEY GENERAL'S OPINIONS Road Dbag Fund. — The one mill road drag fund provided for in the new law is in addition to the six mill tax authorized to be levied by the statutes under code supplement section 1528. Mr. V. A. BuELEY, County Auditor, June 26, 1911. Sibley, Iowa. Dear Sir : Replying to your letter of the 23rd inst. to the at- torney general in which you request to be advised as to whether the one mill to be levied for dragging fund under the new road drag law is included in the six mills that the trustees are author- ized to levy before the enactment of such law, will say that such one mill for dragging fund is not so included but is in addition to the maximum that could be levied by the trustees under section 1528 of the supplement to the code, 1907. Yours very truly, N. J. Lee, Special Counsel. Soldiers' Exemptions. — The widow of a Union Soldier who re- marries one not a soldier and again becomes a widow is not entitled to the exemption provided for soldiers' widows by code supplement section 1304. Hon. R. L. McCord, July 1, 1911. Sac City, Iowa. Dear Sir: Your letter of the 23rd of May to the attorney general requesting his opinion as to whether the widow of a Union soldier who afterwards remarried and again became a widow, is entitled to claim the exemption under section 1304 of the supple- ment to the code, 1907, has not been noticed before now because of the unusual amount of official business to be cared for. I have not gone into this matter very thoroughly but am inclined to agree with the conclusion that you have reached, viz., that a strict construction of the provision of the statute would not entitle such widow tosuch exemption, having in mind that taxation is the general rule and that exemptions are the exception and, literally, she did not remain unmarried after the death of her first husband. The assessor might allow exemptions to such persons on other grounds subject to the approval of the board of supervisors under another subdivision of the same section. Respectfully yours, N. J. Lee, Special Counsel. attorney general's opinions 63 Sheriff — Fees op When Performing Duties in Justice Courts. — The fees of a sheriff when performing the duties of a con- stable in justice court are those allowed constables, July 7, 1911. Mr. John H. Crowell, Eockford, Iowa. Dear Sir : Yours of the 6th inst. addressed to the attorney gen- eral has been referred to me for reply. Your question, briefly stated, is, "what fee is a sheriff or deputy sheriff entitled to for serving a warrant issued by a justice of the peace ? ' ' The answer to your inquiry will be found in subdivision 23 of code supplement, section 511, which provider : "When sheriffs perform official duties in justice courts, their fees shall be the same as allowdd constables," and in subdivision 13 of code section 4598, which provides the fee for constables as follows: "For serving each warrant of any kind, seventy-five cents. ' ' Yours very truly, C. A. ROBBINS, Assistant Attorney General. County Attorney — ^Duty op — School Fund Loans. — It is not the duty of the county attorney to examine abstracts of title submitted to the county auditor in connection with a loan on the school fund but the county auditor may consult the county attorney in connection therewith. July 12, 1911. Mr. B. J. RiEGEb, Rock Rapids, Iowa. Dear Sir: You inquire, first whether you as a county auditor have a right to request the county attorney to examine an abstract of title submitted to you in connection with making a loan from the permanent school fund. Second, whether you as county auditor have the authority to submit such abstract of title to a private attorney for his opinion thereon, if it is not the duty of the county attorney to examine same, and to charge the fees of such private attorney for said service to the borrower. 64 ATTORNEY GENERAL'S OPINIONS Third, if the county attorney does examine such abstract when requested by the county auditor, is he entitled to charge a fee for that service and, if so, is such fee properly chargeable to the borrower? Section 2850 of the supplement to the code, 1907, makes it the duty of the county auditor to examine any abstract of title which the proposed borrower from the school fund may submit and he is required to perform certain other services in connection with the making of loans from the permanent school fund, and for such services he is allowed $2.00 in addition to his regular compensation, which is paid by the borrower. While the county attorney is the official adviser of the board of supervisors and other county offi- cers, including the county auditor, yet he may not be required to do everything which such officers may request him to do. Sub- division 7 of section 2, chapter 17, acts of the thirty-third general assembly, requires the county attorney to give advice or his opinion in writing, without compensation, to the board of supervisors and other county officers, when requested so to do by such board or officers, upon all matters in which the state or county is interested or relating to the duty of the board or officer in which the state or county may have an interest. If it should be held that it is the duty of the county attorney to examine all such abstracts, then that officer would be performing a duty which has been expressly cast upon the county auditor. If it was the intention of the legis- lature that the county auditor need only pass the abstract of title over to the county attorney for such examination as is usually made of such instruments, it probably would have employed more suitable language to have expressed that intention. It is my opinion that the language in section 2850 of the supplement to the code, 1907, referred to, means just what it says, viz., that the county auditor shall examine the abstract of title there referred to. But I do not want to imply from what I have said that the county auditor may not, under any circumstances, request the advice or opinion of the county attorney with respect to questions that may arise in connection with the examination of such abstracts of title, for I think that if any doubt should arise in the mind of the county auditor as to the sufficiency of the title disclosed by the abstract that he might very properly submit such questions to the county attorney for his opinion, and in such cases as the county auditor is authorized to request the opinion of the county attorney in such matters the county attorney would not be permitted to make any charge for his opinion or service. ATTORNEY GENERAL'S OPINIONS 65 I do not think the county auditor, under any circumstances, would be authorized to submit such abstracts of title to a private attorney for examination at the expense of the borrower or at the expense of the county. Respectfully yours, N. J. Lee, Special Counsel. Shekipp— Compensation for Obtaining Evidence. — There is no authority for the county supervisors to reimburse the sheriff for sums paid out by him in obtaining evidence from a prisoner confined in jail. July 18, 1911. Hon. Wm. Dennis, Marion, Iowa. Deae Sir: I am directed to reply to your letter written some time ago to the attorney general requesting to be advised as to the legal right of Linn county to reimburse and compensate the sheriff of Linn county for certain moneys advanced and paid by him in obtaining evidence from a prisoner confined in jail. With reference to the question you submit, I may say that it is not one upon which the attorney general is authorized to officially advise you or the sheriff. The county attorney is the ofiSeial ad- viser of county officers. I suppose, however, you had some purpose in not submitting the question to that official and in making the request of this department. While, as stated, I cannot officially advise you, I am permitted to say in a personal way, as a courtesy to you, that it is extremely doubtful if your county has the authority under the facts stated by you, to recognize and pay the sheriff the amounts he so ex- pended, in fact, T do not think it can be done, although there would seem to be very much merit iii the claim and that it was expended with the best of motives and good results were obtained thereby and the county and state were the beneficiaries of such expenditui-e. Respectfully yours, N. J. Lee, Special Counsel. 66 ATTORNEY GENERAL'S OPINIONS Exemptions of Property from Taxation. — ^Lands held by an agri- cultural association in order to be exempt from taxation under code supplement section 1304 should not be leased for a valu- able consideration. July 18, 1911. Mb. Joseph C. Campbell, Charles City, Iowa. Dear Sir: Your letter of April 29th to the attorney general has been referred to me for reply. Your question briefly stated is, whether or not the lands (26 acres in extent) owned by the Floyd County Agricultural & Me- chanical Association are exempt from taxation under section 1304 of the code when it is leased for $300.00 per year. Subdivision 2 of the section provides: "All grounds and buildings used for public libraries, in- cluding libraries owned and kept by private individuals, asso- ciations or corporations for public use, and not for private profit, and for literary, scientific, charitable, benevolent, agri- cultural and religious institutions, and societies devoted solely to the appropriate objects of those institutions, not exceeding 160 acres in extent, and not leased or otherwise used with a view to pecuniary profit * * * * are not to be taxed." It necessarily follows from the fact that the property in question is leased for $300.00 per year and has been so leased for a number of years, that it is both leased and held with a view to pecuniary profit within the meaning of this section and, hence, is not entitled to the exemption. You will understand that this is not a matter upon which this department is authorized to render an official opinion and that the foregoing is the personal view of the writer. Yours very truly, C. A. Bobbins, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 67 Peddler's License — Annual. — Section 1347-aj code supplement, providing for the licensing of peddlers makes provisions for an annual license only, and there is no provision or authority for accepting less than the annual license fee where the license is desired for less than one year. July 18, 1911. County Attorney J. P. Kirby, Williamsburg, Iowa. Dear Sir : I am in receipt of your communication of the 17th instant advising that you have construed section 1347-a, supple- ment to the code, relating to the licensing of peddlers to mean that only an annual license may be granted; that is to say, that there is no authority for granting a license for six or three months or any shorter period than one year. You request to be advised as to whether I concur in this interpretation of the law. The department has had occasion frequently to construe this question and we have universally held that the law contemplates only an annual license. The wording of the act makes this clear wherein it states: "Peddlers plying their vocation in any county in this state outside of a city or incorporated town, shall pay an annual county tax of twenty-five dollars for each pack peddler or hawkers on foot, fifty dollars for each one horse conveyance, and seventy-five dollars for each two-horse conveyance." Evidently an annual county tax does not mean a semi-annual or quarterly tax. Yours very truly, George Cosson, Attorney General. County Auditor — Extra Compensation not Allovsted for Re- ceiving Proof on Pocket Gophers. — The county auditor is not entitled to extra compensation for services in receiving proof of the destruction of pocket gophers where such proof is received for collecting bounty allowed by law. July 19, 1911. Hon. 0. W. Witham, Greenfield, Iowa. Dear Sir : Your letter of the 17th inst. to the attorney general in which you say your county has paid a bounty of 8 cei '^ I ;■ 68 ATTORNEY GENERAL'S OPINIONS pocket gophers and allowed the auditor and justice of the peace 2 cents for each gopher as compensation for their services in re- ceiving proof, and that you had advised that the county auditor was not entitled to any compensation when the proof was made before him, but that a justice of the peace was entitled to such compensation when acting as registrar and taking proof of the destruction of the gopher, as provided by law, and requesting to be advised whether your ruling is correct, was referred to me for reply. The county auditor of your county has submitted substantially the same question, I understand, and he was advised that the question should be submitted to the county attorney and if there was doubt in his mind, that this department would render such assistance as it could. I assume from your statement that the bounty in question was paid prior to the taking effect of chapter 101, acts of the thirty- fourth general assembly, which amends section 2348-a of the supple- ment to the code, 1907, so as to fix the bounty at 10 cents for each pocket gopher, no more and no less. I think you were entirely correct- in holding that the county auditor was not entitled to any compensation in connection with the receiving of proof of the destruction of pocket gophers for the purpose of collecting bounty. The provision in the law which per- mits the county board of supervisors to appoint registrars does not directly authorize' the board to pay any compensation for the serv- ices to be rendered by such registrars and I think it extremely doubtful whether the board can pay for such service out of the county funds. I do not believe the board can apportion the bounty between the person destroying^.the- gopher and the person who re- ceives the proof because the bounty clearly belongs to the person who destroys the gopher and makes proper proof. EespectfuUy yours, "N. J. Lee, Special Counsel. ATTORNEY GENERAL'S OPINIONS 69 Marriage Licenses — ^When Issued. — ^Unless the clerk of the court to- whom application is made for marriage license is acquainted with the parties he must take the testimony of competent and disinterested witnesses showing that the parties are competent to contract marriage. July 20, 1911. Mr. August Kruegee, No. 9952, Ft. Madison, Iowa. Dear Sir: Your letter of the 9th inst. addressed to Attorney General Cosson has been handed to me for reply. You first inquire whether there is any law in this state fixing the age at which children may be permitted to testify in court proceedings. "We do not have any statute covering this subject and courts permit children to testify where it is shown that they understand the nature and solemnity of the oath. This is a matter to be determined by the court. In your second inquiry you ask if there is any law requiring a couple who make application for marriage license to make affidavit as to their age. . Section 3142 of the code reads as follows: "Unless the clerk is acquainted with the age and qualifica- tion of the parties for the marriage of whom the license is asked, he must take the testimony of competent and disinter- ested witnesses on the subject. He must make an entry of each application made for the issuance of a license, stating that he was acquainted with the parties and knew them to be competent to contract a marriage, or that the requisite proof of such fact was made to him by one or more witnesses named, in a book kept for that purpose, which shall constitute a part of the records of his office." If either party making application for a license is a minor, it is necessary for such party to have the consent of his or her parents or guardian. Yours very truly, John Fletcher, Assistant Attorney General. 70 ATTORNEY GENERAL'S OPINIONS Taxation — Bank Stock — Deductions. — In taxing the shares of stock in national banks no deductions should be made on ac- count of the fact that part of the capital of the bank may be invested in non-taxable securities. July 21, 1911. Mr. F. p. Henderson, Indianola, Iowa. Dear Sir: Again referring to the taxation of stock to share- holders in national banks, I regret that I have not had time since writing you on June 3d to re-examine the question; but after a re-examination I find my letter to you on June 3d expresses my opinion upon the question, and that is that if a law taxes only the shares of stock of national, state and savings banks and loan and trust companies to the individual shareholder, and there is no dis- crimination between national banks and other banks and other moneyed capital as the term is used in section 5219 of the revised statutes of the United States, that this does not amount to a tax upon United States securities, and that therefore no deduction may be made. In the case of Home Savings Bank vs. Des Moines, 205 U. S., page 503, the court on page 517 said: The tax on an individual in respect to his shares in a corporation is not regarded as a tax upon the corporation itself." And on page 518, the court said: "The Van Allen ease has settled the law that a tax upon the owners of shares of stock in corporations in respect of that stock is not a tax upon United States securities which the corporations own. * * * * The theory sustaining these cases is that the tax was not upon the corporations' holdings of bonds,^ but- on the shareholders' holdings of stock, and an examination of them shows that in every ease the tax was assessed upon the property of the shareholders and not upon the property of the corporation * * * * On the other hand, whenever, as in these cases, the tax has been upon the property of the corporation, so far as that property has consisted of such securities, it has been held void." Yours very truly, George Cosson, Attorney General. ATTORNEY GENERAL'S OPINIONS 71 Salaries op County Officers — How Determined. — ^Where the population is changed as shown by the last preceding national or state census and the compensation of a public officer is made to depend upon the population, it will be governed by the population as shown by the new census. July 24, 1911. County Attorney E. M. Sarin, Northwood, Iowa. Dear Sir: I am in receipt of your communication of the 22d instant directing my attention to chapter 3, acts of the thirty- fourth general assembly, and requesting an opinion as to the exact date this act affects salaries of county officers in the event the popu- lation is either increased or decreased by the federal census. Section 1 of the act provides: "Whenever a general census is taken by the national gov- ernment, it shall be the duty of the secretary of state to pro- cure from the supervisor of such census, or other proper fed- eral official, a copy of such part of said census as gives the population of the state of Iowa, by counties, and the popula- tion of the cities and towns of Iowa, emd file the same in his office. He shall then, at once, cause such census report, giving the population of the state by counties, and the population of the cities and towns of Iowa, to be published once in each of two daily newspapers of the state having general circulation, and from and after the date of such publication said census shall be in full force and effect throughout the state. ' ' It is to be observed that the section provides that it shall be in full force and effect from and after the date of the publication of said census. Publication of the census was made on the 27th day of March, 1911, and hence from and after that date the salaries of your county officers, which are governed by the population, will be con- trolled by the new census. This seems to me to be so clear as to be beyond controversy. Yours very truly, George Cosson, Attorney General of Iowa. 72 ATTORNEY GENERAL'S OPINIONS Land Contracts — Taxation op. — A land contract when taxable as moneys and credits should be taxed for the year com- mencing January 1st next after its date. July 29, 1911. Hon. J. P. Heetert, Harlan, Iowa. Dear Sir : Your letter of the 27th inst. to the attorney general was referred to me for reply. You inquire whether a contract of sale of a tract of land en- tered into in September last is assessable to the vendor as a credit for the year 1910. I do not understand that right to tax this contract as a credit at all is involved but merely whether it should be listed for taxa- tion for the year 1910. As to whether it is liable to be assessed at all would depend somewhat upon its terms, but I assume from what you say that it is liable. The cases reported in the 122nd Iowa at page 375 and in the 126th Iowa, page 637, would prob- ably determine whether the contract is subject to assessment. In these cases there was no attempt to assess them as for the year in which they were made but the supreme court held that they should be assessed for the year following their making. In view of the fact that all property is valued and listed for the purpose of taxation as of January 1st in each year, it would seem that the contract you mention would not be assessable for the year 1910. Yours very truly, N. J. Lee, Special Counael. Banks — Private — Taxation of. — The taxation of private banks is covered by code sections 1305 and 1321, supplement to the code, 1907, as amended, the provisions of which are discussed. July 29, -1911. Mr. Milton Updegrapf, Department of Navy, Washington, D. C. Dear Sir: Your letter of the 26th instant addressed to the attorney general was referred to me for reply. ATTORNEY GENERAL'S OPINIONS 73 ■ I note that you desire to know the present law concerning the taxation of moneys and credits in this state, and particularly the taxation of the stock of private banks, and request to be furnished a copy of the law. Our last general assembly passed an act providing for the taxa- tion of shares of stock in state and national banks, trust com- panies, moneyed capital and moneys and credits, a copy of which I enclose. There is another section of our statute which deals with the taxation of private banks, being section 1321 of the supplement to the code, 1907, which reads as follows: "Private banks or bankers, or any person other than cor- porations hereinafter specified, a part of whose business is the receiving of deposits subject to check, on certificates, receipts, or otherwise, or the selling of exchange, shall prepare and fur- nish to the assessor a sworn statement, showing the assets, aside from the real estate, and liabilities of such bank or banker on January first of the current year, as follows : "1. The amount of moneys, specifying separately the amount of moneys on hand or in transit, the funds in the hands of other banks, bankers, brokers or other persons or corporations, and the amount of checks or other cash items not included in either of the preceding items; "2. The actual value of credits, consisting of bills receiv- able, owned by them, and other credits due or to become due. "3. The amount of all deposits made with them by others, and also the amount of bills payable ; - "4. The actuall value of bonds and stock of every kind and shares of capital stock or joint stock of other corpora- tions or companies held as an investment, or in any way ■ -representing assets', and the specific kinds and description thereof exempt from taxation; "5. All other property pertaining to said business, includ- ing real estate, which shall be specially listed and valued by the usual description thereof; "The aggregate actual value of moneys and credits, after deducting therefrom the amount of deposits and the aggre- gate actual value of bonds and stocks, after deducting the portion thereof .otherwise taxed in this state, and also the other property pertaining to the business, shall be assessed as .pr'cJvidecf by action thirteen hundred and five (1305) of this 74 ATTORNEY GENERAL'S OPINIONS chapter, not including real estate, wMcli shall he listed and assessed as other real estate." I have quoted this section as amended by section 2 of the act which I enclose. The act I enclose is now officially designated as chapter 63, acts of the thirty-fourth general assembly. Yours very truly, N. J. Lee, Special Cownsel. Publication of Official Peoceedings. — The report of the county treasurer, the board of supervisors and township clerks should be published in itemized form but the report of the expert accountant showing result of his examination of the books of the county officers is not part of the board proceedings and need not be published. Mr. 0. E. Smith, August 7, 1911. Spirit Lake, Iowa. Dear Sir : Yours of the 3rd inst. addressed to the attorney gen- eral has been referred to me for reply. Your questions briefly stated are: "1. Should the county treasurer's report be published at the close of the business, January and July 1st, of each year? "2. Is it not necessary that all board proceedings be published under the laws of Iowa? "3. Should not the reports of the township clerks be pub- lished in itemized form? "4. Should the expert accountant's report of his examination of the books of the county officers be published as board pro- ceedings?" ■ I think each of the foregoing interrogatories should be answered in the affirmative, except the last one, which should be answered in the negative. For decisions bearing upon this matter, I call your attention to the following cases: Eedslett vs. Eoward County, 58 Iowa, 377; McBride vs. Hardin County, 58 Iowa, 219; Clark vs. Lake, 124 N. W. 866. Yours truly, ^|__ _ C. A. Jkffipms, ' ' Assigtan~t AtWrney &&htrtil- ATTORNEY GENERAL'S OPINIONS 75 Cities and Towns^Use op County Jail. — Cities and towns have the right to use the county jail for the confinement of prison- ers but are liable to the county for the cost of keeping such prisoners. August 21, 1911. Mb. F. B. Hansen, Eddyville, Iowa. Deae Sir: Yours of the 14th inst. addressed to the attorney general has been referred to me for reply. Your inquiry is with reference to the right of the constable to have access to and the use of the jail. I know nothing about the former conference be- tween the constable and the attorney general, and you fail to state in your letter whether or not the jail is one maintained by the city or by the county. Inasmuch as your town is not the county seat I assume that the jail to which you refer is one maintained by the city, under code section 735, which provides: "Cities and towns shall have power to erect, establish, and maintain a city jail which shall be in keeping of the marshal, under such rules and regulations as the council shall pro- vide." Unless the council had adopted the rule or regulation by which county prisoners could be kept in this jail, a constable having in charge a prisoner charged with or convicted of a crime against the state laws as distinguished from the ordinances of the city, would not have the absolute right to confine prisoners in such jail. But he would have the right to confine such prisoners in any county jail within the county. Code section 735, above cited, further provides: "Any city or town shall have the right to use the jail of the county for the confinement of such persons as may be liable to imprisonment under the ordinances of such city or town, but it shall be liable to the county for the cost of keeping such prisoners." There is no corresponding provision in the statute authorizing counties to use city jails by compensating the city for the cost of keeping such jails, and for this reason the city marshal would have exclusive control of the city jail in the absence of a rule or regula- tion by the council as above suggested. 76 ATTORNEY GENERAL'S OPINIONS If the ordinances of the town provide ample ptinishment for the crime in question, prosecutions could be instituted under- the ordinances instead of under the state laws, and thus avoid all question as to the right to use the city jail. I take it, however, from your letter that the officers of the town are not strong on law enforcing, and while this may be true, yet in a clear case they would hardly dare to fail to perform their duty, especially in view of chapter 78 of the laws of the thirty-third general as- sembly, section 1 of which provides: "Any county attorney, sheriff, mayor, police, marshal, or constable, shall be removed from office by the district court or judge upon charges made in writing and hearing there- under for the following causes: "1. For wilful or habitual neglect or refusal to perform the duties of his office. "2. For wilful misconduct or maladministration in office. "3. For corruption." Yours truly, C. A. EOBBINS, Assistant Attorney General. Automobiles — Age op Operator. — ^Persons under age of fifteen years not authorized to operate a motor vehicle unless accom- panied by the owner. August 24, 1911. "Waldo Lundt, Linn Grove, Iowa. Dear Sir: Answering your inquiry of the 3rd inst. addressed to the attorney general, I will say that a person under fifteen years of age is not authorized to operate a motor vehicle unless accompanied by the owner thereof. EespectfuUy yours, N. J. Lee, Special Counsel attorney general's opinions 77 City Officials— Compensation Not to be Changed Dxjeing Teem OF Office. — Code section 667 prohibits any change in the compensation or emoluments during term of office for which they are appointed or elected. September 5, 1911. Mr. S. W. Beyant, Centerville, Iowa. Deae Sir: Tours of the 4th inst., addressed to the attorney general, has been referred to me for reply. Code section 667 is the provision that would govern in your case, and it provides in substance as stated by you, that the com- pensation or emoluments of city officers shall not be changed dur- ing the term of office for which they are elected or appointed. In order to make the matter doubly sure, it is further provided that no person shall be eligible to re-election or reappointment after having resigned for any part of the term covered by his previous election or appointment, where there had been an in- crease made in the compensation. Our supreme court has held in the case of Cox vs. Burlington, 43 la., 612, that such an increase could not be made during the interim between the election and the qualification of the officer. And the. rule that the compensation could not be increased was again recognized in the case of Council Bluffs vs. Waterman, 86 la., 688. It is, therefore, my opinion that there is no way in which the compensation of a city officer can be increased during the term of office; and if the matter is of sufficient importance that the in- crease be made, that the only way I know of would be to permit the present officers to resign, the increase be made, and the new offi- cers be elected or appointed. While this is probably not what your city would desire to do, yet it is the only way that an increase could be made at the present time. An increase might be provided for now to take effect with the next regular election or appointment of officers. Yours truly, C. A. ROBBINS, Assistant Attorney General. 78 ATTORNEY GENERAL'S OPINIONS Automobiles — Registration — ^Kinds Exempt. — Chapter 72, acts of the thirty-fourth general assembly providing for the reg- istration of automobiles excepts from its operation motor trucks, motor drays, motor delivery wagons, traction engines, road rollers, fire wagons and engines, police patrol wagons, ambulances and such vehicles as run only upon rails or tracks. September 5, 1911. County Attorney C. N. Jepson, Sioux City, Iowa. Deae Sie : I am in receipt of your communication of the 28th ultimo advising that the question has been presented as to the necessity of registration of motor trucks, drays and wagons, and automobiles used for this purpose, and the payment of the an- nual registration fee as prescribed by chapter 72, acts of the thirty-fourth general assembly. Section 2 chapter 72 aforesaid provides that the term "motor vehicle" as used in said act, except where otherwise expressly provided "shall include all vehicles propelled by any power other than muscular power, except motor trucks, motor drays, motor de- livery wagons, traction engines, road rollers, fire wagons and en- gines, police patrol wagons, ambulances, and such vehicles as run only upon rails or tracks." It will be noted that the act does not except an automobile used as a motor truck, a motor dray or motor vehicle. I am of the opinion, however, that the term properly construed would include all motor vehicles which were constructed exclu- sively for the purpose of a truck, dray or delivery wagon, and not»for the purpose of transportation of persons, and that said term would also include automobiles which had been so trans- formed by the owner as to be available only for use as a motor truck, delivery or dray wagon and actually used exclusively as such truck, dray or delivery wagon. If, however, the automobile is left in such condition that it either can or is used for pleasure or business in the way of transporting passengers instead of freight, that application for registration number should be made in the regular way and the regular registration fee paid ; in other words, I am of the opinion that any automobile which is in condition to be used for the transportation of passengers, or which is ac- tually used in the transportation of passengers should be regis- tered, numbered and fee paid, and that an automobile so modified ATTORNEY GENERAL'S OPINIONS 79 in its construction that it can only properly be used in the trans- portation of freight, coupled with the fact that it is exclusively used for such purpose, would bring it within the exception of section 2, chapter 72 of the acts of the thirty-fourth general as- sembly; in which event, no registration would be necessary and no fee required thereon. This is also the position taken by the secretary of state. Yours very truly, 4i» George Cosson, Attorney General of Iowa. Special Assessments — ^Rate of Interest After Delinquent. — Special assessments levied under provisions of code section 825 draw the rate of interest fixed in the ordinance until such as- sessment becomes delinquent, after which the interest is at the rate of one per cent per month the same as other delinquent taxes. September 7, 1911. Mr. C. C. Hunt, Secretary County Treasurers' Association, Montezuma, Iowa. Dear Sir : Your letter of August 30th, addressed to the attor- ney general, has been referred to me for reply. Your question briefly stated is: "What rate of interest or penalty should be collected on special assessments after such assessments become delinquent, under the provisions of code section 825?" This section provides for the levying of special assessments, and that when the owner of the property takes certain steps he is en- titled to pay the special assessment in seven equal annual instal- ments, with interest prescribed by the ordinance not exceeding six per cent. It will be observed that the first instalment of the assessments is payable on the date of such assessment, and the others, with in- terest on the whole amount not paid, annually thereafter, at the same time and in the same manner as the March semi-annual pay- ment of ordinary taxes ; and that, where the owner of the property does not avail himself of the right to pay in annual instalments, the whole assessment "shall mature at one time and be due and 80 ATTORNEY GENERAL'S OPINIONS payable, with interest, on the date of such assessment, shall be col- lected at the next succeeding March semi-annual payment of or- dinary taxes." "All such taxes with interest shall become delin- quent on the first day of March after their maturity, and. shall bear the same interest with the same penalties as ordinary taxes." Turning to section 1413 of the code, which provides the interest and penalty for ordinary taxes, we find the following language : ' ' If the first instalment of taxes "shall not be paid by April 1st, the whole shall become due and draw interest as a penalty of one per cent per month until paid from the first of March following the levy." It is a well established rule that a statute imposing or creating a penalty is to be strictly construed, and no penalty exacted there- under which is not clearly provided therein. "With this rule of law in mind, it would seem to be clear that the six per cent interest (if that be the amount provided for in the ordinance) should be com- puted from the date of the maturity of the assessment until the date on which it became delinquent, and that thereafter the in- terest or penalty should be one per cent per month upon the de- linquent instalment, the same as ordinary taxes. The phrase "and shall bear the same interest with the same penalties, ' ' made use of in the latter part of section 825, was prob- ably employed, not for the purpose of providing a penalty in addi- tion to the interest, but because the interest provided for delui- quent ordinary taxes was designated by the words." interest, as a penalty." In other words, the latter part of section 825 should be construed the same as though it. read "and shall bear the. same. interest. or penalty as ordinary taxes." .While the meaning of. the language is not. entirely, clear,, and. I can see that some might claim a different construction, yet in view. of the rule referred to, I firmly believe that the courts would con^ strue this section as above indicated. Yours truly, C. A. .ROBBINS, Assistant Attorney General, . . ATTORNEY GENERAL'S OPINIONS 81 Poll Taxes — "Who Required to Work. — -An able bodied man who reaches his forty-fifth year before the expiration of the road working period should be warned out before reaching the age of forty-five or he will not be bound to work his poll tax that year. Me. Robert E. Groves, September 9, 1911. Douds Leando, Iowa. Dear Sir : Replying to your letter' of the 7th inst., addressed to the attorney general, will say that the provision, with reference to poll tax is found in section 1550 of the code supplement and reads as follows: "The road supervisor shall require all able-bodied male resi- dents of his district, between the ages of twenty-one and forty- five, to perform two days' labor upon the roads, between the first day of April and October of each year." In my opinion, a proper construction of this section would authorize the supervisor to require a man to work the two days in each and every year after he was twenty-one years of age, until he was forty-five years of age, i. e., if during the current year he reached the age of forty-five before the 1st day of April, then he would not be liable for that year, even though his name was on the books as age 44. If he is to reach the age of forty-five years be- tween the 1st day of April and the 1st day of October, then in order to' get the work for that year, he must be warned out in time so that he can do the work before he reaches his forty-fifth birth- day; otherwise, he will not be liable for that year. Yours truly, C. A. ROBBINS, Assistant Attorney General. Insane.:Peesons— Custody OP Before Commitment. — ^Where a •;. person is charged mth being insane it is the duty of the com- missioners to provide for his custody until their investigation . shall be concluded and they may surrender him to the sheriff . . and he may be kept inthe county jail in charge of the sheriff. Wm.L. Becker, September 13, 1911. ; : : Prejsiderit Commissioners of Insanity. ;/: Dubuque, Iowa. Dear Sir: Mr. T. J. Fitzpatrick, of your city, recently ad- dressed a letter .to the attorney generaLin which he requested that ;;- ^•■- ■■ ■-'■ ■■■"■••■ ■-"' ■ ^ -: --■■-■• -• ■■:.-'- - •■ . 82 ATTORNEY GENERAL'S OPINIONS you be advised with, reference to the authority of commissioners of insanity to confine a person charged as being insane pending a hearing, which letter has been referred to me for reply. The weight of authority is to the effect that an adjudication of insanity is a prerequisite to commitment to an asylum. 22 Cyc, 1158, Note 85. However, our statute, code section 2265, provides with reference to the authority of the commissioners as follows: "And may require that the person for whom such admission is sought be brought before them. * * * They may issue their warrant therefor, and provide for the custody of such person until their investigation shall be concluded, which war- rant may be executed by the sheriff or any constable of the county. ' ' Section 2271 provides: "In the case of public patients the commissioners shall re- quire that they be in like manner restrained and protected and cared for by the board of supervisors at the expense of the county, and they may accordingly issue their warrant to such board, who shall forthwith comply with the same. If there is no poor house for the reception of such patients, or if no more suitable place can be found they may be confined in the jail of the county in charge of the sheriff." While it is true that the latter provision above quoted confers upon the board authority to provide with reference to the custody of the patient after the person has been found to be insane and pending an appeal, yet it seems to me that the authority conferred by the first cited section to "provide for the custody" would authorize the board to make specifically the same provision as is by the statute made in section 2271, and while they would have no authority to commit the party to an insane asylum for any specific length of time, yet the mere fact that the place in which they ordered him to be cared for pending their investigation happens to be a private hospital in which insane persons are kept and cared for would not render such restraint illegal or render the mentbers of the commission liable for damages on account of their having ordered him to be there confined. It should be borne in mind, however, that the statute contem- plates a speedy investigation and it would only be in a rare c^e ATTORNEY GENERAL'S OPINIONS 83 that there would be any necessity for such order. In fact, I doubt if any such order would be necessary in any case. The warrant of the commissioners to the sheriff or constable is sufficient authority under which the patient might be retained in custody by the sheriff or constable and it might well be left to the sheriff or constable having the patient in custody to arrange for a place in which to keep the patient until the conclusion of the investigation. Yours very truly, C. A. Bobbins, Assistant Attorney General. Soldiers— Funeral Expenses op— How Paid.— The funeral ex- penses of honorably discharged, indigent United States soldiers may be paid from the fund provided by the tax authorized in code supplement section 430. September 18, 1911. Hon. Wm. J. Greene, Clinton, Iowa. My Dear Sir: Your letter of the 16th inst. to the attorney general was referred to me for reply. You request an opinion as to whether the funeral expenses of an honorably discharged soldier of the United States can be paid from the fund provided by the tax referred to in section 430 of the supplement to the code, 1907, unless it be shown that such soldier did not leave sufficient means to defray the expenses of his funeral. Section 430 referred to provides that a tax may be levied to create a fund for the relief of and to pay the funeral expenses of honorably discharged indigent United States soldiers, sailors, etc. It appears from this that in order to be entitled to have such ex- penses paid from this fund the deceased soldier must have been indigent. I take this to mean dying without sufficient means to defray the expenses of a suitable funeral. I think this relates to the financial condition of the deceased and not to the ability of relatives to provide burial. A substitute was enacted for section 433 of the supplement to the code, 1907, which provides that the board of supervisors shall designate some suitable person in each township to cause to be decently interred the body of any honorably discharged soldier. 84 ATTORNEY GENERAL'S OPINIONS sailor or marine who served in the army or navy of the United States during any war, who may die. without leaving sufficient means to defray the expenses of his funeral. I think, therefore, such funeral expenses are authorized to be paid where the circumstances of the deceased were as above sug- gested, regardless of the financial condition of the widow and I do not believe that the widow can be required to make a. showing to the eifect that she is indigent or is a pauper before the funeral expenses of her deceased husband are paid out of this fund. Respectfully yours, N. J. Lee, Special Counsel. County Officers — Compensation — Extra Compensation Not Permitted. — No contract may lawfully be made looking to allowance or payment to a public officer of any other or greater compensation than that fixed by law. September 18, 1911. E. B. Stiles, County Attorney, Manchester, Iowa. Dear Sir : Replying to yours of the 16th inst. addressed to the attorney general in which you make inquiry as to the duty, as well as the right of the board of supervisors to allow the county auditor extra compensation on account of the extra work imposed by the last legislature, will say that the attorney general has no recollection of having made any oral statement such as that to which you refer. If any such statement was made either by the attorney general or by any of the assistants, it was doubtless along the line that the legislature should provide additional compensa- tion for the extra work imposed. I think the matter is controlled by the decision of our supreme court in the case to which you refer, Benton vs. Decatur county, Iowa, 36 Iowa, 504. See also Massie vs. Harrison county, 129 Iowa, at 280, where the supreme court says : ' ' and we have distinctly ruled in several cases that no contract can be made looking to the allowance or payment to a public officer of any other or greater compensation than that fixed by law." And if public money is paid pursuant to such a eon- tract it may be recovered back. Massie vs. Harrison county, 129 Iowa, at 280. Heath vs. Albrook, 123 Iowa, 559, at 568. Very truly, C. A. ROBBINS, Assistant Attorney General. attorney general's opinions 85 Public Officials — Elective Officers Must be Citizens — Ap- , pointive. Officers Doubtful. — None but qualified electors may told an elective office. Whether one not a qualified elector is eligible to an appointive office, query. September 26, 1911. Mr. James Graham, MoviUe, Iowa. Dear Sir: Yours of the 25th inst. addressed to the attorney general has been referred to me for reply. The question is, whether or not one not a citizen of the United States can hold an appointive office in any department of the state government. Citizenship, although usually expressly required either by the constitution or statutes, would not seem in the absence of such requirement to be an absolutely necessary qualification for office. 29 Cyc, page 1377. But it has sometimes been held that it is a necessary qualification for elective office, even in the absence of the constitutional or statutory provision to that effect. 29 Cyc, 1377. State vs. Van Beek, 87 Iowa, at page 577. In the last cited case our supreme court held that the office of sheriff could not be filled by an alien, and in the course of the opinion, made use of the following language: "There is no pro- vision in our constitution or statute upon that subject, yet it is certainly a fundamental principle of our government that none but qualified electors can hold an elective office, unless otherwise specially provided." The office of state veterinary surgeon, as well as the office of his assistant, are not elective offices, but ap- pointive offices. There is no constitutional provision specifying the qualifications of either. The statute, code supplement, section 2529, requires that the state veterinary surgeon shall be a graduate of some regularly established veterinary college and skilled in that science, and no other qualifications are specifically required. Code supplement, section 2533 provides: "The governor may appoint such assistant state veterinary surgeons as may be deemed ad- visable,", and there are no further qualifications provided for in the statute. While there are many reasons why an officer should be a citizen of the state, which would apply with equal force to an appointive and to an elective office, yet there are some appointive offices where some of these reasons would not apply with such force. The exact question propounded by you is an open one in 86 ATTORNEY GENERAL'S OPINIONS this state and is so close that it would not be wise for this depart ment to undertake to determine the matter one way or the other, as it is a question which will doubtless arise in the courts before long, yet we have given you the benefit of the only decision of our court which would have any bearing on the matter. Yours truly, C. A. Bobbins, Assistant Attorney General. Taxation — Value of Property. — ^Registered animals should be assessed at their actual value. Sometimes the registration adds to the value of the animal but this is not always so. October 10, 1911. Mr. W. L. Pease, Washta, Iowa. Dear Sir : Your letter of the 6th inst. addressed to the attorney general was referred to me for reply. You inquire whether the board of supervisors or the assessor is empowered to fix a higher taxable value on recorded animals than on those which are not recorded. The attorney general cannot officially advise you in a matter of this kind but in this instance I may say in a personal way, as a courtesy to you, that the law requires that all property be assessed for taxation upon the basis of its actual value and one- fourth of such value is the assessable value and the mere fact that an animal is registered would not in and of itself determine whether it should be valued higher or lower than an animal which is not registered. Of course, ordinarily, it will be presumed that regis- tered animals are more valuable, but it would not necessarily be so in every case. The value for purposes of taxation should be fixed according to the fact in each case. Respectfully yours, N. J. Lee, Special Counsel. ATTORNEY GENERAL'S OPINIONS 87 United States Soldiees— Defined. — The term "United States Soldier" as used in code supplement section 430 would in- clude soldiers who served in the Spanish- American war. October 13, 1911. Mr. Henry Howard, Pension Attorney, Clinton, Iowa. Dear Sir: Your letter of the 12th inst. addressed to the at- torney general was referred to me for reply. You request to be advised whether Spanish war veterans and their wives are entitled to relief out of the fund provided for the relief of indigent soldiers and their widows. You also inquire whether relief may be furnished to persons who have property and not entitled to it. Your first question must be answered in the affirmative and the second question in the negative. Section 430 of the supplement to the code, 1907, provides that a certain tax may be levied for the purpose of creating a fund for the relief of and to pay the funeral expenses of honorably discharged, indigent United States soldiers, sailors and marines and their indigent wives, widows and minor children, etc. This would include, without question, soldiers who served in the Spanish- American war and their widows. The law provides that indigent soldiers and widows and chil- dren shall receive relief but I presume the commission having in charge the disbursement of such funds would have a reasonable discretion in determining who are indigent and needy persons and because one applying for relief from such funds has a certain amount of property it might not necessarily follow that he should be denied relief but if, as you say, such applicant has property and not entitled to the relief, it could not be granted under the law; You will not regard this in any sense as an official opinion from this department but merely as the personal views of the writer given as a courtesy to you. Respectfully yours, N. J. Lee, Special Counsel. 8'8 ATTORNEY GENERAL'S OPINIONS Poll Tax — ^Who Liable Foe. — All able bodied male residents are liable to perform the two days' labor on the roads required by code supplement section 1550 whether citizens of th€ United States or not. October 18, 1911. Mr. H. M. Babe, Township Clerk, Edgewood, Iowa. Dear Sie: Yours of the 13th inst. addressed to the attorney general has been referred to me. for reply. ' Your question briefly stated is, whether an alien, or one not a citizen of the United States, is liable for poll tax. Code supplement section 1550 provides: "The road supervisor shall require all alle 'bodied male residents of his district between the ages of twenty-one and forty-five to perform two days' labor upon the roads between- the first days of April and October of each year." > Our supreme court has held that: "A resident of the state is one who resides permanently or for a time in the state." Mann vs. Taylor, 78 Iowa, 355. Hence, in my opinion, a resident, whether a citizen or not, is liable for poll tax. Very truly, C. A. Bobbins,. .; Assistant Attorney Oeneral. Board . of , Supeevisoe&t-Method - of Bomiowing- MoNEY.^It ■■ is daubtfuL if the. board of .supervisors have power to borrow ...imoney by using. warrants rather than bonds. ... ■ ■ ; •■ November: 10, 1911. Hon. Heebeet G. Thompson, ■ -. : .::.:.. Muscatine, Iowa. Deae Sie : Your letter of the 24th inst. to the attorney general was referred to me for reply. I have not found time to notice your letter before now, owing to other matters in the department which demanded my attention. You inquire whether the board of supervisors may lawfully cause to be iisSued a warrant against the general fund of the county for ATTORNEY GENERAL'S OPINIONS .89 the. purpose of obtaining funds with which to redeem warrants issued for the payment of claims duly filed and allowed. I have not had time to investigate this question sufficiently to enable me to express a positive opinion thereon but upon the in- vestigation I have made and the consideration I have given the subject it is my notion that the county cannot borrow money in the manner indicated. In my view the transaction, in legal effect, is the borrowing of money. The person who receives the warrant and furnishes the money has no claim against the county and there is no other consideration for the issuing of the warrant but the funds which are obtained. Under certain conditions the board of supervisors may fund or refund the debt of the county by issuing and negotiating bonds. Upon a careful investigation of this question the foregoing views may be found to be erroneous and if the matter is of sufficient importance to your board of supervisors, and you care to do so, you may prepare a brief of authorities upon which you rely in holding that the boai-d of supervisors may borrow money in the manner you describe, and I shall he glad to go over your brief and change the views here expressed if found incorrect. Respectfully yours, N. J. Lee, Special Counsel. Taxation — Voluntarily Paid Cannot be Recovered Back. — Where one voluntarily pays a tax without taking necessary steps to ascertain whether or not it could lawfully be ex- acted of him it amounts to a voluntary payment under mis- take of law and cannot be recovered back. November 20, 1911. T. M. Dougherty, County Attorney, New Market, Iowa. Dear Sir: Yours of the 15th inst. addressed to the attorney general in which you enclose a letter from Attorneys Henry & Henry bearing on the question of assessment of bank stock, has been referred to me for reply. This department has given this matter some previous investiga- tion and our advice has been against any cancellation of any un- paid tax and against refunding any tax collected under the old 90 ATTORNEY GENERAL'S OPINIONS law, and there are several cases already pending in the various counties of the state, and doubtless some of these will go to the supreme court, and thus the matter will be finally determined. I take it for granted in the ease that is referred to in the letter of Henry & Henry that there was no objection made to the assess- ment, and in fact, the same shares of stock had been assessed under the same law and taxes paid without question for a number of years. This being true, I think the case of Slimmer vs. Chickasaw County, 140 Iowa, 448, would preclude the bank from setting up the illegality of this law. There is a clear distinction between such ease and the Estherville ease, for in the Estherville case the parties resisted the assessment at all times, — before the board of review and ever afterwards, and hence, there could be no estoppel arise under such circumstances. In other words, our position is, that even though this law were void, the tax payers, by their ac- quiescence in taxation made under this law for so many years, are now estopped from setting up its invalidity. By the previous assessment and payment of tax by the tax payers under this law, the officers were led to believe that all parties regarded it as legal, and the county and other subdivisions of the state had doubtless incurred expenses based in part upon such belief, just as was said in the Slimmer case. When one voluntarily pays a tax without taking the necessary steps to ascertain whether or not it could lawfully be exacted of him, it amounts to the payment of money under mistake of law and cannot be recovered back. Ahlers vs. City of Estherville, 130 Iowa, 272, and cases cited. Yours very truly, C. A. Edbbins, Assistant Attorney General. State Officials — May Not Be Garnished. — There is no statute authorizing the garnishment of a public official. The effect of a judgment against a garnishee in such case would be a judgment against the state and as the state may not be sued without its consent state officials cannot be garnished. Me. M. M. O'Brton, November 22, 1911. MarshalltoMTi, Iowa. Dear Sir: Your letter of the 15th inst. addressed to the at- torney general was referred to me for reply. ATTORNEY GENERAL'S OPINIONS 91 You request an opinion from this department as to whether the treasurer of state can be garnished. It is my opinion that said officer cannot be garnished. In the first place there is no provision in the statute permitting the gar- nishment of such officer and in the next place it is, in my view, in legal effect a suit against the state because the necessary legal effect of a judgment against the garnishee would be to require the payment of funds of the state and the state would be the real party in interest and the real defendant. It is fundamental that the state cannot be sued in its own courts without its consent. Respectfully yours, N. J. Lee, Special Counsel. Incompatible Offices. — The offices of city councilman and county supervisor are incompatible and both may not be held by the some person at the same time. December 6, 1911. Mb. J. S. FiSK, Guthrie Center, Iowa. Dear Sir : Your letter "of the 5th inst. addressed to the attorney general was referred to me for reply. You request an opinion from this department, first, whether the same person at the same time may hold the office of city council- man of a city and that of a member of the board of supervisors and, second, whether the rules of the state board of health apply to your city. It is my opinion that your first question should be answered in the negative and your second in the affirmative. In my view the offices of city councilman and county supervisor are incompatible under the rules of the common law and may not be held by the same person at the same time and the acceptance of one of said offices while holding the other has the effect of at once creating a vacancy in the first office. If I had the time I believe I could cite a number of instances where the duties of the two offices would conflict or where one of tlie offices would be subordinate to the other. Respectfully yours, N. J.. Lee, Special Counsel. 92 ATTORNEY GENERAL'S OPINIONS Taxation. — Omitted property may be assessed for taxation by the county treasurer. December 7, 1911. Mb, Louis E. Fat, Clinton, Iowa. Dear Sir : Your letter of November 17th addressed to the at- torney general has been referred to me for.reply^ and I have been unable to give the same sufficient investigation to enable me to answer until this time. You refer to the suggestion that the treasurer should assess the bank stock to the individual owners of the property as omitted property, and ask, "Can you see any harm in the assessment by the treasurer?" As a general proposition, I think that in view of all the circum- stances, the treasurer might list the property as having been omitted. Our supreme court has held that the taxing officers may use any means at their command in assessing national bank stock to arrive at its actual market value, and they are not bound by the book value, but may ascertain its actual value the same as any other tangible property. First National Bank vs. Estherville, 136 la., 203. An assessment of such stock as omitted property was upheld by our supreme court in the case of Judy vs. Beclcwith, 133 Iowa, 252. As I understand it, the only question involved is, with reference to the tax for the year 1910, and if this be true, then there is ample time to assess the property as having been omitted after the deter- mination of the suit now pending, and it may be determined that the assessment already made is legal, or at least that the parties are estopped from setting up its illegality. I am enclosing a copy of this letter to Mr. Oakes. Yours very truly, C. A. ROBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 93 - Official Shorthand Reporter — Compensation of. — Money earned by a reporter outside of his official duties and in another judicial district should not be taken into account in fixing his salary. December 8, 1911. Mb. J. M. McLaughlin, Burlington, Iowa. Dear Sir: Replying to your letter of the 7th inst. more fully stating your situation with reference to the reporter's salary, will say that code supplement section 254-a2, from which I quoted in my letter of the 4th inst., further provides : "And in case the total per diem of each reporter shall not amount to the sum of one thousand six hundred dollars per year, the judge appointing him shall, at the end of the year, apportion the deficiency so remaining unpaid among the sev- eral counties of the district, * * * * in proportion to the "number of daj's of court actually held by said judge in such counties." In my judgment, the term ' ' such counties ' ' refers to the several counties of the district, and that in making the apportionment provided for in this section, the judge was limited to the counties of his own district, and would have no right to take into account any services rendered or compensation received by his reporter while attending court in any other district between terms of court in his own district. In other words, the $1,600.00 salary is in- tended as compensation for the service to be rendered in his own district, and where, as in your case, the entire service of the dis- trict has been performed by you, there is no authority for adding to your per diem the number of days served in your vacation in another county for the purpose of reducing the amount of your deficient salary. There would be no more reason for taking this into account than there would be for taking into account compensa- tion which you might have received for doing private work during vacation and deducting that from the amount of your salary. Yours truly, C. A. ROBBINS, Assistant Attorney General. 94 ATTORNEY GENERAL'S OPINIONS County — Liable foe I^umigation. — The county is not liable for the expense of fumigation of a church or school building occa- sioned by an epidemic of cerebro-spinal meningitis or infantile paralysis. December 8, 1911. Hon. Feank L. May, Lansing, Iowa. Deae Sie: Your communication of the 3d ult. to the attorney general has been referred to me for reply. You request an opinion from this department upon the questions arising upon the state of facts you set forth in your letter which, in so far as they are material, are as follows: "A certain person, a pauper, was in the employ of a well- to-do farmer of this county as a servant girl and while so employed became afiSieted with infantile paralysis. The house of the employer was disinfected by a physician who presented his claim to the board of supervisors in the sum of $7.50. Pupils while sick with epidemic cerebro-spinal meningitis had been at school and in a church. Both the school house and church were fumigated by a physician and a claim filed with the board of supervisors for the sum of $5.00. ' ' The question you propound is, "Is the county liable for either or both of these claims?" In my opinion your question ought to be answered in the nega- tive. I do not think the county is liable for either of these claims under the circumstances and facts set forth. I am assuming, of course, that the services in question were authorized in the proper way. I think as between the owner of the house where the servant girl stayed and made her home and the public it was the duty of such owner to fumigate his premises. In the ease of the fumigation of the church and school house I do not think the statute contemplates that the expenses thereof are to be paid by the public, Respectfully yours, N. J. Lee, Special Counsel. ATTORNEY GENERAL'S OPINIONS 95 Special Assessments. — ^Where special assessments are made pay- able in installments they may be paid in advance of maturity with interest to date of payment. F. D. Hamilton, Treasurer, December 11, 1911. Webster City, Iowa. Dear Sie: Yours of the 8th inst. addressed to the attorney general has been referred to me for reply. The question, as stated by you, is as follows: "I would like you to give me an opinion in connection with section 825 of the code of Iowa in regard to paving and sewer assessments on property, where waivers have been signed and the tax has been spread over a period of seven years and the interest figured accordingly. Now if the owner sells this property and wishes to pay off the whole of the assessment, must he pay the interest on same for seven years or can he settle legally by paying the interest to date?" Section 828 of the code provides: "The owner of any property against which a street im- provement or sewer assessment has been levied shall have the right to pay the same, or the unpaid installments thereof, with all interest, as the case may be, up to the time of said payment, with any penalties and the cost of any proceeding for the sale of the property for such special assessments or installments." Hence, I am of the opinion that a party desiring to pay unpaid installments would not be required to pay interest until the end of the seven years' period, nor until the end of the period on which the assessment is to mature, but that he may lawfully pay the same at any time by paying interest to the date of payment. Yours truly, C. A. ROBBINS, Assistant Attorney General. JuKOES — Fees op. — Persons summoned before a justice of the peace as jurors who are not used as such are not entitled to compensation. 0. "W. "WiTHAM, County Attorney, December 16, 1911. Greenfield, Iowa. Deae Sie: Yours of the 15th inst. addressed to the attorney general has, on account of his absence, been referred to me for reply. 96 ATTORNEY GENERAL'S OPINIONS Your question, briefly stated, is, whether or not persons who do not sit in the trial before a justice of the peace, but who are called there as persons from whom to select the jury, are entitled to compensation for one day as jurors. The present law fixing the compensation of jurymen, both in district and in justice court, is found in chapter 23 of the acts of the thirty- third general assembly, and provides as follows: "Jurors shall receive the following fees: For each day's service or attendance in courts of record including jurors sum- moned on special venire, two dollars and fifty cents ($2.50), and for each mile traveled from his residence to the place of trial, ten cents; "For each day's service before a justice of the peace, one dollar. "No mileage shall be allowed talesmen or jurors before justices." As I understand it, this section has been quite generally, if not universally, construed to allow jury fees only to those who serve as jurymen in the justice court, and I think this is the true mean- ing of the law, for you will notice that in district court the juror is entitled, by the words of the statute, to his compensation for service or attendance, and if it had been the intention of the legis- lature to allow for attendance in the justice court as well as for service, the word "attendance" would have appeared following the word "service" in the clause fixing the compensation for jus- tice court, and the fact that the word "attendance" is omitted clearly indicates that no compensation was intended to be allowed for attendance merely. "While, as you suggest, it may be that they should receive com- pensation, yet as none is provided for, it could not be allowed until the law is changed in such a way as to authorize its allowance. There are many ofScial acts for which no compensation is provided. Yours very truly, 0. A. Bobbins, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 97 Taxation — Exemptions. — ^Where the upper story of a building is used for lodge purposes or other purposes rendering it exempt it may be exempted even though the lower story be taxed. PowEE & Power, Attorneys, December 18, 1911. Burlington, Iowa. Gentlemen: Yours of the 14th instant addressed to the attor- ney general has been, on account of his absence, referred to me for reply. You ask for a copy of an opinion thought to have been rendered by this department to the effect that that portion of a building used exclusively for lodge purposes was not subject to taxation. I am unable to find that this question has been passed upon by this department, jind while the question is one upon which the department would not be authorized to render an opinion, yet it occurs to the writer, in view of the decisions of our supreme court to the effect that there may be double ownership of buildings, — that is, that the title to the lower story may belong to one owner, while that of the upper story is in a different person, that the upper story so used exclusively for benevolent purposes might properly be exempt from taxation, under subdivision 2 of section 1304 of the code, as amended. Yours very truly, C. A. Robbins, Assistant Attorney Ge^ieral. Banks — ^Bank Stock — Taxation of. — The only deduction al- lowed in arriving at the value of bank stock is the amount of the bank's capital actually invested in real estate. T. M. Early, County Auditor, December 18, 1911. Allison, Iowa. Dear Sir: Yours of December 11th addressed to the attorney general has been referred to me for reply. Your question as stated by you is as follows : "A number of banks in this county claim certain and num- erous exemptions from their capital invested in their business beyond their real estate and the 20 per cent. Please let me hear from you at once in regard to the matter." 98 ATTORNEY GENERAL'S OPINIONS The only deduction provided for under the new law is found in the latter part of section 4, chapter 63, acts of the thirty-fourth general assembly, which reads as follows: ' ' In arriving at the total value of the shares of stock of such corporations, the amount of their capital actually invested in real estate owned by them » * * * shall be deducted from the real value of such shares, and such real estate shall he assessed as other real estate." They are not entitled to any reduction of 20 per cent as men- tioned by you, but it is provided in the last part of section 5 of the chapter above referred to, "that such shares and moneyed capital shall be assessed and taxed upon the taxable value of 20 per cent of the actual value thereof," and- as other property is taxed at 25 per cent of its actual value, this ameunts to the same thing in effect as a reduction of 20 per cent. Yours very truly, C. A. ROBBINS, Assistant Attorney General. City and County Wareants — Order of Payment. — City and county warrants should be registered and paid in the order of their presentation. December 19, 1911. W. S. NoTT Company, Minneapolis, Minn. Gentlemen : Your letter of the 2d inst. addressed to the attor- ney general has been referred to me for reply. Your inquiries are as follows: "We are engaged in selling fire department apparatus and supplies to cities and villages throughout the state, as settle- ment for which we are frequently given warrants, which when duly registered by the treasurer draw interest at the legal rate until paid. "We are also having warrants given us bearing a specific due date, with the rate of interest inserted in the body of the warrant, and the quqestion which we wish to have settled at this time is : Is it necessary to have these warrants registered by the treasurer?" ATTORNEY GENERAL'S OPINIONS 99 Subdivision 4 of section 442 of our code provides that the board of supervisors shall keep, among other books, ' ' a book to be known as the warrant book in which shall be entered in the order of its issuance the number, date, amount and name of drawee of each warrant drawn on the treasurer and the number of warrants." Code supplement section 483 provides: "When a warrant drawn by the auditor on the treasurer is presented for payment and not paid for want of money, the treasurer shall endorse thereon a note of that fact and the date of presentation and sign it, and thence- forth it shall draw interest at the rate of five per cent. He shall keep a record of the number and amount of warrants presented and endorsed for non-payment, which shall be paid in the order of such presentation." Yours very truly, C. A. EOBBINS, Assistant Attorney General. Automobiles — ^Registration Op. — Dealers in automobiles not used upon the public highway have the option of having the same assessed as other vehicles under the general law or paying the annual registration fee on each machine purchased during the year. December 27, 1911. Mb. H. B. Geoves, Sioux City, Iowa. Dear Sir: Yours of the 21st instant addressed to the attorney general has been referred to me for reply. Your question, briefly stated, is whether or not, under the new automobile law, machines on hand with dealers on January first, the time of assessment, should be assessed in view of the fact that the machines may soon be sold to the original purchaser and he becomes liable for the tax, and so on, as often as the cars change hands. This law has been construed by this department in such a way as to give the dealer the option of listing such machines as he has on hands January first and having the same, assessed under the general law, or he may pay the annual registration fee on each of his machines and on each machine which he may pur- chase during the year, instead of paying the dealer's license fee. 100 ATTORNEY GENERAL'S OPINIONS and in the last mentioned case, wkere the dealer would sell to the purchaser a transfer could he made from the dealer to the purchaser upon payment of a transfer fee of $1.00, and the pur- chaser in such event would not be liable for the annual fee for that year; and this matter could be taken into account by the dealer in the sale of the machine; the purchaser being compelled to have a license before he could operate a machine would be as willing to pay the dealer for the license as he would the state, and thus the dealer would only be out the transfer fee of $1.00 on each machine, assuming that he could collect from the pur- chaser the full amount of the license fee that the purchaser would otherwise be required to pay to the state. And if the dealer would cause each machine to be registered under a separate num- ber, he would have no occasion to have the dealer's number or registration, and would not be liable for the license fee. The theory of the law is to collect one license fee for each year, and if the machine is sold a second or third time in a year, only one license fee is rea.uired in case the transfer fee of $1.00 is paid at the time of each transfer and the proper return made, as pro- vidded by section 10, chapter 72, acts of the thirty-fourth general assembly. Yours very truly, C. A. Bobbins, Assistant Attorney General. County Attorney — Compensation Of. — The county attorney is not entitled to a percentage on fines and foreclosures unless collected by him during his term of office. December 29, 1911. E. B. Stiles, County Attorney, Manchester, Iowa. Dear Sir: Your letter of the 26th instant addressed to the attorney general has been referred to me for reply. The question upon which you say your county board desires an opinion, briefly stated, is, "When a judgement imposing a fine is entered in a cause in which the county attorney appeared for the state, and such fine is not collected until the county attorney retires from office and is succeeded by a new county attorney who succeeds in collecting the fine, whether the county attorney dur- ATTORNEY GENERAL'S OPINIONS ,7 f 101 ing whose term the judgment was entered, or the county atwsj^ who collects the fines, or either of them, are entitled to any aa-;, ditional compensation on account of the rendition of such judg^"' ment or the collection of the fine. Your question calls for a construction of the latter part of code supplement section 308, which reads as follows: "In addition to the salary ahove provided, he shall receive the fees as now allowed to attorneys for suits upon written instruments where judgment is obtained, for all fines col- lected where he appears for the state, but not otherwise, and school fund mortgages foreclosed, and his necessary and actual expenses incurred in attending upon his official duties at a place other than his residence and the county seat, which shall be audited and allowed by the board of supervisors of the county." And especially the underscored portion of the language above quoted. The general provisions of our law with reference to what con- stitutes an appearance usually have reference to appearance on the part of defendant rather than on the part of plaintiff, but in this case, both the county attorney obtaining the judgment and the one collecting the fine acted as representatives of the state, and doubtless in whatever was done in connection with this case, they appeared for the state within the meaning of this section. However, I ani inclined to the view that the language here made use of should be construed to refer to the appearance made for the state at the time the fine was colleted. Appear- ance, when used to designate the act of any person with reference to an action pending, means to come into court as a party to the suit. The actual presence of the party is not required; he may appear by his attorney or his agent. Wagner vs. Kellogg, 52 N. W., 1017. There might be many fines collected, or rather, paid in by the defendants without any active participation on the part of the county attorney, and where such is the case, I am inclined to the view that the words, "but not otherwise" would exclude him from the right to claim a percentage on a fine so collected or paid in, and that the percentage should only be allowed in cases where the collection is brought about by some act or proceeding m which the county attorney appears for the state after the rendi- tion of the judgment imposing the fine. 102 ATTORNEY GENERAL'S OPINIONS This construction is doubtless the better one from the stand- point of public policy, for the county attorney who is in office at the time the judgment imposing the fine is entered will know that unless he proceeds to collect the same while he is yet in office, he will not be entitled to any percentage on such fine, where, on the other hand, if the county attorney would not be entitled to any percentage on the collection of fines imposed during the administration of his predecessor, there would be no inducement for him to be active in the matter of collecting such fines. The question is one that is not entirely free from doubt and is one that probably should be determined by the courts. Yours very truly, C. A. ROBBINS, Assistant Attorney General. Highways — How Established. — Ten years' travel of a road is suf- ficient to establish same as a public highway whether lawfully laid out or not. January 2, 1912. Me. Charles Huntsbeeger, "West Union, Iowa. Dear Sir: Yours of the 28th ult. addressed to the attorney general has been referred to me for reply. It is an indictable offense for any person to obstruct the pubUg highway by the erection of a fence therein, under code section 4807, and any person discommoded by the obstruction may lawfully remove the same from the highway. Ten years' travel of the road is sufficient to establish the same as a public highway, and a change of the location of the same can- not lawfully be made without the action of the board of super- visors thereon. It is the duty of the road supervisor, and not the county attor- ney, to remove this obstruction, under code section 1560. It might be the duty of the county attorney to prosecute an indictment against the party erecting the fence. Yours very truly, C. A. ROBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 103 School Building Bonds — Interest — How Paid. — The interest on school house bonds should be paid from the school building bond fund and no part of same should be paid from the con- tingent fund. January 2, 1912. Hon. a. M. DeyoEj Superintendent, Department of Public Instruction, State House. Dbae Sir : Your letter of the 12th ult. addressed to the attorney general has been referred to me for reply. Your first question is: "Prom what fund should the interest on the bonded in- debtedness be paid? Is it legal to pay any part or all of this interest from contingent fund?" Code supplement section 2768 provides: ' ' The money collected by tax for the erection of school-houses and the payment of debts contracted therefor shall be called the school-house fund; that collected for the payment of school buildings bonds shall be called the school building bond fund; that for rent, fuel, repairs and other contingent expenses neces- sary for keeping the school in operation, the contingent fund; and that received for the payment of teachers, the teachers' fund;" Code supplement section 2813 provides: "The board of each school corporation shall, at the same time and in the same manner as provided with reference to other taxes, fix the amount of tax necessary to be levied to pay any amount of principal or interest due or to become due during the next year in lawful bonded indebtedness which amount shall be certified to the board of supervisors as other taxes, and levied by them on the property therein as other school taxes are levied, but such tax shall not exceed five mills upon the dollar of the assessed valuation of such property for money borrowed for improvements." Code supplement section 2783 provides: "It may provide and pay out of the contingent fund to insure school property such sum as may be necessary, and may purchase dictionaries, library books, including books for the 104 ATTORNEY GENERAL'S OPINIONS purpose of teaching vocal music, maps, charts and apparatus for the use of the school thereof to an amount not exceeding twenty-five dollars in any one year for each schoolroom under its charge;" Prom an examination of these sections, I am of the opinion that the interest on the bonded indebtedness should be paid from the school building bond fund, and that no part of the same could legally be paid from the contingent fund. Your second o.uestion is as follows: "Must the board have authority from the electors before they can levy sufficient funds to pay interest on the bonded indebtedness? If the electors for any reason fail to give such authority, how should the board proceed ? ' ' Code supplement section 2813, which is above set out, as it ap- peared in the Code of 1897, contained the following additional language : "or any independent city or town district of any money bor- rowed for improvements after a vote thereof authorizing the same. ' ' And while I am of the opinion that this language only referred to the lawful bonded indebtedness and did not contemplate a vote authorizing the payment of interest, yet since this language is eliminated from the section, there is in my opinion no room for the contention that a tax for the payment of interest cannot be levied without a vote of the district authorizing the same. Your third o.uestion is as follows: "From which fund should the salary of the city superin- tendent and the supervisors, such as music, drawing, primary, kindergarten, etc., be paid 1 Can any part of this salary be paid from the contingent fund?" I am of the opinion that all salaries, such as are referred to in this question, should be paid from teachers' fund. By what- ever name the instructor may be known, they are recognized under the law as teachers, within the meaning of code supplement section 2768 above set out. At any rate, none of these matters could law- fully be paid from the contingent fund, for the purposes for which it may be expended are enumerated in the sections above quoted,— 2768 and 2783, which do not include the payment of teachers or other instructors. ATTORNEY GENERAL'S OPINIONS 105 Your fourth question is: "In case contracts have been made for the erection of school houses or purchasing sites in excess of the money available in the school-house fund, can the board legally issue warrants on said fund to meet such obligations?" In addition to the language already quoted from code supple- ment section 2768, the section further provides: "Whenever an order cannot be paid in full out of the fund upon which it is drawn, partial payment may be made. All school orders shall draw lawful interest after being presented to the treasurer and by him endorsed as not paid for want of funds." These orders undoubtedly refer to the warrants authorized to be issued by the president and secretary under the provisions of code supplement section 2762, which provides as follows : "He shall countersign all warrants and drafts upon the county treasurer drawn or signed by the president ; draw each order on the treasurer, specify the fund on which it is drawn, and the use for which the money is a,ppropriated. " If this be true, the law would seem to contemplate that warrants' might be issued, even though there were not at the time any funds available for their payment. George Cosson, Attorney General. Banks — Taxes Against Shareholder May be Paid by Bank. — The taxes imposed upon a share of stock may be paid by the bank for the stockholder and deducted from his dividends on the stock under code sections 1322 and 1325. January 7, 1912. Mm. a. W. Crossan, Cashier, Spirit Lake, Iowa. Dear Sir: Your favor of the 5th instant addressed to the at- torney general inquiring if a national bank is authorized to pay the taxes on the shares of stock of its stockholders and deduct the same from the dividends declared on such stock, was duly received and the attorney general has directed me to make reply thereto. 106 ATTORNEY GENERAL'S OPINIONS This department is not authorized by law to render an official opinion in such a case but in an unofficial way I call your attention to sections 1322 and 1325 of the 1897 code of Iowa which seem to answer your question in the affirmative without doubt. Yours very truly, N. J. Lee, '! Special Counsel. County Attorney — Duties op. — It ,is the duty of the county attorney to prosecute suits commenced for the collection of delinquent taxes without compensation other than the salary provided by law. John S. Blow, County Auditor, January 9, 1912. Spirit Lake, Iowa. Dear Sir: Your letter of the 5th instant addressed to the at- torney general has been referred to me for reply. Your questions, briefly stated, are, First, whether or not it is the duty of the county attorney to prosecute suits for the collec- tion of delinquent taxes, without compensation other than his salary, and, Second, whether it is his duty to prosecute suits to collect from relatives liable for the care of inmates in the insane hospital where the county is entitled to recover, — without addi- tional compensation other than his salary. Chapter 17 of the acts of the thirty-third general assembly pre- scribes the duties of the county attorney with more particularity than they had previously been prescribed, all of which will more fully appear by reference to sections 2, 5 and 6 in said chapter, which are as follows : "2. To appear for state and county. To appear for the state and county in all cases and proceedings in the courts of his county, -^to which the state or county is a party, and in the supreme court in all cases in which the county is a party. "5. To enforce forfeited hands, etc. To enforce all for- feited bonds and recognizances, and to prosecute all proceed- ings necessary for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the state or his county, or to any school district or road district in his county; also to prosecute all suits in his county against public service corporations which are brought in the name of the state of Iowa. ATTORNEY GENERAL'S OPINIONS 107 "6. To appear for county officers. To commence and prose- cute all actions and proceedings brought by any county officer in liis official capacity. ' ' On March 3, 1905, former Attorney General Mullan rendered an opinion to the effect that a resolution of the board of super- visors allowing to the county attorney an additional compensation of one thousand dollars for services performed as the attorney of the board of supervisors of the county, was illegal and void, and that whatever money was paid under such resolution was illegally taken from the county treasury and paid to the person receiving the same ; which opinion was based on the decision of our supreme court in the case of Heath vs. Albrook, 123 Iowa, 559. Our supreme court has frequently held that no contract can be made, looking to the allowance or payment to a public officer of any other or greater compensation than that fixed by law. Massie vs. Harrison County, 129 Iowa, at 280. The only case which I have been able to find in our court where additional compensation was allowed, is in the case of Bevington vs. Woodbury County, where the county attorney was allowed extra compensation for following and prosecuting in another county a state case which was removed from his own county by change of venue under an agreement with the board of supervisors of his own county to so prosecute said ease, and there the supreme court based the decision upon the ground that it was no part of his official duty to prosecute the case in any county except his own county. 107 Iowa, 424. Prom these opinions it would seem to be clear that it is the duty of the county attorney to prosecute whatever suits may be neces- sary to collect delinquent taxes, or to collect the other matters mentioned by you in your letter without compensation other than that already provided for by the law. Yours very truly, \ C. A. Bobbins, Assistant Attorney General. 108 ATTORNEY GENERAL'S OPINIONS Assessors — Compensation op — How Fixed. — The compensation of an assessor should be fixed by the hour or by the day and not by the roll. Me. C. F. Houck, January 11, 1912. AUerton, Iowa. Deae Sie: Yours of the 8th instant addressed to the attorney general has been referred to me for reply. Your question is, whether the compensation of assessors should be fixed by the board of supervisors by the roll or by the hour. Chapter 41 of the acts of the thirty-third general assembly is the latest law on the subject, and provides: "Each township assessor shall receive in full for all serv- ices required of him by law, a sum to be paid out of the county . treasury, and fixed annually by the board of supervisors at their January session ; said compensation shall be for the suc- ceeding year and shall not exceed the sum of two and one- half dollars ($2.50) for each day of eight hours, which said board determines may necessarily be required in the discharge of the official duties of such assessors." Hence, it follows that the compensation should be fixed by the hour or by the day, and not by the roll, for if fixed by the' roll, there would be no way of determining whether or not in some cases the compensation allowed some assessors would exceed the limit of $2.50 per day for each day of eight hours. Yours very truly, C. A. EOBBINS, Assistant Attorney General. Deputy Sheeipp — County Bailipp. — A deputy sheriff cannot act as county bailiif and draw additional compensation therefor. January 11, 1912. W. H. Wehemachee, County Attorney, "Waverly, Iowa. Deae Sie: Yours of the 6th instant addressed to the attorney general has been referred to me for reply. Your question is, "Can a deputy sheriff act as a court bailiff and draw the regular fees as bailiff in addition to his salary as such deputy sheriff?" ATTORNEY GENERAL'S OPINIONS 109 Upon examination I find that this department has heretofore had occasion to pass upon this question. On May 4, 1896, Attor- ney General Remley rendered an opinion to the county attorney of Calhoun countyj in which he made use of the following language : "My conclusion from the authorities is that the sheriff or his deputy must be in attendance in court all the time the court is in session. Second, that the sheriff cannot perform the duties of his office by bailiffs. Third, if the deputy sheriff, in- stead of his principal, attends upon the court he cannot re- cover compensation as bailiff." I also call your attention to the case of State of Iowa vs. Welsh, 109 Iowa, at page 24, where the supreme court, in passing upon the question, makes use of the following language : "Without entering into details, it may be stated generally that the defendant could not properly draw compensation from the county for clerk's services as bailiff, and also for fees earned by him when actually serving in that capacity. If, for any reason, he was required as deputy, in serving papers or process, during his attendance on court as bailiff, no claim for his work as such for the time so occupied should have been made. ' ' Hence, it follows that your question should be answered in the negative. Yours very truly, C. A. ROBBINS, Assistant Attorney General. Fidelity Bonds — ^Must Be Appeoved. — A fidelity bond presented should be approved even though the approving officer is agent of the company, but such officer cannot require that the bond be signed by any specific surety company. January 12, 1912. A. T. Roddy & Co.. Des Moines. Iowa. Gentlemen : Yours of the 10th inst. addressed to the attorney general has been referred to me dEor reply. 110 ATTORNEY GENERAL'S OPINIONS Your question, briefly stated, is, whether or not a public officer who happened to be a stockholder in a fidelity insurance company, and hence entitled to a share in the profits of such company, can lawfully require bonds which are to be filed and approved in his office to be signed by such company as surety. Code section 360 provides: "Whenever any person who now or hereafter may be re- quired or permitted to give a bond applies for the approval thereof, any officer or body who is now or shall hereafter be required to approve the sufficiency of such bond, shall accept and approve the same, whenever its conditions are guaranteed by a company or corporation duly organized or incorporated under the laws of this state, or authorized to do business there- in, and to guarantee the fidelity of persons holding positions of public or private trust. ' ' Hence, it follows that if such bond were presented to the officer even though he happened to be a stockholder in the company sign- ing the bond as surety, nevertheless, it would be his duty, under this law, to approve the bond. Of course it goes without saying that no public official could require the bond to be signed by any specific surety company, as it would be his duty to approve the bond if signed by any such company; nor should any such public officer be offensively active in securing such business for the company of which he was a member. Yours truly, C. A. Bobbins, Assistant Attorney General. Bank Stock — ^Assessment Op. — No deduction on account of non- taxable bond held by a bank should be allowed in assessing shares of bank stock. January 13, 1912. Sherwood A. Clock, County Attorney, Hampton, Iowa. Dear Sir: Yours of the 11th instant addressed to the attorney general has been referred to me for reply. ATTORNEY GENERAL'S OPINIONS 111 Your question is ; ' ' Can banks deduct from the amount of their assets amounts invested in non-taxable bonds, such as municipal bonds, drain- age bonds, etc., in arriving at the amount of their taxes?" I note that you say that you are unable to obtain a copy of the decision rendered by our supreme court in a similar case. I as- sume you refer to the case recently decided by our supreme court which was appealed from Polk county, but this question was not involved in that case. If the assessment was to be made against the bank, then there would be some reason for the contention that that portion of its capital invested in non-taxable securities, such as government bonds or bonds such as you refer to in your ques- tion, should be deducted, but the present law does not authorize the shares of stock to be assessed against the bank. In a case arising in New York, the state of New York assessed the shares of one Van Allen in the First National Bank of Albany. At that time all the capital of the bank was invested in United States securities, and it was asserted that a tax upon the individual in respect to the shares that he held in the bank was, unless the holding in United States securities were deducted, a tax upon the securities themselves, but the court held otherwise, and that the tax on an individual in respect to his shares in a corporation, is not regarded as a tax upon the corporation itself. The right of such taxation rests upon the theory that shares in corporations are property entirely distinct and independent from the property of the corporation. See Van Allen vs. the Assessors, 3d "Wallace, 573 ; Home Savings Bank vs. Des Moines, 205 U. S. at 516 and 517. It was for the purpose of meeting this very distinction that section 4 of chapter 63, acts of the thirty-fourth general assembly, provided that shares of stock of national banks and state and savings banks and loan and trust companies located in this state shall be assessed to the individual stockholders at the place where the bank or loan and trust company is located. Hence, if the as- sessment is to be made to the individual stockholder and not to the bank, the bank can make no deduction because there is no assess- ment against it on account of the stock. The individual can make no deduction because the bank, and not the individual, is the owner of the non-taxable securities. 112 ATTORNEY GENERAL'S OPINIONS It is further provided in section 4, "To aid the assessor in fixing the value of such shares, the said corporation shall furnish him a verified statement of all the matter provided in section 1321 of the supplement to the code, 1907, which shall also show separately the amount of the capital stock, the surplus and undivided earn- ings, and the assessor from such statement shall fix the value of such stock, based upon the capital, surplus and undivided earnings. In arriving at the total valu€ of the shares of stock of such cor- porations, the amount of their capital actually invested in real estate owned by them * * * * shall be deducted from the real value of such shares, and such real estate shall be assessed as other real estate, and the property of such corporation shall not be otherwise assessed." As the real estate owned is the only deduction mentioned and enumerated, it necessarily follows that no other deductions were contemplated by the act. Hence, it follows that your interrogatory must be answered in the negative. Yours very truly, C. A. ROBBINS, Assistant Attorney General. NoN-EEsiDENT OwNEEs OP BANK Stock — How ASSESSED. — Shares of bank stock are assessed at the place where the bank is lo- cated even though the shareholder resides outside the state. Me. a. J. NoETON, January 13, 1912. Traer, Iowa. Deae Sie: Your letter of the 11th instant addressed to the attorney general has been referred to me for reply, and the same presents two questions which, briefly stated, are: "1st. Should shares of stock in corporations outside the state, such as mining stock, stock in a lumber company, or a land company, be assessed to the parties owning such stock at their place of residence in this state, or at the place of business of the company outside the state ! "2nd. Whether or not a person residing in this state and owning shares of stock in banks in other states should be as- sessed on such shares at his place of residence in this state or at the place where the bank in which he owns the stock is located." ATTORNEY GENERAL'S OPINIONS 113 ■With reference to your first question, will say that the certifi- cate or share of stock has been held by the courts to be property independent of the property held by the company which issues such share of stock, and that such certificate or share of stock is properly assessable to the owner thereof at the place of his resi- dence, even though the company may be required to pay a tax upon the property owned by it in another jurisdiction. Van Alien vs. The Assessors, 3rd Wallace, 573. Hence, it follows that all such stock owned by residents of your assessment district should be assessed to them in that district. With reference to your second question, will say that under the laws of the United States, shares of stock in national banks must be assessed to the owner thereof, not necessarily at the place of his residence, but at the place where the bank is located. It therefore follows that any person residing in your district and owning a share of stock in a national bank outside of your district, even though within the state, should not be assessed by you. On the other hand, any resident of your district owning shares of stock in any bank other than a national bank, even though such bank is located outside the state, should be assessed with such stock in your district. The reason for this difference is, that the cer- tificate of stock as heretofore stated is property, and the state where the owner resides and has such certificate has the power to tax it, except as I have stated that this right does not exist with reference to national bank stock except at the place where the bank is located. By section 4 of chapter 63 of the acts of the thirty-fourth gen- eral assembly, shares of stock in state banks, savings banks and loan and trust companies located in this state are to be assessed to the individual stockholder at the place where the bank or loan and trust company is located, instead of at the place of residence of the stockholder, as might be inferred from the latter part of my previous letter. Our supreme court has also decided that the shares of stock of other Iowa corporations should be taxed to the stockholder at the principal place of business of the corporation, under code section 1323. Layman vs. loiva Telephone Co., 123 Iowa, 591. Yours very truly, C. A. Bobbins, Assistant Attorney General. 114 ATTORNEY GENERAL'S OPINIONS Taxation — ^Lien of on Stocks of Merchandise. — ^Method of col- lection of taxes not yet due but assessed against stock of mer- chandise which is about to be removed in bulk discussed. January 16, 1912. Mr. S. C. Johnson, Knoxville, Iowa. Dear Sir : Yours of the 13th instant addressed to the attorney general has been referred to me for reply. Your question, briefly stated, is, whether or not there is any remedy whereby a stock of merchandise can be held for the taxes for the year 1912 so as to prevent the stock being moved from the state before the taxes are paid, where the property has been assessed but no tax levy is made. Code supplement section 1400 provides: "Taxes upon stocks of goods or merchandise shall be a lien thereon and shall continue a lien thereon when sold in bulk and may be collected from the owner, purchaser or vendee;" and our supreme court has said: "Without this statute, a purchaser of such stock of goods would take title free from any claim on account of taxes. The statute makes taxes levied upon stocks of merchandise a lien thereon and provides that they may be collected from anyone in whose hands the goods may be found, so long as they remain in bulk. This does not mean that these taxes be- come a personal charge against anyone save the owner at the time the goods were assessed. It simply gives an additional remedy and a right to follow the goods and to distrain them for the taxes assessed, so long as they remain in bulk." Mercantile Co. vs. Blair, 123 Iowa, at 294. In Larson vs. Hamilton Co., 123 Iowa, 485, it was held that this statute creates a lien for taxes on the stock of goods, and that such lien attaches at the time of the tax levy, but that a sale of the stock between the date of the assessment and the date of the levy will not defeat the lien, but that neither the purchaser of the goods nor his other property become liable for such tax. Our court has further said : "The tax payer's duty to pay does not arise until after the first Monday in January following the levy, and we think ATTORNEY GENERAL'S OPINIONS 115 it can hardly be said that a personal property tax is due until the obligation to pay has arisen. It must be borne in mind that the question is one of lien. "If the opportunity of the tax payer to pay is entitled to controlling consideration, then the lien should not be held to attach until after the first Monday in January, for it is only after that date that there is any specific obligation on the part of the tax payer to pay or the public officer to collect." Bead vs. Doty, 126 N. W., at 152. In the case of Crawford County vs. Laub, 110 Iowa, 355, it was held that the statute which made the mulct tax collectible as or- dinary taxes by tax sale was an adequate and exclusive remedy, and that a suit in equity to establish the lien could not be main- tained. In the case of Plymouth County vs. Moore, 114 Iowa, 700, it was held that "where a tax was levied on a stock of merchandise on September 9th, and that the section of the code hereinbefore quoted became effective in October thereafter, that the lien pro- vided by this section attached on the date that the law became effective, and that inasmuch as the tax was a lien, that the stat- utory remedy for collection of taxes provided by code section 1406 and which authorized distress and sale of all personal property not exempt from execution, the tax list being a sufficient warrant therefor, that such remedy was exclusive, and that an action to collect the tax as a debt would not lie." But even in the face of these authorities, I am of the opinion that the officer whose duty it is to collect the tax might, on account of the very fact that the tax assessed but not yet levied is not a lien, maintain an action in equity to enjoin the removal of the property from the state for the purpose of protecting the right of the state to levy and collect the tax, on the same theory that the holder of a chattel mortgage may enjoin the mortgagor from re- moving the property out of the state, even though the debt secured by the mortgage is not yet due. And likewise, a landlord may enjoin the tenant from disposing of property upon which his land- lord's lien is attached before the debt is due, but not afterward, for then his remedy by attachment becomes ample. I have not had the time to amplify this latter proposition by the citation of authorities, but it seems to me that authorities might be found along this line. Yours very truly, C. A. ROBBINS, Assistant Attorney General. 116 attorney general's opinions Moneyed Capital — Bank Stock — Method op Taxation Discussed. January 17, 1912. B. "W. Christophee, County Auditor, Decorah, Iowa. Dear Sie : Your letter of the 13tli instant addressed to the at- torney general has been referred to me for reply. You ask for an interpretation of the term "moneyed capital," as referred to in section 1310 of the code, as amended by chapter 63 of the acts of the thirty-fourth general assembly, and further ask, "Would all money invested in such a way as to come in com- petition with the business of national banks come under the head of 'moneyed capital?' " This term "moneyed capital" as used in that section has been frequently interpreted by the various courts of the country, and the best definition I have been able to find of the term is found in the opinion of the supreme court in the case of Mercantile Bank vs. New York, 121 U. S., at 157, where it is said : "The terms of the act of congress, therefore, include shares of stock or other interests owned by individuals in all enter- prises in which the capital employed in carrying on its busi- ness is money, where the object of the business is the making of profits by its iise as money. The moneyed capital thus em- ployed is invested for that purpose in securities by way of loan, discount, or otherwise, which are from time to time, ac- cording to the rules of the business, reduced again to money and re-invested. It includes money in the hands of individuals employed in a similar way, invested in loans or in securities for the payment of money either as an investment of a per- manent character or temporarily with a view to sale or re- payment and re-investment." In the same ease, on page 161, the court says: "No one can suppose for a moment that savings banks come into any possible competition with national banks of the United States." Some of the courts state the matter about as you have stated it in your question, that moneyed capital is any capital which comes in competition with the business of national banks, and while that is a true statement of the situation, yet under our statutes, state and savings banks are not taxed because their capital is moneyed ATTORNEY GENERAL'S OPINIONS 117 capital, within the meaning of this section necessarily, hut because of the provision in section 4 of the chapter under consideration, — that the shares of stock in such institution shall be assessed to the individual stockholder. Yours very truly, C. A. ROBBINS, Assistant Attorney General. Parsonages — ^Not ^^xempt From Taxation. — Property in order to be exempt from taxation as church property must be owned by the church and where the title is in the name of the minister of the church the exemption is not allowable. January 17, 1912. Mr. E. E. Ilgenfritz, 721 Carroll Street, Boone, Iowa. Dear Sir: I am in receipt of your communication of the 15th instant requesting an opinion as to whether a parsonage owned by a minister or division superintendent is exempt from taxation under the Iowa statutes. I have given this matter careful consideration and I find that under paragraph 2 of section 1304, supplement to the code, 1907, the following classes of property are not to be taxed: "All grounds and buildings used for public libraries, * * * * and for literary, scientific, charitable, benevolent, agricultural and religious institutions, and societies devoted solely to the appropriate objects of these institutions, not ex- ceeding one hundred and sixty acres in extent, and not leased or otherwise used with a view of pecuniary profit. * * * " Our supreme court has held in the case of Trustees of Griswold College vs. State of Iowa, 46 Iowa, 275, and in the case of Cook vs. Hutchins, 46 Iowa, 706, that a parsonage owned by the church and used as a parsonage is exempt from taxation ; but our supreme court in the case of Laurent vs. City of Muscatine, 59 Iowa, 404, held that in order that the exemption may apply, the use and ownership, either legal or equitable, must combine in the institu- tion, and hence under this decision the property in question would not be exempt from taxation for the reason that it is not actually 118 ATTORNEY GENERAL'S OPINIONS owned by the church. As before stated, in order that the prop- erty may be exempt from taxation, it must be owned by a religious society and used for religious purposes. See also: In re Dille, 119 Iowa, 575 ; Nugent vs. Dillworth, 95 Iowa, 49 ; 37 Cyc, page 943. Yours very truly, George Cosson, Attorney General of Iowa. Delinquent Taxation on Bank Stock — How Collected. — Taxes levied against shares of stock in banks are required to be paid by the bank and the bank may charge it up against the dividends of the stockholders. January 20, 1912. R. L. Farnsworth, Cashier, New Hartford, Iowa. Dear Sir: Yours of the 18th instant addressed to the attorney general has been referred to me for reply. Your inquiry is with reference to the remedies available for the collection of delinquent tax on bank stock, and you especially inquire as to whether or not such tax is a lien upon the real estate of the owner of the bank stock the same as other personal prop- erty tax. Under section 1322 of the supplement to the code, 1907, as amended by section 4 of chapter 63, acts of the thirty-fourth gen- eral assembly, it is provided: "Shares of stock of national and state and savings banks and loan and trust companies located in this state shall be assessed to the individual stockholder at the place where the bank or loan and trust company is located. ' ' And while it is doubtless true, as suggested by you, that this tax would be a lien upon any real estate owned by the stockholder in the county where the bank is located, yet as the stock in a bank is frequently held by persons not having any land in that county. ATTORNEY GENERAL'S OPINIONS 119 but having land in other counties where the tax would not be a lien, it would seem that some better remedy for its collection should exist. This remedy is found in code section 1325, which provides as follows : "The corporations described in the preceding sections shall be liable for the payment of the taxes assessed to the stock- holders of such corporations, and such tax shall be payable by the corporation in the same inanner and under the same penalties as in case of taxes due from an individual tax- payer, and may be collected in the same manner as other taxes, or by action in the name of the county. Such corporations may recover from each stockholder his proportion of the taxes so paid, and shall have a lien on his stock and unpaid divi- dends therefor. If the unpaid dividends are not sufiScient to pay such tax, the corporation may enforce such lien on the stock by public sale of the same, to be made by the sheriff at the principal office of such corporation in this state, after giving the stockholders thirty days' notice of the amount of such tax and the time and place of sale, such notices to be by registered letter addressed to the stockholder at his postoffice address, as the same appears upon the books of the company, or is known by its secretary." Hence, it follows that the bank, by Adrtue of this section, can be compelled to pay the tax by an action in court, if necessary, and the bank should see to it that the tax does not become de- linquent, and in the particular case which you cite, I think the purchaser of the bank stock is bound to know this provision of the law, and hence, purchases the stock subject to any unpaid tax, and the bank would still have the right to charge the tax to the share of stock, even though the ownership of the share of stock has changed hands. Yours truly, C. A. Bobbins, Assistant Attorney General. 120 ATTORNEY GENERAL'S OPINIONS Manufacturing Companies-^Shaees op Stock in — How Assessed. Me. G. H. Orcutt, January 30, 1912. Monroe, Iowa. Dear Sir: Yours of yesterday addressed to the attorney gen- eral has been referred to me for reply. Your question, briefly stated, calls for the proper method of taxation of shares of stock in the Quaker Oats Company, — whether on the five mill basis or on 20 per cent of its actual value ; also for the proper basis of taxation of money in the bank on time deposit and in bank subject to cheek, where these items are held by a farmer living on his own farm. If the Quaker Oats Company is an Iowa corporation it would in all probability be a manufacturing corporation, and the cor- poration itself should be assessed with its property under section 1319 of the code. And you will observe by the last few lines of this section that the owners of capital stock of a manufacturing corporation which has listed its property are exempt from assess- ment on such shares of stock. If on the other hand, the Quaker Oats Company is a foreign corporation, then shares of stock held by residents of your taxing district would be moneys and credits and should be taxed on the five mill basis, even though the prop- erty of the company is taxed in the state of its residence. See Judy vs. Beckwith, 114 N. W., 565. The money in bank on time deposit, as well as the checking ac- count, should be taxed on the five mill basis where, as you say, the same is held -by a farmer, being one who is not engaged in the making of money by the use of his moneyed capital as money. Very truly, C. A. Bobbins, Assistant Attorney General. Assessment op Property op Person About to Leave State. — A person about to leave the state and having property in the Mate on January 1st should be assessed even though he may be liable for another tax in same year on same property in the state to which he moves. Me. J. P. Moorman, January 30, 1912. Truro, Iowa. Deae Sib: Yours of yesterday addressed to the attorney gen- eral has been referred to me for reply. ATTORNEY GENERAL'S OPINIONS 121 Your question is, "Has the assessor the lawful right to list all property in view of the fact that you are leaving the state for Nebraska, and whether or not, if the property is listed here, the Nebraska authorities are bound by the proceedings here?" Under our law it is not only the right, but the duty of the as- sessor to assess all property which was in this state on January 1st to the then owner thereof. I do not know what the laws of Nebraska are. It may be that you would be liable for a double tax on the property by moving to Nebraska. If their date for list- ing is after the time you arrive there, but in the same year, you would be liable for a double tax. Yours very truly, C. A. Bobbins, Assistant Attorney General. Beick and Tile Companies — How Assessed — Motor Cae Com- panies — How Assessed. January 30, 1912. E. J. Mullen, Assessor, Dougherty, Iowa. Dear Sir: Your letter of the 28th instant addressed to the at- torney general has been referred to me for reply. You call attention to the fact that some of the stockholders in the Farmers' Brick & Tile Company of Mason City and the Colby Motor Company refused to list their stock in these corporations until they are shown proof that they can be assessed for these stocks, and ask to be advised with reference to the matter. Our supreme court, in the appeal of Iowa Pipe & Tile Company, 70 N. W., 115, has held that a brick and tile company is a manu- facturing corporation, and would hence be taxed under the pro- visions of section 1319 of the code, and the property of the cor- poration should be assessed instead of the shares of stock. You will notice the last lines of this section provide: "The owners of capital stock of manufacturing companies, as herein provided for, having listed their property as above directed, shall be exempt from assessment and taxation on such shares of capital stock." 122 ATTORNEY GENERAL'S OPINIONS I do not know enough about the Colby Motor Company to know whether or not it should be assessed in the same way, but if it is a manufacturing concern instead of a selling concern, then the same rule would apply with reference to it and its stockholders. On the other hand, if it is not a manufacturing concern and is a foreign corporation, the shares of stock must be assessed to the individual owners thereof where they reside, and those residing in this state should be assessed with their shares of stock, even though the property of the corporation is assessed in the foreign state where it is organized. Judy vs. Beckwith, 114 N. W., 565. Yours truly, C. A. ROBBINS, Assistant Attorney General. Road Supervisors — Trees in Highway. — The road supervisors may not destroy trees by the roadside which do not obstruct the travel. January 31, 1912. Mr. GrUS MONGIN, Woodward, Iowa. Dear Sir: Replying to your letter of the 21st instant to the attorney general, will say, first, section 1556 of the code provides: "The road supervisor shall not cut down or injure any tree growing by the wayside which does not obstruct the road or which stands in front of any town lot, inclosure or cultivated field, or any ground reserved for any public use, and shall not enter upon any lands for the purpose of taking timber therefrom without first receiving permission from the owner." Of course you are aware of the provisions with reference to tke trimming of hedges, but I take it that this is not what you have in mind. Your second question is: "Have the county supervisors the right to use a township one mill road tax any place in the town- ship they wish to?" ATTORNEY GENERAL'S OPINIONS 123 Section 1 of chapter 97 of the acts of the thirty-third general assembly' provides : ' ' That on written petition of a majority of the electors who are free holders of any township in any county, the board of supervisors may levy an additional mill in said township to be expended hy said hoard of supervisors on roads in the town- ship where the same is levied. ' ' Hence, it follows that your question should be answered in the aifirmative, provided, however, the board confines the work within the township for which the one mill tax is levied. Yours very truly, C. A. EOBBINS, Assistant Attorney General. Policemen's Pension Fund. — The tax for policemen's pension fund may be levied when the city has an organized police force but not otherwise. January 31, 1912. Fred G. Fisk, Marshal, Osage, Iowa. Dear Sie: Yours of the 29th instant addressed to the attorney general has been referred to me for reply. Your question, briefly stated, is whether or not the policemen's pension law applies to a city of the second class where there is only one policeman. The policemen's pension law is found in chapter 62, of the acts of the thirty-third general assemblj^, and section 1 provides: "In all cities and towns including cities organized under special charter, noiv or hereafter having an organized police department, there may be annually levied at the time of the levy of other taxes for city purposes a tax not exceeding one- half of a mill on. the dollar for the purpose of creating a policemen's pension fund." I am inclined to believe that this law was only intended to apply in cases where there is an organized police department. If you will examine section 668 of the supplement to the code, specifying 124 ATTORNEY GENERAL'S OPINIONS the duties and powers of city and town councils, and especially subdivision 12 of that section, you will find that it provides: "They shall have power to establish a police force, and to organize the same under the general supervision of the mar- shal, and to provide one or more station houses." Should your city comply with these provisions, then I think the tax provided for might be levied and you or any other disabled policeman might be entitled to the pension. Yours very truly, C. A. Bobbins, Assistant Attorney General. Banks — Taxation of — Deductions. — ^No deductions should be made from the valuation of bank stock on account of the fact that the surplus or undivided earnings may be invested in government bonds. February 8, 1912. C. J. Cash, County Attorney, Anamosa, Iowa. Deae Sik: Yours of the 6th instant addressed to the attorney general has been referred to me for reply. Your questions are : "1st. Can any deduction be made by reason of part of the surplus and undivided earnings being invested in government bonds? "2d. Is there any deduction on account of real estate owned by the bank or by a company in which they hold stock except real estate 'on or in which the bank or trust company is located'?" Your first question should be answered in the negative. The chapter to which you refer requires the assessment to be made against the individual stockholders and not against the bank. It is clear, therefore, that the bank is not entitled to make any deduc- tion for the reason that there is no assessment against it. The in- dividual stockholder is not entitled to make any deduction because the bank, and not the stockholder, is the owner of the government securities. ATTORNEY GENERAL'S OPINIONS 125 Your second question should be answered in the afSrmative, mod- ified by the proposition that the deduction to be made is not the value of the real estate, but "the amount of their capital actually invested in real estate owned by them." This deduction is not to be confined to the building in which the bank or loan and trust company is located, but where the banks own such a building, a deduction is to be made on account thereof. Yours very truly, C. A. ROBBINS, Assistant Attorney General. Voters — Qualifications of. — A citizen of the United States of the age of twenty-one years, a resident of the state six months and of the county sixty days, is a qualified elector. In city elections he must also be a resident of the precinct ten days. Women may vote at elections where certain specified questions are involved. February 12, 1912. Me. George H. Hatnes, "Worcester, Mass. Dear Sir : Replying to your letter of the 30th ult. with refer- ence to the qualifications required of voters by the laws of this state, will say, first, that by the constitution of Iowa, section 1, article II, it is provided: "Every male citizen of the United States of the age of twenty-one years who shall have been a resident of this state six months next preceding the election, and of the county in which he claims his vote, sixty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law." By section 642 of the code it is provided, in addition to the foregoing, that persons voting at city or town elections must have been a resident of the town and of the precinct in which he desires to vote ten days prior to the election. By code supplement section 1076, in cities having a population of 3,500 or more, registration is required. No educational tax, property tests or other qualifications are required. 126 ATTORNEY GENERAL'S OPINIONS By code section 2747, it is provided: "In any election here- after held in any school corporation for the purpose of issuing honds for school purposes or for increasing the tax levy, the right of any citizen to vote shall not be denied or abridged on account of sex, and women may vote at such elections the same as men, under the same restrictions and qualifications, so far as applicable." By section 1131, same provision is applied to city and town elec- tions for similar purposes. By section 5, article II of the Iowa constitution, it is provided: "No idiot or insane person or person convicted of any in- famous crime shall be entitled to the privilege of an elector." Yours very truly, C. A. ROBBINS, Assistant Attorney General. Poll Tax — Exemptions. — Officers and soldiers of the guard are exempt from poll tax during their terms of service. Soldiers' Exemetion. — The soldiers' exemption provided for by chapter 62, acts of the thirty-fourth general assembly, is avail- able only to Union soldiers or sailors of the Mexican war and the war of the rebellion and is not available to the soldiers of the Spanish-American war. February 12, 1912. Mr. Walter L. Cook, R. R. No. 2, Rolfe, Iowa. Dear Sir: Yours of the 9th instant addressed to tte attorney general has been referred to me for reply. Your questions are: "First. Whether an ex-soldier of the Spanish- American war is exempt from poll tax. "Second. Whether or not such soldier is entitled to the $1,200 exemption from taxation." Code section 2209 provides: "Every officer and soldier of the guard shall be exempt from jury duty and poll tax during Ms term of service." As this exemption applies only during the term of service, it follows that your first question should be answered in the negative. ATTORNEY GENERAL'S OPINIONS 127 With reference to your second question, will say that chapter 62, acts of the thirty-fourth general assembly, provides: "The property not to exceed $1,200 in actual value, of any honorably discharged Union soldier or sailor of the Mexican war or of the war of the rebellion, shall not be taxed." From this it is clear that soldiers serving in other wars were not intended to be within the provisions of this act, and hence, a soldier of the Spanish- American war or of any other war other than the Mexican war or the war of the rebellion would not be entitled to this exemption. Yours very truly, C. A. ROBBINS, Assistant Attorney General. Bank Stock — Valuation at Which Assessed. — Under chapter 63, acts of the thirty-fourth general assembly, bank stock and loan and trust company stock should be assessed at 20% of its actual value. February 12, 1912. J. H. Cheistt, Assessor, Tabor, Iowa. Dear Sir: Replying to yours of the 7th instant addressed to the attorney general, will say that code section 1322, as amended by chapter 63, acts of the thirty-fourth general assembly, requires that bank stock and loan and trust company stock and moneyed capital shall be assessed and taxed upon the taxable value of 20% of the actual value thereof. However, in practice many assessors assess this property at 80% at the same time that they assess the other property at 100%, and then divide all by four, which would result in assessing the bank stock at 20% and the other property at 25%. It is not material which way it is done, so long as it clearly appears that the assessment is made on a 20% basis. The holders of shares of stock are not entitled to deduct their indebtedness therefrom in order to reduce their assessment. Yours very truly, C. A. EOBBINS, Assistant Attorney General. 128 ATTORNEY GENERAL'S OPINIONS Taxation — Exemption of By City Council. — Neither the city council nor the board of supervisors have authority to exempt from taxation for city or county purposes brewery property. February 16, 1912. Mb. M. p. "Wilson, 819 4th Ave., Clinton, Iowa. Dear Sie: Yours of the 9th instant addressed to the attorney general has been referred to me for reply. You call attention to the fact that the city council and the county board of supervisors have by some order attempted to exempt from taxation for city and county purposes the Clinton Brewery Com- pany, and you ask what the duties of the county treasurer are in connection with such a case, and whether or not it is up to him to take action to collect the lawful taxes for the current year, as well as for previous years. You also ask what action should or . could a citizen take in the case. There is no authority in law for such an exemption being made, and that it would be the duty of the city council and the board of supervisors, as well as the county treasurer and the county attor- ney, to see to it that these taxes are collected; and it is doubtless true that the proper officers might be compelled by mandamus pro- ceedings to take the necessary steps to collect this tax. It is equally true that if the proper officers fail to collect this tax, their bonds- men would be liable for the damage sustained by reason thereof. There are various steps that might be taken by an interested citizen to bring about the collection of this tax. I would suggest, however, that the first step should be to serve a written notice on the city council, the members of the board of supervisors, the county treasurer and the county attorney, calling their attention to the illegality of the practice, and demanding that they proceed to collect the tax. Yours truly, C. A. Bobbins, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 129 Residents. — One may retain his residence in the country while residing temporarily within a city. February 21, 1912. Mr. Frank A. Nimocks, Ottumwa, Iowa. Dear Sir : I am in receipt of your communication of the 2d in- stant in which you say that Mr. Hall was elected a member of the board of supervisors from Washington township, commencing his services on January 1, 1911, and has recently temporarily removed to Ottumwa owing to special reasons; that he retains his farm in "Washington township on which his sons are working, and the ques- tion arises as to whether he may retain his residence in "Washing- ton township although temporarily residing in the city of Ottumwa for the purpose of convenience. This undoubtedly may be done if he so desires. If he retains his legal residence at his old home in "Washington township, he can continue to run for office from that township ; this being true, of course there will be nothing to prevent Mr. Patterson from again being a candidate and being elected if he can receive the suffrage of the people from the city of Ottumwa. Yours very truly, George Cosson, Attorney General of Iowa. Primary Election Notice — Publication op. — The primary elec- tion notice must be published in one, and not to exceed two newspapers of general circulation, and where there are only two papers and both are Eepublican, it may be published in both. February 21, 1912. Geo. J. Cummings, County Auditor, Osage, Iowa. Dear Sir: Your letter of the 19th instant addressed to the at- torney general has been referred to me for reply. You request an interpretation of that provision of section 1087- al2 of the supplement to the code, 1907, as amended, relating to the publication of notice of primary elections. You say that you g 130 ATTORNEY GENERAL'S OPINIONS have no democratic paper in your county, but liave two of the leading papers of the county designated as the official papers, both being republican in politics, and you inquire if such notice should be published in both papers or in one only. You will note from a reading of the statutory provision re- ferred to that such notice is to be published in not to exceed two newspapers of general circulation in the county. It is further provided that one of such newspapers shall represent the political party which east the largest vote at the last preceding general election, and the other, if any, shall represent the political party which cast the next largest vote in the county at such general election. I construe this to mean that if there are newspapers representing the two political parties which cast the highest and next highest vote as aforesaid, and the notice is published in two newspapers, they must be in papers representing such political parties, and they cannot both be published in papers representing one of the parties casting the highest or next highest vote, but I do not understand that it is mandatory that the notice be published in more than one newspaper in any case. Answering your question then, I would say that it would be perfectly legal and proper to have the notice published in two republican papers, under the facts as you give them. In answer- ing the question as I do, I am assuming that the democratic party east the next highest vote in your county at the last preceding general election. EespectfuUy yours, N. J. Lee, Special Counsel. MiLLAGE Tax — How Appoetionbd. — The millage tax realized on moneys and credits is to be apportioned among the several funds in the same proportion that the tax realized from other sources in the several funds bear to each other. February 21, 1912. Mr. Beet Codee, Letts, Iowa. Dear Sir : Yours of the 19th instant addressed to the attorney general has been referred to me for reply. My understanding of section 1 of chapter 63, acts of the thirty- fourth general assembly, with reference to the apportionment of ATTORNEY GENERAL'S OPINIONS 131 the 5 mill tax on moneys and credits, is, that the tax realized from this source is to be apportioned among the several funds in the same proportion that the tax realized from other sources, in the several funds, bear to each other. For instance, if the tax for the state fund was 1 mill, for the county fund 2 mills, and for the school or corporation fund 1 mill, then whatever tax was realized from the 5 mill levy on moneys and credits would be divided in the same proportion, — that is, one-fourth to the state fund, one- half to the county fund, and the remaining one-fourth to the school or corporation fund. Yours very truly, C. A. Bobbins, Assistant Attorney General. University Peopeety — When Liable foe Taxation. — ^Where a university property is conducted with a view to pecuniary profit it is not exempt from taxation. February 21, 1912. W. M. Bair, Mayor, University Park, Iowa. Dear Sie : Yours of the 19th instant addressed to the attorney general has been referred to me for reply. Your question, briefly stated, is, whether or not the property belonging to the Central Holiness University is liable for taxation. Our supreme court has held in the case entitled In re Dille, 119 Iowa, 575, with reference to the property and grounds known as Highland Park College in this city, that "when such an institu- tion is used and maintained with a view to pecuniary profit, it is not exempt," and I assume the same rule would apply to your university. Of course if no charges are made for tuition or other instruction, then the property would doubtless be exempt; other- wise not. Yours very truly, C. A. ROBBINS, Assistant Attorney General. 132 ATTORNEY GENERAL'S OPINIONS Surety Bonds — How Conditioned. — ^While the law compels the approving officer to accept as surety a fidelity company it is nevertheless his duty to see to it that the bond is conditioned as required by law. February 23, 1912. S. M. Bentlet, Clerk District Court, Waterloo, Iowa. Dear Sir : Yours of the 16th instant addressed to the attorney general has been referred to^me for reply. Your question, briefly stated, is whether or not it is your duty, under code section 360, to approve bonds of local officers of a domes- tic local building and loan association when the bonds tendered are signed by a surety company which has complied with section 359 of the code, but which bonds do not contain the conditions re- quired by code section 1183 and code supplement sections 1177-a and 1177-d. I am of the opinion that, while the statute makes it mandatory on the officer to approve the bond when tendered, the only ques- tion sought to be foreclosed was the responsibility of the surety company, and that, even in the face of this statute, it is- not only the right, but the duty of the approving officer to see that the bond is conditioned as required by law. Yours very truly, C. A. Bobbins, Assistant Attorney General. Taxation — ^Land Contracts. — A land contract whereby the owner is bound to sell and the purchaser bound to buy is taxable as moneys and credits. February 26, 1912. Jas. p. Eecknor, Township Trustee, R. F. D. No. 1, Prescott, Iowa. Dear Sir: Yours of the 12th instant addressed to Governor Carroll has just been referred to this department for reply. Your question, briefly stated, is whether or not one who has executed a contract for the sale of land should be assessed and taxed on the deferred payments due on such contract. Where the contract binds the land owner to sell and also binds the purchaser to pay the deferred payments, then such deferred ATTORNEY GENERAL'S OPINIONS 133 payments are moneys and credits and the seller of the land should be taxed accordingly. Cross vs. Snakeniurg, 126 Iowa, 636. Where, however, the contract simply gives the purchaser an option on the land and binds the land owner to convey if the option is exercised, then the seller of the land is not liable to be taxed on the contract. Schoonover vs. Petcina, 126 Iowa, 261. It is the duty of the assessor rather than the township trustees to see that all such contracts are properly assessed. » Yours truly, C. A. Bobbins, Assistant Attorney General. Sheriff — Compensation of for Boarding Prisoners. — The sheriff is entitled for boarding prisoners to 121/2 cents per meal, not exceeding three in twenty-four consecutive hours, and 121^ cents for each night's lodging. E. F. Brovtn, County Attorney, February 26, 1912. Vinton, Iowa. Dear Sir : Mr. Cosson will reply to that portion of your letter of the 9th instant covering the report on prisons, but he has re- ferred to me for reply that portion of your letter with reference to the sheriff's compensation for lodging prisoners, and as to whether or not the item of 25 cents for each commitment and dis- charge of prisoners should be deducted from his salary. The compensation of the sheriff for boarding prisoners is now fixed by chapter 36 of the acts of the thirty-third general assembly. "For boarding prisoners, a compensation of twelve and a half cents for each meal, and not to exceed three meals in twenty-four consecutive hours, and for each night's lodging, the sum of twelve and a half cents." The fact that this compensation is thus fixed excludes the idea that anything additional might be allowed. I am inclined to think that the sheriff should account for the fees received for commitments and discharge of prisoners. There is no greater reason for these fees being retained in addition to the salary than any other fees mentioned in code supplement section 511, and where the sheriff is put on a salary basis, the theory is that he should account for all fees. Yours truly, C. A. Bobbins, Assistant Attorney General. 134 ATTORNEY GENERAL'S OPINIONS Nomination Papers.- — Where a senatorial district is composed of two counties, the signatures required may all come from one county, but the percentage should be figured on the total vote of the party in both counties. February 28, 1912. A. D. Nye, Treasurer, Bedford, Iowa. #■ Deae Sir : Yours of the 25th instant addressed to the attorney general has been referred to me for reply. Your questions are: "First. In a senatorial district composed of two counties, is it necessary to get signers in both counties on a nomination paper to place a candidate 's name on the ballot at the primary- election ? "Second. Do signatures on nomination papers necessarily have to be written in ink?" Subdivision 2 of code supplement section 1087-alO provides: "If for a representative in congress, district elector, or senator in the general assembly in districts composed of more than one county, by at least two per centum of the voters of his party, as shown by the last general election, in at least one-half of the counties of the district, and in the aggregate not less than one per centum of the total vote of his party in such district, as shown by the last general election." Hence, it follows that your first interrogatory should be answered in the negative. However, the signatures should aggregate not less than one per centum of the total vote of the party in both counties of the district. .The .statute seems to be silent on the question of whether or not the nomination paper should be signed in ink. Hence, I am of the opinion that this interrogatory should also be answered in the negative. Yours very truly, C. A. ROBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 1S5 Taxation. — The owner of a stock of goods on January 1st is per- sonally liable for the taxes levied thereon and cannot escape such liability by transferring the goods. March 6, 1912. Hon. W. J. McCarty, County Treasurer, Emmetsburg, Iowa. Dear Sir: Your letter of the 26th ultimo to the attorney gen- eral was referred to me for reply. You request an opinion from this department upon the follow- ing state of facts which I quote from your letter : "A sells stock of merchandise to B May, 1910, and continues the business. Does A have to pay the tax of 1910 due in 1911, nothing being said by either party as to taxes? "Another case: C sells stock (feed, flour, etc.) to D on January 20, 1912, before assessor makes assessment. Which one should be assessed for 1912, C or D ? Is merchandise same as other personal property, assessed to owner January 1st?" I think your first question should be answered in the affirmative. A would be personally liable for the 1910 taxes. He cannot relieve himself of that obligation by selling the stock to another. The taxes, however, would be a lien upon the stock of merchandise and could be enforced against the stock, no matter who owned it, but B would not be personally liable for the taxes upon the stock nor would they be a lien upon his real estate. Under the second case supposed by you C should be assessed for the stock of feed and flour, as he was the owner thereof on January 1st, as I understand it. Taxes on stocks of merchandise remain a lien on such stocks so long as they are kept intact. I call your attention to the case reported in the 123d Iowa at page 485, which seems to definitely settle these questions. Respectfully yours, N. J. Lee, Special Counsel. 136 ATTORNEY GENERAL'S OPINIONS Candipates. — ^A candidate for office should be a resident of the dis- trict in order to be eligible for the office. Me. C. a. Whalen, March 6, 1912. Decorah, Iowa. Dear Sir: Yours of the 24th nit. addressed to the attorney general has been referred to me for reply. Your question, briefly stated, is whether or not a single man whose permanent residence is in Chickasaw county and has been since 1908, but who has been teaching in tmother county during most of the time since 1908, would be eligible to the office of county superintendent of Chickasaw county, the nomination for which is to be made at the primaries in June, 1912, and you ask, "Must he give up his residence in Winneshiek county in order to become a candidate for said primaries, or may he become a candidate in Chickasaw county and still retain his residence in Winneshiek county ? ' ' It is a fundamental proposition that a party must be a resident of the territory for which he seeks nomination, but if his permanent residence is there, this is sufficient, even though he may have a temporary residence elsewhere. On your statement of the matter, the party still has his permanent residence in Chickasaw county, for he voted there in 1910, although he had been teaching in the other county since 1908. If, during the time he has been teaching in Winneshiek county, he claimed his permanent home in Chicka- saw county and during all the time intended to return to that county, then in my judgment he would be eligible, even though he is still teaehing in Winneshiek county. On the other hand, if he did not have that intention, he would have to be a resident of Chickasaw county at least sixty days prior to the primary. Yours very truly, C. A. Bobbins, Assistant Attorney General. Lodge Property — Taxation of. — The building and regalia belong- ing to an Odd Fellows lodge are not subject to taxation. C. F. Davis, Justice of the Peace, March 8, 1912. Bloomfield, Iowa. Dear Sir: Yours of the 29th ultimo addressed to the attorney general has been referred to me for reply. ATTORNEY GENERAL'S OPINIONS 137 Your question briefly stated is whether or not the building and regalia belonging to the Odd Fellows are subject to taxation. Also whether any money belonging to said lodge and to be used for charitable purposes is liable to taxation. Subdivision 2 of code supplement section 1304 in which exempt property is enumerated provides as follows: "All grounds and buildings owned and kept by associations or corporations for charitable or benevolent purposes, not ex- ceeding 160 acres in extent, and not leased or otherwise used with a view to pecuniary profit, the books, papers and ap- paratus belonging to the above institutions, used solely for the purposes above contemplated; moneys and credits belonging exclusively to such institutions and devoted solely to sustain- ing them. ' ' Hence, it follows that the money and regalia to which you refer are not subject to taxation, nor is the building subject to taxation unless it is leased or otherwise used with a view to pecuniary profit. Very truly yours, C. A. RoBBEsrs, Assistant Attorney General. Sheriff — Compensation of After Expiration of Term. — ^A sher- iff rendering services after the expiration of his term is not entitled to retain the fees earned in connection with such services. March 9, 1912. Hon. L. E. Francis, Spirit Lake, Iowa. Dear Francis: I am in receipt of your communication of the 2d instant in which you say that in Osceola county the sheriff, pursuant to the provisions of section 504 of the code, has per- formed services after the expiration of his term of office, and you request an opinion as to whether under these circumstances he is entitled to retain the fees for the services. I submitted the matter to Mr. Robbins to look up and he, after a conference with Judge Henderson, came to the conclusion that the sheriff is not entitled to retain the fees. After giving the matter some consideration I arrive at the same conclusion. The sheriff is virtually upon a salary basis. (Section 510-a supplement to the code, 1907.) 138 ATTORNEY GENERAL'S OPINIONS ' It is true that the fees of his office are applied upon his salary, but that is a mere matter of convenience in bookkeeping. The sheriff having received his full salary, would not, in my opinion, be entitled to retain the fees because fees are only to be consid- eted in the matter o-f determining whether anything additional is to be paid to the sheriff at the time of settlement with the board of supervisors. Furthermore, while the sheriff could lawfully per- form the services under section 505 of the code, he might have transferred these papers to the incoming sheriff and relieved him- self of that duty. It seems to me this is the safer and more reasonable view to take, although I can see that the question is not free from doubt. Yours very truly, George Cosson, Attorney General of Iowa. Y. M. C. A. Property — Exempt From Taxation. — ^A building owned by the Young Men's Christian Association, or leased by such association where no rent is reserved and the build- ing 'is used only for appropriate objects of such association is exempt from taxation. Me- E. L. Guild, March 11, 1912. Conrad, Iowa. Dear Sir: Your letter of the 4th instant addressed to the at- torney general has been referred to me for reply. Your question, briefly stated, is, whether or not a building used for the purpose of reading room, gymnasium and assembly room in connection with the Young Men's Christian Association would be subject to taxation. Subdivision 2 of code supplement section 1304 provides: "All grounds and buildings used for public libraries, in- cluding libraries owned and kept by private individuals, associations or corporations for public use and not for private profit, and for literary, scientific, charitable, benevolent, ag- ricultural and religious institutions, and societies devoted solely to the appropriate objects of these institutions, not exceeding one hundred and sixty acres in extent, and not leased or otherwise used with a view to pecuniary profit, but all deeds or leases by which such property is held shall be filed for record before the property above described shall be omitted from assessment." ATTORNEY GENERAL'S OPINIONS 139 Hence, I am of the opinion that where the building is owned by the Young Men's Christian Association, or where it is leased by such association and where no rent is reserved and the build- ing is used only for the appropriate objects of such institutions, the same would be exempt from taxation. I herewith enclose a blank form which I think would be sufficient upon which to take the preliminary subscriptions. As to the articles of incorporation, I would suggest that you correspond with some similar association either here or elsewhere and they will doubtless be able to furnish you copies of their articles of incorporation. Yours truly, C. A. EOBBTNS, Assistant Attorney General. Peddlers — License Required. — Peddlers inay be required to pay a license to the county when operating outside of the city or town; when operating within a city or town the city has power to regulate, license and tax them. Me. H. M. Harwick, March 13, 1912. 5111,4 Broadway, Milwaukee, Wisconsin. ' Dear Sir : Yours of the 11th instant addressed to the treasurer of state has been referred to this department for reply. By code supplement section 1347-a, it is provided: "Peddlers plying their vocation in any county in this state outside of a city or incorporated town shall pay an annual county tax of twenty-five dollars for each pack ped- dler or hawkers on foot, fifty dollars for each one horse con- veyance, and seventy-five dollars for each two horse convey- ance." This tax is paid to the county treasurer who issues a duplicate receipt, and upon presentation of one of the same to the county auditor, he issues a license for the term of one year from the date thereof. Code supplement section 700 provides, with reference to the powers of cities: "They shall have power to regulate, license and tax ped- dlers." 140 ATTORNEY GENERAL'S OPINIONS Hence, you will observe that while the law is the same through- out the state where one seeks to sell outside the city or town, yet within a city or town the reflations are controlled by the par- ticular city or town. Yours very truly, C. A. RoBB[Na, Assistant Attorney General. Banks — Assessment — Taxation Op. — Banks being assessed are not eiititled to have any deduction made from their asses- ment on account of the fact that part of the capital is in- vested in drainage bonds which are exempt from taxation. March 21, 1912. W. L. Baekee, City Solicitor, Cresco, Iowa. Deae Sie : Your letter of the 18th instant to the attorney gen- eral has been referred to me for reply. You request an opinion from this department as to whether drainage bonds issued under the laws of this state are exempt from taxation in the hands of private bankers when held as a part of the assets of the bank. It is my view that such bonds are not exempt under the cir- cumstances suggested, or, in other words, that when such bonds are held by a private bank as a part of its assests, they may not be deducted from the total value of moneys and credits for the purpose of taxation. The section of the statute which prescribes the manner of assessing a private bank is No. 1321 of the supple- ment to the code 1907, as amended by section 4, chapter 63, acts of the thirty-fourth general assembly. Unless such deduction of such securities is denied, there would be a discrimination in the assessment of private banks and the shares of stock in incorporated banks. Respectfully yours, N. J. Lee, Special Counsel. ATTORNEY GENERAL'S OPINIONS 141 Residents — Foe Purposes of Taxation. — -Where one has no legal residence elsewhere his temporary residence of a year should be considered his place of residence for taxation purposes. March 22, 1912. Rev. W. H. Shipman, College Springs, Iowa. Dear Me. Shipman : Replying to yours of the 16th instant rela- tive to the taxation of moneys and credits, the law generally pro- vides that moneys and credits shall be assessed to the owner at the place where he is residing. If he has no legal residence else- where, then his temporary residence of a year should be consid- ered his place of residence, and he should there give in all moneys and credits, choses in action and intangible property, unless the same is kept entirely Without the state and not under his per- sonal charge and also taxed in another state. Of course he should not pay double taxes, but in the absence of this, the person him- self should give his money and credits in at his place of residence. Yours very truly, George Cosson, Attorney General. Automobiles — ^License Tax. — The license tax provided for auto- mobiles may not be exacted unless such automobile is used upon the highway. March 22, 1912. Mb. Chas. S. Stewart, Bristow, Iowa. Dear Sir: I am in receipt of your communication of the 16th instant advising that you understand a state license on automo- biles is in lieu of all other taxes. The law does not require the payment of a license unless the automobile is to be used; that is to say, an old automobile stored which is not used at all on the highways, is not required to have a license and a register number. In all such cases the machine should be assessed as other personal property at its actual value. Yours very truly, George Cosson, Attorney General. 142 ATTORNEY GENERAL'S OPINIONS Road Poll, Tax — ^Who Liable Foe. — Mexicans or other railway employees residents of a township are subject to road poll tax even though not citizens of this country. March 29, 1912. Mr. L. J. Newquist, Dudley, Iowa. Dear Sir : Hon. Frank A. Nimocks of Ottumwa, Iowa, has writ- ten this department that you desired an opinion as to whether certain Mexicans who worked on the railway as section men in your township may be required to perform labor upon the roads, under section 1550 of the supplement to the code, 1907. Mr. Nimocks says that these men have been there for some time and worked there all last season, and that some of them remained dur- ing the winter and are there during the present time. If these men are residents of your township they are subject to a road poll tax, and the fact that they are not citizens of this country would not afford them an excuse from performing such labor. Respectfully yours, N. J. Lee, Special Counsel. Women — Eligible to Certain Offices. — ^Women are eligible to the offices of county recorder, county superintendent and li- brary trustee, and ineligible to other offices. March 30, 1912. Hon. N. R. MorisoNj Mayor, Traer, Iowa. Dear Sir: Your letter of the 27th instant addressed to the attorney general has been referred to me for reply. The question briefly stated is, whether or not a woman is eligible to the office of park commissioner of an incorporated town. Code supplement section 850-a provides for the election of park commissioners in cities containing a population of forty thousand or over, and also provides: "and all other cities and towns may, by ordinance, provide for the election of three park commissioners whose terms of office shall be six years," etc. ATTORNEY GENERAL'S OPINIONS 143 It will be observed that this section is silent as to the qualifica- tions of such park commissioners, and I . find no other provision in the chapter which attempts to fix their qualifications. Our supreme court, in passing upon the right of an alien to hold the office of sheriff under the laws of Iowa, laid down the following proposition: "There is no provision in our constitution or statute upon that subject, yet it is certainly a fundamental principle of our government that none but qualified electors can hold an elective office unless otherwise specially provided." State vs. Van Beek, 87 Iowa, at 577. It has recently been held by our supreme court that a woman could not be granted a permit to sell intoxicating liquors under a statute which limited such right to qualified electors. In re Garragher, 149 Iowa, 225. The only instances known to the writer in which women are eligible to office are : First, the office of library trustee provided for by code supple- ment section 728, wherein it is provided : "Bona fide citizens and residents of the city or town, male or female, over the age of twentj^-one years, are alone eligible to membership." Second, the office of county recorder, provided for in code sec- tion 493, which reads as follows: "In counties with a population of ten thousand or less, the same person may hold the office of county recorder and treas- urer, and no person shall be disqualified on account of sex from holding the office of recorder." Third— "School officers or members of the board may be of either sex." Code section 2748. Fourth-^ "The county superintendent who may be of either .sex, shall be the holder of a first grade certificate," etc. Code supple- ment section 2734-b. 144 ATTORNEY GENERAL'S OPINIONS If there are any other instances, they have escaped my attention. Hence, it follows that your inquiry must be answered in the neg- ative. Yours truly, C. A. Bobbins, Assistant Attorney General. County and Motor Vehicle Road Fund — Control By Board op Supervisors. — The county motor vehicle road fund is under absolute control of the boa,rd of supervisors except that it must be used for certain specified purposes and outside the limits of cities and towns. April 1, 1912. Mr. W. F. Tripp, Kent, Iowa. Dear Sir : Yours of the 18th ult. addressed to the attorney gen- eral has been referred to me for reply. Your question is, whether or not the board of supervisors has absolute control over the expenditure of the fund arising from automobile taxes, or whether the same must be divided among the different townships of a particular county. Section 33 of chapter 72 of the acts of the thirty-fourth general assembly provides for the apportionment of this tax among the respective counties of the state in the same ratio as the number of townships in the several counties bears to the total number of townships in the state, and further provides: "When such apportionment has been made the state treas- urer shall forthwith remit to the county treasurers of the sev- eral counties of the state the amount of money so apportioned to the respective counties, and the county treasurer of each county immediately upon the receipt of such money shall charge himself therewith and credit the same to a fund to be designated as the 'county motor vehicle road fund,' and he shall forthwith give notice to the county auditor of the amount of money so received. The said county motor vehicle road fund shall be expended for the following purposes only: the crowning, draining, dragging, graveling or macadamizing of public highways outside of the limits of cities and towns, and for the building of permanent culverts on such highways. Such culverts shall be constructed of concrete or stone, and said ATTORNEY GENERAL'S OPINIONS 145 fund shall be under the control of the board of supervisors for said purposes only, and shall be paid out on warrants on said fund drawn by the county auditor, duly authorized by the board of supervisors entered on record." Inasmuch as there is no provision expressly requiring the money to be expended in the several townships of the county, I am in- clined to the view that the legislature intended to leave the entire matter as to where the fund should be expended to the discretion of the board of supervisors. As to the number of townships in a particular county, it is only material for the purpose of de- terming the amount of money which goes to that particular county. Yours very truly, C. A. ROBBINS, Assistant Attorney General. Farm Products — ^When Exempt From Assessment. — In order to have farm products exempt from assessment it must be har- vested by the landlord, and where harvested by the tenant the exemption is not available. H. N. Wright, Count]) Auditor. April 2, 1912. Mount Pleasant, Iowa. Dear Sir: Tours of the 1st instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is, whether or not com received as rent is taxable. I have been unable to find the supreme court decision to which you refer, and whether or not it has been passed upon by the supreme court, I am unable to state. However, I call your at- tention to lines 1 and 2 of subdivision 3 of section 1304 of the sup- plement to the code, 1907, which read as follows: ' ' The farm produce of the person assessed, harvested by him, and all wool shorn from his sheep, within one year previous to the listing * # * » are not to be taxed. I am inclined to the view that where the landlord harvests the crop, or his share of it, that he would be entitled to this exemp- tion, but where the same is harvested by the tenant, that he would not be entitled to the exemption. Yours truly, C. A. ROBBINS, Assistant Attorney General. 10 146 ATTORNEY GENERAL'S OPINIONS Land Contracts — ^Assessment and Taxation Of. — ^Land contracts which are not merely options to purchase but are binding on both the seller and purchaser are taxable, and one indebted on such contract may deduct the amount of such indebtedness from his moneys and credits when being assessed. April 6, 1912. A. Ray Maxwell, City Solicitor, Corning, Iowa. Dear Sir: Your letter of the 5th instant addressed to the at- torney general has been referred to me for reply. Your question briefly stated is, whether or not a citizen of a taxing district in Iowa being assessed on moneys and credits may deduct therefrom indebtedness owing on a land contract for land purchased in Canada. Code section 1311 provides, with reference to this matter: "He will be entitled to deduct from the actual value there- of the gross amount of all debts in good faith owing iy him." and there will not be found in this section anything which tends to limit the indebtedness to be deducted to indebtedness held with- in the taxing district, or even within the state. Our supreme court has held that land contracts which were not merely options to purchase, but which were mutually obligatory, binding the former owner of the land to sell and the purchaser to pay the agreed purchase price, were credits within the meaning of the law, and should be assessed to the vendor of the land. This being true, it necessarily follows that the same contract would constitute an indebtedness owing by the purchaser. Clark vs. Eorn, 122 Iowa, 375; Cross vs. Snakenhurg, 126 Iowa, 336. The question here presented is, whether or not the indebtedness to be deducted is limited tp that held by persons residing within the taxing district, and I am inclined to think this question should be auswered in the negative. It seems to me that a little clear thinking will show it could not be otherwise. For instance, on January 1st, 1912, I am indebted on a thousand dollar note due in five years held by a bank in my own taxing district. There wiU be no question but what I would have the right to deduct such indebtedness from any assessment made against me on account ATTORNEY GENERAL'S OPINIONS 147 of moneys and credits owned by me. By the time I am again assessed on my moneys and credits, this thousand dollar note owed by me has been transferred by the bank in my taxing district to a bank in Chicago. The indebtedness remains the same, but I would still be entitled to deduct it from my assessment in 1913, and by the next year when I am again assessed on my moneys and credits my note is still outstanding, but instead of being held by the bank in Chicago, is owned and held by a bank in Wianipeg. Certainly I would still be entitled to have the deduction made, for the indebtedness is still in good faith owing by me. If this were not the rule, a person being assessed on moneys and credits would be required to know, before being entitled to have the de- duction made for indebtedness which he owes, and be able to show where his obligations are held. For aught that the person being assessed may know, the land contract to which you refer, while perhaps given to some person in Canada, may in fact be owned and held by some person in his own taxing district. Yours truly, C. A. EOBBINS, Assistant Attorney General. Colleges. — Endowment property exempt from taxation. April 9, 1912. I. F. Meyer, President, Ellsworth College, Iowa Falls, Iowa. Dear Sie: Yours of the 5th instant addressed to the attorney general has been referred to me for reply. Your first question is: "When did the statute exempting college endowment property from taxation go into effect in Iowa? This exemption was first provided for in chapter 54 of the acts of the thirty-second general assembly which became effective July 4, 1907. Your second question is: "When did the new tax law with reference to land held by colleges go into effect?" This provision i^ first found in chapter 61 of the acts of the thirty-fourth general assembly and became effective July 4, 1911. Your next inquiry is, whether or not there is specifically any law to prevent an independent academy from receiving students 148 ATTORNEY GENERAL'S OPINIONS from the country schools on the same conditions as they are re- ceived by the high schools, — that is, whether their home district would be compelled to pay tuition to such academy the same as to high schools which "they attend outside their home district. Section 1 of chapter 146 of the acts of the thirty-fourth general assembly provides: "Any person of school age who is a resident of a school corporation not offering a four year high school course and who has completed the course of study offered in such school corporation shall be permitted to attend any high school that will receive him, provided the average cost of tuition allowed shall not exceed the average cost of tuition in the nearest high school," etc. It would scarcely be contended that the term "any high school" would be sufficiently elastic to include an academy. In fact, this department has construed this term "any high school" in such a way as to exclude the private high school from the provisions of this chapter, and on the same theory and for a greater reason, the words should not be held to include an academy. You ask the further question: "Why should not the country student here at Iowa Palls elect to attend the Ellsworth college academy and have the district pay his tuition the same as it would if. he attended the high school?" This inquiry is one that might well be put to the members of the general assembly, but until it has chajiged the language of chapter 146, the chapter itself will stand in the way of such action. Yours truly, C. A. ROBBINS, Assistant Attorney General. Dragging of Roads. — An automobile club may be employed to drag the public highways the same as an individual or firm. April 12, 1912. GrEo. S. Alltn, Cashier, Mount Ayr, Iowa. Deae Sir: Yours of the 9th instant addressed to the attorney general has been referred to me for reply. Your inquiry briefly stated is, whether or not the township trustees might employ a road dragging club to drag the roads. ATTORNEY GENERAL'S OPINIONS 149 I see no legal objection to this being done if the club is a legal entity, such as an incorporated company or a partnership firm doing business under a firm name, and even if this be not true, the contract could be made with some representative of the club, and then let the members of the club assist in doing the work or in having it done. , Yours very truly, C. A. Bobbins, Assistant Attorney General. Justice op the Peace. — ^Not entitled to office supplies. April 18, 1912. C. F. Davis, /. P., Bloomfield, Iowa. Deae Sir: Yours of the 8th instant addressed to the attorney general has been referred to me for reply. Your question is, whether or not, under code section 1073, a justice of the peace is a county officer in such a sense as to be entitled to have his office rent, etc., furnished by the board of supervisors. While the section to which you refer states that the justice "shall be a county officer," yet it is not all county officers who are thus supplied. Code section 468 provides: "The board of supervisors shall furnish the clerk of the district court, sheriff, recorder, treasurer, auditor, county at- torney and county superintendent with offices at the county seat, together with fuel, lights, blanks, books and stationery necessary and proper to enable them to discharge the duties of their respective offices." Inasmuch as justices a;re not included in this enumeration, the legislative intent must have been not to allow them this benefit. Yours truly, C. A. ROBBINS, Assistant Attorney General. 150 ATTORNEY GENERAL'S OPINIONS Registration of Votees — ^When Requieed. — No registration of voters is required for primary election. April 18, 1912. A. B. Maxwell, City Clerk, Ames, Iowa. Dear Sir : Yours of yesterday addressed to the attorney general has been referred to me for reply. Your question briefly stated is, whether or not registration of voters is required for the primary election the same as for general and city elections. This inquiry should be answered in the negative. Yours very truly, C. A. RoBBms, Assistant Attorney General. SoLDiEEs' Exemptions — Special Assessments. — The property of a soldier is liable for special assessments levied for payment of local improvements even though otherwise exempt. April 25, 1912. Me. W. H. McCune, 500 Dewitt St., Clinton, Iowa. Deae Sie: Yours of the 15th instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is, whether or not your house and lot in the city of Clinton is liable for special assessments levied for sewer and other improvements in view of the fact that you are a . soldier and the property is otherwise exempt from taxation. This department has ruled that the soldiers' exemption laws do not apply to special assessments levied for the payment of local improvements. Hence, it follows that your inquiry must be an- swered in the affirmative. Yours truly, C. A. ROBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 151 Supervisors. — How nominated. May 4, 1912. Mr. J. W. HosPEES, Orange City, Iowa. Dear Sir : I am in receipt of your communication of the 3d in- stant requesting an opinion as to whether it is necessary for a candi- date^ for a member of the board of supervisors, in a county where the county is divided into supervisor districts, to file nomination papers in the office of the county auditor; or whether an affidavit as prescribed by section 1087-alO is sufficient, and advising that in some counties they are filing such nomination papers, whereas in others they are not. It is not at all surprising that the law is being construed two different ways for the reason that there are two conflicting provi- sions in the section. A member of the board of supervisors, even if elected from a supervisor district, is a county officer because his duties pertain to the county. See the cases cited in Words & Phrases under the title "County officer." The section, however, also contains the provision that ' ' a candi- date for an office to be filled by tlie voters of a subdivision of a county,'! etc., "shall not be required to file any nomination paper oir papers," and farther on provides that "each and every candi- date shall file an affidavit stating that he is eligible to the office for which he is a candidate." A candidate for a member of the board of supervisors when the county is -divided into supervisor districts is undoubtedly a candi- date for an office to be filled by the voters of a subdivision of a county. Inasmuch then as there are two conflicting provisions, perhaps the latter provision ought to govern ; however this may be, a construction should not be placed upon the act which would tend to disqualify a large number of candidates in view of these con- flicting provisions, and therefore I should say that a candidate would, if he complied with either provision, be entitled to have his name placed upon the ballot although it might be the safer thing for any candidate to circulate a nomination paper inasmuch as he is to be properly considered an elective county officer. Yours very truly, George Cosson, Attorney General. 152 attorney general's opinions Taxation — Lodge Peopbrtt — ^When Exempt. May 10, 1912. Me. J. C. Stoup, In wood, Iowa. Deab Sie: Yours of the 9tli instant addressed to the attorney- general has been referred to me for reply. Your first question briefly stated is whether or not shares of building and loan stock owned by I. 0. 0. F. lodge is exempt from taxation. Code suplement section 1304, paragraph 2, provides that the following classes of property are not to be taxed: "Grounds and buildings belonging to benevolent institutions and societies devoted solely to the appropriate object of these institutions; « * # * moneys and credits belong exclusively to such institutions and devoted solely to sustaining them, but not exceeding in amount or income the amount prescribed by their charters or articles of in- corporation. ' ' Assuming that your lodge is a benevolent institution, the shares of stock would come within the definition of moneys and credits and should not be assessed. Your second question is : "Is building and loan stock taxable ? ' ' This question should be answered in the affirmative. See code section 1326. Your third question is: "What is the penalty, if any, for run- ning an auto on last year's license?" This penalty is provided by section 22 of chapter 72 of the acts of the thirty-fourth general assembly which reads as follows: "The violation of any of the provisions of sections from three to fifteen both inclusive of this act shall constitute a misdemeanor punishable by a fine not exceeding fifty dollars." Yours truly, C. A. ROBBINS, Attorney General of Iowa. ATTORNEY GENERAL'S OPINIONS 153 Residence — Legal — How Acquired and Lost. May 10, 1912. Mr. F. T. Hansen, Forest City, Iowa. Dear Sir: I am in receipt of your eommunieation of the Gtli inst. advising that you are a candidate for the office of superin- tendent of schools of Winnebago county ; that Winnebago county has always been your home ; that you were, however, temporarily absent for some months while you were superintendent of schools of Emmet county ; that you are again living in Winnebago county, and that you have not at any time abandoned or intended to aban- don Winnebago county as your legal residence. You request an opinion in view of these facts as to whether you can properly con- sider Winnebago county your legal residence. If Winnebago county was your home and you have never in fact or intentionally obtained a new legal residence nor abandoned your residence in Winnebago county, the mere fact that you were away from there for some months, or even a year, would not result in depriving you of your legal residence in Winnebago county. Where one has a legal residence and does not actually intend to or in fact acquire a new residence by voting and exercising the rights of citizenship elsewhere, he may retain his old residence. This is constantly being done by men holding political office and who are living at the county seat or state capital and voting at their old homes although they may have their families with them. Yours very truly, George Cosson, Attorney General. Primary Elections — Time of Filing Papers — How Computed. May 10, 1912. Mr. E. J. RiEGEL, County Auditor Lyon County, Rock Rapids, Iowa. Dear Sir: I am in receipt of your communication of the 4th inst. advising that a candidate for county office presented affidavit and nomination papers for filing in your office at 4 :30 P. M. Satur- day. You request to be advised as to whether you can properly 154 ATTORNEY GENERAL'S OPINIONS file the paper or, in other words, whether there was thirty days before the time of filing and the holding of the primary on June 3d. The law does not recognize parts of days in the absence of some specific requirement. Paragraph 23, section 48 of the code, which gives direction for construing our statute provides that: ' ' In computing time, the first day shall be excluded and the last day included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday." That being true a filing on Saturday was a filing thirty days before the primary and, as before stated, the particular hour is of no consequence. When the statute provides "clear" days or so many days between, then the day of filing and the day in question must be excluded but otherwise the first day is excluded and the last day inncluded in counting the time. Yours very truly, Gboege CossoNj Attorney General. Peimart Elections — ^Alphabetical Lists — Arrangement op. May 10, 1912. Mr. Ross McLaughlin^ Missouri Valley, Iowa. Dear Sir: Your letter of the 4th instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is whether or not, in placing the names upon the ballot in alphabetical order as required by the statute, the name of McLaughlin should precede or follow the name of Murray. There seems to be no uniform practice vnth reference to the matter. For instance: The Iowa Telephone Company in the preparation of their directory in this city have placed all names commencing with Me before any of the other names commencing with the letter M, while dockets in the office of the clerk of the supreme court and the auditor of state have all names commencing with Mc following all the other names commencing with the letter M; whereas, in the office of the secretary of state the names com- mencing with Mc immediately follow names commencing with the letters Ma and precede the names commencing with the letters Mad. ATTORNEY GENERAL'S OPINIONS 155 It would seem that different blankbook manufacturers have had different ideas with reference to which should take precedence, and hence the lack of uniformity. I am inclined to the view, however, that a strict compliance with the law would require that a name commencing with Mc should immediately follow names eommenciag with the letters Ma, and that in reality Mc is the equivalent of Mac, and that, whether it is such equivalent or not, in any event the name of McLaughlin should precede the name of Murray. Yours truly, C. A. ROBBINS, Assistant Attorney General. Paving — Assessing Cost to Railway. — A railway is chargeable with its share of cost of paving adjacent to property. May 20, 1912. A. H. BiERKAMPj Cashier, Durant Savings Bank, Durant, Iowa. Dear Sir: Tours of the 17th instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is, whether or not a city or town may properly assess one-half the expense of paving a street to a railway company where the company owns one-half of the street. The property owned by the railway company is properly charge- able with its share of the cost, — not necessarily an equal division, but according to actual benefits received by the property. See M. & St. L. By. Go. vs. Lindquist, 119 Iowa, at 146. This rule, how- ever, seems to apply only where the fee title of the adjacent prop- erty is in the railway company. See page 148 of the same opinion. It was held by a divided court in the case of C, B. I. <& P. By. Co. vs. City of Ottumwa, 112 Iowa, 300, that where the title was not owned by the railway company, but it simply had a right of way or easement over the land, that such right of way or easement was not liable to such special assessment. Yours truly, C. A. ROBBINS, Assistant Attorney General, 15 6 ATTORNEY GENERAL'S OPINIONS Primary — Publication of Proclamation. — The law only requires that notice be published in one newspaper. May 21, 1912. E. S. MoRCOMBB, Publisher, Storm Lake, Iowa. Dear Sir : Yours of the 20th instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is, whether or not the primary elec- tion proclamation must be published in two newspapers. The answer to this question calls for the construction of code supplement section 1087-al2, which provides: "Such auditor shall forthwith publish a proclamation of the time of holding the primary election. * * * Such notice shall be published once each week for two consecutive weeks before the primary election, in not to exceed two newspapers of general circulation in the county. One of such newspapers shall represent the political party which cast the largest vote in such county at the last preceding general election, and the other, if any, shall represent the political party which cast the next largest vote in such county at such general election." In my opinion this language makes it mandatory that the notice be published in one newspaper representing the dominant political party, and that, while it is perfectly proper to publish said notice in the second newspaper representing the next largest party, as shown by the vote, yet the publication in the second newspaper is at the option of the auditor rather than being a mandatory require- ment. Yours truly, C. A. ROBBINS, Assistant Attorney General. County Officers — Change of Salary During Term of Office. — Supervisors have no authority to raise or lower salary during an officer's term. May 22, 1912. 0. W. Witham, Coiunty Attorney, Greenfield, Iowa. Dear Sir : Your two letters of the 15th instant addressed to the attorney general have been referred to me for reply. ATTORNEY QENERAL'S OPINIONS 157 In one letter you propound the question as to whether or not it is within the power of the board of supervisors of the county to raise, lower or change the salary of a county officer during his term of office, and you call attention to the Whitaker case reported in 81 Iowa, 527. The doctrine of this case is still the law, and hence, it follows that this question must be answered in the negative. Yours truly, C. A. Bobbins, Assistant Attorney General. Primaet — ^Withdrawal of Candidate. — A person filing an affi- davit as a candidate should not be permitted to withdraw same. May 22, 1912. C. K. Nelson, County A^tditor, Forest City, Iowa. Deae Sir : Yours of the 20th instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is, whether or not a person filing an affidavit for an office to be voted for by the voters of a subdivision of a county, and where no other nomination papers are required may thereafter file a withdrawal which would have the effect of cancelling said affidavit and of relieving the officer from printing the name on the ballot, and if so, whether or not the same party at a still later date may cancel such withdrawal and thereby restore the affidavit so as to require the printing of his name upon the ballot. Code supplement section 1087-alO, providing for nomination papers, provides : "A nomination paper, when filed, shall not he withdrawn nor added to, nor any signature thereon revoked." The same section further provides : "Each and every candidate shall make and file his affidavit stating that he is eligible to the office and that he will be a bona fide candidate for nomination for said office, and shall file such affidavit with the said nomination paper or papers when such paper or papers are required." 158 ATTORNEY GENERAL'S OPINIONS While the affidavit is in one sense distinguishable from nomina- tion papers, yet where the office is one to be filled by the voters of a subdivision of a county, such affidavit takes the place of, and in fact, becomes the nomination paper and the same reasons why a nomination paper should not be withdrawn would apply equally to the affidavit. While the question is not entirely free from doubt, there are some reasons why the party ought to be permitted to restore his name after having attempted to cancel the affidavit, in view of the fact that the same had not been acted upon and no action was re- quired until the time arrived for printing the ballot, and in view of the whole situation, the doubt should be resolved in favor of the candidate's right to have his name printed upon the ballot, leav- ing to other parties adversely interested their right to contest. Yours truly, C. A. ROBBINS, Assistant Attorney General. Candidates foe Office — Giving Away Souvenirs. — It is illegal for candidates for office to give away lead pencils containing matter advertising their candidacy. May 27, 1912. Blanchard Bros., Davenport, Iowa. Gentlemen : Your letter of May 18th, together with yours of the 11th ult., addressed to the attorney general, has been referred to me for reply. I note the opinion of former Attorney General Byers, copy of which you enclose. Your question briefly stated is, whether or not a candidate for office may lawfully make use of advertising pencils such as the sample enclosed which has printed upon it the following: "Vote for Henry Eshbaugh, Democratic Candidate for Sheriff, Montgomery County, Ohio. I will appreciate your Support. ' ' The pencil also bears a likeness of someone, presumably the can- didate named. ATTORNEY GENERAL'S OPINIONS 159 Our statute, code section 4914, provides: "Any person offering or giving a bribe to any elector for the purpose of influencing his vote at any election authorized by law, or any elector entitled to vote at such election re- ceiving such bribe, shall be fined not exceeding five hundred dollars, or imprisoned in the county jail not exceeding one year, or both." Code supplement section 1087-a33 provides : "Any person offering or giving a bribe, either in money or other consideration, to any elector for the purpose of influenc- ing his vote at a primary election, or any elector entitled to vote at such primary election, receiving and accepting such bribe shall be deemed guilty of a disdemeanor, and upon con- viction, shall be fined not less than one hundred dollars, nor more than five hundred dollars, or be imprisoned in the county jail not less than thirty days nor more than six months." "The word 'bribe' signifies anything of value or advantage given or accepted with a corrupt intent to influence unlaw- fully the person to whom it is given in his action, vote or opinion. ' ' Vol. 1, Words and Phrases, page 867, under the heading ' ' Bribe. ' ' While the value of a pencil is insignificant in amount, and this fact doubtless led former Attorney General Byers to give the opinion which he did, yet the pencil has some value, and as you say in your letter of the 11th ult., "They take the place of an an- nouncement card and give the candidate a hundred times more advertising value. " If a candidate might lawfully give away one such pencil for the purpose of influencing the voter, he might also by the same rule give away a box of such pencils, and in view of the foregoing statutory provision, I am unable to concur with the holding of former Attorney General Byers, and am inclined to the view that the use of such pencils for the purpose of influencing voters would be illegal. Tours truly, G. A. Bobbins, Assistamt Attorney General. 160 attorney geisteral's opinions Judges of Election — Appointment by Board of Supervisors — Authority op Auditor. — ^An auditor cannot make change in judges selected by board but would have power to fill vacancy when board is not in session. Mr. Henry Powell, May 28, 1912. 105 South Whitney St., Carroll, Iowa. Dear Sir: Yours of yesterday addressed to the attorney gen- eral has been referred to me for .reply. Your inquiry is as to whether or not the county auditor is author- ized by law to change the judges of election appointed by the board of supervisors. Code section 1093 provides: "The county board of supervisors may designate which of them shall serve as judges. The membership of such election board shall be made up or completed by the board of super- visors from parties which cast the largest and next largest number of votes in said precinct at the last general election." The section further provides: ' ' In case of vacancies happening therein the county auditor may make the appointment to fill same when the board of supervisors is not in session." Hence it follows that the auditor would not have power to make a change in the selection of judges made by the board but he would have power to fill a vacancy when the board is not in ses- sion, and this may be what has occurred. Yours truly, C. A. Bobbins, Assistant Attorney General. Primary Elections — Supervisors. — ^Ballot should designate long and short term candidates. Mr. E. W. Cubbage, May 31, 1912. Ida Grove, Iowa. Dear Sir : Yours of the 29th instant addressed to the attorney general has been referred to me for reply. Your first question is, whether or not it is necessary for a can- didate for supervisor to designate upon his nomination papers ATTORNEY GENERAL'S OPINIONS 161 which of the terms he is a candidate for when there are two terms to be filled, — one expiring in 1913 and the other in 1914. This question should be answered in the affirmative. Your next question is: "Is it necessary in making up the pri- mary ballot that it be designated on said ballot the office each can- didate is running for by inserting the year in which the term expires. ' ' This question should also be answered in the affirmative. That is to say, I believe the uniform custom is to distinguish between these offices by printing upon the ballot a statement in parenthesis : "For the term commencing on , " inserting such date rather than designating it by the expiration of the term. Yours truly, C. A. Bobbins, Assistant Attorney General. Primary Elections — Township Committeemen. — Names of may be printed on primary ballot. May 31, 1912. T. W. Napier, Auditor, Mt. Ayr, Iowa. Dear Sir: Yours of the 13th instant addressed to the attorney general has been referred to me for reply. Your question is, whether the names of candidates for township committeemen should be printed on the primary ballot or must they be written or pasted in with uniform white pasters. By examination of code supplement section 1087-al4, prescribing the form of the ballot, you will find under the heading for party committeemen the names of John Doe and Richard Roe printed thereon, also a blank line to give the voter an opportunity to write or paste in the name of anyone whom he may desire for party com-, mitteeman in case he does not desire to vote for either John Doe or Richard Roe. From this it would appear to be perfectly proper to print in the names of candidates for party committeemen, but the blank line should also be left as indicated on the form of ballot prescribed. Yours truly, C. A. Robbins, Assistant Attorney General. 11 162 ATTORNEY GENERAL'S OPINIONS Primary Election — Advertising at Polls. — It is not illegal to place advertising matter within one hundred feet of primary election polls. June 5, 1912. Me. Charles N. Dahlberg, Storm Lake, Iowa. Dear Sir: Your of the 4th instant addressed to the attorney general has been referred to me for reply. You call attention to the fact that at the primary election recent- ly held bills, posters and other advertising matter in the interest of various candidates were displayed in the polling places along side the cards of instruction to voters, and inquire whether or not there is anything illegal in connection with such practice. You say, "It seems to me like electioneering indirectly." While the practice is one which perhaps should not be coun- tenanced or approved, yet I find no statute which directly pro- hibits the same. The statute which you doubtless have in mind which prevents electioneering within any polling place or within one hundred feet thereof is code supplement section 1134, and applies to the general election only, and not to the primary elec- tion. Yours very truly, C. A. Bobbins, Assistant Attorney General. Primary Elections. — County conventions not confined in nomina- tions to persons voted for at the primary. June 10, 1912. Simon Fisher^ County Attorney, Rock Rapids, Iowa. Dear Sir: Yours of the 8th inst. addressed to the attorney general has been referred to me for reply. Your question has reference to the power of the county con- vntion to nominate county officers where the primary has failed to result such nomination. In my judgment the county convention may make such nomina- tions where votes were cast for the ofSce at the primary whether the name of the candidates were printed upon the ballot or not, and that in such cases the county convention is not limited to ATTORNEY GENERAL'S OPINIONS 163 persons receiving votes in the primary but may nominate a per- son who received votes at the primary or a person who did not receive votes at the primary for such office. Yours truly, C. A. Bobbins, Assistant Attorney General. Residence — Legal. — One's legal residence is his permanent resi- dence even though he may be temporarily absent. June 10, 1912. Me. G. M. Miller, Lock Box 13, Hazleton, Iowa. Dbae Sie: Yours of the 4th inst. addressed to the attorney general has been referred to me for reply. Tour question briefly stated is, whether or not a former resident or citizen of Buchanan County, who is and has been in the em- ploy of the state weighing coal for seven or eight years, and has bought a home and moved his family to Polk County, where his place of employment is located, should vote in Polk or in Buchanan County. It very frequently occurs that a person may have a domicile in one county to which he intends at some future time to return even though he has had for several years his residence in another county, and the question depends so largely upon the intention of the particular person that it is hard to lay down any definite rule. For instance. Governor Carroll has lived in Des Moines for a number of years and owns his home on Ninth street in which he Uves, and yet he returns every year to Bloomfield in Davis county to vote because he claims that as his home and it is his intention to return there when his official duties are completed. The Attor- ney General also owns his home in Des Moines and while he has lived here several years always returns to Audubon county to vote because he claims that as his domicile. So that in the case about which you inquire if the party still has an intention of returning to Buchanan county when his employment with the state is ter- minated he would doubtless have a right to vote in that county. On the other hand if he has no intention to return to Buchanan l64 ATTORNEY GENERAL'S OPINIONS county but intends to remain in Polk county even after his employ- ment with the state is terminated then the proper place for him to vote would be in Polk county rather than Buchanan county. Yours truly, C. A. ROBBINS, Assistant Attorney General. Fees. — Amount sheriif may charge for summoning grand or petit jury. June 18, 1912. C. J. Cash, County Attorney, Anamosa, Iowa. Dear Sir: Yours of the 5th instant addressed to the attorney general has been referred to me for reply. You call attention to the provisions of subdivision 5 of code supplement section 511 and then make the following statement: "Many of the sheriffs contend that the sixty cents for each person is to compensate them for all expenses in summoning jurors and as they are allowed no mileage for this particular item, they should be allowed to retain the sixty cents and not apply it on the salary. Other officers contend that no mileage or expenses were allowed on this item because it was assumed by the legislature that the sheriffs could summon these jurors in conection with other work and that the salary now takes the place of the sixty cents formerly paid." and request copy of any opinion that may have been rendered by this department on this question, and if none has been rendered, you ask for our view as to the proper construction of the section in view of the fact that the sheriff is now a salaried officer. So far as I have been able to find, no opinion has been given covering this question. The subdivision to which you refer pro- vides : "Each sheriff is entitled to charge and receive the follow- ing fees: "For summoning a grand or trial jury for each person served, sixty cents, to he paid out of the county treasury; and such sum shall be in full compensation for suck service." ATTORNEY GENERAL'S OPINIONS 165 Code supplement section 508 now provides: "Quarterly itemized reports under oath * * * shall be made to the board of supervisors by the sheriff, of all fees and mileage charged or taxed, and all that are collected by him and his deputies, including all sums for which the county is liable, except for dieting and lodging prisoners; and at the time of making such quarterly reports he shall make full settlement with said board, filing therewith the receipts of the county treasurer for all moneys paid over to him." Code supplement section 510-a provides: "In all counties, the expenses necessarily incurred and actually paid while engaged in the performance of official duties in serving criminal process or commitments to the peni- tentiaries, industrial schools or asylums, shall be allowed by the board of supervisors, and paid as other claims against the county and he shall be allowed to retain all mileage col- lected by him in the service of civil process." In the case of Byhee vs. Marion County, 128 Iowa, 610, our su- preme court considered a similar question which they stated as fol- lows : "The question presented in this case is whether the board is required to allow the sheriff as expenses the amounts neces- sarily paid out by him for railroad fare, livery hire and hotel bills, while traveling for the purpose of serving criminal proc- ess." and in passing upon it they made use of the following language : "It is conceded for the sheriff that the mileage in the serv- ice of civil process covers his expenses incurred in connection with such services, but it is claimed that as no mileage is al- lowed him in the service of criminal process, the expenses in- cident to such service are to be allowed the sheriff as reason- able expenses of his office. It is difficult to interpret code supplement 1902, sections 510-a, 510-b, as applied to the pre- vious provisions found in code section 511, but we think the effect of the subsequent statute was to appropriate to the bene- fit of the county, all the fees provided for in code, section 511, except the mileage for service of process in civil eases, and to allow the sheriff a salary in lieu of such compensation, which salary is made to depend to some extent on the amount of 166 ATTORNEY GENERAL'S OPINIONS fees received by him. As no provision is made for reimbursing him for his traveling expenses in the service of criminal proc- ess, it must have been intended by the legislature that such expenses shall be allowed as 'expenses necessarily incurred and actually paid while engaged in the performance of official duties in the service of criminal process,' etc., as provided in code supplement 1902, section 510-a. ' ' It seems to us that it could not have been the intention of the legislature that, in iaxing his compensation, the mileage for the service of criminal process should be appropriated by the county as a part of the receipts of the office, while the trav- eling expenses in making such service should be borne by the officer. ' ' In view of this opinion I am inclined to the belief that if the question were ever presented to our supreme court it would either hold that the sheriff would be entitled to this sixty cents provided for in subdivision 5, or that the sheriff should be entitled to charge his "expenses necessarily incurred and actually paid" while en- gaged in summoning such jurors, and in view of the provisions of code section 508 already o.uoted herein, I am inclined to think that the court would not hold that the officer would be entitled to retain the sixty cents, for it requires him to account for all fees and mileage charged or taxed, including ail sums for which the county is liable. Hence, the only conclusion left would be that the sheriff would be required to account for the sixty cents, but would be entitled to have allowed him his expenses necessarily incurred and actually paid while summoning such jurors. Yours very truly, C. A. Bobbins, Assistant Attorney General. Eepresentative — ^Nomination op — How Made. June 19, 1912. J. J. Rainbow, Auditor, Waterloo, Iowa. Dear Sir : Yours of the 18th instant addressed to the attorney general has been referred to me for reply. You say that for representative you have three candidates and were entitled to nominate two, and that one received 1,460 votes, ATTORNEY GENERAL'S OPINIONS 167 one 1,950 votes and one 1,436 votes, and state that you would like to know who are nominated. If there were no other votes cast for the office of representa- tive other than for the three whose votes you have given, then the one receiving 1,460 and the one receiving 1,950 votes should be declared the nominees. The rule is, to divide the whole number of votes cast for the ofSce by the number of officers to be nominated for that office, and take this result as the 100%, the 35% of which a person must have before he could be nominated, and in this case you should take the 1.950 votes, the 1,460 votes and- the 1,436 votes and all other votes cast for that office, add the same together and divide the total by two, and if each of the two highest, that is, the one having the 1,460 votes and the one having the 1,950 votes, have 35% of the quotient, then such parties should be declared the nominees. I will say, however, that as this is a state office it lies with the state canvassing board rather than with the county board of canvassers to determine who is nominated. See code supplement sections 1087-al9 and 1087-a20. Yours very truly. C. A. Bobbins, Assistant Attorney General. Union Soldieks. — Burial of. June 26, 1912. Mb. Chas. E. Sgholz, County Attorney, Gruttenberg, Iowa. Deae Sir: Yours of the 22d inst. addressed to the attorney general has been referred to me for reply. You call attention to code section 430 as amended by chapter 25 of the acts of the thirty-fourth general assembly, and say, "A portion of this cemetery has been set apart for burial of Union soldiers. There have been more than fifty inter- ments in the cemetery but not in this portion set apart. Now the question is whether the fifty interments refer to the inter- ments in the whole cemetery or to the portion set apart for said Union soldiers." 168 ATTORNEY GENERAL'S OPINIONS The portion added to the section by the last general assembly- provides : "Or for the erection of a monument in any cemetery in the county, a portion of which (cemetery) has been set apart for the burial of Union soldiers, sailors and marines, in which (cemetery) there have been not less than fifty interments." It is not clear whether the second word "which," quoted above, refers to the cemetery or to the portion set apart, but I think the more natural and usual construction of this language requires that the second word "which" be construed to have reference to the cemetery as a whole rather than to the portion set apart for the burial of Union soldiers. There would be no greater reason for authorizing the erection of a soldiers' monument in a cemetery having fifty soldiers buried in the portion thereof set apart for the burial of soldiers than there would be for the erection of a like monument in another cemetery having a like portion set apart for the burial of soldiers and fifty soldiers buried in the cemetery but a less number in the portion so set apart.- Yours truly, C. A. Bobbins, Assistant Attorney General. Forest Reservation — Taxation op. — Land planted to trees can only be taxed one dollar per acre without reference to the real value. June 26, 1912. Mr. E. C. Farren. Kansas City, Mo. Dear Sir: Yours of the 21st inst. addressed to the attorney general has been referred to me for reply. You ask to be advised as to whether or not a premium is oifered by the state of Iowa to the planter of trees, or a remission of taxes on acreage so planted, or anything of that sort. Forest reserves from two acres up, containing 200 growing trees on each acre are by law required to be assessed at the taxable value of $1.00 per acre without reference to the real value. Fruit tree reservations from one to five acres in extent, containing at least 70 fruit trees on each acre are required to be assessed at $1.00 per acre without reference to the real value. "Where other fruit, forest or ornamental trees are planted, the assessed value of the ATTORNEY GENERAL'S OPINIONS 169 land upon which they are planted is not to be increased on account thereof. (See code supplement sections 1400-c to 1400-1 inclusive.) Yours truly, C. A. EOBBINS, Assistant Attorney General. Primary Elections. — A candidate nominated on more than one ticket must designate party ticket on which his name is to appear. July 6, 1912. Mr. Samuel U. Boswoeth, Mt. Pleasant. Iowa. Dear Sie: Yours of the 30th ult. duly received, and will say that in my judgment the legality of the election of the delegates should not be affected by the fact that they had voted the ticket of, or were members of another political party. By the last sentence of code supplement section 1087-a6 it is provided in case the person is nominated upon more than one ticket he shall forthwith file with the proper officer a written declaration indicating the party under which his name is to be printed on the official ballot. And I think the same rule should apply to delegates where they are elected by more than one po- litical party. With reference to the question where only one delegate was elected who voted the prohibition ticket, this department has held that where there is a failure to elect delegates that the old dele- gates hold over, and hence the old prohibition delegates, together with the one elected, should have met and held their county con- vention. I am inclined to think, however, that the county conven- tion could not be lawfully convened at this time but that under the following provisions found in code supplement section 1087-a24, "Vacancies in nominations in such offices occurring after the holding of county, district or state convention, or on failure of any such convention to fill the vacancy in a nomina- tion as aforesaid, then it shall be filled by the party committee for the county, district or state as the case may be." it would be the right and duty of your committee to fill the vacan- cies in these offices. Your last question is whether or not the county committee may- elect delegates to the state convention. In my judgment this ques- 170 ATTORNEY GENERAL'S OPINIONS tion should be answered in tlie negative, and that in all prob- ability the failure to hold a county convention would result in that county being unrepresented in the state convention. I will return your letter as reo.uested. Yours truly, C. A. ROBBINS, Assistant Attorney General. County Warrants — Order of. Payment. — ^Where a warrant is stamped "unpaid for want of funds" and thereafter partially paid and new warrant issued for balance, the new warrant should take precedence in time of payment over warrants issued after the original warrant. July 9, 1912. Cement Products Co., Estherville, Iowa. Gentlemen: Yours of the 29th ult. addressed to the attorney general has been referred to me for reply. You call attention to the different methods that have been fol- lowed by the various county treasurers with reference to the pay- ment of county warrants and your question briefly stated is, whether or not a county warrant has been presented for payment and stamped "unpaid for want of funds" and thereafter a partial payment of the warrant made and a new warrant issued for the unpaid balance such new warrant should be paid prior to the pay- ment of the warrants issued subsequently to the presentation of the first warrant. Code supplement section 483 provides: "When a warrant drawn by the auditor on the treasurer is presented for payment, and not paid for want of money, the treasurer shall indorse thereon a note of that fact and the date of presentation, and sign it, and thenceforth it shall draw interest at the rate of five per cent. He shall keep a record of the number and amount of the warrants presented and in- dorsed for non-payment, which shall he paid in the order of such presentation." Code section 485 provides: "When a person wishing to make a payment into the treas- ury presents a warrant of an amount greater than such pay- AtT6RNEY GENERAL'S OPINIONS 171 ment, or presents for payment a warrant in excess of the funds in the treasury, the treasurer shall cancel the same and give the holder a certificate of the overplus, upon the pres- entation of which to the county auditor he shall file it, and issue a new warrant of that amount, and charge the treasurer therewith ; and such certificate is transferable by delivery, and wiU entitle the holder to the new warrant, payable to his order, and containing reference to the original warrant." There is no doubt but that the first section quoted entitled the warrant to be paid in the order of its presentation and, in my judgment, the new warrant should be paid in the same order as the old, otherwise there would be no necessity or purpose in having the new warrant contain a "reference to the original notice" as provided in the last section quoted. I am returning herewith the correspondence as requested. Yours truly, C. A. ROBBINS, Assistant Attorney General. Schools — Funds. — Should be separately kept. July 9, 1912. Honorable Joseph Mattes, Odebolt, Iowa. Dear Sir : Yours of the 6th instant duly received. Your question briefly stated is whether or not interest on out- standing school house bonds may lawfully be paid from the con- tingent fund. This question has heretofore been passed upon by this depart- ment, and I quote you from an opinion rendered the superintendent of public instruction on January 2d of this year : "Your first question is: 'From what fund should the in- terest on the bonded indebtedness be paid? Is it legal to pay any part or all of this interest from the contingent fund?' "Code supplement section 2768 provides: " 'The money collected by tax for the erection of school houses and the payment of debts contracted therefor shall be called the school house fund; that collected for the payment of school buildings bonds shall be called the school hidlding lond 172 ATTORNEY GENERAL'S OPINIONS fund; that for rent, fuel, repairs and other contingent expenses necessary for keeping the school in operation, the contingent fund; and that received for the payment of teachers, the teachers' fund;' "Code supplement section 2813 provides: " 'The board of each school corporation shall, at the same time and in the same manner as provided with reference to other taxes, fix the amount of tax necessary to be levied to pay any amount of principal or interest due or to become due during the next year in the lawful bonded indebtedness which amount shall be certified to the board of supervisors as other taxes, and levied by them on the property therein as other school taxes are levied, but such tax shall not exceed five mills upon the dollar of the assessed valuation of such property for money borrowed for improvements.' "Code supplement section 2783 provides: " 'It may provide and pay out of the contingent fund to insure school property such sum as may be necessary, and may purchase dictionaries, library books, including books for the purpose of teaching vocal music, maps, charts and apparatus for the use of the schools thereof to ah amount not exceeding twenty-five dollars in any one year for each school room under its charge ; ' "From an examination of these sections, I am of the opinion that the interest on the bonded indebtedness should be paid from the school building bond fund, and that no part of the same could legally be paid from the contingent fund." In addition to the foregoing I call your attention to the decision of" our supreme court in the case of Wolfe vs. School District, 51 Iowa, 432, wherein it is held that a warrant drawn upon the treas- urer of a school district for the payment of lightning rods out of the contingent fund was on its face invalid, an expense for that purpose not being indispensable to the operation of the school. In the course of the opinion in that case the supreme court con- strues the word "necessary," found in code supplement section 2768, to mean "indispensably requisite," and that a lightning rod was not an "indispensable requisite" for keeping the school in operation. In other words, the sections heretofore quoted clearly specify that the money collected for the payment of school building bonds ATTORNEY GENERAL'S OPINIONS 173 shall be called the school building bond fund and that the only things that can be paid from the contingent fund are "rent, fuel, repairs and other contingent expenses necessary for keeping the school house in operation." Section 2783 enumerates other matters which may be paid for out of the contingent fund but there is no provision for the pay- ment of interest from the contingent fund. Interest on the school building bonds is in no sense a contingent expense but is a fixed charge the same as the bonds themselves. While there is no statute making the school officials guilty of embezzlement for a diversion of these funds as is provided by section 904 of the code where a city councilman or other officer of a city participates in, advises, consents to, permits or allows funds to be diverted yet, in my judgment, the law clearly contemplates that these funds should be kept separate and distinct. Yours truly, C. A. Bobbins, Assistant Attorney General. Poll Tax — Amount Collectible. — Total poll tax might exceed three dollars but not to exceed six dollars and fifty cents. July 12, 1912. Me. F. F. Haight, Peterson, Iowa. Dear Sir: Yours of the 10th inst. addressed to the attorney general has been referred to me for reply. Your question is, can more than $3.00 be collected for poll tax? This question should be answered in the affirmative. By subdivision 2 of code supplement section 1303, a poll tax of 50e on each male resident over twenty-one years of age is provided for. By code supplement section 1550, it is further provided that the road supervisors shall require all able bodied male residents of their district between the ages of twenty-one and forty-five to per- form two days' labor on the roads between the 1st day of April and October of each year. By code section 1552 each person liable to perform labor on the roads as poll tax and who fails to attend is liable to forfeit and pay the sum of $3.00 for each day's delinquency. 174 ATTORNEY GENERAL'S OPINIONS And by code sections 1554 and 1555 this delinquency is required to be reported and collected as other taxes. Hence, the total poll tax might exceed $3.00 but could not exceed $6.50. Your tax receipt is herewith returned as requested. Yours truly, C. A. ROBBINS, Assistant Attorney General. Primary Elections — Number of Votes Required to Nominate. July 23, 1912. Mr. M. F. Wiltse, 411 Bast Linn St., Marshalltown, Iowa. Dear Sir : I take the liberty of replying to your communica- tion of the 19th inst. addressed to Attorney General Cosson be- cause of his absence from the city. You inquire regarding a ruling made by this department inter- preting the provisions of the primary law for writing names of candidates for office on the ballot where no nomination papers have been filed for such office. I do not know what particular opinion you refer to but believe that you can get all the information you desire on this subject in chapter 59 of the acts of the thirty-fourth general assembly which specifies the per cent of votes a person must have in order to be nominated for an office where his name is not printed upon the ballot. You also ask the following question: "Where there is only one man on the ballot, how many votes does it require for nomination?" If a candidate's name is printed upon the regular ballot and he receives but one vote, and no vote is cast for any other candi- date for that office the regular candidate would be nominated. Yours very truly, John Fletcher, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 175 Insurance — Life Insurance — Taxation op Stock. — Stock should be assessed to the owner, the basis to be its value on the first day of January of each year. Carroll Bros., Attorneys, August 1, 1912. 301-304 Lane Bldg., Davenport, Iowa. Gentlemen: Yours of the 31st ult. addressed to the attorney general has been referred to me for reply. You call attention to chapter 63 of the acts of the thirty-fourth general assembly and state, "It was the understanding of the officers of our company at the time this law was passed that the tax of five mills on the dollar applied to life insurance companies on stock basis. The company we represent is a stock company with a capital of $100,000, writing life, health and accident business, and the question of taxation of the stock of said company is now up for consideration by the assessor of the city of Davenport and it is our idea that the stock of this company should be assessed on the five mill basis as provided in said chapter 63." You ask to be advised as to this matter. It will be observed that the chapter to which you refer does not undertake to define "moneyed capital" except as the meaning of that term is defined by section 5219 of the statutes of the United States. Nor does the chapter undertake to define moneys and credits. Nor is the term "moneys and credits" defined by section 1310 of the code which is amended by section 1 of chapter 63. It has been held that shares of stock in railroad companies and insurance companies and the like are in a fair sense moneyed capital but they are not such within the purview of section 5219. First National Bank vs. Waters, 7 Fed., 152, at 156 ; Mechanics National Bank vs. Baker, 46 Atl., 586; Redemption Bank vs. Boston, 125 U. S., 60. Hence, it follows that stock in insurance companies is not mon- eyed capital and should not be assessed on the 20% basis provided for bank stock and moneyed capital by section 5 of chapter 3. Our own supreme court in a recent case reversed its former hold- ing in the same case and held that corporation stock was not moneys and credits. See Morrill vs. Bentley, 130 N. W. Rep., 734. 176 ATTORNEY GENERAL'S OPINIONS This being true it follows that such shares of stock should not be assessed on the five mill basis provided for by section 1 of chap- ter 63 as the basis of taxation for moneys and credits. In my judgment shares of stock in insurance companies should be assessed under code section 1323 to the owner of the stock, the assessment to be on the value of such shares on the first day of January in each year as provided therein. See Layman vs. Iowa Telephone Co., 128 Iowa, 591. Hence, the shares of stock in such concerns should be taxed at 25% of its real value. Yours truly, C. A. Bobbins, Assistant Attorney General. Taxation — Securities Taxable and Exempt from Taxation. August 6, 1912. Mr. S. R. Wrightington, 33 State St., Boston. Dear Sir : Yours of the 10th ult. addressed to the treasurer of state has been referred to this department for reply. Your first question is: "Am I right in understanding that under the laws of 1911, chapter 63, shares in national banks located in Iowa and in Iowa banks of discount as well as savings banks are all taxable to the holder, and that the bank does not in practice pay the tax for the holder?" The shares are all taxable to the holder as stated, but the bank as a matter of practice still in many cases pays the tax for the holder as it is obliged to do by the provisions of code section 1325, which provides as follows: "The corporations described in the preceding sections shall be liable for the payment of the taxes assessed to the stock- holders of such corporations, and such tax shall be payable by the corporation in the same manner and under the same penalties as in case of taxes due from an individual taxpayer, and may be collected in -the same manner as other taxes, or by action in the name of the county. Such corporations may recover from each stockholder his proportion of the taxes so ATTORNEY GENERAL'S OPINIONS 177 paid, and shall have a lien on his stock and unpaid dividends therefor. If the unpaid dividends are not sufficient to pay such tax, the corporation may enforce such lien on the stock by public sale of the same, to be made by the sheriff at the principal oifice of such corporation in this state, after giving the stockholders thirty days' notice of the amount of such tax and the time and place of sale, such notices to be by registered letter addressed to the stockholder at his 'postoffice address, as the same appears upon the books of the company, or is known by its secretary." Your second question is : "I understand that the shares in insurance corporations organized under the laws of Iowa are taxable to the holder, but that the corporation pays the tax for the holder. What is the practice regarding corporations organized outside of Iowa?" In such cases the shares of stock held by residents of Iowa are taxed to such residents, owners of same astheir other property and they are liable for the payment of the tax. In such cases I know of no way of requiring the corporation to pay the tax assessed and levied against the individual stockholders. But our supreme court has held that the shares of stock in a foreign corporation may be assessed to the resident owner of such stock here even though the property of the corporation has been fully assessed in the state where it is located. Judy vs. Beckwith, 114 N. W., 565. Your third question is: ' ' Am I right in understanding that shares in manufacturing and trading corporations whether organized under the laws of Iowa or elsewhere are exempt if the property of the cor- poration is located in the state, otherwise taxable? What happens if part of the property is in the state and part out- side?" Code section 1319 provides for the taxation of property in the hands of the manufacturer and that the average value thereof is to be ascertained upon the manufactured and unmanufactured goods and is to be estimated upon those materials only which enter into its combination or manufacture. Machinery used in manu- 12 178 ATTORNEY GENBRAXi'S OPINIONS facturing establishments shall for the purpose of taxation be re- garded as real estate. ' ' Corporations organized under the laws of this state for pecuniary profit and engaged in manufacturing as defined by this section and which have their capital represented by shares of stock shall through their principal accounting offlces list their real estate, personal property and moneys and credits in the same manner as is required of individuals. The owners of capital stock of manufacturing companies as herein provided for having listed their property as above directed, shall be exempt from assessment and taxation on such shares of capital stock." In reply to the last part of your question will say that in my judgment if the plant and property located in this state is partly listed and assessed by the corporation as required by this section that all shares of stock therein would be exempt even though the corporation might have a part of its property in some other state. Your fourth question is: "Are shares in public service corporations taxable to the holder and does it matter whether the corporation is doing business in the state or is incorporated under the laws of the state?" Such shares of stock are taxable to the holder and it is imma- terial where a corporation does business or whether it is incor- porated under the laws of this or some other state. Your fifth question is: "Are shares in unincorporated associations taxable to the holder? We have in Massachusetts many voluntary associa- tions organized under deeds of trust issuing shares of stock like those in corporations. How would you treat such stock in Iowa?" Such shares cannot under our laws be recognized but the entire property of the association would either be taxed to it the same as to a partnership or firm, or the interest of each shareholder might be assessed to him as an individual. Replying to the last portion of your letter will say that I would be glad to look over your statement when completed and give you my best judgment as to the correctness thereof in an unofficial way. Yours truly, C. A. EOBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 179 NoTABT Public — Acknowledgments on Sunday and Legal Holi- days. — It is legal to take acknowledgments on a holiday but illegal on Sunday. August 9, 1912. Mr. L. W. Dawes, IW Benton St., Boone, Iowa. Dear Sie: Yours of tlie Gth inst. addressed to the governor of the state has been referred to this department for reply. Tour first question is whether or not it is legal for a notary pub- Uc to take acknowledgments on Sundays and holidays. In my judgment it would be perfectly legal to take acknowledg- ments on any holiday but that it would be illegal to take the same on Sunday. Your second question is whether or not the notary lays himself liable to law by taking such acknowledgments. Code section 5040 provides: "If any person be found on the first day of the week, com- monly called Sunday * * * « engaged in any labor ex- cept that of necessity or charity he shall be fined not more than $5.00 nor less than $1.00 and be imprisoned in the county jail until the fine, with costs of prosecution, shall be paid." Hence, your second question should be answered in the afSrma- tive. Yours truly, 'C. A. ROBBINS, Assistant Attorney General. Taxation. — Personal property taxable for city purposes even though on agricultural land which is exempt. August 15, 1912. Mr. J. S. Smead, Epworth, Iowa. Dear Sir: Yours of the 12th inst. addressed to the attorney general has been referred to me for reply. Your question is, is the personal property of a resident agricul- turist within the corporate limits of a town subject to corporation tax. In my judgment this question should be answered in the affirma- tive. Where land exceeding ten acres in extent is within the cor- 18 ATTORNEY GENERAL'S OPINIONS porate limits of a town and is used exclusively for agricultural purposes it is exempt from certain municipal taxes, but I know of no law that makes the same exemption with reference to personal property that may be situated thereon. Yours truly, C. A. ROBBlNS, Assistant Attorney General. Board of Supervisors. — What proceedings of required to be pub- lished. W. S. BiLBY, Coiinty Attorney, September 3, 1912. Knoxville, Iowa. Dear Sir : Yours of the 23d ult. addressed to the attorney general has been referred to me for reply. Your question as stated by you is as follows: "The board of supervisors of Marion county directs me to submit to you for your opinion the question of whether or not the proceedings of a board of supervisors required under the provisions of 1330-e, and under section 1346-g, title VII, chapter 1, supplement, code, which relate to the assessment of telegraph and telephone companies and railroad and express companies, are of such nature as are required to be published as ofScial publications under section 441 of the supplement code." The last section to which you call attention provides : "And the two applicants thus showing the greatest number- of bona fide yearly subscribers living within the county shall be the county official papers, in which all the proceedings of the county board of supervisors * * * shall be published at the expense of the county during the ensuing year." The first section to which you refer provides: ' ' At the first meeting of the board of supervisors held after such statement is received by the county auditor it shall cause such statement to be entered in its minute book, and make and enter therein an order stating the length of the lines and the assessed value of the property of each of said companies situated in each city, town, township, or lesser taxing district in its county, as fixed by the executive council, which shall constitute the taxable value of said propex'ty for taxing pur- poses. ' ' ATTORNEY GENERAL'S OPINIONS 181 Our supreme court has said : "The proceedings of the board are its official acts, resolu- tions and orders upon the various matters which come be- fore it." Haislett vs. Howard Co., 58 Iowa, 378. The second section to which you refer makes a similar provision as to the order to be entered by the board. It would seem to me that both of these orders are clearly pro- ceedings of the board, within the meaning of the term as used in code supplement section 441, and hence, it would follow that they should be published in some form. However, I am inclined to think that it would not be necessary to publish the matter in full, and it may be that the same could be abstracted in such a way as to com- ply with the law and yet make the publication much less expensive to the county. I am enclosing you copy of an opinion heretofore rendered the county attorney of Madison county covering similar questions. In view of the following provision found in both code supple- ment sections 1330-c and 1346-g: "The county auditor shall im- mediately thereafter transmit a copy of said order to the councils of cities, or towns, and to the trustees of each township in the county," it would seem that there is no real necessity for the pub- lication of such matters, as all parties in interest are provided with a copy, and that these and other matters might well be excepted from the requirements of publication. But this must be done by the legislature and not by unwarranted construction of an exist- ing statute. Yours truly, C. A. ROBBINS, Assistant Attorney General. Public Oppicee — Salary op. — Ceases with his death. September 12, 1912. Hon. John L. Bleakly, Auditor, State House. Dear Sir: With reference to the question suggested by the correspondence which has taken place between A. M. Fellows, administrator of the estate of the late Judge L. E. Fellows, and your office, with reference to the right of his estate to recover 182 ATTORNEY GENERAL'S OPINIONS salary for that portion of the month of July following his death will say that under our statute salary of judges of the district court is a yearly salary and it is only for convenience that the salary is payable at stated intervals, and unless the salary were terminated immediately upon the death of the incumbent there would be no greater reason why he should not draw the salary for the re- mainder of the entire year as well as for the remainder of the cur- rent month. The appointment of a successor might have been made at once and the compensation of the successor would start imme- diately upon his qualifying, and if the estate of the deceased is entitled to draw salary for any period of time after his death the state would be liable for a double salary during that portion of the time after the appointment of the incumbent which it is claimed the deceased is also entitled to recover salary for. It seems to me that no one would contend that such a result might follow. It is well settled that vacancy in the office occurs upon the death of the incumbent. (23 Cyc, 517.) I am therefore of the opinion that the estate is only entitled to salary for that portion of the year during which Judge Fellows lived and performed the duties of the office. Yours truly, C. A. Bobbins, Assistant Attorney General. Schools — Taxes. — When to be levied. September 18, 1912. J. Foster, Secretry, New Sharon, Iowa. Dear Sir: Yours of the 16th inst. addressed to the attorney general has been referred to me for reply. Your question is: "Would a school of a school township be justified in levy- ing tax under section 2806 of the school law after the 3d Mon- day in August or would the secretary be compelled to certify it?" Both branches of this question should be answered in the nega- tive. This section provides: "No tax shall be estimated by the board after the third Mon- day in August in each year." ATTORNEY GENERAL'S OPINIONS 183 And our supreme court, in the case of Standard Coal Co. vs. Inde- pendent District of Angus, 73 Iowa, 304, held that a tax levied by the school district after the date fixed in a similar statute was void and its collection was properly restrained by injunction. Yours truly, C. A. ROBBINS, ' Assistant Attorney General. Mulct Tax. — Money received by city or town should be placed to the credit of the general fund. September 30, 1912. Me. M. F. Cox, ejo V. E. Vane, City Auditor, Cedar Rapids, Iowa. Deae Sir: Your letter of the 16th instant addressed to Mr. George Gallarno of the municipal accounting department of the state auditor's office has been referred to me for reply. You re- quest to be advised as to what fund should be credited with the money received from the county treasurer as the city's share of the mulct tax. The statutes are entirely silent upon this question and in the absence of a special statutory provision, money received from any source by a city or town should be placed in the general fund. There has never been but one attempt made by way of special enactment as to the disposition of the mulct tax. Chapter 25 of the thirtieth general assembly provided that any city or town under special charter, where the mulct law was in free, might appropriate not to exceed 2 per cent of the amount of mulct tax received by the municipality for the support and maintenance of a public library. Whether this provision is now in force is a question that I do not wish to pass on at this time. It is my opinion that with the exception above referred to, the money received by a city or town from the mulct tax should be placed in the general fund, and I do not think that after it has been placed in the general fund it can be transferred to any other fund. Yours very truly, John Fletcher, Assistant Attorney General. 184 ATTORNEY GENERAL'S OPINIONS Supervisors. — When elected at large and when by district. October 9, 1912. Geo. W. Spencer, Secretai-y-Treasurer. Roekell City, Iowa. Mt Dear Mr. Spencer : I have yours of the 8th inst. with ref- erence to the supervisor situation in your county, and, as suggested by you, I am somewhat familiar with it on account of former cor- respondence had with interested parties. By careful examination of the law you will observe that while code section 410 authorizes the people to vote upon the proposition to increase or reduce the number of supervisors there is no au- thority for the proposition to be submitted to them or voted upon by them that the supervisors should be eleced at large rather than by districts. By section 416 it is provided that "the board of supervisors may, at its regular meeting in January in any even-numbered year, divide its county by townships into a number of supervisor dis- tricts corresponding to the number of supervisors in such county; or at such regular meeting it may abolish such supervisor dis- tricts and provide for electing supervisors for the county at large." So that the question of whether supervisors are to be elected by districts or at large is lodged with the board of supervisors to de- termine and not with the people. In my judgment the resignation of one of the other members would simply create another vacacy and would not operate to effect a change from 5 to 3 supervisors earlier than would other- wise result and it is especially provided that where districts are created and any district has no member on the bop-rd that a mem- ber from that district shall be elected at the next ensuing election. (Section 418 of the code.) I am firmly convinced that the law should be amended so as to abolish supervisor districts and to provide for the election of all supervisors at large whether the number in any given county be 3, 5, or 7, and perhaps your people may be sufficiently interested to help the cause along at the coming session of the legislature. Yours truly, George Cosson, Attorney General. attorney general's opinions 185 Judges op Election — Qualification — Assessor — Duty op to Fur- nish List op Persons Subject to — Township Clerk — Com- pensation OP. October 9, 1912. N. D. Kellen, Township Clerk, LeMars, Iowa. Dear Sir : Yours of the 30th ult. addressed to the attorney gen- eral has been referred to me for reply. Your first question briefly stated, is whether or not judges of election are required to qualify when they have already qualified as township trustees. This question should be answered in the affirmative. Code sec- tion 1094 provides: "Before opening the polls each of the judges and clerks shall take the following oath : ' I, A. B., do solemnly swear that I will impartially, and to the best of my knowledge and ability, perform the duties of judge (or clerk) of this election, and will studiously endeavor to prevent fraud, deceit and abuse in conducting the same.' " The following section provides: "Any one of the judges or clerks present may administer the oath to the others, and it will be entered in the poll books subscribed by the person taking it and certified by the officer administering it." Your second question, as stated you, is: "If the township assessor does not furnish the township clerk with a list of all persons over twenty-one and under forty-five years of age, whose duty is it to compel him to do so?" By code section 1540, the assessor was required to furnish to the township clerk a list containing the names of all persons required to perform two days ' labor on the road as poll tax. By code supplement section 1540-a this section was repealed and a substitute enacted, and by the new section it is provided that the township clerk shall, not later than the 15th day of April, make out and deliver to the superintendent of roads a list of all persons required to pay road toll tax under the provisions of this act. And it is further provided, to enable him to make out such a list the assessor shall furnish the clerk of said township before the first 186 ATTORNEY GENfERAL'S OPINIONS day of April of each year a complete copy of the assessment lists of said township for that year which shall be the basis of such poll tax list. In my judgment the clerk would have the right to demand this list from the assessor and in the event of his failure to furnish the same the clerk might bring an action of mandamus to compel the assessor to furnish such list. The assessor and his bondsman would also be liable for his failure of duty in this respect. Your third question is, "Can the township clerk charge for tak- ing the oath of a road superintendent and putting his bond on record ? ' ' The compensation of the clerk is fixed by code supplement sec- tion 591, which fails to provide any compensation for such service. Hence, I am of the opinion that this question should be answered in the negative. The first subdivision of this section, however, provides: "The township clerk shall receive for each day of eight hours necessarily engaged in official business, where no other compensation or mode of payment is provided, to be paid out of the county treasury, $2.00." Work of this sort could doubtless be paid for under this sub- division. Yours truly, C. A. ROBBINS, Assistant Attorney General. Residence — ^Legal — Foe Election Purposes — ^What Constitutes. October 21, 1912. De. T. L. Rice, Ames, Iowa. Deae Sir.: I am advised by the attorney general that you are interested in the question of the right of a student to vote at the place where he is attending school, and by his direction I am writing you concerning the matter. The question was before our supreme court in the case of Vander- peel vs. O'Hanlon, 53 Iowa, 246, in which case the court said: " If it was the intention of the plaintiff to return to Mitchell county when he had finished his education, it would probably be conceded that his place of residence, within the meaning ATTORNEY GENERAL'S OPINIONS lS7 of the constitution, continue to be in Mitchell county during all the time he was absent. And, on the other hand, it would probably be admitted, if, when he went to Iowa City, or at any time thereafter before he offered to vote, his intention was to make that place his home and residence when he ceased to attend the University, that such place was and became his place of residence in such sense that he would have become a legal voter in Johnson county. * « * * "It is undoubtedly true that the residence of the plaintiff was in Mitchell county at the time he first went to Iowa City, and it must be equally true that it so continued until he acquired another. Another proposition will, we think, be eon- ceded, and that is, that an individual cannot be entitled to vote in two different counties in this state at the same elec- tion. Yet he may, in a certain sense, actually reside in one and be a legal voter in another. He is entitled to vote only in the county where his home is — where his fixed place of residence is for the time being — and such place is, and must be, his domicile, or place of abode, as distinguished from a residence acquired as a sojourner for business purposes, the attainment of an education, or any other purpose of a tempo- rary character. If a person leaves the place of his residence or home with intent of residing in some other place and mak- ing it his fixed place of residence, but never consummates such intent, it cannot be said his residencfe has been changed there- by. But if he so intends, and does actually bscome a resident of another place, then the former residence will be regarded as abandoned and a new one acquired." In the ease of State vs. Savre, 129 Iowa, at page 125, the court said: "Mere bodily presence or absence cannot have controlling effect in determining residence when once established. Many qualified voters spend most of their time in pursuits out of the ward or even the state. Persons who travel for business or pleasure for long or short periods do not lose their residence by such absence. But bodily presence ordinarily is essential in effecting a domicile in the initiative. One might intend to dwell in a place as permanent abode, and yet never see it, So he might dwell without thought of remaining. In neither event would he be a resident within the meaning of the elec- 188 ATTORNEY GENERAL'S OPINIONS tion laws. There must be the act of abiding without the present intent of removing therefrom. * * * "phe vital inquiry, then, in determining the residence of a person always is where is his home, the home where he lives, and to which he intends to return when absent, or when sick, or when his present engagement ends." From these decisions it will be observed that it is largely a question of the intention of the student as to where his place of abode shall be after his school work is finished, and two students might have spent the same length of time in the same school and one be a resident of and entitled to vote in the town where the school is located, and the other not. A student who has the inten- tion of returning to his former home as soon as his school work is finished is not a resident of the place where the school is located, within the meaning of the law. On the other hand the residence of a scholar of full age, who has left the home of his parents on coming to the school, intending to make the place where the school is located his residence until his school work is finished and then intending to locate at some place other than his former home, is the place where the school is located. Yours truly, C. A. Bobbins, Assistant Attorney General. Peddling. — Sale of from car does not constitute. November 6, 1912. Hutchinson Grocery Co., Decorah, Iowa. Gentlemen: Yours of the 4th instant addressed to the at- torney general has been referred to me for reply. Your question briefly stated is, whether or not a resident of another state or county may ship in a car of apples or potatoes not raised by him and sell the contents of the car by the bushel to the consumer and not be subject to the license provided by our law or by city ordinance. This department has heretofore ruled that where the sales are made from the car and no peddling is done by the party making the sales that neither the license law nor ordinances would be violated by sales made in such manner. If, however, they under- ATTORNEY GENERAL'S OPINIONS 189 took to peddle the vegetables around throughout the county and outside of the city or town then the license law M'ould apply, and if within the town the city ordinance might be made to apply. Yours truly, C. A. ROBBINS, Assistant Attorney General. Taxation. — Validity of certain taxes assessed against certain land belonging to the state purchased since the levy. November 9, 1912. HONOEABLB BOARD OP CONTROL, State House. Sms: Your letter of the 6th instant, together with letter from Geo. 0. Free, county treasurer, dated October 29th, requesting an opinion in regard to the validity of certain taxes which are claimed to be a lien upon certain lands now owned by the state, has been referr:?d to me for reply. You call attention to an opinion of former Attorney General Mullan of date December 19, 1905; also to one of former At- torney General Byers of date December 31, 1907, which have some bearing upon the matter. In the instant case it appears from the letter of the county treasurer that the state obtained its title by deed dated November 10, 1911, the land having been assessed for taxes in the spring of that year, and the taxes Tevied at the usual time in September prior to the time of the purchase by the state. In this respect the ease is to be distinguished from the case considered by former Attorney General Mullan, for in that case the land was conveyed by the person to whom it was assessed to the state on the 10th day of June, 1904, and prior to the time of the levy of the taxes for that year. And in the case considered by Mr. Byers the proposed sale of the land for taxes was for the taxes of the year 1903. The state obtained its title May 23, 1903, before the taxes for the year 1903 were levied. Hence, the case is to be distinguished from each of the cases heretofore considered by this department in the opinions referred to. However, it is provided by code section 1015: "Taxes upon real estate shall be a lien thereon against all persons except the state * * * As between vendor and 190 ATTORNEY GENERAL'S OPINIONS vendee such lien shall attach to such real estate on the 31st day of December, following the levy, unless otherwise pro- vided in this chapter." Inasmuch as the purchase was made by the state prior to De- cember 31st following the levy which was made in September, the taxes in question were not a lien at the time the real estate was purchased by the state. Baldwin vs. Mayne, 42 Iowa, 131 ; Rex Lumber Co. vs. Reed, 107 Iowa, 111 at 114. Furthermore, it would seem that after the title had passed to the state the provisions of code section 1435 would apply where- in it is provided : "and no assessment or taxation of such lands, nor the pay- ment of any such tax by any person, or the sale and con- veyance for taxes of any such lands shall in any manner af- fect the right or title of the public therein, or confer upon the purchaser or person who pays such taxes any right or interest in such land." District of Oakland vs. Hewitt, 105 Iowa, 663. In view of these authorities I am of the opinion that whatever remedy the county may have against the former owner of the lands for the collection of such tax, that such tax is not a lien upon the land, nor may the land be sold for the same, nor is the state in any way liable for the payment of such tax. Respectfully, C. A. Bobbins, Assistant Attorney General. Moneys and Ceedits and Moneyed Capital. — How taxed, November 26, 1912. E. S. WiLLAED & Co., 45 Pine St., New York. Gentlemen : Your of the 19th inst., addressed to the treasurer of state has been referred to this department for reply. ATTORNEY GENERAL'S OPINIONS 191 Your first question is: " If a local company of your state lends on mortgage, secured by real estate of your state, "Is there an annual state tax on the mortgage? Rate? "Is there an annual local tax? Average rate? ' ' Is there any recording tax that exempts the mortgage there- after from any further taxes? Rate? "Is there an income tax on mortgage interest? Rate?" All four subdivisions of this question should be answered in the negative. However, if the note was held by an individual simply as an investment and without any view of negotiating the same, or reloaning or reinvesting the money, it would be subject to a five mill tax under the provisions of section 1, chapter 63, acts of the thirty-fourth general assembly. If, on the other hand, the note was held by a bank or other moneyed capitalist using his funds in competition with bank capital it would be subject to be taxed on twenty per cent of its actual value at the rate of levy applicable to other property in the taxing district where the holder of the note resides, as pro- vided by section 5 of said act. Your second question is: "If said local company sells and assigns the mortgage to a- New York company, which records the assignment in your state, and thereafter keeps it in New York state, "Is there a tax on the assignment or on the recording of the assignment? Rate? "Must the New York company pay the annual state, annual local, income tax of your state, or a license tax for doing business?" Both subdivisions of this question should be answered in the negative. Your third question is: "If the New York company loans money by taking the mortgage directly to itself as mortgagee, and then records it in your state, and thereafter keeps it in New York state, must it pay the annual state, annual local, income tax of your state, or a license tax for doing the business?" and should be answered in the negative. Yours very truly, C. A. ROBBINS, Assistant Attorney General. 192 ATTORNEY GENERAL'S OPINIONS Fire Companies — Members of Exempt prom Poll Tax. — Members of fire department under the control of a city or town are exempt from the payment of poll tax. November 29, 1912. Mr. J. L. JosLiN, Prairieburg, Iowa. Dear Sir: Yours of the 26th instant addressed to the attorney general has been referred to me for reply. Your question as stated by you is, what is necessary to be done where a fire company is organized in a city or town in order that the members of such company may be legally exempt from poll tax? Code section 2462 provides in part as follows: "Any person while an active member of any fire engine, hook and ladder, hose, or any other company for the extin- guishment of fire, or protection of property at fires, under the control of the corporate authorities of any city or town, shall be exempt from the performance of military duty and labor on the roads on account of poll tax, and from serving as a juror. ' ' From this it will be seen that no form of organization is required except that it be under the control of the corporate authorities. Yours truly, C. A. EOBBINS, Assistant Attorney General. County Attorney. — Should be provided with office and supplies at expense of county. December 9, 1912. Me. Fred Jensen, Spencer, Iowa. Dear Sir: I am in receipt of your communication of the 5th instant requesting to be advised (1st) as to whether you are en- titled to supplies pursuant to the provisions of section 468 of the code; (2d) as to whether or not the board of supervisors should furnish you an office at some place other than the court house in the event that the office at the court house is not suitable for a county attorney's office. ATTORNEY GENERAL'S OPINIONS 193 Undoubtedly you are entitled to all such supplies that you would use as county attorney the same as any other county officer. Of course this does not include supplies which would be used by you in your private practice. You are also entitled to a suitable office. If the supervisors can furnish you a suitable office at the court house they are under no obligation to furnish you one elsewhere. If they cannot furnish an office suitable and proper at the court house, they should fur- nish you with an office elsewhere at Spencer, the county seat of your county. I am enclosing you copy of an opinion given by former Attorney General Mullan which is in harmony with these views. I had also furnished an opinion to Mr. 0. A. Hammond of your place, in which opinion I took the same views as herein expressed. Yours very truly, George Cosson, Attorney General. Special Assessments. — Property is liable for even though exempt from other taxes. December 18, 1912. Me. John Lee, 1036 Water Street, "Webster City, Iowa. Dear Sie : Yours of the 17th instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is whether or not your property is exempt from a special assessment for sewer tax in view of the fact that you are a soldier and the property is otherwise exempt from taxation. The uniform holding of the courts is to the effect that property exempt from taxation is not exempt from special assessments on the ground that the value of the property is enhanced by the im- provement payment for which the special assessment is made. Hence, your inquiry should be answered in the negative. Yours truly, C. A. Bobbins, Assistant Attorney Qeneral. 13 19'4 ATTORNEY GENERAL'S OPINIONS HuNTEES — License. — Issued without payment of fee is valid; December 18, 1912. Mr. p. a. Snydee, Aekley, Iowa. Dear Sir: Yours of recent date addressed to the attorney gen- eral has been referred to me for reply. You call attention to the practice of county auditors signing and delivering to others to be issued to the applicant hunting licenses in advance of the payment of the fee therefor, and you inquire what position has been taken by this department as to the legality of such transactions. In my judgment the provision requiring the payment of the fee before the license is issued is directory and that a license de- livered by the auditor directly to the applicant or indirectly to the applicant through the medium of an agent for the sake of con- venience or otherwise, should be regarded as a lawful license and should protect the licensee even though the fee be not paid, aad that the auditor should stand charged with the fee the same as though it had been collected by him. Yours truly, C. A. Bobbins, Assistant Attorney General. Board of Supervisors — Compensation op Members. — Members not entitled to compensation while attending convention of supervisors. December 21, 1912. C. S. Moore, County Attorney Elect, Roekford, Iowa. Dear Sir: Yours of the 19th instant addressed to the attorney general has been referred to me for reply. Your question is whether the board of supervisors has a right to mileage or per diem alone for attending state conventions of the board of supervisors. The attendance of such conventions is no part of the official duty of the members of the board of supervisors and in my judgment they are only entitled to the compensation fixed by code section 469, as amended by section 4 of chapter 24 of the acts of the thirty- fourth general assembly which is $4.00 per day for each day ac- ATTORNEY GENERAL'S OPINIONS 195 tually in session, but $4.00 per day when not in session but em- ployed on committee service. Hence, they are entitled to no per diem or mileage for attending such conventions. Yours truly, C. A. ROBBINS, Assistant Attorney General. Teems of Office. — To begin second secular day of January next after the election. December 24, 1912. Me. Wm. Stbampe, Supervisor Elect, PauUinaj Iowa. Dbae Sir: I am in receipt of your communication of the 23d instant advising that you are the supervisor elect in your county, and requesting an opinion as to when you assume the duties of your office. Section 1060 of the supplement to the code, 1907, as amended by chapter 68 acts of the thirty-third general assembly, provides: "The term of office of all officers chosen at a general elec- tion for a full term shall commence on the second secular day of January next thereafter, except when otherwise provided by the constitution or by statute;" etc. It is my opinion that you should assume the duties of your office on the second secular day in January, which is Thursday, Janu- ary 2d. Yours very truly, George Cosson, Attorney General. Extracts from letter written to Sherwood A. Clock, County At- torney of Franklin County, January 13, 1912. In a case arising in New York, the state of New York assessed the shares of one Van Allan in the First National Bank of Albany. At that time all the capital of the bank was invested in United States securities, and it was asserted that a tax upon the individual in respect of the shares that he held in the bank was, unless the holdings in United States securities were deducted, a tax upon the securities themselves, but the court held otherwise, and that the 196 ATTORNEY GENERAL'S OPINIONS tax on an individual in respect to his shares in a corporation, is not regarded as a tax upon the corporation itself. The right of such taxation rests upon the theory that shares in corporations are property entirely distinct and independent from the property of the corporation. See Van Allan vs. The Assessors, 3 "Wallace, 573 ; Home Savings Bank vs. Des Moines, 205 U. S., at 516 and 517. It was for the purpose of meeting this very distinction that sec- tion 4 of chapter 63, acts of the 34th general assembly provided that "shares of stock of national banks and state and savings banks and loan and trust companies located in this state shall be assessed to the individual stockholders at the place where the hank or loan and trust company is located." Hence, if the assessment is to be made to the individual stockholder and not to the bank, the bank can make no deduction because there is no assessment against it on account of the stock. The individual can make no deduction because the bank, and not the individual, is the owner of the non- taxable securities. BRIEF. Moneyed Capital. Money employed in the carrying on of a business, the object of which is the mailing of profit by its use as money, the capital em- ployed in a business in which the stock in trade from which profits are expected to accrue, is money ; either money itself, or negotiable securities readily convertible into money, and having an equitable market value ; ready money or capital invested in private banking. 27Cyc., 823; First National Bank vs. Turner, 57 N. E. 110 at 112. The term "moneyed capital" as used in section 5219 embraces capital employed in national banks and capital employed by individuals when the object of their business is the making of profit by the use of their moneyed capital as money; but it does not in- clude moneyed capital in the hands of corporations, even if its business be such as to make its shares moneyed capital when in the hands of individuals. Mercantile Bank vs. New York, 121 U. S., 138 at 153-7. ATTORNEY GENERAL'S OPINIONS 197 The term was held not to include mining stock in Talbot vs. Silver Bow, 139 U. S., 447, where the following language is used: "The term 'moneyed capital' as used in section 5219 re- specting state taxation of shares of national banks embraces capital employed in national banks and capital employed by individuals, and the object of their business is the making of profit by the use of their moneyed capital as money, — as in banking, as that business is defined in the opinion of the court. The intention of congress in the national banking system is, as we have noticed, in favor of local taxation including there- in territorial taxation of national banks upon the same basis as is imposed iDy the locality on other purely moneyed cor- porations and capital. The term includes only capital which comes into competition with the business of national banks. ' ' 1st National Bank vs. Chapman, 173 U. S., 205 at 214. It does not include money which does not come in competition with the business of the bank. Commercial National Bank vs. Chambers, 56 L. R. A., 352; 182 U. S. at 560. The term applies only to such capital as is readily solvable into money. Merc. National Bank vs. N. Y., 28 Fed., 309 at 310. The term means ready money or capital invested in private banking, and does not comprise capital invested in manufacturing or insurance corporations. 1st National Bank vs. Waters, 7 Fed., 152 at 156. Wherever money is employed in the carrying on of a business, the object of which is the making of profit by its use as money, when invested in loans or securities of a permanent or temporary character with a view to sale and reinvestment for the purpose of making money out of the operation, it is moneyed capital. National Bank vs. Baltimore, 100 Fed., 24 at 29 ; Breseler vs. Wayne County, 49 N. W., 787. While shares of stock in railroad companies, insurance com- panies, and the like are in a fair sense "moneyed capital in the 198 ATTORNEY GENERAL'S OPINIONS hands of individuals" they are not such within the purview of section 5219. Mechanics National Bank vs. Baker, 46 Atl., 586-587 ; 1st National Bank vs. Chehalis County, 166 U. S., 440 ; Redemption Bank vs. Boston, 125 U. S., 60. The term includes shares of stock or other interests owned hy individuals in all enterprises in which the capital employed in carrying on its business is money where the object of the business is the making of profit by its use as money. The capital thus em- ployed is invested for that purpose in securities by way of loans, discounts or otherwise, which are from time to time according to the rules of business reduced again to money and reinvested. It includes money in the hands of individuals employed in a similar way invested in loans or securities for the payment of money either as an investment of a permanent character or temporarily with a view to saving repayment or reinvestment. Breseler vs. Wayne County, 49 N. W., 787. In the case of Mercantile National Bank vs. New York, 121 U. S., 138 at 153, the court, after having reviewed the previous decisions, states : "It follows, as a deduction from these decisions, that 'moneyed capital in the hands of individual citizens' does not necessarily include shares of stock held by them in all cor- porations whose capital is employed, according to their re- spective corporate powers and privileges, in business carried on for the pecuniary profit of shareholders, although shares in some corporations, according to the nature of their business, may be such moneyed capital. The rule and test of this dif- ference is not to be found in that quality attached to shares of stock in corporate bodies generally whereby the certificates of ownership have a certain appearance of negotiability, so as easily to be transferred by delivery * * * * xt does not follow, because these are invested in such a way as properly to constitute moneyed capital, that the shares of stock in the corporations themselves must necessarily be within the same description. * * * # f^^Q ^^ue test of the distinction, therefore, can only be found in the nature of the business in which the corporation is engaged." ATTORNEY GENERAL'S OPINIONS 199 On page 155 the court further states : "But 'moneyed capital' does not mean all capital the value of which is measured in terms of money. « * * * Neither does it necessarily include all forms of investment in which the interest of the owner is expressed in money. Shares of stock in railroad companies, mining companies, manufacturing companies, and other corporations, are represented by certifi- cates showing that the owner is entitled to an interest, ex- pressed in money value, * * * * but the property of the corporation which constitutes its invested capital may consist mainly of real and personal property, which, in the hands of individuals, no one would think of calling moneyed capital, and its business may not consist in any kind of dealing in money, or commercial representatives of money. * * * » The business of banking, as defined by law and custom, con- sists in the issue of notes payable on demand, intended to circidate as money where the banks are banks of issue; in re- ceiving deposits payable on demand ; in discounting commercial paper; making loans of money on collateral security; buying and selling bills of exchange; negotiating loans, and dealing in negotiable securities issued by the government, state and national, and municipal and other corporations. These are the operations in which the capital invested in national banks is employed, and it is the nature of that employment which constitutes it in the eye of this statute 'moneyed capital.' " On page 157 the court further states: "The terms of the act of congress, therefore, include shares of stock or other interests owned by individuals in all enter- prises in which the capital employed in carrying on its busi- ness is money, where the object of the business is the making of profit by its use as money. The moneyed capital thus em- ployed is invested for that purpose in securities by way of loan, discount, or otherwise, which are from time to time, ac- cording to the rules of the business, reduced again to money and reinvested. It includes money in the hands of individuals employed in a similar way, invested in loans, or in securities for the payment of money, either as an investment of a per- manent character or temporarily with a view to sale or repay- ment and reinvestment. * * * * This definition of mon- eyed capital in the hands of individuals seems to us to be the 200 ATTORNEY GENERAL'S OPINIONS ideal of the law, and ample enough to embrace and secure its whole purpose and policy." The term "moneyed capital" as used in section 5219 of the code is to be construed as including not only bonds, stocks, and money loaned, but all credits and demands of every character in favor of the tax paid. Wasson vs. 1st National Bank, 107 Ind., 206 ; 8 N. E., 97. The term does not include bank notes. Hunter's Appeal, 10 Atl., 429. Des Moines, Iowa, January 17, 1912. R. L. Welch, City Solicitor, Knoxville, Iowa. Dear Seb : Yours of the 13th instant addressed to the attorney general has been referred to me for reply, and I will try to answer your several interrogatories in the order as stated by you. It would be difficult, if not impossible, to make a classification such as you call for which might be adhered to with any degree of certainty, for the reason that an item might be moneys and credits in the hands of one person and moneyed capital in the hands of another. To illustrate : Suppose I sell my farm for ten thousand dollars and take a mortgage back, securing part of the purchase price, and intend simply to hold the note and mortgage, not for the purpose of negotiating the note and re-investing the money re- ceived therefor in other like securities, which in turn would again be sold and the proceeds invested. This note in my hands would be a credit, within the meaning of code section 1310, as amended by this chapter, yet if I should sell this same note to a bank or other institution which made a business of buying and selling negotiable instruments and made use of other moneyed capital in so doing, this note would constitute moneyed capital, within the meaning of chapter 63, and should be taxed in accordance with section 5 thereof. You will notice that the legislature in the act in question used the term "moneyed capital" as within the meaning of said sec- tion of the United States statutes, and there is no attempt in the act itself to point out just what is included therein, and we are, therefore, left to ascertain what the courts have held "moneyed capital" to be, within the meaning of said section 5219. ATTORNEY GENERAL'S OPINIONS 201 In the case of Mercantile Bank vs. New York, 121 U. S., the su- preme court said: "The term 'moneyed capital,' as used in section 5219, em- braces capital employed in national banks and capital em- ployed by individuals when the object of their business is the making of profit by the use of their moneyed capital as money ; but it does not include moneyed capital in the hands of cor- porations, even if its business is such as to make its shares moneyed capital when in the hands of individuals." In the case above referred to, the court, after having reviewed the previous decisions, stated : "It follows as a deduction from these decisions that 'mon- eyed capital' in the hands of individual citizens does not nec- essarily include shares of stock held by them in all corporations whose capital is employed, according to their respective cor- porate powers and privileges, in business carried on for the pecuniary profit of shareholders, although shares in some cor- porations, according to the nature of their business, may be such moneyed capital. The rule and test of this difference is not to be found in that quality attached to shares of stock in corporate bodies generally whereby the certificates of owner- ship have a certain appearance of negotiability, so as easily to be transferred by delivery * * * * it does not follow, because these are invested in such a way as to properly to con- stitute moneyed capital, that the shares of stock in the cor- porations themselves must necessarily be within the same description * * * * The true test of this distinction, therefore, can only be found in the nature of the business in which the corporation is engaged." The court also used this language, which probably is as good a definition as can be found: "The terms of the act of congress, therefore, include shares of stock or other interests owned by individuals in all enter- prises in which the capital employed in carrying on its busi- ness is money, where the object of the business is the making of profit by its use as money. The moneyed capital thus em- ployed is invested for that purpose in securities by way of loan, discount, or otherwise, which are from time to time, ac- cording to the rules of the business, reduced again to money 202 ATTORNEY GENERAL'S OPINIONS and re-invested. It includes money in the hands of individuals employed in a similar way, invested in loans, or in securities for the payment of money, either as an investment of a per- manent character or temporarily with a view to sale or re- payment and re-investment. * * * * Tjiig definition of moneyed capital in the hands of individuals seems to us to be the idea of the law, and ample enough to embrace and secure its whole purpose and policy. ' ' "1st. There is a resident of this city whose sole income is derived from notes and mortgages. His business consists in loaning his own money. Is his property taxable on the basis of five mills on the dollar, or on the basis of 20 per cent of its actual value?" This item should be taxed on the basis of 20 per cent of its actual value, as provided by section 5 of the act under consideration. "2nd. There is a resident of this city engaged in the mer- chandise business, who has three thousand dollars loaned out at interest. Is it taxable on the basis of five mills, or on the basis of 20 per cent of its actual value ? ' ' This item, assuming it to be an incidental loan and that the holder is not engaged in the business of buying, selling and deal- ing in securities so as to make his money thus invested moneyed capital, within the meaning of the term as hereinbefore defined, should be taxed on the five mill basis, as provided in section 1 of the act. ' ' 3rd. A resident of this city has a checking deposit of one thousand dollars and also a time certificate drawing 4 per cent interest in a local private bank. Are the checking account and the certificate to be taxed on the same basis, and which method of taxation prevails ? ' ' On the same assumption that these items are incidental only, that the party is not generally engaged in such a business as would make these items moneyed capital, as heretofore explained, both the checking account and the time deposit shotild be taxed on the five mill basis, Yours very truly, (Signed) C, A. Bobbins, 4,ssistml Attorney General, Attorney genbravs opinions Sos Extracts of opinions of Attorney General pertaining to county- attorney's ofSee. "1. Is the county attorney entitled to a fee for judgment rendered and collected in a suit to enforce an assessment of omitted property made by the county treasurer? "2. Is the county attorney entitled to a fee for a judg- ment rendered and collected where suit was brought by him to collect the expense of insane patients which had previously been paid by the county? ' ' 3. Where suit is brought by county attorney on the bond of a defaulting official, is he entitled to a fee on the amount recovered, or under code section 308 is the county attorney entitled to a fee of ten per cent on all judgments in favor of the county, in addition to his salary, or only on fines?" Each of these questions should be answered in the negative. Code supplement section 308 after fixing the compensation of county attorneys according to the population of the county provides as follows : "In addition to the salary above provided he shall receive the fees as now allowed to attorneys for suits on written in- struments where judgment is obtaiaed, for aU fines collected where he appears for the state but not otherwise, and for school fund mortgages foreclosed." By code section 3869 it is provided: "When judgment is recovered upon a written contract con- taining an agreement to pay an attorney's fee the court shall allow and tax as part of the costs on the first $200 or fraction thereof, ten per cent, on the excess of $200 to $500, five per cent; on the excess of $500 to $1,000, three per cent; and on all sums in excess of $1,000, one per cent. If action is com- menced and the claim paid off before return day, the amount shall be one-half of the sums above provided ; and if it is paid after return day but before judgment, three-fourths of said sum." The phrase used in code supplement section 308 "where judg- ment is obtained" has reference to the higher fee fixed where judgment is obtained rather than the lower fee provided where settlement is made before return day or after return day and be- fore judgment as specified in section 3869, and the only cases in 204 ATTORNEY GENERAL'S OPINIONS which these fees are to be allowed are as specified in the other section for all fines collected and school fund mortgages foreclosed, and it is not intended that the fee shall be allowed in other cases where judgment is obtained. The compensation for such services is included in the general salary of the county attorney. See Dubuque Co. vs. Fitzpatrick, 144 Iowa, 86. "4. Should the county attorney's per cent of fines be de- ducted from the fines or paid out of the general county fund?" This percentage to be paid the county attorney should be paid from the general fund and not from the proceeds of the fines collected. The constitution requires the clear proceeds of the fines collected to be turned into the school fund. See Constitution of Iowa, section 4, of subdivision 2 of article IX, and Woodward vs. Gregg, 3 G-. Green, 287, where the exact question was passed upon by our supreme court and the conclusion reached being against the right of deducting the attorney's fees from the funds collected. JUSTICE OP THE PEACE. "Are marriage fees of the justices of the peace to be taken into consideration with fees set out in section 4597 ? ' ' This department has heretofore passed upon this question and held that inasmuch as the right of a justice of the peace to exact a fee for the performance of the marriage ceremony de- pends upon the existence of his official position that the fee is therefore received by him in his official capacity and must be ac- counted for in the same manner as other fees received by him where he is on a salary basis. See code section 3152 fixing the amount of such fee, and code supplement section 4600-a requiring such fees to be accounted for. March 23, 1914. John L. Bleakly, Auddtor of State. Dear Sir: With reference to the proposition contained in the letter of Mr. M. S. Odle addressed to you of date March 13th will say that in my judgment the rule announced in my letter to you of date October 1, 1913, is not necessarily confined to fines imposed in criminal prosecutions. ATTORNEY GENERAL'S OPINIONS 205 The language of our constitution material to be considered is found in section 4 of article IX and reads as follows: "Money which may have been or shall be paid by persons as an equivalent for exemption from military duty and the clear proceeds of all fines collected in the several counties for any breach of the penal laws shall be exclusively applied in the several counties in which such money is paid or fine col- lected among the several school districts of said counties, ' ' etc. By code section 2382 the sale or keeping for sale of intoxicating hquors is made an indictable offense, and there is no question but that this law is a penal law. By section 2384 the sale of liquors from any building, erection or place is made a nuisance. This is also a penal law. By section 2405 the remedy of injunction is applied and where one against whom the injunction has been rendered violates the terms thereof, he is made guilty of contempt and a fine is imposed. This is certainly a penal law. At any rate the fine imposed for contempt is collected for a violation of the penal law because the injunction has not issued in the first instance, but for the fact of the defendant having violated the other penal laws referred to by selling or keeping for sale liquors within his place. The case of McGonkie vs. Landt, 126 Iowa, 317, referred to by Mr. Odle, is probably an authority for the proposition that con- tempt proceeding is not a criminal case, but even though that may be true, the fine is nevertheless imposed for a violation of the penal law. I eaU your attention to the additional authorities found under this subject. Penal Laws, in Words and Phrases, vol. 6, at pages 5270-5271. I can see no reason why it should make any difference to Mr. Odle for he would be entitled to the hundred dollars from the general fund of the county but in my ju'dgment he is not entitled to the same from the proceeds of the fine collected. I am sending you this letter in duplicate in order that you may forward a copy to Mr. Odle if you so desire. Yours truly, C. A. EOBBINS, Assistant Attorney General. 206 ATTORNEY GENERAL'S OPINIONS October 29, 1913. Hon. John L. Bleakley, Auditor of State, State House. Dear Sie: Your first question is: "Has the board of supervisors a legal right to allow to a county officer direct a specified amount for compensation of deputy or other clerk hire, or must the amount be allowed direct to the person performing the service?" This question should be answered in the negative except as to sheriffs. Under code supplement section 510-b the salary of the chief deputy is to be paid by the sheriff out of the compensation allowed him under section 510-a. Prior to the enactment of chapter 43, acts of the thirty-fifth gen- eral assembly, the board of supervisors was authorized by code supplement section 479 in counties of over twenty-five thousand to allow such additional compensation to the auditor as it deemed reasonable. However, by the last paragraph or subdivision of chapter 43 this additional compensation is now limited to the deputies and clerks and is no longer allowed direct to the auditor. Your second question is: "Has the board of supervisors a legal right to allow direct to the county auditor a certain amount in addition to his salary for drainage work, or may they simply allow the auditor extra help on this account?" This matter is governed by chapter 121, acts of the thirty-third general assembly, the material portion of which reads as foUows: "Whenever a levee or drainage district or districts shall be petitioned for or established in any county, the board of super- visors shall fnmish such additional help, as shall be just and reasonable, to be paid by the county. ' ' Hence, it follows that the pay should go to the help and not to the county auditor. ATTORNEY GENERAL'S OPINIONS 207 February 11, 1914. John L. Bleakly, Auditor of State. Dear Sir : In yours of the 5th instant you call attention to the following court rule which is being operated under in some of the counties of the state, to- wit : "The clerk in each county is hereby appointed 'referee in probate' for the purpose of examining all reports in probate requiring the action of the court, and he shall be allowed for such service, to be taxed as a part of the costs, a fee of $1.50 in estates of $500.00 or less, a fee of $3.00 in estates of less than $5,000;00, and over $500.00, and a fee of $7.50 in all es- tates of $5,000.00 or in excess of $5,000.00, and as a part of his duty the clerk shall make a report in writing to the court of the condition of each estate to be acted upon, and as a recommendation of what ought to be done with the report considered. ' ' You then enquire: "In case the clerk is appointed referee in probate by the judge of the district court and his fees for the same are fixed by the court, is the clerk entitled to retain these fees in addi- tion to his salary?" In my judgment this question should be answered in the nega- tive. These fees are certainly received by the clerk in his official capacity and not as an individual, and the rule is that all fees so received should be accounted for. Our supreme court so held in the ease of Moore vs. Mahaska County, 61 Iowa, 177. However code section 297 provides: "The board of supervisors may in addition to the salary fixed for clerks, allow them out of the probate fees as additional compensation an amount not ex- ceeding $300. " Under this provision the board of supervisors would have the power to allow any clerk additional compensation up to the amount of $300.00 each year from the "probate fees" which term would include any fees collected by the clerk as referee in probate under guch rule of court. Yours truly, 208 ATTORNEY GENERAL'S OPINIONS December 20, 1913. John L. Bleakly, Auditor of State, State House. Deae Sie : Your several letters of recent date addressed to the attorney general have been referred to me for reply. Your first question is : "When, on serving a warrant, the sheriff takes a conveyance out and back, which conveyance he charges to the county as a livery expense item, can he also charge mileage for himself?" In my judgment the sheriff is not entitled to charge mileage, ex- cept in certain special cases, where he is authorized to procure a conveyance and except in such cases he would not be authorized to charge for livery. Your second question is: "In ease the warrant is issued by a justice of the peace could the sheriff charge for livery?" In reply to this question will say that in my judgment the sheriff is entitled to mileage only and not to livery. October 17, 1913. John L. Bleakly, Auditor of State, State House. Deae Sie : Yours of the 14th instant, addressed to the attorney general, has been referred to me for reply. Your first question as stated by you is: "When a county officer's salary is fixed by statute accord- ing to population of the county, which census should govern, the state census of 1905, or government census of 1910 ? ' ' By chapter 8 of the acts of the thirty-fourth general assembly provision is made for the publication by the secretary of state of ATTORNEY GENERAL'S OPINIONS 209 the general census taken by the national government. Said chap- ter further provides : "Wherever in the code or any supplement to the code or any copy of the session laws prior to this date the population of any county, city or town is referred to it shall be deter- mined by the last certified or certified and published official census whether the same be state or national." Hence it follows that if the secretary of state has complied with the provisions of chapter 3 and published that portion of the fed- eral census of 1910 giving the population of counties the compensa- tion of the county officer where such compensation is based upon population of the county should be determined by the federal cen- sus of 1910; otherwise by the state census of 1905. Federal census of 1910 was officially published by the secretary of state on March 27, 1911. April 7, 1914. John L. Bleakly, Auditor of State, State House. Deab Sir : Eeplying to the letter of Mr. E. A. Fife under date of March 24th, 1914, will say that in my judgment Code section 2577 which requires a physician to file his certificate "for record in the office of the recorder of the county in which he resides" and which requires the recorder to "record same in book provided for the purpose," requires more than a mere index showing the filing of the same for record, and in my judgment requires the same to be copied at length upon the record books the same as any other in- strument which is required to be recorded at length. I am enclosing you a duplicate of this letter in order that same may be forwarded to Mr. Fife. Yours truly, C. A. ROBBINS, Assistant Attorney General. 14 210 ATTORNEY GENERAL'S OPINIONS March 11, 1914. John L. Bleakly, Auditor of State, State House. Dkar Sir: Replying to yours of recent date, addressed to the attorney general, concerning the transfer of deeds, patents and other instruments which do not unconditionally convey real estate, will say that these are not required to be transferred, and it is for the auditor to determine in the first instance whether or not the conveyances are such as need to be transferred. If he should note on the back of any instrument the fact that it was not one that was required to be transferred then the recorder would be warranted in recording the same without its having been transferred. Yours truly, C. A. ROBBINS, Assistant Attorney General. Des Moines, Iowa. January 17, 1908. Hon. B. F. Carroll, Auditor of State. Sir: I beg to acknowledge the receipt of your letter of Janu- ary 16th in which you ask: "First. Under the provisions of the primary election law for the payment of expenses of said primary election, should the police officers and challengers at said primary election be allowed pay for their services? "Second. Can the board of supervisors charge for their services in canvassing the returns of said primary election to the primary election account, provided they do not charge the county for the same time and services? "Third. Does the provision in the primary law that the candidates for office in a smaller subdivision than a county need not file nomination papers also apply to candidates for members of the board of supervisors in counties that have been divided into supervisor districts?" In response thereto I submit the following: First. Section 1 of chapter 51, acts of the 32d general assembly, providing for primary elections makes the provisions of chapters ATTORNEY GENERAL'S OPINIONS 211 3 and 4 of title 6 of the code, in so far as applicable, apply to such elections. Section 1125 of chapter 3, title 6 of the code, makes provision for the appointment of special police officers to attend the voting places for the purpose of preserving order, and in my judgment, under these provisions such police officers are entitled to pay for their services, but I do not think it was the intention of the legislature to authorize payment for the services of the challengers provided for in section 9 of the primary act. Second. The compensation of the board of supervisors for serv- ices in canvassing the returns of the primary election and in per- forming such other services as are required by the act under con- sideration, should be paid in the usual way and not charged to the primary election account. Third. Candidates for members of the board of supervisors in counties that have been divided into supervisor districts are not required to file nomination papers. Respectfully, H. W. Bybrs, Attorney General of Iowa. November 12, 1913. John L. Bleaklt, Auditor of State, State House. Dear Sir : In response to recent request of your Mr. Wall as to whether or not a woman is qualified to hold the office of deputy clerk of the district court will say that without giving the matter any independent investigation I find that former Attorney Gen- eral Mullen investigated the question in January, 1902, and reached the conclusion that deputy county officers are not required to be qualified electors and that hence the office might be held by a woman. I have examined some of the cases he cites and they seem to sustain the doctrine announced by him in his opinion, copy of which I herewith enclose. Yours truly, C. A. Bobbins, Assistant Attorney General. 212 ATTORNEY GENERAL'S OPINIONS Des Moines, January 31, 1902. Hon. Oliver Goeden, Forest City, Iowa. Deae Sie : Permit me to acknowledge the receipt of your favor of the 30th instant. The matter concerning which you write is not one upon which I am required to give an official opinion, but as you have written me for such information as I am able to furnish concerning, I. will reply briefly: The clerk of the courts of Iowa is a ministerial officer, except in certain instances where he is required to act in a judicial capacity. Section 298 of the code gives him the power to select his deputy and clerks. He and his surety are responsible for their acts. He has the authority under this section to appoint whomsoever he pleases. The person appointed as his deputy acts for him; or, in other words, he acts through such deputy. His choice is not confined to any race, sex, color, age or previous condition of servitude. The deputy appointed by him is not a county officer, and it is not necessary that he or she should have the qualifications of an elector. This question has been before several courts, and the doctrine as above stated has met with approbation. See Moore vs. Graves, 3 N. H., 146; Jeffries vs. Harrington, 11 Colo., 191 ; Wilson vs. Newton, 87 Mich., 498. The last case cited being directly in point. Very truly yours, Chas. W. Mullan, Attorney General. Des Moines, February 8, 1907. 0. Henshaw, Esq., ' Richland, la. Dear Sir: I have your letter of yesterday referring to prop- erty exempt from taxation, and note you say that you do not agree with some letter I have written with reference to the exemption of the rural route drivers teams, and also note that you say your county attorney disagrees with me. Replying I have to say, that you are entirely right in saying that paragraph five of section 1304 limits the exemption to teamsters or draymen's teams, so the ATTORNEY GENERAL'S OPINIONS 213 question turns on the definition of a teamster. I know of no better definition than that given by Webster which is "One who drives a team." Now if the rural route man drives a team in his busi- ness and makes his living iu that way, it seems to me he comes clearly within the provision of the statute, and his team would be exempt from taxation. A rural mail driver is just as much of a teamster as the man who hauls freight to and from the depot, or the man who gathers up and hauls milk to the creamery, or does any other kind of work in which he uses a team. This same para- graph exempts the tools of a mechanic, and the supreme court iu Smith & Fund vs. Osborn et al, 53 Iowa, page 474, holds, that the printing press and materials of a printer not exceeding $500.00 in value are exempt from taxation. It is so held because a printer is a mechanic, just so a rural mail driver is a teamster if he carries and delivers his mail with a team, and if he makes his living in that way his team is exempt. I have taken the trouble to write you thus fully not because I desire to have any controversy with you about the question in- volved, but because I assume you desire to satisfy yourself as to what the law is upon the question for the purpose of properly per- forming your duties as assessor. Very respectfully, (Signed) H. W. Bters, Attorney General. December 27, 1911. Me. H. B. Groves, Sioux City, Iowa. Dear Sir : Yours of the 21st instant addressed to the attorney general has, on account of his absence from the office, been referred to me for reply. Your question, briefly stated, is whether or not, under the new automobile tax law, machines on hand with dealers on January first, the time of assessment, should be assessed in view of the fact that the machines may soon be sold to the original purchaser and he becomes liable for the tax, and so on, as often as the car changes hands. You will understand that this department is not authorized to give official opinions with reference to private matters. However, I may say in a personal way that this law has been construed by 2 14 ATtORNEY GENERAL'S OPINIONS this department in such a way as to give the dealer the option of listing such machines as he has on hands January first and having the same assessed under the general law, or he may pay the annual registration fee on each of his machines and on each machine which he may purchase during the year, instead of paying the dealer's license fee, and in the last mentioned case, where the dealer would sell to the purchaser, a transfer could be made from the dealer to the purchaser upon payment of a transfer fee of $1.00, and the purchaser in such event would not be liable for the annual fee for that year; and this matter could be taken into account by the dealer in the sale of the machine; the purchaser being compelled to have a license before he could operate a machine would be as willing to pay the dealer for the license as he would the state, and thus the dealer would only be out the transfer fee of $1.00 on each machine, assuming that he could collect from the purchaser the full amount of the license fee that the purchaser would otherwise be required to pay to the state. And if the dealer would cause each machine to be registered under a separate number, he would have no occasion to have the dealer's number or registration, and would not be liable for the license fee. The theory of the law is to collect one license fee for each year, and if the machine is sold a second or third time in a year, only one license fee is required in case the transfer fee of $1.00 is paid at the time of each transfer and the proper return made, as pro- vided by section 10, chapter 72, acts of the 34th general assembly. Yours very truly, C. A. Bobbins, Assistant Attorney General. February 16, 1912. Me. M. p. Wilson, 819 Fourth Ave., Clinton, Iowa. Dear Sie: Yours of the 9th instant addressed to the attorney general has been referred to me for reply. You call attention to the fact that the city council and the county board of supervisors have by some order attempted to exempt from taxation for city and county purposes the Clinton Brewery Com- pany, and you ask what the duties of the county treasurer are in ATTORNEY GENERAL'S OPINIONS 215 connection with such a case, and whether or not it is up to him to take action to collect the lawful taxes for the current year, as well as for previous years. You also ask what action should or could a citizen take in the case. While this department is not authorized to give official opinions upon such matters as this, yet in the opinion of the writer there is no authority in law for such an exemption being made, and that it would be the duty of the city council and the board of super- visors, as well as the city treasurer and the county attorney, to see to it that these taxes are collected ; and it is doubtless true that the proper officers might be compelled by mandamus proceedings to take the necessary steps to collect this tax. It is equally true that if the proper officers fail to collect this tax, their bondsmen would be liable for the damage sustained by reason thereof. Their are various steps that might be taken by an interested citizen to bring about the collection of this tax. I would suggest, however, that the first step would be to serve a written notice on the city council, the members of the board of supervisors, the county treasurer and the county attorney, calling their attention to the illegality of the pracice, and demanding that they proceed to collect the tax. Yours truly, 0. A. Bobbins, Assistomt Attorney General. January 20, 1914. Hon. John L. Bleakly, Auditor of State, State House. Dear Sie : Yours of the 19th instant addressed to the attorney genej-al has been referred to me for reply. The question as stated by you is: ' ' Under section 490 of the code, should the county treasurer deduct three-fourths of one per cent from special assessment taxes levied by the city against abutting property to pay bonds issued to pay for sewer or street improvements as prg^ yided in sections 842 to 847 of tbe code?" 216 ATTORNEY GENERAL'S OPINIONS Code supplement section 490 to which you refer provides: "Each county treasurer shall receive for his services the following compensation, three-fourths of one per cent of all money collected by him as taxes and due any city or town, to be paid out of the same." The question then arises whether or not the proceeds of special assessments made under code sections 842 to 847, inclusive, would be taxes due the city or town within the meaning of section 490 above quoted. It has been frequently held by our supreme court that the obligations issued in the form of bonds under this section and payable from the proceeds of special assessments do not con- stitute an indebtedness of the city or town. How then can the proceeds of such special assessments be said to be a tax due the city or town? In my judgment your question should be answered in the negative. Yours truly, C. A. EOBBINS, Assistant Attorney General. December 3, 1912. 0. W. WiTHAM, County Attorney, Greenfield, Iowa. Dear Sie: Replying to yours of the 8th ult. addressed to the attorney general, relative to exemption from city tax of personal property located on agricultural lands within an incorporated city or town, will say that I have given the question which you suggest some investigation but have been unable to find any decisions cover- ing the questions. In view of the fact that the section, to which you call attention, 616, makes an exception in favor of farm lands located within the corporate limits from the general rule of taxation, 1 am inclined to the view that the exception should not be enlarged so as to in- clude stock and other property located upon the lands. I call your attention to the general rule, as stated in 28th Cyc, page 1678,, and cases there cited. If it had been the intention of the legisla- ture to exempt the personal property located on the land, as well as the land, it would doubtless have been stated in this section. Tours truly, (Signed) C. A. Eobbins, Assistant Attorney General.. ATTORNEY GENERAL'S OPINIONS 217 June 19, 1912. Me. B. D. Bbeman, 526-28 Bank and Insurance Bldg., Dubuque, Iowa. Dear Sir : Yours of the 18th instant addressed to the attorney general has been referred to me for reply. Your inquiry has reference to the question as to whether or not land contracts covering lands in the state of North Dakota held by you while a resident of Iowa are taxable in this state. This department is not at liberty to give official opinions with reference to a private matter of this sort, and you should consult local counsel and be governed by their advice. 1 may say, how- ever, in a personal way, that our supreme court has held that where the land contract is a mutually obligatory contract binding the purchaser to take the land aad the seller to convey the same, as distinguished from a mere option contract which binds the seller to convey in the event the purchaser exercises the option to take the land, are taxable as moneys and credits in the hands of the seller of the land. Hence, it would go without saying that where your obligation is out for land purchased by you,, you would have the right to deduct that obligation from any obligations that were taxable against you on account of land sold by you, and these con- tracts held by residents of this state are taxable without reference to the location of the land covered by the contract. Yours very truly, C. A. ROBBINS, ' Assistant Attorney General. ' ' Has the county auditor, under section 1385-a-b-c, code sup- plement, the authority in making up his tax list to correct this error in assessment or must it stand for this year having been passed upon by the local board?" "Where the county auditor is not required to exercise any judg- ment in fixing the valuation of the property, he would have the right under the section referred to to strike out any deduction un- lawfully allowed, and make the computation the same as though such deduction had not been made, and to this extent he would have the right to make the correction referred to. 218 ATTORKTEY GENERAL'S OPINIONS "The Farmers Co-operative Produce Company of Des Moines have a station in Tipton, Iowa, with an agent conduct- ing the business of buying and shipping cream and other produce, the question is, should the local plant be assessed in Tipton on the average business as merchants, under section 1314 to -18, or does such business come under the federal tax laws and is taken care of in their assessment given from their home oflBce in Des Moines?" In my judgment such concerns should be taxed under code sec- tions 1314 to 1318 and that the federal tax laws would have nothing to do with the question. Tour ninth question is as follows : "Have the board of supervisors the authority to allow bills for services of deputy county superintendent rendered between July 4th last and the date the county board of education met and fixed the salary of such deputy?" This question should be answered in the affirmative. Your tenth question is as follows: "Under section 2742, code supplement, may the board of supervisors allow the county superintendent additional com- pensation to 1915 when the new law fixing such salary takes effect?" In my judgment this additional compensation may be allowed both before and after 1915, as section 2 of chapter 107 also con- tains the provision: » "And the board of supervisors may allow him such further sum by way of compensation as may be just and proper." Yours very truly, C. A. ROBBINS, Assistant Attorney General. "Is the county auditor required to publish tabulated re- turns of the primary election setting out number of votes re- ceived by each candidate ? ' ' This question should be answered in the negative. By section 11 of chapter 69, acts of the thirty-third general assembly it is provided : ATTORNEY GENERAL'S OPINIONS 219 "The published proceedings of the board of supervisors as a canvassing board shall contain only a brief statement of the names of the candidates nominated by the electors of any county or subdivision thereof under the title of the office for which they are nominated, and a statement of the title of the office for which they are nominated, and a statement of the title of the county offices, if any, for which no nomination was made by any political party participating in the primary elec- tion for the failure of any one of its candidates for any office to receive thirty-five per centum of all the votes east by the party for such office." Hence it follows that this brief statement is all that is required to be published and that the tabulated returns need not be pub- lished. See 146 la., page 109, for returns of general election. Yours truly, C. A. EOBBINS, Assistant Attorney General. Extracts from opinions of attorney general of Iowa pertaining to duties of county officers. teeasubee's office. "1. Is the county entitled to charge the same (three- fourths of one per cent) for the township drag fund as it is for the township road fund 1 ' ' This question should be answered in the affirmative. "2. May the treasurer retain all fees collected up to his full salary even though he collect the same in three or four months, or can he only retain one-twelfth of his salary each month?" In my judgment the county treasurer may retain all fees col- lected by him until his maximum annual salary has been received and thereafter at all times when he is required to account to the board of supervisors he should account for the excess of fees re- ceived over and above his salary as provided by code section 492. In the event of a vacancy by death, resignation or otherwise during the year he should be required to account for all fees received over and above the salary due for that portion of the year during which he served. 220 ATTORNEY GENERAL'S OPINIONS "3. To whom does interest over and above that provided for by special assessment certificates go, when one per cent per month is collected? Section 841 provides that they shall not bear more than 6 per cent per annum; see section 827. Section 791-b of the code supplement provides that the assess- ment shall after delinquency bear the same rate of interest and the same penalties as other taxes." To the holder of the special assessment certificate. "4. What interest is due on taxes paid in April ? See sec- tion 1413. In some counties they are charging two per cent and in others only one. If the taxes are paid March 31st there is no penalty, but if the payment is made April 1st is the rate one per cent or two?" Jude DeGraff, formerly of this department, ruled that the pen- alty of one per cent per month only accrued at the end of the month, hence in the case you suppose the penalty would be one per cent instead of two. His ruling is still adhered to by this department. "5. Domestic Animal "Warrants. Can the treasurer pay these warrants after January 10th, or July 10th (section 458-d, supplement) , or does the provision that the payments shall be made on or before the 10th of these months mean that the treasurer is given until the tenth of the month to determine the per cent that can be paid on each warrant in ease they can- not be paid in full?" In my judgment the provision requiring payment on or before the 10th days of January and July respectively is directory, not mandatory, and that the payments may be made thereafter and these dates are simply fixed as a basis to enable the treasurer to determine whether or not all claims can be paid in full from the funds received between such dates. "6. Does the limit of compensation of county treasurer's deputy in section 491 apply to deputy only or to deputy and extra help? In other words, is the $900 a year the limit al- lowed to deputy and extra help ? ' ' In my judgment the limitation only applies to the salary or com- pensation to be paid the deputy or extra help where there is no regular deputy, but in eases where a regular deputy has been ap- pointed his salary would not be affected thereby and the board ATTORNEY GENERAL'S OPINIONS 221 would be without power to employ clerk hire except in cases where such county is doing a drainage business in amount requiring addi- tional help. See chapters 44 and 45, acts of the thirty-fifth general assembly. "7. Should the bond of a depository bank given to a county treasurer to secure county deposits be renewed upon the re- election of the treasurer or will the old bond hold good so long as the treasurer to whom it was originally given remains in ofaca?" Unless the bond specifies that it is for a fixed period of time, it would doubtless be sufficient during the term or terms of office of the treasurer to whom given, but the better practice would be to require new bonds for each term of the county treasurer or have the bond recite that it is to secure deposits made by the treasurer during that term or any subsequent term during which he may held the office. "8. May the boards of supervisors allow bills to banks for collecting tax for county treasurer, as extra clerk hire to the treasurer ? ' ' In my judgment this question should be answered in the nega- tive. The law contemplates that the work of the treasurer's office should be performed in that office and does not contemplate the payment of extra compensation or clerk hire except in the follow- ing eases : Where no regular deputy has been appointed but on account of the pressure of business in his office the treasurere is compelled temporarily to employ an assistant; And in counties of 25,000 popidation or over such clerk hire may be allowed in addition to the salary of the regular deputy as the board of supervisors may deem reasonable. "9. Does the statute of limitations run against the county in the collection of tax more than five years delinquent ? ' ' This question should be answered in the negative with the quali- fication however that where the state or county brings a suit in court to recover a judgment for the amount of delinquent taxes, then the statute of limitations would apply in the same manner as though the suit were brought by an individual ; but where instead of bringing such suit the treasurer or other tax collecting officer proceeds to sell property liable for the tax under a distress war- 222 ATTORNEY GENERAL'S OPINIONS rant then t^e statute of limitations does not apply. See 37 Cyc, at page 1304, and State vs. Webler, Judge, 37 N. W., 949. "10. Should interest on drainage assessments be charged in case payments are made one-third at time of filing agree- ment, one-third when half completed and one-third when im- provement has been accepted by the board, as provided in chapter 87, section 5, 34th G. A.?" In my judgment this question should be answered in the affirma- tive. Code supplement section 1389-a-12, as amended by section 5, chapter 87, acts of the thirty-fourth general assembly reads in part as follows: "And all installments of the tax shall be levied at that time, and shall bear interest at six per cent per annum from that date; provided that if the owner of any parcel of land, lot or premises against which any such levy shall have been made and certified, shall, within twenty days from the date of such assessment, promise and agree in writing filed in the office of the county auditor that in consideration of his having the right to pay his assessments in installments he will not make any objection of illegality or irregularity as to his assessment of benefits or levy of such taxes upon or against his property, but will pay said assessment, then said taxes levied against said land, lot or premises of such owner shall be payable as follows : one-third (1-3) of the amount of said assessment at the time of filing the above agreement; one-third (1-3) within ten (10) days after the engineer in charge" of said drainage improve- ments shall file a certificate in the office of the county auditor that said improvement is one-half completed, and the remain- ing one-third (1-3) within ten (10) days after said improve- ment shall have been accepted by the board of supervisors, and if said installments are not paid as above provided, the failure to pay any installment shall cause the whole sum to become due and payable at once with interest at the rate of one per cent (1%) per month from the date of filing of said agree- ment. ' ' In my judgment that portion of the language quoted which fol- lows the words "provided that if the owner of any parcel of land" has reference to the conditions which shall impose upon the tax- payer the higher interest at the rate of one per cent per month and does not operate to discharge or cancel the provision for six ATf<;>R^fE)Y GfeNERAL*S OPINIONS 223 per cent interest above quoted, but that such six per cent interest is to be payable in the event the higher rate does not, by the action of the taxpayer, become payable. COUNTY auditor's OFFICE. "1. Must all bills allowed by the board of supervisors be entered in journal of board or minute book? (Section 442.) Or can minute book simply recite 'Bills were allowed (or dis- allowed) as endorsed on each' or some reference to bills allowed?" This question should be answered in the affirmative. "2. Does section 616 apply to lands of over 10 acres in any city or town? Or only to extensions under section 615? "Would it apply to lands in an original town or to extensions made under the provisions of section 617 ? ' ' Code section 616 does not apply to lands which are included with- in the original corporate limits of a city or town but only applies where the limits have been extended after the original incorpo- ration. See Perkins vs. Burlington, 77 Iowa, 553. "3. May county auditors draw warrants for witness fees on certificate of clerk of district court before the board of supervisors passes on these certificates? Sections 4661 and 471." This interrogatory should be answered in the negative. "4. Must the auditor or clerk charge fee for taking ac- knowledgments and administering oaths, or is it optional ? ' ' The auditor and clerk being authorized by law to take acknowl- edgments and administer oaths act in their ofiicial capacity in taking the same and should collect the statutory fees therefor and account for the same. In my judgment, however, this should not be construed to authorize the clerk to make a charge for administer- ing an oath in any proceeding pending in his court, nor the auditor to make a like charge for administering an oath in any matter pending before the board of supervisors but the fee for administer- ing an oath should only be collected when a written oath is signed 224 ATTORNEY GENERAL'S OPINIONS and certified to under the seal of the officer. See Board of Com- missioners vs. Dickey, 90 N. W., 775. "5. In deducting value of real estate from value of bank or corporation stock to arrive at actual value of stock which value of real estate should be used, the value placed on same by assessor or the value at which such real estate is carried on the books of the corporation?" In arriving at the deduction to be made on account of real es- tate owned by a bank or corporation being assessed neither the value of the land as fixed by the assessor nor the value of the real estate as carried on the books of the corporation should be taken, but the provisions of section 4, chapter 63 of the acts of the thirty- fourth general assembly should be followed which provides: "In arriving at the total value of the shares of stock of such corpora- tion the amount of their capital actually invested in real estate owned by them * * * # shall be deducted from the real value of such shares. ' ' "6. Is a deputy county auditor having a material seal en- titled to charge and retain a fee for affidavits connected with the application for hunter's license?" This question should be answered in the negative. The supreme court of Nebraska in a similar case held that a county officer who had the power to take acknowledgments and who was also a notary public was required to account to his county for fees earned in taking acknowledgments even though he took same in his capacity as a notary public rather than in his official capacity. 22 N. W., 353; 36 N. W., 756. State ex rel. Frontier County vs. Kelley, 46 N. W., 714. "7. Wbat fee, if ajiy, is the county auditor required to charge for the issuing a certificate to a legally authorized liquor dealer to show his right to receive shipments of intox- icating liquors from interstate carriers? "Can the county auditor lawfully refuse to issue such cer- tificate to a legally authorized liquor dealer for any reason if such dealer tender the fee demanded?" I know of no statute that requires the county auditor to furnish such a certificate as is herein referred to. Code section 2419 con- templates the furnishing of such a certificate by the clerk and Attorney general's opinions 22S doubtless he would have the right to charge a fee therefor. Hence it follows that the auditor is under no obligation to issue such a certificate. "8. Is it legal for a county auditor to issue a warrant in vacation simply on a written order from one member of the board of supervisors, while not in session? 126 Iowa, 606." This question should be answered in the negative. Code section 471 provides: "The auditor shall not sign or issue any county warrant except upon the recorded vote or resolution of the board of supervisors authorizing the same, except for jury fees, and every such warrant shall be numbered, and the date, amount and number of the same, and the name of the person to whom issued, shall be entered in the book to be kept by him in his office for the purpose. ' ' Furthermore it has been held by our supreme court that even where the warrant is issued by an order of the court but without the vote or resolution of the board of supervisors, it is without authority. Polk County vs. Sherman, 99 Iowa, 60. "9. If not, can the board of supervisors pass a resolution authorizing the auditor to issue warrants on such order? "Would the transaction then be legal? "Has the board of supervisors the authoritj', by resolution passed during their regular session, to authorize the auditor to issue warrants in vacation for any particular class of claim against the county ? ' ' In my judgment the language of the statute above quoted con- templates that the recorded vote or resolution of the board therein referred to should designate and name the person or persons to whom the warrant or warrants covered thereby are to be issued. Hence, it follows that an order of an individual member of the board would not be sufficient authority for the auditor to issue a warrant to any person designated in such order, and hence your second question should be answered in the negative. It also fol- lows that the board of supervisors is without authority to adopt or pass what might be termed a blanket resolution authorizing the issu- ance of warrants to whomsoever might have claims of a certain class against the county for by so doing and by passing a like reso- 15 226 ATTORNEY GEilBRAL'S OPINtON^ lution for each class of claims the force anji effect of the statute could be evaded. Hence it follows that your third question should be answered in the negative. Heath vs. Albrook, 123 Iowa, 559. BXTEACTS OP OPINIONS OF ATTORNEY GENERAL PERTAINING TO CLERK'S OFFICE. "1. "What filing fee, if any, may the clerk charge for filing a foreign will ? Can he receive the transcript of probate pro- ceedings from another county or state without recording the same, and charging the recording fee ? ' ' The same fees as are collected in other estates. See chapter 14, acts of the thirty-fourth general assembly. "2. Must the auditor or clerk charge fee for takiag ac- knowledgments and administering oaths or is it optional?" The auditor and clerk being authorized by law to take acknowl- edgments and administer oaths act in their official capacity in taking the same and should collect the statutory fees therefor and account for the same. In my judgment, however, this should not be construed to authorize the clerk to make a charge for administer- ing an oath in any proceeding pending in his court, nor the auditor to make a like charge for administering an oath in any matter pending before the board of supervisors but the fee for administer- ing an oath should only be collected when a written oath is signed and certified to under the seal of the officer. See Board of Com- missioners vs. Dickey, 90 N. W., 775. "3. Should the clerk of the court retain the $3.00 fee as member of county insane commission or turn same over to county treasurer as fees of his office?" The clerk should turn over to the treasurer all fees received as member of the insane commission. See Moore vs. Mahaska County, 61 Iowa, 177. "4. Shall the clerk of the district court collect the fees pro- vided by section 296, code supplement, for naturalization or does the federal statute covering naturalization make impos- sible the collection of the fees there fitxed?" ATTORNEY GENERAL'S OPINIONS 227 Those fees were superseded by the fees fixed by the federal law, and should no longer be collected, but the one-half of fees which the U. S. law permits the clerk to retain should be accounted for the same as the other fees of his office. "5. Are the probate fees provided in section 296, para- graph 29, in lieu of all other clerk's and court's fees, or shall the clerk charge other fees also such as approving bond, record- ing will, deeds, etc. ? ' ' In my judgment the only fees the clerk would be authorized to charge in estate matters are those described in paragraph 29 of the code supplement section 296 as now amended by chapter 14, acts of the thirty-fourth general assembly, to which you refer. See also Bhea vs. Brewster, 130 Iowa, 729. "6. Your attention is called to the law on complete record. I find some clerks claim this should be made only when re- quested and paid for. In this county we make a charge for complete record in all cases involving title to real estate as it is now requested very often. This would save a large amount of labor but it appears to me that it should be made in all cases whether requested or not." In my judgment a complete record should be made ' ' as required by code section 3785 as follows: 'In cases where the title to land is involved and expressly settled or determined * * * * But in no other case need a complete entry be made except at the re- quest of the party who will pay the expense of such record." "7. Should complete record be made in foreclosure cases?" Not unless the title to the land was involved and expressly settled or determined or a request was made for such complete record. "8. Should complete record be made in all law eases where an execution was issued and satisfied by sale of real estate?" By code section 2262 the clerk is required to "file and preserve in his office all papers connected with any inquest by the commis- sioners and properly belonging to his office, with all notices, re- ports and other communications; and shall keep separate books in which to minute the proceedings of the board, and his entries there- ia shall be sufficiently full to show, with the papers filed, a com- plete record of its findings, orders and transactions. ' ' In my judg- ment this does not require the recording of any of the papers filed 228 ATTORNEY GENERAL'S OPINIONS in insanity matters. See Kule 8, page 322, code supplement, re- quiring a complete record of all proceedings, orders, reports, in- ventories, appraisements and all other matters and proceedings therein. "9. On an indictment being returned into court by the grand jury, should the clerk issue warrant immediately or await the request of county attorney ? In the past it has been ruled here, by the judge, both ways." No bench warrant should issue on an indictment until the court has made the order provided for by code section 5304, and it only becomes the duty of the clerk to issue such warrant then on the application of the county attorney. See code section 5305. ' ' 10. What fee should the clerk tax in matters of guardian- ship?" Substantially the same fees as are provided with reference to other estates. "11. Should costs of probate matters be collected in ad- vance ? ' ' It is impracticable to collect in advance all fees in probate mat- ters although it is usual, as I am advised, to collect the minimum of $3.00 fee, or if the value of the estate is definitely known at the time of the appointment of the administrator or guardian the increased fee provided for in chapter 14, acts of the thirty-fourth general assembly. "12. Why does the treasurer of state's form of report of beneficiaries and real property of administrators or executors fail to contain any provisions for the report of personal prop- erty when same is subject to collateral inheritance tax ? ' ' For the reason that section 3310 of the code requires the filing of such inventory and the filing of a duplicate containing the same matter would be unnecessary. "13. Is the clerk of courts entitled to act as member of insane commission and also as clerk of same and charge $3.00 for each and retain the $3.00 as clerk as his private compen- sation ? ' ' This question should be answered in the negative. The clerk must account for aJl fees received in his official capacity. ATTORNEY GENERAL'S OPINIONS 229 "14. Under section 296, par. 14, the clerk is authorized to charge fifty cents for filing and docketing transcript of judgment from another county or from a justice of the peace. In addition to this can he charge fifty cents for taxing costs, as per par. 10, where no new costs are taxed except the fifty cents filing fee?" As the question is propounded I am of the opinion that the same should be answered in the negative, but as I understand the practice throughout the state it is for the clerk to enter upon his docket an itemized statement of the costs due the various parties, witnesses, officers, etc., in substantially the same manner as such costs axe taxed in a case originally brought in his court, and where such a record" of the costs is extended by the clerk I am of the opinion that he is entitled to charge the additional fee of fifty cents for taxing the costs in addition to the transcript fee. "15. Are the deputy clerks of the district court and other deputy county officers required to give bond ? ' ' This question should be answered in the affirmative. Code sec- tion 1182, as amended by chapter 113, acts of the thirty-fifth gen- eral assembly, exempts from giving bonds the governor, lieutenant governor, members of the general assembly, judges of courts, town- ship trustees, aldermen and councilmen of cities and towns; and the following section requires all other civil officers to give bonds except as otherwise specially provided. Code section 1186 pro- vides, "deputies of state, county, city and town officers who are required to give bond shall give bond in such amounts as may be fixed by the governor, board of supervisors or the council as the case may be." EXTRACTS OF OPINIONS OF ATTORNEY GENERAL PERTAINING TO SUPERVISORS. "1. The law provides for printing board proceedings at 33 1-3 cents per ten lines brevier type. Can a greater price be paid for tabulated matter which is part of the board proceedings ? ' ' This question should be answered in the affirmative. See Brown (6 Co. vs. Lucas County, 94 Iowa, 70, in which case the supreme 230 ATTORNEY GENERAL'S OPINIONS court say that it may be proven on the trial what amount of tabular work is equivalent to brevier and that compensation should be made accordingly. "2. May the board of supervisors employ an attorney as their legal adviser, other than as assistant county attorney?" This question should be answered in the affirmative. See following : Seaton vs. Polk County, 59 Iowa, 626 ; Jordan & McCallum vs. Osceola County, 59 Iowa, 388 ; Fetlock vs. Louisa County, 46 Iowa, 138. "3. May the board of supervisors employ a secretary or employe to look after their official business?" This question should be answered in the affirmative. See: Call vs. Hamilton County, 62 Iowa, 448. "4. May the board employ collectors for expense of in- mates of state institutions? See code section 2716 for pro- vision as to the college for the blind, section 2726 as to school for the deaf, section 2697 for institution for feeble minded children and section 2297 for insane." This question should be answered in the affirmative. "5. Must an officer whose fees amount to a fixed salary, (the excess being turned into the county treasury) charge and collect all fees, even though statute reads 'may' 'shall be en- titled,' etc.? Sections 296, 478, 490, 511, 498, 1291." This question should be answered in the affirmative. ' ' 6. When an official charges and receives a fee where none were provided by law, is he to be charged with such fee or not?" This interrogatory should be answered in the affirmative. See Board of Commissioners of Hennepin Co. vs. Dickey, 90 N. "W., 775. "7. Do all charges for compensation (except annual sal- aries) have to be billed in and verified as at section 1300 of the code ? Suppose special help is employed and paid by the month, must their time be billed and verified before they are paid?" ATTORNEY GENERAL'S OPINIONS 231 This question should be answered in the affirmative. "8. Where an officer's fees are in excess of his salary, must fees due from the county be charged and collected? As sher- iff and clerk's criminal fees, or may they be waived?" In my judgment fees collectible from the county after the officer entitled to the same has received an amount in the aggregate equal to his salary might be waived and left in the county treasury as it would be a mere matter of bookkeeping to require it to be paid over to the officer and then again by him returned to the county treasurer. Some uniform system with reference to this matter should be adopted in order to avoid confusion however. "9. Under section 592 can an assessor draw more than $2.50 per calendar day, in ease he works more than eight hours ia one day? In other words, does 'day of eight hours' mean $2.50 for eight hours' time or that eight hours is the minimum time in a calendar day?" The answer to this question will depend upon the form of the order of the board of supervisors fixing the compensation of the assessor. The order might fix it at so much per calendar day but in no event to exceed $2.50 for each eight hours of time which the board might fix as being necessary in which to complete the assess- ment. And the order might be so worded as to prevent the assessor from putting in more than eight hours in any one calendar day. But imless so worded, in my judgment the assessor would be en- titled to charge by the hour. It will be observed that in townships having a population of 30,000 or over a city entirely within the limits or a city acting under special charter, the compensation of the assessor is not fixed by the board but by statute at $4.00 per day. See chapter 41, acts of the thirty-third general assembly. "10. Have the board of supervisors any authority to select more papers than authorized by section 441 and pay some or all of them less than the price there stipulated, provided the total compensation paid does not exceed the compensation al- lowed by that section. In case they do actually appoint more papers than in that section allowed, are any of those appointed properly appointed and how is it to be determined?" 232 ATTORNEY GENERAL'S OPINIONS The first part of this question should be answered in the affirma- tive. See Sperry vs. Eretschner, 65 Iowa, 525. "11. Where the law provides as in section 496 of the code for the appointment of a deputy recorder and for allowance of extra help when necessary, can the board authorize the em- ployment of extra help when necessary, and fix the compensa- tion of any extra clerk at an amount greater than the law provides for a deputy ? ' ' In my judgment there is no authority for the employment of extra help in the county recorder's office except in cases where there is no regular deputy, and where there is no regular deputy and an assistant is temporarily employed there is no limit upon the amount which the board of supervisors may allow except that they are authorized to make a reasonable allowance therefor, and in my judgment such reasonable allowance for a short period of time might exceed the rate which would be allowed a regular deputy. ' ' 12. Should a county officer file a new bond for each term of office, or will his old bond continue in case he is re-elected?" A new bond should be required in each instance. The failure to qualify by the giving of a new bond within the time required by law would render the office vacant. "13. May the boards of supervisors allow bills to banks for collecting tax for county treasurer, as extra clerk hire to the treasurer ? ' ' In my judgment this question should be answered in the nega- tive. The law contemplates that the work of the treasurer's office should be performed in that office and does not contemplate the payment of extra compensation or clerk hire except in the follow- ing cases: Where no regular deputy has been appointed but on account of the pressure of business in his office the treasurer is compelled tem- porarily to employ an assistant; And in counties of 30,000 population or over such clerk hire may be allowed in addition to the salary of the regular deputy as the board of supervisors may deem reasonable. ATTORNEY GENERAL'S OPINIONS 233 EXTEACTS OF OPINIONS OF ATTORNEY GENERAL PERTAINING TO THE RECORDER'S OFFICE. "1. The acts of the thirty-fifth general assembly relating to concealed and dangerous weapons states that recorder shall 'make a complete record.' Shall the recorder charge for re- cording the same ? If so, who shall pay the fee ? The report of permit to carry is filed by a public officer and the report of sale by a merchant. In neither case are those parties required by law to charge the recording fee to the permittee or pur- chaser. Are they permitted to charge permittee or -purchaser if the fee is required by recorder?" This department has held that the recorder is entitled to and required to charge for recording permits to sell or carry concealed weapons the same fee allowed for the recording of other instru- ments, which is fixed by code section 498 at fifty cents for the first four hundred words and ten cents for each additional hundred words or fraction thereof, and that these fees should be paid by the permit holder and collected by the officer issuing the permit at the time same is issued. EXTRACTS OF OPINIONS OF ATTORNEY GENERAL PERTAINING TO SHERIFF'S OFFICE. "1. The law says the sheriff must pay his first deputy. Where the sheriff has no deputy but at times, when busy, has a deputy called 'riding bailiff' to serve notices, is the county liable for the pay of such deputy or bailiff?" In my judgment this question should be answered in the nega- tive. Code supplement section 510-b makes it mandatory upon the sheriff to appoint at least one deputy and to pay such deputy out of the compensation allowed the sheriff under the preceding section. It is only other deputies who may be appointed that are required to be paid by the county. "2. Should the sheriff charge the county for his time in taking patients to state institutions, at forty cents an hour?" This question should be answered in the affirmative. The fee for this service should be taxed the same as other items of cost and if uncollected when the officer retires it belongs to the county under the provisions of code section 510-a. This item, however, should be accounted for the same as other fees and the sheriff is not en- titled to claim same in addition to his salary. 234 ATTORNEY GENERAL'S OPINIONS John L. Bleakley, April 30, 1914. Auditor of State. Dear Sir: Eeplying to the inquiries contained in the letter of Mr. James Parker to you of date April 21st will say that he calls attention to the case of Fitzpatrick vs. Fowler, 138 N. W., 392, in which our supreme court held that drainage assessments past due do not draw the one per cent per month penalty, the same as other taxes, and he then inquires whether or not the rule announced in this decision would apply to street improvements made under code section 825 and to assessments made by the executive council under code supplement section 902. In my judgment this question should be answered in the nega- tive, for in each of those sections it is provided that the same in- terest and penalty shall be exacted as upon other delinquent taxes. In his second question he calls attention to code supplement section 1407 which provides as compensation for the delinquent tax collector a five per cent commission to be collected from the delinquent, and also to the provision added to said section by chapter 89 of the acts of the thirty-third general assembly which provides that the board of supervisors may, in their discretion, authorize the appointment by the treasurer or one or more col- lectors to assist in the collection of such delinquent personal property tax as the board may designate, and may pay such col- lector or collectors as full compensation for all services rendered and expenses incurred a sum not to exceed ten per cent of the amount collected, and he then propounds the following inquiry: "Can the two sections be construed so as to authorize the r collector to get 15%, — 10% from the county and 5% from the delinquent?" In my judgment this question should be answered in the nega- tive. The section as it originally stood was applicable to all delinquent taxes and the five per cent was collected from the delinquent, while the later provision applies only to such delin- quent personal property tax as the board may designate, and the ten per centum is allowed as full compensation and also to cover expense. The purpose of this later provision was doubtless, by al- lowing a higher percentage, to enable the county to collect items of personal property tax which were small in amount and difficult of ATTORNEY GENERAL'S OPINIONS 235 collection, and which could not, in the ordinary course of business, be collected by ordinary effort. Yours truly, C. A. Bobbins, Assistant Attorney General. County Auditor, June 27, 1907. Marion, Iowa. Deae Sie: Replying to yours of the 24th instant relating to the delay in your abstracts of assessment, will say that after exam- ination of the law relating to this matter, I find that someone in your county is now subject to a penalty of $500 for failure to com- plete their work and file their report within the time specified by law. To enable you to locate the parties that are liable, I beg leave to call your attention to the following sections of the code with relation to this matter: Section 1366 provides that the assessors shall complete their work and return their books to the local board on or before the first Monday in April. Section 1370 provides that the local board shall then complete their work on or before the first day of May. Section 1366 provides that the assessors shall make any changes in his books ordered by the local board and shall return his books to the county auditor on or before May 10th. Section 1377 provides that the county board of review shall com- plete their work and that the county auditor shall make up his abstracts of assessment and forward same to the auditor of state on or before the third Monday in June, which is now passed. Section 1378 provides that the auditor of state shall make up his abstracts of assessment and lay same before the state board of review on or before the second Monday in July, which is near at hand. Section 1367 provides that a penalty for failure on the part of any officer or board to complete their work and file their reports within the time specified above, shall forfeit and pay the sum of $500. By J. F. Wall, B. F. Caeroll, Chief Clerk Revenue Dept. Auditor of State. 23 6 ATTORNEY GENERAL'S OPINIONS "Is the county, under section 2406, code supplement, or any other section, liable to the county attorney for fees in successfully prosecuting injunction suits for nuisances?" This question should be answered in the affirmative where the costs are not collectible from the defendant. See Newman <& Blake vs. Des Moines County, 85 Iowa, 89, holding that where the fee is taxed as part of the costs the county is liable therefor; and also, Farr vs. Seward, 82 Iowa, 221, wherein it is held that the county attorney where he prosecutes the injunction suit is entitled to the fee in addition to his salary. "When the clerk of courts goes out of office, is he entitled to take his fee and cash book with him, or should he leave it in the office as a permanent record ? ' ' In my judgment this question should be answered in the affirma- tive. Any book which the officer keeps in his official capacity whether required by the letter of the statute or not should, in my judgment, remain as part of the records of the office. "What is the meaning of the word session, as used in sec- tion 669 of the code, or can the council meet nine hours in one day and call it three sessions of three hours each?' In view of the fact that it was the common practice throughout the state to hold these sessions of the board of equalization in the evening in my judgment the statute only contemplated a single session in any one day and that that session should be three hours in length in order to constitute a session for which $1.00 might be paid. This statute, however, has been changed as to first class cities by chapter 56 of the thirty-fifth general assembly, which will hereafter govern as to such cities the material portion of which reads as follows: ' ' Except when acting as member of the board of review, for which service they shall receive not more than two dollars a day for each day when acting as a board of review, to be paid out of the county treasury." Yours truly, C. A. ROBBINS, Assistant Attorney GeTieral. ATTORNEY GENERAL'S OPINIONS 237 "Is the county, under section 2406, code supplement, or any other section, liable to the county attorney for fees in successfully prosecuting injunction suits for nuisances?" This question should be answered in the affirmative where the costs are not collectible from the defendant. See Newman & Blake vs. Des Moines County, 85 Iowa, 89, holding that where the fee is taxed as part of the costs the county is liable therefor; and also, Farr vs. Seward, 82 Iowa, 221, wherein it is held that the county attorney where he prosecutes the injunction suit is entitled to the fee in addition to his salary. Tour fifth question is: "When the clerk of courts goes out of office, is he entitled to take his fee and cash book with him, or should he leave it in the office as a permanent record ? ' ' In my judgment this question should be answered in the affirma- tive. Any book which the officer keeps in his official capacity whether required by the letter of the statute or not should, in my judgment, remain as part of the records of the office. "Can the salary of the county attorney be changed by the taking effect of a census during his term of office?" In my judgment the salary of the county attorney may not be changed by the board of supervisors during his term of office. This, however, would not prevent a change by reason of a change in population being automatically made by law rather than by the board of supervisors. However, the change in population would not operate to change any extra allowance that may have been allowed by the board of supervisors for the current term. "When does the statute of limitations begin to run in case of fees received by an official — when they are received or when they should have been turned into the county treasury?" WiU say that the statute of limitations begins to run against an official from the time when he is by law required to account for the funds rather than from the time when he receives the same. "Are the board of supervisors entitled to mileage to and from home (in case they go home) each day — suppose they meet January 2, 3, 4 and 5 adjourning from day to day, — or only one mileage for the four days?" 238 ATTORNEY GENERAL'S OPINIONS With reference to this question will say that in my judgment the board of supervisors would not be entitled to mileage to and from their homes on each of the days when they are in continuous session, but if there is an adjournment leaving intervening days when there is no session, mileage should be allowed for an addi- tional trip for each such session. N. D. Shinn, County Attorney, June 14, 1913. Knoxville, Iowa. Deae Sie: You requested my opinion over the telephone this morning as to the mileage that should be allowed a constable where he serves several warrants against different persons on the same trip. This question has not been directly determined by our supreme court but the following cases may be of assistance to you in deter- mining the matter to your own satisfaction : Bedfield vs. Shelby County, 64 Iowa, 11 ; Barnes vs. Marion County, 54 Iowa, 482 ; Bringolf vs. Polk County, 41 Iowa, 554. In Bedfield vs. Shelby County it was held that where a sheriff made but one trip in serving seven subpoenas in that many differ- ent cases on one witness he was entitled to mileage for only one trip. In Barnes vs. Marion County a sheriff conveyed a prisoner and two witnesses from the penitentiary to the place of trial on a single trip and the court held that he was entitled to mileage the same as he would be for one person only. And in Bringolf vs. Polk County several prisoners were produced by the sheriff as wit- nesses under the -same order, and the court held that he was en- titled to a single allowance of mileage. These cases, of course, are not directly in point on the question presented by you but they show the trend of the courts along similar lines. Cases of other jurisdictions that bear more closely upon the question presented by you are as follows: Grundysen vs. Polk Co., 57 Minn., 212 ; Logan Co. vs. Doan, 51 N. W. (Neb.), 598; The matter of Hempstead, 36 N. Y., Ap. Div., 321, or 160N. Y., 685 J Jordan vs. Coates, 7 New Brunswick, 107. ATTORNEY GENERAL'S OPINIONS 239 The case of Grundy sen vs. Polk County, supra, (found in 58 N. W., 864) you ■will find directly in point in my judgment, and in that case they hold that where a constable has different writs for different persons and in independent proceedings and serves them all at the same time that he is entitled to mileage the same as if he was serving but the one writ. Trusting that the authorities cited may be of service to you, I am, Yours truly, John Fletcher, Assistant Attorney General. October 17, 1913. Geo. a. Wilson, Asst. County Attorney, Des Moines, Iowa. Dear Sir : Replying to yours of the 15th instant with reference to the construction of chapter 62, acts of the thirty -fifth general assembly will say that in my judgment the proper interpretation of section 2 of this chapter would not permit the county to collect the $200.00 license fee more than once from the same licensee dur- ing the annual period covered by the license even though during the year the licensee's place of business may be changed from one town or locality to another town or locality within the same county. The statute is not entirely clear but the fact that it is dealing with temporary and transient merchants, and a transient merchant, as the name implies, is one who moves about from place to place, and the further fact that by section 7 of the act one who conducts the particular business in a particular city or town for a period of one year is to be held a permanent merchant would seem to strengthen this view. Yours truly, C. A. Bobbins, Assistant Attorney General. October 11, 1913. Leo D. Thoma, County Attorney, Fairfield, Iowa. Dear Sir : Your letter of August 28th addressed to the attorney general has just been referred to me for reply. 240 ATTORNEY GENERAL'S OPINIONS You call attention to the provisions of chapter 31, acts of the thirty-fifth general assembly, and inquire: First, "Does that act in your opinion justify a petition on the part of a widowed mother to the court for relief there provided for without there first having been complaint filed under the juvenile court act charging such child with being a dependent and neglected child?" In my judgment this inquiry should be answered in the af- firmative. You further inquire: "Does the act justify the court upon petition to grant a pension to a widowed mother who has been receiving support from the county and whose children are not otherwise de- pendent and neglected within any meaning of the terms?" In my judgment this inquiry should be answered in the affirma- tive. The chapter referred to was without doubt intended to con- fer the benefits upon persons entitled thereto without requiring them to be first charged as criminals or delinquents. It is unfor- tunate, however, that the chapter was by amendment attached to the juvenile court law in such a way as to leave its meaning doubt- ful. While this department has construed the act as above in- dicated, it is only fair to say to you that in some of the district courts of the state the judges have held otherwise. Yours very truly, C. A. ROBBINS, Assistant Attorney General. J. M. ScuEE, County Treasurer, June 25, 1913. Creston. Iowa. Dbae Sie : Yours of the 24th instant addressed to the attorney general has been referred to me for reply. You call attention to the situation with reference to the delin- quent taxes against the "Western Union Telegraph Company and to their position that all taxes more than five years old are bai*red by the statute of limitations, and you inquire : "If I offer to write them the regular ofBcial tax receipt for the five years for which they make tender of payment, but refuse to sign the blanket receipt covering all back taxes, am I within my rights?" ATTORNEY GENERAL'S OPINIONS 241 In my judgment this question should be answered in the aiSrma- tive. You further inquire: ' ' Is their position good that all personal tax over five years old is canceled by limitation ? ' ' In my judgment this question should be answered in the nega- tive. I recently had occasion to investigate this question in connection with a similar case which was then pending in Page county, and reached the conclusion that where the county treasurer brings suit, he goes into court in the same manner as any other litigant and that the statute of limitations would run against him and that the taxes for the several years could not be treated as separate items of a running account but that the taxes for each year are a separate cause of action, and that the statute of limitations would be com- plete as to each item within five years from the date the same be- came delinquent. However, I am of the opinion that if there is property of the delinquent company which may be seized by the county treasurer under an ordinary distress warrant, he should proceed in that manner to collect all delinquent taxes, and that by so proceeding, he would be able to avoid the plea of the statute. of limitations as the statute of limitations only applies to the state or a subdivision thereof when it brings an action in court the same as an ordinary litigant. Tours truly, C. A. EOBBINS, Assistant Attorney General. Vinton, Iowa, March 18, 1913. Geoege Cosson, Attorney General, Des Moines, Iowa. Dear Sie: In the assessment for 1912 an error was made in 'assessing the shares of stock of the national bank at this place, by deducting from the value of said stock $36,250.00 in U. S. bonds. This error was discovered after the assessment had been run on the tax books and in the hands of the county treasurer, to-wit: March 12, 1913. I immediately under section 1385b Sup. 1907, 16 242 ATTORNEY GENERAL'S OPINIONS notified each stockholder by registered letter of such error and that I would correct the same by adding the increased amount to their assessment on the tax books and gave full information as to amount of increase and further notified them that on or before March 24, 1913, they might appear before me at my office and show cause, if any there be, why such correction or assessment should not be made. Since mailing the notices I have learned from the county attor- ney that the right of the county auditor to make this correction or assessment is questioned; the point being this was not omitted property, and claiming that after being assessed by the assessor and passed by the board of review, he cannot change it. The opinion appears to be based largely on a decision under the old section 1385, which, in my opinion, was corrected by the 28th gen- eral assembly, constituting the present 1385b. The county attorney is also attorney for the bank in interest, and while I have every reason to believe he will endeavor to give an unbiased opinion, it places him in a delicate position and I will be very grateful to you for an opinion on the point involved. It is very important that I have the proper advice at this time, as I wish to do my full duty in the matter and at the same time do not wish to overstep my authority. Very respectfully, Alexander Eunyon, County Auditor. Alexander Eunyon, County Auditor, March 20, 1913. Vinton, Iowa. Dear Sir : Yours of the 18th instant addressed to the attorney general has been referred to me for reply. In my judgment you are acting within the law in making the corrected assessment to which you refer. The case upon which the other side undoubtedly relied is the case of Judy vs. the National State Bank, 133 Iowa, 252 ; but in that case the tax failed becausp of the failure of the auditor to follow the law and in effect it amounted to no assessment. The supreme court on page 265 says : "We doubt very much whether there was any assessment at all in this case. None of the parties whose duty it was to make it were witnesses in the case, or if they were, they did not testify to having made it." ATTORNEY GENERAL'S OPINIONS 243 In your case I assume that the assessment was properly made by the assessor except that the deduction made on account of govern- ment bonds owned by the bank was erroneous. Since under the provisions of chapter 63, acts of the thirty-fourth general assembly the assessment is made to the stockholder and not to the bank and the stockholder not being the owner of any government bonds is not entitled to any deduction, it seems to me that section 1385-b, supplement to the code, 1907, would authorize you to make the correction by cancelling the deduction and assessing the property the same as the assessor would have assessed it had there been no deduction. At any rate, this would be the position for you to take until some showing is made by the stockholders as to why this correction should not be made. It is true that the property was not omitted, nor is there any change made in the real valuation of the same by the correction which you propose to make, but simply to disallow a deduction which should not have been allowed. Yours truly, C. A. Bobbins, Assistant Attorney General. October 3, 1913. J. C. Robinson, County Attorney, Mason City, Iowa. Deae Sie : Your letter of the 29th ultimo addressed to the at- torney general has been referred to me for reply. In this letter you state : "On August 29, 1913, I wrote you a letter about the legality of loose leaf record system, also recording of revocations for carrying concealed weapons in behalf of the county recorder." and request the view of this department on these matters. A thorough search has been made and no trace found of your letter of August 29th and your last letter is so brief that I am not certain just what you desire. While there may be some practical objections to the loose-leaf record system, yet I know of no legal objection to such a system. With reference to your other question will say that this depart- ment has heretofore held that it was the duty of the recorder to record revocations of permits to carry concealed weapons, that the 244 ATTORNEY GENERAL'S OPINIONS fee should be paid by the person filing the revocation, and that the recorder was entitled to charge the same fee as for recording other instruments. If this does not cover the matters about which you intended to inquire, kindly advise and oblige. Yours very truly, C. A. Bobbins, Assistant Attorney General. September 4, 1913. T. Ross & Son, Shenandoah, Iowa. GrENTLBMEN: Replying to yours of the 27th ultimo addressed to the attorney general will say that the concealed weapon law requires a report of sales to be made to the county recorder within twenty-four hours and also required the recorder to keep a record of such reports, and while the law is silent with reference to the payment of any fee for such record, yet under the general law, code section 498, the recorder is entitled to a recording fee of 50c for the first four hundred words and 10c for each additional hun- dred words. Your objection to this law should be presented to the members of the legislature. Yours truly, C. A. ROBBINS, Assistant Attorney General. February 3, 1914. J. J. Rainbow, County Auditor, Waterloo, Iowa. Dear Sir : Your letter of the 19th ultimo, addressed to the at- torney general, has been referred to me for reply. You call attention to the provisions of code supplement section 496 fixing the salary of the deputy county recorder, and then pro- pound the following question, "Has the board of supervisors the power to allow $1,200 per year to the deputy recorder." The section to which you refer after providing for the appoint- ment of the deputy further provides, "The deputy in the absence ATTORNEY GENERAL'S OPINIONS 245 of disability of his principal may perform all the duties of the principal pertaining to his office, and shall receive a salary not exceeding $900 a year, to he fix-ed hij the board of supervisors." It would seem to me that in view of this language this statute would have to be twisted into something worse than a "Rainbow" curve before it could be made to furnish the board such power. Hence, your question must be answered in the negative. Yours truly, C. A. ROBBIHS, Assistant Attorney General. February 6, 1913. Me. G. H. Richardson, Belmond, Iowa. Dear Sir: Yours of the 5th instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is whether or not in determining the value of shares of stock in national banks the borrowed capital that it may have on hand should be taken into account by the assessor, and if so, whether or not deductions may be made on ac- count of bills payable. Under chapter 63, acts of the thirty-fourth general assembly, the bank stock is to be assessed to the individual stockholder, and as the bank and not the stockholder has the money -borrowed, it should not be added to the capital of the bank in order to deter- mine the value of the share of stock. In other words, the assessor has nothing to do with the amount of money which the bank may have borrowed nor the amount which it may owe except as these amounts may aid in determining the actual value of the shares of stock. The amount of money borrowed should not be added arbitrarily to the amount of capital, surplus and undivided earn- ings nor the bills payable deducted therefrom; but the assessor would have the right to take into account these matters in arriving at the real value of the shares of stock. The true rule under the new law is to find the value of the share of stock held by each stockholder, which share of stock in reality only represents a share in the capital stock, surplus and divided earnings; then a deduction should be made not for the value of the real estate owned by the bank, but for the amount of capital 246 ATTORNEY GENERAL'S OPINIONS actually invested therein and a proportionate share of this deduc- tion on account of real estate should be taken from each share of stock, or rather from the value of the same, as found to be before the deduction v?as made. Your enclosures are hereby returned. Yours very truly, C. A. EOBBms, Assistant Attorney General. August 5, 1913. S. H. Reillt, Clerk, Marshalltown, Iowa. Dear Sie: Yours of the 4th instant addressed to the attorney general has been referred to me for reply. Your question briefly stated is on what docket should proceed- ings under the widows' pension act be docketed. No special docket is provided and in the absence of a better docket specially provided therefor I think it would be all right to docket in the juvenile court docket inasmuch as this law is an amendment to section 254-a20 of the code supplement, which is a part of the juvenile court law. If you are liable to have many applications under the law I think you would be justified in procuring a docket specially designed for use in such eases only. Yours truly, C. A. ROBBINS, Assistant Attorney General. March 27, 1913. Hugh Mobsman, County Attorney, Vinton, Iowa. Dear Sir : Your letter of March 21st addressed to the attorney general has been referred to me for reply. I note your construction of code supplement section 1385-b, and after having read the case of Mead vs. Story County, to which you refer, I concur with your view that the auditor may not be per- mitted to go back beyond the current year in any correction of assessments which he may undertake to make. However, in my ATTORNEY GENERAL'S OPINIONS 247 judgment, if the assessment for the current years shows the deduc- tion of government bonds from the value of the bank stock this deduction might be cancelled by the auditor and the assessment made on the same basis as the assessor should have made it. This view is strengthened by the fact that section 1385-b provides for notice and also for appeal which was not provided for in the orig- inal section, 1385. This latter question is a close one and one that should be tested out in the courts. Yours truly, C. A. R033INS, Assistant Attorney General. March 21, 1913. Dr. C. p. Kellogg, Coroner, Clinton, Iowa. Dear Sir: Your letter of the 18th instant addressed to the attorney general has been referred to me for reply. Your first question stated by you is as follows: "The county attorney has now instructed the board that all fees due in eases of inquests as coroner's views must first be charged up and filed with as against the estate of the de- ceased and if not collected then, may be presented to the county. Now this seems an absurdity for ten or fifteen wit- nesses to file bills of 60 cents each against an estate or for each person rendering services to be obliged to go to all that extra trouble. I surmise a coroner would have some difficulty in securing vsdtnesses, jurors or any other services if this is correct, and I venture the assertion that in no other county in the state does this prevail." While it would seem as you say absurd to require each claimant to present his claim to the administrator of the estate before he would be entitled to recover from the county, and it would be much simpler to have the county pay all the expenses in the first instance and then if the estate were responsible have the county recover from the estate all the fees incurred on account of the in- quest, yet the statute fixing the fees for the coroner and others 248 ATTORNEY GENERAL'S OPINIONS entitled to fees on account of an inquest, as found in code sections 530 and 581, provides as follows : ' ' Sec. 530. Witnesses and jurors shall receive the same fees as witnesses and jurors are paid in actions before justices of the peace." "Sec. 531. The coroner is entitled to charge and receive the following fees: "1. For a view of each body and taking and returning an inquest on the same, five dollars; "2. For a view of each body and examination without in- quest, three dollars; "3. For issuing subpoena, warrant, or order for a jury, twenty-five cents; "4. For each mile traveled to and returning from an ex- amination or ino.uest, five cents. "5. Which fees shall be paid out of the county treasury when they cannot be obtcdned from estate of deceased. "6. For all other services, the same fees as are allowed sheriffs in similar cases, to be paid in like manner. ' ' It will readily be admitted that there might be many instances where it could be determined without filing the claim against the estate that the fees could not be obtained from such estate, yet there might be other instances where the only way of determining whether or not the fee might be obtained from the estate would be to file the claim; hence it appears that the statute would seem to sustain the view taken by the county attorney that the claim should first be filed with the estate, if an estate exists and is being administered upon. Your second question as stated by you is: ' ' The attorney also instructs that the coroner must not hold inquests upon persons killed as found dead unless the death was felonious. Now there are many deaths that the only pos- sible way to determine if it be felonious is to call witnesses and perhaps resort to an autopsy. Again many cases of acci- dent are due to criminal negligence of some person. Am I as coroner to be the sole judge of such cases? Then there are cases where the exact cause can only be determined by ques- tioning witnesses, and I cannot force people to talk if they don't want to, unless my court is in session. J thiii: there should be a uniform course of procedure, and I &lso t^ink if ATTORNEY GENERAL'S OPINIONS 249 our county attorney is right, there should be change made in this law; for if this rule holds, most coroners would feel like tendering their resignations. I would feel under obligations if you would give me your opinion upon this matter." The statute governing this question is code section 515, which provides : "The coroner shall hold an inquest on the dead bodies of such persons only as are supposed to have died by unlawful means and in such other cases as are required by law. When he has notice of the dead body of a person supposed to have died by unlawful means found or being in his county, he is required to issue his warrant to a constable of his county re- quiring him to summon forthwith three electors of the county to appear before him at the time and place named in the warrant. ' ' While this statute is not very clear, I take it that the word "supposed," as used in the latter part of this section should be construed to mean that the person notifying the coroner supposed the deceased to have died by unlawful means. In other cases where no notice is received by the coroner as to whether the cause of death was lawful or unlawful, then ia my judgment the word "supposed," as used in the first part of this section, is to be ap- plied to the coroner and if he supposes the deceased to have died by unlawful means, he is to hold an inquest, otherwise, not. With reference to the matter stated in the postscript of your letter, which reads as follows: "Under the ruling cited I will have to pay out my good money for mileage and get my pay as I can. And again I am told that no matter if an inquest takes a week's time I am entitled to only the fee of five dollars. Sometime ago a body was found in a remote part of this county where I was obliged to hire railroad section hands with a hand-car to reach and bring in the body. Our astute attorney declares I bad no authority to hire these men nor the county to pay the bill. Should I have buried the body where found, or bring it in on my back? In one case that I had at Lost Nation my actual expenses exceeded my fees just two dollars and fifty cents. Now what can a poor coroner do? I am serving my seventh term and up to this time all has been serene save at times 256 ATTORNEY GENERAL'S OPINIONS when " business "( ?) was slack and having passed my 70th year I don't feel able to walk and carry in my "game" and not being a bloated bond holder, don't feel like paying the comity for the privilege of holding an office (and, I am a Democrat at that). Can't you see in what an appalling con- dition I find myself and summer still so far away, and William Jennings Bryan too awfully busy to help me any ? ' ' will say that in view of the provision of section 527 of our code which provides: "The coroner, except as otherwise provided by law, shall cause the body of the deceased person which he is called to view to be delivered to his friends, if any there be, but if not, he shall cause him to be decently buried, and the expense to be paid from any property found with the body, or, if there be none, from the county treasury, by certifying an account of the expenses ; which, being presented to the board of super- visors, shall be allowed by them, if deemed reasonable, and paid as other claims on the county." any reasonable charge by the section men or others transporting the body of the deceased by your direction should be recovered from the county. Certainly you would not be required to bury the body where found as the statute requires the body to be "decently buried" and the place where found might not have been a decent place for burial; and in view of your advanced age of seventy years, you would undoubtedly not be required to bring the body in on your back whether business was rushing or slack. After receiving your letter yesterday I spent a very pleasant half hour listening to your friend William Jennings Bryan, and I was tempted to pass your letter to him to see if he could suggest any relief for you, but he was too busy. Probably by the next session of the general assembly the legislature will be democratic and you will be able, by presenting your grievances to that body, to obtain full and ample relief along the lines suggested. Yours truly, C. A. EOBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 251 J. M. Kneeland, March 12, 1914. Chariton, Iowa. Deae Sm: Replying to yours of recent date addressed to the attorney general will say that this department has never given out, so far as I am able to find, an opinion to the effect that special assessments levied against real estate for street or other improve- ments, the cost of which may be assessed to the property, should be confined to 25% of the value of the naked lot, and'in my judg- ment in arriving at the benefits derived from street improvements the buildings or other improvements upon the property may and should be taken into consideration. Yours truly, C. A. ROBBINS, Assistant Attorney General. Feed Jensen, County Attorney, January 8, 1913. Spencer, Iowa. Dear Sie: Your letter of the 6th instant addressed to the at- torney general has been referred to me for reply. Your question as stated by you is: "Can the board of supervisors under section 1, of chapter 89, of the acts of the thirty-third general assembly uppoint the deputy treasurer as collector of delinquent taxes?" This question should be answered in the negative. As suggested by you the ofBce of delinquent tax collector would be a county office and one holding such ofBce would be ineligible to the office of deputy county treasurer under the provision of code section 491. Furthermore, you will observe that the act of the thirty-third gen- eral assembly, to which you refer, does not authorize the board of supervisors to appoint a delinquent tax collector but empowers the board of supervisors to authorize such appointment by the treasurer. 'In my judgment the board of supervisors would have no voice in the selection of such delinquent tax collector. The only thing for them to pass upon is whether or not one is desirable and if so they should authorize the treasurer to appoint, otherwise not ; and it would be for the treasurer to make the selection. Yours truly, C. A. Bobbins, Assistant Attorney General, 252 ATT0RN1EY GENERAL'S OPINIONS January 8, 1913. Fred Jensen, County Attorney, Spencer, Iowa. Dear Sir : — ^Your letter of the Gth. instant addressed to the attor- ney general has been referred \o me for reply. Your question is, "Whether or not under section 1, of chapter 89, of the laws of the thirty-third general assembly, the board of supervisors can appoint the county attorney as collector of delin- quent taxes." In my judgment this question should be answered in the nega- tive. It is certainly against the public policy of the law to appoint a person to an office and allow him compensation when it is already a part of his duty under another office to perform the service or any part of the service required of the new officer. Under chapter 17 of the acts of the thirty- third general assembly prescribing the duties of the county attorney it is made his duty to recover debts, revenues, moneys, fees, penalties and forfeitures accruing to the state or his county and the term "revenues" would certainly be broad enough to cover delinquent taxes. Yours very truly, C. A. ROBBINS, Assistant Attorney General. October 17, 1913. "W. H. Hurley, County Attorney, Wapello, Iowa. Dear Sir: Replying to yours of the 27th ultimo, addressed to the attorney general, will say that I concur with you in your view expressed therein that under subdivision 3 of section 1266 of the code the office of a member of the board of supervisors elected for a particular district of a county becomes vacant upon his permanent removal from the district even though his new place of residence is within the same county. Yours truly, C. A. RoBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 253 January 23, 1914. W. Scott Guthrie, Auditor, Adel, Iowa. Dear Sir: Yours of the 21st instant addressed to the attorney general has been referred to me for reply. Your question as stated by you is: "Is the treasurer allowed to divide a tax into first and second payments if the order is received after March 1st?" In my judgment this question should be answered in the affirma- tive, and while such a division would be permissible, it is possible that the same could not be required. Yours truly, C. A. Bobbins, Assistant Attorney General. July 17, 1913. C. F. P. Peoom, Chief of Police, Council Bluffs, Iowa. Dear Sir: Yours of the 12th instant addressed to the attorney general has been referred to me for reply. You inquire whether or not under section 3 of the new statute regulating the sale and use of concealed weapons the sheriff is authorized to issue permits to persons residing within the corporate limits of your city. This question should be answered in the negative. Such permits may only be issued by the chief of police in cities of the first and second class except special charter cities and cities under the com- mission form of government. The mayor in incorporated towns may issue such permits and the sheriff is confined to the issuing of permits to persons residing in the country and in un-incorporated villages. Yours truly, C. A. ROBBINS, Assistant Attorney General. 254 ATTORNEY GENERAL'S OPINIONS June 12, 1913. Mr. a. M. Detoe, Superintendent Public Instruction, Statehouse. Deae Sir : "With reference to the request of Myrtle A. Dungan for the opinion of this department on the question of whether or not women may vote on the proposition to consolidate school dis- tricts will say that the matter is controlled by section 1131 of the code, which provides as follows : "The right of any citizen to vote at any city, town or school election, on the question of issuing any bonds for municipal or school purposes, and for the purpose of borrowing money, or on the question of increasing the tax levy, shall not be denied or abridged on account of sex." Inasmuch as the question to be voted on is consolidation and not on the question of issuing bonds for school purposes women would not have the right to vote. Yours very truly, C. A. Bobbins, Assistant Attorney General. August 18, 1913. A. H. Davison, Secretary, Executive Council. Dear Sir: Keplying to the letter of C. L. Ely of Maquoketa, dated August 11th, which you refer to this department for atten- tion, will say, that in my judgment the classification followed by the assessor in listing the property should determine whether lots in unincorporated villages should be treated as town lots or as lands, and whether or not agricultural lands not platted but situ- ated within the corporate limits of a city or town should be treated as lands or lots should be determined in the same way. That is to say, that if the assessor in listing the property listed village lots as town lots then it should take the percentage of raise provided by the executive council for town lots. On the other hand if they were listed as lands, they should take the percentage of raise pro- vided for lands. Yours truly, C. A. ROBBINS, Assistant Attorney General. ArfORkEV GENERAL'S OPINIONS 255 April 9, 1913. Jno. F. Ceonin, County Attorney, Marengo, Iowa. Dear Sir: Yours of the 2d instant, addressed to the attorney general, has been referred to me for investigation and reply. Tour question, briefly stated, is whether or not township trustees are entitled to mileage or for any additional compensation other than for the time spent in attending the school of instruction pro- vided for by section 6 of chapter 96 of the acts of the thirty-third general assembly. The language of the statute is : " For such attendance the same compensation shall be allowed to the trustees and road supervisors and the county supervisors as is allowed by law for other services, to be paid as other expenses. ' ' Code section 590 fixes the compensation of trustees and provides as follows : ' ' For each day 's service of eight hours necessarily en- gaged in official business to be paid out of the county treasury, $2.00 each." It will be observed that there is no provision for the allowance of mileage to trustees similar to that which allows mileage to super- visors, and it is my judgment that parties are only entitled to com- pensation for the time in attendance and not for the time spent in going to and from the place of such attendance, and that for such attendance they would be entitled to $2.00 per day for each day of eight hours or fraction thereof. Yours truly, C. A. ROBBINS, Assistant Attorney General. February 6, 1913. Mr. Frank Coret, Fort Dodge, Iowa. Dear Sir: Yours of the 4th instant, addressed to the attorney general, has been referred to me for reply. You call attention to the fact that you are the owner of stock in certain banks situated in South Dakota, and that a tax on the investment is levied and paid in South Dakota, and to the fact that the taxing officers in this state seek also to assess and tax such 256 ATTORNEY GENERAL'S OPINIONS shares of stock at the place of your residence, and that such taxa- tion in your judgment is double taxation and unjust. From an equitable standpoint there is some ground for this con- tention, but our supreme court has decided that such shares of stock are taxable to the owner thereof at the place of his residence within this state even though taxed in the foreign state. Hence it follows that the taxing officers would not be justified in waiving the right to assess and tax the shares of stock in this state. I call your attention to the case of Jxidy vs. Beckwith, 139 Iowa, at page 24. I will say further, however, that this law would not apply to stock in national banks for the federal statute would govern in such case and it requires such shares of stock to be taxed to the owner at the place where the bank is located. So if the stock which you have is in national banks, the shares therein should not be taxed to you in this state, but if not in national banks it should be. Yours truly, C. A. EOBBINS, Assistant Attorney General. February 16, 1914. H. L. Booth, 820 High St., Burlington, Iowa. Dear Sir: Replying to yours of the 11th instant addressed to the attorney general will say that while soldiers are entitled to certain property exemptions, there is no exemption from payment of the 50e head or poll tax. Yours truly, C. A. ROBBINS, Assistant Attorney General. January 6, 1913. Andrew Bell, County Attorney, Denison, Iowa. Dear Sir: Yours of the 4th instant addressed to the attorney general has been referred to me for reply. Your question as stated by you is. Can the board of supervisors refund taxes to anyone who is financially unable to support himself? ATTORNEY GENERAL'S OPINIONS 2 57 The only express authority for the board of supervisors to re- fund taxes to the tax-payer is found in code section 1417, which provides as follows: "The hoard of supervisors shall direct the treasurer to re- fund to the tax-payer any tax or portion thereof found to have been erroneously or illegally exacted or paid with all in- terests and costs actually paid thereon." It is provided by code supplement section 1304 that the follow- ing classes of property are not to he taxed : Subdivision 4: "The polls or estates or both of persons who by reason of age or infirmity may, in the opinion of the assessor, be unable to contribute to the public revenue, such opinion and the fact on which it is based being in ail cases entered on the assess- ment roll and subject to reversal by the board of review." Hence I am of the opinion that where the exemption had been allowed by the assessor in accordance with this provision, and not- withstanding a tax was entered up and paid that it might be or- dered refunded by the board of supervisors under the authority of code section 1417, above quoted. But should not be so refunded in cases where the exemption had not been allowed by the assessor even though the board might be of the opinion that they were en- titled to such exemption. It has occurred to me that perhaps you had in mind a remission of taxes levied before payment rather than a refund of the same after payment. The only authority for the remission of taxes by the board of supervisors is found in code section 1307 which provides': "The board of supervisors shall have power to remit in whole or in part the taxes of any person whose building, crops, stock or other property has been destroyed by fire, tornado or other unavoidable casualty, if said property has not been sold for taxes, or if said taxes have not been delinquent for thirty days at the time of the destruction, and when the loss is not covered by insurance." Hence it follows that your inquiry should be answered in the negative with the modifications above shown. Yours truly, C. A. ROBBINS, t7 Assistant Attorney General. 25 8 ATTORNEY GENERAL'S OPINIONS October 8. 1913. Hon. John L. Bleakly, Statehouse. Dear Sir: Yours of the 7th instant addressed to the attorney general has been referred to me for reply. Your first question is as follows : " Is it legal for a county auditor to issue a warrant in vaca- tion simply on a written order from one member of the board of supervisors, while not in session?" This question should be answered in the negative. Code section 471 provides: "The auditor shall not sign or issue any county warrant except upon the recorded vote or resolution of the board of supervisors authorizing the same, except for jury fees, and every such warrant shall be numbered, and the date, amount and number of the same, and the name of the person to whom issued, shall be entered in the book to be kept by him in his office for the purpose." Furthermore, it has been held by our supreme court that even where the warrant is issued by an order of the court but without the vote or resolution of the board of supervisors, it is without authority. Polk County vs. Sherman, 99 Iowa, 60. Your second and third questions are: "If not, can the board of supervisors pass a resolution authorizing the auditor to issue warrants on such order? Would the transaction then be legal? "Has the board of supervisors the authority, by resolution passed during their regular session, to authorize the auditor to issue warrants in vacation for any particular class of claim against county?" In my judgment the language of the statute above quoted con- templates that the recorded vote or resolution of the board therein referred to should designate and name the person or persons to whom the warrant or warrants covered thereby are to be issued. Hence, it follows that an order of an individual member of the board would not be sufficient authority for the auditor to issue a warrant to any person designated in such order, and hence your ATTORNEY GENERAL'S OPINIONS 259 second question should be answered in the negative. It also fol- lows that the board of supervisors is without authority to adopt or pass what might be termed a blanket resolution authorizing the issuance of warrants to whomsoever might have claims of a cer- tain class against the county for by so doing and by passing a like resolution for each class of claims, the force and effect of the statute could be evaded. Hence it follows that your third question should be answered in the negative. Your fourth question is : "Should interest on drainage assessments be charged in case payments are made one-third at time of filing agreement, one-third when half completed and one-third when improve- ment has been accepted by the board, as provided in chapter 87, section 5, 34th G. A.?" In my judgment this question should be answered in the affirma- tive. Code supplement section 1389-al2, as amended by section 5, chapter 87, acts of the thirty-fourth general assembly, reads in part as follows : "And all installments of the tax shall be levied at that time, and shall bear interest at six per cent per annum from that date; provided that if the owner of any parcel of land, lot or premises against which any such levy shall have been made and certified, shall, within twenty days from the date of such assessment, promise and agree in writing filed in the office of the county auditor that in consideration of his having the right to pay his assessments in installments he will not make any objection of illegality or irregularity as to the assessment of benefits or levy of such taxes upon or against his property, but will pay said assessment, then said taxes levied against said land, lot or premises of such owner shall be payable as follows: one-third (1-3) of the amount of said assessment at the time of filing the above agreement; one-third (1-3) with- in ten (10) days after the engineer in charge of said drainage improvements shall file a certificate in the office of the county auditor that said improvement is one-half completed, and the remaining one-third (1-3) within ten (10) days after the said improvement shall have been accepted by the board of super- visors, and if said installments are not paid as above provided, the failure to pay any installment shall cause the whole sum to become due and payable at once with interest at the rate of one per cent (1%) per month from the date of filing said agreement. ' ' 260 ATTORNEY GENERAL'S OPINIONS In my judgment that portion of the language quoted which fol- lows the words "provided that if the owner of any parcel of land" has reference to the conditions which shall impose upon the tax- payer the higher interest at the rate of one per cent per month and does not operate to discharge or cancel the provision for six per cent interest above quoted, but that such six per cent interest is to be payable in the event the higher rate does not, by the action of the taxpayer, become payable. Yours very truly, C. A. Bobbins, Assistant Attorney General. October 29, 1913. Hon. John L. Bleakly, Auditor of State, Statehouse. Dear Sir : Your first question is : "Has the board of supervisors a legal right to allow to a county officer direct a specified amount for compensation of deputy or other clerk hire, or must the amount be allowed direct to the person performing the service ? ' ' This question should be answered in the negative except as to sheriffs. Under code supplement section 510-b the salary of the chief deputy is to be paid by the sheriff out of the compensation allowed him under section 510-a. Prior to the enactment of chapter 43, acts of the thirty-fifth gen- eral assembly, the board of supervisors was authorized by code supplement section 479 to allow such additional compensation to the auditor as it deemed reasonable. However, by the last para- graph or subdivision of chapter 43 this additional compensation is now limited to the deputies and clerks and is no longer allowed direct to the auditor. Your second question is: "Has the board of supervisors a legal right to allow direct to the county auditor a certain amount in addition to his salary for drainage work, or may they simply allow the auditor extra help on this account?" ATTORNEY GENERAL'S OPINIONS 261 This matter is governed by chapter 121, acts of the thirty-third general assembly, the material portion of which reads as follows: "Whenever a levee or drainage district or districts shall be petitioned for or established in any county, the board of super- visors shall furnish such additional help, as shall be just and reasonable, to be paid by the county." Hence, it follows that the pay should go to the help and not to the county auditor. Your third question is: "Under section 2930 of the code, is the county auditor re- quired to transfer quit claim deeds or patents that do not convey real estate, but simply to cure some defect in the title ? ' ' This question should be answered in the negative. Your fourth question is : ' ' Is the county, under section 2406, code supplement, or any other section, liable to the county attorney for fees in success- fully prosecuting injunction suits for nuisances?" This question should be answered in the affirmative where the costs are not collectible from the defendant. See Newman & Blake vs. Des Moines County, 85 Iowa, 89, holding that where 'the fee is taxed as part of the costs the county is liable therefor; and also, Farr vs. Seward, 82 Iowa, 221, wherein it is held that the county attorney where he prosecutes the injunction suit is entitled to the fee in addition to his salary. Your fifth question is : "When the clerk of courts goes out of office, is he entitled to take his fee and cash book with him, or should he leave it in the office as a permanent record?" In my judgment this question should be answered in the affirma- tive. Any book which the officer keeps in his official capacity whether required by the letter of the statute or not should, in my judgment, remain as part of the records of the office. Your sixth question is: "What is the meaning of the word session, as used in sec- tion 669 of the code, or can the council meet nine hours in one day and call it three sessions of three hours each?" 262 ATTORNEY GENERAL'S OPINIONS In view of the fact that it was the common practice throughout the state to hold these sessions of the board of equalization in the evening in my judgment the statute only contemplated a single session in any one day and that that session should be three hours in length in order to constitute a session for which $1.00 might be paid. This statute, however, has been changed as to first class cities by chapter 56 of the thirty-fifth general assembly, which will hereafter govern as to such cities, the material portion of which reads as follows : "Except when acting as members of the board of review, for which service they shall receive not more than two dollars a day for each day when acting as a board of review, to be paid out of the county treasury." Yours truly, C. A. ROBBINS, Assistant Attorney General. December 20, 1913. John L. Bleakly, Auditor of State, Statehouse. Dear Sie: Your several letters of recent date addressed to the attorney general have been referred to me for reply. Your first question is: "When, on serving a warrant, the sheriff takes a convey- ance out and back, which conveyance he charges to the county as a livery expense item, can he also charge mileage for him- self?" In my judgment the sheriff is not entitled to charge mileage, ex- cept in certain special cases, where he is authorized to procure a conveyance and except in such cases he would not be authorized to charge for livery. Your second question is: "In case the warrant is issued by a justice of the peace could the sheriff charge for livery?" In reply to this question will say that in my judgment the sheriff is entitled to mileage only and not to livery. ATTORNEY GENERAL'S OPINIONS 263 Your third question reads as follows : "Can the salary of the county attorney be changed by the taking effect of a census during his term of office ? ' ' In my judgment the salary of the county attorney may not be changed by the hoard of supervisors during his term of office. This, however, would not prevent a change by reason of a change in population being automatically made by law rather than by the board of supervisors. However, the change in population would not operate to change any extra allowance that may have been allowed by the board of supervisors for the current term. With reference to your fourth question, which reads: "When does the statute of limitation begin to run in case of fees received by an official — when they are received or when they should have been turned into the county treasury?" will say that 'the statute of limitation begins to run against an official from the time when he is by law required to account for the funds rather than from the time when he receives the same. Your fifth question is: "Are the board of supervisors entitled to mileage to and from home (in case they go home) each day — suppose they meet January 2, 3, 4 and 5, adjourning from day to day, — or only one mileage for the four days?" With reference to this question will say that in my judgment the board of supervisors would not be entitled to mileage to and from their homes on each of the days when they are in contiuous session, but if there is an adjournment leaving intervening days when there is no session, mileage should be allowed for an addi- tional trip for each such session. Your sixth question reads as follows : "When a petition afEecting real estate is filed and same is indexed according to chapter 288 of the thirty-fifth general assembly is this sufficient indexing to comply with all Iowa laws, or must same be indexed in duplicate in another index so as to comply with section 288 of the code?" Replying to this question will say that the index required by chapter 288 of the acts of the thirty-fifth general assembly should be kept, but it may be combined with the index required by sec- tion 288 of the code. 264 ATTORNEY GENERAL'S OPINIONS Your seventh question is: "Has the county auditor, under section 1385-a-b-c, code supplement, the authority in making up his tax list to correct this error in assessment or must it stand for this year having been passed upon by the local board?" Where the county auditor is not required to exercise any judg- ment in fixing the valuation of the property, he would have the right under section referred to to strike out any deduction unlaw- fully allowed, and make the computation the same as though such deduction had not been made, and to this extent he would have the right t6 make the correction referred to. Your eighth question reads as follows : "The Farmers' Co-operative Produce Company of Des Moines have a station in Tipton, Iowa, with an agent con- ducting the business of buying and shipping cream and other produce, the question is, should the local plant be assessed in Tipton on the average business as merchants, under section 1314 to -18, or does such business come under the federal tax laws and is taken care of in their assessment given from their home office in Des Moines 1 ' ' In my judgment such concerns should be taxed under code sec- tions 1314 to 1318 and that the federal tax laws would have nothing to do with the question. Your ninth question is as follows : "Have the board of supervisors the authority to allow bills for services of deputy county superintendent rendered be- tween July 4th last and the date the county board of educa- tion met and fixed the salary of such deputy?" This question should be answered in the affirmative. Your tenth question is as follows : "Under section 2742, code supplement, may the board of supervisors allow the county superintendent additional com- pensation to 1915 when the new law fixing such salary takes effect?" In my judgment this additional compensation may be allowed both before and after 1915, as section 2 of chapter 107 also con- tains the provision: "And the board of supervisors may allow him such further sum by way of compensation as may be just and proper. ' ' Yours very truly, C. A. EOBBINS, Assistant Attorney General. ATTORNEY GENERAL'S OPINIONS 265 October 1, 1913. Hon. John L. Bleakly, Atiditor of State, Statehouse. Dear Sir : Your letter of the 18th ultimo, addressed to the at- torney general, has been referred to me for reply. You request the opinion of this department upon the following questions:. ' ' 1. May the boards of supervisors allow bills to banks for collecting tax for county treasurer, as extra clerk hire to the treasurer ? ' ' In my judgment this question should be answered in the nega- tive. The law contemplates that the work of the treasurer's office should be performed in that office and does not contemplate the payment of extra compensation or clerk hire except in the follow- ing eases : Where no regular deputy has been appointed but on account of the pressure of business in his office the treasurer is compelled tem- porarily to employ an assistant; And in counties of 30,000 population or over such clerk hire may be allowed in addition to the salary of the regular deputy as the board of supervisors may deem reasonable. "2. Are the deputy clerks of the district court and other deputy county officers required to give bond?" This question should be answered in the affirmative. Code sec- tion 1182, as amended by chapter 113, acts of the thirty-fifth gen- eral assembly, exempts from giving bonds the governor, lieutenant governor, members of the general assembly, judges of courts, town- ••Jp trustees, aldermen and councilmen of cities and towns ; and the following section requires all other civil officers to give bonds ex- cept as otherwise specially provided. Code section 1186 provides, "deputies of state, county, city and town offices who are required to give bond shall give bond in such amounts as may be fixed by the governor, board of supervisors or the council as the case may be." "3. Should the county attorney's per cent of fines be de- ducted from the fines paid out of the general county fund?" This percentage to be paid the county attorney should be paid from the general fund and not from the proceeds of the fines 266 ATTORNEY GENERAL'S OPINIONS collected. The constitution requires the clear proceeds of the fines collected to be turned into the school fund. See Constitution of Iowa, section 4 of subdivision 2 of article IX, and Woodward vs. Gregg, 3 G. Green, 287, where the exact question was passed upon by our supreme court and the conclusion reached being against the right of deducting the attorney's fees from the funds collected. "4. Does the statute of limitations run against the county in the collection of tax more than five years delinquent?" This question should be answered in the negative with the qualifi- cation however that where the state or county brings a suit in court to recover a judgment for the amount of delinquent taxes, then the statute of limitations would apply in the same manner as though the suit were brought by an individual; but where in- stead of bringing such suit the treasurer or other tax collecting officer proceeds to sell property liable for the tax under a distress warrant then the statute of limitation does not apply. See 37 Cyc. at page 1304 and State vs. Wehher, Judge, 37 N. W., 949. "5. Are marriage fees of justices of the peace to be taken into consideration with fees set out in section 4597 ? ' ' This department has heretofore passed upon this question and held that inasmuch as the right of a justice of the peace to exact a fee for the performance of the marriage ceremony depends upon the existence of his official' position that the fee is thei-ef ore received by him in his official capacity and must be accounted for in the same manner as other fees received by him where he is on a salary basis. See code section 3152 fixing the amount of such fee, and code supplement section 4600-a requiring such fees to be ac- counted for. "6. Is a deputy county auditor having a notarial seal en- titled to charge and retain a fee for affidavits connected with the application for hunter's license?" This question should be answered in the negative. The supreme court of Nebraska in a similar case held that a county officer who had the power to take acknowledgments and who was also a notary public was required to account to his county for fees earned in taking acknowledgments even though he took same in his capacity as a notary public rather than in his official capacity. State ex rel Frontier Connty vs. Kelley, 46 N. W., 704. ATTORNEY GENERAL'S OPINIONS 267 Your 7th and 8th questions, propounded by Mr. Edward Collins, are as follows: "What fee, if any, is the county auditor required to charge for the issuing a certificate to a legally authorized liquor dealer to show his right to receive shipments of intoxicating liquors from interstate carriers? "Can the county auditor lawfully refuse to issue such cer- tificate to a legally authorized liquor dealer for any reason, if such dealer tender the fee demanded?" I know of no statute that requires the county auditor to furnish such a certificate as is therein referred to. Code section 2419 con- templates the furnishing of such a certificate by the clerk and doubtless he would have the right to charge a fee therefor. Hence it follows that the auditor is under no obligation to issue such a certificate. Respectfully submitted, C. A. Bobbins, Assistant Attorney General. November 5, 1913. Andrew Bell, Comity Attorney, Denison, Iowa. Dear Sir: Yours of the 3d instant, addressed to the attorney general, has been referred to me for reply. Your first question is : ' ' Where a person has failed to or does not wish to work his poll tax on the public highway, outside of cities and towns, what sum is he required to pay in lieu thereof?" In my judgment the amount required to be paid as penalty for a failure to work the roads as required by code section 1550 is $3.00 per day. See code section 1552. Your second question is: "Under sections 430, 431 and 432 of the code and supple- ment is there power given to the soldiers' relief commission to grant a pension to an indigent widow of a deceased soldier where said widow had married said deceased soldier only about a year before his death?" 268 ATTORNEY GENERAL'S OPINIONS In my judgment all that is required to entitle the widow of a soldier to the relief provided for under this section is that she be the widow of a soldier at the time of his death and while the relief is being furnished. Yours truly, C. A. ROBBINS, Assistant Attorney General. January 31, 1914. J. 0. Beery, R. F. D. No. 3, Atlantic, Iowa. Dear Sie: Replying to yours of the 28th instant addressed to the attorney general will say that in my judgment the compensa- tion of the township clerk for posting weed notices should be paid by the county under subdivision 1 of code supplement section 591, which reads as follows: "The township clerk shall receive: "1. For each day of eight hours necessarily engaged in official business where no other compensation or mode of pay- ment is provided, to be paid from the county treasury, $2." Yours truly, C. A. ROBBINS, Assistant Attorney General. January 4, 1913. J. A. Beown, /. P., Rose Hill, R. R. No. 1, B. 43. Deae Sie: Yours of the 1st instant addressed to the attorney general has been referred to me for reply. Your question is whether or not mutual telephone lines for private or public use among the farmers, not leased or otherwise used with view to pecuniary profit, are subject to taxation. Your question should be answered in the affirmative. Telegraph and telephone companies should be assessed and taxed in accord- ance with the provisions of code supplement sections 1330 to 1330-d inclusive. Yours truly, C. A. ROBBINS, Assistant Attorney General. INDEX Page Assessors Compensation ot how fixed 37, 60, 108, 231 Assessment Of bank stock in other states 255 Of mortgages in other states 37 Of persons about to leave the state 120 Abstract of Assessment Failure to file in time 235 Automobiles Dealers numbers 40 Age of operator 7 6 Kinds exempt from registration 78 Registration of by dealers 99 License tax 141 Dealers machine tax on • ■ • • 213 Banks Taxation of 51, 140 Stock of non-resident owners 112 Private taxation of 53,72, 116 Shares in taxation of 54, 97, 110 Stock deduction from 70, 124, 195, 245 Tax against shares paid by bank 105 Stock delinquent tax on, how collected 118 Stock value at which assessed 127 Value of real estate deducted from 224 Board of Review Meetings of 60 Board of Supervisors Publication of proceedings of 74 Method of borrowing money by 88 Compensation of 194 Not to exempt corporation property from tax 12 8 What proceedings required to be published 180 Not to allow clerk hire to officer direct 206, 260 May employ legal advisor , . 230 May employ a secretary 230 May employ collectors 230 Number of papers to be selected by 231 Not to pay banks for collecting tax 232 Vacancy when member moves away 2 52 Allowed but one mileage in one session 237 Property they may exempt from tax 257 Brick and Tile Companies * How taxed 121 370 INDEX Page Bonds Of officers not binding after term expires 6 Of depository bank 221 Fidelity must be approved 109 County Attorney To be furnished office and supplies 192 Per cent of fines 204 Legal adviser to county officers 5 Fines entitled to per cent of 100 Duties of 106 Duty of in scbool fund loans 63 Expense of 15 Pees of in inspection cases 236, 7 Salary change during term 237 County Auditor To correct errors in assessments 217, 241, 2 Extra compensation for gophers 67 Must enter all bills on minute' book 223 Authority in drawing warrants 223, 5, 258 Must charge for administering oaths 223 Fee for certificate to liquor dealer 224 Ten acre tracts, city tax on 223 May correct errors in assessment of bank stock 246 County OflScers Salaries fixed by population 71, 208 Change of salary during term 156 Not entitled to extra compensation 84 Should file new bond each term 232 County Jail Use of by cities 75 Cities Officials compensation not changed during term 77 Warrants order of payment 98 Council not to exempt corporation property from tax 128 Under commission form 16 Calendar year 10 County Superintendent Eligibility of 11 Board may allow additional compensation 218 Constables Fees in default cases 22 Mileage for several warrants same trip 238 Clerk of District Court Naturalization fees 25, 226 Fee for special referee in probate 207 Fees in filing will 226 ' Fee for acknowledgements 226 Fee as insane commissioner 226 INDEX 271 Clerk of District Court — Continued. Probate fees to be charged 227 Complete record what constitutes 22 7 To issue warrant on order of county attorney 22S Fees in guardianship 228 Probate fees in advance 228 Form of report to treasurer of state 228 Cannot be member and clerli of Insane Commission 228 Pee for transcript from other counties 229 Must leave fee book when going out of office 236, 7 County Recorder Compensation of 32 Compensation of deputy and extra help ....232, 244 Fees for concealed weapons 233 Candidates for Office Should be resident 136 Giving away souvenirs 158 County Warrant Order of payment 170 College Endowment Property of exempt 147 County Treasurer Three-fourths of one per cent on special assessments 215 Per cent on collections 21S Not to pay banks for collecting tax 221 May divide tax after March 1st 253 Co-operative Companies Taxation of 218 County Printing Legal rates for 229 Coroners Fees to be charged against estate 247, 250 Concealed Weapons Report of sales to county recorder 2 44 Sheriff not to issue permits In city 2 53 Delinquent Tax Collector Compensation of 39 Domestic Corporations Assessment of capital stock 43 Deputy County Auditor Appointment of approved by board 49 Must account for notorial fees 224 Deputy Sheriff Cannot act as bailiff 108 Deputy County Treasurer Limit of compensation of 220 Cannot be delinquent tax collector 251, 252 272 INDEX Page Deputy County Officers May be women 211, 212 Must give bond 229 Drainage Interest on warrants 13 Assessments, interest on 259 Dragging Roads 148 Domestic animal warrants 220 Deeds, transfer of 2 61 Kxemption Of property from taxation 66, 128 Of manufacturing plants 214 Of personal property on agricultural lands 216 Farm Names Registration of 46 Fumigation County not liable for 94 Fidelity Bonds Must be approved 109 Farm Products When exempt from tax 145 Forest Reservations Taxation of 168 Fire Companies Members of exempt from poll tax 192 (jleneral Election Publishing returns of 146 la 109, 219 Highways How established 102 Hunters License Is valid without fee 194 Insane Custody of before commitment 81 Settlement of 6 Incompatible officers 91 lowa National Guards Members exempt from poll tax 24 Insurance Companies Taxation of stock in 175 Interest On special assessments, certificates 220, 234 On delinciuent tax 22 On drainage assessments 222 Jurors Fees in justices peace courts 95, 96 INDEX 873 Page Justice of Peace Marriage fees 18, 22, 266 Not entitled to office supplies 149 Judges of Election Appointment of 160 Qualification and compensation of 185 Jjand Contracts Taxation of 72, 132, 146, 217 Lodge property Taxation of 97, 136, 152 Loan and Trust Companies Assessment of 23 License Against transient merchants 239 Loose Leaf Records Legality of 243 Lots in Unincorporated Towns How assessed 254 Mortgages In other states assessment of 37 Monied Capital Taxation of 53, 116 Deduction of U. S. bonds from 56 Defined ' 58 How assessed 196 to 204 Marriage License When issued 69 Merchandise Tax a lien on 114 Manufacturing Companies Stock in how assessed 120 Tax on, not to be exempted by board 214 Monies and Credits Apportionment of tax on' 130 Taxation of 190 Motor Vehicles Tax on, to road fund 144 Mulct, Tax To credit of general fund" 183 Notes For rent of land assessed as moneys and credits 37 National Banks Assessment of stock in 23 Nomination Papers For district officers 134 18 274 INDEX Page Notary Public Acknowledgements on Sunday 179 OfHcers That may be removed by court 76 Must collect fees when statutes reads may 230 Fees when none provided by law 230 Claims for Compensation must be sworn to 230 Fees in excess in salary must be charged 231 Omitted Property May be assessed by treasurer 92 Primary Election Withdrawal of candidate 157 Supervisors of 160 Township committeemen •• 160 Advertising at polls 162 Convention not confined to persons voted for 162 Candidate nominated on two tickets 169 Number of votes required to nominate 174 Police officers at, entitled to pay 210 Board of supervisors expense charged to general fund.... 210 District officer, not required to file papers 210 Publishing tabulated returns of 218 Publishing proclamation of 156 Filing papers for 153 Alphabetical list of candidates 154 Publishing notice of 129 Percentage of votes for township officers 34 Judges of election to deliver poll books 46 Poll Tax Who required to work 14, 80, 88, 142 Exemption from 126 When payable in labor 41 Amount collectible 173 Amount of payable In cash 267 Peddlers License Annual 67 Of fruit and vegetables " 19 License required 139 Sales from car, not constitute 188 Publication Of board proceedings '. 74 Public Officials Must be citizens 85 Salary stops at death 181 Parsonages Not exempt unless owned by church 117 Policemen Pension fund 123 INDEX 275 Page Patent Medicines Sale of 12 Paving Cost of to railways 155 Personal Property City tax on 179 Physicians Certificates Should be recorded in full 2 09 Penalty On delinquent tax 220 Road Tax Collection of 35 From motor vehicle fund 144 Road Work Fixed compensation for . . 36 Price for man with team and without 36 Compensation of superintendent 36 Cutting weeds when levy is used up 36 Dragging without pay 42 Drag fund . .62, 219 Removal Of officers by district court 76 Registered Animals Value for taxation 86 Residence May retain while temporarily absent 129, 163 For purposes of taxation 141 For voting, how acquired and lost 153, 186 Registration Of voters when required 150 Representatives Nomination of » . . . 166 Rural Route Drivers Team of, exempt from tax 212 School House Tax Time of levy 38 School i'iind Should be separately kept .- 171 Tax when to be levied 182 Building bonds interest on 103 Sewers Assessments for 56 State Banks Deducting U. S. bonds from stock 56 Soldiers Exemption from tax 62, 150 Funeral expenses, how paid 83 276 INDEX Page Soldiers — Continued. Wife may be received into soldiers home 9 Burial of 167 Not exempt from 50 cent poll tax 256 Sheriff Fees in justices court 63 Compensation for obtaining evidence 65 Fees for summoning jurors 164 Mileage in requisition cases 2 3, 208 Compensation for boarding prisoners 33 Compensation after expiration of term 137 Must pay Ms first deputy 233 Fees for taking patients to asylum 233 Salaries Of county officers fixed by population 71 Special Assessments Interest on 79, 95 Property liable for 193 County treasurers' three-fourth of one per cent on 218 Not to exceed 25 per cent of value of property 251 State Officials May not be garnished 90 Short Hand Reporter Compensation of 93 Stocks of Merchandise Tax a lien on 114 Tax on 135 Surety Bonds How conditioned 132 Supervisors How nominated 151 Election of, at large and by districts 184 Securities Taxation and exemption of 176 Statute of liimitation Against collection of tax 221 Against fees 237 Session Meaning of in section 669 236 Township Trustees Compensation of 36 Mileage attending school of instruction 255 Township Olerk Compensation for posting weed notices 268 Taxation Of land contracts 72 On personal . property for city purposes 179 INDEX 277 Page Taxation — Continued. On land purchased by state 189 City tax on ten acre tracts 223 Taxes ' Voluntarily paid, cannot be recovered 89 School when to be levied 182 When lien on mecliandise 114 On stocks of goods, owner on January 1st, liable for 135 Mulct to credit of general fund 183 Statute of limitation against collection of 221, 240, 241 Trees In highway, may not destroy 122 Teachers' Certificates Single registration of sufficient 8 Terms of Office To begin second secular day of January 195 Teams Of rural route drivers exempt 212 Telephone Companies How assessed 268 U. S. Soldiers defined 87 University Property When liable for tax 131 Voters Qualification of 125 Value Of real estate deducted from bank stock 224 Warrants City order of payment 98 County order of payment 170 Women Eligible to certain officers 142 May hold the office of deputy 211, 212 May not vote to consolidate districts 254 Widows pensions ' 240, 246 Y. M. 0. A. Property exempt from taxation 138