State v. Winneshiek Co-Operative Burial Ass'n , 234 Iowa 1196 ( 1944 )

We granted defendant an appeal from the order of the trial court overruling defendant's special appearance to the action in quo warranto brought by the attorney general. The petition charged appellant corporation was organized under chapter 390, Code of Iowa, 1927, for a purpose not contemplated by said chapter, to wit, the practice of the profession of embalming, and that it did illegally so operate without an embalmer's license and without being eligible for such license. Rule 300 (b) of the Rules of Civil Procedure provides:

"If on demand of any citizen of the state, the county attorney fails to bring the action, the attorney general may do so * * *."

In this case the citizen who made the demand that the county attorney bring the action was the assistant attorney general who had charge of the matter for the State. In its special appearance and in argument appellant asserts the official position of the attorney general rendered him and his assistants ineligible to demand as citizens that the county attorney institute a quo warranto action, and hence, that the county attorney's failure to bring the action would not empower the attorney general to institute such action.

Rule 300 (a) authorizes the governor, general assembly, and certain courts to direct that the action be brought. Otherwise, the proper county attorney may bring the action in his discretion. Although the attorney general has certain supervisory powers over county attorneys, the rule does not empower him to direct a county attorney to bring an action in quo warranto. If, on demand, the county attorney fails to bring action, the attorney general may do so. Any citizen of the State is qualified to make the demand. No private interest in the question is required. The demand is not a part of the suit but is merely a request that the county attorney bring the action. It is the method provided whereby any citizen may ascertain whether the county attorney will do so. The provision that the attorney general may bring the action does not rest upon the demand but upon the failure of the county attorney to act after such demand.

With reference to the procedure under a prior statute, State ex rel. Fullerton v. Des Moines City Ry. Co., 135 Iowa 694, 712, 109 N.W. 867, 874, states:

"* * * although this remedy is of a special and extraordinary character, it is designed, nevertheless, to effect a speedy and effective means of settling a class of disputes affecting public interests, and the salutary purposes of the statute which provides it should not be thwarted by a narrow and technical construction."

Appellant contends the official position of the attorney general deprives him of the right of a citizen to make the demand. The attorney general is the head of the department of justice of the State. Actions in quo warranto affect public interests. Upon failure of the county attorney to bring action after demand, the attorney general may do so. If, in his discretion, he concludes such action should be instituted, it is his duty to bring it. There would be little justification for a rule which would require the attorney general to sit by without power to perform such duty for the protection of the rights of the public unless and until some other citizen might see fit to make the demand and ascertain that the county attorney would not bring the action. Nor may Rule 300 be properly so interpreted. The provision that any citizen may make the demand does not except the attorney general. It clearly includes every citizen of the State. We are satisfied that the official position of the attorney general does not make him, or members of his staff, ineligible to make such demand, or upon noncompliance therewith to bring the action officially.

Our conclusion makes it unnecessary to consider appellee's contention that the attorney general of the State had power to bring the action in addition to that granted by Rule 300 and without demand upon the county attorney. — Affirmed.

MANTZ, C.J., and SMITH, MULRONEY, GARFIELD, HALE, MILLER, and WENNERSTRUM, JJ., concur.