, 1877-02-25


had been sufficient all the while, upon the basis
indicated by the Judges: AS to the Question
whether the public would be protected II the
injunction was dissolved, be would say, to n
reasonable certainty, the men whose money was
to be fingered by tllis Collector were not in any
danger. lie thought the taxpayers had right
to ask the Court to see that the books were not
turned over to an irresponsible person. II he
got hold Of the books, and his bond was mol
approved by the Supervisor, and be col; :, :;
not 1sSt'o hold dAss' his a'a suretcs ret Tor any
amount, the taxpayers we're unprotected, and
he thought that was proper matter for him to
consider before hc dissolved the injunction.
That was all there was in the case to be consid-
cred. He was satisfied that the bond was worth
somcthing-was good for a reasonable amount.
There was nothing to show that it might not be
good for
HALF MILLION OR 1 MILLION.
Mr.. Goudy-The Supervisor admitted that It
was worth $50G,000.
/ Mr.. HerTick wanted the matter to 60 oTer IN
til Monday morning.
Mr. Goudy would not consent to any delay.
After some further talk, the Court said be
would hear argument In the afternoon upon the
question OF the suthcicncy or validity Of the
bond He did not care to bother with anything
else
A recess vas then taken until 2 o'clock
Upon reassembling, Mr. Fuller addressed him
self to the question whether the bond would be
good MS against the sureties and for the pro-
lection Of the public in the absence OF the ap-
proyal Of the Supervisor, citing number Of aa-
thorities to show that it was valid in any event
The Supervisor had adopted an erroneous stand
ard, as ruled By the Court, and, persisting In IT,
there was no possible remedy for the Collector.
II the Court dissolved the injunction upon con-
dition that the surctics be held upon the bond,
or signi0ed their assent to its being delivered
to the County Clerk without the Supervisors 8
approval, 1t seemed to him It would be good
voluntary bond. and that there would be no
crook upon which they could defend it In case
OF loss. He claimed that II Evans got the
books now lie could not collect over $200, 600 In
the seven days left, allowing for preparations.
Mr.. HerTick, for complainant, called the at
tention # the Court to the statutory
which exempted it from the rules which gov
erned eli sealed Instruments. The bond was an
agreement, and to give It effect there must be
atl acceptance and delivery. The authorities
cited by Mr. Fuller
WERE NOT IN POINT,
since the courts held that, upon the evidence
before them, there was adelivery and acceptance:
lle read number Of decisions which sustained
his position: The Supervisor was the officer
authorized By law to receive tue bond and ac-
be 10 delivery Of bond, whether regarded as
ccr rejected It. He contended that
since The statute contained provisions
authorizing the city. county, etc., to
sue upon the bond required, they could not sue
upo1 ! mere voluntary bond, and therefore
there was no protection for the taxpayers II
the injunction Was dissolved such conditions
should be imposed as would secure them from
injury or dan,age for institutiug the suit.
Leonard SWEET followed on the same side. he
said the statute provided that the Collector
should execute bond, to be approved BY the
Supervisor and Town Clerk, in double the
amount OF the taxes, conditioned for the filth
full performance of the duties OF his office. Ihe
amount Of taxes assessed. and which would
como iuto bis hands for collection, was little
more than So, 500, 900, and the bond offered BY
Evans WAS good for about $500, ,000-perhaps
$700, LOCO. This bond, in the exercise Of his dis
cretion, was disapproved BY the Supervisor.
The statute provided that upon . failure TO give
proper bond the office should be declared Va
can't, and the Supervisor, finding that the bond
WIS insufficient, and no coed bond being offered
within eight days, tho time required hy the
statute, reported the office as vacant. Where
upon petition for mandamus was fled In the
Circuit Court to compel him to approve the
bond. Upon d hearing Of the case, the Court
decided that it could not control the exercise OF
discretion which the law vested IN the su-
peryisor, and refused TO grant the writ OF man
damus. In refusing the n,andamus, which was
the oriy question at issue, the Court, as die
tum, inttmated that it would look at tho
standard in reference to which the Supervisor
exercised bis discretion, and fix it correctly if
be had liked it erroneously, intimating that a
bond which should be good for $7,t00.cOo, or
double the amount OF the taxes to be col
1ected, should not bo required. The Court, in
deciding what bond should BE- :rd required, used
should approve bond which is such as 4 rea-
sonably prudent man would say is ample to
secure the public against any loss which could
be likely to arise from any malfcasance or nom
feasance in the Office Of Collector" After this
decision, the Collector took the bond which
Van rpFy PREVIOUSLY REJECTED.
and procured the signing OF other. names to It,
and, with the security thus Increased, again pre-
sented it to the Supervisor for approval II de-
termining, under the decision OF o. the Ceurt,
auire, he decided that the presumption OF law
was that the taxes assessed would pass through
the Collectors hands, and that the Law conteln-
plated that the taxpayers would discharge the'r
that he must have such bond as would at least
secure the public for the taxcs levied. The bond
was not only for the paving over OF moneys col
1ccted, but was for the faithful performance OF
the duties Of COLLECTOR. This included, if the
tie books to the County Clerk with delin-
quent list. Upon receiving this delinquent list
such taxes should be collected. Tie
bond, therefore, was for od;k tie 1csu1n Of
able the county to collect all the taxes assessed;
and there VAS no mode in which the taxes not
paid to the Collector could be collected, except
by means Of the books thus returned and the
delinquent list. Suppose, said Mr. SWEET. the
Collector destroyed, or, for any reason, 1a1leu
to return the books or failed to make out the
delinquent list, the community would then sus-
tain tic loss Of the taxes ls.csscd and not thus
returned Therefore, the whole amount Of
taxes assessed come within the power OF the
Collector Hence, the Supervisor determined
that the amount which should be secured BY the
bond must ut least be the amoant OF the taxes
ussessed. Such bond the Collector declared
he wss unable to give; and the question arose
whether tho Court, upon external eyideuce,.
would determine that less amount than
the taxes assessed would probably be collected,
and take security for such less sum. Suppose
the Supervisor determined that half the taxes
assessed might be collected, and thus require
bond to secure the public In half the amount Of
taxes, the Court might still say that the Super
visor was wrong in supposing so much Of the
taxes would be collected, and require him
TO LESSEN THE SECURITY
to still greater degree. II this could be done,
the effect of the judicial interference would be-
to deprive the Supervisor Of all discretion, and
vest the discretion In the Court. The reason
the Court refused to grant the writ of naant:a-
mus was because the law vested the discretion
IN 1he Supervisor. To dissolve the Injunction
because the Supervisor required security