Evening journal., 1889-12-20
THE MANDAMUS FIGHT.
LEGAL GIANTS ARGUING THE GREAT
TAX QUESTION.

Points.
Argument was made in the Superior
Court this morning, on the now famous
petition for mandamus against Tax
Collector John ]. Dougherty. There
were few spectators. Among those who
sat within the bar were Watson r.
Sperry, editor of the Morning
News; Washington Jones, George
II. Bates, ESQ.,, Senator John
P. Donohue, Rev. George M. Hick
man of the First Presbyterian Church;
Presiding Elder w. L. s. Murray, vii
liam H. Pierson. Anthony Reybold, Lewis
Thompson, J. Wesley Hawkins, the apph-
cant for the mandanus; John r. Nichol-
son, Esq, of Dover; David j. Cummins
of Smyrna.
Senator Higgins and William c.
Spruance, Esq, sat together, represent
ing the applicant for mandamus. p.
Q. Churchman sat short distance away
surrounded by young lawyers. Senator
Gray, John Fl. Rodney, Esq and George
Fl Bates, Esq, who has become asso-
ciated with the respondents counsel,
occupied chairs a short distance away
from their opposing legal brethren, rep
resenting Mr. Dougherty. The usual
/
terested spectators John j. Dougherty
occupied a seat at the reporters table.
Proceedings were delayed until TO- IS
o'clock by the non-appearance Of Asso
ciate Judge Houston, who was feeling
somewhat unwel.
Chief Justice Comegys asked the coun-
Gil whether there should any limit of
time. Senator Higgins rather demurred.
He said it was his luck to be limited in
all cases he had argued for the last five
years. Senator Gray suggested FIVE
hours, two and a half for each side,
which Mr. Higgins consented to, and the
court made that time the rule
During the long wait for Judge Hous
ton, the court room had filed up and
when Senator Higgins opened the case
there were large number of listeners to
his words Senator Higgins read portions
of the petition to the court, giving the
| gist of the whole matter
Mr.. Rodney then read the answer to
the petition, which has been published.
These preliminaries over Senator Hig-
| gins began the argument He proceeded
at once to discuss the principles of law
/ involved in the case. The right Of Mr.
Hawkins, the relator, to make the com
plant was defended, on the ground that
he was taxpayer and a citizen, and as
such had interest in q public mat
ter. Also, that by the non
collection of taxes his own
tax would be increased and therefore he
had an individual interest in the case.
In support of this the case of the State
of New York VS. Horsey, was cited (thirty-
seventh New York The decision holds
that on the refusal of the county treas
urer to issue warrants the proper way is
to proceed by mandamus, proceeding
which may be instituted by any citizen
on the grounds of his public and individ-
ual interest. dozen other cases in
support Of this point from as many diff
ferent states were also cited.
This point was then made The man,
damus lies on the petition cf the relator
as a citizen of the state and a qualified
voter because of his constitutional right
as a citizen that free and equal election
should be FURNISHED to all, elections being
of public concern. No election
can be fair, free or equal
unless there is free and
equal opportunity to qualify for
it. These points were supported BY
citations Of law. The immense powers OF
the tax collectors in their enforcement OF
the laws of the state against the tax.
payers was dwelt upon and the question
asked, have they no duties corelative
with their powers.
Mr.. Higgins then argued against the
answer of the respondent that the court
had no right to interfere with his powers
of discretion, claiming that It had.
The ground was that a higher
legal authority had a right tc
correct the mistakes of a lower
and consequently this court with its
power based on that of the Kings bench
in England, had right to pass on appli.
cations for mandamus of this character
All persons against whom tax is as
sessed have right to pay their tax to an
agent. The tax does not differ from any
other debt. The statute treats il as q
debt of the highest character. giving it 8
lien upon land. 1t is also a quail
fcatiou of an elector to vote. In the
speakers experience, reading or knowledge
this is the first case in which man haC
to come into court in order to have tn,
privilege Of paying debt.
The payment Of tax is, by no princi
pie of law, required to be made in person
by taxable. but may be made by al
agent. One of the cases cited in suppor
OF this point, was one in Houston's Della
ware reports, Of a man named Livings
ton, who was arrested for lille
gal voting in Pencader hundred
He owned property on which his bro
ther had paid taxes and obtained the re
ceipt His father had died and left tn,
property to several heirs. The court
through Chief Justice Gilpin, ruled tha
the brother had acted as the lawful agen
of the one whose tax he paid
In this case, the Senator argued, tn
use of the powers of attorney wea no
only authorized, but necessary, by tn
futile attempts Of those who gave then
: to pay their taxes. There wer'
1900 names on the assessment
list. 1t was the respondents duty t.
collect their taxes. He was fully com
3 pensated by the commissions on the same
) and if he found the task too srduous b
could resign. If the volume Of busines
was very great he could employ clerks
A large portion of the citizens are no
, property owners, and depend on thei
J labor for bread. 1t is his dut,
: to accommodate himself to th'
exigencies of the case and suit hi
, own convenience. He should be com
T PEELED by law to sit at hours when thes
persons could pay their tax at their con
venience. It is his duty to save then
! time and trouble and to see that tn,
} county receives every cent of taxes
Mr.. Higgins then arraigned the re
spondent for his efforts not to collec
taxes, speaking sarcastically of tn
/ methods he uspd If ag he stated an hi