Daily Republican. [volume] ([Wilmington, Del.]) 1874-1890, 1890-01-16
THE MANDAMUS.
THE COURT DECLINES TO
GRANT 1T.


perior Courts decision principally upon
which the writ of mandamus was refused:
There is no provision Of the law for the
collection of taxes which requires OF q
collector that he shall, in the discharge
Of the duties Of his office, to collect taxes
aud give receipts for them, deal with an
attorney In fact or deputy Of the tax.
payer. AS was said In the argument, the
constitution and the law equally con-
template the payment Of public taxes by
the taxable In person, but there 10 no
prohibition against doing II through an
agent, because - . general rule, and
payment Of txxes iss4 exception to It,
whatever concerns Qp99 own private In
terest alonszhsanay do through the as
sScy ,.,,ns Of another, :; In naS. ias..
own afaiT simply is ottener done by
others xh& himself. No reason can be
given WIN Z atakibie should not appoint
an agent o&Attorney to act for him in the
payment Of tax assessments as we'll as
Othe, Satfns. This 10 his nnquestion
right, and where, NJ In the cases of ap-
pointment shown by the affldavits In sup
port Of the relator's petition, this has
been done, o collector would not only dis
regard his oath of Office, but be guilty Of
breach OF bis official bond, II he refused
| to rsceive the taxes rendered by an at
torDS 'rfact Of a taxable, unless he col
Acne egainst such taxable In
=. osf4rWise.
| r, valid power OF attorney, ~ those ex.
hibitsd in this case are conceded TO be by
this respondent, would not only be .
means of saving tho collector the neces-
sity Of calling In person upon the Taxa
bic. but shield him also from the penalty
Of the law against improper delivery OF
the receipts, Tor certainly q tax receipt,
delivered TO an agent authorized TO re-
ceive 1t, cot i not be treated III crimi
nal prosecution under the aforesaid third
section of the act aforesaid, ss one made
\ Tor All unlawful or fraudulent puip pose.
!. The clause WAS put into the act of 1873
y 70 prevent asii,ciy by collector under
Just such circumstances A. those neu-
toned In one Of the clauses Of the respon-
dents answer Still, as had been said
before, there 10 no statute which requires
u collector to receive one mans taxes
when offered by another acting as agent
OF attorney for him; although lie would
be liable on his bond for refusal to do
this, the came as if the offer to pay had
been made by the taxable himself But
this liability under his official bond 10
not one OF which the taxable can avail
but only the public through the agency
OF their servants, the Levy Court Com
missiohers. Although man may make
another his agent to receive sum ol
money for him, there is no process known
to the law to compel payment to sucl
sgcnt, but the constituent OF tho attorue,
has kis remedy by ordinary action to col
',"t the debt himself.
\, -. light to pay ". . properly constl.
tutsd attorney may exist, but yet th,
debtor cannot be compelled to pay him
10, In this case before US, the collector
not questioning the validity OF the in
strument appointing the attorney, hat
the right to act upon II II he chose, ans
, would have been safe in doing IT. yet. be
could not have been compelled to do 4
on ielusal; for he had the option 10 col
leot from the taxable himself, OF which
no court by . mandamus can depriv,
, him. only when II Is evident that h,
} does not intend to collect Ia one way O.
the other can the law be invoked 10 aid
the taxable. In case of refusal by tn
collector to allow an agent to pay hil
principals tax, such priocipal must pay
his own tax; " he offer to do so. and thu
collector deny him the opportunity, then
he may coma to this court, and he shall
not be denied the relief he has the right
to ask for. But we must not, upon the
case made by the petition, interfere now
to declare what the collector shall do
there being yet about two months 10
which he may perform his duty In the
collection Of taxes.
Not until the frat Tuesday of March
can collector OF taxes return his delin-
quent list to the Levy Court. Now the
re.pon Cent, In his answer to the applica-
iion for the writ, states 10 effect that hs