Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1890-01-16
]. Ely pAmus nnrnsrp.

Tho long expected and anxiously
awaited opinion Of the superior court
npon the motion for rule upon County
Tax Collector John j. Dougherty to show
cause why writ of mandamus should
not BIO issued compelling him to honor
powers of attorney for the payment Of
poll-taxes, was delivered at yst,id y
session of court. The opinion was
the unanimous expression of all the three
judges and was read by Chief Justice
Comegys. It's full sext Is as follows:
This case was well presented to the court
BY the counsel on both sides; and we sup
puee all that could be urged, pro and con,
In the controversy before US, has been
brought forward 10 the argument, for our
consideration. 1t is on some accounts nn-
fortunate that 1t became necessary, rs was
supposed, TO Introduce It into the business
10 De tranaactna by the court; for. In oil
zach deputies, no decision can be rendered
that will be satisfactory to more than one
class Of the people.
Ii Il not imprcper. l think, to say that
ehis seems to be q vital controversy to both
she political parties In this Stata--the un-
wonted zeal which characterized tue dis
cuseion On both sides, Indicating such i'm
portance very plainly. 1t would hnya been
very agreeable to the court TO be spared
THE necessity OF giving Judgment, which,
In any event, sncn is the temper OF political
partisans, cannot satisfy the public gener-
ally, but only "A part OF 1t. However that
may be, Il is our duty, as the case is before
lis, TO decide 1t, as we best may, according
to our ability and we will trust that tho
better poEtlbn OF those dlscoutented with
tbs decision wlllntlmately believe the view
we take Of 1t Il the correct one.
Before entering upon consideration OF
the principal question In the cHsa before
ttz IL ftFf hf.t Ffa Eh mi "a
whether the petition filed By the relator
should be entertained by tho court, in view
, oil the objections sol forth IN the argument
OF this counsel for the defendant: 1st, that
the raetor has no practical Interest In the
RuhjecI matter OF his complaint, except IN
sucn minute degrees AZ will not justify the
court In setting In motion its extraordinary
remedy for alleged breach OF pubic duty
by an officer; ard "a, that the application
10 made prsMnturely. With respect to the
FIST OF tho objections II appears to bs the
Law. as shown by the authorities on that
point cite w the relatOt's counsel, that
any interest Of legal and direct character
will warrant the issuance OF IN ALTERNATIVES
nnudanius, AMI ultimately the peremptory
writ, unless sufficient cause, upon the hsnr-
ing OF the rule Ds shown against 1t. The
felator, John W. Hawkins, has an interest
81 the performance o. lis public duty by
the respondent-to wit, TN collection OF
E.l LIle lhS gDtIlllllol 10 uilu W ANtOllgclcuf
he being a taxable OF the county, owning
property within it-nnd which duty he
claims the respondent has not performed,
but refuses 10 perform, Il being alleged to
hs the Escript of all money offered to him
t0r the pnyueut Of taxes an! delivery Of re-
ceipt therefor the facts set forth ~ his APP
pliCation being that the respondent aas re-
fused and announced mia purposs 70 refuse,
poll taxes, and 10 deliver to attorneys In
fact of taNables assessed for them by whose
hands the money was rendered, receipts Tor
the money paid, in the form prescribed by
the act oil April 10th, 1873. This respondent,
ia his return to tho writ, alleges thai he
committed to him for collection, bn. ca \
has declined 10 recaive such taxes roU
Others than the taXahle5 Themselves
2nl TO deliver TO such others tng
receipts aforesaid; that ~, he refuses
TO give the tax receipts to tho attorney IL
fact OF the tuxables-and this under advtc
OF counsel. He also says that he has Away
been ready, when not engaged otherwis,
officially, 10 receive taxes from all tRxeblet
applying to pay them, and give them thu
receipts provided for by law: and that ht
shall be- 50 ready thereafter Ghe time OF tht
rsturn) until the March sessions OF the lev!
court, then near three months OF: this Il
tho substance OF his answer to the relator'
charges. But for tho fact charged and no
denied, and therefore TO be taken us true
that the collector mad refused to attorney
in fact OF tax9bles the receipts for take
provided for by the statute for taxes ten
iered by them, there would have been N
question to present to the court 10
tue writ Of mandumus. The relief sough
depends, SO Iar rs anything at present ap
peais, upon the question, whether or no
the collector was bound to receive tn
money OF taraDles when rendered through
an attorney In fact made for the paymen
of constituents taxes. and delivel to sue
attorney tho receipts tharefor-he bein
authorized by the powers OF attorney (
receive them from the collector. Lsr NJ
express 1t generally. Is u collector {
county taxes bound to receive from an Al
torney In fact, or agent, OF Il voter, his tai
and deliver to such attorney, or agent
receipt for It provided by the third sectio
OF the act OF April l0th, 1873, nioresntt, Ell
titled IAN act IN relation to the collector
of taxes III this State 7"
There II certainly, no provision OF Ii
law tor tha collection OF tayas, which n
quires OF a collector that he shall, In II
discharge oi the duties OF his oi1lC
IL collect taxes and give recelp
for them, denl with an attorney
fact or deputy of the taxpayer. As WI
said In the argument, the constitution HI
the law equally contemplate the paymel
Jf public taxes by the taxable In person
but thore Is no prohibition against doing
through IN agent; because rs gener
rule, aud payment of taxes Is no exceptiC
TO Il, whatever concerns ones own priva
tnteIest alone, he may do throuf
the assistance or agency OF anothe
Ia fact, nearly every thing pertai
ing to mans own affairs simply
oftener done by others tnau hill
Self No reason can be given why a taxah
should not appoint IN agent or attorney
act for hin IN the payment of tax asses
pfl So M nf nntnna Tbta Ia h
unquestionHble right, and where, as In Il
cuses Of appointment shown by the at
davits in support OF tho REALTORS petitlo
this has been done, a collector would Il
only disregard his oath of Office but
guilty of "A breach of his official bond II
refused 10 receive the taxes rendered by
attorney In fact OF taxable, unless he ct
leetel the same against such taxaole
person or otherwise. A valid power OF
torney, as those exhibited In tits case q
conceded to 10 by this respondent, would Il
only be means Of saving the collector 7
necessity Of calling In person upon the to
able, but shield him alac from the penal
OF tha law against improper dalivery OF I
receipts, Tor certainly tax receil
delivered to an agent authorized 10 i
oeive 1t, could not be treated
criminal prosecution under I
aforesaid third section OF the act aroresa
as one made for au unlawful or fraud
lent purpose. The oause was put into t
act OF 1873 to prevent delivery by u COLI
tor under Just such circumstances as the
mentioned In one Of the clauses OF tue
spondent's answer. Sill, as hns been 81
before, there is no statute which require
collector to receive ono mans taxes wh
offssed by another acting as agent or
torney for him; although he womb be linl
on his bond for refusal 10 do this, the sal
as II the offer to pay had been made by
taxable himself. But this liability unt
his official bond ID not one OF which