Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1891-06-11


The Test Case
There has been some misunderstand-
Ing among readers of the levy court
proceedings as to the present status
of counsel delegated 10 present a
test CASE under the Five Commissioners
act before the Court of Errors and APP
peals. The fact is that Mr. Bradford
has withdrawn from the case, Mr.. Spru-
ance will appear for the plaintiff, Mr..
Thomas B. Smith, and Attorney GEN
eral Biggs as counsel for the defendant,
Collector Rulings. The history of the
case, briefly stated, is as follows:
On Tuesday afternoon week Levy
Courtman Jolls offered the following
resolution, which was adopted
WHEREAS, The attorney of this court
has given his opinion that the collectors
appointed to collect the taxes for 1890 have
now no authority by law to collect and re-
Ceipt for the same, and
WHEREAS, 1t is of great importance that
a judicial decision should be had upon the
above point, to the end that the rights and
liabilities of all interested persons may be
finally determined.
Rs$ohed That the attorney of this court
is hereby authorized and requested, either
with or without associate counsel as he
may determine, to have the above point
presented in a case stated to the superior
court of the State Of Delaware in and for
New Castle county, now in session, and TO
have the same if practicable determined
by said court and the court Of errors and
appeals during the present month.
M, praI far3 a. nc1pc1I f,,r ti1a law
court, having given an opinion that the
ex-collectors had not the authority, under
the Five Commissioners act, TO collect
and receipt for the taxes Of 1890, had
thereby incapacitated himself from
serving his client in the proposed test
case. He could not argue against his
own opinion on the one side, and, Of
course, as counsel for the levy court,
he could not argue against the interests
of the county, on the other side There.
fore he requested Messrs. Spruance and
Biggs to take charge Of the matter
while he (Mr. Rradford1 withdrew from
the case, leaving it entirely with Mr.
Biggs to support the aff1rmative-that
the ex-collectors have the right to go on
collecting, and Nj. Spruance to main.
tain the negatiye-that the Five Com.
missioners act has put it out Of the
power of the ex-collectors TO receive
any more taxes.
Messrs. Biggs and Spruance then wen
to work to get up test case, which they
completed on Thursday and presented
to the superior court Immediately upon
its opening Friday morning BY thi
arrangement, ex-Collector Rulings O
New Castle hundred made distrain
upon the personal property of Cour
Crier Thomas B. Smith for taxes ap
pearing on his duplicate as due from
Smith. In pursuance of this prelim
nary step an amicable action wal
docketed, whereby Smith becain
plaintiff and sued the collector 70
trespass on the ground that Rid
ings was no longer authorized +
collect and therefore had no right +
make the distraint. Everything wa
done by both sides to expedite the mat
ter and, by agreement of counsel cas-
stated was framed upon which til
court was asked to decide the question
of law involved. This case was pre-
scented to the superior court Frida
morning, as above stated, and was rt
served by the court and referred to a
the judges to be argued before the cou,
of errors and appeals, which will met
at Dover on Tuesday, June 18th, an
not June 23d as has been erroneousl
stated.