Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1893-11-16

Inc Chancellor expressed his opinion
that the case ought to be settled by the
court OF errors and appeals. However, lie
was quite ready to listen to counsel.
Mr.. Bradford then commenced his adj
dress. Ia the outset he rected the whole
story. Following the recital he said that
on May 10th, the time OF petition, the liza
bility of Doushcrty and his sureties was
fixed. The March settlements were final.
The surelies had no rights under the law
of 1877, nor immunity until the bond had
been paid in full. In May. 81, they pre-
scented their petition and the Levy Court
declined to grant it.
Counsel discussed three considerations
discretionary, directory, and mandatory.
II the power considered under the act of
~ were discretionary then there would be
an end to the case. If the authority of
that act were directory, but not mandatory
then the sureties cannot succeed in the
premises. Besides IL will be always held
that the public cannot lose on account of
q public officer not performing his duty.
The Legislature does not contemplate the
public shall suffer unless the requirement
is mandatory one. Counsel reiterated
that the commissioners have discretionary
power.
1t appears OH the face of the aifidavits
that the Levy Court made inquiries into the
matter and then declined to grant the
seek immunity after the Indebtedness had
been fixed.
Mr.. Bradford resumed argument Friday
morning.
He said that the Smith against Rulings
case indicates an indulgence by the Levy
Court, there is no bounden duty imposed
upon the commissioners to grant the sure
ties prayer. The provision of the statute
impressed the court of appeals rs q power
at their discretion and not as mandatory.
Mr.. Bradford renewed his argument in
the direction of the fact that the govern
ment is not to suffer by the laches of its
otiicerss although the sureties may lose
in the premises. The sureties cannot be
discharged of their liability under bond
unless there be special law for it.
In reply to a question from the Chan
cellor Mr.. Bradford thought that if the
collector on the second bond, that is the
substitute collector appointed in the place
of Dougherty, had received tax money on
that account and not paid it over and his
sureties proved not responsible then both
sureties, first and second would be liable.
The public had to be protected.
While the purpose of the act in one sense
was to grant Immunity to the surety, still
the public interests are paramount and
there is nothing in the statute to allow of
the county revenues 10 be endangered. The
purposes of the act were for both the
sureties and the government.
The State does not enter into any con-
tract with the sureties. The government
is not responsible for the laches of its Off
GERS.
The question is raised now that the
words shall have power" shall be coil
strued as mandatory, the public is to lose
its revenue, and the sureties after their
liability has been fixed are too freed from
the liability of their bond.
Mr.. Bradford believed that there was no
substantial equity or justice in the com
plainant's case. They had every oppor-
tunty to secure a mandamus from the
superior court. They now come in and
insist the public shall lose all of the col
lections in question. That is not equity
in my opinion.
Mr.. bradford closed little after IL
o'clock.
He was followed Immediately by Senator
Gray.
hi asking for q preliminary injunction
Senator Gray said he did not look on this
ms final Judgment in the case. No risk
nor injury can come TO the State by stay
Of proceedings, In this case it cannot be
doubted that the law existing at the time
the contract was made entered into this
contract. The whole system Of law that
governed and regulated the duties of
sureties or their liability; the law of the
llIue vi Iuc COllecilOllSi tne liability OF Jne
collector; the provisions of law regarding
substitute collector; and the law allow
ing the sureties to apply to the Levy Court
for relief from collector.
"For whose benefit" the Senator de-
manded, was the law of 1T enacted2 Is
it entitled law in relation to the Levy
Court? No. In relation to the liability on
the collectors bond2 No (all this is pro.
vided for by law).
t.It 10 antitlpd lAp cf in RaIaf;a,, b, Al, -
Liability of Principal and Sureties. The
body of this law relates altogether to the
rights of sureties in regard to the collec-
ton of county taxes. 1t is for nothing else
but to protect this class from any loss that
may fall to them outside of fair liability"
Counsel for the Levy Court assert that
this law was for the benefit of the public.
1t was not so,
He said 1--WE must get at these sureties.
We must get from them the last ducat."
81 cannot but think" said counsel, "of
where the book gives the3instance of the
creditor demanding the last pound of flesh
to be cut from the heart of the debtor.
Those beneficent equities of which the
book speak must be thrown to the winds,
because forsooth the county must not lose
its money"
Counsel continued in referring to a
time, in May, 81, when the Levy Court
was not too careful of the interests of the
county. A loss of $4,000 was whistled
| down the wind. They made haste to dis.
charge John j. Dougherty and IL other
collectors of this county and know not
what aggregate of money may have been
| lost, but 1t was many thousands of dollars,
The hard subtilities and refinements of
the learned counsel in presence of the
! equities due from man TO man are out of
keeping here.
The right sought to be asserted Is one
that existed antecedent to the passage of
the enactment. 1t was to have the right
that the collections made by the second
collector be placed to the credit of the col
lections of the first collector. These men
are liable on March 3lst for all taxes un-
collected, less allowances. But the law
provided that the collector should have the
right for one year afterwards to collect
uncollected taxes. The court said he
should have this right for the benefit of
embarrassed taxables.
We know a collector never collects all
his taxes the first year. Even an honest
collector is called on to indulge impecunious
taxables, and the law comes in and says !:
You can go on"
Counsel asserted that the refusal of the
Levy Court to extend the powers of this
law was an intentional disregard of the
law which in no way could have acted in
| iuriously on the rights of the county. 1t
was Il cruel disregard of the sureties' rights
in the premises-to throw them out of the
Levy Court chamber without redress, when
at the time it would not have injured the
county.
Senator Gray continued in showing that
the Levy Court did not inquire as they
should into the book accounts when the
petition was made.
Senator Gray closed his argument at this
afternoons session at las o'clock.
Chancellor Wolcott then SAID: with
out wishing to express an opinion on the
merits of the argument, / think pre-