Delaware gazette and state journal., 1896-04-09
THE nOuGHERIY CASE.
Argument in the Case eConciuded-A Addresses
by Messrs. Bradford and Nieids.

l
Argument in the Case conciuded-Addressei
by Messrs. bradford and Nieids.
The argument in the Dougherty case
before Chancellor Nicholson was con-
tinued on Wednesday and Thursday.
f. q. Bradford, for the Levy Court,
held that tho Levy Court did fully
inquire into the matter that had been
presented by the petition of Dougherty't
sureties. He commended that under the
statute the Levy Court had discretion
and under that discretionary power they
had laid the matter on the table. As.
Huming for the sake of the argument
that tho discretionary power would
have been exercised in favor Of the
sureties, but for the fact that the Levy
Court were mistaken on II point of law,
namely. the Five Commissioners bill,
yet even on that branch of the case IL
was necessary for the sureties TO prove
aflirmatively that there was danger OF
loss and that knowledge had come to
the Levy Court, which he held that
the suroties had failed to prove.
Mr.. Bradford, contended, moreover,
that the, public is not to lose its revenue
by reason Of any mistake or wrongdoing
of any of its officers.
He also contended that the county
is clearly entitled to recover the amount
of the poll taxes which had been paid
TO Dougherty and for which he fraudu-
lently claimed and was allowed credit
as delinquencies in March, 1891,
amounting TO about 50, 900, also that
the county is entitled to receive the
balance of the full amount claimed
Holding that the sureties had not
shown that they were entitled to be re-
lieved under the act of 1877, Mr.. Brad
ford further contended that the act of
1877 was not mandatory but merely per
miesive and that there being no right
or claim dc jure, on the part of the
sureties, aside from this statute of 1877,
the permissive words contained in that
statute did not create any right in favor
Of tho sureties which they could en-
force.
Mr.. Bradford further contendcd that
the sureties could not escape from their
liability, because of the broad princi-
pile of law that the sureties on the Off
cial bond of tax collector or other
public officer can never be discharged
by any act, omission. concealment,
illegality or fraud on the part Of any
other public officer; that the public is
not to lose its revenue by reason of any
mistake or wrong doing on the part of
any of its officers; that public officers
are merely agents of the public and
when they depart from the law which
should control their action, they act
beyond the scope Of their authority
and cannot cause loss of revenue to the
people.
Finally Mr. Bradford held that If the
sureties were entitled to any remedy it
was remedy by mandamus which
should have been resorted to by the
sureties upon the refusal of their ap-
plication. Mr.. Bradford cited large
number of authorities.
Col. Benjamin Nields delivered tho
closing argument in the case Thursday
afternoon. He contended that no such
examination as was contemplated by
law was made by the Levy Court into
matters contained in the petition of
the sureties, and showed by tho evil
dence that that was fact; that tho
petition was presented on tho Goth of
May (1S9l) and a resolution was at once
offered to postpone any action on the
matter until the 22d; that the court
did not meet on the 2lst, and when it
did meet on the 22d Mr.. Bradford gave
the court i'm opinion that the Five
Commissioners bill abolished the Office
of tax collector and tho court then
passed resolution that in view of
their attorneys opinion the petition bo
indefinitely postponed.
Mr.. Nielda held that none of the
Democratic mombers of the court were
consulted except Mr.. Eliason; that
almost all Of the members of the court
were Of the opinion that the sureties
were in danger of loss but thought
under the Five Commissioners bill,
they were poweress to do anything.
Mr., Nields further contended that it
was the right Of the sureties to have
the unpaid taxes made available to the
payment of Dougherty'a bond and he
cited authorities to support that con-
tention. He took tho ground that the
principle of laches on the part of gov
ernment officers did not apply in this
case for the reason that the statute of
March 23d, 1877, was passed solely for
tho protection of the sureties, and that
the State could not disregard or vio-
late the law, and in a court of equity
claim that Notwithstanding it had
broken the law the suretics were still
liable for tho reason that sureties can
not claim immunity by reason of the
laches OF the government.
According to Gel. Nields' statement
II the Levy Court had been half as
Jealous to collect the s02, 600 that ap-
pered uncollecteu and unpaid by tho
collectors, as they were to defeat the
operations of the Five Commissioners
bill, the revenues belonging to the
county would have not been put in
danger and would have all been col
lected.