Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1897-11-11

enced and controlled their action in in
definitely postponing said petition.
The complainants further allege "That
it was made to appear to said Levy Court
by said petition and statement, that there
was danger of loss to the complainants as
suretics as aforesaid, by reason of their
said suretyship.'
And they contend. that although the
language of the statute simply confers a
power upon the Levy Court, and in its
terms leaves its exercise to their Judgment
and discretion, yet the permissive words
are in effect mandatory; that the power
thus given is in the nature of a trust
for the benefit of the surctics and il was
the plain duty of the Levy Court to give
them the relief prayed for.
They therefore claim. that even grant
ing the contention of the defendants,
that the Levy Court did inquire into the
natter. they nevertheless violated the
duty imposed upon them by the statute,
and impaired the obligation of the contract
of suretyship. in that they refused to
grant the petition of the sureties upon in
formation in relation to Dougherty's con-
duct in the office of Collector and the
character of his accounts. which, they
claim, brought home to the Levy Court
al the time the petition was presented to
them. the knowledge that Dougherty was
fraudulently in default.
The defendants on the other hand,
maintain that under the provisions of the
statute 1t was discretionary with the
Levy Court TO grant or refuse the prayer
of Dougherty's sureties. even If the Court
hnI &c 81, L.
danger of loss to the siireties, which they
deny; that many considerations affecting
the public interests might enter into their
deliberations and affect their decision
quite independently of the interests of the
suretics
The contention of counsel here, is upon
the application to the questions raised
by the case under consideration, of n
rule of construction about which there
seems to be practically no dispute. In the
case of the Ncwburg Turnpike CO. VS..
Miller. ) Iohnson's Chancery. u. 49,,
which is cited with approval in substan-
tinlly all the American eases upon tho
point it is expressed by Chancellor Kent
as follows: in respect to statutes. the
rule of construction seems TO he, that the
word may means must or SHALL only in
cases where the public interest and rights
are concerned, and where the public or
third person have a claim. de iure, that
the power should be exercised"
Many cases were cited upon this point,
and in particular Julius VS.. Lord Bishop
of Oxford. i. r. ) App. Cas-, 214, in
which there is not only mastery anal
ysis of all the English cases going to es-
tp61 . l.. - f-1.
tons and clear statement of it.
But the contentious upon this point as
well as the other questions which have
statcd at length can only be properly con-
sidered in relation TO, and, ir suhordination
to a principle of law which the counsel
for the defendants claim to he applicable
to. and decisive of the question at issue.
This principle is based upon the dis
tinction which exists between the lia-
bilily of sureties in the official bonds of
public officers. and their liability in sim
liar bonds given in private undertakings.
1t is claimed by the defendants that
assuming that the contention of the COM
plainants il correct, that the Levy Court
did not inquire into the matter presented
by the petition of the sureties as required
by the act of March %. 1877: and assum-
ing further tht this act was mandatory
upon the Levy Court. and that the Levy
Court Improperly declined to grant the
prayer of the suFeties, yet nevertheless,
such breach of duty could not operate to
discharge the suretlcs from their liability,
because of the wellcstablished principle
of law that snreties in official bonds of
public officers arc not discharged because
loss to them occurs through the acts or
omissions, the fraud or wrong doing of
other public officers unless the wrongful
act or omission inhercs in and is made
part of the condition of the obligation
upon which the suretics are sought to he
held. And this they contend is not the in
tention or effect of the act of March
23rd, 1877, upon the provisions of which
the complainants base their claim for re-
lief.
The compartments on the other hand
contend that the provisions Of The act of
March 23rd. 1877, did enter into and
form part of their contract Of surety
ship.
The cases in which the Supreme Court
Of the United States has passed upon the
liability of sureties in the official bond of
pubic officers, where loss has occurred
in consequence of the acts or omission of
other public officers are comparatively
few in number. although they cover a
period of over fifty years. One follows
the other in very interesting and in
structivc manner and they arc all cited
as authorities TO hr implicitly followed III
the cases by counsel from the state courts.
will therefore consider them at length,
and then endeavor 10 ascertain wherein,
if at all, the case under consideration
can be differentiated from cases whose
authority and correctness is absolutely
unquestioned The first case is that of
the United States VS.. kirkpatrick. ct al,
o Wheaton. p. 100, decided in 1924. in
which the opinion was delivered by Mr..
Justice Story.
The next case of that of the United
States V. Nanzandt, IL Wheaton, p. 1S4.
decided in 1926, opinion by Mr.. Justice
Washington
In the third case. that of Dox ct al,
V. the Postmaster General, l Peters. p.
322, decided in 1928, the opinion of the
Court was delivered by Chief Justice
Marshall, and so fully reviews the two
cases that quotation from his
opinion seems the best mode of present.
ling those cases Dox was deputy post
master, and the suit was instituted in the
court below against him and his sureties
on bond given for the faithful per-
formance of his duty Dox was removed
from his office on the first day of July
1916. but the Postmaster-Ge General did not
open an account against him and make
any claim and demand on lin for the
moneys received by him, as postmaster,
until the first day of July 1921. At the
time of his removal from office, he was
solvent and able to pay his debts, and
continued SO until the first day of July