Evening journal., 1897-11-09
INJUNCTION REFUSED
[continued From FIRST Page.l


ship.
"The bond in the cause under consid-
Grafton was given as we have seen. by
Dougherty and his sureties to the State
of Delaware, conditioned for the faith
full discharge of his duty as collector of
county taxes; and it is not even sug-
gested that the principles governing the
liability of sureties on official bonds
given for the Federal Government, do
not apply equally to bonds given to a
state government
1T is obvious, therefore, under the
authorities | have considered at such
length, that the sureties on Doughertys 8
bond could not be relieved from the OBJ
legation they had assumed to the State
of Delaware, by any action or MONACO
tion Of the Levy Court upon their petit
tiOn, unless the statute under which
that petition was presented, differed in
such essential particulars from thel
statutes construed in those authorities,
as to deprive the state in this instance
of the protection of the principle, that
it is not responsible for the laches or
the wrongful acts of its officers, and
to give to its provisions the effect of a
contract on the part of the State of
Delaware with the sureties, that the
Levy Court of New Castle county
should perform their duty under it,
thereby making the performance Of GER
tain acts by the Levy Court part of the
condition of the bond.
when we compare those statutes in
detail with our state act of March %,
1877, it is impossible to discover any
difference between the thing required toI
be done by the United States statutes
ON the one hand and the thing which
the Levy Court was empowered to do in
the other, which upon any conceivable
theory could sustain the contention of
cOmplainants counsel
Assuming, therefore, the claim of
cOmplainant's counsel to be correct,
that the permissive language Of the
statute under consideration is in effect
mandatory, the only difference that can
be discerned between the mandate it
contains, and the mandate of the stat
utes, with which / have thus compared
it is, that in the state statute it is con-
ditioned upon the action of the sureties,
and under it there could be no laches or
wrongful acts in the premises on the
part of the public officers, until there
had been action by the sureties, the
Levy Court not being empowered or re-
Quired to take any action looking to the
removal of a collector unless certain
preliminary action shall be taken by his
sureties. To use the words of COM
plainant's counsel. what is required to
be done by the Levy Court is solely on
the motion and initiative of the surety.
And they rely upon this feature Of
the statute, taken in connection with its
title, An act in relation to the liability
of principal and surety to support
their contention that the act is solely
| for the benefit of the sureties and that
| the authorities cited do not apply to it.
1T cannot be cOntended, however,
| that this condition OF the statutory
mandate alters the effect Of the thing
| commanded, or if it be not done, the
effect of the laches or wrongful act of
the public officers upon the interests
either of the sureties or of the public.
AN examination Of the whole course
of decision upon the question of the
rights and liabilities of sureties in Off
cial bonds. has left me with no doubt
that the authorities l have cited are de-
cisive of the point under consideration
and must control the decision of this
court.
"The principles established by those
/, authorities are based upon the broad
consideration of public policy which are
always prepotent in the determination
OF questions which affect the interest!
Of the public-the state-and especially
: the public revenue, which is vital to th'
existence of government, and they have
met with universal acquiescence.
THE sureties in the official bond o
% John ]. DOugherty as tax collector, etc.
must be presumed to have entered int
I 1 III. HN.Nn
= Delaware with a knowledge of thos
e principles of law, and the foregoing
}, consideration and comparison of tn
statutes fails to disclose any provision
Il of the act of March %, 1877 which, il
o the light of those authorities, either eX
pressly or by necessary implication
makes the state responsible to thos
III sureties for any failure on the part O
J. the Levy Court of New Castle county {
comply with the provisions of that act
Il In view of this conclusion, it seem
n entirely unnecessary for me to ente
upon the discussion of the questio
whether or not the Levy Court, afte
the petition of the sureties had bee
presented to it, did or did not inquir
into the matter within the meaning {
g the statute.
- Having been irresistibly led by tn
authorities and arguments already col
~ sidered to the conclusion that, even
the Levy Court of New Castle count
= d.d disobey the mandate of the statut
= In this particular and refused to inquil
v into the matter laid before them by II
<. petition of the sureties, yet, neverthele.
m the complainants would not be di
* charged from their liability thereb
ly and this court would not be warrant'
r in interfering with the full legal ren
d. edy CT the state upon their bond.
deem it unnecessary, if not imprope
III for me to pass upon the questiC
whether or not, upon the pleading al
evidence in this cause such was q
,,, fact.
-. The case of the complainants mi
n. be a very hard one, but It is one whe
II. there seems to be no warrant for {
on Intervention of this court.
1T is only necessary to advert to o
other point in the case.
THE execution issued on the jud
in ment entered against the sureties is
I'd the sum of sixteen thousand, three hu
to dred and fifty-three dollars and fort
fbra.o oonfg xvbfob &c rfnnfpQu bnudr