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

toulu not ne reneNeu from the nDllEHtlon
they had assumed to the State of Della
ware, by any action or non-action Of the
levy Court upon their petition, unless the
statute under which that petition was pre-
sented, differed in such essential particil-
lars from the statutes construed in these
authorities, as to deprive the State, in this
instance. of the protection of the principle,
that, it lis not responsible for the lnches
or the wrongful acts of its officers and
10 give TO its provisions the effect of CON
tract on the part of the State of Della
ware with the sureties, that the Levy
Court of New Castle County should per-
form their duty under it, thereby making
the performance of certain acts by the
Levy Court part Of the condition Of the
bond.
Can the act Of March %. 1877, be so
read
| have cited it at length above. and it
only remains to compare it with the stat
utory provisions in consequence of the
disregard of which by government of
ficals, arose the eases in the Supreme
Court. which taken together, establish
and define. as we have seen, rule that
renders the position of Sureties in official
bonds so different from that of sureties
in private undertakings.
The contention of counsel for the CONF
plainants is. that the statutes considered
in those decisions were enacted for the
security and protection of the government,
and that those decisions were based upon
such construction of them: whilst on
the other hand, our state act of March %.
1877, was enacted SOLELY for the benefit
and relief of the suretcs.'
IN case referred TO above. in another
connection tJnlills :. Lord Bishop of Ok
iordi. Lord Pcnzance. in the course of his
opinion, expressed a thought which must
at times occur tp every diliscnt student
OF the authorities.
lie remarked, passing therefore from
definitions which arc apt not to be uni
form, and which are with difhculty so
framed as to be applicable to all cases, l
think 1T far more satisfactory that your
l4ordshlp should look at what the Courts
in previous cases have done, rather than
what the learned Judges may have said"
Now, | have already cited the authors
ties at such length as TO set forth both
what the learned Judges have said, and
what the Courts have done, and nothing
could be more obvious than, that what
ever may be the proper construction TO be
placed upon the language used by the
Judges IN some OF tliise eases, yet the
provisions OF all the STATUTES. eX neeessi-
tate rel, secured and protected the sure
ties and the government alike, il obeyed
by the government officials; and in the
case OF Hart VS.. United States, this is
clearly stated and FUZZY set out by Chief
Justice Waite in his opinion.
When we compare those statutes in
detail with our State act of March %,
1877, IL is impossible to discover any
difference between the thing required to
be done BY nc U. =. 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
The statutory provision, that default
ing paymaster should he recalled and an
other appointed in his stead, is assuredly
no less a protection to his stireties than is
the provision in our State statute. that Il
defaulting tax collector should, under GER
tain conditions, be deprived of the power
of collecting more taxes and another cod
lectir appointed in his stead a protection
to the sureties on the collectors bond.
And yet. when the officer of the govern
ment instead of Oheying the statutory
mandate by removing the defaulting pay
master and appointing another person in
his stead. placed further funds in his
hands which he emhezzicd, the Court
held that the sureties we're not discharged.
and they were Obliged to pay to the gov
crnment the money which their principal
was thus enabled to embezzlc. Vanzandt
vs.. L. S.
Again, the provision that the govern
ment officer shah not permit distilled
spirits to be taken from his custody until
the tax upon them be paid. is certainly
not less Il protection to the sureties in
the distillers bond than is the provision
in our State statute that the power 10 col
!cct certain unc0llected taxes be taken
from defaulting tax collector, and given
to some duly qualified citizen to be Sc
lrcted by The Levy Court. protection TO
the sureties in the collectors bond.
And yet, when the government officer
instead of obeying the statutory mandate.
did permit the distiller to take away the
spirits that were made by a statute a spn-
cilic security for the internal revenue lux
due thereon,an he then fsiled to pay Hhe
tax. the court held THAT his sureties We're
not discharged. and they were compelled
10 pay 10 the government the tax owod by
their principal. for which the government
had held ample security which its agent,
in violation Of statute existing when
the sureties entered into their contract,
gave away. Hart VS.. United States.
Or. reversing the point of view, if Sc
curity and protection were afforded to the
government by these provisions of the
L.. s. statutes, il cannot he denied that