Omaha daily bee., 1899-06-08
WORK OF The SUPREME COURT
Present Sitting of the Tribunal Will Come
to a Close Today.
SULLIVAN MURDER CASE UP FOR HEARING
Attorney General smyth writes n Let
ter Regarding the Liability of
Former Treasurer Lynch
of Platte County.

of Platte County.
LINCOLN, June 7.-(special.) )-The pres
ent sitting of the supreme court will be
brought to a close tomorrow morning and
all opinions will be reserved until that time.
This morning the Sullivan murder case, ap-
pealed from Douglas county to the supreme
court for reversal on account of an alleged
error, was argued and submitted Sullivan
was convicted in the district court OF muir
der in the second degree and sentenced to
twenty years in the state penitentiary. The
attorneys for Sullivan claim that the prose-
cution has not proved conclusively that the
murder was committed by Sullivan. They
admit that the evidence shows that Sullivan
had revolver in his hand when kirkland,
the murdered man. was found and that he
had fred a shot, but they contend that no
proof has been introduced to show that the
bullet wound had caused the death and that,
according to the decision OF the court in
Omaha, all a man would have TO do to prove
murder would be to find man with a
revolver in his hand. hear the sound OF a
gun, find dead man near by and then eend
the man with the gun to the penitentiary.
Attorney General Smyth today wrote an
opinion regarding the liability of ex-County
Treasurer Lynch Of Platte county and his
bondsmen for the amount OF taxes due from
him to the state, also whether the county
could be held liable to the state for the
state taxes unaccounted for IL they cannot
be collected from him or his bondsmen. The
opinion is In response to letter of inquiry
from william O'Brien, attorney for Platte
county. The case is the one wherein j. w.
Lynch, county treasurer, defaulted about
three years ago and still owes the state $13
200. The attorney general has been severely
criticised for not taking some steps to re-
cover this money, the neglect having induced
even the Murz smiling" committee to cen
sure the attorney general in its final report.
Text of the Letter.
The O'Brien letter is as follows:
LINCOLN, Neb.. June 5.-Hon. William
U OBrien, County Attorney Columbus. Neb
Dear Sir: l have your favor of May %, in
which you ask for my opinion with respect
to the two following questions:
l. Should not the county board of Platte
county request the state officers to make a
demand On j. w. Lynch ex-county treas
urer of Platte county, and his bondsmen
for the amount of taxes due from him td
the state of Nebraska, and
g Whether the county of Platte would be
liable TO the state for the amount of the
state taxes unaccouned for by the ex-treas-
urer in the event that 1t cannot be COZ
lected from him or his bondsmen?
In respect to the first question it is my
opinion that it is not necessary for state
officer to request the county board or any
officer of Platte county to commence action
on the bond of ex-Treasurer Lynch On
the other hand 1t Is the duty of the county
to proceed against him and his sureties at
once. The action must be brought in the
name of the county and by the county, for
the state cannot bring it. This has been
so adjudged by the supreme court several
toad tota
Nebraska, 429, the court. after careful
analysis of many authorities bearing upon
the subject, decided that where the action
is for the benefit of the public that is for
the state or county, 1t must be brought
in the name of the obligee Of the bond.
The county is the obligee and hence 1t
must be brought in the name of the county.
The same view is taken in Thorn against
Adams County, 50 Nebraska, S25, In which,
after citing and approving the determina-
ton of Afbertson against The State, supra,
the court says, 1T may safely be said not
to be the policy OF the state to assume the
burden of such litigation but that by long
usage, II not by positive law, the same has
been relegated to the respective counties,
by which. 1 think, by virtue OF a power
quite analogous to that of a trustee of an
express trust the same may be prosecuted"
The question was again before the supreme
court in County of Valley against Robinson,
80 Nebraska, 254, and 1t was there contend I'd
that hhe action should be brought in thu
name of the state to recover state taxes COL
lected by the treasurer, but not accounted
for. The court answered the contention
by saying: I'm an action brought by a
county on the bond of it's treasurer to re-
cover taxes collected by him for the state,
held the action properly brought in
the name of the county, that while the
taxes were due the state, yet they were
levied and collected through the county
authorities and were a charge against the
county until paid into the state treasury
The auditor of public accounts may and
perhaps it is his duty to request the county
authorities to proceed on the bond of Mr.
Lynch, but such request Is not necessary
to the right of the county to commence
action. Nor does the failure OF the auditor
to make such request relieve the county of
its duty to sue on the bond.
Answering your second question, you are
advised that in my opinion the extent Of
the county's liability on the hypothesis
stated therein would be limited to the max
imum rate OF taxes which the State Board
OF Equalization is authorized to levy
find no provision authorizing the levy
OF any greater tax.
Unohicially 1t has come to my notice
recently that the sureties on Mr.. Lynch's
bond have paid into the treasury of Platte
county a large sum of money to liqudate
Mr.. Lynch's shortage and that the treasurer
OF your county has not accounted TO the
state for any portion of the money so paid
II my information Is correct, i shall con-
tend, should 1t become necessary, that the
treasurer is responsible to the state for its
proportion of the money so paid and that a
failure to account for that proportion sub
hn hu