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of the levy court are in evidence upon this point, and also the testimony of the individual members composing the levy court, who were examined at great length with a view to ascertain what kind of consideration was given to the petition, what kind of inquiry, if any, was made by them into the matter presented by the petition, and what motives influenced and controlled their action in indefinitely 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 sureties 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 sureties, and it was the plain duty of the levy court to give them the relief prayed for. They therefore claim that, even granting the contention of the defendants that the levy court did inquire into the matter, 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 information in relation to Dougherty's conduct in the office of collector and the character of his accounts, which, they claim, brought home to the levy court, at 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 it was discretionary with the levy court to grant or refuse the prayer of Dougherty's sureties, even if the court had been of the opinion that there was danger of loss to the sureties, 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 sureties.

The contention of counsel here is upon the application to the questions raised by the case under consideration of a rule of construction about which there seems to be practically no dispute. In the case of Turnpike Road v. Miller, 5 Johns. Ch. 101, which is cited with approval in substantially all the American cases upon the point, it is expressed by Chancellor Kent as follows: "In respect to statutes, the rule of construction seems to be 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 jure that the power should be exercised." Many cases were cited upon this point, and in particular Julius v. Lord Bishop of Oxford, 5 App. Cas. 214, in which there is not only a masterly analysis of all the English cases going to establish the rule, but an extremely felicitous and clear statement of it. But the contentions upon

this point, as well as the other questions which I have stated at length, can only be properly considered in relation to and in subordination to a principle of law which the counsel for the defendants claim to be applicable to and decisive of the question at issue. This principle is based upon the distinction which exists between the liability of sureties on the official bonds of public officers and their liability in similar bonds given in private undertakings.

It is claimed by the defendants that, assuming that the contention of the complainants is 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 23, 1877, and assuming, further, that this act was mandatory upon the levy court, and that the levy court improperly declined to grant the prayer of the sureties, yet, nevertheless, such breach of duty could not operate to discharge the sureties from their liability, because of the wellestablished principle of law that sureties in official bonds of public officers are not discharged because loss to them occurs through the acts or omissions, the fraud or wrongdoing, of other public officers, unless the wrongful act or omission inheres in and is made part of the condition of the obligation upon which the sureties are sought to be held. And this, they contend, is not the intention or effect of the act of March 23. 1877, upon the provisions of which the complainants base their claim for relief. The complainants, on the other hand, contend that the provisions of the act of March 23, 1877, did enter into and form a part of their contract of suretyship. The cases in which the supreme court of the United States has passed upon the liability of sureties in the official bonds of public 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 50 years. One follows the other in a very interesting and instructive manner, and they are all cited as authorities to be implicitly followed in the cases cited by counsel from the state courts. I will therefore consider them at length, and then endeavor to 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 U. S. v. Kirkpatrick, 9 Wheat. 720, decided in 1824, in which the opinion was delivered by Mr. Justice Story. The next case is that of U. S. v. Vanzandt, 11 Wheat. 184, decided in 1826, opinion by Mr. Justice Washington. In the third case, that of Dox v. Postmaster General, 1 Pet. 322, decided in 1828, the opinion of the court was delivered by Chief Justice Marshall, and so fully reviews the two preceding cases that a quotation from his opinion seems the best mode of presenting those cases. Dox was a deputy postmaster, and

the suit was instituted in the court below against him and his sureties, on a bond given for the faithful performance of his duty. Dox was removed from his office on the 1st day of July, 1816, but the postmaster general did not open an account against him, and make any claim and demand on him for the moneys received by him, as postmaster, until the 1st day of July, 1821. At the time of his removal from office, he was solvent and able to pay his debts, and continued so until the 1st day of July, 1819, after which he became insolvent, and continued to be so. And the postmaster general, well knowing that Dox had neglected and refused to pay over the moneys due from his as postmaster at the end of every quarter, etc., did not commence his suit until August, 1821. Chief Justice Marshall in his opinion says: "These facts, placed on the record without explanation, must be admitted to show a gross neglect of duty on the part of the postmaster general. Does this neglect discharge the sureties from their obligations? The condition of the bond is broken, and the obligation has become absolute. Is the claim of the United States upon them released by the laches of the officer to whom the assertion of that claim was intrusted? This question, also, has been settled in this court. The case of U. S. v. Kirkpatrick, 9 Wheat. 720, was a suit instituted on a bond given by a collector of direct taxes and internal duties, under the act of July 22, 1813 (3 Stat. 22, c. 16). The act required each collector to transmit his accounts to the treasury monthly, to pay over the moneys collected quarterly, and to complete his collection, pay over the moneys collected to the treasury, and render his final account within six months from the day on which he shall have received the collection list from the principal assessor. In case of failure, the act authorizes and requires the comptroller of the treasury, immediately, to issue his warrant of distress against such delinquent collector and his sureties. The comptroller did not issue his warrant of distress according to the mandate of the law, and this suit was instituted four years after such warrant ought to have been issued. The court left it to the jury to decide whether the government had not, by this omission, waived its resort to the sureties. A verdict was found for the defendants, the judgment on which was brought before this court by writ of

The counsel for the defendant urged that laches might be imputed to the government through the negligence of its officers, but this court reversed the judgment, declaring the opinion that the charge of the court below, which supposes that laches will discharge the bond, cannot be maintained in law. The utmost vigilance,' it was said, 'would not save the public from the most serious losses if the doctrine of laches can be applied to its transactions. It

would, in effect, work a repeal of all securities.' It was further said that the provisions of the law which require that settlements should be made at short and stated periods are created by the government for its own security and protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract with the security. After a full discussion of the question, the court laid down the principle 'that the mere laches of the public officers constitute no grounds of discharge in the present case.' The same question came on to be again considered in the case of U. S. v. Vanzandt, 11 Wheat. 184. This was an action of debt, brought upon a paymaster's official bond, against one of the sureties. The act of organizing the general staff and making further provision for the army of the United States makes it the duty of the paymaster to render his vouchers to the paymaster general, for the settlement of his accounts; and if he fail to do so for more than six months after he shall have received funds, the act imperatively enjoins 'that he shall be recalled, and another appointed in his place.' Acts 1816, c. 69, § 4. The paymaster had failed to comply with the requisites of the law, after which the paymaster general, instead of obeying its mandate by removing him, placed further funds in his hands. The circuit court instructed the jury that the defendant, the surety, was not chargeable for any failure of the paymaster to account for such additional funds so placed in his hands after his said default and neglect in respect of the funds previously received were known, and a verdict was found for the defendant. The judgment on this verdict was also brought before the court by a writ of error, and was reversed. The counsel for the defendant contended that this case differed from U. S. v. Kirkpatrick, but the court said: "The provisions in both laws are merely directory to the officers, and intended for the security and protection of government, by insuring punctuality and responsibility; but they form no part of the contract with the surety.' The placing further funds in the hands of the defaulting paymaster was considered as the necessary consequence of his continuance in office. This is certainly a very strong case. These two cases seem to fix the principle that the laches of the officers of the government, however gross, do not of themselves discharge the sureties in an official bond from the obligation it creates, as firmly as the decisions of this court can fix it. We think they decide the question now under consideration."

In the case of U. S. v. Boyd, 15 Pet. 208, decided in 1841 (Mr. Justice Catron delivering the opinion), the suit was instituted against Gordon D. Boyd, receiver of public moneys in the district of lands subject to sale at Columbus, Miss., and the sureties on

his official bond. Other questions were involved in the case, but Mr. Justice Catron, speaking of the failure of the receiver to account and pay as required by the rules of the treasury department, says: "Laches are not imputable to the government. The regulations requiring settlement to be made by its officers at short periods are designed for the protection of the government, and merely directory to the officers. Such is the settled doctrine of this court,"-and cites the cases above quoted.

Finally, in Jones v. U S., 18 Wall. 662, decided in 1873, suit was instituted in the court below against Jones et al. as sureties for one Quillian, conditioned that the said Quillian should faithfully discharge the duties of postmaster at Milledgeville, Ga., and, "faithfully, once in three months, or oftener, if thereto required, render account of his receipts and expenditures, and pay the balance of all moneys that shall come into his hands, and keep safely all the public moneys collected by him." The case was argued on demurrer, and the defendants' plea concisely and briefly presents the question at issue as follows: "That as to any default of the said Quillian, their principal in said bond in the declaration mentioned as postmaster aforesaid, within two years before the commencement of this action, they are not liable in law therefor, but have been and are fully discharged and released by the acts and conduct of the plaintiff, through their agent, the auditor of the treasury of the post-office department of the said plaintiff, who had full notice of the defalcation and embezzlement of funds of the plaintiff before them, and yet neglectfully permitted said Quillian to remain in office as such postmaster, whereby he was enabled to commit all the default and embezzlement aforesaid, within two years before the commencement of this action." Justice Clifford, who delivered the opinion of the court, simply said "that it was quite evident, that the facts pleaded did not constitute any defense to the action, and that, such being the settled law of the court, it was not necessary to enter into any discussion of the question."

I will cite at length one other case arising upon an official bond, which is particularly valuable as an illustration of the principle established by the preceding cases, although the bond is not the bond of a public officer. It is the case of Hart v. U. S., 95 U. S. 318. This was a suit commenced in the court below against the sureties in a distiller's bond, the breach being the nonpayment of internal revenue tax by their principal, the distiller, on spirits distilled by him. It was argued on demurrer. Mr. Chief Justice Waite delivered the opinion of the court, and said: "Under the law as it stood when this suit was commenced, no distilled spirits could be removed from a distillery warehouse before payment of the tax (15 Stat. 130, § 15), without subjecting all of those engaged in such

removal to heavy penalties (Id. 140, § 36). An officer of the United States had no authority to dispense with this requirement of the law. If, in violation of his duty, he permitted such removal, he subjected himself to punishment, but did not bind the government by his acts. The government is not responsible for the laches or the wrongful acts of its officers. Gibbons v. U. S., 8 Wall. 269; U. S. v. Kirkpatrick, 9 Wheat. 720; U. S. v. Vanzandt, 11 Wheat. 184; U. S. v. Nicholl, 12 Wheat. 505; Jones v. U. S., 18 Wall. 662. Every surety upon an official bond to the government is presumed to enter into his contract with a full knowledge of this principle of law, and to consent to be dealt with accordingly. The government enters into no contract with him that its officers shall perform their duties. A government may be a loser by the negligence of its officers, but it never becomes bound to others for the consequences of such neglect, unless it be by express agreement to that effect. Here the surety was aware of the lien which the law gave as security for the payment of the tax. He also knew that, in order to retain this lien, the government must rely upon the diligence and honesty of its agents. If they performed their duty, and preserved the security, it inured to his benefit as well as that of the government; but if, by neglect or misconduct, they lost it, the government did not come under obligations to make good the loss to him, or (what is the same thing) release him pro tanto from the obligation of his bond. As between himself and the government, he took the risk of the effect of official negligence upon the security which the law provided for his protection against loss by reason of the liability he assumed."

This case is followed by Minturn v. U. S., 106 U. S. 444, 1 Sup. Ct. 409, decided in 1882, in which a government officer permitted goods to be taken from a bonded warehouse without full payment of the duties thereon. Mr. Justice Blatchford delivered the opinion of the court, and, after citing the opinion of Chief Justice Waite in Hart v. U. S., and the cases cited by him, concludes as follows: "It is well settled by the decisions of this court that the negligence of the officers of the government does not affect the liability of a surety in a bond any more than it does that of his principal." He then cites Dox v. Postmaster General, U. S. v. Kirkpatrick, and U. S. v. Vanzandt.

In all these cases, the statutory provisions which were violated by the officers of the government were laws existing at the time that the sureties in the official bonds entered into their contract of suretyship, and unquestionably modified and decreased the risk imposed upon such sureties by their undertaking. In several of them it is admitted that the whole loss incurred was in consequence of a violation of those statutes by the officers of the government.

At the same time, the supreme court, in

another series of decisions, which have been cited by counsel for complainants as supporting their contention upon this point, have laid down a principle which may best be expressed by quoting from the opinion of Mr. Justice Shiras in the case of Barnitz v. Beverly, 163 U. S. 127, 16 Sup. Ct. 1045, which has been quoted in the brief of one of complainants' counsel. Mr. Justice Shiras says: "But this court held, through Mr. Justice Miller, that all the laws of a state existing at the time a mortgage or any other contract is made, which affect the rights of the parties to the contract, enter into and become a part of it, and are obligatory on all courts which assume to give a remedy on such contracts; that the construction, validity, and effect of contracts are governed by the place where they are made and are to be performed, if that be the same; that it is therefore said that these laws enter into and become a part of the contract." Mr. Justice Shiras reviews the well-known cases of Bronson v. Kinzie, 1 How. 311, 316, and Brine v. Insurance Co., 96 U. S. 627, 637, and many others defining and applying this general principle.

These cases state a well-settled principle of law, but it is made plain by the authorities I have cited that it must be applied in connection with the equally well settled principle that "the government is not responsible for the laches or the wrongful acts of its officers." And in the language of Chief Justice Waite, in Hart v. U. S., cited above: "Every surety upon an official bond for the government is presumed to enter into his contract with a full knowledge of this principle of law, and to consent to be dealt with accordingly. The government enters into no contract with him that its officers shall perform their duty." As was said by Mr. Justice Story, in U. S. v. Kirkpatrick, "the surety may place confidence in the agents of the government, and rely on their fidelity in office; but he has of this the same means of judgment as the government itself, and the latter does not undertake to guaranty such fidelity."

The bond in the cause under consideration was given, as we have seen, by Dougherty and his sureties to the state of Delaware, conditioned for the faithful discharge of his duty as collector of county taxes; and it is not even suggested 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. It is obvious, therefore, under the authorities I have considered at such length, that the sureties on Dougherty's bond could not be relieved from the obligation they had assumed to the state of Delaware by any action or nonaction of the levy court upon their petition, unless the statute under which that petition was presented differed in such essential particulars from the statutes construed in those authorities as to deprive the state, in this instance, of the pro

tection 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 Newcastle county should perform. 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 23, 1877, be so read? I have cited it at length above, and it only remains to compare it with the statutory provisions in consequence of the disregard of which by government officials arose the casesin the supreme court which, taken together, establish and define, as we have seen, a rulethat renders the position of sureties in official bonds so diferent from that of sureties in private undertakings. The contention of counsel for the complainants 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 a construction of them; while, on the other hand, our state act of March 23, 1877, was enacted "solely for the benefit and relief of the sureties." In a casereferred to above in another connection (Julius v. Lord Bishop of Oxford), Lord Penzance, in the course of his opinion, expressed. a thought which must at times occur to every diligent student of the authorities. He remarked: "Passing, therefore, from definitions which are apt not to be uniform, and whichare with difficulty so framed as to be applicable to all cases, I think it far more satisfactory that your lordships should look at what the courts in previous cases have done, rather than what the learned judges may have said." Now, I have already cited the authorities at such length as to set forth both what the learned judges have said and what the courts have done, and nothing could bemore obvious than that, whatever may bethe proper construction to be placed upon the language used by the judges in some of those cases, yet the provisions of all the statutes. ex necessitate rei, secured and protected thesureties and the government alike, if obeyed by the government officials; and in the case of Hart v. U. S. this is clearly stated and fully set out by Chief Justice Waite in his opinion. When we compare those statutes in detail with our state act of March 23, 1877. it is impossible to discover any difference between the thing required to be done by the United States statutes on the one hand, and the thing which the levy court was empow ered to do on the other, which upon any conceivable theory could sustain the contention of complainants' counsel.

The statutory provision that a defaulting paymaster should be recalled, and another appointed in his stead, is assuredly no less a protection to his sureties than is the provision in our state statute that a defaulting tax collecttor should, under certain conditions, be deprived of the power of collecting more taxes, and

another collector appointed in his stead, a protection to the sureties on the collectors bond. And yet, when the officer of the government, instead of obeying the statutory mandate by removing the defaulting paymaster and appointing another person in his stead, placed further funds in his hands, which he embezzled, the court held that the sureties were not discharged, and they were obliged to pay to the government the money which their principal was thus enabled to embezzle. U. S. v. Vanzandt, supra. Again, the provision that the government officer shall not permit distilled spirits to be taken from his custody until the tax upon them be paid is certainly not less a protection to the sureties in the distiller's bond than is the provision in our state statute that the power to collect certain uncollected taxes be taken from a defaulting tax collector, and given to some duly-qualified citizen to be selected by the levy court, a protection to the sureties in the collector's 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 the statute a specific security for the internal revenue tax due thereon, and he then failed to pay the tax, the court held that his sureties were not discharged, and they were compelled to pay to the government the tax owed by their principal, for which the government had held ample security, which its agent, in violation of a statute existing when the sureties entered into their contract, gave away. Hart v. U. S., supra. Or, reversing the point of view, if security and protection were afforded to the government by these provisions of the United States statutes, it cannot be denied that security and protection were in like manner afforded to the state by the provision in our state statute.

To continue this comparison throughout the other cases must surely be superfluous, the essential features being manifestly the same in all. Assuming, therefore, the claim of complainants' 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 statutes with which I have thus compared it, is that in the state statute it is conditioned 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 required 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 complainants' 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" (Laws 1877, p. 398), to support their con

tention that the act is solely for the benefit of the sureties, and that the authorities cited do not apply to it. It 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 acts of the public officers, upon the interests either of the sureties or of the public.

This being the case, can it be maintained successfully, in the face of the authorities I have cited and analyzed at such length, that the act of March 23, 1877, has the effect of a contract on the part of the state of Delaware, with the sureties on the collector's bond, that the officers composing the levy court should obey the mandate of the statute, merely because that mandate was conditioned upon "the motion and initiative of the sureties"? Clearly not, and yet there seems to be no other ground upon which to rest the contention that the statute has such an effect. An examination of the whole course of decisions upon the question of the rights and liabilities of sureties in official bonds has left me with no doubt that the authorities I have cited are decisive 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 is always prepotent in the determination of questions which affect the interests of the public,-the state,-and especially the public revenue, which is vital to the existence of government, and they have met with universal acquiescence. The sureties in the official bond of John J. Dougherty as tax collector, etc., must be presumed to have entered into their undertaking with the state of Delaware with a knowledge of those principles of law, and the foregoing consideration and comparison of the statutes fails to disclose any provision of the act of March 23, 1877, which, in the light of those authorities, either expressly or by necessary implication, makes the state responsible to those sureties for any failure on the part of the levy court of Newcastle county to comply with the provisions of that act.

In view of this conclusion, it seems entirely unnecessary for me to enter upon the discussion of the question whether or not the levy court, after the petition of the sureties had been presented to it, did or did not inquire into the matter within the meaning of the statute. Having been irresistibly lead, by the authorities and arguments already considered, to the conclusion that, even if the levy court of Newcastle county did disobey the mandate of the statute in this particular, and refused to inquire into the matter laid before them by the petition of the sureties, yet, nevertheless, the complainants would not be discharged from their liability thereby, and this court would not be warranted in interfering with the full legal remedy of the state upon their bond, I deem it unnecessary, if not improper, for me to pass upon the question whether or

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