Mealey v. Buckingham

6 Del. Ch. 356 | New York Court of Chancery | 1891

The Chancellor.

It appears by the bill, and it is-admitted by the answer in this cause, that George W. McKee was appointed by the Levy Court of ¡New Castle County a collector of taxes for the southern district of the city of Wilmington for the year A. D. 1890, and as-such collector of taxes entered into a bond to the State of Delaware in the sum of $100,000, with other persons in said bill named, as sureties, which said bond was accepted by the Levy Court. That a judgment, ¡No. 293, to May term, A. D. 1890, was entered upon the said bond in the Superior Court of the State of Delaware in and for ¡New Castle County on the 8th day of July, A. D. 1890, against the said George W. McKee and his sureties. .

The-bond is not before me, but I presume it is in the-usual form which may be found in the Revised Statutes-of this State. The sureties in such a bond are of course bound by it for the faithful performance of his duty by their principal. To this extent their obligation extends and no further.

A duplicate of the taxes levied by the Levy Court is-delivered to the collector which taxes he is bound to collect, subject to deductions made by the -Levy Court for delinquents, a list of which delinquents is returned by the collector to the Levy Court.

Allowance of delinquents is made by the Levy Court and upon such allowance the collector is credited with the amount thereof.

At the meeting in March in each and every year as provided in section 21, chapter 8, of the Laws of Delaware, the Levy Court shall examine, adjust, and settle the accounts of the collectors, making all just allowances and the adjustment and allowance shall be final.

The complainant contends that after the allowance of the delinquent list returned by McKee as collector, his principal, and his accounts settled in March, it was final, and relies, among ’other things, upon authority cited, stating that when a credit has been allowed a public officer by the government and his accounts have been settled, it is not competent for the government to open the accounts and revoke such credit, unless it were originally given through fraud, imposition, or mistake. How the words, “unless it were originally given through fraud, imposition, or mistake,” are very important words and of significant import. But I do not intend in this or any other case to be governed or influenced by any partisan political opinion which may be urged or even suggested by any party, to any cause. Here no such questions are considered or entertained. Here the important question is, Did McKee, the principal in the bond, receive in payment of taxes on the duplicate made out and placed in his hands by the Levy Court any money not accounted for by him ?

If he did, the proper judicial authorities will see to it that he and his sureties shall be held to proper accountability in respect to the same, and at the same time be protected against any illegal increase of their liability; but I am not going into this question now. Although it was said in the argument on one side, and consented to on the other side, that the judgment had been entered -against Hcltee and his sureties in the Superior Court of the State of Delaware in and for Hew Castle County, and that an execution had been issued thereon, yet it nowhere appears, either in the bill or answer that such ■execution had been issued, or that anything had been ■done toward the collection of such execution.

It will be necessary to consider such questions whenever they more properly arise hereafter.

It is proper and necessary that the record and papers .recorded or filed in a public office such as that of the clerk of the peace or clerk of the Levy Court be preserved unchanged, unobliterated, unaltered, and in their ■entirety, by any one whatever and whomsoever.

These records may or may not be available as evidence to-parties in litigation, and may or may not be evidence in suits in controversy at law or in equity, in respect to public or private lights.

They should be preserved in their entirety for any and •all purposes for which they may be legally available.

If they should ever be proper as evidence their preservation unchanged would be proper and imperatively necessary. Let no one therefore causelessly or illegally ■change, mutilate, alter, or efface them.

What names shall appear upon the assessment list to be delivered to the receiver of taxes for Hew Castle ’County for the year 1891, is a question which does not properly arise in this case; one over which I have no jurisdiction; one which does not affect the interest or • liability of the complainant in this cause. I therefore •disregard it as inapplicable to the controversy legitimately before me.

And now, to wit, this 23d day of July, A. D. 1891, it is ordered, adjudged, and decreed by the Chancellor:

That the restraining order heretofore issued be dis•charged, except in so far as said order restrains defendants, their agents, servants, or employes from altering, or changing, or obliterating the entries made by the clerk •of the peace of New Castle County upon the assessment list, or list of delinquent taxables returned by the said George W. McKee, collector, as delinquents, and allowed by the said Levy Court as delinquents to said collector, or upon the records of the said Levy Court, or upon-the said delinquent list so returned.

And it is further ordered, adjudged, and decreed that the defendants be and are hereby enjoined from altering, obliterating, or changing the assessment list or lists of delinquent taxables returned by the said George W. McKee, collector, as delinquents and allowed by the said Levy Court as delinquents to the said collector, until the further order and decree of the Chancellor.

And be it further ordered, adjudged, and decreed, that the bill of the complainant, so far as not affected by this decree, be dismissed without prejudice, and that the ■complainant have leave hereafter to file a new bill, if hereafter he should deem it proper and necessary.