Evening Journal

Colonel Nields Contends That the Levy Court Should Have Removed Dougherty on Petition of His Sureties.

When They Entered Into the Bond They Had Protection and Rights Under the Statutes.

The fight of John J. Dougherty and his bondsmen to prevent the county from collecting $16,353.43, with interest from June 3, 1891, began in earnest before Chancellor Wolcott at the Court House to-day.

Edward G. Bradford and Lewis C. Vandegrift represented the county. Colonel Benjamin Nields and Senator George Gray were solicitors for the bondsmen and Harry Emmons represented the Security Trust and Safe Deposit Company, which has the Boers estate in charge.

Several of the bondsmen and a number of lawyers were present to hear the argument.

The case, in a nutshell, is this: Dougherty was $16,353.43 short in his settlement with the county as collector of taxes for Wilmington hundred on the duplicate of 1890. The county refused to remove him on petition of his sureties or to relieve them, and proceeded upon the official bond of the sureties. Several weeks ago execution was ordered and the sheriff proceeded to advertise the property of Dougherty and his bondsmen for sale.

Through Solicitor Harry Emmons the sureties obtained a restraining order from the chancellor. It prevented the sheriff from proceeding with the sales. He took an indemnifying bond and allowed the sureties to proceed with their business.

A rule was issued, returnable to-day, requiring the county to show cause why the restraining order should not be made a preliminary injunction. That rule is what brought about the argument to-day. If the chancellor decrees that a preliminary injunction shall issue then the sureties will push for a permanent injunction. But if the chancellor refuses the preliminary injunction the sheriff will proceed with the sale.

There Was Some Delay.

The hearing was to have been held in the Levy Court room but it was too small for such a big argument and the court repaired to the court room above. There some delay was occasioned by the solicitors for the sureties presenting an amended bill of complaint. After consultation, it was agreed to, in the main, by Messrs. Bradford and Vandegrift.

Mr. Bradford then presented affidavits from Andrew S. Eliason, Richard G. Buckingham and John W. Jolls, members of the Levy Court which refused to grant the sureties relief when they petitioned for Dougherty's removal and the appointment of a successor to him. Only one of the affidavits was read. It detailed the circumstances which led up to the present proceeding and which have been published time and time again since the tax office scandal.

Mr. Bradford made a motion to quash the application for a preliminary injunction. This was followed by light skirmishing all along the line and it was almost 12 o'clock before argument began, Colonel Nields having the opening.

Argument Opened By Colonel Nields.

He admitted that Dougherty was tax collector and that he had certain bondsmen. He then read Dougherty's official bond and said:

"At the time this bond was entered into there were laws affecting his duties. There were duties and conditions in the statutes which bound him as fully and effectually as though they had been written in the bond. There were also conditions imposed upon the Levy Court by the statutes. There were rights secured and given to the sureties in that bond, and there was a subsisting statute and law at the time and they were part of the obligation the bondsmen assumed.

"At the time that obligation was entered into there were duties imposed by statute on the collector and Levy Court, and there were rights secured by law to the sureties. The law provided that, when sureties had reason to believe that they had sustained, or would sustain loss, they might petition for his removal, and it should be the duty of the Levy Court, after examination, to remove the collector and appoint a successor. The law provided that the taxes uncollected by the removed collector should be collected by his successor and applied to diminish the liability of the sureties. I say these duties and these rights are part of this contract. It is the duty to inquire into the danger and not to send for counsel to inquire into the effect of some subsequent law.

"That statute goes farther. It makes the duty of the Levy Court imperative and mandatory. We will not question that farther. They shall have power to restrain and remove. In this case the Levy Court had knowledge. It was brought home to them. Knowledge is not opinion. The fact that $15,000 remained on the duplicate and $1,500 remained unaccounted for in Dougherty's hands was brought home to them. Justice demanded that petition be granted. They had no redress in the world excepting under that act.

In support of the position that it was the duty of the Levy Court to grant the petition he cited a number of authorities.

Justice Demanded Action.

"Justice demanded that the sureties should have that power exercised in their behalf by the Levy Court. The minutes of the Levy Court will show that for months and months they had been trying to get out of Dougherty the money he held for the year 1889 as well as 1890."

It is understood that Mr. Bradford will contend that the statutes referred to had been repealed and the Five Commissioners act had gone into effect. Consequently the Levy Court had no longer the power to remove or appoint a collector.

Argument consumed almost the entire day.