State v. Hollingsworth

94 A. 898, 28 Del. 484, 5 Boyce 484, 1915 Del. LEXIS 32

• Court: Superior Court of Delaware
• Decided: June 14, 1915
• Status: Published

Opinion

Heisel, J.,

delivering the opinion of the court:

The petition alleges that William Tinsman, the petitioner, is a citizen of Christiana Hundred, in this county, and was on the eighteenth day of May, 1915, duly appointed collector of taxes for said hundred; that he tendered to the respondents as surety on his collector’s bond, the Fidelity and Deposit Company of Maryland, being a surety company authorized to do surety business in this state, which bond said respondents, acting as the Levy Court of New Castle County refused to approve, on the sole ground that said bond was not in the form prescribed by Section 1146, Revised Code of 1915, in that said bond did not have subjoined thereto a warrant of attorney to confess judgment thereon.

Counsel for respondents waived the issuance, service and return of the rule appearing gratis, and filed a motion to dismiss the petition and relies upon the ground, that it does not appear from the petition, that the bond entered into by the relator and his surety, was in accordance with Section 1146 of the Code, in that said bond did not have subjoined thereto a warrant of attorney to confess judgment thereon.

Counsel for relator contends that Section 1146, in so far as it relates to warrants of attorney to confess judgment being subjoined to collector’s bond, does not necessarily apply to surety companies doing a surety business in this state and that said Section 1146 is, in that respect, modified by Sections 636 to 639 of the Code.

[1, 2] Therefore the question presented for our determination requires the construction of Sections 1146 and 636 to 639, in so far as they relate.to warrants of attorney to confess judgment on collector’s bonds.

Section 1146 provides for the appointment of tax collectors for the hundreds outside of Wilmington by the Levy Court Commissioners, that his appointnient is not deemed complete, until he shall have given bond to the State of Delaware, which bond and surety must be approved by the Levy Court. It then sets out the specific conditions of the bond, and further provides:

“To the said bond there shall be subjoined a warrant of attorney to confess judgment thereon, and the said bond and warrant shall be joint and several.”

Section 636 limits the amount to which corporations, qualified to do a surety business in this state, may become surety on bonds, recognizances, etc.

Section 637 provides, that such corporations may be accepted as surety upon bonds, by any officer, judge, or any department of the state, or of any county, or municipal government whose duty it may be to approve the surety upon bonds, etc.

Section 638 provides for the payment of the surety company for its services as surety.

Section 639 is as follows:

“In all instances where corporate suretyship is offered in accordance with the provisions of this chapter, and where the form of the bond as now required by law contains a warrant of attorney, the said bond shall be accepted without said warrant of attorney being written therein.”

Are the provisions of Sections 636 to 639 inconsistent with Section 1146? Section 1146 has to do primarily with the collection of county taxes, and sets forth the specific conditions of the surety bond required of the collector, and those conditions apply to all bonds given by collectors for that purpose, whether personal or corporate surety be given, and does not provide that the corporate surety thus given shall be by a corporation authorized to do a surety business in this state; therefore, if the person, or body to whom the surety is given, is satisfied, corporate bond could be given by a company not authorized to do a surety business in this state.

So that, under Section 1146 there are three distinct classes of surety that may be given: (a) Personal; (b) by a corporation not doing a surety business in this state, and (c) by a corporation duly authorized to do a surety business in this state; and all such bonds under Section 1146 must have subjoined thereto warrant of attorney to confess judgment.

Sections 636-639 have to do primarily, with corporations "authorized to do a surety business in this state, and therein provide that such corporations in going surety on bonds, like the one in question, can do so without having attached to such bonds warrant of attorney to confess judgment.

The Code of 1915 was passed as one act of the Legislature, and, we think, like any other act of the Legislature, should be so construed as to give vitality and force to all parts thereof, if this can be done consistently with reason and the established rules of construction.

We think in this case, the sections in question can be so construed.

Thus construing them, the sections would mean, that when personal surety is given on a collector’s bond, or when corporate surety is given on a collector’s bond by a corporation not authorized to do a surety business in this state, the bond should have subjoined thereto warrant of attorney to confess judgment as provided by Section 1146; but when such surety is given by a corporation authorized to do a surety business in this state, the bond need not have subjoined thereto warrant of attorney to confess judgment, because Section 639 takes them out of the general class provided by Section 1146, and specifically provides that surety bonds given by such companies need not contain warrant of attorney to confess judgment.

We therefore decline to grant the motion to dismiss the petition.