City Council v. Van Dorn

| Ala. | Jan 15, 1868

A. J. WALKER, C. J.

The question of this case is, whether the wages of a “ police guard” of an incorporated city can be condemned in the hands of the municipal corporation, by garnishment, to the payment of a judgment against such guard. This question was presented in the case of The Mayor of Mobile v. Rowland & Co., (26 Ala. 498" court="Ala." date_filed="1855-01-15" href="https://app.midpage.ai/document/mayor-of-mobile-v-rowland--co-6505511?utm_source=webapp" opinion_id="6505511">26 Ala. 498,) and was decided in the negative. The decision was based upon two independent and distinct reasons. Those two reasons were—that the statutes of garnishment could not be applied to corporations, which, from their impersonal, artificial character, could not be sworn; and that, upon a principle of public policy, the wages of an officer of a municipal corporation, exercising governmental authority, could not be taken by garnishment. This decision was commented upon in Smoot v. Hart, (33 Ala. 69" court="Ala." date_filed="1858-06-15" href="https://app.midpage.ai/document/smoot-v-hart-6506318?utm_source=webapp" opinion_id="6506318">33 Ala. 69,) and one of the grounds, upon which the above stated principle of public policy was placed, was repudiated. This ground was, that the liability to garnishment of the officers of a municipal corporation would prevent the discharge of their duties to the public. The decision itself, in the case of The Mayor v. Rowland, as to both the reasons upon which it was put, was left unaffected. It was restricted only in the scope of its argument in support of the second reason. The law, as established by these decisions, was, that no corporation, private or municipal, could be garnisheed, because it could not appear and make the affidavit contemplated ; and secondly, that a municipal corporation could not be garnisheed, as a debtor for the wages of one of its officers, for the reason already given, and for the additional reason, that a principle of public policy would thereby be violated.

The law thus remained, until the act of 9th January, 1856, (Revised Code, § 2897,) was adopted. That act made private corporations amenable to process of garnishment, and provided a mode of making the required affidavit. Afterwards, the case of Clark & Saunders v. School Commissioners, (36 Ala. 621" court="Ala." date_filed="1860-06-15" href="https://app.midpage.ai/document/clark-v-mobile-school-commissioners-6506796?utm_source=webapp" opinion_id="6506796">36 Ala. 621,) was decided. In that case, the statute of 1856, subjecting private corporations to garnishment, was alluded to; and it was held, that the authority of The Mayor v. Rowland & Co., (supra,) remained unimpaired. This decision was followed by the act of 22d February, 1866, (Revised Code, § 2895,) whereby it was enacted, that upon all judgments and decrees in any court of this State, the plaintiff should have process of garnshment against any municipal corporation, supposed to be indebted to the defendant, upon a compliance with the law in other cases of garnishment. This statute provides a mode in which the sworn answer of such corporation might be made. Now, the object of this law obviously was, to overthrow the doctrines of the case of Mayor v. Rowland, so far as they were unimpaired by the act of 1856, and had been reasserted in the ease of Clark dc Saunders v. Motile School Commissioners.This is very clearly indicated by the comparison, above made, of the history of the adjudications and legislation upon this subject. The public good, in the estimation of the legislature, would be promoted by the reversal of the judicial exposition of the law; and that, we think, it aimed to effect.

Aside from the consideration thus presented, the act of 1866 is, when closely examined, susceptible only of such a construction, as subjects the wages of the officers of municipal corporations to garnishment. Its language, in general terms, subjects to process of garnishment any municipal corporation, indebted to the defendant. Upon what ground could we select any particular class of debts, and except them from the operation of a statute, the language of which is sufficiently comprehensive to include them, or interpolate an exception or qualification upon a statute, not-suggested by the context ? To do so, would involve a clear departure from the judicial authority of construction.

Furthermore, it must be observed, that the act of 1866 requires of the plaintiff, as the preliminary to the issue of a garnishment, only a compliance with the law in other cases of garnishment. The law, mother cases of garnishment, required an affidavit that the garnishee was supposed to be indebted to the defendant. If it be that the wages of its officer, owed by a municipal corporation, cannot be reached by garnishment, it results, that the preliminary affidavit may be true, and there may be a correct compliance with the prescribed condition of the issue of the garnishment ; and yet the plaintiff be not entitled to the process. To carry out the argument of the appellant, and make the law consistent with itself, it would be necessary to add a clause to the affidavit, so as to make it read, that the garnishee “is supposed to be indebted” to the defendant, othenoise than for his wages as an officer. We must decline to make the perversion of the law, which an exemption from garnishment of a debt due by a municipal corporation to one of its guards would effect.

2. Under the act of 1866, the rule which would have required an answer, under the corporate seal, is changed, and the answer is required to be made by the designated officer. The answer here is by the proper officer.

The question of the sufficiency of the affidavit and garnishment to require an answer from the corporation, or its treasurer in his official capacity, was not raised in the court below. We mention it to exclude the conclusion that we decide it.

Affirmed.