23 Ky. 439 | Ky. Ct. App. | 1828
Lead Opinion
delivered the Opinion of the Com t. ,
The legislature of Kentucky, at their session of 1825, allowed to Roger Divine, $252 50, for cutting and piling wood, for the house of representatives, during that session, and this allowance was made in the ordinary appropriation bill.
John Harvie, who was a creditor of said Divine, by judgment and an execution of fieri facias thereon, returned, “no property found,” filed his bill in equity, to subject this claim of Divine against the State, to the satisfaction of his judgment under the act of assembly which authorizes a bill in equity to subject equitable estates and choses in action to the satisfaction of such judgments. He made said Divine, the Auditor and Treasurer of the State, parties, anti prayed that the Auditor might be directed by the decree of the court to draw the warrant in his favor, and the Treasurer to pay it in satisfaction of so much of the judgment.
There being no dispute about the facts of the cause, Divine submitted the casé to the court on demurrer to the bill, for a final decree. The court below decreed in favor of the complainant and directed the Auditor to draw the warrant to Harvie, and the Treasurer to pay him the amount.
From this decree Divine has appealed.
The act of assembly, under which these proceedings were had, reads thus:
“Whenever an execution of fieri facias, founded upon any judgment or decree, or upon any bond having the force of a judgment, shall issue to the proper officer, and be returned, as to the whole or any part thereof, in substance, that the defendant hath no effects in his bailiwick to satisfy the same, the proper court or courts of chancery shall have jurisdiction, on bill filed, to subject to the satisfaction of such judgment, decree or bond, any choses in action belonging to the debtor, and also any equitable or legal interest in any estate, real, personal or mixed, which the debtor may be entitled top and to that end may bring other parties before the court, and make such decree as may be equitable under the jurisdiction hereby conferred.”
The expressions of this statute are very broad, and it does subject to the power of the chancellor, the interest of the defendant of almost every character. It is now our part to consider whether it is broad enough to reach this demand of Divine a
It seems to be conceded on all hands, that the State cannot be made a party defendant, and is not suable in her own courts.
Although the constitution has declared, that “The General Assembly shall direct by law in what manner and in what courts suits may be brought against the commonwealth,” yet that body has never complied with this direction; but has hitherto kept in their own power the granting of justice to creditors ©f the State on petition. This voluntary grant of the State to individuals is the only judgment and execution to which the State is subject. Whatever, then, the claims of Divine may be against the State, and however clearly they may be acknowledged, the State cannot become a garnishee; and we cannot suppose that this act, granting jurisdiction to. the chancellor, was intended to make the State suable,
Nor do we .conceive that the Auditor and Treasurer are proper parties to the controversy; or that they can be used as a substitute for the State. They are not officers appointed to defend the interest of the State generally, although by special act of assembly they may be used as such. The attorney general has more claims to the general appointment, to defend the rights of the State.
The only analogous case, in our recollection, which might be supposed to give color to the right of making the Auditor and Treasurer parties, when the State could not be sued, is that of Osborn vs. United States Bank, 9 Wheat. 738. But the analogy between the cases fails in an important particular. In that case, unde,r an act of the general assembly of Ohio, the Auditor issued his warrant, to an officer of his own appointment, to seize and take by distress, from the Bank of the United States, or one of its branches, a sum of money assessed by an act of the legislature on the branch, as a tax due the State for exercising the corporate franchise within the State. The officer so appointed executed the war
In this case, there is a total want of personal liability on the part of the Auditor or Treasurer, There is no claim against them as individuals; and as officers, they are not appointed to defend for the State, and of course there is a total defeat of parties here as garnishees, or stakeholders of the fund, which the chancellor is called upon to subject,
As the State is not suable, and the Auditor and Treasurer are not proper parties in lieu of the State, ^ rema'ns t0 inquire whether this bill can be sustabled against Divine alone, and whether the chancellor ought, or ought not, to compel Divine to tvans^er this claim, or to give an authority to the Auditor draw, and the Treasurer to pay over to the coinplainant. It may be urged that the equity of such a course is strengthened, because Divine has a right t° the fund, and the complainant cannot make the person who owes it a party, to subject it.
This money due from the State, was no part of
But as Divine might have proceeded by mandamus against the Auditor and Treasurer, to compel them to pay this money out of the Treasury, in case of their refusal, it may be urged, that the claim conies within the spirit of the term, chose in action, and therefore is at least within the equity of the' act.
This reasoning is entitled to weight, and might command our assent, was it not for another rule of law, which operates to the exoneration of this claim, It is a rule, that the commonwealth is not embraced by an act which is made to operate between individuals, unless there is something in the act which shews an intention to subject the State to the same t tde.
The act unquestionably intended to subject the debtors of a debtor to the demands of the creditor of but one of them. But did the legislature intend to make the State such a debtor as that she should be compelled to pay her debts, to the creditor of her creditor? We conceive not; and evils might result to the public weal, if contracts made with the State, could, by construction only, be emptied, ancl made fruitless at the instance of the creditors of her contractor.
The credit of the contractor with government, may, and frequently does, depend upon the credit of the government, the belief that government is able, enables the contractor to obtain what the government needs; and if other creditors can change the destination of the fund, the contractor may sink, and the government suffer injury by the failure.
To make the matter more palpable, we will apply the rule to the government of the United
The decree, Judge Owsley dissenting, is reversed costs; and cause remanded, with direction to dismiss the bill with costs.
Dissenting Opinion
Dissent of
I have not been able to bring my mind to assent to the construction put upon the act
Though a debt be owing by government, let the
My opinion is, that the debt due from government to Divine is within the provisions of the act, and that he should, by the appropriate decree, be compelled to furnish the necessary means to enable the complainant to recover the money.