Fischer v. DubrocaFischer v. Dubroca
Lead Opinion
The question in this case is whether the money due to a tax assessor for salary and expense allowance is subject to seizure in satisfaction of his personal debts by garnishment proceedings against the parish treasurer.
The defendant, Dubroca, is the tax assessor for the parish of St. Charles. The plaintiff, Fischer, has a judgment against Dubroca, personally, for $600, and interest at 8 per
Meanwhile the defendant, Dubroca, pleading that his salary as a public officer and his allowance for the expenses of his office were exempt from seizure, and could not be made
The salary and expense allowance of the tax assessor for each parish in the state (except the parish of Orleans) is fixed by statute; the latest such statute being the Act 251 of 1924, p. 642. The salary of the assessor for St. Charles parish is fixed at $2,000 per annum, and his allowance per annum “for clerical and other expenses * * * in the performance of all the duties required of them by law,” is fixed at $2,000, “or so much thereof as may be necessary.” Section 2. According to the sixth section of the act, the salary and expense allowance are payable when the assessment rolls for the current year are completed, but the police jury is allowed to advance to the assessor at the end
These pertinent provisions of the statute, as we have pointed out, make it plain that the expense allowance for a tax assessor is not to be used for any other purpose than to defray the actual and necessary expenses incurred in and for the performance of his official duties. No part of the expense allowance belongs to the assessor personally. It would be an act of embezzlement on his part to appropriate any part of his expense allowance to his personal use or benefit. For that reason, our judgment is that that part of the assessor‘s salary fund that is allowed by the statute for the expenses of the assessor‘s office cannot be diverted to the payment of a personal debt of the assessor by garnishment proceedings against the parish treasurer. The judgment of the Court of Appeal to the contrary is founded upon the idea that, inasmuch as no one else claims any part of this expense allowance, it should be presumed that the assessor paid the expenses of his office
As to the salary of the assessor, the judgment of the Court of Appeal is founded upon the supposition that, by a statute enacted in 1918, Act 184, p. 347, the Legislature repealed the only law that exempted from seizure the salaries of public officers. The act of 1918 is an amendment and re-enactment of section 1 of Act 79 of 1876, which was an amendment of article 644 of the Code of Practice. The article of the Code of Practice of 1825 merely forbade the seizure of a debtor‘s household linen, beds, wearing apparel, military accouterments, or tools or instruments
“Art. 647. But if the debtor has neither movable, nor immovable property, the sheriff may seize the rights and credits which belong to him, and all sums of money which may be due to him, in whatsoever right, unless it be for alimony or salaries of office.”
Besides that express exemption in article 647 of the Code of Practice, there is article
“There are also rights which are merely personal, that cannot be made liable to the payment of debts, and therefore no contract respecting them comes within the provision of this section; these are the rights of personal servitude, of use and habitation, of usufruct of the estate of a minor child, to the income of dotal property, to money due for the salary of an office, or wages, or recompense for personal services.”
In translating from the French text of the corresponding article (which was article 1987) of the Civil Code of 1825, the word
In the opinion rendered by the Court of Appeal in this case it is not contended that article
The Act 39 of 1871-72 was amended and re-enacted by the Act 17 of 1874, p. 53, by adding sewing machines to the list of articles exempted from seizure, and by making it a misdemeanor to induce any one, by artifice or subterfuge, to sign away by contract or otherwise any of the exemptions granted by the act. As the law stood then, not only the salaries of public officers, but also all other wages and recompense for personal services, were exempt from seizure or liability for debt. By the Act 79 of 1876, p. 123, article 644 of the Code of Practice was amended by inserting, before the word “wages,” the word “laborers,” and by omitting “or recompense for personal services.” The
“That all laws and parts of laws conflicting with this act or contrary to any of its provisions, and all laws on the same subject-matter, the amendment of article six hundred and forty-four of the Code of Practice [meaning the amending acts of 1872 and 1874], be and are hereby repealed.” Section 3.
It is plain, therefore, that the act of 1876, amending article 644 of the Code of Practice, did not repeal article
The Act 184 of 1918, p. 347, amended only the first section of the Act 79 of 1876; the only amendment being the omission of the words “nor money due for the salary of an
When a statute amends a previous statute by merely omitting a part of its provisions, the omitted part of the previous statute is, of course, thereby repealed, but the same or similar provisions in other previous statutes are not thereby repealed, unless the new statute covers the whole subject-matter of the previous statutes, and is plainly intended to be a substitute for them.
“When two statutes cover, in whole or in part, the same subject-matter, and are not absolutely irreconcilable, no purpose of repeal being clearly shown, the court, if possible, will give effect to both. Where, however, a later act covers the whole subject of earlier acts and embraces new provisions, and plainly shows that it was intended, not only as a substitute for the earlier acts, but to cover the whole subject then considered by the Legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of all former statutes relating to such subject-matter, even if the former acts are not in all respects repugnant to the new act. But, in order to effect such repeal by implication, it must appear that the subsequent statute covered the whole subject-matter of the former one, and was intended as a substitute for it. If the later statute does not cover the entire field of the first and fails to embrace within its terms a material portion of the first, it will not repeal so much of the first as is not included within its scope, but the two will be construed together, so far as the first still stands.” 36 Cyc. 1077-1079.
“A Legislature may express its will in any form — affirmatively or negatively — that it pleases, so long as it does not transgress constitutional prohibitions. It is under no obligation to use words of express repeal. But the repeal of statutes by implication is not favored by the courts. The presumption is always against the intention to repeal where express terms are not used. To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable or the intent to effect a repeal must be otherwise clearly expressed.” 36 Cyc. 1071, 1072.
“A later law which is merely a re-enactment of a former does not repeal an intermediate act which has qualified or limited the first one, but such intermediate act will be deemed to remain in force, and to qualify or modify the new act in the same manner as it did the first.” 1 Lewis’ Sutherland on Statutory Construction (2d Ed.) p. 524, § 273.
Accordingly, the act of 1918, which is merely a re-enactment of article 644 of the Code of Practice, did not repeal article
The reason why, as a matter of public policy, a public officer‘s salary is not subject to seizure by garnishment process against the
In McGowan v. City of New Orleans, 118 La. 429, 43 So. 40, 8 L.R.A. (N.S.) 1120, 10 Ann. Cas. 633, it was held, without reference either to article
“The reason of the rule is that, if the unearned salary of one day or one month may be assigned, that of the officer‘s entire term may in like manner be assigned, and thus the officer deprived of the means provided for his support, and thereby the public service be impaired. This reason operates as strongly in this state as elsewhere, and therefore the rule must be the same here as elsewhere. * * *
“The principle upon which a salary is paid to an officer is not that of a contract, or that of the laborer being worthy of his hire; for the citizen owes his services free to the state in the proportion in which the state stands in need of them. But it is that the man must live, and that, if service is expected of him, he must be supplied with the means of livelihood. The law which prescribes the mode and manner in which the officer shall be thus supplied is one beyond the control of the officer, which is not within his power to nullify by private contract with one of his fellows.”
In the decision quoted, the briefs or printed arguments on both sides of the case are published in full. Article 1992 of the Civil
In Moll v. Sbisa, 51 La. Ann. 290, 25 So. 141, it was held that the salary of the clerk of a recorder‘s court was, by article
“We do not feel disposed to give to the language of the articles of the codes a restrictive signification; but, on the contrary, we think their framers intended that they should receive a liberal interpretation.
“Consequently, we are of opinion that whether the salary of the defendant, as clerk of the sixth recorder‘s court, be considered as `money due for the salary of an office,’ or as the `wages or recompense for personal services,’ same is equally exempt from seizure.”
The statement in the foregoing decision that, even if the defendant‘s salary were not “money due for the salary of an office,” it would be exempt from seizure as “wages; nor recompense for personal services,” was a mistake, because the exemption of “wages; nor recompense for personal services,” which exemption was granted by the Act 39 of 1872, and retained in the Act 17 of 1874, was abolished by the Act 79 of 1876, except as to laborers’ wages and officers’ salaries. The mistake made in that unnecessary statement in Moll v. Sbisa was pointed out in a discussion of the subject in Bosio v. Picton, 106 La. 248, 30 So. 699. In the latter case, concerning the question of exemption from seizure
The judgment of the Court of Appeal in this case is founded upon the decision by that court in Heyman v. Crocheron, No. 8374 of its docket, rendered in January, 1922, but not officially reported. The court‘s ruling in that case was that the Act 184 of 1918 had abolished the exemption from seizure of the salaries of public officers; and, admitting that a member of the fire department of a city was a public officer, the court held that his salary was subject to garnishment. There was no application to this court for writ of review. The Court of Appeal decided afterwards, however, in two cases in which the point was raised, that the salary of a public officer was not subject to seizure, and in each case we refused to grant a writ of review, assigning as our reason that the decree was correct. See Heymann v. Maloney, No. 25824 of the docket of this court, decided in February, 1923, but not officially reported, and Huntington v. McCoy, No. 26043, decided in June, 1923, but not officially reported. In each of those cases it was argued on behalf of the plaintiff that the Act 79 of 1876, amending article 644 of the Code of Practice, had repealed
“This case [Heymann v. Maloney] was taken to the Supreme Court on a writ, and it was there decided the writ would not be granted because the court‘s decision was the only one that could be rendered in cases of this character.
“The decisions of the Supreme Court control this court in its opinions and judgments, and we are bound to follow them.”
The decision of the Court of Appeal in the present case cannot be reconciled with that which we approved in Heymann v. Maloney and in Huntington v. McCoy. The assessor‘s salary in the hands of the parish treasurer is a public fund, contributed partly by the state, partly by the parish, and partly by each of the taxing districts that the tax assessor serves.
“Debts due to defendant from the government or its agencies are generally held exempt from garnishment, at least until the government or its agency has lost control of it, not only on account of the capacity of the garnishee‘s holding or indebtedness, but also because the debt or appropriation is not deemed to belong to defendant until it has been paid over to him. Also the same public policy which exempts the government and its agencies from garnishment process forbids the use of garnishee process to divert public funds from the purpose to which they have been appropriated by law.” 28 C.J. p. 128, § 168.
“Another reason [why a public officer‘s salary is not subject to garnishment] is the fact that moneys sought to be garnished, as long as they remain in the hands of the disbursing officers of the government, belong to the latter, although the defendant in garnishment may be entitled to a specific portion thereof; consequently it cannot, in a legal sense, be considered a portion of his effects, and, therefore, is not liable to garnishment, under process issued for the purpose of levying upon and subjecting such individual‘s property to the satisfaction of a judgment recovered against him.
“81. County. — In the absence of express statutory provision clearly evincing the intention to grant the use of the process of garnishment against counties, public policy forbids that they
should be subjected to the process. The statutes in force in some states, however, permit the garnishment of counties. But this is not authorized by a statute permitting the garnishment of persons, corporations, bodies politic and corporate, or even municipal corporations, though a statutory provision authorizing garnishment proceedings against every municipal or other corporation or quasi corporation has been held to authorize garnishment process against a county. A judgment against a county as garnishee has been declared void in jurisdictions which deny the right to charge a county as garnishee. Furthermore, a county cannot waive its exemption from garnishment. If such waiver is made, it must be by the defendant in the garnishment proceedings whose interest and right are involved.” 12 R.C.L. pp. 842, 843, §§ 80 and 81.
If the act of 1918 could not have had any other purpose — in omitting that part of the act of 1876 which exempted officers’ salaries from seizure — than to repeal in that respect article
The question has often arisen — and is sometimes very doubtful — whether an employee of the government, federal, state, parochial, or municipal, is so employed as to be deemed an officer, within the meaning of the law exempting public officers’ salaries from seizure. The doubt in such cases arises, perhaps, from the fact that in our scheme of government the highest of public officers are
The judgment of the Court of Appeal is annulled, and the judgment of the district court is reinstated and made the judgment and decree of this court. The plaintiff is to pay all costs of these garnishment proceedings.
OVERTON, J., concurs in part and dissents in part, and hands down reasons.
THOMPSON, J., concurs in dissenting opinion of Mr. Justice OVERTON.
ST. PAUL, J., concurs in the decree, and assigns reasons.
Concurrence Opinion
I concur in the decree herein on the ground that an officer provided for by the Constitution (see
Of course, the Legislature never intended by Act 184 of 1918, p. 347 to do that which it was wholly without right to do.
Dissenting Opinion
Defendant holds the office of assessor for the parish of St. Charles. Plaintiff obtained a judgment against him personally for the sum of $600, with interest and attorney‘s fees, and proceeded by garnishment, under a writ of fieri facias, to subject to his judgment anything that was due defendant in the hands of the treasurer of the parish.
The answers to the interrogatories, propounded in connection with the garnishment, are to the effect that there is due defendant for the month of December, 1924, out of the assessor‘s salary fund, as salary, the sum of $333.33, and for the month of January, 1925, a like sum, of which $166.66 is due for the expenses of his office for that month.
While, as stated, the answers to the interrogatories are to the effect that for the month, of December, 1924, there is due defendant, as salary, $333.33, yet, since the assessor‘s
When the answers to the interrogatories were filed, the trial judge granted an order directing that the money seized be forthwith paid to the sheriff, to be applied on the writ of fieri facias that had issued. Defendant then filed a rule to set the order aside and to have the money delivered to the sheriff returned to the parish treasury on the ground that he was a public officer, and that his salary was not subject to seizure, and on the further ground that the part of the money seized, which is payable to him for the expenses of his office, is not subject to seizure for the satisfaction of his personal debts.
The district court on the trial of the rule to show cause rendered judgment setting
The theory upon which the Court of Appeal based its judgment to the effect that that part of the money seized, which is payable to defray the expenses of the assessor‘s office, should be returned to the sheriff to be applied on the writ, is that, if such money belongs to any one else than defendant, then defendant has no right to champion the interest of such other person, and, at any rate, no evidence has been offered to show that any one else is interested in the fund.
I am unable to agree with the Court of Appeal in this respect. The law clearly provides that there shall be allowed to assessors for clerical and other expenses in the performance of the duties, required of them by law, certain designated amounts for each year which may be advanced to them in installments, sufficient to pay their expenses for the preceding month. Sections 2 and 6 of Act 251 of 1924. No part of the amount, so payable, belongs to the assessor personally. He has no right to use any part of it except for the purpose for which the allowance is made. Hence it is clear that he has no right to use any part of it to pay his personal debts, and, such being the case, if for no other reason, no part of it is subject to garnishment to satisfy those debts. If the court means to hold that, in the absence of evidence to the effect that defendant did not pay the expenses of his office with his own personal funds, the presumption will be entertained that he did, and hence that he has
The next question, that is, the one as to whether that part of the money seized which is payable to defendant as salary is exempt from seizure for his debts, presents more difficulty than did the preceding one. The rule with reference to such an exemption usually prevailing in this country is stated in Corpus Juris to be as follows:
“While there is some authority to the contrary, it is generally held that in the absence of special statutory sanction the compensation of public officers and employees is not subject to garnishment, whether such compensation is still unearned, or has been earned but is not presently payable, or is presently payable.” 28 C.J. p. 174, § 219. (Italics mine.)
The basis upon which the foregoing rule is usually, though not always, made to rest is that of public policy. 28 C.J. pp. 174, 175, § 219. The basis of the public policy involved is said in a footnote to the foregoing citation, taken from Lewis v. Denver, 9 Colo. App. 328, 329, 48 P. 517, to be as follows:
“The salary of a public officer is a provision made by law for his maintenance and support during his term to the end that, without anxiety concerning his means of subsistence, he may be able to devote himself entirely to the duties of his office, and the public thus have the full benefit of his knowledge and ability in the service he is selected to render. If he could be deprived of his means of support by the garnishment of his salary, presumptively his efficiency as an officer would be impaired, if not
destroyed, and the public interests would suffer serious detriment.”
In passing upon the question of the right to seize by garnishment or otherwise the salary of a public officer, this court has never found it necessary to base its ruling on the general rule stated above, though in Moll v. Sbisa, 51 La. Ann. 290, 25 So. 141, it reinforced the basis of its ruling by reasoning not dissimilar to that used by the Supreme Court of Calorado and quoted above from Corpus Juris. The reason why the court has found no occasion to base its ruling on the general rule, above stated, is that, since the adoption of the Code of Practice in 1825, until 1918, there has been a provision in the Code prohibiting the seizure of the salary of an officer, and the rulings on that question have always been based on that provision, though in the Moll Case article
The article of the Code of Practice referred to is article 647, and reads as follows:
“But if the debtor has neither movable, nor immovable property, the sheriff may seize the rights and credits which belong to him, and all sums of money which may be due to him, in whatsoever right, unless it be for alimony or salaries of office.”
In 1872, by Act No. 39, the Legislature amended and re-enacted article 644 of the Code of Practice, so as to make it correspond with article
In 1874, by Act No. 17 of that year, the act of 1872, amending and re-enacting article 644 of the Code of Practice, was amended and
“Section 1. Be it enacted by the Senate and House of Representatives of the state of Louisiana in General Assembly convened, That article six hundred and forty-four of the Code of Practice be so amended as to read as follows: The sheriff or constable can not seize the linen and clothes belonging to the debtor or his wife, nor his bed, bedding or bedstead, nor those of his family, nor his arms and military accoutrements, nor the tools and instruments, and books, and sewing machines necessary for the exercise of his or her calling, trade or profession by which he or she makes a living, nor shall he in any case seize the rights of personal servitude, of use and habitation, of usufruct to the estate of a minor child, nor the income of dotal property, nor money due for the salary of an officer, nor laborers’ wages, nor the cooking stove and utensils of the said stove, nor the plates, dishes, knives and forks,
and spoons, nor the dining table and dining chairs, nor wash tubs, nor smoothing irons and ironing furnaces, nor family portraits belonging to the debtor, nor the musical instruments played on or practiced on by any member of the family. * * * (Italics mine.) * * * * * * * * *
“Section 3. Be it further enacted, etc., that all laws and parts of laws conflicting with this act or contrary to any of its provisions, and all laws on the same subject matter, the amendment of article 644 of the Code of Practice (referring to the acts of 1872 and 1874), be and they are hereby repealed. (Italics mine.)
“Section 4. Be it further enacted, etc., that the repealing clause of this act shall not be construed or interpreted so as to affect the exemption of the homestead, the widow‘s one thousand dollars, nor the rural and agricultural exemptions now in force by existing laws, it being the true meaning and intent of this act that those exemptions should not be affected by this act.
“Section 5. Be it further enacted, etc., that this act shall take effect from and after its passage.”
Without attempting to particularize the scope of the repeal effected, yet it should be observed that the repeal of “all laws on the same subject-matter” by the foregoing act necessarily repealed article 647 of the Code of Practice and article
It was the intention of the Legislature by the act of 1876 to confine the exemptions from seizure to article 644 of the Code of Practice, as amended and re-enacted by the act of 1876, save as to the exemptions expressly enumerated as being saved from the repeal in section 4 thereof, quoted supra, by repealing all laws on the same subject-matter. The purpose that the Legislature had in view was to simplify the law, and to make the preceding article of the Code of Practice mean what it says. That article (article 643) reads as follows:
“As soon as the sheriff has received this writ [referring to the writ of fieri facias] he must execute it without delay, by seizing the property of the debtor which he shall find in his parish, except such things as are mentioned in the following article.” (Italics mine.)
But there were exemptions then existing by virtue of some statutory enactment, which were not referred to in article 644 of the Code of Practice, which, of course, immediately follows article 643 thereof. Therefore article 643 of the Code of Practice did not mean what it purported to say. Moreover, there were exemptions mentioned in article 644 of the Code of Practice, which were mentioned or granted in article 644, which were also mentioned or granted by other articles of the Code of Practice and of the Civil Code. Therefore, in order to simplify the law, and to make article 643 mean what it purports to say, the Legislature, in amending and reenacting article 644 of the Code of Practice, by the act of 1876, repealed all laws on the same subject-matter, excepting those only which are enumerated in section 4 of the amendatory act. By virtue of the terms of the amendatory act, that act became article 644 of the Code of Practice. Article 643 then meant what it purported to say, and the law was simplified by making article 644, as amended and re-enacted by the act of 1876, the sole evidence of the legislative will as to
In 1918, by Act No. 184, the Legislature amended and re-enacted section 1 of the act of 1876, the act which I have just mentioned, repealing all laws in conflict with the section as amended, and leaving untouched the remaining sections of the act. The only change whatever made in the section was to omit the clause exempting the salary of an officer from seizure. Why did the Legislature omit that clause, and repeal all laws in conflict with the act? It cannot be that this omission was made, as suggested in the opinion of the majority, because the author of the act, or the Legislature, feared that this court might hold that the word “officer” in the clause granting the exemption would be construed to mean a private as well as a public officer. If the author of the act, or the Legislature, had so feared, he or the Legislature, to avoid such a construction, would simply have inserted the word “public” before the word “officer” in the clause granting the exemption, and would not have sought to avoid the construction by rejecting a means so naturally suggestive to adopt as a means to accomplish that purpose the omission of the exemption of an officer‘s salary altogether. The only reason why the Legislature omitted from the act of 1918 (which may be said to be article 644 of the Code of Practice, or, at least, the essential part of that article) the clause exempting an officer‘s salary from seizure is that it did so for the purpose of making an officer‘s salary subject to seizure. It being the legislative will to make an officer‘s salary subject to seizure, no rule of public policy can be invoked to defeat it,
If the office were one in which the salary is payable directly by the state out of its treasury, a different question from the one here presented might arise, for then it would be possible that the garnishment might be considered, in effect, a suit against the state, and it might be held that the act of 1918 is insufficient to authorize such a suit, and the garnishment defeated upon the theory that the state cannot be sued without its consent, or possibly a different question might arise, even if the office were one in which the salary is fixed by the Constitution. However, no such questions arise in this case (and I express no opinion concerning them), for, while the Constitution provides for the office of assessor, yet the salary is left to the Legislature to fix, and, while the statute fixing the salary makes it payable out of a fund formed by contributions made by the various political bodies (including the state), collecting taxes on the basis of the assessments made, yet the fund is deposited in the parish treasury, and the salary is paid out of it by the parish.
For these reasons I concur in the decree, so far as relates to the seizure of the expenses allotted for the office, but dissent as to the exemption of d