Pitard v. Carey

1 McGl. 289 | La. Ct. App. | 1881

McGloin, J.

Plaintiff, a judgment creditor of defendant, garnisheed The Commissioners for the repairs of the State House at Baton Rouge, La.” The garnishees excepted, and with reservation answered. The exception sets forth that said commission is but the agent of the State, superintending the distribution of its moneys, and that proceedings against it, intended to reach said fund, are in fact proceedings against the State; (Mechanics’ and Traders’ Bank v. Hodge, 3 Rob. La. 373); which last, as the sovereign, cannot be made to appear before its owu courts. The answer shows that defendant Carey, held a contract for glazing upon the State House at 'Baton Rouge, and has completed his work satisfactorily, and that a balance is still due him of $207.84.

Upon the trial below, the garnishee has made no appearance, and from the judgment against it, condemning it to pay to the plaintiff the sum held for defendant, it has taken no appeal. The only appellant is Thos. D. Carey, the judgment debtor.

We are asked by said appellant to pass upon the issues raised by the exceptions of the garnishee, it being contended that, in cases such as this, courts should, ex propria mod, notice the fact that the sovereign is sought to be brought before them, and of their own accord refuse to pass in judgment upon its rights.

Such a consideration might possibly have been urged with propriety upon the judge a quo in the effort to prevent the rendition of the decree he has caused to be made; but that judge is not under our control, except under the circumstances pointed out by the Constitution. There may be error in his findings; but if such findings be not in a case appealable and appealed to this Court, it would be usurpation upon our part .to attempt to disturb them.

In view of the fact th'at garnishee has not chosen to bring this matter before us, but stands towards plaintiff as a coappellee, and that we are without the power to alter the decree as between appellees, we do not see how we are to interfere. If, in this particular, there is error, it must be remedied, if at all, in some other manner, for the constitution, by its definition of our powers, has not authorized us, at this time and under existing circumstances, to consider it.

We do not think the defendant is interested to present this question upon his own appeal. The sovereignty of the State rests in the whole people and not in any particular individual. The right by which, possibly, in his struggle before the lower court, he might have called to the attention of the judge the fact that the sovereign was being proceeded against without its consent, was one which might be exercised by any citizen as well as himself. And if, for reason of public policy or of official duty, the judge a quo had considered himself, of his own motion, compelled to arrest the machinery of justice in this particular case, it would have been for no reason personal to appellant.

Defendant also contends that, as his labor and service was given to the State, public policy requires that the result thereof ■should be shielded from seizure under execution ; and that the same reasoning which justifies the exemption of the salaries of public officers should protect him.

It is certain that,^primarily, it is the province of the Legislative department to determine all questions of public policy. The right of the courts to create exemptions, where the express law has not clone so, is, in any case, exceedingly questionable. But, where the law-maker has specially concerned himself with these matters, exempting some things and not others, the Judiciary is bound to resjtect his will, and refrain from either adding to or subtracting from the lists as he has made them.

La. C. 0., Arts. 3182 and 3183, make the property of the debtor the pledge of all his creditors, and bind the debtor to fulfill his engagements “ out of his property, movable and immovable, present and future.”

We look to various other provisions of law, creating exceptions to this genera] rule, and if we do not find a particular kind of property expressly mentioned in such exception, we must apply the general law and hold it for the lawful debts of the owner.

The arguments which may be advanced in favor of freeing an employee of the government from the danger, etc., of having his salary seized for debt, have not escaped the legislator. On the contrary, we find included among the express exemp. tions, “salaries of office” (O. P. 647), and “money due for the salary of an office.” O. 0.1992, and Act 17 of 1874, p. 53.

This, of course, applies to salaries due public officials or employees for personal services, payable at fixed rates by the month, or year. Conrey v. Copland, 4 La. An. 307; Vance v. Lafferanderie, 4 Rob. La. 340.

It certainly cannot be made applicable to one who, like defendant, holds no office and receives no salary, but who has contracted to do work and furnish material upon a public building by the job.

Now, as the law, having dealt with this matter, has not included a case like the present within its provisions, we can. not extend it, for, uinclusio unius est exclusio alterius

The judgment appealed from, so far as the'same is subject to our review, is correct, and it is affirmed with costs.