56 Ala. 306 | Ala. | 1876
Under the revenue law of 1868, the • compensation of a tax-assessor was a prescribed per-centum on the State and county tax assessed by him, payable by the tax-collector, from the first moneys collected by him; for which, when paid, the assessor was required to give the collector duplicate receipts. It was the duty of the assessor, to attend in each election precinct, for the purpose of making the assessment, and to give fifteen days’ notice of the time and place at which he would attend for that purpose. If the tax-payer failed to meet him, at the time and place appointed, he was required to make demand on him, for a list of his taxable property, and for this service was entitled to charge a fee of seventy-five cents; which was computed
The appellant, a creditor of one McEae, who was tax-assessor of the county of Lowndes, sued out a writ of garnishment against the appellee, as tax-collector, to condemn the compensation due McEae, for assessments already made, which he had received, or might thereafter receive. The Circuit Court discharged the garnishment, on the ground that the compensation of a public officer was not subject to the process.
It has not been doubted, that a tax-assessor is a public officer. All his duties relate to the public revenue, State and county, and the emoluments of the office are but compensation for the performance of these duties. The compensation, except as to the fee chargeable against the delinquent taxpayer, is payable by the State and county, from the public revenue. The tax-collector is, as to its payment, merely the disbursing officer of the State, and of the county. The statutory requirement, that he shall pay it from the first moneys collected, creates the authority and duty of payment. Until the payment is made, the compensation remains public money, in the custody of the officer of the government, not separate or distinguishable from the aggregate of taxes collected.
It seems to be well established, that a public officer, who has public moneys in his custody, for disbursement in satisfaction of demands on the government, can not be summoned as the garnishee of one having a legal right to demand and receive from him such moneys. — Millison v. Fisk, 43 Ill. 112; Brooks v. Cook, 8 Mass. 246; Stillman v. Isham, 11 Conn. 124; Bulkley v. Eckert, 3 Penn. St. 368; Mayor, &c. v. Root, 8 Md. 95; Mechanics’ Bank v. Hodge, 3 Bob. (La.) 373; Buchanan v. Alexander, 4 How. 20. The exemption does not rest only on the ground that the technical relation of debtor and creditor is not existing between the government- and the person who may be entitled to receive the money, which relation is the foundation of the process of garnishment, or kindred legal process, for the subjection of choses in action to the payment of debts. It is founded on considerations of public policy— the embarrassments in the administration of government, which must result, if, by judicial process, the public moneys could be diverted from the specific purposes to which by law they are appropriated. Between the government and its officers and agents, or its creditors, if those having claims on it are thus termed, individuals can not be permitted to intervene, suspending the disbursement of the public revenue,
The law contemplates a speedy settlement of the accounts of tax-collectors. The taxes are annually assessed 'and collected, and a separate settlement of each year’s taxes is an object of several provisions of the revenue laws. Oan this settlement be deferred, until garnishments, to reach the compensation of the assessor, shall have been determined? It is not an answer to say, the government is fully protected, if, by the judgment of a competent court, binding on the assessor, and on the officer charged with the duty of paying his compensation, it is adjudged that it be paid to the attaching creditor. That may be true, and -the courts powerless to disturb the mode of payment the law has appointed, or the manner of keeping public accounts the law establishes, or to divert public moneys from the particular purposes to which they are appropriated. Private right, of necessity, is often yielded to public convenience. It is better that a creditor, of one having a claim to public moneys, should submit to the detriment of awaiting their payment, their appropriation as the law prescribes, than that he should embarrass the goverment, or its officers, in the administration of the public revenue, by his private controversies.
The statute (B. 0. § 2948) authorizing the attachment of money in the hands of an attorney-at-law, sheriff, or other officer, and its payment into court, if the garnishee is an officer of court, to abide the result of the attachment, does not affect the principle of exemption of public moneys, to
Independent of this consideration, it has, so far as we have examined, been uniformly decided, that the salary, or fees, or the compensation of public officers, is not subject to garnishment.' — Mayor v. Root, 8 Md. 95; Bank of Tennessee v. Dibrell, 3 Sneed, 379; Mayor v. Rowland, 26 Ala. 498; Divine v. Harvie, 7 Mon. 444. The people, the qualified electors, have a paramount right of selecting the tax-assessor, tax-collector, sheriff, or other public officer, elective by popular
In Divine v. Harvie, supra, the court say: “It would be a mortifying circumstance, to see a member of the legislature rendered unable to pay his sustenance, while attending on its session, because a creditor, who never dealt on the credit of the fund, should, by injunction, detain his compensation, on which he obtained credit with his host.” And in Mayor v. Rowland, supra, Chief-Justice Chilton forcibly expresses the principle, and the reason of it: “ The city corporation, which is a government for the city, invested with certain attributes of sovereignty delegated to it by its charter, is entitled to fill its office by a selection of suitable persons from among the whole community. This privilege would exist but in name, if those who depend upon their salaries for a livelihood could be deprived of such salaries by garnishment, and thus cut off from the means of subsistence. The result would be, that only those who were free from debt, or who could subsist without their salaries, could fill such offices, and the
"We may admit the argument of appellant’s counsel, that the assessor can maintain debt, or assumpsit, against the collector, for his compensation, after its collection. It does not necessarily follow therefrom, that the compensation is the subject of garnishment. The governor may, by mandamus, compel the auditor to draw a warrant for his salary, as it accrues monthly, and -may also compel its payment by the treasurer. It does not follow that it is subject to garnishment, at the suit of a greedy, or litigious, or meritorious creditor. The compensation of the assessor, and the salary of the governor, and the compensation of all public officers, is free from seizure under legal process, not on any technical inquiry as to whether there is a legal remedy for its recovery, or the form of the remedy, but on high considerations of .public policy.
The judgment of the Circuit Court, discharging the appellee, must be affirmed.