10 Mont. 515 | Mont. | 1891
This action arose while this commonwealth was a Territory of the United States, and the laws applicable to the contention are set forth in the introductory statement.
The garnishment of towns, cities, and counties has been the subject of such conflicting views in different States, and being a first impression in this court, we incline to adopt the language of Judge Welch in City of Newark v. Funk, 15 Ohio St. 463: “ In other States authorities are quite conflicting; so much so, that we do not feel bound by any of them, and see nothing to prevent us from deciding the question as an original one, according to our own views of public policy and the meaning and intent of the statute.”
This conflict to some extent, but by no means wholly, dissolves, upon an inspection of the statutes upon which the decisions are made. In 2 Wade on Attachments, sections 345 and 419, are marshaled the States holding diverse views, and the author concludes that the majority is against holding municipal corporations as garnishees. But the author doubts the soundness, and questions the reason of the rule. There is eminently respectable opinion upon the other side of the question.
An analysis of the case would be interesting, but we will not enter upon it, by reason of the direct conflict of the decisions, even upon similar statutes; and, furthermore, we are of opinion that the statutes of this State are so much more explicit upon the subject under consideration, that many of the decisions of sister States are inapplicable, and that, in view of our statute,
It is not doubted that the statute may exempt a county from the process of garnishment. Our statute does not so exempt a county; and, if they are to be exempted, the authority must be found elsewhere than in the express declaration of the statute. Again, the statute may subject a county to this process. Now what do we find written in the law? It declares that “all persons” having in their possession or under their control any credits or other personal property belonging to the defendant, or owing debts to him, etc., shall be liable to the process. Furthermore, that the word “person” may be applied to “bodies politic and corporate,” and that counties are “bodies politic and corporate.” Hence counties, as “bodies politic and corporate,” are brought within the meaning of the word “ persons,” and all persons may be garnished. It is therefore no strained conclusion to say that a county is subject to the process.
Speaking of holding a county as garnishee, Judge Biddle (Wallace v. Lawyer, 54 Ind. 506; 23 Am. Rep. 661) says: “And the decisions are generally made upon statutes authorizing corporations, in terms, to be garnished; yet the courts hold that the general word 'corporation’ must be restricted to mean private or ordinary business corporations, and not extended to embrace municipal corporations, or bodies politic and corporate. The words used in the statute of this State are 'persons’ or 'corporations,’ in general terms.” But the statute of Montana, as above noticed, goes further than to use the words “persons” or “corporations” in general terms, as in Indiana, and the remarks of the judge in that case, and the authorities to -which he refers, lose their force in this court.
It is a general principle that one who may be sued may be garnished by the creditor of the person who may sue. Counties with us may be sued (§ 744, Gen. Laws), and, therefore, under the general rule, they would be subject to garnishment. They, in this respect, do not come within the reason of exempting a sovereign State from garnishment, which sovereignty may not be sued, or ordinarily subjected to process of the courts. It being clear that the statute does not expressly exempt counties from garnishment, and it being equally clear that the letter of
We will examine, in the light of the statute, the reasons adduced for exempting counties from this process of the courts. It is objected that there is practical difficulty in summoning an artificial entity, like a county, to be examined on oath respecting its possession of property of the debtor, as provided in section 190 of the Code of Civil Procedure, and that so summoning its officers is a serious interruption to the business of the county and its officers.
We cannot agree with this view. The statute (§ 749, Gen. Laws) expressly provides a method for service of process against a county in all legal proceedings. In another portion of the statute (§ 72) service of a summons upon a county is provided for. Answering a garnishment is by no means as large an affair as appearing in an action as a defendant. The statute providing a method for summoning a county in legal proceedings, we can see no practical difficulty in its appearing. There was certainly none in this case, and no derangement of the county’s business occurred. Again, it is said that the writ does not lie against a county by reason of its being contrary to public policy; that disasters to the public would ensue if the writ were allowed, and public servants would be impaired in their usefulness. In Wallace v. Lawyer, supra, it was held that a county cannot be held to answer as to its indebtedness to an execution debtor for his salary as an officer of such county in proceedings supplemental to execution. This case cites with approval Merwin v. City of Chicago, 45 Ill. 133; 92 Am. Dec. 204, which was a case of garnishment of a municipal corporation, in which the court, by Lawrence, J., says: “ The only question presented by this record is, whether municipal corporations in this State are liable to the process of garnishment. This court held, in City of Chicago v. Hasley, 25 Ill. 595, that the property of such a corporation could not be levied on and sold under execution. This decision was placed upon the grounds of public policy. However strong the obligation of a town or city to pay its debts, it was considered that to
Thus it is observed that the 45 Ill. 133, on the subject of garnishment of a municipal corporation, adopts the reasoning of 25 111. 485, in the matter of an execution against the corporation, on a judgment obtained directly against the corporation. The grounds for denying an execution against a municipal corporation are most satisfactorily put in 25 Ill., City of Chicago v. Hasley. The court well points out the disasters which might follow the levy of execution against the city of Chicago; how the seizure of the water-works would participate a water famine, the levy upon fire-engines would expose to the horrors of conflagration, and the seizure of revenues would paralyze government. To these views we have no dissent. But we cannot follow the Illinois court in 45 Ill., when it applies these arguments to the matter of garnishment of the municipal corporation. By garnishment the water-works, fire-engines, public buildings, and revenues of the corporation are not seized. The corporation is simply required to hold, and finally pay over, a sum of money
Returning to the case at bar, we cannot agree that there is any reason why the great public duties of a county need be imperfectly performed, or that its business is in any danger of derangement, if it be compelled, by process of a court, to pay the salary of a servant to that servant’s creditors. The county has no suit to defend, no counsel to employ, no witnesses to collect and pay. It has no burden cast upon it, and no duty to perform, except to act as temporary stakeholder, to await the determination of a court, in an action in which the county has no interest.
The argument of public policy as to inconvenience to the county and its officers does not reach our mind with sufficient force to impair another view of law and of right that is recognized throughout the civilized world; that is, that debtors should pay their debts. This, of course, with the modification that the means of livelihood should be left to the debtor, which view is embodied in the laws of exemption from execution, which in this State are very liberal. The debtor’s earnings for thirty days prior to the levy of a writ are exempt from seizure. The servant of the county is thus secured in his support, if he earns it, and the county is not liable to lose the services ot competent officers. Indeed, it has never been observed that a county has difficulty in obtaining employees to do its work, and the county may surely obtain as good service from those who pay their debts as from those who avoid such payment, and are protected in the avoidance by the unsatisfying doctrine of public policy.
We conclude that there is no substantial argument from public policy which requires us to read the law as to garnishment ot counties differently from what its letter seems to us to declare. Counties are not exempted from garnishment by statute. On the contrary, their liability to the process is within the letter of the law. We find nothing in the spirit or the doctrine of public policy which induces us to add to or take from the letter. The judgment of the District Court is reversed, and the cause is remanded, with directions to that court to
