Summary
In Nacy v. Le Page, 341 Mo. 1039, 111 S.W.2d 25, the court ruled that the State Treasurer was not subject to a garnishment writ.
Summary of this case from V. S. DiCarlo Construction Co., Inc. v. StateOpinion
December 14, 1937.
GARNISHMENT: State Treasurer. The State Treasurer cannot be required to submit to a legal writ of garnishment.
While a garnishment is not a new suit, it is a proceeding auxiliary to a judgment which may present fact issues to be tried as a suit at law.
Garnishment is within the rule that the State can only be sued in such matters and in such manner as it shall specifically consent to be sued.
Garnishment is a remedy to obtain satisfaction of a judgment by reaching goods, moneys or effects of the debtor in the possession of another or by applying thereon debts or credits due to the debtor by another.
The State Treasurer in his official capacity and in the funds of the State treasury, has no goods, moneys or effects of any private citizen in his custody, nor does he owe a debt from the treasury to anyone. He is custodian of public funds raised by taxation, which belong to the State. His duty is to pay out those funds only in pursuance of an appropriation by law which shall distinctly specify the sum appropriated and the subject to which it is to be applied.
Appeal from Cole Circuit Court. — Hon. Nike G. Sevier, Judge.
AFFIRMED.
H.P. Lauf and John O. Bond for appellant.
(1) Justices of the Peace have power to issue writs of garnishment. Sec. 2522, R.S. 1929. (2) The statutes of the State nowhere exempt a State officer from the writ of garnishment. Sections 1398, 2522, R.S. 1929. (3) Since Section 1398, Revised Statutes 1929, sets out what persons are immune from garnishment and since said section names certain classes of persons but fails to name State officers as being immune by sound statutory construction State officers are to be deemed subject to the writ. Sec. 1398, R.S. 1929; 59 C.J. p. 984; State v. Sweaney, 195 S.W. 716. (4) The rule that State officers cannot be subject to the writ of garnishment because of "public policy" is unsound and has been severely criticized. 28 C.J., pp. 555, 571, sec. 67.
Roy McKittrick, Attorney General, and Olliver W. Nolen, Assistant Attorney General, for respondent.
(1) To subject respondent to writ of garnishment allows that to be accomplished indirectly which could not be attained in direct suit. 12 R.C.L., p. 841; Watson v. Dodge, 63 S.W.2d 993; State ex rel. v. Am. Surety Co., 210 Mo. App. 203; Hopkins v. Clemson Agricultural College, 221 U.S. 636; Hagood v. Southern, 117 U.S. 52, 29 L.Ed. 805; Murray v. Wilson Distilling Co., 213 U.S. 151, 53 L.Ed. 742. (2) The funds of the State of Missouri in the hands of a State officer are presumed to be exempt, in the absence of statutory provisions to the contrary. Sections 1396 and 1398 were not intended by the Legislature to apply to the State and its officers. Moscow Hardware Co. v. Colson, 158 F. 199; 28 C.J., sec. 80, p. 64; sec. 74, pp. 61, 62; Knox County v. Melton, 105 S.W.2d 816. (3) It is against public policy to subject the State and its officers to a writ of garnishment. Geist v. St. Louis, 156 Mo. 643; 12 R.C.L., p. 841; Owen v. Terrell, 162 P. 172; First Natl. Bank v. Mayes, 299 S.W. 1002; Bull v. Zeigler, 54 S.W.2d 283; Pipe Line Co. v. Chicago, 170 Ill. 580; Kein v. School District, 42 Mo. App. 460. (4) Respondent could not waive his rights to exemption if he so desired on the ground public policy would prohibit any such waiver on the part of the State or its officers. Van Cott v. Pratt, 11 Utah, 209, 39 P. 827; Sherman v. Shobe, 94 Tex. 126, 58 S.W. 949; Duvall Co. v. Charleston, 45 Fla. 256, 33 So. 531.
This is a proceeding in the Circuit Court of Cole County in prohibition to stop proceedings, in the justice of the peace court of Jefferson Township in said county, to have the State Treasurer summoned as garnishee on execution under a judgment of the Automotive Sales Company against Joseph L. Edwards. Temporary rule in prohibition was made absolute and defendant has appealed.
The case was determined on the pleadings, which sufficiently present the sole question urged on appeal. This is stated by appellant as follows: "Does the Justice Court have the right and judicial authority to require the State Treasurer to submit to a legal writ of garnishment?" The answer to this question must be "no," because the State may not be sued without its consent. [State ex rel. State Highway Commission v. Bates, 317 Mo. 696, 296 S.W. 418.] While a garnishment is not a new suit, it is a proceeding auxiliary to a judgment which may present fact issues to be tried as a suit at law. [28 C.J. 17, secs. 3-5; 12 R.C.L. 842, sec. 80.] It seeks to compel action on the part of the State. [See Hagood v. Southern, 117 U.S. 52, 29 L.Ed. 805, 6 Sup. Ct. 608; Louisiana ex rel. N.Y.G. I. Co. v. Steele, 134 U.S. 230, 33 L.Ed. 891, 10 Sup. Ct. 511; Buchanan v. Alexander, 4 How. 20, 11 L.Ed. 857.] Our statutory garnishment is a strictly legal proceeding, and Section 1414, Revised Statutes 1929, provides that "issues shall be tried as ordinary issues between plaintiff and defendant." [Tinsley v. Savage, 50 Mo. 141; Lackland v. Caresche, 56 Mo. 267; Sheedy v. Second National Bank, 62 Mo. 17; State ex rel. Kennedy v. Harris, 228 Mo. App. 469, 69 S.W.2d 307.] It is said (12 R.C.L. 842) that "garnishment is substantially the prosecution of an action by the defendant, in the name of the plaintiff, against the garnishee;" and that the rule (against garnishment of State officers) "has never been seriously questioned." We, therefore, hold garnishment to be within the rule that the State can only be sued in such matters and in such manner as it shall specifically consent to be sued. [For the extent of this rule and the reason for it see 28 C.J. 64, sec. 6; 59 C.J. 300, secs. 459-464; 12 R.C.L. 841, sec. 80; note 44 L.R.A. (N.S.) 218; 25 R.C.L. 412, secs. 49-50.] Moreover, garnishment is a remedy to obtain satisfaction of a judgment by reaching goods, moneys or effects of the debtor in the possession of another or by applying thereon debts or credits due to the debtor by another. [Secs. 1396, 1402, 1404, and 1408, R.S. 1929; State ex rel. Kennedy v. Harris, supra.] The State Treasurer, in his official capacity and in the funds of the State treasury, has no goods, moneys or effects of any private citizen in his custody, nor does he owe a debt from the treasury to anyone. He is a custodian of public funds, raised by taxation, which belong to the State. His duty is to pay out these funds only "in pursuance of an appropriation by law" which "shall distinctly specify the sum appropriated and the subject to which it is to be applied." [Sec. 19, Art. 10, Constitution.] An appropriation may impose a duty on him but it certainly does not create a debt. Therefore, he is not within the terms of our garnishment statutes. If modern extensions of the functions of government make garnishment of State funds desirable, that is an argument to be made to the General Assembly.
The judgment is affirmed. Ferguson and Bradley, CC., concur.
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur, except Hays, J., absent.