Speed, &C. v. Brown, &C.

• Decision Date: 29 December 1849
• Parties: Speed, &c. <I>vs</I> Brown, &c.
• Court: Kentucky Court of Appeals

49 Ky. 108

Speed, &c. vs Brown, &c.

Court of Appeals of Kentucky.

December 29, 1849.

APPEAL FROM THE LOUISVILLE CHANCERY COURT.

JUDGE GRAHAM delivered the opinion of the Court.

BROWN, Curtis and Vance, judgment creditors of Speed, being unable to collect their debt by execution, on the 26th July, 1848, exhibited this suit in chancery, to enjoin the City of Louisville from paying to Speed so much of his salary, as City Marshal, due and payable 31st July, 1848, as would pay their demand. Speed's salary is $750 per annum, payable monthly; that is, $62 50 at the close of each month. Speed, in his answer, states that in the month when the bill was filed he had in his hands monies of the city, received in discharge of the duties of his office, more than enough to pay his monthly salary, and the city, in fact, owed him nothing when the bill was filed, nor at the end of that month. It appears, from the answer of the city by the Mayor, and from the proof in the cause, that no payment is made to any of the officers of the corporation, except by order of the Mayor and Council, and it frequently occurs that the meetings of the Council take place a few days before the salaries are due, and then payment is made in advance; that whenever the Marshal has money in his hands belonging to the city he receives scrip for his salary and pays the scrip, thus received, into the treasury, and retains the money due him. In this case, the Clerk who discharges that duty did, on the 24th July, two days before the commencement of this suit, issue his order on the Treasurer for $62 50, being for one month's salary of Speed as Marshal. The certificate was ready for Speed, but it seems he did not call for it. The salary was not due till the 31st of the month. The Chancellor decreed that the city pay the complainants said sum of $62 50, and from that decree Speed has appealed to this Court. We regret that we have been able to find but few adjudged cases bearing even remotely on the main question involved in this suit. The case of Divine vs Harvie, (7 Monroe, 439,) which is much relied on by Speed's counsel, is not strictly analogous to the one now before us. An appropriation of money had been made to Divine by the Legislature of this State, for services rendered, fuel, &c., furnished to the Legislature. Harvie, a creditor of Divine, sought, by his bill, to reach the fund through the Auditor and Treasurer, who were made parties to his suit. The Court, for several reasons, were of opinion he could not maintain his suit. The money belonged to the Commonwealth until it was received by Divine, and the Legislature had not thought proper to provide any mode by which the Commonwealth could be sued. Nor could the funds of the Commonwealth be reached by a suit against her officers; that the Auditor and Treasurer were not proper parties to the suit, and could not be used as a substitute for the State. The Court then assigns some general and strong reasons, of public policy and public convenience, why it would be improper to permit governmental operations to be clogged, or its business interrupted, by crippling the means of her agents and officers, and thus preventing them from the proper discharge of their duties. We refer to the opinion for the views of the majority of the Court, then so well expressed. The same reasons, that officers of a State should not, to satisfy their creditors, be deprived of their salaries, the means of sustenance for themselves and...