Badenoch v. City of Chicago

• Decision Date: 14 June 1906
• Parties: BADENOCH v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

222 Ill. 71

78 N.E. 31

BADENOCH

v.CITY OF CHICAGO et al.

Supreme Court of Illinois.

June 14, 1906.

Appeal from Circuit Court, Cook County; R. S. Tuthill, Judge.

Garnishment proceedings by Stephen D. May against the city of Chicago, and Frederick W. Blocki, city treasurer, to recover a judgment against Joseph Badenoch, an officer of the city. From a judgment in fovor of the garnishees, Badenoch appeals. Affirmed.

William B. Moak, for appellant.

Edward T. Wade (James Hamilton Lewis, Corp. Counsel, of counsel), for appellee City of Chicago.

John C. Richberg (Richberg & Richberg, of counsel), for appellee F. W. blocki.

HAND, J.

This is an appeal from a judgment of the circuit court of Cook county quashing the writ and dismissing the suit in a garnishment proceeding commenced in said court by StephenD. May against the city of Chicago and Frederick W. Blocki, the treasurer of said city, to recover from said garnishees, under the provisions of an act entitled ‘An act to subject the salary and wages of officers and employees of counties, cities, villages, school districts and departments of either thereof to garnishment and attachment,’ approved May 11, 1905, and in force July 1, 1905 (Laws 1905, p. 285), the amount of a certain judgment theretofore recovered by said Stephen D. May in said circuit court against Joseph Badenoch, an officer or employé of said city. An affidavit in the form usually filed under the provisions of the general garnishment act, averring, among other things, the recovery of said judgment, the issue and return of an execution nulla bona, and that the city of Chicago and Frederick W. Blocki, its treasurer, were indebted to said Badenoch, was filed, whereupon a garnishee summons was issued and served upon the city and its treasurer. The contention of the city of Chicago and Frederick W. Blocki in the court below was, and that court held, said act was in contravention of the Constitution of this state and void. Hence the appeal is prosecuted direct to this court.

The act of May 11 consists of eight sections. Section 1 provides that the salary or wages of any officer or person employed by and county, city, town, village, school district, or any department of either thereof, shall be liable to process of garnishment or attachment in the following manner and extent, and with the same effect that the salary or wages of any other person is or are now or may hereafter become, under any provisions of any law of this state, liable to such process; section 2, that, when the salary or wages of any officer of such political subdivision or department thereof is sought to be attached or reached by process of garnishment, the garnishee summons or writ of attachment shall be served upon the treasurer or clerk of such political subdivision or department thereof, and in all other cases such process shall be served upon the officer or head of department, or the presidingofficer of the body in which office or department or by which body the person whose salary or wages is sought to be attached or garnished is employed, and the answer shall be made by the officer or person upon whom such service is made or by some other officer or person having knowledge of the facts; section 3, that the officer upon whom such garnishee summons is served shall, within 10 days from the date of service of summons, file, or cause to be filed, with the justice or the clerk of the court where such proceeding is pending, an answer under oath, stating the amount due the person whose salary or wages has been attached or garnished, the amount of offset, if any, the corporation has against said wages or salary at the time of the service of summons, and whether the officer or employé is the head of a family, and shall deposit with the justice or the clerk of the court the amount so shown to be due and unpaid, taking a receipt therefor, and that thereupon the municipal corporation shall be relieved from any further connection with the suit, and that the receipt so taken for such deposit shall become a voucher for the amount so paid, the same as though taken from said officer or employé; section 4, that upon the filing of an answer and the making of such deposit the justice or the court where the proceeding is pending shall proceed to try the rights of the parties to such deposit, as near as may be in the same manner as other cases of garnishment; section 5, that when such officer shall be summoned to answer in any place other than where he resides, where his office is located, or where his duties are usually performed, the plaintiff shall file with the affidavit in attachment or in garnishment, and before the issuing of summons, interrogatories in writing to be answered by said officer, which shall be served upon him at the time the summons is served, which interrogatories shall be answered under oath by the officer served, and filed with the justice, or in the court from which summons issued, within 10 days from the time specified in the garnishee summons; section 6, that the filing of such answer and the making of said deposit shall release the corporation from further action on the part of the justice or the court in which the proceeding is pending, but, if the officer shall fail to file an answer and make such deposit within 10 days after the service of summons, the justice or the court may subpoena said officer to appear and may compel such officer to file an answer, and if it shall appear that any money is due the officer or employé the court may order the same deposited within a specified time, and if such officer shall still refuse to deposit the same the court may proceed against the officer served as in cases for contempt; section 7, that before the officer shall be required to answer he shall be paid the usual fees required by law to be paid in such cases, and in case the officer is without the jurisdiction of the court his deposition may be taken, but such deposition shall not operate as an answer; and section 8, that in case any officer of the corporation named in section 2 of the act to be served with summons shall be the officer or employé whose salary or wages are attached or garnished, then the summons shall be served upon some other officer of the corporation.

It is contended on behalf of the city treasurer that the relation of debtor and creditor does not exist between the city treasurer and the officers and employés of the city, and that, at most, the city treasurer is but the custodian of the funds of the city, and that the Legislature is powerless to authorize a judgment to be rendered against a city treasurer for the amount due a city officer or employé as salary or wages, for the benefit of the creditor of such officer or employé, in an attachment or garnishment proceeding. In Triebel v. Colburn, 64 Ill. 376, it was sought to garnish the salary of a policeman in the hands of the city treasurer of the city of Peoria. It appeared the policeman's account had been audited, that the treasurer had money in his hands which he might rightfully apply to the payment of said salary, and that there remained nothing for the city treasurer to do but to pay to the policeman the money due him. It was, however, held the fund could not be reached by garnishee process, as the city treasurer was not indebted to the policeman. The court, on page 378, said: ‘The city treasurer in this case had no money of the judgment debtor the (policeman) in his hands. The money due to the latter for his salary did not become his money until paid over to him. The city treasurer was not indebted to him. He could not have maintained an action against the treasurer, * * * but would have been compelled to sue the city, which alone was his debtor. The supposed ground of personal liability failing, the treasurer of this municipal corporation must be held as not liable to this garnishee process.’

The statute in question is so inartificially drawn that it is difficult to determine from its provisions whether it was the intention of the framers...