Divine v. Harvie

• Decision Date: 27 June 1828
• Citation: 23 Ky. 439
• Parties: Divine v. Harvie.
• Court: Kentucky Court of Appeals

23 Ky. 439

Divine v. Harvie.

Court of Appeals of Kentucky.

June 27, 1828

Constitutional Law. Suits against Government. Public Creditors. Auditor and Treasurer. Choses in Action. Mandamus. Statutes. Construction.

APPEAL FROM THE FRANKLIN CIRCUIT; HENRY DAVIDGE, JUDGE.

Denny Haggin and Loughborough, for appellant.

Marshall and Crittenden, for appellee.

OPINION

MILLS JUDGE.

Case stated.

The legislature of Kentucky, at their session of 1825, allowed to Roger Divine, $252.50, for cutting and piling wood, for the house of representatives, during that session, and this allowance was made in the ordinary appropriation bill.

John Harvie, who was a creditor of said Divine, by judgment and an execution of fieri facias thereon, returned, " no property found," filed his bill in equity, to subject this claim of Divine against the State, to the satisfaction of his judgment under the act of assembly which authorizes a bill in equity to subject equitable estates and choses in action to the satisfaction of such judgments. He made said Divine, the Auditor and Treasurer of the State, parties, and prayed that the Auditor might be directed by the decree of the court to draw the warrant in his favor, and the Treasurer to pay it in satisfaction of so much of the judgment.

There being no dispute about the facts of the cause, Divine submitted the case to the court on demurrer to the bill, for a final decree. The court below decreed in favor of the complainant and directed the Auditor to draw the warrant to Harvie, and the Treasurer to pay him the amount.

Demurrer to the bill overruled, and decree for Harvie.

From this decree Divine has appealed.

The act of assembly, under which these proceedings were had, reads thus:

" Whenever an execution of fieri facias, founded upon any judgment or decree, or upon any bond having the force of a judgment, shall issue to the proper officer and be returned, as to the whole or any part thereof, in substance, that the defendant hath no effects in his bailiwick to satisfy the same, the proper court or courts of chancery shall have jurisdiction, on bill filed, to subject to the satisfaction of such judgment, decree or bond, any choses in action belonging to the debtor, and also any equitable or legal interest in any estate, real, personal or mixed, which the debtor may be entitled to; and to that end may bring other parties before the court, and make such decree as may be equitable under the jurisdiction hereby conferred."

Statutes subjecting choses in action to the payment of debts.

The expressions of this statute are very broad, and it does subject to the power of the chancellor, the interest of the defendant of almost every character. It is now our part to consider whether it is broad enough to reach this demand of Divine against the State and subject it to his debts; or whether this appropriation by the State is excluded in this provision.

It seems to be conceded on all hands, that the State can not be made a party defendant, and is not suable in her own courts.

State can not be sued in her own courts.

Although the constitution has declared, that " The General Assembly shall direct by law in what manner and in what courts suit may be brought against the commonwealth," yet that body has never complied with this direction; but has hitherto kept in their own power the granting of justice to creditors of the State on petition. This voluntary grant of the State to individuals is the only judgment and execution to which the State is subject. Whatever, then, the claims of Divine may be against the State, and however clearly they may be acknowledged, the State can not become a garnishee; and we can not suppose that this act, granting jurisdiction to the chancellor, was intended to make the State suable.

There has been no enactment, under the clause of the constitution, which directs the legislature to provide how suits shall be brought against the state.

State can not be made a garnishee.

Nor do we conceive that the Auditor and Treasurer are proper parties to the controversy; or that they can be used as a substitute for the State. They are not officers appointed to defend the interest of the State generally, although by special act of assembly they may be used as such. The attorney general has more claims to the general appointment, to defend the rights of the State.

Suit can not be maintained against the auditor and treasurer as parties, in place of the state, to obtain a warrant and money from the treasurer.

The only analogous case, in our recollection, which might be supposed to give color to the right of making the Auditor and Treasurer parties, when the State could not be sued, is that of Osborn v. United States Bank, 9 Wheat. 738. But the analogy between the cases fails in an important particular. In that case, under an act of the general assembly of Ohio, the Auditor issued his warrant, to an officer of his own appointment, to seize and take by distress, from the Bank of the United States, or one of its branches, a sum of money assessed by an act of the legislature on the branch, as a tax due the State for exercising the corporate franchise within the State. The officer so appointed executed the warrant, took $100,000, and deposited it with the Treasurer, who received it, and the bill brought by the bank with injunction, made the Auditor, the officer of distress, and Treasurer, parties, restraining further attempt to execute the act of the legislature, and praying a restoration in specie of the sum already taken. It was objected, that the State was not suable; that it was a controversy between the bank and the State, substantially; and of course, that the suit would not lie. It was ruled by the court, that if the State had been liable to suit, the bank would have had its election, to sue the State, or her agents, who had become liable, by attempting to execute a void act under which they could not justify; and of course as the State could not be sued, her exemption did not defeat the cause of action against the agents; that they, by executing a void act, were personally liable, and by reason of that personal liability, they were proper parties, and therefore, the proceedings against them might be sustained without joining the State, just as the actual trespassor, who commits his trespass at the command of another, may be made responsible alone, without uniting the person who gave the command.

Case of Osborn v. the Bank of the U. S. cited, and its principle stated.

In this case, there is a total want of personal lia??ity on the part of the Auditor or Treasurer. There is no claim against them as individuals; and as officers, they are not appointed to defend for the State, and of course there is a total defeat of parties...