Fox v. Miller

• Decision Date: 25 November 1938
• Citation: 121 S.W.2d 527,173 Tenn. 453
• Parties: FOX v. MILLER et al.
• Court: Tennessee Supreme Court

121 S.W.2d 527

173 Tenn. 453

FOX v. MILLER et al.

Supreme Court of Tennessee.

November 25, 1938

Error to Circuit Court, Jefferson County; W. P. Monroe, Judge.

Proceeding between Mack Fox and Sam Miller, administrator, etc. Sam Miller obtained two judgments against Mack Fox, one as administrator, and one in Sam Miller's own right. Executions were issued and garnishment served. The cases were consolidated and heard together by the Circuit Judge without a jury, the facts being stipulated in writing. From an adverse judgment, Mack Fox appeals and brings error.

Affirmed.

H. F Swann, of Dandridge, for plaintiff in error.

Paul Goddard, of Dandridge, for defendant in error.

CHAMBLISS Justice.

Fox was regularly elected Tax Assessor for Jefferson County, in August, 1936. December 30, 1937, he executed an assignment of $85 of his monthly salary of $125 ($40 being exempt) for the remainder of his four year term of office to Harry Vance and others, certain of his creditors. Miller held two judgments against Fox, one as administrator and one in his own right. Executions were issued and garnishments served, in the last days of January and February, respectively, on the Chairman of the County Court. $85 was impounded under each of these garnishments and is held pending the determination of this litigation.

The cases were consolidated and heard together by the Circuit Judge, without a jury, the facts being stipulated in writing. The trial judge held this assignment by a County official of his future salary void as against public policy; also, that it was void because a preferential assignment, leaving out Miller and perhaps other creditors, and he gave judgment in favor of Miller on his garnishments. Fox appeals and assigns errors.

Our cases holding that wages earned or unearned are assignable priority thereunder being fixed by notice to the debtor, are relied on. Spicer v. King Bros. & Co., 136 Tenn 408, 189 S.W. 865; Clodfelter v. Cox, 1 Sneed 330, 60 Am.Dec. 157; Johnson v. Donohue, 113 Tenn. 446, 83 S.W. 360; Peters v. Goetz, 136 Tenn. 257, 188 S.W. 1144. And, Code, Section 8562 reads as follows:

"No action shall be brought to charge any employer upon any assignment by any clerk, servant, or employee of such employer to any person of any wages or salaries unearned at the time of such assignment, unless such assignment at the time of the execution thereof shall have been assented to in writing by such employer."

This section requiring assent of the employer to the assignment in order to charge him, recognizes that ordinarily future salaries and wages of a "clerk, servant or employee" may be assigned, and in the present case it is shown that the assent of the Chairman of the County Court, and of the County Trustee, was obtained. But, it is insisted, on the other hand, that (1) Fox is a County official, holding a public office, and is not within the class dealt with in this section; and that (2) the assent of the County Chairman and Trustee was not the assent of the "employer" of Fox. We are not of opinion that the Legislature intended to include public officials in the "employees" described in this Act, or had reference to a County or municipality. If so, more apt terms would have been employed. The Act purports to deal with an existent situation, with the right to assign unearned wages and salaries as recognized by our decisions. But none of these decisions and no statute authorized or recognized the validity of assignments by public officials of their future official salaries. The manifest purpose of the Act (Section 8562) was to protect the laborer and wage earner, as indicated in the opinion of Mr. Justice McKinney in West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, sustaining the constitutionality of this Act.

The determinative question presented by the record is whether or not assignment by a County Tax Assessor of his future salary for the remainder of his term of office is valid.

We have no reported decision in Tennessee of this precise question. The great weight of authority, text book and decision is against the validity of such a transaction on grounds of public policy, as tending to impair the efficiency of the public service.

The principle underlying these holdings was formerly applied in this State in our cases denying the right to subject salaries of public officers and employees to garnishment. Bank v. Dibrell, 3 Sneed 379; Memphis v. Laski, 9 Heisk.511, 24 Am.Rep. 327; Dickens v. Bransford Realty Co., 141 Tenn. 387, 389, 210 S.W. 644. Now it is argued for plaintiff-in-error, Fox, that since the Legislature, by the Act of 1921 (Code, Section 7714), changed this rule and permitted public wages and salaries to be reached by garnishment, the Courts should extend the application of this change in public policy to assignments by public officials of their salaries or fees, the principle being identical. This is plausible, and if the argument is confined to the scope of the Act of 1921, it is convincing. However, it is apparent that the Legislature in departing from the old and established rule of exemption of public salaries and wages from garnishment carefully limited the right of garnishment to sums "due", thus by clear implication leaving in force the prohibition against subjecting future, unearned compensation to such process. Here the assignment is of compensation not "due", of future salary. Only compensation "due" may be reached under the terms of the Act of 1921, future compensation being left exempt as before. The argument, therefore, does not reach the situation now before us.

And, in this connection, it is significant that the rule denying the validity of assignments of official compensation is directed particularly to future or unearned compensation. 6 C.J. Secundum, under the general subject of "Assignments", § 21, subheaded, "Salary or Fees of Public Officers," thus states the rule in its black type caption: "A public officer, as a general rule, cannot assign unearned salary or fees of his office". The text proceeds: "Although there are some decisions to the contrary [citing one, Hooker v McLennan, 236...