Gerald v. Walker

• Decision Date: 09 May 1918
• Docket Number: 5 Div. 698
• Citation: 201 Ala. 502,78 So. 856
• Parties: GERALD v. WALKER, Superintendent of Banks.
• Court: Alabama Supreme Court

78 So. 856

201 Ala. 502

GERALD v. WALKER, Superintendent of Banks.

5 Div. 698

Supreme Court of Alabama

May 9, 1918

Appeal from Circuit Court, Chilton County; Leon McCord, Judge.

Action by Agnes Gerald, pro ami, against John Patton, Jr. Judgment for plaintiff. In aid of such suit a writ of garnishment was sued out against A.E. Walker, as Superintendent of Banks. From a judgment discharging the garnishee, the plaintiff appeals. Transferred from Court of Appeals under Acts 1911 p. 450, § 6. Affirmed.

Lawrence F. Gerald, of Clanton, and Jones, Thomas & Field, of Montgomery, for appellant.

Coleman & Coleman, of Birmingham, for appellee.

GARDNER J.

By this proceeding, appellant seeks to subject the salary alleged to be due a special agent, under appointment of the superintendent of banks in the liquidation of the affairs of an insolvent bank, to the satisfaction of a judgment obtained by said appellant against such special agent. As to whether or not the character of funds in the hands of the superintendent of banks relieves such official, under the circumstances of this case, from subjection to garnishment and is not included within the provisions of section 4309 of the Code of 1907 (Pruitt v. Armstrong, 56 Ala 306), is a question which is left without determination, as the conclusion we have reached renders a decision of this question unnecessary. As was said by this court in Pruitt v. Armstrong, supra:

"It has *** been uniformly decided that the salary, fee, or the compensation of public officers is not subject to garnishment."

The rule is rested upon the very sound principle that it is contrary to public policy to permit governmental affairs to be thus interfered with by creditors of an individual who has been selected for the performance of service for the public. The opinion in the above-cited case quotes the following with approval from the Tennessee court (Bank of Tennessee v. Dibrell, 3 Sneed [Tenn.] 379):

"Every consideration of policy would forbid it. No government can sanction it. It would be very embarrassing generally, and, under some circumstances, might prove fatal to the public service to allow the means of support of the government to be intercepted in the hands of distributing agents. If the funds of the government, thus specifically appropriated for the support and maintenance of its agents were allowed to be divested by process of attachment in favor of creditors, or otherwise, from their legitimate object, the functions of the government might be suspended. The state might be thus deprived of the services of her most valuable citizens."

In the case of Mayor, etc., v. Rowland, 26 Ala. 498, the court said:

"The city corporation, which is a government for the city, invested with certain attributes of sovereignty delegated to it by its charter, is entitled to fill its offices by a selection of suitable persons from among the whole community. This privilege would exist but in name if those who depend upon their salaries for a livelihood could be deprived of such salaries by garnishment, and thus cut off from the means of subsistence. The result would be that only those who were free from debt, or who could subsist without their salaries, could fill such offices, and the public service might suffer from want of persons to accept or hold them."

It remains, therefore, to be determined whether or not the debtor, Patton, in the instant case, appointed as special agent by the superintendent of banks in the liquidation of affairs of the Union State Bank, was a public officer within the meaning and spirit of this well-recognized rule.

The law creating a banking department for the state of Alabama, and through such department supervising and examining the banks of this state, was enacted by Acts 1911, p. 50. The constitutionality of many of the provisions of this act was unsuccessfully attacked in McDavid v. Bank of Bay Minette, 193 Ala. 341, "Money is said to be the very lifeblood of the nation. The banking business has grown to be a part and parcel of our financial system, and it is so regarded by both the federal and state governments."

Therefore the state at large is interested not only in wise legislation regulating the banking business, but also in the proper administration of the affairs of an insolvent bank, the control of which has been assumed by the state banking department.

Appellant's debtor, Patton, received his appointment under the provisions of section 10 of the above-cited act of 1911, which, so far as here pertinent, reads as follows:

"The superintendent may, under his hand and official seal, appoint an agent to assist him in the duty of liquidation and distribution of the assets of any bank taken possession of by him under the provisions hereof, the certificate of appointment to be filed in the office of the superintendent and a certified copy in the office of the probate court in the county in which the principal office of such bank was located, and such special agent shall receive a salary not exceeding $200 per month for the time he is actually engaged in assisting and liquidating the affairs of the bank. The superintendent may authorize such agent to perform such duties connected with such liquidation and distribution as the superintendent himself could in person do and perform. *** The superintendent shall require from the special agent appointed by him and from such assistants as will have charge of any of the assets of the bank such security for the faithful discharge of their duties as he may deem proper."

The act further provides that the compensation of such special agent shall be fixed by the superintendent, subject to the approval of the court, and in no event to exceed the sum of $200 per month, to be paid out of the funds of such corporation or individual banker in the hands of the superintendent, and shall be a prior charge or lien on the assets of such corporation or individual banker. Under the provisions of said act, the superintendent also has authority to appoint bank examiners, as well as an office assistant to aid him in the discharge of his duties. That said superintendent of banks is a public officer is, of course, too clear for discussion.

The act specifically provides that the superintendent in the appointment of such special agent may authorize such agent to perform such duties connected with such liquidation and distribution as the superintendent himself could in person perform, and such was, in fact, the express stipulations contained in the commission issued to Patton in the instant case. Patton executed bond for the faithful discharge of his duties, as was authorized by said act, and in the performance of his duties therefore stood in the shoes of the superintendent, with the same authority in the liquidation of the affairs of said bank as was possessed by the superintendent himself.

In Andrews v. State, 78 Ala. 483, it was held that where one is deputized by the sheriff to make an arrest in a particular case only, yet he was an officer of the state within the meaning of the statute, making it a violation of the law for one to willfully and knowingly resist such officer of the state. In discussing the question, the court said:

"We are satisfied that the special deputy was an officer of the state, within the meaning of this statute. The law makes it the duty of the sheriff to have one deputy, and authorizes him to have as many as he may think proper. Code,§ 729. The office is a mere statutory creation, and not a constitutional one. After his appointment, he had the authority to execute the process by arresting the defendant, and his duty was commensurate with his authority. Pro hac vice, he was an officer, within the generic meaning of the term, because he was executing an agency of the state under the authority of a public law."

So here, also, while Patton is designated as special agent, yet he may with equal propriety be called a special deputy of the state, supervising in the matter of...