Hennig v. Staed

• Decision Date: 03 April 1897
• Parties: Hennig et al. v. Staed, Ex-Sheriff, Appellant
• Court: Missouri Supreme Court

40 S.W. 95

138 Mo. 430

Hennig et al. v. Staed, Ex-Sheriff, Appellant

Supreme Court of Missouri, First Division

April 3, 1897

Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.

Affirmed.

Seneca N. Taylor and Charles Erd for appellant.

(1) Section 4911 of the Revised Statutes of Missouri of 1889 upon which respondents predicate their claims, is unconstitutional and void, in that it sanctions the taking of private property without due process of law. Const. U.S. 14 Am., sec. 1; Bill of Rights, art. 2, sec. 30; Clark v Brown, 25 Mo. 563; Holland v. Depriest, 56 Mo.App. 516; Hicks v. Schofield, 121 Mo. 381; Russell v. Grant, 122 Mo. 161. (2) The section in question is an amendment to the execution law, and so far as its terms apply to seizures under writs of attachment, it is unconstitutional, in that it violates article 4, section 28, of the Constitution of Missouri, which provides that, "no bill * * * shall contain more than one subject, which shall be clearly expressed in its title." State v. Miller, 45 Mo. 495.

James R. Kinealy and L. A. McGinnis for respondents.

This proceeding may be based on section 2538 as well as on section 4911, and the former is constitutional. 1 R. S. 1889, sec. 2538; Luther v. Saylor, 8 Mo.App. 424; State v. Burgdoerfer, 107 Mo. 1. (2) Section 4911 is constitutional. State v. Hope, 100 Mo. 347; State v. Railroad, 48 Mo. 468; Gabriel v. Mullen, 111 Mo. 119; State ex rel. v. Barker, 26 Mo.App. 487; Parker v. Johnson, 22 Mo.App. 516; State ex rel. v. Miller, 100 Mo. 439; Holland v. De Priest, 130 Mo. 89; Acts of Ill. of 1887, p. 308; Mohle v. Tschirch, 63 Cal. 381; Purefoy v. Brown, 2 Pa. Dist. R. 821.

OPINION

Macfarlane, J.

On the tenth day of November, 1894, the Continental National Bank commenced a suit by attachment against the A. Siegel Gas Fixture Company to recover judgment on notes exceeding $ 19,000. Under a writ of attachment in the cause the property of said company was levied upon and, under an order of the court, was sold for about $ 10,000.

Within ten days after the levy upon the property the respondents herein, John A. Hennig and eighteen other persons, each presented to the appellant, then sheriff of the city of St. Louis, who had charge of the property, a written statement, under oath, showing that they were laborers and employees of said company, and had performed work and labor for it within six months next preceding the seizure of the property, and showing the amount due after allowing all just credits and set-offs, the kind of work for which such claim was due, and when performed, and asked that their claim for wages be paid them out of the proceeds of said property. The sheriff declined to pay the claims, and the claimants thereupon filed in the court in which the attachment suit was pending a motion in the nature of an interplea, setting forth the facts and stating that no person interested had filed exceptions to their claims or had otherwise contested them. They asked an order of the court requiring the sheriff to pay the claims. An order was made on the sheriff to show cause on or before March 16, 1895.

The sheriff filed his return March 13, 1895. By his return he admitted the attachment, seizure and sale of the property, presentation of the statement as charged, and his refusal to pay. For cause he states that the attorneys of the attaching creditors objected to payment on the ground that section 4911, Revised Statutes 1889, under which payment is claimed, is unconstitutional and void; that the attaching creditor has filed exceptions, and claimants have not reduced their claims to judgment.

The case was heard on the motion and the return of the sheriff; the motion was sustained and the sheriff was ordered to pay the claims out of the proceeds of the sale of the property in his hands. A motion to set aside the order was filed by the sheriff. The grounds of the motion are: (1) Because the plaintiff in the attachment suit protests and objects to payments being made; (2) because the statute under which the claims are made is unconstitutional; (3) because the attaching creditor acquired a first lien and its debt exceeds the amount of the funds in the hands of the sheriff; (4) because the proceedings under which the order was made are without warrant of law. The motion was overruled and the sheriff appealed.

The section of the statute under which these claims are made is as follows:

"Hereafter when the property of any company, corporation, firm, or persons shall be seized upon by any process of any court of this State, or when their business shall be suspended by the action of creditors, or be put into the hands of a receiver or trustee, then in all such cases the debts owing to laborers or servants, which have accrued by reason of their labor or employment, to an amount not exceeding one hundred dollars to each employee, for work or labor performed within six months next preceding the seizure or transfer of such property, shall be considered and treated as preferred debts, and such laborers or employees shall be preferred creditors, and shall be first paid in full; and if there be not sufficient to pay them in full, then the same shall be paid to them pro rata, after paying costs. Any such laborer or servant desiring to enforce his or her claim for wages under this chapter shall present a statement under oath showing the amount due after allowing all just credits and set-offs, the kind of work for which such wages are due, and when performed, to the officer, person, or court charged with such property, within ten days after the seizure thereof on any execution or writ of attachment, or within thirty days after the same may have been placed in the hands of any receiver or trustee; and thereupon it shall be the duty of the person or court receiving such statement to pay the amount of such claim or claims to the person or persons entitled thereto, after first paying all costs occasioned by the seizure of such property, out of the proceeds of the sale of the property seized: Provided, that any person interested may contest any such claim or claims, or any part thereof, by filing exceptions thereto, supported by affidavit, with the officer having the custody of such property; and thereupon the claimant shall be required to reduce his claim to judgment before some court having jurisdiction thereof before any part thereof shall be paid." R. S. 1889, sec. 4911.

I. The only question discussed by counsel on this appeal is the constitutionality of section 4911, Revised Statutes of 1889, upon which respondents predicate their claim. Appellant insists that it is obnoxious to section 30, of article 2, of the Constitution, which provides "that no person shall be deprived of life, liberty, or property without due process of law," in that it authorizes the court, or officer in charge of the property of an insolvent debtor, to pay labor claims without notice to parties interested therein, and without giving them a hearing or an opportunity to be heard.

Undoubtedly no one can be deprived of his property without an opportunity to be heard. This principle is fundamental, and the declaration in the Constitution to that effect is a mere authoritative recognition of it. Taking the property of an employer to pay the claims of his employees upon their mere sworn statement, without notice and without giving him an opportunity to contest their correctness, would certainly be taking his property without due process. It could make no difference that his property was in the hands of the law, to be subjected to the payment of his creditors. He still has rights in it which are entitled to protection. One of these is that of having it applied to the payment of actual creditors. Yet in order to secure to the debtor an opportunity to be heard it is not essential that the proceedings should be according to the course of the common law. It is competent for the legislature to prescribe a summary and inexpensive proceeding for enforcing such claims. In the case of laborers whose services have enhanced the value of the property of their employer, whose demands are...