Holt v. Thurman

• Decision Date: 29 May 1901
• Citation: 63 S.W. 280,111 Ky. 84
• Parties: HOLT v. THURMAN et al. [1]
• Court: Kentucky Court of Appeals

63 S.W. 280

111 Ky. 84

HOLT v. THURMAN et al. ^[1]

Court of Appeals of Kentucky.

May 29, 1901

Appeal from circuit court, Jefferson county, chancery division.

"To be officially reported."

Action by J. T. Holt against William T. Thurman and others to enforce a judgment. Judgment for defendants, and plaintiff appeals. Reversed.

Chas P. Johnson and Pryor & Sapinsky, for appellant.

J. B McCormick and Bullitt & Shield, for appellees.

BURNAM J.

At the date of the institution of this suit in the Jefferson circuit court on the 26th of July, 1897, W. T. Thurman was the duly elected, qualified, and acting prosecuting attorney of the Louisville city court, and was by law entitled to be paid a salary for his services by the city of Louisville of $3,500 in monthly installments of $291.66 on the last day of each month of his term. The appellant, J. T. Holt, had recovered a judgment against him, upon which execution had issued, and been returned by the proper officer "No property found." Thereupon this action was instituted pursuant to section 439 of the Civil Code to subject the salary due to Thurman as prosecuting attorney by the city of Louisville to the payment of his judgment. Writs of garnishment were issued at different times, which were served upon the treasurer of the city, which seem to have been abandoned. Finally, on the 23d of November, 1897, an alias attachment was issued, which was duly served upon the treasurer. The city of Louisville for answer to the garnishment, said that on the 18th of November, 1897, before the suing out of the last attachment, there was filed with the auditor of the city a writing dated November 3, 1897, purporting to be an assignment by William T. Thurman of his salary due from the city for the month of November, 1897, to one W. S. Miller; and that, furthermore, no part of the salary of the defendant Thurman for the month of November, 1897, was due at the date of the service of the garnishment upon the city, and asked that the order of attachment be discharged. Subsequently, on the 6th of January, 1898, another alias attachment was sued out, which was duly served upon the treasurer of the city, seeking to garnishee the salary of Thurman for the months of November and December, 1897. Thereupon appellees H. Wedekind & Co. filed their petition to be made a party to the proceeding, setting up a written assignment dated November 3, 1897, by which Thurman assigned to W. S. Miller, Jr., his salary of $291.66 due and to become due for the month of November, 1897, as prosecuting attorney of the police court, and which was on the same day assigned in writing to them by Miller; and alleged that the assignment to them was prior in date to the attachment; and asked that the city of Louisville be required to pay Thurman's salary for November to them. And the appellees L. Simons & Co. filed their petition to be made a party, in which they allege that on the 6th day of December, 1897, Thurman, for a valuable consideration, had assigned and transferred to them in writing his salary earned and to be earned as prosecuting attorney of the police court for the month of December, 1897. The city of Louisville was required by rule to pay into court the amount due Thurman for salary as prosecuting attorney for the months of November and December, 1897. The appellant, Holt, interposed a general demurrer to each of the petitions of Wedekind & Co. and Simons & Co., which were overruled, and judgment entered for claimants, and to review that judgment this appeal is prosecuted.

The claims of both appellant and appellees are bona fide, and there is no dispute as to the facts, and the record therefore only presents two questions of law to be decided by this court: First. Is the assignment of his salary by a public officer, before it becomes due, contrary to public policy and void? Second. Can the salary of a public officer, before it becomes due and payable, be reached by attachment, and subjected to the claim of a creditor of such officer? This question was considered by this court in the case of Manly v. Bitzer, 91 Ky. 596, 16 S.W. 464, 34 Am.St.Rep. 242. That controversy was over the wages of a policeman in the city of Louisville. He had, about the 1st of the month, sold and assigned his claim against the city for wages of that month, and after the assignment a creditor sought to subject it by attachment. It was held that, as the policeman had an existing contract with the city for the payment of such a salary, and his term of office extended beyond the time when it could be presumed because of the existence of the contract that the salary would be earned, and had such a potential existence that he had a right to transfer it, and, having done so for value, it vested the assignee with an equity which, being older in time than that of the attachment, must prevail. The opinion does not discuss or decide the question from the standpoint of public policy, and the authorities cited to support it do not in any way consider or involve this question. There is no suggestion in the opinion of any distinction whatever between the unearned wages of a person occupying a mere private position and one who is discharging the duties of a public officer. In the first case the law is well settled that there may be an assignment of wages or salary to be earned under an existing employment, made in good faith, and for a valuable consideration, and that a court of equity will compel the specific performance of such a contract in certain cases, there being no question of public policy involved in such a transfer; and to this class of cases the authorities referred to in Manly v. Bitzer have a direct application, and they are supported by many authorities. See 2 Am. & Eng. Enc. Law (2d Ed.) 31; Perkins v. Butler (Neb.) 2 Am. & Eng. Dec. Eq. 218, 62 N.W. 308,--where there is a very full collation of the authorities on this subject. But the law is equally well settled that the future salaries of public officers are not assignable on the ground of public policy, and an attempted assignment thereof is void. "The protection thus extended to those engaged in the performance of public duties is not based upon the ground of their private interest, but upon the necessity of securing the efficiency of the public service by insuring that the funds provided for its maintenance shall be received by those who are to perform the work, at the periods appointed for their payment; and the assignment of such funds before they are due impairs the efficiency of the public service, and is void, both in law and equity, as being against public policy." See 2 Am. & Eng. Enc. Law (2d Ed.) p. 1033, and cases there cited. This question has been repeatedly considered by the English and most of the American state courts, and they have been well-nigh unanimous in holding against the validity of such assignments on the ground of public policy. We quote a few of them here: Greenh. Pub. Pol. rule 293, p. 349, says: "Any contract which secures to any one not occupying a public office its benefits or emoluments, or any part thereof, is void." Id. rule 297, p. 351: "The salary or emoluments of a public officer, except when they are already earned, *** are all incapable of assignment." Mechem, Pub. Off. § 874: "Assignment of unearned compensation opposed to public policy. *** While the compensation already earned by a public officer may validly be assigned by him, it is settled by clear preponderance of authority...