McGowan v. City of New Orleans

• Decision Date: 04 February 1907
• Docket Number: 16,461
• Citation: 118 La. 429,43 So. 40
• Court: Louisiana Supreme Court
• Parties: McGOWAN v. CITY OF NEW ORLEANS

43 So. 40

118 La. 429

McGOWAN v. CITY OF NEW ORLEANS

No. 16,461

Supreme Court of Louisiana

February 4, 1907

Case Certified from Court of Appeal, Parish of Orleans.

Action by James McGowan against the city of New Orleans. Case certified by the Court of Appeal. Question answered in affirmative.

Thomas Donovan Flynn, for plaintiff.

St Clair Adams, Asst. City Atty., for defendant.

OPINION

PROVOSTY J.

The Court of Appeal for the parish of Orleans has certified to this court the following question:

"Is the assignment of unearned salary by a public officer against public policy, and, therefore, void?"

In a recent case (First Nat. Bank v. State [decided in 1903] 68 Neb. 482, 94 N.W. 633, 4 A. & E. Ann. Cas. 423) the Supreme Court of Nebraska had occasion to say that it would be difficult to find a proposition more thoroughly established in the Reports than that the assignment of the salary or fees of a public officer, to be earned in the future, is contrary to public policy and void.

There can be no doubt of the correctness of the above statement. See 4 Cyc. 19; 12 A. & E. E. of L. 1033; Bliss v Lawrence, 58 N.Y. 442, 17 Am. Rep. 273; State v Williamson, 118 Mo. 146, 23 S.W. 1054, 21 L. R. A. 827, 40 Am. St. Rep. 358; Beal v. McVicker, 8 Mo.App. 202; Schwenk v. Wyckoff, 46 N.J.Eq. 560, 20 A. 259, 9 L. R. A. 221, 19 Am. St. Rep. 438; Field v. Chipley, 79 Ky. 260, 42 Am. Rep. 215; Bangs v. Dunn, 66 Cal. 72, 4 P. 963; Schloss v. Hewlett, 81 Ala. 266, 1 So. 263.

The reason of the rule is that, if the unearned salary of one day or one month may be assigned, that of the officer's entire term may in like manner be assigned, and thus the officer deprived of the means provided for his support, and thereby the public service be impaired. This reason operates as strongly in this state as elsewhere, and therefore the rule must be the same here as elsewhere.

Our Brethren of the Court of Appeal have given a synopsis of the argument in support of the negative of the proposition; which we transcribe here verbatim. It is as follows:

"For the Negative:

"The decisions of the English and federal courts can have no bearing on this argument; the English and the federal government being governed by statutes prohibiting such transfers.

"The same is true in many states. But it must be conceded that in many states where there are no statutes on the subject the assignment of a public officer's salary has been held to be void. These decisions form the only authority available to counsel, but they cannot affect the discussion of this case because they do not apply to the legal conditions in this state. They will serve only one purpose, and that is to prove that the recognition of such assignments would be hurtful to the public service. They hold that fact to be sufficient reason for annulling such transfers in those states, but in no wise affect the real issue here, namely, whether or not such assignments are recognized by law in Louisiana.

"The Law in Louisiana:

"In this state the whole subject comes under the terms of the written law (article 2449, Civ. Code), which reads as follows: 'Not only corporeal objects, such as movables and immovables, live stock and produce, may be sold, but also incorporeal things, such as a debt, an inheritance, a servitude or any other right.' In the first place the doctrine of public policy finds recognition in that provision of our law which makes natural law and equity the rule of decision where positive law is silent. In the absence of express enactment, or where the legislative expression is ambiguous, public policy, like any other consideration, may well control the determination of the judicial mind. But where the law is written down, and its terms are clear and unmistakable, they cannot be in any manner altered by the judicial notion as to what might be better for the public good. If that written law recognizes no exceptions, then the tribunal charged with its interpretation cannot in any interest, public or private, construe exceptions into it. Particularly is this the case where the doctrine of public policy urged is one resting, not upon any reprobation of any immoral practices, but simply upon a regulation for the efficiency of the public service; for the assignment of an officer's salary is not an immoral thing, but simply likely, if generally permitted, to impair the efficiency of the public administration.

"This unmistakable language, calling for no construction, our law makes incorporeal things assignable (article 2449). The provision is particular. It mentions a debt, an inheritance, or any other right. All of these things are thus invested in the quality of assignability, and the investiture is written. Are these exceptions? If so, where shall we look for them? Surely in the written law. It will not be contended that to an arbitrary law any other than an arbitrary exception will be recognized. It might with some reason be urged that an ordinary law couched in general terms might well exclude some acts of generally recognized turpitude. But no mere considerations of administrative efficiency can be accepted to limit or control the unambiguous terms of a written law. That law says a debt may be sold -- a right may be sold. If there be any sort of debt or right which cannot be sold, then the exception must be sought somewhere in the written law.

"If the salaries of private persons are assignable, if the earned salaries of public officers are salable, is not the authority for that transferability to be found in that article? But what is there in the terms of this article which, while including the earned, excludes the unearned, salaries of public officers? Exceptions to this article of the Code may be found throughout our laws, but nowhere is to be found a single word to support the exception contended for by counsel.

"The inference drawn by counsel from the exemption of public salaries from seizure is unfortunate, for it furnishes a striking and parallel instance of the necessity of a statutory exception to a statutory rule. Judgment creditors are given the right to seize the defendant's goods; but certain exceptions have been made by statute, nor would the courts think of recognizing any exception or enforcing any exemption to the citizen's statutory right of seizure, unless such exception were statutory. That is why the exemptions from seizure in this state have been embodied in the Code. And that is why the failure to embody the exception now being urged to the law of assignments in the Code or anywhere else in our written law emphasizes the proposition that such an exception has no legal existence.

"In considering the decisions of other states on this subject the court must recognize the essentially different attitude of the common and civil laws towards the assignability of incorporeal things. Under the common law no choses in action were assignable. All such transfers were against public policy. In view of this fact, the importance attached by counsel to decisions in states where the assignability of public salaries has not been touched by statutes loses much of its weight, and acquires a wholly different significance. Statutes could not make them less assignable than they were before; and it is the very absence of the statutes on the subject that renders such decisions necessary. But the doctrine of nonassignability in the domain of incorporeal property has never had any existence in our law. As early as 1698 we found Domat (section 1772) recognizing assignments of debts. The Louisiana Code of 1808 (title 6, c. 2, arts. 16, 17) contain the same provisions on the subject in precisely the same language as our Code of to day (article 2449). Thus our law and the system from which it is derived recognized the assignability of incorporeal things centuries before the common law dreamed of such a thing. Thus, at the common law, before a particular chose in action can be treated as assignable, some special authority must be taken therefor. But under our law, where all choses in action are assignable, some special authority must be produced before any particular one can be robbed of that quality. When our Code was adopted, the assignment of public salaries was void at the common law, because all assignments were void. The doctrine in the form in which it is now urged was unknown. The Code cannot, therefore, be supposed to...