Palumbo v. Industrial Commission

• Decision Date: 03 June 1942
• Docket Number: 28665.
• Citation: 140 Ohio St. 54,42 N.E.2d 766
• Parties: PALUMBO v. INDUSTRIAL COMMISSION et al.
• Court: Ohio Supreme Court

42 N.E.2d 766

140 Ohio St. 54

PALUMBO v. INDUSTRIAL COMMISSION et al.

No. 28665.

Supreme Court of Ohio

June 3, 1942

Syllabus by the Court.

1. A state is not subject to suit in its own courts without its express consent. (Raudabaugh v. State, 96 Ohio St 513, 118 N.E. 102, approved and followed.)

2. The 1912 amendment to Section 16 of the Ohio Bill of Rights providing that 'Suits may be brought against the state in such courts and in such manner as may be provided by law,' is not self-executing. The authority therein granted has not been exercised by the General Assembly so as to provide for garnishment actions against the state, its agencies or officers.

3. Although the state of Ohio is a 'body politic,' the inclusion of that phrase in Section 11760, General Code, does not authorize an action against the state, its agencies or officers to garnishee the pay of state employees.

Appeal from Court of Appeals, Franklin County.

Upon judgment had in the Municipal Court of Columbus in favor of plaintiff, appellee herein, against an employee of the Industrial Commission of Ohio, plaintiff caused execution to issue which was returned unsatisfied. Thereupon plaintiff, as a judgment creditor, instituted proceedings in aid of execution in the Municipal Court serving notice on defendants, appellants herein, the Industrial Commission of Ohio, Don H. Ebright as Treasurer of the state of Ohio, and Joseph T. Ferguson as Auditor of the state of Ohio. The defendants filed no answer in the proceedings in aid of execution, but appeared pursuant to a subpoena duces tecum and admitted that the judgment debtor was an employee of the Industrial Commission of Ohio, and that there was then owing to him certain wages for services rendered. The Municipal Court thereupon ordered the defendants to pay into court the statutory allowance over and above all exemptions to be applied to the judgment recovered by plaintiff.

On defendants' refusal to pay as ordered, the judgment creditor filed the present action in the Municipal Court alleging facts as here stated and concluding with a prayer for a money judgment and costs against defendants. A motion to quash service of summons and a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action were filed by defendants. The motion was denied and the demurrer was overruled. The defendants declined to plead further, and judgment was rendered against them. Appeal was taken to the Court of Appeals of Franklin county, which court affirmed the judgment of the Municipal Court without opinion on authority of Wiesenthal, Trustee v. Wickersham, 64 Ohio App. 124, 28 N.E.2d 512. The case is now in this court, a motion to certify the record having been allowed.

Thomas J. Herbert, Atty. Gen., E. G. Schuessler, of Cincinnati, and David M. Spriggs, of Columbus, for appellants.

Maurice K. Topson, of Columbus, for appellee.

BETTMAN Judge.

The record presents the question whether the pay of a state employee is subject to garnishment. Despite its breadth and wide application, the question is in this court for the first time. The judgment creditor, plaintiff, joining as named defendants the Industrial Commission of the state of Ohio, the Treasurer of State, and the Auditor of State, seeks to reach money owing to the judgment debtor as salary due him from the Industrial Commission of Ohio, an agency of the state. Plaintiff admits that his action is against the state, and bases his right upon the 1912 amendment to Section 16 of the Ohio Bill of Rights, and upon the contention that the state is a body politic and so subject to garnishment under Section 11760, General Code. Plaintiff further urges that it is sound public policy for citizens to pay their debts, and to that end that the pay of state employees should not be immune from garnishment.

The Attorney General contends that a garnishment action against the state is not authorized by any existing Ohio laws, and that administrative practice for a long period of time has so recognized. The Court of Appeals of the Second Appellate District, basing its action on its own recently published opinion in Wiesenthal, Trustee, v. Wickersham, supra, held the state subject to garnishment. That opinion, recognized by the Court of Appeals as blazing a new trail, broadly stated [64 Ohio App. 124, 28 N.E.2d 516]: 'It is our determination that the state of Ohio is a body politic, and that by the plain provisions of Section 11760, General Code, garnishee process may issue against the state officers, and further, that such proceeding is not contrary to public policy.'

It is recognized by all that without its consent the state cannot be sued--a doctrine stemming from the ancient concept that 'the king can do no wrong.' State v. Franklin Bank of Columbus, 10 Ohio 91; Miers v. Zanesville & M. Turnpike Co., 11 Ohio 273.

But consent is here claimed to flow from the 1912 amendment to Section 16 of the Ohio Bill of Rights, and from Section 11760, General Code.

Section 16 of the Bill of Rights provides: 'All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.' (1912 amendment in italics.)

This constitutional amendment by its terms is permissive only, and obviously contemplates future legislative enactment to carry its purpose into effect. In Raudabaugh v. State, 96 Ohio St. 513, 118 N.E. 102, it was held by this court that this amendment was not self-executing, paragraph two of the syllabus stating: 'The provision of the Ohio Constitution, article 1, section 16, as amended September 3, 1912, that 'suits may be brought against the state, in such courts and in such manner, as may be provided by law,' is not self-executing; and statutory authority is required as a prerequisite to the bringing of suits against the state.'

Plaintiff and the court below admit the force of this decision, but point to Section 11760, General Code, as supplying the needed 'statutory authority.' This section provides: 'When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he has in real estate, as mortgagor, mortgagee, or otherwise, or any interest he has in a banking, turnpike, bridge, or other joint stock company, or in a money contract, claim, or chose in action, due or to become due to him, or in a judgment or order, or money, goods, or effects which he has in the possession of any person, or body politic or corporate, shall be subject to the payment of the judgment, by action.' (Italics ours.)

It is readily admitted that a dictionary definition of the phrase 'body politic' would include the state. Webster defines 'body politic' as 'the state or nation as an organized political body; the people collectively.' But does it follow that the inclusion of the phrase 'body politic' in this general statute relating to garnishments, shall, as a matter of law, be given the effect of making the state subject to garnishment suits? Here, we believe, is the pivot of the error of the court below. Law is not mere lexicography. There are multiple reasons bottomed on legal principles why Section 11760, General Code, should not be given the effect of permitting garnishment actions against the state.

It should first be observed that the provisions of Section 11760, General Code, have been part of the statutory law of Ohio since 1831 (29 Ohio Laws 84), and existed in their present identical language in 1912, the year in which the constitutional amendment was passed. Difficult as it is to believe, the permission granted by the 1912 constitutional amendment has never been generally acted upon by the General Assembly. As observed by Judge Jones in Raudabaugh v. State, supra, 96 Ohio St. at page 514, 118 N.E. at page 102, 'No legislative action has been taken authorizing suits against the state in pursuance of that amendment.' Except for the unrelated provisions of Section 8542-1, General Code, enacted in 1937, permitting the state to be made a party in foreclosure proceedings, this statement of Judge Jones in 1917 is still true today. Shall we now, in 1942, unite in legal wedlock the century-old provisions of Section 11760, General Code, with the forward-looking but generally unacted upon constitutional amendment of 1912? We think not. To do so would be to sanctify by a forced construction of the statute that which the calendar denies.

Secondly, it is an ancient legal principle that the consent of the state to be sued must be an express, not an implied consent. As set forth in Broom's Legal Maxims, 9 Ed., 51, 'the king is not bound by any statute, if he be not expressly named to be so bound.' This principle is time honored in Ohio. Paragraph three of the syllabus of State ex rel. Parrott v. Board of Public Works, 36 Ohio St. 409, reads: 'The state is not bound by the terms of a general statute, unless it be so expressly enacted.' In the court's opinion by Chief Justice McIlvaine, the reason underlying this principle of expressed consent is thus stated: 'The doctrine seems to be, that a sovereign state, which can make and unmake laws, in prescribing general laws intends thereby to regulate the conduct of subjects only, and not its own conduct.' See, also, State ex rel. Atty. Gen. v. Cincinnati Cent. Ry. Co., 37 Ohio St. 157, 176; State ex rel. v. Cappeller, 39 Ohio St. 207; Raudabaugh v. State, supra. It would, we conclude, be a violation of this time honored legal principle to hold that the words 'body politic' in Ohio's...