Scrubs v. Electric Paint & Varnish Co.

• Decision Date: 02 November 1925
• Docket Number: 25136
• Citation: 140 Miss. 615,105 So. 745
• Parties: SCRUBS et al. v. ELECTRIC PAINT & VARNISH CO. [*]
• Court: Mississippi Supreme Court

105 So. 745

140 Miss. 615

SCRUBS et al. v. ELECTRIC PAINT & VARNISH CO. ^[*]

No. 25136

Supreme Court of Mississippi

November 2, 1925

Division B

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS Judge.

Trial of right of property between the Electric Paint & Varnish Company, plaintiff in execution, Leonard Scruggs, defendant in execution, and the National Bank of Greenwood, claimant. Judgment for plaintiff in execution, and the other parties appeal. Reversed and judgment rendered.

Reversed.

H. C Mounger, for appellants.

The question presented is one of first impression in this state and is whether an officer's salary can be taken under execution. Leonard Scruggs was the assessor of Leflore county. He was on a salary basis. Being indebted to The First National Bank, he assigned his warrant on June 7, 1923, for the month of September, 1923, to secure this debt. Said assignment was brought to the notice of the chancery clerk and he accepted it and notice thereof in writing.

On August 23, 1923, and after this assignment, the Electric Paint & Varnish Company secured a judgment against Scruggs for one hundred eighty-six dollars, and costs, but said judgment was never enrolled. On September 28, 1923, an execution was levied under said judgment on said salary warrant while in the hands of the clerk.

Our contention is that the salary of the assessor was not subject to execution, being exempt from the general principle of public policy. Under the general law, as laid down by all the states, it is held that it is against public policy to garnish, attach, or levy on the salary of a public officer.

The rule is established, not for the benefit or protection of the officer, but for the benefit and protection of the public. The office of assessor is a constitutional office. Section 135 of the state constitution. The legislature even cannot abolish these offices. Magee v. Brister, 108 Miss. 614; Fidelity & Deposit Co. v. Wilkerson, 109 Miss. 879.

But such proceedings as the one in question might, in some instances, practically abolish the office, and in many instances hamper the performance of the duties thereof.

In order that the duties of the office may be satisfactorily performed, the Constitution, by section 267, provides that the officer must personally devote his time to the performance of the duties thereof. He could not do this unless he has a salary assured to him so it cannot be interfered with.

In Dickson v. Johnson, 96 Am. St. Rep. 443, will be found an extensive note upon the subject, from which we quote: "The General Rule and Reasons Therefor--It is well-nigh universally established, as a general proposition, that the salary of a public officer cannot, while in the hands of a disbursing agent of the government, be diverted from its legitimate object by attachment, execution, or other process, and subjected to the payment of his private debts: Moll v. Sbisa, 51 La. Ann. 290, 25 So. 141; Keyser v. Rice, 47 Md. 203, 28 Am. Rep. 448; Shinn v. Zimmerman, 23 N.J.L. 150, 60 Am. Dec. 260; Waldman v. O'Donnell, 57 How. Pr. 215; Remmey v. Gedney, 57 How. Pr. 217; Hutchinson v. Gormley, 48 Pa. St. 270. The exemption is not for the personal benefit of the officer, but is for the protection of the public. There is danger that the public service would be impaired if municipalities could be drawn into controversies in which they have no interest, or if their servants should be hampered in the performance of their duties by having their remuneration intercepted by their creditors. These two considerations of public policy--the latter probably being the more potent--are assigned as justification for the exemption of the compensation of public officers from the claims of their creditors. Roeller v. Ames, 33 Minn. 132, 22 N.W. 177.

"In the absence of a statutory declaration to the contrary, the salary of a state officer in the hands of a disbursing agent of the government cannot be subjected to the payment of his debts by garnishment: Wicks v. Branch, 12 Ala. 594; McMeekin v. State, 9 Ark. 553; Farmers Bank v. Ball, 2 Penne. (Del.), 374, 46 A. 751; Divine v. Harvie, 7 T. B. Mon. (Ky.) 439, 18 Am. Dec. 194; Wild v. Ferguson, 23 La. Ann. 752; Bank of Tenn. v. Dibrell, 35 Tenn. (3 Sneed) 379; Blair v. Marye, 80 Va. 485. Such salary, it may be said in general, is not subject to any judicial process at the instance of creditors: Simpson v. Turner, 76 N.C. 115. And a like exemption exists in favor of an officer of the United States, or of the District of Columbia: Buchanan v. Alexander, 4 How. 20; Der v. Lubey, 1 McAr. 187. The reason for this rule of law, as hereinbefore considered at length, is the preservation of the public service from impairment." To like effect see note in 54 L. R. A. 566; 22 R. C. L. 547; 23 C. J. 334; 28 C. J. 175.

II. It is contended that the assignment is void; that an officer cannot assign his salary. In all the cases we have examined we find that this was when the officer himself was seeking to avoid the assignment. But in this instance, the officer is not complaining of the assignment. If he does not complain, no one else can. It was his to do with it what he pleased.

The same principle which holds that an assignment is void, prevents a levy on the salary. They are alike against public policy. If the assignment is not good the levy is not good, for the same reason. The execution has no advantage over the assignment.

It will further be noticed that the assignment was made June 7th, while the judgment was not recovered until August 23rd. When equities are equal, he who is first in time prevails. "The maxim 'Prior in tempore, prior in jure' applies as well to equitable, as to legal interests." Bank of England v. Tarleton, 23 Miss. 173, 182.

In this case the assessor had never received his warrant. It had never been reduced to possession. It was still in the hands of the chancery clerk. This judgment was never enrolled.

Wherefore, we say that the action of the court in holding that the warrant was subject to execution, and in holding that the assignment to the First National Bank was invalid, and in rendering the judgment that it did, was error, and that the case should be reversed and judgment entered here for the appellants.

Gardner, Odom & Gardner, for appellee.

It is apparent from the brief for appellants, and the authorities cited therein, with all of which we heartily agree, that the salary warrant of a public officer cannot be levied upon, or taken by legal process while in the hands of the disbursing officer, and we wish to call the particular attention of the court to the fact that in this case the warrant in question was levied upon by the sheriff while actually in the physical possession of the clerk, that as a matter of law and fact, it was in Mr. Scruggs' possession; that the clerk had been directed by Mr. Scruggs, and had agreed to deliver this warrant to The First National Bank, one of the appellants herein.

I. The assignment made by Mr. Scruggs in June, 1923, of his unearned September, 1923, salary warrant was void. 22 R. C. L. 541, par. 239, 36 L. R. A. (N. S.) 881; 125 A. S. R. 416; 98 A. S. R. 399; Holt v. Thurman, 111 Ky. 84; 98 A. S. R. 399. See State v. Williamson, 118 Mo. 146, 40 Am. St. Rep. 358, 23 S.W. 1054; Schloss v. Hewlett, 81 Ala. 268, 1 So. 263; Bangs v. Dunn, 66 Cal. 72, 4 P. 963; Beal v. McVicker, 8 Mo.App. 202; Stone v. Lidderdale, 2 Anstr. 233; Davis v. Duke of Marlborough, 1 Swanst. 74; Flarty v. Odlum, 3 Term Rep. 681; Lidderdale v. Montrose, 4 Term. Rep. 248; Barwick v. Reade, 1 H. Black, 627; Arbuckle v. Cowtan, 3 Bos. & P. 328; McCarthy v. Goold, 1 Ball. & B. 389; Emerson v. Hall, 13 Pet. 409; King v. Hawkins, 2 Ariz. 358, 16 P. 434; Field v. Chipley, 79 Ky. 260, 42 Am. Rep. 215; Billings v. O'Brien, 14 Abb. Pr. (N. S.), 238, 246; National Bank v. Fink, 86 Tex. 303, 40 Am. St. Rep. 833, 24 S.W. 256; Williams v. Ford (Tex. Civ. App.), 27 S.W. 723; Stevenson v. Kyle, 42 W.Va. 229, 57 Am. St. Rep. 854, 24 S.E. 886.

In these various decisions, it has been held that the pay of an army officer, the salary of a clerk in the Federal Treasury, of a United States inspector of customs, of a county assessor, of a mail carrier, of a clerk of the police court, of the fees of a master of chancery, of a clerk of a court of chancery, of a sheriff, and of many other officers, cannot be assigned in advance. So great were the wrongs arising from the assignment of claims against the United States Government that a statute was passed in 1853, and re-enacted in section 3477 of the Revised Statutes of the United States, prohibiting the assignment of any claim or any interest in any claim until after it had been allowed, and a warrant for its payment issued.

This assignment being void the appellant, The First National Bank, acquired no interest, claim nor title in, nor to Mr. Scruggs' salary warrant, and the fact that Mr. Scruggs is not complaining will in no way have any bearing on the rights of the appellant, The First National Bank, or the appellee. The same principle which holds that a levy on a salary warrant of a public officer, while in the hands of a disbursing agent, is void, would apply with equal force to the assignment of a public officer of his future unearned salary, and the reasoning of one is applicable to the other. The greater part of the brief of the appellants herein is devoted to authorities and argument to the effect that a levy on a salary warrant of a public officer while in the hands of a disbursing officer, is against public policy, and, therefore, not permitted. We take no issue with the appellants on this point.

From the agreed statement of facts the court will see that by the assignment made to The First National Bank by Mr. Scruggs,...