Scruggs v. Electric Paint & Varnish Co.
| Citation | 140 Miss. 615,105 So. 746 |
| Decision Date | 02 November 1925 |
| Docket Number | 25136 |
| Parties | Scruggs Et Al. v. Electric Paint & Varnish Co.[*] |
| Court | Mississippi Supreme Court |
(Division B.)
1 EXEMPTIONS. Public officer's salary exempt while in hands of government disbursing agent.
Salary of a public officer, while in hands of government disbursing agent, cannot, by legal process, be subjected to payment of officer's private debts.
2 EXEMPTIONS. Salary warrant of county assessor still in hands of clerk of board as disbursing officer, notwithstanding assignment by assessor and notice to clerk.
Salary warrant of county assessor is still in hands of clerk of board of supervisors as public disbursing officer of county and so exempt from execution on judgment for assessor's private debt, notwithstanding assessor's written assignment and notice thereof to clerk.
3. EXECUTION. Where plaintiff does not establish liability of property to execution, claimant's issue not triable.
Under chapter on "Trial of Right of Property" (Code 1906 sections 4990-5001 [Hemingway's Code, sections 3264-3275]), claimant's issue and right between third person and defendant in execution is not triable, where plaintiff in execution does not succeed in establishing that personal property seized is liable to execution.
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.
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:
. 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...
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