State Nat. Bank v. Fink

• Decision Date: 21 December 1893
• Parties: STATE NAT. BANK OF EL PASO v. FINK et al.
• Court: Texas Supreme Court

Page 256

24 S.W. 256

STATE NAT. BANK OF EL PASO v. FINK et al.

Supreme Court of Texas.

December 21, 1893.

Certified question from court of civil appeals of the fourth supreme judicial district.

Action between the State National Bank of El Paso and E. M. Fink and others. From the judgment the bank appeals to the court of appeals, which certifies a question to the supreme court.

Millard Patterson and C. N. Buckler, for appellant. T. L. Nugent and M. W. Stanton, for appellees.

BROWN, J.

The court of civil appeals of the fourth supreme judicial district certify to this court the following question, as involved in the above cause: "Question: Is it contrary to public policy, in this state, for a public officer, he having qualified, and being in office, to give a lien upon his unearned official compensation?" The court make the following statement of the facts: "The officer in this case was assessor of El Paso county, and to secure his promissory note he gave appellant bank an express lien on `whatever funds may be coming to me, as the assessor of El Paso county, Texas, from the said county.'"

To the question, we answer that it is contrary to the public policy of this state for a public officer to assign or give a lien upon his unearned compensation, which is given by law, whether such compensation be salary or fees, and that any such assignment or lien is void. In England the authorities seem to be unanimous in holding such assignment void as being contrary to public policy. Flarty v. Odlum, 3 Term R. 681; Barwick v. Reade, 1 H. Bl. 627; Arbuckle v. Cowtan, 3 Bos. & P. 328; Wells v. Foster, 8 Mees. & W. 149; Hill v. Paul, 8 Clark & F. 307; Palmer v. Bate, 2 Brod. & B. 673; Liverpool v. Wright, 28 Law J. Ch. 871; Davis v. Duke of Marlborough, 1 Swanst. 79; Stone v. Lidderdale, 2 Anstr. 533; Lidderdale v. Montrose, 4 Term R. 248. The American text writers and courts nearly all follow the rule laid down in the English cases. Story, Eq. Jur. § 1040a; Mechem, Pub. Off § 874; Greenh. Pub. Pol. p. 351; Bliss v. Lawrence, 58 N. Y. 442; Bangs v. Dunn, 66 Cal. 74, 4 Pac. 963; Schloss v. Hewlett, 81 Ala. 266, 1 South. 263; King v. Hawkins. (Ariz.) 16 Pac. 434; Bank v. Wilson, 122 N. Y. 478, 25 N. E. 855; Field v. Chipley, 79 Ky. 260; Schwenk v. Wyckoff, 46 N. J. Eq. 560, 20 Atl. 259; Webb v. McCauley, 4 Bush, 10.

In People v. Dayton, 50 How. Pr. 143, it is held that the assignment of unearned fees does not fall within the rule sustained by the courts as to salaries. But in the case of Bank v. Wilson this case was disapproved by the court of appeals of that state. It was there held that the same reasons applied against assigning unearned fees as to a salary, and that such assignment was void. The validity of an assignment of unearned fees was the subject under consideration in Schloss v. Hewlett, 81 Ala. 266, 1 South. 263, and the court there held the assignment to be against public policy and void. Field v. Chipley, 79 Ky. 260, was a case involving the validity of an assignment of fees by a clerk, the fees being unearned, and the assignment was held to be void. There is no distinction in principle between the assignment of unearned fees and the assignment of unearned salary. If anything, the reason is stronger for holding such assignment of fees void than for holding a like assignment of a salary to be invalid, because a salary is a fixed sum for a given time, and there could be no doubt as to the amount to which the assignee would be entitled, while, in case of fees to be paid by a county or state, the officials would be required to go into a settlement of the question of amount with many different persons, in some instances, which would confuse and embarrass the public business. Bliss v. Lawrence, 58 N. Y. 442. In State v. Hastings, 15 Wis. 75, the court held that a judge of a court could assign his salary before it was earned. The only reference made in that case to the great number of cases to the contrary is in this language: "It is true we have been referred to some English cases which hold that the assignment of the pay of officers in the public service, judges' salaries, pensions, etc., was void as being against public policy; but it was not contended that the doctrine of those cases was applicable to the condition of society, or to the principles of law or of public policy, in this country." So slight a consideration of the number of cases decided by courts of eminent ability shows that the court in that case did not give sufficient thought to the question involved to entitle the opinion to weight. In the case of Mulhall v. Quinn, 1 Gray, 105, which is sometimes referred to as authority for the validity of such assignments, the matter in dispute was neither fees nor salary of a public officer, but was for the price of work done for a city. Brackett v. Blake, 7 Metc. (Mass.) 335, is referred to, but in that case the question of public policy was not considered....