State v. Roseberry

• Decision Date: 30 June 1930
• Docket Number: 2902,Civil 2896
• Parties: STATE, Garnishee-Appellant; v. H. C. ROSEBERRY, Appellee; H. CLARIDGE, Judgment-Debtor, STATE, Garnishee-Appellant; DON C. BABBITT, Judgment-Debtor, v. J. S. WYATT, Appellee
• Court: Arizona Supreme Court

289 P. 515

37 Ariz. 78

STATE, Garnishee-Appellant;

H. CLARIDGE, Judgment-Debtor, v. H. C. ROSEBERRY, Appellee;

STATE, Garnishee-Appellant;

DON C. BABBITT, Judgment-Debtor, v. J. S. WYATT, Appellee

Civil Nos. 2896, 2902

Supreme Court of Arizona

June 30, 1930

APPEALS from judgments of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Mr. K Berry Peterson, Attorney General, and Mr. Riney B. Salmon Assistant Attorney General, for the State.

Mr. R H. Brumback and Mr. E. B. Goodwin, for Appellee Roseberry.

Mr. Henry H. Miller and Mr. Austin O'Brien, for Appellee Wyatt.

OPINION

ROSS, J.

The question involved in these two cases is the constitutionality of a state law providing that the salaries and wages of public officers and employees of the state may be garnished.

H. C. Roseberry, one of the plaintiffs, having obtained a judgment against H. Claridge, an employee of the state at the Industrial School, Ft. Grant, filed in said action the statutory affidavit designating the state as garnishee. The Babbit-Wyatt case is the same in its facts except that the debtor Babbitt is the state land commissioner, an office created by the legislature.

The state, by the Attorney General, its legal representative, filed a motion to dissolve the writ, and it is from an order denying such motion that the state appeals.

Chapter 50, Session Laws of Arizona 1929, authorizes the garnishment of the salaries and wages of officers, deputies, clerks and employees of the state and its political subdivisions (section 1); provides that the writ shall be served on the state treasurer, when the state is garnished, and makes it the duty of the Attorney General to answer the writ of garnishment (section 2); adopts by reference the procedure relating generally to garnishments (section 3); and, if a party is aggrieved by the failure of an officer to perform the duties prescribed therein, provides he may recover on such officer's official bond (section 4). Section 5 repeals all conflicting laws.

The state's motion to quash or dissolve the writ recites, as reasons therefor, the following:

"(1) That Chapter 50, supra, contravenes Section 14, Part 2, Article iv of the Constitution of the State of Arizona, in that said act attempts to amend by mere reference to the title the statutes of the state relating to garnishment, and said act does not set forth and publish at full length the laws as amended.

"(2) That it contravenes Section 13, Part 2, of Article iv of the Constitution of the State of Arizona, in that said act embraces a subject not expressed in the title.

"(3) That it contravenes Article ii, Section 4 of the Constitution of the State of Arizona, and the Fifth and Fourteenth amendments to the Constitution of the United States, in that said act of the legislature takes the property of Charles R. Price (state treasurer) without due process of law.

"(4) That it contravenes Article ix, Section 7 of the Constitution of the State of Arizona, in that it authorizes a donation or grant to an individual and not for a public purpose.

"(5) That it contravenes Article ix, Section 1 of the Constitution of the State of Arizona, in that it authorizes the levying and collection of a tax for a private and not a public purpose.

"(6) That it is so indefinite and uncertain in its terms that the duties of the officers therein prescribed cannot be performed and renders the whole of said act unenforceable."

The appellant by its assignments contends that the motion to dissolve should be sustained for all the six reasons or grounds contained in its motion.

Section 3, of chapter 50, reads:

"The procedure relating generally to garnishment, and the time to answer, is hereby extended and made applicable to the garnishment of the salaries and wages above enumerated."

This provision, it is contended, contravenes section 14, part 2, article 4 of the Constitution, which prohibits the revision or amendment of an act or a section of an act by mere reference to the title of such act, and requires the revised or amended act or section to be set forth and published at full length. The appellant is in error in the assumption or claim that chapter 50 amends or revises the general procedure on garnishment. Before such chapter was enacted the salaries and wages of officers and employees of the state were immune from garnishment. Under the general garnishment law (article 2, chap. 91, Rev. Code 1928), all persons, corporations, and stock companies, except the state and its municipalities, were garnishable by creditors of their officers or employees. All chapter 50 (Laws 1929) did was to create another class of garnishees. It said, in effect, the salaries and wages of public officers and employees shall be, while in the hands of the state or its political subdivisions (heretofore immune under legislative policy), in the future under the same authority subject to garnishment, and the existing procedure relating generally to garnishment shall be followed in the enforcement of the new right. The general procedure in garnishment was adopted by reference. That the adoption by reference of another existing legislative act does not contravene said provision of the Constitution has been decided at least three times by this court. Clements v. Hall, 23 Ariz. 2, 201 P. 87; In re Altman, 26 Ariz. 635, 229 P. 388; Scottish Union & National Ins. Co. v. Phoenix Title & Trust Co., 28 Ariz. 22, 235 P. 137.

Section 37, article 2, of the Constitution of Washington, although not word for word section 14, supra, means the same thing. In State v. Tausick, 64 Wash. 69, 35 L.R.A. (N.S.) 802, 116 P. 651, 657, the question was whether a statute adopting a pre-existing statute impinged upon said section 37. The court held that the legislation in question was complete in itself, had no tendency to mislead or deceive, and did not violate the constitutional provision, and summed up the law in this statement:

"In Savage v. Wallace, supra [165 Ala. 572, 51 So. 605], the Supreme Court of Alabama said: 'There is a class of statutes, known as "reference statutes," which impinge upon no constitutional limitation. They are statutes in form original, and in themselves intelligible and complete "statutes which refer to, and by reference adopt, wholly or partially, pre-existing statutes. In the construction of such statutes, the statute referred to is treated and considered as if it were incorporated in and formed a part of that which makes the reference. The two statutes coexist as separate and distinct legislative enactments, each having its appointed sphere of action; and the alteration, change, or repeal of the one does not operate upon or effect the other." Phoenix Assurance Co. v. Fire Department, 117 Ala. 631, 42 L.R.A. 468, 23 So. 483. Such statutes are not strictly amendatory or revisory in character, and are not obnoxious to the constitutional provision which forbids a law to be revised, amended or the provisions thereof to be extended or conferred, by reference to its title only. That prohibition is directed against the practice of amending or revising laws by additions or other alterations, which, without the presence of the original act, are usually unintelligible. Ex parte Pollard, 40 Ala. 100; State v. Rogers, 107 Ala. 444, 32 L.R.A. 520, 19 So. 909.'"

Appellant cites and relies upon Badenoch v. Chicago, 222 Ill. 71, 78 N.E. 31, as holding to the contrary. The act under question in that case was one to subject the salaries of employees of certain municipal corporations to garnishment and purported "to be an act complete in itself," but which was, in effect, an amendment to the general statutes on attachment and garnishment. It was held to be in violation of the constitutional provision prohibiting the revival or amendment of statutes by reference to their titles only, and properly so. The act was also held to be unconstitutional for two other reasons: (1) because it authorized judgment against certain municipal officers who were not garnishees and who held no funds of the debtor; and (2) because it was class legislation. The same court in the later case of People v. Crossley, 261 Ill. 78, 103 N.E. 537, 540, speaking of such reference statutes, said:

"The effect of such reference is the same as though the statute or the provisions adopted had been incorporated bodily into the adopting statute. 2 Sutherland on Stat. Const., § 405. Such adoption takes the adopted statute as it exists at the time of the passage of the adopting act. . . . "

It is next contended that chapter 50 embraces a subject not expressed in its title. We have heretofore given the substance of the act. The title thereof is:

"An Act Authorizing the Garnishment of Salaries and Wages of Public Officers, Deputies, Clerks and Employees, and Extending the Procedural Laws Relating Generally to Garnishment, to Apply Hereto; Naming the Public Officers on Whom Such Writs of Garnishment May be Served, and Directing Certain Public Officers to Answer said Writ, Providing a Penalty; and Repealing all Acts and Parts of Acts in Conflict Herewith."

A very careful comparison of the two discloses no discrepancy. The title is as comprehensive as the body of the act. It is what we have said is not necessary (Board of Control v. Buckstegge, 18 Ariz. 277, 158 P 837) -- a complete index of what follows. But it is said chapter 50 amends the general procedural laws relating to garnishments, and that the title does not indicate any intention to do so. As we have shown, such act is complete in itself and, being so, if it incidentally modifies or amends the procedural law in some of its aspects that does not impinge upon any provision of the Constitution. Warren v. Crosby, 24 Or. 558, 34 P. 661, 662. In...