Wiesenthal v. Wickersham

• Decision Date: 11 March 1940
• Citation: 28 N.E.2d 512,64 Ohio App. 124
• Parties: WIESENTHAL v. WICKERSHAM.
• Court: Ohio Court of Appeals

28 N.E.2d 512

64 Ohio App. 124

WIESENTHAL v. WICKERSHAM.

Court of Appeals of Ohio, Second District, Franklin.

March 11, 1940

Syllabus by the Court.

The state of Ohio is a 'body politic' within the meaning of Section 11760, General Code, which provides that money of a debtor 'in the possession of any person, or body politic or corporate, shall be subject to the payment of the judgment, by action,' and a garnishee process issued to the state treasurer for the purpose of subjecting the salary of a state employee to the payment of a judgment is valid and such proceeding is not contrary to public policy.

Schanfarber & Schanfarber and Maurice K. Topson, all of Columbus, for appellant.

Thomas J. Herbert, Atty. Gen., and Fred W. Edmonston and David M Spriggs, both of Columbus, for state treasurer.

BARNES, Judge.

The above-entitled cause is now being determined on plaintiff's appeal on questions of law from the judgment of the Municipal Court of the city of Columbus, Ohio.

On the first day of August, 1939, a judgment was taken by the plaintiff against the defendant, H. L. Wickersham, in the amount of $480.48.Thereafter, the judgment not having been paid, an affidavit in aid of execution was filed to subject the earnings of the defendant, who was at the time an employee of the Civil Service Commission of Ohio, to the payment of the judgment.

Garnishee process was duly issued to the treasurer of the state of Ohio ordering him to appear and answer under oath as to any sum of money coming to the defendant by reason of his state employment.

Defendant did not appear in opposition to the judgment, or any of the proceedings thereafter instituted.

On September 9, 1939, the attorney general of the state of Ohio appearing for the treasurer of state, interposed a motion to set aside the order in aid of execution and to discharge the treasurer of the state of Ohio from any liability thereunder.Upon hearing, the Municipal Court sustained the motion to dismiss the treasurer of state from such proceedings, to which ruling plaintiff gave notice of appeal on questions of law.

The record and briefs submit the single legal question: 'Can the salary of a state employee be garnisheed?'

The importance of the question submitted is well recognized, and counsel representing the respective parties have presented very able and comprehensive briefs.

The attorney general presents two arguments against the subjection of state employees' salaries to garnishment process, as follows:

'1.That garnishment statutes do not authorize the use of such process against the state, is officers, employees or agents, and

'2.That the state, its officers, employees and agents are not subject to the process of garnishment because of public policy.'

Under the common law an action could not be brought against the Crown.This principle had its inception upon the tradition 'that the king can do no wrong.'This ancient principle is carried into our law, and, in the absence of constitutional authority, the state may not be sued.The people of the state of Ohio, and in many other jurisdictions of the United States, recognizing the fallacy of the ancient doctrine, have provided through the Constitution that the state, under certain conditions, may be sued.

Section 16, Article I of the Constitution of the state of Ohio reads as follows: '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.'(Italics ours.)

The Supreme Court of the state of Ohio has definitely determined that the above-quoted article and section of the Constitution is not self-executing.Raudabaugh v. State,96 Ohio St. 513, 118 N.E. 102, paragraphs 1 and 2 of the syllabus read as follows:

'1.A state is not subject to suit in its own courts without its express consent.

'2.The provision of the Ohio Constitution, article 1, section 16, as amendedSeptember 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.'

In regular sequence we next inquire as to whether the stateLegislature has enacted any law authorizing process against the state of Ohio.

We are referred to Section 11760, General Code, as authorizing proceedings in aid of execution as brought in the instant cause.This is the first section under 'Proceedings In Aid Of Execution.'

This section reads as follows: '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 any 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.)

If the words 'body politic' include the state of Ohio, then it necessarily follows that the necessary legislative enactment has been passed to authorize proceedings to garnishee the salary of a state employee.

Our attention has been called to the following as the definition of the words 'body politic,' in Black's Law Dictionary, 3d Ed., page 231: 'Body politic--the collective body of a nation or state as politically organized or as exercising political functions.'

People v. Snyder,279 Ill. 435, 440, 117 N.E. 119, 121, states in the opinion: "Body politic' is defined by lexicographers as the state or nation as an organized political body of people collectively.New Standard Dict.; Webster's New Int. Dict. "The state' means the whole people united in one body politic, and 'the state' and the 'people of the state' are equivalent expressions.'Brown v. State,5 Colo. 496.See, also, Penhallow v. Doane, 3 Dall. [Pa.],[53] 54 [Fed.Cas.No.10925], 1 L.Ed. 507.'

11 Corpus Juris Secundum, Body, page 380, reads: ' Body politic.A term of ancient origin, the collective body of a nation or state as politically organized, or as exercising political functions [People v. Snyder, supra; 8 Corpus Juris, 1137]; the state or nation as an organized political body of people collectively; a corporation, a body to take in succession, framed as to its capacity by policy.'

Reference is also made to rules of construction of Ohio statutes as made by Ohio courts.These appear in 37 Ohio Jurisprudence, under the heading of 'Statutes,' and the subheading of 'Primary Rules of Construction.'The text is formulated from Ohio decisions, reference to which is made in the notes.On page 504, Section 274, appears the following: 'In the interpretation or construction of statutes, the primary and paramount rule is to ascertain, declare, and give effect to the intention of the Legislature, as gathered from the provisions enacted, by the application of well-settled canons of interpretation, since the ultimate function of construction is to ascertain the legislative will.'

And further, in 37 Ohio Jurisprudence, 508, Section 275: 'A construction adopted should not be such as to defeat the obvious intention of the Legislature or do violence thereto, wholly or partially, but rather one which would carry such intention into effect.'

And in 37 Ohio Jurisprudence, 510, Section 276: 'It is to be assumed, or presumed, that the Legislature used the language contained in a statute advisedly and intelligently.'

And in 37 Ohio Jurisprudence, 511, Section 277: 'The intention of the Legislature in enacting a statute must be determined primarily from the language of the statute itself--that is, from a proper interpretation of the language used--because the language of a statute is its most natural expositor.Therefore, in interpreting a statute, the attention of the courts is always directed to the terminology employed.This rule is of such universal application that no exhaustive citation of the cases following it is attempted * * *.'

We are also referred to the rule concerning titles of statutes.

The titles of chapters and other subdivisions in codes have been declared to be parts of the statutes classified thereunder.Harris v. State,57 Ohio St. 92, 48 N.E. 284.

So far as we are able to find, the General Assembly of our state has enacted no legislation authorizing actions against the state, except Section 11760, General Code, heretofore quoted in full, and the only parts of this section claiming to authorize the issuing of process against the state are the words 'body politic.'

This brings us directly to the question as to whether the words 'body politic,' as used in the above section, include the state.

In searching for precedents we must start with the understanding that only proceedings in aid of execution, where garnishee process is issued against a 'body politic,' can be of any assistance.This is true for the reason heretofore stated that no legislation has been enacted to authorize process against the state, unless it be the garnishee process authorized under Section 11760, General Code.

The attorney general, in his brief, cites and comments on numerous Ohio cases wherein the pronouncement is made that suits may not be prosecuted against the state without its consent.We have no difficulty in following the pronouncements in these several cases, but they are not at all helpful in the instant case, because not...