Mayor of Mobile v. Rowland & Co. , 26 Ala. 498 ( 1855 )

CHILTON, C. J.

—There is some difficulty in the main point involved in this case, namely, whether a public municipal corporation can bo garnisheed for a debt due, or to fall due, to one of its police officers as his salary. This question is for the first time presented to this court. True, the point was alluded to, in respect of corporations aggregate, in The Bank v. Poe. 1 Ala. 396, and The Bank v. Leavens, 4 ib. 753; but in neither case was it decided. In the first, however, it was determined, that the answer of the cashier of the Bank to a summons of garnishment, was not sufficient to authorize a judgment against the corporation — that such an answer must be made under the common seal of the Bank, by the express authority of either the directors or the president, who thus far is the executive officer of the board of directors.

We have examined our own statutes upon the subject, as well as the authorities generally, and Ave have become satisfied that no garnishment will run in the case before us.

The statute, it is true, authorizes any person to be summoned as a garnishee, (Code, § 2516,) and section 1 of the Code declares, that the word “person”, when used in it, includes a corporation as well as a natural person; but this-must be understood only of such provisions as will allow this signification to be given without violating their evident sense and meaning. When by the context it is clear no such meaning was intended, and when by thus construing-the word person it would render the Code, which must be taken as a whole, incongruous, we must depart from the letter, to give effect to the spirit and manifest meaning and intent of the Legislature.

The garnishee must be summoned to appear and answer on oath. — Code, § 2517. He must file his answer, on oath, within the three first days of the term to which the summons is made returnable.—§ 2540. He may be orally examined in the presence of the court.—Ib. So, if the garnishee fail to appear as provided and answer, judgment may be rendered against him, &c.—§ 2545. Those, and similar provisions which might be mentioned, clearly show that the statutes of garnishment cannot be applied to corporations, which, from their impersonal, artificial character, cannot be sworn; and cannot, in the nature of things, personally appear in court.

But there is another ground upon which we may rest our opinion. , This is a public municipal corporation : its officers are public servants, and the public is entitled to their service in the discharge of their duties. If they are to be made parties to controversies between debtor and creditor, — if these officers may be summoned to attend any and all of the courts having cognizance of garnishments throughout the State, and are to appear in person at the bar, awaiting such trials, on pain of having judgment by default go against the corporation, the public interest must necessarily suffer. Aside from this, the city corporation, which is a government for the. city, invested with certain attributes of sovereignty delegated to it by its charter, is entitled to fill its offices by a selection of suitable persons from among the whole community. This privilege would exist but in name, if those who depend upon their salaries for a livelihood could be deprived of such salaries by garnishment, and thus cut off from the means of subsistence. The result would be, that only those who were free from debt, or who could subsist without their salaries, could fill such offices, and the public service might suffer for want of persons to accept or hold them.

The principle is the same which obtains in regard to the salaries of the officers of the State, and there are decisions which hold that the salaries of officers of municipal corporations are not within the statutes of garnishment, where those statutes are similar to our own.—Hawthorn v. City of St. Louis, 11 Missouri R. 59; 2 Mass. 37; see, also, Wicks v. Br. Bank of Mobile, 12 Ala. 594-97.

Let the judgment be reversed, and the cause remanded.