DocketNumber: Docket No. 3027.
Citation Numbers: 249 P. 56, 79 Cal. App. 139, 1926 Cal. App. LEXIS 177
Judges: Hart
Filed Date: 8/6/1926
Status: Precedential
Modified Date: 10/19/2024
The plaintiff on the seventh day of November, 1923, obtained a judgment against one D.B. Smith and his wife, in the justice's court of Williams judicial township, in the county of Colusa, in the sum of $299.99, for money due plaintiff from the Smiths for groceries furnished the latter by the former. On June 19, 1924, an execution upon said judgment was duly issued and the same delivered to the constable of said judicial township for levy upon the property of defendants to satisfy said judgment, but said constable returned the execution unsatisfied. It appears from the findings that said D.B. Smith, from time to time during the times set out in the petition, was employed by the county of Colusa to work with his teams, wagons, and scrapers upon the county roads of said county, for which services and use of teams, wagons, etc., he was paid wages by said county, amounting, approximately, in the aggregate, so the complaint or petition alleges, to the sum of $150 per month, payable on or about the first day of each and every month.
Proceeding under and in pursuance of the provisions of section
The findings tell the rest of the story, which stated in substance, is: That on the fifteenth day of June, 1924, and prior to the filing of the certified copy of said judgment with the auditor, said D.B. Smith by a writing assigned a claim due him from said county, in the sum of $135, which was earned for the labor performed, etc., for the period commencing on and with the second day of June, 1924, and ending on and with the fourteenth day of June, 1924, to the College City Rochdale Company, a corporation; that on the twenty-fourth day of July, 1924, in the early afternoon, the appellant filed a second authenticated transcript of said judgment with said auditor; that before the filing of said second authenticated transcript of said judgment, and on the nineteenth day of July, 1924, said D.B. Smith, by a writing, assigned to said Rochdale Company all moneys then earned by him for the services to said county during the said month of July and prior to said assignment; that, early in the morning of the twenty-ninth day of August, 1924, appellant filed with said auditor a third duly authenticated transcript of said judgment; that on the nineteenth day of August, 1924, and before the filing by appellant *Page 142 of said third transcript of said judgment, said D.B. Smith assigned in writing all moneys then due him from said county for labor of himself, teams, etc., and then earned prior to the filing of said third transcript, to said Rochdale Company, "and also all moneys that he might thereafter earn during the month of August, 1924, for the labor of himself, teams, wagons and scrapers, for work on the roads and bridges in said Colusa County," which assignment was filed with defendant (auditor) on August 21, 1924; that on the afternoon on the twenty-ninth day of October, 1924, the appellant filed with said auditor a fourth duly authenticated transcript of said judgment; that on the tenth day of October, 1924, and before the filing of said fourth transcript of said judgment, said Smith, by a writing, assigned to said Rochdale Company "all moneys then earned during the month of October, 1924, prior to said assignment, for the labor of himself, teams, wagons and scrapers, and also all the money that he might thereafter earn during the month of October, 1924, for the labor of himself, his teams, wagons and scrapers."
The court further found, as the complaint or petition alleges, that the respondent, as auditor, etc., issued his warrant, in each of the instances above mentioned, to the said Rochdale Company, upon the assignment made by said D.B. Smith to said company and filed with said auditor. It is also found that the labor performed by said Smith for said county was upon the county roads and bridges in said county, "but that he was not a regular employee of said county; that for such services of himself and of his teams, wagons and scrapers claims were presented to the Board of Supervisors of the said County of Colusa, and allowed by said Board at its regular meetings in the month following the doing of said work." It is further found that all said warrants for wages earned by said D.B. Smith were assigned to said Rochdale Company "for the necessities of life, and that such necessities of life were furnished the said D.B. Smith by said Rochdale Company directly, and that said assignments, and each of them were only for the amounts needed to furnish such necessities; that each of said assignments had attached to it the written consent of the wife of said D.B. Smith, consenting to the making of said assignments." *Page 143
The court concluded, as a matter of law from its findings, that the money earned by said D.B. Smith in the manner indicated for the months named in the complaint and findings "became the property of the College City Rochdale Company upon the making and the filing of said assignments."
It will be noted that in at least two instances the assignments involved not only the transfer of money already earned by said Smith at the time of the making of the assignments, but also moneys to be earned by him in the future for the respective months covered by said assignments.
Since, as to the time of the filing of the respective documents with the auditor, the assignments hold priority over the transcripts of the judgment, it is obviously true that, if the assignments are legally valid, the action of the auditor in issuing the several warrants to the assignee of D.B. Smith and consequently the action of the court below in refusing to grant a peremptory writ of mandate herein must be sustained. The appellant, though, contends that the assignments were and are absolutely void in that they were and are in contravention of established public policy for this reason: That they involved an attempt to assign and transfer compensation or wages or salary to be earned and paid in the future to an officer of the government for services yet to be performed. The appellant maintains that this cannot legally be done, nor can such an employee assign a part of his claim only. The defendant, per contra, maintains that the said D.B. Smith, although an employee of Colusa County and the services performed and to be performed by him, compensation for which he assigned on the several occasions indicated to the Rochdale Company, were for the public, was not a "public officer," within the true meaning or concept of that phrase, but was, as such employee, only intermittently, or as the exigencies of his duties as such required of him from time to time, by the use of his own teams and other equipments necessary thereto, engaged in the performance of the work of the ordinary laborer, as the latter term is commonly understood to imply. As seen, the conclusions of law arrived at by the court below from the facts harmonize with the position of the defendant. *Page 144
[1] Before taking up what is regarded as the pivotal point of decision here, these well-established propositions may be stated: 1. That, as our Civil Code (sec. 1044) expressly provides, "property of any kind may be transferred except as otherwise provided"; 2. That, as also the same code likewise provides, a mere possibility not coupled with an interest cannot be transferred. In this connection, it may be explained that, where an employment does not exist but a party may be employed by another in the future, such situation presents a case of a mere possibility not coupled with an interest, and hence the element of negotiability is wanting, but where the employment already exists, the wages yet to be earned from such employment by the party employed, then, although we have a case of mere possibility, it is a possibility coupled with an interest, which is assignable under our code and according to the authorities. (See Cox v. Hughes,
Another rule of the Civil Code (sec. 955) is important to the present consideration in that therein it is declared: "No assignment of, or order for wages or salary shall be valid unless made in writing by the person by whom the said wages or salary are earned and no assignment of, or order for, wages or salary made by a married person shall be valid unless the written consent of the husband or wife of the person making such assignment or order is attached to such assignment or order. . . . No assignment of, or order for, wages or salary shall be valid unless at the time of the making thereof, such wages or salary have been earned, except for the necessities of life and then only to the person or persons furnishing such necessities of life directly and then only for the amount needed to furnish such necessities."
As has been shown, the court, in the instant case, expressly found that the assignments were made for and in consideration of necessaries of life furnished D.B. Smith by the *Page 145 assignee, and that the written consent of the wife of the assignor was attached to each of the assignments.
[2] It is, of course, conceded that it is a well-established rule of public policy that an unearned salary of a public officer cannot be assigned. (Bangs v. Dunn,
In Lewis v. Denver, 9 Colo. App. 328 [48 P. 317], the reason of the rule is thus explained: "The salary of a public officer is a provision made by law for his maintenance and support during his term, to the end that, without anxiety concerning his means of subsistence, he may be able to devote himself entirely to the duties of his office."
Again: "It would be very embarrassing generally, and, under some circumstances, might prove fatal to the public service, to allow the means of support of the servants of the government to be intercepted, and if the funds were thus allowed to be diverted from their legitimate object, by process of attachment in favor of creditors, or otherwise, the functions of the government might be suspended." (Bank v. Dibrell, 3 Sneed (Tenn.), 379;Ruperich v. Baehr,
It is obviously true that prior to the enactment of section
The single question here, then, is: Was the said D.B. Smith, while employed by the county of Colusa to perform *Page 146
the services indicated, a public officer of said county? In another form, the question may be put: Was his employment a public office? If the employment was not "a public office," then, obviously, Smith was not a "public officer." [3] "A public office," says Mr. Mechem, in his work on Public Officers, section 1, "is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." Again that learned author declares (sec. 4, Id.): "The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer." The cases generally have approved and accepted the definition of "public office" and "public officer" thus given by Mr. Mechem. (See Curtin v. State of California,
The judgment appealed from rests upon an impregnable legal foundation, and it is accordingly affirmed.
Finch, P.J., and Plummer, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 4, 1926.
john-lucas-hudson-sr-and-pacific-palmdale-development-company-a , 242 F.2d 435 ( 1957 )
Taylor v. Commonwealth Ex Rel. Dummit , 305 Ky. 75 ( 1947 )
State Consolidated Publishing Co. v. Hill , 39 Ariz. 21 ( 1931 )
In Re Otto , 146 F. Supp. 786 ( 1956 )
Wilson v. Walters , 19 Cal. 2d 111 ( 1941 )
Kimball v. Ledford , 13 Cal. App. 2d 602 ( 1936 )
Professional Fire Fighters, Inc. v. City of Los Angeles , 60 Cal. 2d 276 ( 1963 )