Burnham v. City of Fond du Lac

15 Wis. 193

• Court: Wisconsin Supreme Court
• Decided: May 15, 1862
• Status: Published

Opinion

By the Court,

PAINE, J.

The question in this case is, whether a municipal corporation is liable to be garnisheed its debts to individuals. The question is very similar in. principle to that whether sheriffs or clerks of courts, and other similar officers, are liable to garnishment for moneys in their possession as such officers. And in the case of Hill vs. La Crosse & Mil. R. R. Co., 14 Wis., 291, the majority of the court held that the sheriff was not so liable.

The following cases are very clear and satisfactory authorities against the liability of municipal corporations to garnishment: Hawthorn vs. The City of St. Louis, 11 Mo., 59; Fortune vs. St. Louis, 23 id., 239; Mayor &c. of Mobile vs. Rowland & Co., 26 Ala., 498; Mayor &c. of Baltimore vs. Root, 8 Maryland, 95; Erie vs. Knapp, 29 Penn St., 173.

Very little, perhaps, could be added to the reasoning of these cases upon the subject. Yet there is one consideration that might be added, illustrating the 'public inconvenience which would result from the opposite doctrine. That is, that contractors with municipal corporations are frequently compelled to rely on the payments as a means of completing their contracts. So that if these payments could be suspended, by means of garnishment, until private litigation could be settled, and perhaps finally diverted entirely to pay the contractors’ debts, in addition to the inconveniences more distinctly pointed out in the cases referred to, the public works themselves might be delayed and their benefit lost, until the corporation could be fortunate enough to find some contract- or, of whom nobody claimed to be a creditor.

I think the language of the statute also furnishes a clear implication that municipal corporations were not within its intention. Sec. 46, chap. 130, R. S. 1858, prescribes the mode in which corporations may be garnisheed. It was evidently the intention to designate specifically those which were usually the principal officers in the corporations within the scope of the statute. They accordingly specified the “ president, cashier, treasurer and secretary.” None of these titles is usually applicable to the officers of a municipal corporation, except that of treasurer, but they describe the usual principal officers of private corporations. The fact that no mention is made of a mayor, clerk or alderman, the usual principal officers of a municipal corporation, seems to me to indicate that the legislature did not intend to subject that class of corporations to the provisions of the act.

The majority of the court is of the opinion that the judgment should be affirmed, -with costs.

Dixon, C. J., dissented.