Edward Thompson Co. v. Maynard

256 N.W. 817, 269 Mich. 97, 1934 Mich. LEXIS 883

• Court: Michigan Supreme Court
• Decided: October 23, 1934
• Docket: Docket No. 131, Calendar No. 37,818.
• Status: Published

Opinions

By this appeal in the nature of certiorari the question presented is whether or not the State of Michigan is subject to garnishment process. There is also the question as to whether jurisdiction may be obtained by service of process on the governor and attorney general. Leave having been granted, the State has appealed from a decision in the circuit court holding affirmatively on each of the above questions.

The State being sovereign, suit in its own courts cannot be maintained against it except the sovereign State by its own laws so provides. Aplin, Auditor General, v. Van Tassel,Treasurer of Tuscola County, 73 Mich. 28; McDowell v. Warden ofMichigan Reformatory at Ionia, 169 Mich. 332. Such a provision as to garnishment proceedings is embodied in the statutes of this State.

"All corporations of whatsoever nature, whether foreign, domestic, municipal or otherwise, and the State of Michigan, may be proceeded against as garnishees in the same manner and with like effect as individuals." 3 Comp. Laws 1929, § 16204.

The italicized words were inserted in the above section by amendment in 1919. Act No. 233, Pub. Acts 1919. In view of the foregoing statutory provision there can be no question in this jurisdiction as to the legislative intent. Auditor General v.Wayne Circuit Judge, 234 Mich. 540. But the attorney general in behalf of the State points out that the statute does not designate any officer of the State upon whom service of process can be made. In this connection it is asserted that since garnishment proceedings are statutory, it cannot be said service of process in manner sufficient at common law would be valid service in a statutory garnishment. The argument is that there being no statutory provision for service upon the State of garnishment process, therefore the State is not subject to garnishment and especially must this be true because no statutory provision is made for collection or satisfaction of a judgment in garnishment rendered against the State. The questions presented are so well considered in the opinion of the learned circuit judge that we quote:

"This brings us to the consideration of the question as to whether any general principle of the common law authorizes service on the State in any particular manner in the absence of the express provisions of statute. In 59 C. J. p. 327, it is said:

"Where proceedings are authorized against the State, but there is no express provision as to the service of process, the State may properly be brought into court by service upon the governor and attorney general, or apparently either of such officers.'

"In the early case of Chisholm v. Georgia, 2 Dall. (2 U.S.) 419, the supreme court of the United States had before it the question as to the existence of a common-law rule or principle of the character referred to. It was contended there, on behalf of the State of Georgia, that jurisdiction over it could not be obtained in the absence of express designation by law of some official, or officials, on whom process might be served. The court, however, rejected this contention, recognized the existence of the common-law rule, and held that service on the governor and the attorney general was binding.

"Following the determination of the supreme court inChisholm v. Georgia, the question has been involved in several cases, cited in Corpus Juris, wherein the conclusion with reference to the existence of the common-law rule referred to has been followed. The statement of the general principle as laid down in the text appears to be well supported by authority, and does not appear to have been questioned by any court of last resort.

"While the 11th amendment of the Federal Constitution forbade the extension of the judicial power of the United States to suits against a State by citizens of another State, or of a foreign nation, it cannot be said, as I view the situation, that the common-law rule with reference to the service of process in any duly authorized action against the State was thereby affected. The decision in Chisholm v. Georgia, supra, did not, as above indicated, create the rule. Rather it merely recognized its existence. Rendering impossible certain cases in which the rule might be applied, obviously does not affect its application in other cases.

"Counsel for the garnishee defendant relies on the decision of the Supreme Court of this State in Milwaukee Bridge IronWorks v. Brevoort, Wayne Circuit Judge, 73 Mich. 155. It was there held that in the absence of express provision of statute governing the matter, a writ of garnishment could not be served upon a foreign corporation. In other words, the Supreme Court, by necessary inference, declined to recognize the existence of any common-law rule or principle with reference to the service of process on foreign corporations, declaring such service to be a matter of statutory regulation. The matter of such service on a State, where express legislative authority to bring the action has been granted, was not involved. The decision, as I view it, may, in consequence, be properly regarded merely as authority for the proposition that the common-law principle as summarized in Corpus Juris, and as applied in Chisholm v.Georgia and the other decisions referred to, did not extend to and include the service of process on corporations. The reasons for the nonexistence of any such rule with reference to corporations do not require discussion at this time.

"The intent of the legislature to subject the State to garnishment proceedings is not open to question. As indicated in Auditor General v. Wayne Circuit Judge, 234 Mich. 540, the provisions of the statute are clear. We may not assume that it was intended to declare a right but to withhold any method of procedure for obtaining the benefit of such right. It is fair to assume that the legislature had in contemplation the principle of the common law as applied in Chisholm v. Georgia and in other cases. The statutes of Michigan making the governor and the attorney general the legal representatives of the State and defining their powers and duties as such are in keeping with this theory. It is of course fundamental that the intention of the legislature should not be defeated if such result can be avoided.

"The conclusion follows that Act No. 233, Pub. Acts 1919, is not inoperative for the reasons urged and that in the instant case service of summons in garnishment was sufficient."

We are in full accord with the opinion of the circuit judge and the judgment entered in the circuit court. It is affirmed. The question adjudicated being of public concern no costs will be awarded on this appeal.

NELSON SHARPE, C.J., and WIEST and BUTZEL, JJ., concurred with NORTH, J.