Schwenk v. Wyckoff

The opinion of the court was delivered by Reed, J.

The right of the respondent, who was the complainant below, to the relief for which she prays, rests upon an assignment made to her husband by the defendant. The subject-matter which the ássignment was supposed to operate upon, was the unearned pay of the defendant, to become due to him as a retired officer of the United States army.

In the consideration of the cause, we meet at the outset a difficulty which lies at the root of the complainant’s case. It exists in the shape of an objection interposed by the defendant, that this assignment purports to transfer a chose in action belonging to a class which are not assignable, or what in effect produces the same result, the .assignment of which the courts will not enforce or recognize.

The rule is established in the English courts, that the unearned salary or emolument of an officer, which may become payable during his life, is incapable of assignment.

This restriction upon the general power to dispose of rights having a potential existence, is put upon ground that the recognition of such assignments would operate prejudicially upon the public service. The considerations which led to this judicial result were in substance the following: It was apparent that the salary or remuneration incident to a public office, as a rule, were essential to a decent and comfortable support of the incumbent. If the officer should be deprived of this support, there would *563 arise a hazard of his being driven to an inappropriate meanness of living, of his being harassed by the worry of straightened circumstances and tempted to engage in unofficial labor, and of the likelihood of his falling off in that official interest and vigilance which the expectation of pay keeps alive. It was because of these probable consequences, that the courts refused to countenance any act or proceeding which might result in stripping the officer of his anticipated reward.

The cases in which this question has been mooted and the foregoing rule established in the English courts, are the following : Flarty v. Odlum, 3 T. R. 681; Barwick v. Reed, 1 H. Bl. 627; Arbuckle v. Cowtan, 3 Bos. & P. 328; Davis v. Marlborough, 1 Swanst. 79; Lidderdale v. Montrose, 4 T. R. 248; Stone v. Lidderdale, 2 Anstr. 533; Wells v. Foster, 8 Mees. & W. 149; Palmer v. Bate, 2 Bro. & B. 673.

In the case of Flarty v. Odlum, 3 T. R. 681, it was held by ■the court of king’s bench, that this rule was applicable to the assignment of half pay by an officer of the, British army. It was ruled that future accruing payments did not pass to an ■assignee, appointed-under proceedings against an insolvent officer taken for the benefit of his creditors. Afterward, in the case of Lidderdale v. Duke of Montrose, 4 T. R. 248, the validity of a voluntary assignment of the half pay of an officer came before the same court, and it was held that there was no distinction to •be made between a voluntary assignment and an assignment, as in the last-mentioned case, under the Insolvent Debtors act, and so the voluntary assignment was also held to be void. The same dispute, under the name of Stone v. Lidderdale, was shifted into the court of exchequer, and by that court it was remarked, that half pay was granted for the purpose of keeping experienced officers in such a situation as not to be compelled to turn themselves to other pursuits, or to be by other circumstances reduced to •extreme poverty. The assignment was, therefore, held to be void. 2 Anstr. 583. Since the decision of these causes, the nullity of an assignment of unearned half pay by an officer has been repeatedly recognized. The remarks of Lord Alvanley, in Arbuckle v. Cowtan, 3 Bos. & P. 328, and of Baron Park, in Wells v. Foster, *564 8 Mees. & W. 114, display an understanding in the English courts, that by the case of Flarty v. Odlum this question had been definitely set at rest.

In this country there are two cases in which the assignment of a portion of a salary to become due has been held valid. One-case is Brackett v. Blake, 7 Metc. 335 , in which case it was held that the unearned salary of a city marshal was capable of assignment. It is quite remarkable, that the only question discussed in the opinion of Chief-Justice Shaw in that case, was whether the anticipated salary was such a possibility coupled with an interest as to be capable of assignment. Upon the court’s concluding that it was such an interest, the assignment was sustained,, without a word in respect to the point raised in the brief of counsel, that the assignment was opposed to public policy. This-question seems to have been entirely overlooked in the decision of that case. There are two subsequent cases in Massachusetts sometimes cited as sustaining the same doctrine. But both, these-cases, namely, Mulhall v. Quin, 1 Gray 105 , and Macomber v. Doane, 2 Allen 541 , as decided, involve only the question of the assignability of wages to become due upon contracts for services-rendered. The second, and only other case in which the assignment of the prospective pay of a public officer has been the subject of judicial approval, is that of State Bank v. Hastings, 15 Wis. 78 . This case involved the assignment- of the future salary of a judge. In delivering the opinion, the judge remarked, that it had not been contended that the doctrine of the English cases,, holding that assignments of the pay of officers in the public-service, judges’ salaries, pensions &c., were void, was applicable-to the condition of society or to the principles of law or public policy of this country. The soundness of the rule laid down by the English cases, however, was not impugned. Nor was it explained in what way the propriety of supporting this rule of public policy ceased under our political or judicial system. Nor does the possibility of any rational explanation seem clear. The object of the rule, in both countries, is to secure the most efficient service to the public by those who are appointed or elected to perform public duties. So long as there are public officers who. *565 are remunerated for their services, the same conditions exist in both countries which render the stripping of such officer of his ■expectation of pay impolitic. In respect to this general rule of policy, therefore, no solid discrimination can be made between the political situation of this country and that in which the rule was first adopted. This was the view taken by the court of appeals of the State of New York in the case of Bliss v. Lawrence, 58 N. Y. 442 , after a thorough review of the English .and American cases by Judge Johnson. This has become a leading case in this country, and the doctrine announced by it, namely, that the assignment by a public officer of' the future .salary of his office, is contrary to public policy and void, has been followed in this country in the cases of Bangs v. Dunn, 66 Cal. 72 ; Schloss v. Hewlett, 81 Ala. 266 ; Beal v. McVicker, 8 Mo. App. 202 .

Involving the same principle is the case of Field v. Chipley, 79 Ky. 260 .

The foregoing doctrine in respect to the non-assignability of unearned official pay, may be regarded as settled in this country as it is in England, by the great weight of reason and authority. Nor is there any difference between the position of a retired army officer in this country and those officers in respect to whose pay the English court were ruling. The officer here, as well as there, although retired from actual campaigning, is still subject to military orders. By the federal statute he is liable to be assigned to officer soldiers’ homes and to instruct in military institutes. Rev. Slat. §§ 1356, 1359,1¡,8'16.

He stands, therefore, upon the footing of an officer owing service to the public when called upon for its rendition, and the rule .announced protects his pay. from himself and his creditors until he earns it.

The decree below must be reversed.

For affirmance — None.

For reversal — The Chief-Justice, Depue, Garrison, Magie, Reed, Van Syokel, Brown, Clement, Cole, 'Smith, Whitaker — 11.