COURT OF APPEALS.

#### John E. Bliss, appellant, agt. Charles K. Lawrence, respondent. John E. Bliss, appellant, agt. George H. Gardner, respondent.

*October,*1874.

*Assignment of salaries of public officers before falling due.*

It is against public policy and unlawful to allow the assignment or transfer of the salary of a public officer before it becomes due and payable. Salaries are by law payable after work is performed and not before; and while this remains the law, it must be presumed to be a wise regulation and necessary in the view of the law makers to the efficiency of the public service.

The substance of this whole doctrine is, the necessity of maintaining the efficiency of the public service by seeing to it that public salaries really go to those who perform the public service. To this extent the public policy of every country must go to form the end in view.

*H. Ellis,*for appellant.

*L. I. Lansing,*for respondent.

Johnson, J.

The controlling question in these cases is that of the lawfulness of an assignment by way of an anticipation of the salary to become due to a public officer. The particular cases presented are of assignments of a month’s salary in advance. But if these can be sustained in law, then such assignments may cover the whole period of possible service.' In the particular cases before us, the claims to a month’s salary seem to have been sold at a discount of about *22ten per cent. While this presents no question of usury (since it was a sale and not a loan-for which the parties were dealing), it does present a quite glaring instance and sample of the consequences likely to follow the establishment of the validity of such transfers; and this illustrates one, at least, of the grounds on which the alleged rule of public policy rests—by which such- transfers are forbidden. The public service is protected by protecting those engaged in performing public duties; and this — not upon the ground of their private interest, but upon that of the necessity of securing the efficiency of the public service—by seeing to it that the funds provided for its maintenance should be received by those who are to perform the work at such periods as the law has appointed for their payment. It is argued that a public officer may better submit to a loss in order to get his pay into his hands in advance, than deal on credit for his necessary expenses. This may be true in fact, in individual instances, and yet may, in general, not be in accordance with the fact. Salaries are by law payable after work is performed and not before; and while this remains the law it must be presumed to be a wise regulation, and necessary in the view of the law makers to the efficiency of the public service. The contrary rule would permit the public service to be undermined by the assignment to strangers of all the funds appropriated to salaries. It is true that, in respect to officers removable at will, this evil could, in some measure, be limited by their removal when they were found assigning their salaries, but this is only a partial remedy, for there would still be no means of preventing the continual recurrence of the same difficulty. If such assignments are allowed, then the assignee, by notice to the government, would, on ordinary principles, be entitled to receive pay directly, and to take the place of their assignors in respect to the emoluments, leaving the duties as a barren charge to be borne by the assignors.- It does not need much reflection or observation to' understand that such a condition of things could not fail to produce *23results disastrous to the efficiency of the public service. Some misapprehension as to the doctrine involved seems to have arisen from the fact that the modern adjudged cases have often related to the pay of half-pay army officers, which, in part, is given as a compensation for past services, and in part with a view to future services. Upon a review of the English cases, it will appear that the proposition is, upon authority unquestionable, that the salary for continuing services could not be assigned, while a pension or compensation for past services might be assigned. The doubt, and the only doubt, in the case of half-pay officers, was to which class they were to be taken to belong. It was decided that, inasmuch as their pay was in part in view of future service, it was unassignable. Similar questions have arisen in respect to persons not strictly public officers ; but the principle before stated has, in the courts of England, been adhered to firmly *(Flarty*agt. *Odlam,*3 *T. R., 681; Stone*agt. *Lidderdale,*2 *Aust.,*233; *Davis*agt. Marlboro, 1 *Swanst.,*79; *Lidderdale*agt. Montrose, 4 *T. R.,*248; *Barwick*agt. *Read, 1 H. B. C.,*627; *Arbuckle*agt. Corotan, 3 *Bos. & P.,*328; *Wells*agt. Foster, 8 *M. & W.,*149; *Story Eq. Jur., sec.*1040, *d. & c.; Parsons on Cont.,*194). These eases sustain the proposition above set forth, and show the settled state of the English law upon the subject. Some other cases are so pertinent to the general discussion as to deserve to be stated more at length, especially as they are not so accessible as those before referred to. Among them the judgment of lord Brougham, in the house of lords, in *Hunter*agt. *Gardner (6 Wilson & Shaw,*618), decided in 1831, gives an admirable summary of the state of the English law upon the subject. The case was a Scotch appeal, in which the Scotch court had approved, under the law of that country, a partial transfer of the salary of a public officer. The particular judgment was affirmed, without deciding what the law of Scotland was upon the subject. In his judgment, lord Brougham said: “ The' court seems not to have scruti*24nized very nicely whether, from the nature of the subject-matter, namely, the%half-pay or the* full-pay of an officer, or a minister’s stipend, or, in the present case, the salary of an officer employed under government, and, in the execution of an important trust—an assignment can validly operate upon and affect those particular rights ; but they have, nevertheless, assumed to deal with them, and have directed that a certain proportion of them shall be assigned on the condition of granting the benefit of the *cessio bonoran."*These cases, undoubtedly, could not have occur éd in this country.

I may refer to the well known case of *Flarty*agt. *Odlam*(3 *T. R.,*681), which, from its importance, was the subject of much discussion, it being the first case in which it was held that the half-pay of an officer was not the subject of assignment ; and it was followed in *Lidderdale agt. The Duke of Montrose*(in *T.*R.), where the doctrine laid down was made the subject of further discussion, and the court adhered to its former view — that the half-pay was free from attachment; so that neither is a man bound to put it into the schedule of his assets nor does the general assignment to the provisional assignee, under a commission of bankruptcy, pass it out of the bankrupt; it is unassignable, and incapable of being affected by any of those modes of proceeding. The same doctrine was laid down with respect to the profits of a living, in that of *Arbuckle*agt. *Cowlan,*the judgment in which has been very much considered in Westminster Hall; and, like most of the judgments of that most able and learned lawyer, lord A l van ley, has given great satisfaction to the courts and the profession. In the report of that case your.loijdships will find laid down the general principle — though, perhaps, not worked out in these words — that all such profits as a man receives in respect to the performance of public duty are, from their very nature, exempt from attachment and incapable of assignment, inasmuch as it would be inconsistent with the nature of those profits that he who had riot been trusted or he who had not been employed to do the duty should, *25nevertheless, receive the emoluments and reward. Lord Alvanley quotes *Flarty*agt. *Odlam,*and *Lidderdale*agt. *Montrose;*and, in illustrating the principle on which a person’s emoluments are not assignable, he does not confine his observation to «the particular case of half-pay officers, or the case of this person, or the emoluments, but he makes the observation in all its generality as applicable to every case of a public officer.

The first case *(in*1 *H. B. C.,*629) decided by the court of common pleas, is the case of *Barwick*agt. Read, which clearly recognized the principle. * * * In this case as well as the other case of *Arbuckle*agt. *Cowlan,*it was perfectly clearly held by the court that in all such eases one man could not claim to receive, by assignment or attachment, emoluments which belonged to another deemed to be capable of performing the duties appended to those emoluments, but which duties could not be performed by the assignee; and there was an .-old case, referred to in *Barwick*agt. *Read,*and a curious case in *Dyer,*in which, as long ago as the reign of Elizabeth, the question appears to have been disposed of by a decision now undisputed, and now referred to in Westminster Hall. * * All these cases lay down this principle, which is perfectly undeniable, that neither assignment nor attachment is applicable to such a case.

Other cases to the same effect, of later date, are likewise noteworthy. In *Hill*agt. *Paul*(8 *Black & Fevin,*307), decided in 1842, lord chancellor Lyndhurst, speaking of legality of assigning the future emoluments of an office in Scotland, says that such an assignment would be illegal in England. There can be no doubt that *Palmer*agt. *Baker*(12 *Brad.*& *Benj.,*693), is directly applicable to this case; and in *Davis*agt. *Marlborough*(1 *Swanst.,*79), there is this observation of lord Eldoít, already cited, which seems to me quite in point, and which lays down the true rule and the distinction to be observed in these cases, and to which, for that reason, I refer, as showing what is the law of England on this subject. What lord *26Eldon said in the case referred to was ; “A pension for past services may be aliened; but a pension for supporting the grantor in performance of future duties-is inalienable.” And in *Flarty*agt. *Odlam*(4 *T. R.,*248), the court says: “It might as well be contended that salaries of judges, which are granted to support the dignity of the. state and administration of justice, may be assigned.” In *Arbuthnot*agt. *Norton*(5 *Moore’s Priv. C. Cases,*23 *c.),*decided in 1846, the question was whether an Indian judge could assign a contingent sum to.which, on his death within six months after his arrival in India, his representative would be entitled by law, and it was held that such an assignment was not against public policy, and would in equity transfer the right to the funds. In the course of the judgment given by Dr. Lushirgtor, he says: *“ We*do not in the slightest degree controvert any of the doctrines whereupon decisions have been founded against the assignment of salaries by persons filling public offices; on the contrary, we acknowledge the soundness of the principles which govern those cases: but we think that this case does not fall within any of these principles; and we think so, because this is not a sum of money which, at any time during the life of Sir John Horton, could possibly have been appropriated to his use, or for his benefit, for the purpose of sustaining with decorum and propriety the high rank in life in • which he was placed in India. We do not see that any of the evils which are generally supposed to result from the assignment of. salaries could, in the slightest degree, have resulted from the assignment of this sum, inasmuch as during his lifetime his personal means would, in no respect whatever, have been diminished, but remain exactly in the same state as they were. In *Liverpool*agt. *Wright*(28 *Law Journal*[N. *S. Chancery],*871), in which the question related to the alienability of the fees of the office of a clerk of the peace, Wood, V. C., after disposing of another question, says: “ Then there is a second ground of public policy, for which the case of *Palmer*agt. *Vaughan*(3 *Swanst.,*173), is the *27leading authority, which is this: That, independently of any corrupt bargain with the appointor, nobody can deal with the fees of a person who holds an office of this description, because the law presumes, with reference to an office of trust, that he requires the payment which the law assigns to him for the purpose of upholding the dignity, and performing properly the duties of that office; and therefore it will not allow him to part with any portion of these fees, either to the appointors or to anybody else. He is not allowed to charge or incumber them. That was the ease of *Parsons*agt. *Thompson*(1 *H. B. C.,*322). Any attempt to assign any portion of the fees of his office is illegal on the ground of public policy, and held, therefore, to be void.”

In respect to American authority, we have been referred to *Brackett*agt. *Blake*(7 *Metc.,*335), and *Mulhall*agt. *Quinn*(1 *Gray,*105), and *Newcombe*agt. *Doane*(2 *Allen,*541), as conflicting with the views we have expressed.

An examination of these cases shows that the point of public policy was not considered by the court in either of them, but that the question was regarded as entirely relating to the sufficiency of the interest of the assignor in the future salary, to distinguish the cases from those of attempted assignments of mere expectations — such as those of an expectant heir.

The court held that, in the cases cited, the expectation of future salary being founded on existing engagements, was capable of assignment, and that the existing interest sufficed to support the transfer of the future expectation. The only other case -to which we have been referred is to a decision of the supreme court of Wisconsin in *State Bank*agt. *Hastings*(15 *Wis.,*78), the question being as to the assignability of a judge’s salary, the court says: “We were referred to some English eases, which hold the assignment of the pay of officers in the public service, judges’ salaries, pensions, etc., void, as being against public policy; but it was not contended that the doctrine of those cases was applicable to the condition of society or the principles of law or of public policy in this *28country. For certainly we can see no possible objection to permitting a judge to assign his salary before it becomes due,' if he can find any person willing to take the risk of his living and being entitled to it when it becomes payable.” We do not understand that the English decisions really rest on any grounds _ peculiar to that ' country, although sometimes , expressed in terms which we might not select to express our views of the true foundation of the doctrine in question. The substance of it all is the necessity of maintaining the efficiency of the public service by seeing to it that public salaries really go to those who perform the publió service. To this extent we think the public policy of every country must go to form the end in view.

The judgment must be affirmed.