Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1875-02-15
A NOVEL CASE.
Can the Property of the State be SOLD
for Debt:
From the Richmond Dispatch.I


10 the Circuit OF Richmond, on Saturday,
Judge Wexford rendered his decision on the
motion to quash the execution which was late
ly ISSUED in favor of the execusrlx OF u. Hig'
ginbothan and against the State. As soon as
the Supreme Court certified its judgment to
the Circuit Court in the Higginbotham case
counsel torihe observation-disclosures obtained an exc
cutioo against the State, and directed the sher-
itf u Richmond to levy upon the States law
library or the furniture 10 the Executive man
sion. Proceedings were stopped by the At
,oroey General moving Judge Wexford to
ouaSh the execution, and upon that motion
Judge Wexford gave the following opinion
This is a motion of the Attorney General to
uuash Mn execution sued out by the executrlx OF
David Hisg:nbotham upon judgment entered
in This court I'm obedience to tae mandate OF the
Court of Appeals reversing the previous judg-
m"nt IF this court and adjudging that the plain
the State Of Virgins the sum Of S2,2ZO, with
interest thereon from the lst day Of July, 1871,
till paid
This is a matter Of entirely new impression:
| SO far a. my own information extends;wand
r,s, prcsume it to be correct or the diligence
| and !currng of counsel would have enlightened
! ME to the cVntrAry-this is the first occasion IN
! cons .tu!innal history when an execution mas
been sued out of the courts of State to enforce
satisfaction OF a debt due by the State.
The execution is prescript from the Com
monwralth of Virginia to the sheriff of Rich
mord commanding him out of her own goots
and chsttals u cause to be INSIDE the amount VI
| he debt By virtue of that authority, 1t the
hazard Of sarou penalties in the event Of his
default he is required t. levy, seize, an SELL so
| much Of her personal property as may be neces
ssry to produce the amount OF the debt, interest
| and costs He i authorized n2d may be re-
quirud to make this secure ana sale OF the fur
nlture IN her executive, legislative or Judicial
halls OF The stationery in her pubic ohlc!si or
| of H.; bread mea. ard fuel which may hay e
been provided for The lily recurring necessities
of the prisoners in her penitantlary CIR the deaf,
| the dumb, the bhad, the insane inmates OF
her eicemnsynary institutions. II the sherin
| fails to perform this ungrAcOui oth:e be exposes
himself to the penalties OF nneS 10 Inc Conlnpn-
| wealth. and to suit in the name OF the Common
| wealth against himself ana the suretles on his
Official BOND From the hour when the cxecu-
| ton reaches his hands it constitutes lien upon
all dcb!s due TO the Commonw> nl;h, and no tax
payer or tax collector after notice Of the e1ecu-
ton, until apprsei OF It's full satisfaction, can
| paw excep. 1T his perIl me cent ut the accru ng
| revenu.. of the State The creditor may suggest
the liability Of any debtor OF the State and for
bid the banks in which her public funds are
| deposited, except at heir peril, 10 honor any
| t.ht OK drawn 10 meet any eXlgency OF the State
r NAV be matter o. very serious question
whether any coerclve process can be enforced
against any dufaulLnr o tcer of the Common
wealth while the ext tution is alive.
These arc imposing considerations; but it Is
insisted tina. they art tho necessary consequences
| of every igInent, and consequences OF which
the dcinu!ting DEBTOR WAS warned in advance
| when his Obligation was incurred. 1t Insisted
| THAT a,l execution is the life Of the law; that
| by common Inv and by statute law 1t is conceded
as tne ri. hit Of every judgment creditor Ihe
general principle cannot be- controvertedi nor
| can it be denied tn t the language OF the statue
authorizing the issue of e1. cu.lons is ablndan.ly
comprchensive No saving clause is TO be found
10 exclude the Commonw wealth from the common
fac OF every lad ,ment debtor. But it is equally
| true Lat NJ saving c aus1 IN behalf oil the Gem
lnouwealth is 10 be for ID in the statute OF limit
atoms. Never!ne ess, Nulum Tempus occurrlt
| Revi. We are bound in constituting the statutes
| respecting judgments, executions, &c, &c, to
give the Comma. iwclitE the benefit O like prin-
ciples Of corsi pct on. Il is not matter of COM
| mon right that An may obtain = judgment
against the Co: nonwealth. The right to sue
| the State is mater of sovereign grace, and
| must be exercised when asserted sub modo We
nust not only look to the language of the ststute
| which comedies it, but to the whole body of the
| law to measure the extent and the limitation of
| the privilege:
| liCDkllE, tnGn, OHsy W Tue SLaIuIe "AlCu
! thorized this proceeding against the Common
| wealth, we find it expressly enacted that mo
Judgment thus authoriZ I'd, exceeding So0U shall
| be paid without . special appropriation therefor
| b. law" Code '713, chapter A, section q This
section, unchanged since the adoption OF the
| Code Of 1919 upon the principle Of construction
Ms to the Code established by the Court of APP
peals, and universally recognized in the profes.
| sion for these many years, must be regarded as
3 mere rdensation OF t1e act OF 1872 4o, chap
ter g. section 3, page Is, which prescribed that
| no Judgment or decree against the Common
wealth should "be paid by warrant on the Treas.
ury or otherwise" if 1t exceeded $500 withouta
| speciai appropriation. If under this provision
| of the law there could be any question rs to the
| extent TO which the statute designed to concede
| remedy to the creditor OF the State 1t must be
| removed by an examination of section :, chapter
| IA. page IS. Of the Ats of 1888. which enlOlns
| upon the Auditor the duty of paying by warrant
upon the Treasury all judgments or DEGREES au-
| thorizad to be entered by the courts for debts
| due by the Commonwealth with reservation
of right on his part, under circumstances therein
recited, to delay pay ment until report could De
made to tbs General Assembly.
But il seems to ma that the Court of Appeals
! did not design TO leave this question open tor
consideration by this Court. In the opinion OF
| the eminent jurst who spoke for them It is ex-
nresslv stated that in entering their judgment,
| mo power is claimed for this Court to control
or in any manner interfere with the discretion of
the Legislature in making prov sion Tor the pay
| rncnt OF tins debt The Court can only decide
that the debt claimed is just and due, and ought
| TO be paid that the State has consented to be
| sued Tor it. and that Judgment should be render
| cd against her as matter OF course.
'The judgment being for more than three
| hundred dollars, the court had no authority to
| require the Auditor of Pubic Accounts to issue
| his warrant foT the amount. In such cases the
uruyision to be made for the judgment is eI-
pressly reserved to legislative discretion, and to
| tkat discretion we must leave H."
The motion Of the Attorney General must
therefore be granted. and the execution quashed.
This question C, uld not arise if the judgment
Of the Court had been in different form ana
| ss the question of form seems not to have been
| presented to the Court of Appeals and the
original jurisdiction in all 'hese claims against
| the Commonwealth is devolvcd upon this Court,
trust it may no. be considered inconsistent with
the a., b :dience and Difference which 1t Is equally
.le,- .p1 .ii,; n N hat