The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-02-15
A NOVEL CASE.
CAN THE PROPERTY OF THE STATE
BE SOLD FOR DEBIT
A NEW PHASE OF THE HIGGIN-
BOTHAM CLAIM.
DECISION BY JUDGE r..
R. WELLFORD. 81.

which was lately issued in favor of the eXecu
triy of ID. Higginbothama and against the State
As soon as the Supreme Court certified it:
Judgment to the Circuit Court IN the Hig
ginbothlm case counsel for the Higginbo
thams obtained an execution against the
| State, and directed the sheriff Of Richmond
to levy upon the States law-library or the
| furniture in the Executive mansion. Pro
ceedings were stopped by the Attorney.
General moving Judge Wexford to quast
the execution, and upon that motion Judge
Wexford gave the following opinion:
This is motion of the Attorney-Gene
raj to quaSh an execution sued out by the
cxecutrix of David Higginbotham upon a
judgment entered in this court in obedience
to the mandate Of the Court Of Appeals re.
vcrsing the previous judgment of this court
and adjudging that the plaintiff sis entitled
| to recover, and do recover. from the State OF
Virginia the sum Of S2,2G2O, with interest
| thereon from the 1st day OF July, 1871, till
paid"
This is matter Of entirely new impress
| sion. So far as my own information ex-
| tends, ,-and may presume it to be correct,
or the diligence and learning Of counsel
would have enlightened me to the contrary
This is the first occasion in constitutional his
tory when an execution has been sued out
of the courts Of 4 State to enforce satiSfac.
| ton of debt due by the State
The execution is 4 preScript from the Com
monw ealth Of Virginia to the sheriff of Rich
mond commanding him out Of her own
goods and chattels to cause to be made the
amount Of the debt. BY virtue of that au.
thorty, at the hazard Of serious penalties
in the event of his default, he is required to
levy, seize, and sell, so much OF her personal
property as may be necessary to produce the
amount Of the debt, interest, aud costs. He
is authorized and may be required TO make
this seizure and sale of the furniture in her
executive. legislative, or judicial halls of
the stationery in her public Offices or Of the
bread. meat, and fuel which may have been
provided for the daily recurring necessities
Of the prisoners in her pCnitcnt;ary, or the
deaf, the dumb, the blind, or the insane in-
mates of her clccm0synar3 institutions. If
The sheriff fails to perform this ungraciouS
office he exposes himself To the penalties Of
fines TO the Commonwealth, andtO suit in the
name of Commonwealth against himself and
the suretie> on bis official bond. From the
hour when the execution reaches his hands
i. constitutes lien upon all debts due to the
Commonw ealth. and no taxpayer or tax.co!-
lector, after notice Of the execution, until ap-
prised Of its full satisfaction, eau pay, except
at his peril, one cent of the aecruing revenue
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 their peril, to honor any
check drawn to meet any exigency Of the
State. 1t may be a matter Of very serious
question whether any cCercive process can be
enforced against any defauIting officer OF the
Commonwealth while the execution is alive.
These are imposing considerations; but it
is insisted that they are the necessary conse-
quences OF every judgment, and consequences
Of which the dctaulting debtor was warned
in advance when his obligation was incurred.
1t is insisted that an execution Is the life of
the law: that by common law and by
statute law it is conceded as the right Of
every judgment creditor. The general prin-
cple cannot be contrOverted nor can it be
denied that the language of the statute au-
thoriZng the issue OF executions is abundant
" comprehensive. No saving clause is to be
found to exclude the Commonw ealth from the
common fate of every judgment debtor. But
it is equally true that no saving clause in be-
half Of the Commonwealth is TO he found in
the statute Of limitations. Nevertheless,
Null,tn Tempus occu77t Kegi. We are
bound in constituting the statutes respecting
judgments, executions, &r., &r.. TO give the
| Commonwealth the benefit of like princi pies
| Of construction. 1t is not Il matter OF COM
mon right that man may obtain judgment
| againS! the Commonwealth. The right TO
sue the State is Il matter OF sovereign grace.
! and must be exercised when asserted Sub
m0do. We must not only look to the Ian
gHagc OF the statute which comedies it, but
TO the whole bOly Of the law, TO measure the
extent and the Limitation of the privilege.
Looking, then, only TO the statute which
authorized this proceeding against the Com
monwea!th, we tinI it expressly enacted that
"n0 Judgment, thus authorized. exceeding
$500 Shall be paid without a special appro.
priation therefor by law" Code rs, chapter
| Al, section g. This section, unchanged
since the adoption OF the Code of 1S49,
upon the principle OF construction as to the
\ Code established by the Court of Appeals,
and universally recognized in the profession
for these many years, must be regarded as q
mere condensation of the act of 1912 -'43
chsptcr 8, section 8, page IS, which
prescribed that no judgment or decree
against the Commonwealth should "be paid
by warrant on the Treasury or otherwise, y
II it exceeded $500, without special appro-
priation. If under this provision Of the
law there could be any question as to the
extent 10 which the statute designed to con.
ccde remedy to the creditor OF the State it
must be removed by an examination of sec
ton 2, chapter II, page %, OF the Acts OF
1888, which enjoinS upon the Auditor the
duty Of paying by warrant upon the Trea-
sury all judgments or DEGREES authorized to
be entered by the courts for debts due by the
| Commonwealth, with a reservation of right
on his part, under circumstances therein re.
cited, to delay payment until report could
| be made to the General Assembly.
| But it seems to me that the Court Of Ap.
pcals did not design 10 leave this question
open for consideration by this Court. In the
| opinion of the eminent jurist who spoke for
them it is expressly stated that, in entering
| their Judgment, g no power is claimed for this
Court to control or in any manner interfere
with the discretion Of the Legislature i'll
making provision for the payment OF this
debt, The Court can only decide that the
debt claimed is just and due, and ought to
| be pa:d: that the State has consented to be
sued for it, and that judgment should be
rendered against her rs 4 matter of course.
"The judgment being for more than three
hundred dollars, the court bad no authority
! to require the Auditor of Public Accounts
| to issue his warrant for the amount. In
such cases the provision to be made for the
Judgment is expressly reserved to Legislative
discretion, and to that discretion we must
leave~it.'
The motion of the AttorneyGene must
therefore be granted, and the execution
quashed.
This question could not arise if the Judg
mcpt OF the Court had been in different
| form and as the question OF form seems
Va, 20 hoya haon preSpnfp1 to The Court OF