Heyman v. Crocheron

[803] HENRY L. HEYMAN VS H. CROCHERON No. 8374 By Charlea í1. Claiborne, JudgB, with ooncurrenoe cf Judge»* at'. Paul and Dinkelapiel. The defendant is a member of the Fire Department of the City of New^Orl^M^ Plaintiff having garnisheed hi a salary, he pleads that they aro exempt from seizure, both as a "publie officer" and as a "laborer". I. Admitting that a fireman's wages are "money due for the salary of an officer" under Act 79 of 1876 p 123, or under Article 1992 (1987) of the Civil Code, or "salaries of office" under Article 647 of the Code of Practice, they are liable to seizure. Among the exemptions mentioned in the Act of 1876 was "money due for the salary of an office". In amending and reenacting this act, the Act 184 of 1918 p 347 omitted this phrase, and repealed "all laws or parts of laws conflicting with or contrary to the provisions of this act". The omission from said Act of 1918 of this particular exemption evidenced cldarly the intention of repealing it. There are now, under Articles C. C. 1992 and C. P. 644 - 647, no other exemptions than those specifically mentioned in the Act of 1918. 8 Ct. App. 286, 228, 231; 106 La. 248; 6 La. 134; 12 A. 431; 13 A. 486; 116 La. 1090. In State vs White, 49 A. 129, the Court said: "It was only when the codifier had omitted some part of the old statute, that a repeal was to be admitted, and then only, as to the omitted provision". In State vs. Brewer, 22 A. 275, the Court said: "In the case of Levois vs Gerke, 12 A. 832, Mr. Justice Spofford, who concurred in the opinion which finally prevailed on rehearing; said: "In the case of Holmes vs Waltz (11 A. 439) we held that the repealing clause [804] (of the revisory legislation of 1855) only swept away such anterior legislation upon the matter specifically treated of in the new legislation as was not retained in the latter. In Stafford vs His Creditors, the new law treated specifically of the penalty for a fradulent bankruptcy, and we held that so much of the old law concerning this penalty as was not retained in the new was repealed". Also 117 La. 307. I'he license Act of 1886 mentioned "saw mills" as the subject of a license. The Act of 1890 on the same subject omitted the word "sawmills"-; held; sawmills were exempt. Barnard vs Gall, 43 A. 959; 126 La. 489. In Succession of Duprd, 116 La. 1093, the Court said; "The rule is that Where a statute purports to cover the whole subject matter, it supersedes former laws on the same subject matter" quoting 134 U. S. 207; 36 Cyc 1083; 118 La. 248; 120 La. 535 (542); 126 La. 396; 133 La. 306. "In case a statute is reenacted and some of the nrovisions of the old law are omitted from the new, thi3 constitutes a repeal of the omitted provisions". 26 Am. & Eng. Enc. Law 735; 126 La. 392; 143 La. 39 (42); 142 La. 228; 11 Wall 493; 20 Wall 590. An amendment "so as to read as follows" repeals "so much of the (former) act as is omitted (in the last act)". 36 Cyc 1083. II. A member of the Fire department of the City of New Orleans is not a laborer, and his salary is not exempt from seizure. His duties to sweep and mop the engine house, to wash glasses, to put hose out to dry, to shine up the engine and brass pipes, are only incidents or accidents of his employment, and not' the purpose of his engagement. The recompense he received is rather a "salary" than "wages". A laborer is one who performs manual labor, menial or [805] physical exertion, labor or toil, not requiring special accuracy, knowledge, skill or training, end hence distinguished from an artisan, professional man, or skilled workman; one who perfoms with his hands the contract he makes with his employer; one who subsists by physical toil in distinction from one who lives by professional skill; one who works with his hands rather than with his head, a workman- 144, La. 917. Thus the fireman on a Locomotive is a "laborer", but not the Engineer". 108 La. 812; 8 Ct. App. 227; 113 La. 778. It is therefore ordered that the .judgment herein maintained the seizure of defendant's wages is hereby affirmed. January 9th, 1922.