This is a bill in equity filed by the appellee praying for a perpetual injunction to restrain the appellant, then United States marshal for the district, from further proceeding under a fi. fa., issued upon a judgment rendered in favor of the United States in the district court for the eastern district of Wisconsin, against the appellee and others, and which had been levied on real estate alleged to be the homestead of the appellee, and exempt under the laws of that state from sale on execution. The premises levied on are described in the bill as 40 acres of land, with a dwelling-house and appurtenances thereon, occupied by the appellee as a residence for himself and family, consisting of his wife and seven children, the same being used for agricultural purposes, not included in any town, city, or village plat, and alleged to be of the value of $6,000 and upwards; and it is averred that the cause of action upon which the judgment was rendered was not for any debt or liability contracted prior to January 1, 1849. To this bill there was filed a general demurrer, for want of equity, which being overruled, and the appellant declining to answer or plead, a decree was rendered granting the relief prayed for, from which this appeal is prosecuted. The provision of the statute of Wisconsin on the subject of homestead exemptions, the benefit of which was secured to the appellee by the decree appealed from, is as follows:
Asst. Atty. Gen. Maury, for appellant.
No counsel for appellee.
This statutory provision was enacted in express compliance with a constitutional injunction, wherein it was declared, in the seventeenth section of the bill of rights, that 'the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws.' Phelps v. Rooney, 9 Wis. 70-83. And it has been the constant policy of the state in this legislation, as construed by many decisions of its supreme court, to favor by liberal interpretations the exemptions in favor of the debtor. 'For it cannot be denied,' says that court in Hanson v. Edgar, 34 Wis. 653-657, 'that in all the enactments found in our statute books in regard to homestead exemption, the most sedulous care is manifest to secure the homestead to the debtor and to his wife and family against all debts not expressly charged upon it.'
We have found no case in which the question has been raised, or where there has been any expression of judicial opinion, whether the exemption would prevail or not, as to judgments in favor of the state; but we do not doubt, from the language of the constitutional and statutory provisions, and the rules of construction followed in other cases, that it would be held by its courts, if the question should be directly made, that the state, except as to taxes, which are expressly excepted, would be bound by the exemption.
In the case of Doe v. Deavors, 11 Ga. 79, it was decided by the supreme court of Georgia, in 1852, that the state was bound by acts of the legislature exempting certain articles of personal property from levy and sale for debts, for the benefit of the wife and children of the debtor, so that they could not be seized and sold under execution for the payment of taxes. The court said, page 89:
Mr. Thompson, in his Treatise on Homesteads and Exemptions, (section 386,) says:
The case of Com. v. Cook, 8 Bush, 220, which is one of the exceptions referred to, is shown, however, to have been materially qualified by the decision in Com. v. Lay, 12 Bush, 283. That of Brooks v. State, 54 Ga. 36, turned on the point that the exemption claimed operated retrospectively, and was disallowed on the authority of Gunn v. Barry, 15 Wall. 610. So that in point of fact the decisions of state courts upon the point are practically unanimous.
It is said, however, that the laws of the state creating these exemptions are not laws for the United States; and this is certainly true, unless they have been made such by congress itself. This has not been an open question in this court since the decision in the cases of Wayman v. Southard, 10 Wheat. 1, and of the U. S. Bank v. Halstead, 10 Wheat. 51. Mr Justice THOMPSON, delivering the opinion of the court in the latter case, said:
In Wayman v. Southard, 10 Wheat. 49, Chief [106 U.S. 272, 277] Justice MARSHALL had said that the proposition was 'one of those political axioms, an attempt to demonstrate which would be a waste of argument not to be excused.'
The question therefore is, whether the United States, by an appropriate legislative act, has adopted the laws of Wisconsin exempting homesteads from execution, and, if at all, whether they apply in cases of executions upon judgments in favor of the United States.
Section 916, Rev. St., is as follows:
This provision, in its present form, has been in force since June 1, 1872, and is part of the sixth section of the act 'to further the administration of justice,' approved on that date. 17 St. at Large, 196. It is the result of a policy that originated with the organization of our judicial system. The fourteenth section of the judiciary act of 1789 (1 St. at Large, 81) provided that the courts of the United States should have 'power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law;' and this was held to embrace executions upon judgments. Wayman v. Southard, 10 Wheat. 1. But simultaneously with the judiciary act, September 29, 1789, was passed the first 'Act to regulate processes in the courts of the United States,' in which it was enacted 'that until further provision shall be made, and except where by this act or other statutes of the United States is otherwise provided, the forms of writs and executions, except their style and mode of process and rates of fees, except fees to judges in the circuit and district courts in suits at common law, shall be the same in each state respec- [106 U.S. 272, 278] tively as are now used or allowed in the supreme courts of the same.' This act was temporary, and expired by its own limitation at the end of the next session of congress. The act of May 8, 1792, provided that the forms of writs, executions, and other process, and the forms and modes of proceeding in suits at common law, should continue to be the same as authorized by the act of 1789, 'subject, however, to such alterations and additions as the said courts respectively shall in their discretion deem expedient, or to such regulations as the supreme court shall think proper, from time to time, by rule to prescribe to any circuit or district court concerning the same.' 1 St. at Large, 275. This legislation came under review in this court in the cases of Wayman v. Southard and U. S. Bank v. Halstead, in the latter of which it is said, (10 Wheat. 60:)
This discretionary power in the courts of the United States was restricted by the act of May 19, 1828, (4 St. at Large, 278,) so that thereafter writs of execution and other final process issued on judgments rendered in any of the courts of the United States, and the proceedings thereupon, should be the same, except their style, in each state respectively, as were then used in the courts of such state: provided, however, that it should be in the power of the courts, if they saw fit in their discretion, by rule of court, so far to alter final process in said courts as to conform the same to any change which might be adopted by the legislatures of the respective states for the state courts. It will be seen from this provision that it was thereafter prohibited to the courts of the United States either to adopt or recognize any form of execution, or give any effect to it, except such as was, at the time of the passage of the act, or had sub- [106 U.S. 272, 279] sequently become at the time of their adoption, a writ authorized by the laws of the state. The same provision has ever since been continued in force, and is now embodied in section 916 of the Revised Statutes, already quoted.
In Beers v. Haughton, 9 Pet. 329, which was governed by the act of 1828, it was held that 'the words, 'the proceedings on the writs of execution and other final process,' must, from their very import, be construed to include all the laws which regulate the rights, duties, and conduct of officers in the service of such process, according to its exigency, upon the person or property of the execution debtor, and also all the exemptions from arrest or imprisonment under such process created by those laws.'
It is further to be observed that no distinction is made, in any of these statutes on the subject, between executions on judgments in favor of private parties and on those in favor of the United States. And as there is no provision as to the effect of executions at all, except as contained in this legislation, it follows necessarily that the exemptions from levy and sale, under executions of one class, apply equally to all, including those on judgments recovered by the United States. The general power to issue process, originally conferred by section 14 of the judiciary act of 1789, which no appears as section 716, Rev. St., as being in pari materia with that contained in section 916, must be construed as subject to the same limitations, especially as the general power is confined in express terms to writs not specifically provided for by statute, and hence, ex vi termini, embraces none included in the subsequent section. Besides, as was said by Chief Justice MARSHALL, in Wayman v. Southard, 10 Wheat. 1-24, 'this section provides singly for issuing the writ, and prescribes no rule for the conduct of the officer while obeying its mandate.'
As the statute of Wisconsin, exempting homesteads from levy and sale upon executions, was in force at the time the act of congress of June 1, 1872, took effect, and has remained so continuously from that time, it also follows that the exemption has thereby become a law of the United States within that state, and applies to executions issued upon judgments in civil causes recovered in their courts in their own [106 U.S. 272, 280] name and behalf, equally with those upon judgments rendered in favor of private parties. Laws of Wis. 1848, pp. 40-41; Rev. St. Wis. 1871, 23, p. 1548. This conclusion cannot be avoided by the consideration which has been urged upon us, that the process acts do not limit the sovereign rights of the United States, upon the principle that the sovereign is not bound by such laws, unless he is expressly named. These laws are the expression of the sovereign will on the subject, and are conclusive upon the judicial and executive officers to whom they are addressed; and as they forbid the issue of an execution in every case, except subject to the limitations which they mention, and as there is no authority to issue an execution in any case whatever, except as conferred by them, the sovereign right invoked is left without the means of vindication. The United States cannot enforce the collection of a debt from an unwilling debtor except by judicial process. They must bring a suit and obtain a judgment. To reap the fruit of that judgment they must cause an execution to issue. The courts have no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department, for they can exercise no jurisdiction except as the law confers and limits it. And if the laws in question do not permit an execution to issue upon a judgment in favor of the United States, except subject to the exemptions which apply to citizens, there are no others which confer authority to issue any execution at all. For, as was said by Mr. Justice DANIEL, in Cary v. Curtis, 3 How. 236-245, 'the courts of the United States are all limited in their nature and constitution, and have not the powers inherent in courts existing by prescription or by the common law.' This objection is also met expressly by the decision of this court in the case of U. S. v. Knight, 14 Pet. 301. It was there decided that the act of May 19, 1828, gives the debtors imprisoned under executions from the courts of the United States, at the suit of the United States, the privilege of jail limits in the several states, as they were fixed by the laws of the several states at the date of that act. It was there objected, as here, that the provision of the statute did not [106 U.S. 272, 281] embrace executions issued on judgments rendered in favor of the United States, upon the ground that the United States are never to be considered as embraced in any statute unless expressly named. Mr. Justice BARBOUR delivered the opinion of the court, and said:
The same line of reasoning was adopted by this court in the case of Green v. U. S. 9 Wall. 655. It was there held that the act of July 2, 1864, which enacts that in courts of the United States there shall be no exclusion of any witness in civil actions, 'because he is a party to or interested in the issue tried;' and the amendatory act of March 3, 1865, making certain exceptions to the rule, apply to civil actions [106 U.S. 272, 282] in which the United States are a party as well as to those between private persons. It was argued by the attorney general that the statutes were meant to give both parties an equal standing in court in respect to evidence; that the United States not being able to testify, a party opposed to them should not be allowed to do so either; and that, independently of this, it was a rule of construction that 'the king is not bound by any act of parliament, unless he be named therein by special and particular words.' Mr. Justice BRADLEY, who delivered the opinion of the court, replying to this argument, said:
And although it has been decided by the highest judicial tribunals in England, (Feather v. Queen, 6 Best & S. 257; Dixon v. London Small Arms Co. L. R. 1 App. Cas. 632,) that the sovereign is entitled to the use of a patented process or invention without compensation to the patentee, because the privilege granted by the letters patent is granted against the subjects only, and not against the crown, a contrary doctrine was held by this court in James v. Campbell, 104 U.S. 356 , to prevail in this country. Mr. Justice BRADLEY, delivering the [106 U.S. 272, 283] opinion of the court in that case, said:
It is true that in the case of U. S. v. Herron, 20 Wall. 251, it was decided that a debt due to the United States is not barred by the debtor's discharge with certificate under the bankrupt act of 1867; but in that case Mr. Justice CLIFFORD took pains, by a careful collation of numerous provisions of the statute, to show that the words 'creditor or creditors,' as contained in the act, did not include the United States, adopting and extending the definition by Mr. Justice BLACKBURN, in Woods v. De Mattos, 3 Hurl. & C. 995, because used in the sense of persons having a claim which can be proved under the bankruptcy, and not required by the act to be paid in full in preference of all others. But the bankrupt act furnished clear evidence of the policy of congress in reference to exemptions of property from sale for the payment of debts, by excepting from its operation personal property, necessary to the use of the family, to the amount of $500, and such other property as was exempt from execution by the laws of the United States and of the state of the debtor's domicile. Rev. St. 5045. And congress, since May 20, 1862, (12 St. at Large, 392,) when it passed the first act providing for the acquisition of homesteads for actual settlers upon the public lands, made their exemption from sale on execution a permanent part of a national policy, by declaring that lands so acquired should not 'in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.' Rev. St. 2296; Seymour v. Sanders, 3 Dill. 437; Russell v. Lowth, 21 Minn. 167.
If a contrary construction to the process acts should be given, on the ground that they do not include the United [106 U.S. 272, 284] States, which, although a litigant, continues nevertheless to exercise the prerogatives of a sovereign, it would follow that they might resort to any writ known to the common law, however antiquated or obsolete, and in defiance of the progress of enlightened legislation on that subject, revive all the hardships of imprisonment for debt, even without the liberty of local statutory jail limits. But that this is not within the meaning of these acts of congress we have positive and plenary proof in section 1042 of the Revised Statutes. This was section 14 of the act of June 1, 1872, (17 St. at Large, 198.) It provides that 'when a poor convict, sentenced by any court of the United States to pay fine, or fine and cost, whether with or without imprisonment, has been confined in prison 30 days solely for the non-payment of such fine, or fine and cost, he may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if on examination it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding $20 in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him' an oath, the form of which is set out, in which he swears that he has not any property, real or personal, to the amount of $20, except such as is by law exempt from being taken on civil precept for debt by the laws of the state, where the oath is administered, and that he has no property in any way conveyed or concealed, or in any way disposed of, for his future use or benefit. 'And thereupon,' the statute proceeds, 'such convict shall be discharged,' etc. This section is repeated as section 5296, Rev. St., under the title, 'Remission of Fines, Penalties, and Forfeitures.'
Nothing can be more clear than this, as a recognition by congress, that in case of executions upon judgments in civil actions the United States are subject to the same exemptions as apply to private persons by the law of the state, in which [106 U.S. 272, 285] the property levied on is found; and that, by this provision in favor of poor convicts, it was intended, even in cases of sentences for fines for criminal offenses against the laws of the United States that the execution against property for its collection should be subjected to the same exemptions as in civil cases.
In The Magdalen College Case, 11 Coke, 66b, Lord, COKE, referring to Lord Berkley's Case, Plowd. 246, declares that it was there held that the king was bound by the statute De donis, 13 Edw. I., because, for other reasons, 'it was an act of preservation of the possession of noblemen, gentlemen, and others,' and 'the said act,' he continues, 'shall not bind the king only, where he took an estate in his natural capacity, as to him and the heirs male of his body, but also when he claims an inheritance as king by his prerogative.' By parity of reasoning, based on the declared public policy of states, where the people are the sovereign, laws which are acts of preservation of the home of the family, exclude the supposition of any adverse public interest, because none can be thought hostile to that, and the case is brought within the humane exception that identifies the public good with the private right, and declares 'that general statutes, which provide necessary and profitable remedy for the maintenance of religion, the advancement of good learning and for the relief of the poor, shall be extended generally according to their words;' for civilization has no promise that is not nourished in the bosom of the secure and well-ordered household.
The decree of the circuit court is affirmed.