116 Ky. 575 | Ky. Ct. App. | 1903
Opinion of tiie court uy
Affirming.
Appellee, James, was elected comity judge of Butler county at the November election, 1893, and at,the November election, 1897, was re-elected to that office. He served out his. term. He was allowed by the fiscal court, for his services as county judge, $100 for the year 1897, $500 for the year 1898,. $400 for the year 1899, $400 for the year $1900, and $500 for the year 1901. He accepted his pay as allowed by the fiscal court, but after the' conclusion of his' term filed this suit to recover of the county $200, on the ground that his salary had been fixed at $500 a year, and that for two years, of his term only $400 had been paid to him. The county demurred to his petition. The demurrer was overruled. It then filed an answer pleading the orders of the fiscal court in bar of the action. A demurrer was sustained to the
“Butler Fiscal Court, October term, 23d day of October,. 1896. Appropriated out of the county levy for 1897, for county judge’s salary for the year 1897, same to be paid quarterly as prescribed by law. $400:00.”
“Butler Fiscal Court, October term, 9th day of November,. 1897. Appropriated out of the county levy .1898, $500.00 for county judge’s salary for year 1898, to be paid quarterly as prescribed by law.”
“Butler Fiscal Court, 5th day of October term, 7th day of October, 1898. Appropriated out of county levy of 1899, $400.00 for county judge’s salary for year 1S99, to be paid quarterly as provided by law.”
“Butler Fiscal Court, 5th day of October term, 6th day' of October, 1899. Ordered that there be appropriated out of the county levy of 1900, for the purpose of paying county judge’s salary for the year 1900, the sum of $400.00, same to be paid quarterly as prescribed by law. Upon question of which allowance esquires present each voted ‘yea,’ except Esq. Taylor, who did not cast his vote upon the question.”
Before the adoption of the present Constitution, it was customary for the court of claims to make allowances annually to the county judge and county attorney, and it is apparent from' the above orders that the Fiscal Court of Butler County has been proceeding in the same way since the adoption of the present Constitution, not observing its provisions :
“The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office; nor shall the term of any such*578 officer be extended beyond the period for which he may have been elected or appointed.” Section 1G1.
“The salaries of public officers shall not be changed during the term for which they were elected; but it shall' be the duty of the General Assembly to regulate, by a general law, In what cases and what deductions shall be made for neglect of official duties. • This section shall apply to members of the General Assembly also.” Section 235.
Under these provisions, - it has been held that the fiscal court can not make any change in the salary of the county judge during his term of office, and that, while it is the duty of the fiscal court to fix the salary of the county judge for his entire term before his election or qualification, yet, if it shall fail to do so, it may fix his salary thereafter. Marion County Fiscal Court v. Kelley, 22 R., 174, 56 S. W., 815; Barrett v. Falmouth, 109 Ky., 151, 22 R., 667; 58 S. W., 520.
The purpose of the constitutional provisions is to leave the officials, whose ‘duty it is to fix the salary, free from the importunity and personal influence of the incumbent of the office, and to secure to him for his term, when his- salary is once fixed, the amount so agreed to be paid him, and thus make him more. independent in the discharge of his official duty. Under these provisions of the Constitution it is the duty of the fiscal court to' fix the salary of the county judge and other county officers, to be allowed by it, before their election; that is, there should be a general order fixing the salaries, and not an allowance each year for that year; and when the salaries are once fixed, they can not be changed to affect those already elected or appointed, and any change will not take effect until after the next election or appointment.
The Butler Fiscal Court, before the election of appellee,
The orders of the -fiscal court are not a bar to the action. It is a body of limited power. One of the things which it has no power to do under the Constitution is to change the salary of county officials during their terms. Its attempt to change the salary of the county judge, being in violation of the Constitution, was void, and, being void, their order may be disregarded when pleaded in bar. Morgantown Deposit Bank v. Johnson, 108 Ky., 507, 22 R., 210, 56 S. W., 825.
The county judge waived none of his rights by-accepting
Judgment affirmed.