178 S.W.2d 27 | Ky. Ct. App. | 1944
Reversing. *570
Leland P. Tate was elected police judge of the city of Monticello for a four-year term beginning in January, 1942. He was inducted into the United States Army under the Selective Service Act, 50 U.S.C.A. Appendix sec. 301 et seq., in April, 1943. The city council designated a substitute judge to act in Tate's absence, and has been paying him $50 a month, the salary fixed by the council for the office. Tate instituted this action to recover his regular salary, and to enjoin the council from removing him from office, or "any way interfering with him at any time in the discharge of the duties pertaining to his said office." The judgment directed that Tate be paid his regular salary, and that the order designating a substitute judge was void.
The recent cases of Baker v. Dixon,
An examination of the Baker and Caudel cases, supra (especially the latter), will show we take the position the officer's occupancy or holding of his civil office is merely suspended while he is serving in the armed forces, and should he be demobilized before the expiration of his term he could immediately enter upon the duties of his office. A review of the foreign cases cited in those cases will reveal that in only a few instances has question been raised relative to the right of an officer to receive compensation from his civil office while serving in the armed forces. It stands to reason that, Since his occupancy or holding of his office is suspended while he is serving in the armed forces, he would not be entitled to receive compensation therefrom. He is not in position to perform any duties of his office. Certainly, the functions of an office such as the one here involved *571 must be carried on, and it is only reasonable to conclude that the person who performs them should be compensated therefor.
In the case of Frazier v. Elmore, Tenn.,
Regardless of whether the rulings in the Texas and Wisconsin cases may be deemed sound, or distinguishable from the question involved in the case before us, we are definitely of the opinion that a public officer is not entitled to the emoluments of his office while he is serving in the armed forces. As heretofore pointed out, his occupancy or holding of his civil office is suspended, and we fail to see how it can be contended seriously that he is entitled to remuneration therefrom under such a condition. The second question gives us no serious concern. KRS 26.270 provides: "The city legislative body of each city of the fifth and sixth classes shall provide by ordinance who shall act in the place of the police judge when he is absent or cannot preside, or has been sworn off the bench."
Clearly, under this authorization, the city council of Monticello had a right to designate a substitute judge to act in Tate's absence. It does not stand to reason that the council should be granted the right to designate such an officer and not be authorized to compensate him. The substitute judge is performing the duties Tate *572 would have been called upon to perform had he not been inducted into the Army, and the city is doing nothing more than pay the substitute the compensation which would have been paid to Tate. We see nothing wrong with this.
Judgment reversed, with directions to set it aside, and for the entry of a judgment consistent with this opinion.
Whole Court sitting.