| Ky. Ct. App. | Jun 14, 1940
Reversing.
At the regular primary election in 1937 the appellee J.D. Gross was nominated by the Republican party as its candidate for the office of county judge of Laurel county, Kentucky. He was elected at the following November election and qualified and assumed its duties on the first Monday in January, 1938. Prior to his nomination (and on April 6, 1937) the fiscal court of Laurel county, by an order duly made on its records, fixed the salary or compensation for that office during the succeeding regular term beginning on the first Monday in January, 1938, at $1,200, specifying in the order that $800 of that sum was "regular salary" for the incumbent, and that the remaining $400 was "salary in lieu of criminal fees." No appeal by appellee Gross, nor by any other person was ever taken to the Laurel circuit *486 court from that order, nor was any proceeding whatever instituted calling in question its propriety until December 7, 1937, after Gross was elected to the office — at which time he appeared before the fiscal court and entered motion that it set aside its prior order, supra, and enter another one doubling the allowances made in the first one, whereby he would be permitted to draw a total salary of $2,400 per annum instead of the $1,200 fixed in the first order. The fiscal court overruled that motion, and within 60 days after the overruling order was entered — but after appellee Gross qualified and assumed the duties of the office — he appealed therefrom to the Laurel circuit court, which overruled all objections and exceptions, assumed jurisdiction and entered judgment fixing the combined annual salary of the county judge of Laurel county for the four years beginning January 1, 1938, at $2,400, which was paid to Gross for some fifteen months, when this action was filed by appellant and plaintiff below, Russell Dyche, as a citizen and tax payer of the county, against him, the members of the fiscal court, the county court clerk, and the county treasurer of the county, seeking to enjoin future payments of the salary greater than that fixed by the fiscal court. Plaintiff also sought to recover from him the amount of excess payments above that fixed by the fiscal court that he had collected since assuming the duties of the office. The judge of the Laurel circuit court dismissed plaintiff's action, to reverse which he prosecutes this appeal.
Many questions are argued by attorneys for each side, but an analysis of the situation makes it clear that only these three are involved: (1) Whether the undertaking of the fiscal court, at the time it made the salary fixing order, to designate an allowance to the county judge for presiding at the trial of misdemeanor cases could then be legally made, or postponed until "the last regular term of the fiscal court preceding the regular election for county officers," as is prescribed in Section 1732a-2 of Baldwin's 1936 Revision of Baldwin's Kentucky Statutes? (2) whether the order fixing the compensation of the future county judge for the succeeding regular term became final and beyond the power of the fiscal court to alter after the adjournment of the term at which it was entered, and (3) if the order of the fiscal court fixing the compensation for both classes of services of the county judge was regular, what then was the *487 remedy of defendant and appellee Gross to bring about a review or alteration of it, and when should that remedy be invoked by him? We will now undertake the task of answering those questions in the order named.
1. It is not denied, but admitted, that the fiscal court had authority and it was its duty to fix what its order termed the "regular salary" of the county judge at the time it attempted to and did do so; but it is strenuously argued by defendant Gross that it could not at that time — in view of Section 1732a-2 supra — fix a salary or compensation to be paid the succeeding county judge for presiding at the trial of misdemeanor cases. Whether or not that contention is sustainable presents the first point to be determined in answering question (1). In the first place we are not inclined to construe the time fixed by Section 1732a-2 as the time for fixing compensation for services of county judges in presiding at the trial of misdemeanor cases as mandatory but only directory. That conclusion could be fortified by more than one reason if it were necessary to do so, and wherein judicial precedent could be cited in support thereof. But one outstanding reason is that there is no sense or logic in requiring two separate dates in the same year for the fixing of the two separate classes of compensation for the county judge, as is prescribed by the section last referred to, and by Section 1072 of our same statutes, even if the latter section had not been amended by chapter 131, page 635 of the session acts of 1932, four years after the enactment of Section 1732a-2. At the time of the enactment of that amendment the two sections referred to prescribed for different dates for fixing the separate compensations to be paid the county judge, but the 1932 amendment said that the annual salary (which necessarily meant and embraced all sums which at that time went to make up the total salary) to be paid or received by the county judge (as well as other county officers) should be paid monthly "provided, however, that said salary shall be fixed not later that the first Monday in May in the year in which said officersare nominated and elected." (Our italics.)
Therefore, if, perchance, Section 1732a-2 should be construed when first enacted as mandatorily requiring the part of the county judge's salary therein provided for to be fixed by the fiscal court at the time therein designated, then it becomes plain that the 1932 amendment *488 to Section 1072 — enacted four years after Section 1732a-1 was enacted requiring salaries of county officers, including county judge, to be fixed "not later than the first Monday in May" in the year in which such other officers are elected — repealed by implication and thereby superseded so much of Section 1732a-2 as was inconsistent with the amendment. We, therefore, hold that the order made by the fiscal court on the 6th day of April, 1937, fixing the salary to be paid the county judge taking office on the first Monday in January, 1938, at $1,200 — divided as therein indicated supra — was regularly made as to each of such allowances, and which conclusion disposes of question (1) adversely to defendant's contention.
2. Question (2) is directly and specifically answered in the affirmative in our opinion in the case of Fox v. Lantrip,
This case is on all-fours with that one, except the instant plaintiffs occupy a more favorable attitude, in that the fiscal court of Laurel county refused to change its order made on April 6, 1937, on the motion of appellant made for that purpose on December 7, 1937; whilst in the Fox case the fiscal court did change its original order by increasing the salary therein provided for. *489
3. Section 978 of our Statutes, supra, provides for appeals "from all orders and judgments of the fiscal court or quarterly court in civil cases," in a long list of cases therein enumerated "and in all other cases allowed by law." Section 729 of our Civil Code of Practice prescribes that all such appeals must be prosecuted "within sixty days from the rendering of the judgment." The late cases of Akins v. Peak,
We also held in those cases that the sixty day limit for an appeal applied to one who later became a candidate, although at the time of the entry of the order by the fiscal court he had no other interest in the matter (inchoate or otherwise) than that of any other tax payer, the latter of whom — it was also held in those cases — could prosecute an appeal to the circuit court from such an order without requesting the fiscal court to rectify its wrong; but, perhaps, application should first be made by such tax payer to the county attorney to prosecute the appeal before himself doing so following the attorney's refusal. In this case plaintiff requested the fiscal court of Laurel county in writing to itself bring this action to obtain the relief sought by it, but which it refused, thereby giving plaintiff the right as a tax payer to maintain the action for and on behalf of himself and the other tax payers of the county.
It was insisted in the cases supra that the right of *490
appeal by the officers involved in them from the order of the fiscal court did not accrue until they acquired some special interest in the subject matter involved, which defendant insists did not occur until he was elected. But we have seen in the cases cited that the question was also involved in each of them and determined adversely to such contention. In the Caddell case, in answering the same contention we said that (at least presumptively) he knew (from the record of the order) the salary he would receive as fixed by the fiscal court should he be elected to the office and that [
Disposing of the same point adversely to defendant's contention we said in the Hensley case [
The cases supra, and many others that could be cited determined adversely to defendant all of the defenses he interposed to plaintiffs' action, except he insists that the judgment of the Laurel circuit court fixing his salary at $2,400 per year was and is an adjudication of his right to collect that amount and binding on the county and its tax payers. But before that argument may prevail the judgment of the circuit court must have been valid, i. e., that the court rendering it should possess jurisdiction of the subject matter and the parties. The order of the fiscal court from which defendant prosecuted his appeal to the circuit court — and in which its relied on judgment was rendered — was one that we have already seen the fiscal court could not entertain at the time it was made, and if it had sustained defendants' motion and increased his salary to the same amount adjudged by the circuit court, then the increase would have been invalid under our cases cited supra. Since, therefore, the fiscal court itself possessed no jurisdiction of the matter at the time defendant made his motion before it on December 7, 1937, it follows that the appellate or circuit court likewise had no jurisdiction, and which proposition is sustained by these cases: Davis v. Ward,
Wherefore, the judgment is reversed, with directions to set it aside and to render judgment in favor of plaintiff according to the prayer of the petition.
The Whole Court sitting, except Judge Rees, who is absent. *492