131 Ky. 373 | Ky. Ct. App. | 1909
Opinion1 op the Court by
Affirming.
This ease involves the question whether or not the act approved March 23, 1908 (Acts 1908, p. 116, c. 44), relating to jailers, applies to jailers holding office at the time it took effect. The appellant, who is the jailer of Butler county, requested the fiscal court ‘ ‘ to appropriate a sum sufficient to purchase the labor and material necessary to keep the court-house, public square, clerk’s offices, jail, and other public buildings at the county seat at Morgantown, Ky., including the jailer’s residence, in repair, and in a clean, comfortable, and presentable condition, and to heat and light the same. ’ ’ This it refused to do, upon the ground that it increased his compensation, and was therefore violative of section 161 of the Constitution. Thereupon an agreed case was made up and taken to the circuit court, where it was ruled that the act of 1908 increased the compensation of jailers, and hence
The act of March 23, 1908, amended section 3948 of the Kentucky Statutes, so that said section as amended reads in part: “The jailer of each county not having a population of seventy-five thousand or .more shall be superintendent of the public square, court-house, clerk’s offices, jail, stray pen and other public buildings at the seat of justice, and the fiscal court of each of said counties shall annually appropriate, of the county funds, a sum sufficient to purchase the labor and materials necessary to keep the public property aforesaid, including the jailer’s residence, if owned by the county, in repair and in clean, comfortable and presentable condition, and heat and light the same; said sum so appropriated to be expended by the jailer for the purposes aforesaid. * * * ” Before its amendment this section read in part, and so far as pertinent, as follows: “The jailer of each county shall be superintendent of the public square, court-house, clerk’s offices, jail, stray pen, and other public county buildings at the seat of justice. * * * ” It is very clear that, if this act changes by increasing the compensation of jailers, it can not, in view of the constitutional provision, apply to jailers in office at the time of its passage; so that the question to be decided is, would the request made by the jailer of Butler county, if granted, have increased his compensation within the meaning of the Constitution?
In respect to so much of the order as asked an appropriation to keep the public buildings and grounds “in a clean, comfortable, and presentable condition,” before the passage of the act of 1908 jailers under then existing laws were not entitled to any compensation for keeping “the court-house, public square,
It will be observed that the court in that case decided, first, that it was the duty of the jailer to take charge of and superintend the public buildings at the county seat without compensation, and, second, that the fiscal court had no authority to make an appropriation to the jailer for these services or to any other person for performing them in place of the jailer. As it was the duty of the jailer of Butler county, before this act became a law, to perform this service without compensation, it would manifestly be a violation of the section of the Constitution before quoted to allow him compensation for it. It would be paying him for doing something that he was required to do without pay when he was elected. In support of this proposition we consider the following authorities conclusive:
In Bright v. Stone, Auditor, 43 S. W. 207, 20 Ky. Law Rep. 817, it appears that after Bright was elected clerk of the Montgomery circuit court the Legislature enacted a law providing “that the clerks of the various circuit courts of this Commonwealth, other than as hereinafter provided, shall be entitled to, allowed and paid by this Commonwealth a fee of five
In Commonwealth v. Carter, 55 S. W. 701, 21 Ky. Law Rep. 1500, the court, citing with approval Bright v. Stone, Auditor, said: “ *Compensation,’ in its ordinary acceptation, applies not only to salaries, but to compensation by fees for specific services, and was so understood by the people whose votes made it a part of the organic law of the State. Moreover, there can be little doubt that it is as great an evil to permit officials to come to the Legislature for a change in
In Spaulding v. Thornbery, 103 S. W. 291, 31 Ky. Law Rep. 738, the fiscal court made an order allowing Spaulding as county attorney, 20 per cent of the amount of all back taxes, and taxes on property omitted from assessments, collected by him. In rejecting his claim upon the ground that it changed the compensation to which he was entitled when elected to office, this court said: £<It is the official duty of the county attorney, when so directed by the county or fiscal court, to institute or defend actions and proceedings of every kind before any of the courts of the Commonwealth in which the county is interested. This is a part of his official duty and is covered by the annual salary to be paid him.” To the same effect is Terrell v. Trimble County, 108 S. W. 848, 128 Ky. 519, 33 Ky. Law Rep. 364; Board of Education of Lexington v. Moore, 114 Ky. 640, 71 S. W. 621, 24 Ky. Law Rep. 1478; Jefferson County v. Waters, 114 Ky. 48, 70 S. W. 40, 24 Ky. Law Rep. 816.
In the light of these authorities, and many more that might be cited, we see no escape from the conclusion that if the fiscal court had made to the jailer
The third part of the request of the jailer asked a •sum; sufficient to heat and light the public buildings, including the jail and jailer’s residence. Under the law in force when the jailer was elected the fiscal court was not required, or even authorized or permitted, to make an appropriation to heat and light the jail ■or jailer’s residence. He was required to do this out of the fees of his office. It was his duty under the Kentucky Statutes (sections 2226, 2230) to keep the jail clean and comfortably warm, and to furnish prisoners with proper food and lodging during their confinement. If it cost the jailer $100 a year to heat and ■light the jail and jailer’s residence, and the fiscal ■court had made an appropriation of this amount for that purpose, it is plain that his compensation would have been increased $100. Indeed, if the- jailer had ■demanded of the court $100 for the purpose, we doubt if any one would question the right of the court to refuse the allowance, as it would be presenting to the jailer $100 to which he was not entitled when elected —in other words, it would be increasing his compensation to the extent of this sum. But the argument is made that the jailer did not ask this appropriation for his use and benefit, but only that the court appropriate a sum sufficient for the purpose named. This is .a distinction without a difference. As a practical
The jailer under the old statute, nor, indeed, under the new, is not charged with the duty of heating or
It is further suggested that in some counties in the State the fiscal court has erected new public buildings and has furnished them, including the jail and jailer’s residence, with modern heating and lighting equipment and fixtures, appropriating a sum sufficient to provide for the fixtures and the heat and light, and that under the reasoning of this opinion the acceptance of these improvements by the county officer would be a violation of the Constitution, and the county officers should be required to pay the cost thus saved to them in expenses. It is a sufficient answer to this to say that the features of the supposed case are not presented by this record. We are deciding only the case before us.
Briefly summed up, our conclusion is that the jailer of Butler county, for the purposes requested by him, could not invoke in his behalf the beneficial provisions of the act of 1908, by requiring the fiscal court to appropriate money to compensate him for care and attention to the public buildings, or to provide the jail or jailer’s residence with heat and' light; nor did the court err in refusing to appropriate, at the instance of the jailer, money to heat and light the clerk’s offices or other offices or rooms in the courthouse.
Wherefore, the judgment of the lower court is affirmed.