115 Ky. 160 | Ky. Ct. App. | 1903
Opinion op the court by
Reversing.
By the act of September 30, 1892 (see Ky. St., section 2740), Paducah was assigned to cities of the third class. At the regular election in November, 1901, it elected various city officers, as provided by the laws governing third class cities. At this election appellant Gilbert was elected prosecuting attorney of the police court, and appellant Crow was elected marshal, each for a term of four years. Kentucky Státutes, sections 3369, 3338. Each of them qualified and entered upon the discharge of his duties. By section 3373, Kentucky Statutes, the prosecuting attorney of the police court receives as his compensation 30 per cent, of all fines and forfeitures recovered in the court. By section 3349, the marshal receives such compensation in the way of salary, commissions, and fees as are prescribed in the statute or by ordinance, which shall not be changed during his term of office. While they were discharging their duties, the General Assembly, by an act approved March 21, 1902, struck out Paducah from the list of cities of the third class, and added it to the list of cities of the ■second class; but the act is silent as to how the transfer is to take effect, or what shall become of the officers of the city elected and holding under the charter as a third-class
Section 156 of the Constitution, among other things, provides: “The General Assembly shall assign the cities and towns of the Commonwealth to the classes to which they respectively belong and change assignments made as the population of said cities and towns may increase or decrease, and in the .absence of other satisfactory information as to their population, shall be governed by the last preceding federal census in so doing; but no city or town shall be transferred from one class to another, except in pursuance of a law previously ’enacted .and providing -therefor.” It is insisted that the act of March 21, 1902, is invalid, under this provision, for the reason that no law had been previously enacted providing for the transfer of cities from
Similar provisions were attempted to be made as to other cities and towns by sections 3661, 366,2; but so much of these -sections as authorizes the court to assign or transfer a town or city from one class to another was held unconstitutional in Jernigan v. City of Madisonville, 102 Ky., 313, 19 R., 1412, 43 S. W., 448. Yet in that case the court said: “So much of said sections, however, as provide means for taking the census or determining the population of any such city or town are constitutional and valid, and when the population of a town is ascertained, pursuant to the provisions of said sections, the Legislature will be authorized to make the proper transfer of such town or.city.” The. same rule must necessarily be applied to section 3264. A census was taken by the city of Paducali, showing that it had the required population, and an ordinance of the city was .then passed, setting forth the population of the city, and how ascertained, the class it was in, and the class in which it was entitled to be; and, these facts being laid before the Legislature, the act in question was passed. We .
We are therefore of opinion that, construing the acts together, as must be done, the same rule must be followed now in the case of a city coming into the second class as was applied to the cities originally in that class when the
Judgment reversed, and cause remanded for further proceedings consistent herewith.