185 Ky. 238 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
Tbe sole question, wbiob this case presents for determination is whether a former Commonwealth’s attorney
A demurrer was filed to his petition, which was sustained by the trial court, and plaintiff declining to plead further, his petition was dismissed, which judgment he seeks to reverse by this appeal.
Section 98 of the Constitution provides for the compensation of Commonwealth’s attorneys and says in substance that they shall be paid a salary out of the state treasury as may be fixed by the legislature, not to exceed the sum of $500.00 per annum, and such' percentage of fines and forfeitures as may be fixed by law, providing, however, that no part of any fine or .forfeiture shall be paid until they shall be collected and paid into the state treasury. Pursuant to the authority therein conferred, the legislature enacted sections 124 and 125 of the Statutes, to-wit: A - - •
Section 125. “No Commonwealth’s attorney shall be paid, or receive as compensation for his services as such officer, for any one year, from the state treasury, more than four thousand dollars; and should the salary and per centum of fines and forfeitures allowed under this act to such officer in any district, for any year, exceed said sum of four thousand dollars, said excess shall not be paid to such officers; but the fiscal court or board of commissioners, in counties where, for county governmental purposes, a city is by law separated from the remainder of the .county of any county, may allow the Commonwealth’s attorney for that county such compensation as they see proper, to be paid as other claims against the county are paid.”
These sections of the statute, and the one referred to in the Constitution constitute the whole law of the Commonwealth relative to the compensation of Commonwealth’s attorneys.
The only case to which we have been cited, being the one upon which plaintiff relies to sustain his contention, is that of Hager, Auditor v. Franklin, 119 Ky. 542, and the response to the petition for rehearing following the opinion, beginning on page 550 of the same volume. The sole question involved in that case, and the only one upon which the court was authorized to judicially speak, was whether a Commonwealth’s attorney in office could apply to the payment of his salary his percentage of fines and forfeitures which, although assessed during a prior year, or even a prior term, were in fact collected and paid into the state treasury during the year in which he claimed the right to appropriate them.
The court construed the sections of the statute, supra, so as to permit the incumbent, iat the time the fines and
Aside from all this, a proper construction of the sections of the statute, supra, would seem to confine the right to appropriate the percentage of- fines and forfeitures to the year when they became available for that purpose, which is the one in which they were collected, subject to the inchoate right of the incumbent in office when they were assessed, if there was a deficiency in his salary for that year. To hold otherwise and construe the sections of the statute as contended for by plaintiff would result in great confusion and uncertainty. His contention is no more nor no less than that the percentage of fines and forfeitures appropriated to the salary of Commonwealth Attorneys constitute a perpetual Commonwealth Attorney’s fund, in which neither the Commonwealth nor any one else has an interest, and that any surplus in such fund at any time from the creation of the office until it shall have been abolished may be appropriated by any prior incumbent in the office whose fees did not reach the maximum amount allowed by law. How, may we ask, would any two or more prior Commonwealth attorneys distribute any surplus fund which might have accumulated during succeeding terms when neither of them rendered any service in producing such surplus fund? One would have as much.right to its appropriation to satisfy his deficit in salary as the other, and the Auditor would be converted into a mere custodian of the fund and bookkeeper for the various Commonwealth’s attorneys as long as that office existed if the payment of the salary and the compensation of the officer remained the same as is now provided by law. Furthermore, to so hold would tend to remove the incentive for industriously discharging the duties of the office which the legislature, as well as the constitutional convention, had in mind when it was provided that Commonwealth attorneys should be . paid in part by percentages' of fines or forfeitures recovéred. That incentive no doubt was to encourage the vigilant prosecution and apprehension of offenders. If ah incumbent knows "that any deficit in his salary growing out of a lack of assessment and collection of fines and forfeitures may be supplemented some time in the future by a more industrious and vigorous officer earning a surplus, the very purpose of the law'in allowing "such percentage.-would be
This being the view of the trial court, its judgment is affirmed.