119 Ky. 542 | Ky. Ct. App. | 1904
Lead Opinion
Opinion of the court by
Affirming.
The appellee, Robert B. Franklin, ivas. the Commonwealth’s attorney of the Fourteenth Judicial District for the term preceding the first Monday in January, 1904. At the last November election, he was re-elected, and qualified on the first Monday in January, 1904. For the year of 1903, he was paid $4,000 out of the treasury, made up of the $500 fixed by the statute, and his per cent, of fines recovered and paid into the State treasury. At the June term, 1903, of the Bourbon circuit court, a judgment was rendered imposing a fine of $1,500 on the Peacock Distillery Company. At the December term of the same 'year of the same court, a judgment was rendered against the Bluegrass Traction Company, imposing a fine of $500'. An appeal from the first-named judgment was prosecuted to the Court of Appeals, and there affirmed, and the judgment wras paid into the treasury March 29, 1904. The judgment against the Bluegrass Traction Company was paid into the State treasury in January,' 1904. The appellee, Franklin, has been paid in monthly installments the parts of the $500 salary fixed by the statute. He now claims he is entitled to 50 per cent, of the fines assessed against the Peacock Distillery Company and the
Section 98 of the Constitution: “The compensation of the Commonwealth’s attorney shall be by salary and such percentage of fines and forfeitures as may be fixed by law, and such salary shall be uniform in so far as the same shall be paid out of the State treasury, and not to exceed the sum of five hundred dollars per annum; but any county may make additional compensation, to be paid by said county. Should any percentage of fines and forfeitures be allowed by law, it shall not be paid except upon such proportion of the fines and forfeitures as have been collected and paid into the State treasury, and not until so collected and paid.”
Section 124, Kentucky Statutes, 1899: “The Common-. wealth’s attorney shall receive from the State treasury fifty per centum of all judgments for fines and forfeitures rendered in favor of the Commonwealth in the several courts of his district, and this shall be in lieu of all taxed fees and perquisites; but he shall not be paid or receive any part of said per. centum from the treasury except upon such proportion of the fines and forfeitures as have been collected "and paid into the State treasury, and not until so collected and paid, unless that portion belonging to the Commonwealth shall be remitted by the Governor.”
Section 125, Kentucky Statutes, 1899: “No Commonwealth’s attorney shall be paid, or receive as compensation ■for his services as such officer, for any one year, from the
The lower court adjudged that the appellee was entitled to the 50 per centum of the fines. It is urged for reversal (1) that as the judgments were rendered in 1903, and the appellee having received $4,000 as salary for that year, he is not entitled to 50 per cent, of the fines paid into the treasury by virtue of the judgment; (2) that the per centum of fines, the same as the salary fixed by law, should be paid monthly out of the treasury.
It will be observed that, under section 98 of the Constitution, the salary of Commonwealth’s attorneys should be fixed by law, and that it shall be uniform in so far as it is paid out of the treasury, and that it shall not exceed the sum of $500 per annum. It was also contemplated that, in addition to the sum so limited to be paid out of the treasury, the General Assembly should provide by law that they are to have a percentage of the fines and forfeitures collected and paid into the treasury. Section 124, Kentucky Statutes, 1899, provides that they shall receive from the Slate treasury 50 per cent, of all fines and forfeitures, but that the treasurer shall not pay that per centum, “except upon such proportion of the fines and forfeitures as have been collected and paid into the State treasury, . , . un
The conclusion the court has reached is that the Commonwealth’s attorney is entitled to his per centum of the fines and forfeitures when collected and paid into the treasury. This conclusion is in harmony with the spirit of the statute, for the amount , of the Commonwealth’s attorney’s salary depends upon a contingency. If an event happens in the early part of the year which brings a sum to make up his salary, he should have it, because it is possible that the contingency might not happen which would give him anything in addition to the $500, and, if it did happen, it might not be until the last of the year. Chinn v. Shackelford, 117 Ky., 700, 78 S. W., 908,25 Ky. Law Rep., 1813, is in harmony
The judgment is affirmed.
Rehearing
Extended opinion
As the law stood previous to the adoption of the present Constitution, Commonwealth attorneys were entitled to 30 per cent, of the judgment for fines and forfeitures, and it was held that, after judgment was rendered, the Commonwealth attorney had a vested interest in so much of the judgment as was allowed him by law. Stone v. Riddell, 68 Ky., 349; Berry v. Sheehan, 87 Ky., 434, 10 R., 426, 9 S. W., 286. As the law then stood, some abuses crept in, and so much of the judgment as belonged to ■ the attorney was collected, and then little attention was paid to the collection of that part of the judgment belonging to the State. To remedy this defect, it was provided in section 98 of the Constitution as to Commonwealth attorneys that, “should any percentage of fines and forfeitures be allowed by law, it shall not be paid except upon suc-h proportion of the fines and forfeitures as have been collected and paid into the State treasury, and not until so collected and paid.” Pursuant to this provision of the Constitution is section 124, Kentucky Statutes, 1899, which gives the Commonwealth attorney 50 per cent, of fines and forfeitures, but provides that he shall not receive any part thereof from the treasury except upon such proportion of the fines and forfeitures as have been collected and paid into the State treasury, and not until so collected and paid. Section 125, Kentucky Statutes, 1899, limits the compensation of the Commonwealth attorney from the State treasury to $4,000. The purpose of the
It will be observed that the State gives 50 per cent, of the judgments to the Commonwealth attorney, 25 per cent, to the county attorney, and 10 per cent, to the clerk, thus making So per cent, and leaving only 15 per cent, to the State. This shows that it is not the legislative policy to make money for the State out of these prosecutions, but that the purpose of the statutes is to collect the judgments mat may be rendered so that the punishments inflicted will be enforced, and that this may be done out of the funds thus brought into the treasury.
The salary of the Commonwealth attorney is limited to $4,000, and he can not receive out of the treasury in any. one year more than this amount. But it is not the purpose of the statute to cut him down below $4,000 in any one year if in this year sufficient fines and forfeitures are paid into the treasury to bring him up to that amount. In other words, the Commonwealth attorney who does the
The opinion heretofore delivered is extended as above indicated, and the petition for rehearing is overruled.