Matthews v. Allen
360 S.W.2d 135
Ky. Ct. App.
1962
Check Treatment

*1 135 trary. pointed Corporation v. out Line et Barge al. Union repeated imposition of de an income is not Marcum, supra, not be tax and will pendent impairs upon appellants finding tax here. The contention that since subject “deriv appellants’ navigation they free such tax if rights to the case. income from in that activities or other sources the Ohio River answered 141.040) an in addition, this state”. de point (KRS out As arising profits Corpora Barge tax termined Union Line come is a on the tax 130, Marcum, appellants’ et al. Ky., business activities v. S.W.2d from 360 day decided, consequently use of tax the commercial activities sufficiently territory appellants Ken lying waters in this within the state are Steamer, tucky. 279 Shannon v. substantial Streckfus constitute a basis for taxa 649, Towing 833; Higman 131 tion. S.W.2d 628; Cocreham, D.C., F.Supp. Co. v. 70 is affirmed. 165, Lowe, & U.S. 38 S. Peck v. 247 Co. 432,

Ct. 62 L.Ed. Nor does such 1049. inter

tax constitute a forbidden burden on Gas Memphis

state commerce. Natural 857, Beeler, 649,

Co. v. U.S. 62 S.Ct. 1090; Port L.Ed. Northwestern States Company

land Cement Minne v. State of

sota, 357, 450, U.S. 3 L.Ed.2d S.Ct.

421. “duty tonnage” Nor is it a for 10, bidden section Fed article MATTHEWS, Jr., Robert F. Commissioner of Lowe, eral Constitution. Peck & Co. v. Finance, Kentucky, Commonwealth of 1049; 165, 432, 247 U.S. Appellant, 38 S.Ct. L.Ed. Commonwealth v. Packet Baltimore Steam Company, 55, 193 Va. 68 S.E.2d 137. ALLEN, Judge, Charles M. 30th Judi District, al., Appellees. cial Apparently appellants contest the do not right of a state tax the net income Appeals Kentucky. corpora operations foreign interstate aof 22, June 1962. properly apportioned tion if ac local Concurring Opinion July 17, recognized right tivities. This Company Publishing confirmed in West Rehearing on Denial Modified 1378, 823, v. McColgan, 328 U.S. S.Ct. 5, Oct. 1603; Port 90 L.Ed. Northwestern States Company land Cement State of Minne

sota, 358 U.S. 3 L.Ed.2d 79 S.Ct.

421; Company Higman Towing v. Cocre Cir., D.C., F.Supp.

ham, affirmed 5 789; Lines,

165 F.2d Freight Moore Motor Taxation, Department

Inc. v. Wisconsin

14 Wis. N.W.2d they

Appellants’ contention that this state” can “doing

are not business in

not be sustained. Under the statement of Co., Allphin Ky., River

facts Ohio expressed opin we had

ion, the facts shown this record

support judge’s finding the con the trial *2 special

tional such commis- each services $2,400 per paid the sioner is sum Treasury, annum from the State which salary Judge. in addition his Circuit as In the any Judge perform du- event fails to special ties him assigned to as commission- er, Appeals Act the Court of directs forthwith him from remove special appellees are commissioner. The Judges Circuit in a who obtained declaratory judgment action which directed Matthews, appellant, Jr., Robert F. Finance, Commissioner issue neces- sary payment proper warrants for at the by time of salary the additional authorized the Act. Attorney General has conceded

that there is violation 235 of no the Constitution increase in prohibiting an public salaries their during officers terms. His concession such is based cases (1910), as Cammack v. James Ky. 582, 223, 129 S.W. and Coleman 133, Ky. Hurst (1929), 226 11 S.W.2d where added constitu Gen., within Atty. Breckinridge, B. Joe John imposition tional limits allowed for the Gen., appellant. Atty. Nagle, Asst. of added In duties. Barker v. Barnes Louisville, Stites, Ben B. Sr., W. James (1952), Ky., we concluded Frankfort, appellees. Fowler, highest given year officer in a became MILLIKEN, applicable Judge. year. standard him for that (Commonwealth $7,200 Attorney be at before the Court brings action This came $8,400.) a Circuit To at an Act of One provisions gether, by Spe these decisions were found House Assembly, known General as Prewitt, cial Judge, Allen Hon. to form is to become effective Bill No. which acceptable freeing basis for practical 1, 1962, effect in all July $8,400 category $8,- Judges from raises special making them commissioners of dol- year $10,800, over jurisdiction, Court with State-wide in Section of the stated lar limit thus elevating them to cate stitution. gory officers whose duties coexten are However, sive the State. it must be simple. with One noted that none of these decisions is direct special Judges are constituted All Circuit payment authority for the Appeals, the Court of commissioners constitutional limit for the such excess perform directed to fact, principal office held. Coleman Ap- required by the Court of of them Hurst, 501, 11 performed S.W.2d These to be peals. duties are Ky. 477, City German, of Louisville places, coextensive with the times and such that an officer’s required held Commonwealth, limit the constitutional could not exceed re- addi- for these Court. ($7,- held positions Thousand Hundred Dollars gardless number Two * * *” compels this, candor Regardless him. 200). ap- questions: of indirect Is this sort It will be that Section 246 observed afford Circuit proach necessary in order to *3 puts merely compensation; not fix the it adequate salary Judges an under paid a limit on the can be “dollars” that provi- salary stitution? Is limitation stating they are “dollars” without whether Constitu- (Section sion our State 246) of power of “dollars” purchasing or of formula? tion a mere lifeless mathematical significant current It is also value. salary in- the 1949 insist that substantial amendment Counsel Section modify adequate provision the mone- granted pay within of creases Section tary present any way, 133 in creates limits of the thus the need of provision harmonizing provi- two if the various limitations sions accomplished, than as as a scale values rather can be truth- treated of fully limitations, principle practically, by construing of only nominal “dollar” specific interpretation permit adap- monetary provisions which would a scale words, changing of tion of the relative values. limitations to other the must power adequate values assume that purchasing of was an living, “dollar” Judges and the cost of Circuit at the time the vital, not adopted thus amendment making the Constitution thus 1949 and initially formula. provisions. formal —not a mere mathematical harmonize the two support There is we But much to this view as when the nominal dollar be- shall comes see. purchasing power such reduced in relation to the no living cost of that it point It well to note at this longer recipient enables its maintain there are two constitutional living standard of afforded the same pertaining to the inadequate it is necessarily Judges: within meaning 133. The can truthfully only sections provides: harmonized Section 133 of the Constitution through they equating “dollars” with what “The of the Circuit Court do in place. will the market shall, times, at stated receive for their adequate interpolate We like to should services here that adequacy law, is not a equal govern- normal standard be fixed which shall be State, throughout uniform officers may receive either who too much or paid far as the same shall be too out little for the services Treasury.” Ordinarily, rendered. the State public compensation quan- on a 246, as amended in now 1949 and Am.Jur., tum meruit basis. 43 p. Sec. operative, provides: adequate compensa- The standard * * * public officer shall (and “No directed in Section tion also Sec- compensation per annum 112) receive of the Constitution finds no coun- * * * any terpart any official services section other the Consti- following speculation amount excess of tution which raises whether jurisdiction judges sums: Officers whose or the salaries of ever were intended scope coextensive with the Com- to come within of Section 246 * * * $5,000 salary and Judges monwealth (the limitation) before Ap- specific Commissioners the Court of amendment in 1949 to include the peals, ($12,- separate Twelve Thousand Dollars In view adequate Courts. 000); Judges, Eight pay 133) Thou- sections (112 covering the peculiar Four Hundred and the ($8,400); judiciary sand Dollars wording of public officers, all other we are original Seven inclined wonder if the latter section was not in- (Norman Since the Gold Clause case tended solely to cover the Executive De- Co.), Baltimore & O. R. 294 U.S. 240 partment government. seq., L.Ed. the value S.Ct. power the dollar in purchasing Be that as it may, the inclusion of a controlling criterion rather than its of Courts in the 1949 amendment to Section ficial gold payment content so far as 246 was done in order the Courts to afford bonds and obligations, bearing pro similar just adequate or compensation when visions requiring payment in coin gold origi- was thought the limitation of equal United States to the standard payment nal precluded weight and fineness as of the date of the na- interesting it. to find that loan, is concerned. *4 in of And the realm judges trial average tional of damage said, law considering we have “In the compared in to $9,487 1949 was as previous a guide award as a determin for Now in limit inserted Section 246. ing propriety verdict, the present of a the the $15,700. In average the is national amount purposes comparison, for must of national Supreme case of the State Courts adjusted be compensate so as to for inter compared $11,744 as average in 1949 was vening changes money. in the value of 246. in to the limit inserted Recognition the increased liv cost of Su- (Now average the national State ing impaired or the purchase power preme $19,100.) Courts is dollar must necessity be considered. The value of the be- sum must be awarded background to We call attention dollars, measured not by were the number averages national cause it indicates but comparative its obtaining lim- use in the constitutional setting in considered Penney necessities of life.” in- Com not C. and in 1949 its J. pany v. Livingston, Ky., 271 sup- S.W.2d 906. or the founding fathers tention The Wars, effects of a Korean two World to Sec- amendment 1949 porters of the War and a Cold many War make former public officers doom 1949 to tion in conceptions perti of a waning longer dollar no a state financial strapped to the many nent in activity. fields With produce. easily can value so dollar by the filled to judgeships circuit all Legislature has done Let see what the us six November, 1963, for full in electorate as in the instant case summarized in the constitutional practicable a terms year appellees: brief of the attrac- more making means cap- if Price Index for be assured “The Consumers’ financially had to tive taking as the base to retained were March judges trial able at In figure be attracted. stands 128.9. other talent to judicial new increasing- buy becoming words, what takes $128.90 that it is us seems in a bought in could be necessary $100.00 to construe ly come, therefore, Assem- the ratio— the General We enable will way which X as is to 8400. Judges, is to 100 salaries of 128.9 keep bly to 10,827.60. equal X offi- all constitutional situation would matter and for purchasing by House provided in .raise currently geared to cers, simply compared it be considered (if Bill the dollar power in and not as the crea- This is not a raise power in 1949. a purchasing job) $10,800.00. judiciary a new is to case tion of in the process precise words, provisions legislature has adequate pay In other because ‘adequate any interpreted compensation’ Constitution, case and in considera- exactly today figure at almost possibly other differentials tax if necessary purchasing to maintain would be arrived prove might factors depreciated currency possible power not living standards made proper as the limit on dollar income in 1949. taken salaries.” by the also judiciary factors care other legislative a clear instance of This is adequate establishing the considered responsibility. directed Sections compen- adequate the determiner 133 of the Constitution. power Legislature sation require This will consistency Court balance imposed added to fulfill the rational 246 and reach the with Section legislation, instant by the “adequate compensation” them conclusion that uphold sal- payment of the additional requires a reconsideration of Section ary upon herein exactly this the basis discussed. special courts have done Two Sections construing the affirmed. light 133 in the (forbidding change dur- term). See, Pryor, 103 Stone v. MONTGOMERY, J., sitting. Sims, 1053, 1136; S.W. Perkins v. Ky., result And the same BIRD, Judge (concurring). regular

was reached Oates, Wright majority *5 Ky., 314 The holds that House interpretation legislative making Special Appellate The Bill a Com- largely purchasing power regular as related to each is judge, missioner circuit only is a put rational with I agree construction to valid. I conclusion but this section, only on the is accept the construc- col- reasoning cannot my tion that accords “living” with a reaching rather leagues conclusion. than a dead Particularly Constitution. majority The does all but eradi- to has the Constitution directed which cate ink with Section 246 “adequate compensation.” With Kentucky is Constitution I con- written. guide it is clear that Section 246 must be my expressed opin- to often tinue adhere to interpreted as a principle constitutional prerogative peo- ion that this is by not as statute. As said ple. (later Chief Justice) Vinson Nueslin District of Columbia, App.D.C. 85, I Bill As view House the General * * “* F.2d we must regard Assembly 690: separate three did and distinct generic as more First, created sixty-five acts. of- it least organic and more than other law with wit, Appellate to Court fices, Commission- deal.” And by as said Second, ers. filled each office with Court in Meredith v. Kauffman, Third, judge. regular circuit it set a uni- 395, 169 S.W.2d 37: the new form commissioners. “The Constitution concerned with is Act, regular I construe the each cir- substance not with form and separate hold judge two dis- cuit is framers did not intend forbid strictly tinct The duties of offices. one application pro-

a common-sense of its appellate judge which the is to be visions.” per The annum. duties oth- $2400.00 pertain generally er office matters aris- The net result of our consideration original jurisdiction a court salary provisions is paid not exceeding which he tois $8400.- interpreted 246 of the Constitution per (Section Kentucky annum Con- periodically applied all constitu payment which stitution) the au- is now equate in terms which will tional officers KRS 64.498. by thorized purchasing power salaries with current Kentucky 235 of the dollar in 1949 when Section 246 Under Section adopted. Furthermore, of a can- in the instance stitution officer changed during not be his term of office. Bobby HALL, Hall’s Wrecker d/b/a Here, however, new completely is a there Service, al., Appellants, by and the duties created statute made thereunto the statute attached are coextensive with the Commonwealth. CLARK, Appellee. Avanell regular new duties are so unrelated to Appeals Kentucky. Court of judge of a circuit May 25, 1962. unnecessary try escape limi provided tations Rehearing Denied Oct. judge judge. circuit has no extra duties as job wholly un given He another ad

related and for which he to receive compensation. con

ditional is no There Legislature restriction

stitutional Hurst, 226

to authorize Coleman it. See

Ky. 501, 133; v. Cam James mack, Ky. 223, 582. Whether 129 S.W.

as an officer whose duties are coextensive

with Commonwealth a Commis or as Appeals,

sioner both of specifically

which are in Section mentioned Legislature properly could fix aggregate amount would $12,000.00, provided

not exceed the limit *6 Legis done This was and, majority opinion,

lature without

the constitutional bars would not be torn There is no in the matter

asunder. need us do violence to 246 with

before adequate pay dissertation. question considered the com-

I have my It conclusion that

patibility. long Special assigned Commissioner

as the appealed his court the of-

cases own Special Appel- Judge and

fices incompatible. are not

late Commissioner wording of Section makes it can ag- me that no event clear to Pikeville, Harry Campbell, appel- C. of the Circuit gregate lants. $12,000.- Special Commissioner exceed Ramsey, Pikeville, appel- & Stratton lee. act my conclusion must limi- upheld but that the constitutional MILLIKEN, Judge. preserved. major- should tations premise that no basic respect sanctity factual is- On ity developed by the recorded evidence writ and for that reason sue fundamental Board, trial do, court concluded I agree. however, concur in before I cannot by the was not bound refusal of the basic conclusion.