McCracken County v. Reed, 125 Ky. 420

McCracken County v. Reed

125 Ky. 420 | Ky. Ct. App. | 1907

*421Opinion op the Court by

Judge Hobson

Reversing.

At the last General Assembly the following act was passed:

“An act authorizing any county or subdivision thereof containing a city of the second class and in which no court of continuous session is authorized by law, to supplement the salary of the judge of the circuit court district in which said county is located.

“Be it enacted by the General Assembly of the commonwealth of Kentucky:

“Section 1. That when any county in this commonwealth in which there is located a city of the second class may have a population of not less than thirty thousand and not more than fifty thousand, and no court of continuous session is authorized therein, such county, by its board of magistrates, fiscal court or commissioners, and said city, by its general council, either is, or both are, hereby authorized and empowered to allow and pay to the judge of the circuit court district in which said county is located such annual compensation in addition to that paid by the State as they may deem just and proper, not exceeding, however, the sum of two thousand dollars per annum.

“Sec. 2. Whenever such additional salary is allowed, provision for its payment in monthly installments shall be made as salaries of other officers of such county or city are provided for.” See Acts 1906, p. 443, c. 126.

Paducah is a city of the second class. McCracken county in which it is situated has a population of not less than 30,000 nor more than 50,000, and no *422court of continuous session is authorized there. The appellee, W. My Reed, is judge of the circuit court. He was elected before the act above referred to was passed. After it was passed the McCracken fiscal court made an order allowing him the sum of $1,200 a year, to be paid monthly, in addition to the salary paid by the State of Kentucky, commencing on April 1, 1908. An appeal was taken from the order of the fiscal court to the circuit court for the purpose of testing the constitutionality of the allowance. The circuit court,- a special judge sitting, sustained the action of the fiscal court, and from this judgment the appeal before us is prosecuted.

Section 235 of the Constitution is as follows: ‘ ‘ The salaries, of public officers shall not be changed during the’ terms for which they were elected; but it shall be the duty of the General Assembly to regulate, by a general law, *in- what eases and what deductions shall be made for neglect of official duties. This section shall apply to members of the G-ene-ral Assembly also.” It is conceded that the Legislature cannot under this provision change the salary, of a public officer during the term, for which he was elected; but it is insisted that, as the Legislature has all power except such as is expressly or by fair implication! denied it by the Constitution, the Legislature may authorize the. authorities of a county or a city to pay a circuit judge in its discretion an additional coin-pensation, if they deem it right to do so; that under such circumstances the compensation of a circuit judge is not changed within the meaning of the Constitution: ¥e ■ cannot concur in this view. The counties of the State are but divisions for governmental purposes. The county governments are but arms of the State. The same is true of the city *423governments. What the Legislature cannot do directly it cannot do indirectly through the agency of one of its creations. The purpose of the constitutional provision was to secure to the public officers a certain fixed compensation, so that they would be independent of the Legislature. It was also designed to prevent official power and position from being used by the-officer to increase the emoluments of the offices after he secured the office.. The constitutional provision would be rendered entirely nugatory, and the door would be opened to every evil which the Constitution intended to prevent, if the Legislature, instead of increasing directly the salaries of public officials after their election, could authorize the fiscal courts or other municipal authorities to make such increase. In fact, this construction of the Constitution would tend to increase the evils which this provision of the Constitution w'as intended to prevent. The act is not invalid. It is simply inoperative as to circuit judges elected before its enactment or before the annual additional compensation provided for by the act is fixed by the county or city authorities. The county authorities, or the general council of a city, may make an allowance to the circuit judge for an annual additional compensation to be operative after the term of the present incumbent, but his compensation during the term for which he has been elected cannot be changed during his term. We have in a number of cases applied this principle to county judges. Marion County v. Kelly, 112 Ky. 815, 56 S. W. 815, 22 Ky. Law Rep. 174; Butler County v. James (Ky.) 76 S. W. 402, 25 Ky. Law Rep. 801; McNew v. Commonwealth, 123 Ky. 115, 93 S. W. 1047, 29 Ky. Law Rep. 540; McNew v. Nicholas County (Ky.) 125 Ky. —, 100 S. W. 324, 30 Ky. Law Rep. *4241147. We have also applied- the same principal to other officers. Bright v. Stone, 43 S. W. 207, 20 Ky. Law Rep. 817.

Judgment reversed, and cause remanded for further proceedings consistent herewith.