172 S.W.2d 651 | Ky. Ct. App. | 1943
Affirming.
In April, 1941, the fiscal court of Cumberland County entered an order fixing the compensation of county officers for the four-year term beginning January 1, 1942. *738 This order fixed the compensation of the jailer "for janitor service" at $300 per year.
At the October session 1942 of the fiscal court the appellant filed an itemized statement showing that it was necessary to expend $75 per month to keep the courthouse and other public buildings in a clean and comfortable condition and moved the court to make an appropriation accordingly for the months of November and December, 1942 and for the twelve months of 1943.
The fiscal court took no action on the claim. The county judge certified that the fiscal court refused to act on the claim and the claim, with this certification, was filed in the circuit court as a purported appeal from the action of the fiscal court. At the same time a petition in equity was filed seeking judgment for $75 per month for the months of November and December, 1942 and further seeking mandatory relief requiring the fiscal court to make an allowance of $75 per month for each month of the year, 1943.
The fiscal court filed demurrer but no action was taken thereon. The first paragraph of the answer was a general denial. The second paragraph pleaded that the fixing of the jailer's compensation in April, 1942 prevented the fiscal court from changing the salary during the appellant's term. The appellant's demurrer to the second paragraph was overruled and upon his failure to plead further the proceedings were dismissed. This appeal follows.
Since we have determined that the trial court was correct in dismissing the proceedings on the merits, we will indulge in no discussion of the procedure further than to say that it is doubtful, to say the least, that it was appropriate.
By virtue of sections 161 and 235 of the Constitution of Kentucky the salary or compensation of a public officer may not be changed during the term for which he was elected. We have frequently held that it is the duty of the fiscal court to fix the compensation of county officers before election and that in case of failure so to do the compensation may be fixed afterwards. Roberts v. Walker,
It is the contention of the appellant, however, that a different rule applies as to the compensation of the jailer for janitor service in view of the terms of section 3948 of the Kentucky Statutes (now KRS
It is insisted that by reason of this statute the fiscal court must make an annual appropriation for janitor service and that it was without authority to fix this compensation for the four-year term by the order of April, 1941. We find, however, that in Brummal v. Jackson,
To construe section 3948 as requiring the fiscal court to fix this compensation of the jailer annually would bring the section squarely in conflict with the sections of the Constitution mentioned above. The statute, in addition to authorizing compensation of the jailer for janitor service, entrusts him with the expenditure of such sums as are necessary to keep the public buildings in repair and to heat and light them, Brummal v. Jackson, supra, and such sums as are required to fulfill the purpose of the act, over and above the jailer's compensation for janitor service, should be appropriated annually by the fiscal court but the jailer's compensation should be fixed in advance of his election and, being fixed, cannot be changed during his term.
In Wolfe County v. Tolson,
It may be argued that where this compensation is fixed, as it was here, before the jailer is elected (and possibly even before he was a candidate), he is deprived of any remedy if he may proceed only by appeal since such an appeal can only be taken within sixty days from the entry of the order. This question was disposed of in Caddell v. Fiscal Court of Whitley County,
It is our conclusion that the fiscal court had authority to fix the appellant's compensation by the order of April, 1941 and that, having fixed it, the only remedy was by an appeal therefrom. Wolfe County v. Tolson, supra; Caddell v. Fiscal Court of Whitley County, supra. In the latter case it is pointed out that section 729 of the Civil Code of Practice requires such an appeal to be taken within sixty days. The trial court correctly dismissed the proceedings.
Affirmed.