128 Ky. 533 | Ky. Ct. App. | 1908
Lead Opinion
Affirming.
W. W. Spalding was elected county attorney of Marion county in November, 1905. He entered upon tbe discharge of his duties as county attorney in January, 1906. On February 27, 1906, the fiscal court made the following order: “For the consideration hereinafter named, it shall be the duty of William W. Spalding, county attorney of Marion county, Kentucky, to diligently prosecute the collection of all back taxes, interest on taxes, taxes - on property omitted from assessment, judgments, or other moneys due Marion county, also all claims, of whatsoever kind or character, that Marion county may have against any individual, corporation, or association, including all moneys now. held in trust for said county, or which may have become the property of the county by reversion or remainder; but this is not to include such delinquent taxes as are now in the hands of the ex-sheriffs of Marion county and which it is their duty to collect. In the prosecution of any of the claims hereinbefore mentioned, if the said county attorney shall deem it necessary or advisable to institute suit thereon, he shall have full power to do so in the name of Marion county, Kentucky, and to prosecute such actions to final determination. For his services in collecting any of the said claims or demands here-in-before-mentioned, in whole or in part, that said Spalding shall be entitled to 20 per cent, of the amount collected by him, or paid to any officer of Marion, county as a result of the efforts of the said Spaldingunder the provisions of this.order, and this commission of 20 per cent shall operate upon all taxes that
Section 161 of the Constitution forbids that the compensation of any county officer be changed after his election or appointment or during, his term of office. Under this provision it has been held- that it is the duty of the fiscal court to fix the salaries of the county judge, county attorney, and county superintendent, and that, when once the salary is fixed, it can not be changed during the term of the incumbent; but that, where the salary had not been fixed before his election, it may be fixed after his election, and that, when once, fixed, it -must remain as fixed. Marion Fiscal Court v. Kelly, 56 S. W. 815, 112 Ky. 831, 22
Sections 126 and 127, Ky. Stats., 1903, thus define the duties of the county attorney as to county matters:
“Sec. 123. Each county attorney shall attend all county and fiscal courts held in his county and conduct all cases and business in said court touching the rights or interests of the county and oppose the allowance of all claims not legally presented or unjust, and give the court and the several county officers legal advice concerning any county business within the jurisdiction of any of them.
“Sec. 127. He shall attend to the prosecution of all cases in his county in which- the Commonwealth or the county is interested; and, when so directed by the county or fiscal court, institute or defend, and conduct actions, motions and proceedings of every description, before any of the courts of this Commonwealth in which the county is interested, and shall in no instance take a- fee or act as counsel in any ease in opposition to the interests of the county.”
It is reasonably clear from these provisions of the statute that' the county attorney is to represent the county in its legal matters referred to therein, and that for his services in thus representing the county he shall be allowed annually by the fiscal court a reasonable salary to be paid out of the county-levy. The statute does not contemplate that he is to represent the county upon a contingent fee to be paid out of the county money. ' Contingent fees are always larger than certain fees. It is the purpose of. the statute to secure counsel for the county by giving him all the business of the county at less than such services might be óbtáined upon a contract for. contingent fees.
"We therefore conclude that the order of February 27th is not such an arrangment as the statute contemplates or as the fiscal court had power to make with the county attorney. It is true the fiscal court might appoint a collector of back taxes, but the county attorney can not be also the back-tax collector, for it is a part of his duty as county attorney to attend the fiscal court and protect it from the back-tax collector, if necessary, which would be impracticable if he were himself the back-tax collector. It is the official duty of the county attorney, when so directed by the county or fiscal court, to institute or defend actions and proceedings of every kind before any of the courts of the Commonwealth in which the county is interested. This is a part of his official duty, and is covered by the
Judgment affirmed.
Rehearing
Extended Opinion by Judge Hobson on Petition eoe Rehearing, March 24,1908.
Since the opinion was delivered, oral argument has been had upon the petition for rehearing, and we have again carefully considered the question raised. It is insisted for the appellant that the annual salary provided by section 132, Ky. Stats., 1903, covers only the services required of the county attorney absolutely by the preceding sections without any direction from the county or fiscal court, but that it does not include services which are only to be rendered .by him when directed by the county or fiscal court. We can not concur in this construction of the’ statute.. Sections 126, 127, 128, 129, 130 and 131 prescribe the duties of the county attorney; and section. 132, which immediately follows, prescribes his compensation. We think this must necessarily include his compensation for all services required of him by the preceding sections, where other compensation is not allowed therefor. We can not see how it can include part of the services rendered under section 127, and not include the others; there being nothing in'the statute to justify the court in making a distinction. All the services rendered under section 127'must stand alike; there being nothing in the statute to show the contrary. Not only so, but the words of the statute refute the idea that an employment of the county attorney is contemplated by
It is also insisted for appellant that -the. annual salary provided for. by section 132 need not necessarily be -a fixed.sum, but may. be made to depend upon contingent fees. The word ‘i salary ’ ’ may be. defined gen
In the case at bar, appellant.’s salary had not been feed before his election. After his election the fiscal court made the two orders quoted in the opinion. If it was the intention of the fiscal court by these two orders to fix his salary, and if the annual salary was feed lower than it would have been but for the pre
The petition for rehearing is overruled, hut the opinion is extended as above indicated.