Spalding v. Thornbury, 128 Ky. 533

Spalding v. Thornbury

128 Ky. 533 | Ky. Ct. App. | 1908

Lead Opinion

*535Opinion op the Court by

Judge Hobson

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 *536are collected for Marion county as the. result of any proceeding- by any revenue agent or sheriff in which the county attorney appears and assists in the prosecution thereof. It is hereby made the duty of the said Spalding upon the collection of any of the claims or demands hereinbefore mentioned to pay the- amount collected to the treasurer of Marion county after deducting his said commisison of 20 per cent.. In the event the said Spalding collects nothing or has nothing collected under this order, he shall be paid nothing whatever for his services in attempting to make or have made such collection.” On April 18, 1906, the court allowed--a number of claims, among which is this: “W. W. Spalding, County Attorney,-salary for 1906, $500.00.” It appears that for several years the fiscal court of Marion county has allowed the. county attorney an- annual salary of $500, but that before1 Spalding’s election it had made no order fixing the salary of the office. A taxpayer1 of the county brought this suit attacking the order of February 27th as void, on the ground that the fiscal court was without authority to mate such an order. The circuit -court so adjudged, and the county attorney appeal's.

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 *537Ky. L. R. 174; Butler County v. James, 76 S. W. 402, 116 Ky. 575, 25 Ky. L. R. 801; McNew v. Comnth. (Ky.), 123 Ky. 115, 93 S. W. 104; McNew v. Nicholas County, 125 Ky. 66, 100 S. W. 324, 30 Ky. L. R. 1147. Although the orders of the'fiscal court made before Spalding’s election, when taken together; may not be regarded as fixing the salary of the office, the order of April 19th fixes his salary at $500, find it can not be changed during his term. But the order in contest was made before the order of April 19th, and it is insisted for him that the two orders are to be taken together, and that, when so read; they fix his compensation for the' term.' This brings us to the question whether the order in contest is within the authority of the fiscal court; for it is a tribunal of limited powers and its acts when not authorized axe void.

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.”

*538Other duties are imposed upon him by.th'e following sections, and then section 132 is as follows: “He shall Tbe allowed annually by the fiscal' court, or the board of commissioners in counties where, for eotmty governmental .purposes, a city is by law separated from the remainder of the county, a reasonable salary, to be paid out of tbe county levy.”

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 *539annual salary to be paid Mm. His compensation may not be changed during his term, - though additional duties are imposed upon him. Board of Education v. Moore, 114 Ky. 640, 71 S. W. 621, 14 Ky. Law Rep. 1478.

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 *540that ■ section. The language of the- section is that, “when so directed by the county or .fiscal- court,” he shall institute or defend actions and proceedings of every character before any of the courts 'of the Commonwealth in which the county is interested. .The statute makes it his duty to institute .or defend the actions- when directed by the county or fiscal court. It leaves him no discretion. If an employment had been contemplated, he would not be required to act unless the proposed compensation was satisfactory to him. If the statute had contemplated an employment of the county attorney, the word- “.employed” would have been- used, instead of the word ‘ ‘ directed. ’ ’ The county court is without áuthority, except in a very limited degree, to make contracts for the county; but by the terms of this statute it is- the. duty of the county attorney to attend to. any action when directed by the county-court. .This shows that the Legislature, did not have in mind an employment of. the county attorney, and that it contemplated that.such services as he rendered when directed, by the-county court should be included in his official duties and covered by his annual salary.. Where by statute duties are imposed upon the county attorney, and compensation by way of commissions or otherwise is provided-by the statute, he is .entitled to. such compensation in addition to his salary allowed by the fiscal court under section 132, Ky. Stats., 1903. - The. salary named in that section only covers the services required of .the county attorney by law, and for which no other compensation, is provided.

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*541erally as a feed -animal or periodical payment for services, depending upon the time, and not upon the amount of the services rendered. 24 Am. & Eng. Ency., 1015. It is true that sometimes, to give a statute effect, the word will- be given a broader construction ; but this will not be done where the language of the statute forbids this construction. Section 132, Ky. Stats., 1903, not only provides that the county attorney shall be allowed -annually a reasonable salary, but it adds, “to be paid out of the. county levy.” Claims against the county are allowed by the fiscal court and are payable out of the county, levy. To make an allowance payable out of the county levy must necessarily mean that a certain sum is to be allowed,- so that the county treasurer will have a definite order of the fiscal court to direct him in the payment of the claim. By. section 1072, Ky. Stats., 1903, the county judge shall receive an annual salary, payable in quarterly installments by the county. Manifestly this refers to a certain sum, to be allowed by the fiscal court and paid quarterly. While the allowance to the county attorney is not required to be paid quarterly, the sense is evidently the same. .The salary of the county attorney is a part of the current expenses of the.county, and must be paid, like other current expenses, out of the general fund provided for that purpose. It can not be paid by way of contingent fees .out of other funds. Nor is it contemplated by the statute that the salary of the county attorney shall be contingent, and mot feed by the fiscal court.

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*542vious order allowing him contingent compensation in certain eases, a case, of mutual mistake is presented, and. the fiscal court may in its discretion, when it sets aside the order as to the attorney’s contingent compensation, make an order fixing the annual salary for all of the attorney’s services at such a sum as it deems just. We do not determine that the fiscal court did make a mistake. We only determine that i'f it did make a. mistake, and if it desires, to correct this mistake it may correct it, as .any other mistake may be- corrected, by making now an order for snch an annual salary as it deems just to cover all of the attorney’s services.

The petition for rehearing is overruled, hut the opinion is extended as above indicated.