102 Ky. 423 | Ky. Ct. App. | 1897
delivered tile opinion op the court.
The agreed state of facts in this case were filed in the Franklin Circuit Court, and read as follows:
“Franklin Circuit Court.
“G. A. Winston, Commissioner of Jefferson county, and D. W. Johnson, Receiver, plaintiffs, against S. H. Stone, Auditor, defendant.
“It is agreed that S. H. Stone is the auditor of public accounts for the State of Kentucky, and that G. A. Winston is the commissioner of the Jefferson Circuit Court; that said Winston qualified as such commissioner January 4, 1897.
“Official copies of the Jefferson Circuit Court are attached to this agreement. It is admitted that Jefferson county has
“The defendant; Stone, contends that it is plaintiff’s duty,, on. the first day of each month, to send to him, as auditor of public accounts, a statement, subscribed and sworn to by plaintiff, showing the amount of money received or collected' ■ by or for him the preceding month as fees or compensation for official duties, .and with such statement send to- him (the-auditor) the amount so collected or received. The auditor-further contends that upon the filing of said report and the-payment of said money that it is then his duty to pay to the-said plaintiff a sufficient sum to pay his salary and the salary of his deputies and the expenses for the month, the entire sum so paid not to exceed 75 per cent, of the amount of fees-paid in, -and not in any eveut to exceed $5,000. The plaintiff, W-inston, contends that he is not required by law to make said reports and pay said fees into the treasury, and that the auditor has no legal right to pay him a sum as his salary,, etc., equal to only 75 per cent, of the amount so- paid in. In other words, he contends that article 18, chapter 47, sections 1761, 1762, 1763 and 1764 does not apply to him, and, if it does, it is unconstitutional. It is further admitted that plaintiff, I). W. Johnson, is the receiver for Jefferson county. Stone makes the same contention as to Johnson, that he d-oes as to Winston; that is, that article 18 of the- Kentucky Statutes applies to said Johnson. Johnson makes the same-contention that Winston does, insisting that -said law does not apply to him, and, if it does, same is unconstitutional. S. H. Stone says that this controversy is real and the proceedings in good faith to determine the rights of the parties. All of which is submitted for judgment.”
It is the contention of counsel for appellant that sections 1761 to 1764 of Kentucky Statutes, inclusive, do not apply to the appellants, or, if they do so apply, that they are inoperative ot- invalid because in conflict with the Constitution, and cperate to impair or deprive the said court of the inherent powers and machinery necessary to its own existence. Sections 1761, 1762, 1763, and 1764 read as follows:
“Section 1761. Officers in Counties With 75,000 Population to Report Fees Collected. — The clerk of the circuit court, the clerk of the county court, commissioners, receivers, examiners and the sheriff of each county having a population of 75,000 or over, shall, after the terms of the present incumbents respectively expire, and on the first day of each month, severally send to the auditor of public accounts a statement, subscribed and sworn to by each of them, showing the amount of money received or collected by or for each of them the preceding month as fees or compensation for official duties, and shall with such statement, send to the auditor the amount so collected.
“Section 1762. Salary of Chief Officers — Number of Deputies and Compensation, How Fixed. — Each of the officers mentioned in the preceding section shall receive an annual
“Section 1763. Salary of Deputies — Maximum Allowed.— The salary of the chief deputy of each of said officers shall be $2,000 per year, and the salary of each of the other deputies shall be fixed at a reasonable amount, not exceeding $1,500 per year.
“Section 1764. Salaries — When and How Paid. — The salary of each officer,his deputies and expenses of office,shall be paid monthly by the treasurer of the State upon the warrant ■of the auditor, made payable to the officer. If 75 per cent, ■of the amount paid into the State treasury in any month is not sufficient- to pay the salaries and expenses for that month, the deficit may be made up out of the amount paid in in any succeeding month; but in no event shall the amount paid by the auditor to any officer for salaries and expenses exceed 75 per cent, of the amount paid into the treasury ■each month by such officer during his official term.”
■It seems perfectly manifest that the sections supra, apply to the appellants, and that unless, the acts are unconstitutional the judgment appealed from should be affirmed. It is, however, contended for appellants that the sections are un
The contention of appellants that the statute in question is. not constitutional because it applies only to counties having a population in excess of 75,000, and is, therefore, in viola tion of section 59 of the present Constitution, can not be-sustained. The statute in question applies alike to all counties of the same class, and is, therefore, not in conflict with section 59 of the Constitution. That identical question was. considered in the case of Stone, Auditor, v. Wilson, herein, referred to. In that opinion, the court said: “Local .or spe--
The same section of the Constitution was discussed and ■considered in Commonwealth, &c., v. E. H. Taylor, Jr., Co., 101 Ky., 325.
The court in discussing clause 15 of section 59 said: “It is most earnestly insisted as an objection to the validity of the act in question that it is a special, local law, conflicting with section 59 of the Constitution, which forbids, by clause 15, any law of that character in regulating the assessment and collection of taxes. It can not be contended that this law applies alone to the appellees, or to Franklin county, or to the seventh congressional district. It operates upon a multitude of property of like character owned by persons all over the State, and, in our judgment, it is neither local nor .special, but general in purpose and detail, and most effective •for securing to the State the revenue it seeks to collect.”
It will be seen from the foregoing that the law under consideration in the last-named case was held not to be in violation of section 59 of the Constitution, for the reason that it .applied to all property of that class wherever situated, and •the principle therein announced is clearly applicable to the ..case at bar. It may be a fact that Jefferson county is the only county in the State having a population in excess; of •75,000, but the statute in question would apply to all coun-ities of that class within the State, and is clearly within the
■Section 106 of the Constitution reads as follows: “The fees of county officers shall be regulated by law. In counties or ■cities haying a population of 75,000 or more the clerks of the respective courts thereof (except the clerk of the city court), the marshals, the sheriffs and the jailers, shall be paid out of the State treasury, by salary to be fixed by law, the salaries of said officers and of their deputies and necessary office expenses, not to exceed 75 per centum of the fees collected by said officers, respectively, and paid into the treasury.”
Section 107 of the Constitution provides that: The General Assembly may provide for the election or appointment, for a term not exceeding four years, of such other county or district ministerial and executive officers as may, from time to time, be necessary.”
Section 246 of the Constitution reads as follows: “No public officer, except, the governor, shall receive more than $5,000 per annum, as compensation for official services, independent of the compensation of legally authorized deputies and assistants, which shall be fixed and provided for by law. The General Assembly shall provide for the enforcement of this section by suitable penalties, one of which shall be forfeiture of office by any person violating its provisions.”
The Legislature has plenary power as respects the fees and compensation of all officers, except where its- power is restricted by the Constitution. It is a well-settled rule -of law that the Legislature may at any time abolish an office which it has created, and these offices, being created by legislative authority, the incumbents are entitled to only such fees as
It is suggested by counsel for appellants that in certain-cases the court may allow the commissioner for reports and services rendered under order of court such fees as the court, may prescribe by rule or otherwise, and that if one-fourth of every such allowance is to go to the State as a royalty or “take-out,” that fact will necessarily enter as a material element into every such allowance or taxation of costs, and would be án unequal and unjust burden imposed upon litigants of Jefferson county for the purpose of replenishing the treasury, and it is suggested that the Constitution does not empower the legislative department to impose any such em
It seems to us that the duty of the court in all cases would be simply to allow a fair compensation for the services rendered, without regard to whether the officer or the State was entitled to the compensation so allowed.
It is also suggested by appellant that more than one-fifth of the entire revenue of the State is derived from Jefferson county, and in like proportion is the litigation carried on in said county. If that be true, the reasonable inference is that the fees of appellants would be more than equal to one-fifth of the fees of all other such officers in the State, and inasmuch as under the present law these appellants can not receive more than $5,000 salary, if the court should consider what portion of the fees the officers would in fact receive, and be influenced by such considerations as is suggested by appellants, the result would probably be that the compensation allowed for such work would be fixed at a very low rate, for the reason that the officer would receive no part of same in excess of $5,000 per annum; and thus the litigants of Jefferson county would be greatly benefited by the státute in question, instead of injured. But be this as it may, we think that the statute in question is valid, and it must be upheld. The question as to whether it is the most convenient or equitable statute that might be enacted is a question for legislative consideration and not for judicial determination
For the reasons indicated the judgment of the court below is affirmed.