We fully concur in the decision of the majority of the court, as so splendidly expressed in Judge Faurest's opinion, but, in amplification of the reasons which moved us to acquiesce in the reversal, we desire to file our separate concurring opinion.
As stated in the opinion of the court prepared by Judge Faurest, there is before this court for consideration the constitutionality of Chapter 131, 1940 Acts of the General Assembly, Sections 951a-1 to 951a-5, Kentucky Statutes.
The act is assailed by the Attorney General, representing the Commissioner of Finance, because, as he asserts, it violates several sections of the Constitution. Only three of the sections need be mentioned here, and they are: Section 3, which forbids the General Assembly to grant exclusive separate public emoluments or privileges to any man or set of men except in consideration of public services; Section 235, which says that the salaries of public officers shall not be changed during the terms for which they were elected; and Section 246, which limits the salaries for official services of all public officers, except the Governor, to five thousand dollars a year.
It is contended that the public services performed by the judges of the Court of Appeals are official services; that section 246 limits the salaries of judges to five thousand dollars a year for their official services; and, as the judges receive the maximum salary, additional compensation on retirement would amount to more than the constitutional limit for official services, which the Legislature is powerless to grant.
Furthermore, it is urged that as the annuity cannot be paid for official services it is not supported by public services, as required by Section 3 of the Constitution, because the judges do not render public services aside and apart from their official services for which the Legislature may grant public emoluments under that section. *Page 799
It is also insisted that an officer who accepts an office does so with the understanding and implied agreement that he shall be paid for his official services the salary then fixed by the Legislature; that he shall not receive other or further pay for his official services in addition to the salary provided by law when he accepts the office; and that, as the judges have not rendered public services, within the meaning of Section 3, aside and apart from their official services, the act is invalid.
It is insisted that, as the annuity cannot be justified on the basis of public services performed by the judges aside and apart from their official services, then it is purely a gratuity which the Legislature is powerless to grant.
The appellees, through their counsel of record, and counsel as amicus curiae, contend that the act is constitutional; that it is not prohibited by the negative mandate of Section 3 of the Constitution; and that it does not violate any other section of the Constitution urged against it by appellant.
They say, in substance, that it is in the public interest, and for the promotion of the public welfare, to induce men of capacity, training and character, to seek the office of appellate judge, and to induce men of like quality and attainments to remain on the bench, so that the people may have the benefit of their public services, and gather the ripened fruits of the years of their experience, and of their ability. They insist that it is in the public interest, and that it promotes the public welfare, to make a career of public service on the appellate bench more attractive, and to induce those who hold, or who may obtain, the office to dedicate the productive years of their lives to public services on the bench, and to encourage their retirement when they have become incapacitated because of age or ill-health.
It is then insisted that it is within the power of the Legislature to declare it to be the public policy of this state "to offer, not as compensation, but as a gratuity to be paid in recognition of public services," the annuity provided for by the act, as a means of promoting the public good and public welfare in the manner referred to.
In the earlier briefs on behalf of appellees, in support of their insistence that the act is constitutional, it *Page 800 was contended that the judges render public services within the meaning of Section 3 of the Constitution, aside and apart from their official services. In later briefs the position is clearly taken that the annuity provided for by the act is a gratuity given in recognition of public services and to induce men of good attainments to seek and to remain in office, and to retire when incapacitated.
At the very outset we desire to say that, in considering and disposing of the constitutional questions raised, we have given due consideration to the fundamental rules of construction and application of the constitutional provisions involved. We have recognized that the Constitution is a limitation of powers, and that the General Assembly has supreme legislative power save and except as withheld or limited by the Constitution; and that the court should proceed with the greatest possible caution, and should resolve every reasonable doubt in favor of the validity of the act, and give the act constitutional life, if, in the judgment of the court, there is any reasonable doubt as to its constitutionality. It is also recognized that legislative enactments are the declared public policy of the state, save and except when they are in violation of the withheld or limited powers. We have recognized the supreme power of the Legislature within its sphere, and that we should be very cautious not to encroach upon its power, and that the propriety, wisdom, and expediency of legislation are exclusively matters for legislative consideration, and the court should not declare an act invalid because, in their judgment, it may be unnecessary, or not in the interest of the state. It is in recognition of these fundamental principles that we have considered this case.
Section 3 of the Constitution is a part of the Bill of Rights, and, in order to guard against the transgressions of the high delegated powers, the Constitution (Section 26) provides that everything in the Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate. There are no implied exceptions to the Bill of Rights. Commonwealth v. Jones, 73 Ky. 725, 10 Bush. 725. That section of the Constitution has been carried over from our first Constitution, and it has been a part of every Constitution of the State. It became a part of our First Constitution when *Page 801 the founders of our government were fresh from the battles fought for the equality of rights and privileges under government. It was a leveling off process, enacted to place all men on the same basis in their political rights and privileges, and benefits in government. It was adopted to correct and remedy the evils which had made governments tyrannical and unjust. It was to forbid the government, as the crown was at liberty to do, to bestow upon its citizens or subjects individual privileges, honors and distinctions of rank, birth or station, or political rights, privileges or emoluments. Williams v. Cammack, 27 Mass. 209, 5 Cush. 209, 61 Am. Dec. 508.
" Public services," as used in Section 3, and "official services," as used in Section 246, of the Constitution, are not identical or synonymous terms. Official services may, and most usually do, include public services; but public services do not always mean official services. Official services are the services rendered by an officer in the performance of his duties. They most usually, if not always, are public services which the officer is required to perform. Public services may or may not be official services. They may be performed by an officer outside the scope of his official capacity, or by a private citizen. Under Section 3, therefore, one may be awarded a public emolument for public services, whether the one performing the public service is an officer or a private citizen.
An emolument, according to the usual definition, and as adopted by the Court of Appeals, is a "profit from office, employment, or labor; compensation; perquisites, fees or salary," and payment therefor made out of public funds is a public emolument. State Board of Charities and Corrections v. Hays, 190 Ky. 147, 227 S.W. 282, 287; Words Phrases, Vol. 14, Permanent Edition, pp. 329, et seq.
In defining "separate public emoluments" and "public services," as used in Section 3 of the Constitution, the Court of Appeals, in Ferguson v. Landrum, 64 Ky. 548, has said that the emolument "therein named is not for contemplated service to be rendered, but is allowed when the person shall, by heroic deeds, inventive genius, or great mental endowments, and a life of public virtue, become, in the judgment of the Legislature, a public benefactor." This definition of public emoluments, and the character of public services to be rendered *Page 802 for which an exclusive separate public emolument may be allowed, was approved in the case of Bosworth v. Harp, 154 Ky. 559, 157 S.W. 1084, 45 L.R.A., N.S., 692, Ann. Cas. 1915C, 277, the Confederate pension case. Approval also was given in the case of Barker v. Crum, 177 Ky. 637, 198 S.W. 211, L.R.A. 1918F, 673.
Under Section 3, the Legislature may award an emolument, separate and exclusive, — but it must be awarded in consideration of public services rendered. Consideration, as used, is not used in a contractual sense, but it means because, or on account, of public services rendered. It contemplates that some public service has been performed as a basis for granting the emolument. In Caudill v. Pinsion, 233 Ky. 12,24 S.W.2d 938, 941, in referring to Section 3, the court said:
"It only means that, before public emolument shall be bestowed, the bestowee shall have performed publice services for which the bestowed emoluments formed the consideration."
At the very outset, and as a part of the Bill of Rights, the Constitutional Convention declared its unqualified stand for equality in government, in its burdens and in its rewards. It declared for the protection of the citizen in his individual rights, and then, by Section 3, it declared against the indiscriminate disposition of public benefits and public privileges. The Convention then created or provided for the creation of public offices, and with the Legislature and the appropriate political subdivisions of the state there remained the power to fix the compensation of the officers for their official services within the constitutional limitations. In Section 3, the Convention dealt with emoluments for public services other than official services, compensation for such services having been provided for by other sections of the Constitution, or the power to fix the compensation having been left by it in the Legislature or in the appropriate political subdivision.
The emoluments for public services authorized under Section 3 of the Constitution, therefore, are limited to public services for which no compensation has been provided or has been paid. This section and those sections of the Constitution which provide for the compensation of public officers for their official services, and the salary limitation section, under conclusive rules of *Page 803 construction, should be harmonized, and this can be done only by applying Section 3 to public services for which compensation is not provided by the Constitution, or has not been provided by legislative enactments.
In the earlier briefs filed on behalf of the appellees, it was insisted that at the time the present Constitution was adopted the work of the Court of Appeals was not so great. The court began and ended its work with deciding cases and writing opinions. Since the adoption of the Constitution many duties are performed by the judges which were not earlier required of them or performed by them, such as hearing motions for temporary injunctions, which have greatly multiplied; acting as trustees of the State Library; considering and passing on petitions for rehearing, not only concerning opinions written by the judges but opinions of the four commissioners who have been added to the court; admissions to the bar, and the promulgation of rules concerning admissions to the bar; duties imposed by the Integrated Bar Act, placing the bar of the state under the supervision of the court; responsibility for administration of the Judicial Council; printing of official Kentucky Reports; work of administration of the court itself having increased; attending and speaking at bar association meetings, school commencements, churches, and other public gatherings; "keeping himself abreast of the law, particularly in these changing times," requiring much research without the assistance of law clerks.
It is true that many new and arduous duties are now imposed upon the judges of the Court of Appeals which were not a part of their official duties when the Constitution was adopted, and that the business of the court has multiplied many times. However, all of these duties and responsibilities, and the added work, are nothing more than a part of the official duties imposed on the judges by statute and included in "official services" as used in Section 246 of the Constitution, and other sections of the Constitution pertaining to the compensation of public officers for official services. They are explicit duties, or mere affinities of their office, for which they cannot receive additional compensation. Slayton v. Rogers,128 Ky. 106, 107 S.W. 696, 32 Ky. Law Rep. 897. Except, of course, the public appearances and public speeches which the judges make, mentioned in brief, are public services not required of them, but they are *Page 804 only such services as are common to all citizens of the state of like attainments, multiplied, of course, because of the honorable office which they hold.
The Constitution not only prohibits the granting of exclusive separate public emoluments except for public services rendered, other than official services, for which compensation has been paid as provided for by law, but it limits the salary which a public officer may receive, for official services (Section 246), and it also provides that the salary of a public officer shall not be changed during the term for which he was elected (Section 235).
The judges of the Court of Appeals are paid the maximum salary for their official services. The Legislature cannot, therefore, further compensate them for such services, as Judge Faurest has so excellently demonstrated in the opinion of the court. If the services which the judges of the Court of Appeals have rendered are compensable under Section 3 of the Constitution, they must be other than official services, for which they have been compensated by receiving the maximum salary fixed by the Constitution.
It is a well known principle, and frequently recognized by this and other courts, that an officer can receive for his services only the amount of compensation fixed by law when he is elected and assumes the office, and that he cannot be paid anything in addition to his regular salary for services which he performs in his line of duty. Stone, Auditor, v. Pryor,103 Ky. 645, 45 S.W. 1053, 1136, 20 Ky. Law Rep. 312; Marking v. Needy, 71 Ky. 22, 8 Bush 22; Warrick v. McCormick, 150 Ky. 800,150 S.W. 1027; Collier, etc., v. Green, 205 Ky. 361,265 S.W. 812; Harris v. Beaven, 11 Bush 254, 258; McCracken County v. Reed, 125 Ky. 420, 101 S.W. 348, 31 Ky. Law Rep. 31; Harlan County, etc., v. Brock, 263 Ky. 530, 92 S.W.2d 757; Slayton v. Rogers, 128 Ky. 106, 107 S.W. 696, 32 Ky. Law Rep. 897; McQuillin, Municipal Corps., 2d Ed., p. 251, Section 544; Jerome v. Burns, 202 Minn. 485, 279 N.W. 237; State ex rel. Heaven v. Ziegenhein, 144 Mo. 283, 45 S.W. 1099, 66 Am. St. Rep. 420.
In the Reed case the court considered the validity of an act of the Legislature which authorized the fiscal court of the county containing certain class cities, and the cities, to supplement the salary of the circuit judge of the district in which the county was situated, and the *Page 805 case involved Section 235 of the Constitution. The court said [125 Ky. 420, 101 S.W. 349, 31 Ky. Law Rep. 31]:
"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 court held in the Reed case that, as the Legislature could not increase the salary of the officer after his election it could not authorize the fiscal court or the municipal authorities to increase it. The court, in the Brock case, after quoting from the Reed opinion, said [263 Ky. 530,92 S.W.2d 759]:
"But the point is made that the above rule is not applicable to this case for the reason that there was no change during appellee's term of office, but the change was made after the expiration of his term. It seems to us that this phase of Section 235 of the Constitution is entirely too narrow. The purpose of the provision was to require the salaries of public officers to be fixed before their terms began. To permit the change after the officer's term expired would defeat the purpose of the provision. Indeed, the allowance of an additional compensation to an officer after his term expires is a mere gratuity."
The court said in the Pryor case (103 Ky. 645, 45 S.W. 1137, 20 Ky. Law Rep. 312]:
"We further find from the debates of the convention, that the framers of the constitution regarded that, when a citizen was elected to an office to which there was a salary attached, fixed by law, he was thereby regarded as having entered into a quasi contract with the people to serve for the compensation he expected to receive, and by this means not only secure the office and protect the people, but to secure the integrity of official life."
McQuillin on Municipal Corporation, and the Jerome case [202 Minn. 485, 279 N.W. 240], state the principle to be that:
"Where an officer performs duties imposed by law he is entitled to the compensation therefor fixed by *Page 806 law and no other. He is not entitled to extra compensation for services performed in the line of his official duty. The fact that the salary or compensation is inadequate remuneration for the services exacted and actually performed does not change the rule. And the principle is the same although his duties are greatly increased. Courts everywhere recognize the necessity of protecting the public funds, and hence they will usually enforce the rule against permitting extra compensation, either directly or indirectly, with appropriate strictness."
The judges cannot be further compensated for their official services, and futility in the effort to sustain the validity of the act on the theory that the annuity is granted for services rendered by the judges aside and apart from their official services is apparent.
Counsel for appellees then urge that the act is valid, because it is within the power of the Legislature to declare it to be the public policy of the state, in recognition of public services, to pay the judges who qualify under the act the annuity as a means of promoting the public good, and the public welfare, by inducing men of capacity, training and character to seek the office of appellate judge, and to induce men of like quality and attainments to remain on the bench, so that the people may have the benefit of their public services and of their years of experience and ability, and to make a career of public service on the bench more attractive, and to induce those who hold or obtain the office to dedicate the productive years of their lives to public service on the bench, and to encourage their retirement when they have become incapacitated.
There can be no doubt but that it is in the public interest, and for the promotion of the public welfare, to induce men of character, and of training, and high attainments in the legal profession, to seek and retain the office of appellate judge, and also to encourage judges to retire when they have become incapacitated by the infirmity of age or ill-health. But the Legislature does not have the power under the limitations imposed by the Constitution to declare to be a public policy that which is forbidden by the Constitution. The Constitution itself is the fundamental public policy of the state, and if an emolument is granted based upon a declaration of public policy which is in violation of the public policy as *Page 807 declared by the Constitution, then, of course, the legislative declaration of public policy is without constitutional support, and, therefore, cannot be considered the public policy of the state.
It might be mentioned here that on two occasions within the last ten years the people of this state have been called upon to change the public policy of the state as declared by the Constitution in the matter of limitation of salaries of public officers. The Legislature has submitted to the people for their approval at least two constitutional amendments. The first one was to do away entirely with Section 246 of the Constitution, and the second one was to except the judges of the Court of Appeals from its provisions. The people by their vote rejected both of the amendments, and thus reaffirmed the constitutional declaration of public policy. The public policy of the state in that respect, therefore, is not only imbedded in the Constitution itself, but has been unmistakably approved by the vote of the people of the state on two occasions.
Two cases in particular are urged on the court as sustaining the validity of the act. These csaes are extensively discussed and quoted from in appellee's briefs. They are the cases of DeWolf v. Bowley, 355 Ill. 530, 189 N.E. 893, and State ex rel. Dudgeon v. Levitan, State Treasurer, 181 Wis. 326,193 N.W. 499, a Wisconsin case.
It is urged that the provisions of the Constitution of the State of Illinois are as strong and explicit as the provisions of our Constitution applicable to the act under consideration, and, for that reason, the sections of the Illinois Constitution mentioned in briefs are referred to at length.
The DeWolf case involved the validity of an act of the Illinois Legislature providing for pensions for judges of various courts, including municipal courts, who had served the required number of years and become sixty-five years of age, and who should retire by resignation or otherwise. The opinion points out that Section 19 of Article 4 of the Illinois Constitution, Smith-Hurd Stats., forbids the General Assembly granting extra compensation, fee or allowance, to any public officer, etc., after service has been rendered or the contracts made, and that Section 11 of Article 9 of that *Page 808 Constitution provides, in part, that "the fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office, shall be increased, or diminished, during such term." These sections of the Illinois Constitution are like Section 235 of our Constitution, which forbids the Legislature to supplement an officer's salary after his term has expired, as held in McCracken v. Reed, or to change the salary during the term for which he was elected.
Section 20, Article 4, of the Illinois Constitution declares that the state shall not pay, assume, or become responsible for, the debts or liabilities of, or in any manner give, loan or extend its credit to, or in aid of, any public or other corporation, association or individual. This section is like Section 177 of our Constitution.
Section 10 of Article 9 of the Illinois Constitution prohibits the levy or imposition of taxes by the General Assembly upon municipal corporations, or the inhabitants or property thereof, for corporate purposes, but requires that all taxable property within the limits of a municipal corporation shall be taxed for that purpose in a uniform manner with respect to persons and property. This section of the Illinois Constitution is similar to Sections 181 and 181a of our Constitution, which forbid the General Assembly to impose taxes for the purposes of any municipality or other political subdivision, but give the Legislature, by general laws, the power to confer on the political subdivisions the right to assess and collect taxes.
It is urged that there is no language in our Constitution as strong or explicit as the language in the Illinois Constitution which forbids the General Assembly "granting or authorizing extra compensation, fee or allowance to any public officer, agent or servant, * * * after service has been rendered or contract made," and that "the court upheld the constitutionality of the Illinois act applying to judges then in office based on services previously rendered." The Illinois court held the act constitutional because it considered that public benefits would accrue if officers were encouraged to remain in service and to retire when incapacitated; and it held that such benefits are not to be considered as donations or gratuities, but as inducements to continue service. The Illinois court said in its opinion [355 Ill. 530,189 N.E. 895], that the judges' pension under consideration *Page 809 was not "extra compensation to public officers for services already performed"; amici curiae seem to have been in error, therefore, in stating in their brief that the Illinois pension was upheld as being "based on services previously rendered."
In considering the similarity of our Constitution to the Illinois Constitution, from its provisions mentioned in the DeWolf case, and discussed in brief, it appears that there is no section of the Illinois Constitution dealing with emoluments for public services as strong or explicit as Section 3 of our Constitution. Furthermore, the opinion in the DeWolf case recognized the same limitations imposed by the Illinois Constitution on its legislature as imposed on our General Assembly by similar provisions of our Constitution and the court, in that case, impliedly, if not expressly, held that the act was unconstitutional if the pensions were allowed as extra compensation to officers for services already performed. In that case the pensions were not based upon services at all, but in recognition of public benefits to accrue from continued service and from retirement upon disability.
Inducement to enter public service, making a public career more attractive, continued public service, and retirement upon disability, may be very desirable, and may be, and perhaps are, for the public good and the public welfare, but, singly or collectively, they do not constitute public service for which an emolument may be granted under Section 3. Continued public services, only, of the enumerated ways from which public benefits may accrue, contain any element of public services, and tenure in office is compensated for by the salary allowed by law, and the state is entitled to the fruits of the utmost of the officers' attainments and integrity while in office. The other ways from which public benefits accrue have nothing to do with the rendition of public services within the meaning and purpose of Section 3. Performing public services, for which emoluments may be granted, in contemplation of Section 3, means that one, in the use of his capacities, whether mental or physical, has accomplished something, or performed some task, or produced something, which is for the public good — not that one of capacity and training seeks and retains an office which he desires, or retires at a given age from an office which he possesses. The enumerated *Page 810 "services" do not, in any sense, measure up to the definition of public services in Ferguson v. Landram, Bosworth v. Harp, and Barker v. Crum. Furthermore, the public services for which emoluments may be granted must be public services previously rendered, and not merely contemplated services to be rendered (see Barker, Harp and Ferguson cases), and such services must be fairly describable as actual, not constructive or imaginary. Opinion of the Justices, 78 N.H. 617, 100 A. 49.
If, therefore, inducement to accept public service, continued service, and retirement upon becoming disabled, can be considered public services under Section 3, such services were in contemplation when the act was passed, and they are, and will continue to be, in contemplation.
It has been pointed out that counsel insist that it is in the public interest for the Legislature, in the manner provided in the act, to make a career of public services on the appellate bench more attractive; to induce incumbents and those who may seek the office to dedicate the productive years of their lives to services on the bench; and to encourage their retirement when they have become incapacitated by age or illness, and to promote the public interest and public good. In that respect, the Legislature may "offer, not as compensation, but as a gratuity to be paid, 'in recognition of public services,' " the emoluments provided for in the act. Thus counsel urge that emoluments may be granted "in recognition of" public services, as distinguished from "compensation for" public services, or, in other words, that the proposed emolument is not as compensation "for" services rendered or to be rendered, but as a "gratuity" to be paid "in recognition of" public services. In fact, this suggested distinction is not real. To grant an emolument "in recognition of" and to compensate "for," or, in other words, to pay something as compensation for and to pay something in recognition of, both presuppose the rendition of public services as a basis of the grant. It does not appear, as has been pointed out, that the judges render such public services as would support an emolument in compensation for or recognition of such services.
It is urged in brief that, if Section 3 were construed to mean that emoluments could be granted in recognition *Page 811 of past services only, then no franchise could ever be granted to a public utility, as the service of a utility is to be rendered after the franchise privilege is granted. The error in this argument is in confusing "public emoluments" and "public privileges," as used in Section 3. Public emoluments are rewards for public services, paid out of public funds. A public privilege, or public right, meaning the same thing, is a privilege or right to participate in the formation, administration and conduct of government. The right to vote, or the right to practice law, or the right to serve the public as a public utility, is a public privilege. A utility is granted the privilege to render public services, and thus participate in the administration and conduct of government.
Our Constitution is as strong and explicit as the Illinois Constitution. It not only borbids the Legislature to grant or authorize extra compensation or fees to public officers after the services have been rendered, extend the credit of the Commonwealth to any individual, company, etc., or change the salary of any officer during his term of office, as does the Illinois Constitution. It provides the maximum salary which an officer may receive, and it also brings into effective reality the very fundamental principle of democratic government in equally distributing the benefits, as well as the burdens, of a democratic system, and it not only creates but maintains equality of right, and benefit in government, by forbidding the use of the taxing power to reward any man or set of men, except for services rendered for the public welfare, for which services compensation has not been paid or provided for by law.
The Dudgeon case upheld the constitutionality of a teachers' retirement fund act. In Wisconsin there was a provision in the Constitution similar to the one in the Illinois Constitution forbidding the Legislature to grant extra compensation to any public officer after the rendition of services, and it was held in that case that the annuity provided for was not based upon past services, nor was it compensation for past services, but it was to induce seasoned and experienced teachers to remain in service and give the public the benefit of their experience. The decision in that case, likewise, was based upon a premise inimical to our Constitution. Our attention is not called to any provision in the Wisconsin Constitution similar to or like Section 3 of our Constitution. *Page 812
The Kentucky cases cited by appellee, some of which are relied upon in supporting their theory of the validity of the act, are: Barker v. Crum, 177 Ky. 637, 198 S.W. 211, L.R.A. 1918F, 673; Bosworth v. Harp, 154 Ky. 559, 157 S.W. 1084, 45 L.R.A., N.S., 692, Ann. Cas. 1915C, 277; Board of Education of Calloway County v. Talbott, Auditor, 261 Ky. 66,86 S.W.2d 1059; Carman v. Hickman County, 185 Ky. 630,215 S.W. 408; Norman, Auditor, v. Kentucky Board of Managers, 93 Ky. 537, 20 S.W. 901, 18 L.R.A. 556; Board of Trustees v. Schupp, 223 Ky. 269, 3 S.W.2d 606; Head v. Jacobs, 150 Ky. 290, 150 S.W. 349; Rohe v. City of Covington, 255 Ky. 164,73 S.W.2d 19.
In the Barker case, the Court of Appeals held unconstitutional an act which authorized counties to send a certain number of students to the State University free of tuition, and at some length discussed the historic Muter pension controversy. The court said that from the narrative of that event public opinion prevailed more than a century ago that emoluments in consideration of public services, as used in the Bill of Rights, meant only compensation or salary of a public officer while performing the duties of his office, and the services having been rendered and paid for the power of the Legislature no longer existed to grant compensation, by way of pension or otherwise, or to add to that which had been granted. The court then observed that it did not subscribe to that narrow meaning attributed by the Legislature to Section 3. Neither do we subscribe to such narrow interpretation, but it is interesting to note that even then it was recognized that, under Section 3, the Legislature could not award additional compensation by way of pensions.
The Harp case is the Confederate pension case. There the beneficiaries of the pension were not officers of the State, and had not received any compensation from the state for their public service. It was held in that case that the Confederate pension act was for a public purpose, and that the beneficiaries of the act had rendered a public service in entering the army of their choice, and fighting for a principle — the right of each state to regulate its local affairs.
In the Calloway County case the constitutionality of an act which appropriated public money to school teachers in some of the counties in the state was questioned, *Page 813 and the court held the act unconstitutional. The court said in the opinion that the Legislature may make an appropriation in recognition of moral or equitable obligations, such as a just man would be likely to recognize in his own affairs, whether by law he is required to do so or not, and cited the Ferguson and Harp cases as examples of public services, as the term is used in Section 3 of the Constitution. The court pointed out that such obligations mean that some direct benefit was received by the state, or some direct injury was suffered by the claimant, under circumstances where, in fairness, the state might be asked to respond, and there must be something more than a mere gratuity involved, and it is also pointed out in the opinion that taxes may be levied based on moral obligations unless forbidden by some constitutional provision. Of course, the obligation, whether moral or equitable, must be based upon public services rendered, and the court did not hold otherwise.
The Carman case involved the validity of an order of the fiscal court to make an appropriation to supplement the salary of the county agent, which was in co-operation with the University of Kentucky and the United States Department of Agriculture in carrying on agricultural extension work through the county agent. The validity of the order was questioned on the theory that the appropriation was not for a public purpose, and, also, that it exceeded the constitutional limit of indebtedness. At that time it was entirely within the discretion of the fiscal court of the county whether it would employ a county farm agent. Adair County Farm Bureau v. Fiscal Court, 263 Ky. 23, 91 S.W.2d 537. The court held that the appropriation was to promote the agricultural interest of the state, and, therefore, it was for a public purpose. It, also, was to contribute toward the salary of an officer whom the fiscal court, in its discretion, had the right to employ, and had the right to provide for the payment of his salary. The question did not arise in that case as to whether the Legislature could reward an officer in addition to the salary paid to him for his official services, as provided for in the act under consideration.
The Norman case, known as the World's Fair case, involved the validity of an appropriation for an exhibit of the resources of the state at the World's Columbian Exposition. In that case, Section 3 of the Constitution *Page 814 was not involved. The question raised was whether the appropriation was for a, public purpose under Section 171 of the Constitution, which provides that taxes shall be levied and collected for public purposes only. The court held that the appropriation was for a public purpose, and that the commissioners selected to expend the money were merely state agents to provide the exhibit for the benefit of the people of the state.
The Schupp, Jacobs and Rohe cases are policemen and firemen retirement fund cases, and deal particularly with the administration of the law. In one of the cases only is the constitutionality of an act involved, the Schupp case, and the court held the act constitutional upon the theory that policemen and firemen serve in the capacity of protecting the lives and property of the community, accompanied with hazard and danger, occasionally resulting in death or bodily injury while in the performance of their duties, and that the municipality may, in addition to their salaries paid to them while in office, provide for compensation for death which may occur in the performance of their duties, to be paid to their dependents, and provide compensation for injuries sustained while in the performance of their duties, and, in the nature of adjusted compensation, provide a measure of security upon retirement after long years of service. It can be seen, readily, that the so-called policemen and firemen pension acts are not pension acts at all in the real sense that they reward one for past services, which is the meaning of pensions, but they set up a system of compensation for death, to be paid to the officers' dependents, and compensation for disabling injuries, occasioned while acting in, or on account of, the performance of his duties, and a system of adjusted compensation to be paid at stated periods upon retirement at a given age, which is considered a part of the salary of the officer while in office. Courts usually sustain the validity of such acts on the theory that the payments for disability and death while in the performance of their duties are in the nature of compensation for such injuries and loss of life, and that the retirement pay is adjusted compensation presently earned, which, with contributions from the employees, is payable in the future. Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 174 A. 400. Under such a system the retirement fund is part of their fixed compensation, the payment *Page 815 of which is conditioned upon the employee remaining in office a given number of years and retiring at a given age. We think the policemen and firemen retirement fund acts are in a class apart, and are distinguishable from the act under consideration.
The Rohe case is quoted in brief:
"A pension is a bounty springing from the appreciation and graciousness of the sovereign, and may be given or withheld at its pleasure. * * * It is for the Legislature to say what classes of persons shall receive pensions, and to fix the terms and conditions on which they will be granted." [255 Ky. 164, 73 S.W.2d 20.]
This case merely involved the administration of the act. The act provided for monthly payments to the widow and dependents of a policeman who should die as a result of an injury arising while in the line of his duty, or from any disease contracted by reason of the performance of his duties, or from any cause whatsoever as a result of his services as a policeman. The question arose as to whether the policeman died from a disease contracted by reason of his occupation. The board of trustees of the pension fund rejected the claim, because, as the board thought, the death was not caused by disease resulting from his services as policeman, and the widow sought to recover under the act, and to mandamus the board of trustees to pay to her out of the fund the sums provided for in the act to be paid upon the death of a policeman. The court held that, under the act, the decision of the board of trustees of the pension fund was final and that it could not review the facts. The court was not called upon to define a pension or to pass upon the constitutionality of the act.
There are some cases cited in support of the act from foreign jurisdictions, along the line of the DeWolf and Dudgeon cases, but they are from jurisdictions which do not have constitutional limitations like our Constitution. There are also a number of cases cited from foreign jurisdictions dealing with the question of whether the appropriation is for a public purpose, such as Opinion of the Justices, 175 Mass. 599,57 N.E. 675, 49 L.R.A. 564, wherein it is stated that the power to pay gratuities to individuals is denied to the Legislature by the Constitution, and that the courts do not delay to *Page 816 enforce so plain a proposition. It is then held in that case that, when a public purpose can be helped or carried out by spending public money, the purpose of the Legislature is not curtailed or destroyed by the fact that the money is paid to private persons who had no previous claim of any kind to it. Such a grant may be made under our Constitution if the grant is for a public purpose (Section 171), but it must be for public service rendered if the money is to be paid to any man or set of men.
We do not think it is necessary to discuss the other authorities cited dealing with the question as to whether the purpose of the appropriation was a public purpose, as we have pointed out that the appropriation not only must be for a public purpose, but, also, it must be for public services rendered, within the meaning of that phrase as revealed by the Constitution.
Much has been said in brief about the policy adopted by other states in granting annuities upon retirement from office, but in none of those states where such a policy is in effect does the Constitution forbid the granting of public emoluments except for public services, or such constitutional provision by constitutional amendment has been made to except judges.
The article of Prof. Shartel, Professor of Law at the University of Michigan, quoted from and commented upon at length in brief, is not helpful in the solution of the question before us. It nowhere meets or discusses the question of constitutional limitation imposed by our Constitution, and it deals largely with pensions as a trend of the times, as they are dealt with in one of the briefs filed for appellees in this case, having a paragraph dealing with "The Modern Trend Toward Pensions." Trends do not constitute a basis for the court to hold an act constitutional. This act should not be held constitutional because it is in harmony with the "modern trend." Sometimes trends needs to be arrested. They are not always true indications of a healthy public body
We would be remiss if we did not record our conviction that the judges' salaries are wholly inadequate, and that the office usually is accompanied with great sacrifice. The appellate judges are required to leave their homes and friends, and business associates, and *Page 817 their social companions of many years' standing, and to reside away from their friends and acquaintances of a lifetime. They most often must give up a remunerative law practice, and accept the office at great financial sacrifice, and after a long and honorable service on the bench, retire at a time in life when it is difficult for them to re-establish themselves in practice. Fate seems to have so decreed. Their clients have passed away, or conditions have changed and they no longer have remunerative legal business with which to entrust them. They are required, most usually, to devote the fruitful years of their lives to their office, and to contribute the utmost of their integrity and ability in the service of the state, with inadequate remuneration. But these things are in contemplation when the judges seek and accept the office, and they are mere affinities of the office, for which they cannot receive reward in addition to their fixed salary.
May we take the liberty to paraphrase the last paragraph of the opinion in the Calloway County case:
"As worthy as we may believe to be the claims of the judges who would receive the benefit of the appropriation provided for by the act, and however willing we may be to invoke for them the benedictions of the good goddess, our obligation to the Constitution impels us to reverse the judgment."