I am unable to agree with the majority opinion in its entirety. In my judgment, this case does not present the question whether section 246 of the Constitution is self-executing or not, nor whether the fiscal court of Fayette county can bring suit against Holland for an accounting of his receipts and disbursements as jailer of Fayette county during his term of office. It presents solely the question whether in advance of such suit the fiscal court has a right to compel the jailer to make a settlement with it or to file a statement of his accounts. There was a time when there was specific legislative authority for this. See section 1776 of the Kentucky Statutes, 1894 Edition. In part it read:
"Each jailer, county clerk, circuit clerk, commissioners, receivers, examiners and sheriff in a county having a population of over forty thousand and under seventy-five thousand shall, in a suitabe book kept in his office, keep and enter therein a true and faithful account of the amounts earned by him or due him for official services from each person, company, corporation, county, State and United States Government, and what part thereof, if any, has been paid, and when paid. . . ."
This section was later repealed by the Legislature. It is not the province of the court to legislate, and, without an act requiring the jailer to file a settlement or an account with the fiscal court, I am unable to see how he can be compelled by a mere order of the fiscal court to do so. The majority opinion seems to think the fiscal court derives this authority from that portion of section 1840 of the Statutes which vests the fiscal court with power, among other things, "to cause correct accounts and records to be kept of all receipts and disbursements of *Page 46 the public funds of the county, and have the accounts of all county officers audited, when necessary." The money paid by the state, county, city, and federal government to the jailer for keeping and dieting the prisoners is his compensation, which is paid to him for the services he is thus required to render, and are not public funds of the county. The Legislature so thought when it drafted section 1776 of the Statutes, supra, as may be seen from its wording. Plainly the provision in section 1840 was not meant to cover such a situation.
I am further of the opinion that, if the jailer may be required to refund all sums received by him over and above his allowable expenditures and his $5,000 salary, such refund should be distributed between the state and the county in proportion to the funds respectively paid by them to the jailer for the keeping of prisoners by him. The Constitution forbids the General Assembly to levy or impose any tax for the purpose of any county, city, town, or municipal corporation. It further forbids the commonwealth to assume the debt of any county, municipal, corporate, or political subdivision of the state. It forbids the lending of its credit to these local subdivisions, and it further provides that a tax levied and collected for one purpose shall never be devoted to another purpose. If the state be not allowed to keep its proportion of any excess over $5,000 which the jailer receives, it is plainly aiding the county, to which the majority opinion gives the excess by imposing state taxes which go for the benefit of the county. In truth, this is a gift, and is the devotion of taxes raised by the commonwealth for state purposes to the counties. This the Constitution forbids.
I am authorized to state that Judge Willis concurs in these views and this dissent.
Judge Willis further dissents from so much of the majority opinion as holds that the jailer must account for the money received by him from the federal government for keeping and dieting federal prisoners. *Page 47