I concur in the conclusion and the views expressed by the whole Court on the question of whether the City Superintendent of Schools in Lexington is a public officer. Likewise I am in accord with the conclusion and views expressed by the majority, of the Court on the question of whether the Assistant Superintendent of Schools, in charge of business affairs in Lexington, is a public officer.
Because of the reliance placed by the appellees on the cases of Pardue v. Miller, 306 Ky, 110, 206 S.W.2d 75, and Talbott v. Public Service Commission, 291 Ky. 109, 163 S.W.2d 33, 1 think I should express my views on those cases.
In the Pardue Case the Court had before it the question of whether Mr. Louis Arthur Pardue, a professor of science at the University of Kentucky, was a *Page 464 public officer. I think the majority opinion correctly held that Mr. Pardue's salary was not limited by Section 246 of the Constitution. Chief Justice Sims and Judge Thomas expressed a contrary view.
I did not sit in the Talbott Case because there was involved in that case the question of whether a contract between the Public Service Commission of Kentucky and Mr. Hugh Bearden, for his services as technical consultant, came within the purview of Section 246 of the Constitution. As a member of the Public Service Commission I was a party to a similar contract with Mr. Bearden and also one with Mr. Julius A. Krug, now Secretary of the Interior.
I do not agree with the conclusion reached in the Talbott Case to the effect that Section 246 of the Constitution applies to all State employees as well as to public officers. That is the reason why I voted with the majority of the Court in holding that Mr. Pardue's employment did not come within the scope of Section 246 of the Constitution. Likewise I do not agree with the holding in the Talbott Case that the President of the University of Kentucky and the Presidents of the Teachers Colleges and others holding positions of public trust in those institutions are mere public employees.
The premise in the Talbott Case seems to be that the sovereign power of the State in respect to its institutions of higher learning is vested in the respective boards of control of those institutions. It is true that the Legislature has vested broad powers in those boards, but it has attempted to say also that no member of those boards shall be held to be a public officer by reason of his board membership, and also that a membership on one of those boards shall not be deemed incompatible with any public office. See KS secs. 4527-13 and 4527-41 for the statutes in effect at the time the Talbott Case was decided. See KRS 164.150 and KRS 164.320 for the present statutes. Certainly someone is exercising some phase of the sovereign power of the State in an official capacity in respect to its institutions of higher learning. It will not do for this Court to say that no person connected with those institutions below the level of a board member exercises any of the sovereign power of the State and for the Legislature to say that no board *Page 465 member shall be deemed a public officer by virtue of his board membership.
The criteria laid down in the case of City of Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092, and followed by a majority of the Court in the case of Nichols v. Marks, 308 Ky. 863, 215 S.W.2d 1000, and in the case at bar, must be applied in determining whether a position of public employment comes within the purview of Section 246 of the Constitution.
Judge Latimer has authorized me to say that he concurs in the views expressed herein.