I regretfully dissent from the opinion of the majority in this case as I feel that the entire act violates Sections 235 and 246 of the Constitution of Kentucky and for that reason is invalid.
Section 235 provides as follows:
"Salaries of public officers not to be changed during term; deductions for neglect. The salaries of public officers shall not be changed during the terms for which they were elected; but it shall be the duty of the General *Page 615 Assembly to regulate, by a general law, in what cases and what deductions shall be made for neglect of official duties. This section shall apply to members of the General Assembly also."
And Section 246 is as follows:
"Maximum limit on salaries of public officers. No public officer, except the Governor, shall receive more than five thousand dollars 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."
In case of Frizzell et al. v. Holmes, et al., 131 Ky. 373,115 S.W. 246, 248, the Court of Appeals held invalid an act of the Kentucky legislature granting the fiscal court the right to make an appropriation for heat and light used in the jail and the jailer's (a public officer's) residence which he theretofore had been required to pay out of the fees of his office. The court speaking through Judge Carroll held that this was an increase in compensation and violated the constitution and for that reason declared the act invalid saying in part, as follows:
"The third part of the request of the jailer asked a sum sufficient to heat and light the public buildings, including the jail and jailer's residence. Under the law in force when the jailer was elected the fiscal court was not required, or even authorized or permitted, to make an appropriation to heat and light the jail or jailer's residence. He was required to do this out of the fees of his office. It was his duty under the Kentucky Statutes (sections 2226, 2230) to keep the jail clean and comfortably warm, and to furnish prisoners with proper food and lodging during their confinement. If it cost the jailer $100 a year to heat and light the jail and jailer's residence, and the fiscal court had made an appropriation of this amount for that purpose, it is plain that his compensation would have been increased $100. Indeed, if the jailer had demanded of the court $100 for the purpose, we doubt if any one would question the right of the court to refuse the allowance, as it would be presenting to the jailer $100 to which he was *Page 616 not entitled when elected — in other words, it would be increasing his compensation to the extent of this sum. But the argument is made that the jailer did not ask this appropriation for his use and benefit, but only that the court appropriate a sum sufficient for the purpose named. This is a distinction without a difference. As a practical question, there is no difference whatever between the two propositions. One is a direct violation of the Constitution; the other, an indirect, but equally plain, violation of it. In each instance the jailer is the direct and sole beneficiary of the appropriation. If either request was granted, the jailer would be furnished free, at the expense of the county, light and fuel for which he was required to pay when elected, and his income or compensation from the public would certainly be increased to the extent of the sum the light and fuel would cost him. If a sum sufficient to heat and light the jail and jailer's residence is appropriated, and is placed in the hands of the jailer or any other person to be expended for that purpose, is it not in effect precisely the same as if the fiscal court had purchased and presented the jailer the fuel and lights? Is not the result the same as if the jailer had said to the fiscal court, 'It cost me $100 a year to heat and light the jail and jailer's residence,' and the fiscal court had made an appropriation for that amount? And under the cases before mentioned this would have been in violation of the Constitution. Our construction of section 161 of the Constitution, in harmony with the other opinions construing it, is that the compensation of an officer cannot be, directly or indirectly, increased or diminished during his term of office. Nor can this provision be evaded or rendered nugatory by any plan or scheme to pay to or appropriate for the benefit of an officer public money in excess of the compensation he was entitled to receive when elected to office, or that will increase at the expense of the public the fees, emoluments, or salary of his office."
Section 7 of the act declaring an emergency to exist and making it effective immediately upon passage and approval, coupled with Sections 235 and 246 of the Constitution and the opinion in Frizzell et al. v. Holmes et al., supra, lead me to the conclusion that the act in question known as House Bill 254 is unconstitutional and invalid. *Page 617
The result is the same regarding Commissioners of the Court of Appeals because a reading of the act shows the legislative intention to be that the act was to operate on the entire judiciary.
KRS 446.090 provides:
"Severability. It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly."
Appendix Commonwealth of Kentucky General Assembly Regular Session 1948 * * * * * *
House Bill No. 254 Thursday, February 26, 1948 * * * * * *
The following bill was reported to the Senate from the House, ordered to be printed and referred to the Committee on Kentucky Statutes No. 2.
An Act providing for the payment of certain expenses to the Judges and commissioners of the Court of Appeals and the Circuit Judges of the Commonwealth; imposing a tax on civil suits to further the purposes of the Act; creating a Revolving Fund; providing for the advancement to the Revolving Fund from the General Fund the sum of Seventy-Five Thousand Dollars ($75,000.00), and its repayment to the General Fund; and declaring an emergency to exist.
Be it enacted by the General Assembly of the Commonwealth of Kentucky: *Page 618
Section 1. Each Circuit Court Judge of the State shall be paid out of the State Treasury, each month, the sum of $100.00, which sum is hereby declared to be the equivalent of the minimum sum that each Judge will expend each month, in the performance of his official duties, for postage, telephone service, supplies, stationery, stenographic assistance, law clerk hire, and books and periodicals. The Commissioner of Finance shall, on the first of each month, draw his warrant on the Treasurer in favor of each Circuit Court Judge, for the sum above stated, and the same shall be paid out of the Revolving Fund created by Section 4 of this Act. The sums so received shall be expended by each Circuit Court Judge in his discretion, the manner in which the same shall be applied in payment or reimbursement of such expenses being determined by the Judge.
Section 2. Each Judge and Commissioner of the Court of Appeals who continues, during his term of office, to actually reside at his place of legal residence in the district from which he was elected or appointed, shall be paid, out of the State Treasury, his actual and necessary traveling expenses in going to and returning from the State Capital, and his actual and necessary food and lodging expenses, for each day that he remains at the State Capital in the performance of his official duties. Payment shall be made upon the submission of expense statements under oath of the Judge or Commissioner submitting same. Said payments shall be made out of the Revolving Fund created by Section 4 of this Act.
Section 3. In the event any Judge or Commissioner of the Court of Appeals, in order to facilitate the work of the Court, and to avoid the expense, delay and inconvenience of frequent travel to and from the place of his legal residence to the State Capital, shall establish a temporary place of abode in the State Capital, or in a place convenient thereto, he shall be paid out of the State Treasury, each month, the sum of $150.00, which is hereby declared to be the reasonable equivalent of the travel, food and lodging expenses which such Judge would incur, in the performance of his official duties, if compelled to travel to and from the place of his legal residence. When a Judge or Commissioner has established a temporary place of abode at the State *Page 619 Capital, or a place convenient thereto, he shall certify that fact to the Commissioner of Finance, and payment of the monthly allowance shall then commence and shall thereafter continue so long as the Judge or Commissioner remains in office and continues to maintain an actual place of abode in the State Capital or a place convenient thereto. Said payment shall be made out of the Revolving Fund created by Section 4 of this Act.
Section 4. To provide the revenue necessary to carry out the provisions of this Act, a tax of Three Dollars ($3.00) hereby is levied on each original action in the Circuit Court, commencing with or without original process; on each original action in other courts when the amount in controversy, exclusive of interest and costs, exceeds Fifty Dollars ($50.00); on each appeal to the Circuit or Quarterly Court; on each traverse of forcible entry or detainer; and on each proceeding to revive a judgment. A tax of Five Dollars ($5.00) hereby is levied on each appeal to the Court of Appeals. The funds raised by the aforesaid taxes shall be paid into the Department of Treasury, and shall be covered into a revolving fund which hereby is created and designated the Judicial Expense Account, and from which fund the appropriations hereunder shall be disbursed.
Section 5. In anticipation of the collection of the revenue herein provided for, and to enable the Department of the Treasury to make timely payments under the provisions of this Act, the sum of Seventy-Five Thousand ($75,000.00) shall be advanced from the General fund to the Judicial Expense Account. Said sum shall be repaid to the General Fund at the close of the fiscal year 1948-49 and at the close of each fiscal year thereafter, from surpluses which shall have accumulated in the Judicial Expense Account in excess of Twenty-Five Thousand Dollars ($25,000.00) which shall have accumulated to the Judicial Expense Account at the close of any fiscal year shall be transferred to and become a part of the General Fund of the Commonwealth.
Section 6. Subsections (d) and (h) of KRS 142.010 hereby expressly are repealed.
Section 7. Whereas, present economic conditions are such as to impose an unconscionable burden upon the Judiciary of the Commonwealth, and to create a *Page 620 threat to the expeditious and impartial administration of justice, an emergency is declared to exist and this Act shall take effect upon its passage and approval by the Governor.