(concurring).
While I concur in the result, I differ with the majority on the fundamental issue of the constitutionality of KRS 64.255 as applied to justices of the peace now in office. It is my view that Sections 161 and 235 of the Kentucky Constitution plainly and definitely forbid the application of the provisions of KRS 64.255 to justices of the peace during the present term of office, which began the first Monday in January 1958, for the obvious reason that the statute authorizing the compensation was enacted and became effective during that term of office.
To me the case of Adams v. Slavin, 225 Ky. 135, 7 S.W.2d 836, 838, is decisive and the language of that opinion declaring that, "The Act, then, in so far as it applies to the county judges in office at the time it was approved by the Governor, is unconstitutional” is applicable and controlling in the present controversy. This principle of constitutional interpretation is sound and has the support of a long line of cases, starting with Commonwealth v. Addams, 95 Ky. 588, 26 S.W. 581, decided in 1894, and extending to Weber v. True, 304 Ky. 681, 202 S.W.2d 174, decided in 1947. During this 54 year span there came in inverse order, Hopson v. Department of Revenue, 298 Ky. 635, 183 S.W.2d 812; Johnson County v. Meek, 276 Ky. 656, 124 S.W.2d 1024; Greenup County v. Spears, 259 Ky. 114, 81 S.W.2d 905; Bright v. Russell, 236 Ky. 567, 33 S.W.2d 643; Olive v. Coleman, 228 Ky. 127, 14 S.W.2d 404; Greene v. Cohen, 181 Ky. 108, 203 S.W. 1077; Frizzell v. Holmes, 131 Ky. 373, 115 S.W.246; Commonwealth v. Carter, 55 S.W. 701, 21 Ky.Law Rep. 1509; and Bright v. Stone, 43 S.W. 207, 20 Ky.Law Rep. 817, just to cite a few. In all these cases the statutes providing for an addition to or change in the method of compensation became effective during the term of the officer involved and were held inapplicable to those officers because of the positive prohibitions of Sections 161 and 235.
The cases of Roberts v. Walker, 227 Ky. 591, 13 S.W.2d 761; Robinson v. Elliott County Fiscal Court, 236 Ky. 63, 32 S.W.2d 554; Bingham v. Bell County Fiscal Court, 255 Ky. 664, 75 S.W.2d 334; Perry County v. Smith, 278 Ky. 321, 128 S.W.2d 751; and Asher v. Wilson, 294 Ky. 110, 171 S.W.2d 17, relied upon by the majority as overruling or discrediting the Adams case, are clearly distinguishable, in that the legislation authorizing the compensation was in effect prior to the time the officer was elected and took office, and that legislation mandatorily required the fixing of a compensation for those services. Those cases simply hold that where the governmental unit charged with that duty failed to discharge it before the election of the officer or before he began his term of office, a discharge of this positive duty thereafter *67was required and would not violate Sections 161 and 235. The distinguishing feature is the existence of legislation authorizing the compensation prior to the election of the officer. That was present in the Roberts, Robinson, Bingham, Perry County and Asher cases. It is lacking in the present case.
That KRS 64.255, if applied to justices of the peace during the current term of office, would result in a change in compensation during that term, is self-evident. For the months of January, February and the first 27 days of March, they could not and did not receive any pay for hearing criminal causes, and were limited to the fees and per diem for hearing civil cases, holding examining trials in criminal cases, and service on the Fiscal Court. Then, after nearly three months of the term has elapsed, the compensation is or could have been increased by $250 a month. If that is not an increase in compensation during the term, with every act necessary to make it effective coming after the beginning of the term, then I do not know what to call it.
Moreover, this demonstrates that the cases holding that the compensation may be fixed during the term have no application. In all these cases the salary that was validly fixed, after the election or the beginning of the term, was applicable to every month of the term, including the months, if any, that had elapsed before the compensation was fixed. Butler County v. James, 116 Ky. 575, 76 S.W. 402. In those cases the officer was entitled to that compensation from the moment he qualified and began his service, and for the reason that there was authorization for the compensation and statutory mandate that it be fixed before his election. Quite properly, this Court concluded that the governmental unit charged with the duty of fixing compensation of officers, could not, by failure to perform that duty, deprive the officer of the compensation to which he was entitled. In the present case the Fiscal Court of Harlan County was not under a duty to fix a compensation for justices of the peace for trying criminal cases prior to the time those justices of the peace were elected or even before they took office. In fact, any order fixing such a compensation for such a service prior to March 28, 1958, would have been void for lack of authority.
In those cases in which the fixing of compensation after the election or assumption of the office was held valid, the officer had a vested right in a reasonable compensation before he was elected. Robinson v. Elliott County Fiscal Court, 236 Ky. 63, 32 S.W.2d 554; Brown v. Laurel County Fiscal Court, 175 Ky. 747, 194 S.W. 907. Certainly, the justices of the peace here had no vested right in any compensation for trying criminal cases, either before their election or the beginning of the term in January 1958. The right to this compensation could not have become vested in any justice of the peace prior to March 28, 1958, and the term was nearly three months gone then. When the present justices of the peace were elected in 1957, and took office in January, 1958, there was no assurance that a statute authorizing compensation to them for trying criminal cases would be enacted. So prior to election and entering office the most they had was an expectation, which the majority have erroneously converted into a vested right.
There is yet another difference between the approved fixing of compensation after election pursuant to pre-existing legislation authorizing the same, and that upheld in this case. Where a statute requires the compensation of an officer to be fixed before his election, and this duty is not discharged until after his election, the compensation that is so fixed cannot be changed during that term. That fixing, though a delayed one, holds for the entire term, and there cannot be a second fixing of either a greater or lesser amount. Butler County v. James, 116 Ky. 575, 76 S.W. 402. If in the present case the majority are consistent, they would be forced to hold that the next Legislature could repeal KRS 64.255, effective during the current term of justices *68of the peace so as to withdraw compensation from them for trying criminal cases. If adding this compensation during the term is not a forbidden increase it would necessarily follow that withdrawing the same compensation during the term would not be a forbidden decrease.
Nor can the application of KRS 64.2S5 to justices of the peace during the current term be justified under such decisions as Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133; James v. Cammack, 139 Ky. 223, 129 S.W. 582; and Thomas v. O’Brien, 138 Ky. 770, 129 S.W. 103. In those cases legislation, authorizing additional compensation, and enacted during the term of the officer, was held applicable to those officers in spite of Sections 161 and 235, the decisions being predicated on the dubious ground that the new duties imposed, for which the added compensation was given, were outside the “official duties” of the officer. Here, it cannot be and is not claimed that the duty of presiding in criminal causes is outside the “official duties” of the justice of the peace. These officers performed this duty continuously under the present Constitution until the issuance of the mandate in Roberts v. Noel, Ky., 296 S.W.2d 745, and the majority opinion states that the duty of the justice of the peace to try criminal cases “was a continuing duty rather than a new one.”
I am fully aware that the decision in the Roberts case may have given rise to what might be called a “quasi-emergency”, although I think the withholding of the mandate is more immediately responsible for the apparent exigencies. No matter how real, or critical, in my opinion it cannot authorize or justify a manifest evasion of the clear mandates of Sections 161 and 235.
Since I have concluded that the statute cannot be applied to justices of the peace during their current term of office, I express no opinion as to whether the statute requires the rendering of this service before entitlement to the compensation.