concurring.
While I agree that the increased compensation which the Appellees voted to pay themselves cannot be justified as a “rubber dollar” adjustment, I disagree with that portion of the majority opinion which holds that the maximum “rubber dollar” adjustment allowable in any particular year must correlate with the increase in the consumer price index during the preceding year. Neither the language of KRS 64.527 nor the holdings of our previous cases support that conclusion.
Section 246 of the Constitution of Kentucky, as amended in 1949, provides:
No public officer ... shall receive as compensation per annum for official services ... any amount in excess of the following sums: Officers whose jurisdiction or duties are coextensive with the Commonwealth ... and Judges and Commissioners of the Court of Appeals, Twelve Thousand Dollars ($12,000); Circuit Judges, Eight Thousand Four Hundred Dollars ($8,400); and all other public officers, Seven Thousand Two Hundred Dollars ($7,200).
Section 161 of the Kentucky Constitution provides:
The compensation of any ... county ... officer shall not be changed after his election or appointment, or during his term in office ....
KRS 64.530(4) provides:
In the case of county officers elected by popular vote ... the monthly compensation of the officer ... shall be fixed by the fiscal court ... not later than the first Monday in May in the year in which the officers are elected, and the compensation *5of the officer shall not be changed during the term ....
KRS 64.530(6) provides:
Justices of the peace [magistrates] serving on the fiscal court in any county ... shall be paid for their services, out of the county treasury, not to exceed the maximum compensation allowable under KRS 64.527. The fiscal court shall fix the amount to be received within the above limit, but no change of compensation shall be effective as to any member of the fiscal court during his term of office.
In Matthews v. Allen, Ky., 360 S.W.2d 135 (1962) and Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965), we held that the maximum compensations recited in section 246 of the Constitution meant the purchasing power of such compensation in 1949 dollars, and that the compensation could be adjusted upward in accordance with increases in the consumer price index in order to maintain that purchasing power, hence the “rubber dollar.” We also held in Hesch that such adjustments were not “changes of compensation.” Thus, those portions of KRS 64.530(4) and (6) which prohibit changes in compensation during the term of office do not apply to such adjustments. In Hasty v. Shepherd, Ky.App., 620 S.W.2d 325 (1981), the Court of Appeals specifically applied the “rubber dollar” principle to salary increases which county magistrates voted to themselves, and held that such adjustments did not constitute the “change of compensation” contemplated by KRS 64 .530(4) and (6). In response to Matthews and Hesch, the legislature enacted KRS 64.527, which provides:
In order to equate the compensation of ... justices of the peace ... with the purchasing power of the dollar, the Department of Local Government shall compute by the second Friday in February of every year the annual increase or decrease in the consumer price index of the preceding year by using 1949 as the base year in accordance with Section 246 of the Constitution of Kentucky which provides that the above elected officials shall be paid at a rate no greater than seven thousand two hundred dollars ($7,200) per annum. The Department of Local Government shall notify the appropriate governing bodies charged by law to fix the compensation of the above elected officials of the annual rate of compensation to which the elected officials are entitled pursuant to the increase or decrease in the consumer price index. Upon notification from the Department of Local Government, the appropriate governing body may set the annual compensation of the above elected officials at a rate no greater than that stipulated by the Department of Local Government.
Nothing in KRS 64.527 requires the cost-of-living adjustment allowable in any particular year to correlate with the percentage of increase in the consumer price index for the previous year. The statute only requires the Department of Local Government to notify appropriate governing bodies of the maximum annual rate of compensation based on the present value of $7,200 in 1949 dollars. In fact, the increase in Matthews was from $8,400 to $10,800 per annum; in Hesch, the increase was from $7,200 to $9,600 per annum; and in Sarakatsannis v. Baker, Ky., 488 S.W.2d 683 (1972), the increase was from $7,200 to $12,600 per annum. In all of those cases, the percentage of increased compensation exceeded the previous year’s percentage of increase in the consumer price index. (The opinion in Hasty v. Shepherd, supra, does not state the amount of the increase awarded in that case.)
This does not mean that any magistrate’s salary can be adjusted to the maximum computed under KRS 64.527 without application of KRS 64.530(4) and (6). It only means that a magistrate is entitled to cost-of-living adjustments necessary to make his or her present salary equate with the purchasing power of whatever the salary was for that office in 1949. If the 1949 salary was the maximum, $7,200, and has not been reduced in the interim, then the present holder of that office would be entitled to an adjustment to the maximum certified pursuant to KRS 64.527. But if the 1949 salary was, e.g., $1,000 per annum, the present officeholder would be entitled not to an adjustment that would equate his or her present compensation with the 1949 purchasing power of $7,200, but to an adjustment that would equate that com*6pensation with the 1949 purchasing power of $1,000. Any increase in excess of that amount would be a “change of compensation” subject to the dictates of KRS 64.580(4) and (6).
Here, the maximum compensation certified pursuant to KRS 64.527 for 1994 was $44,047 per annum. OAG 94-7. Appellees increased their compensation from $7,200 to $14,400 per annum. However, the $7,200 per annum compensation had been in effect only since 1981. The 1949 salary for Pulaski County magistrates is not shown in this record, thus, there is no way to determine how much of an adjustment would be necessary in order to equate the purchasing power of their 1949 salary to 1994 dollars. Appellees had the burden of proof in that regard. Carey v. Washington County Fiscal Court, Ky.App., 575 S.W.2d 161 (1978). However, Appellees would be entitled to an adjustment which would equate the purchasing power of their 1981 salary to 1994 dollars.
Appellees concede in their brief that application of annual increases in the consumer price index to a 1981 salary of $7,200 per annum ($600 per month) would have permitted a cost-of-living adjustment in January 1994 of only $12,170.88 per annum ($1,014.24 per month). Thus, the increased compensation Appellees awarded to themselves retroactive to January 1, 1994 was not a “rubber dollar” adjustment pursuant to KRS 64.527, but a “change of compensation” awarded contrary to the dictates of KRS 64.530(4) and (6).
JOHNSTONE, J., joins this concurring opinion.