dissenting opinion:
The court concludes that there is no conflict between the act of 1893, enacted for the government of cities of the first class, and the amendment thereto, passed in 1894. I am of the opinion that the conclusion of the court in this respect is incorrect. It is unnecessary to make an argument to show that, if there is a conflict in the two acts, the act of 1894 must control, and be held to repeal that part of the act of 1893 inconsistent therewith. By section 2765, Kentucky Statutes, the legislative power of the city of Louisville is in its general council. By section 2783, it is authorized to pass for the government of the city ■any ordinance not in conflict with the Constitution of the United States, the Constitution of Kentucky, and the statutes thereof. 'Section 2756 provides that “except as otherwise herein provided, the general council may by ordinance prescribe the duties, define the term of office, and fix the compensation and the bond and time of election of all the officers and agents of the city.” Section 2802 creates the board of public safety. Section 2809 provides: “Said boards shall have the right to employ such •officers and agents as may be necessary, and, subject to such limitations as the general council may prescribe, may fix the compensation of such officers and agents.” *642Section 2861 gives the board of public safety exclusive control, under the ordinance of the general council, of all matters relating to the fire department, the police department, etc. By reason of section 2783, authorizing the general council to pass ordinances not in conflict with the Constitution of the United States, the Constitution of Kentucky, and the statutes thereof, any ordinance which existed before the passage of that act, or one which was enacted subsequent thereto, if it is in conflict with the Constitution of the United States, the Constitution of Kentucky,-and the statutes thereof, is void. Section 2756, authorizing the general council, by ordinance, to prescribe the duties, define the terms of office, and fix the compensation and the bond and time of election of all officers and agents of the city, except as otherwise provided, does not control, if the statute confers upon any other authority the right to appoint certain officers or agents; and fix their compensation. The plain letter of the statute restricts the right of the general council in this regard to officers and agents, the appointment, election, and compensation of which is not regulated by other provisions of the statute. That section could not have reference to such officers and agents needed by the -board of public safety in the discharge of its duties, because section 2809 provides that it shall have the right to employ such officers and agents so needed by it. There is but one qualification of the rights of the board in this regard, and that is, in fixing the compensation for such officers and agents as it may employ, it must do so subject to such limi tations as the general council may prescribe. Under sec tion 2861, the board of public safety was given the exclusive control, under the ordinance of the general council, of all matters relating to the fire department, the police *643department, etc. This section seems to have given to the board the exclusive control of the police department, but that control could only be exercised under the ordinance of the general council. Of course, the meaning of that provision of the section which requires them to control it under the ordinance of the general council did not confer upon the general council the right to enact any law inconsistent with the provisions of the statute governing cities of the first class; for that section must be read in connection with the other section, which prohibits the general council from enacting any law inconsistent with the Constitution or any statute. There seémis to be nothing . in that section, or any section of the act of 1898, which conferred upon the board of public safety the right to fix the compensation of policemen; neither was there anything in the act which expressly said that the common council could do so; but, as the control of the police department was conferred upon the board of public safety under the ordinance of the general council, it is fair to conclude that the general council, as there was no statutory enactment upon the subject, could fix the compensation of the police force by ordinance. If section 2809 had reference to patrolmen, then express authority was conferred upon the general council to employ police patrolmen and fix tlieir compensation.
My opinion is that the officers and agents referred to in that section are the clerical force and employes needed in and about the office of that board, and necessary for the performance of its duties, having no reference whatever to the police force of the city. .Sections 2765, 2783, 2756, 2802, and 2861 are analyzed to show the authority of the board of public safety and general council before the act of 1894. This act made a radical change in the law *644with reference to the control of the police department in the matter of controlling and fixing the compensation of patrolmen. It increased the authority of the board of public safety, and limited that of the general council with reference thereto. If the Legislature had intended that the board of public safety could only exercise its control of the police force under the ordinance of the common council, it was wholly unnecessary to enact section 2873, the first section of the act of March 23, 1S94, which reads as follows: “The government, administration, disposition and discipline of the police department and police force shall be such as the board of public safety may, and is hereby authorized from time to time by rules, orders and regulations, prescribe, but in strict conformity to the provisions of 'An ac;t for the government of cities of the first class.’ ” This section confers authority and 'power upon the board of public safety to do certain things. Previous to that time the power was limited in its exercise by the ordinances of the city. This section does not make the board subject to the ordinances of the general council, but to an act for government of cities of the “first class; meaning that the board of public safety should be controlled by any provision of that act which in terms pointed out any duty for it .to. perform in the' management of the police department. The act of 1893 prescribes the qualifications of a patrolman; places the police force under the orders and direction of the mayor, in times of peril, riots, extensive conflagration, disorder, or the apprehension thereof; authorizes the board of public safety to appoint special police'; prohibits a policeman from receiving, without the consent of the board, gratuity or compensation in addition to his salary for any service he may render. These are some of the provisions of the act of 1893 which the *645Legislature intended to preserve in the act of 1894 when, it said the government, administration, disposition, and discipline of the police department and police force should "be such as the board of public safety might prescribe, in conformity to the provisions of “An act for the government of cities of the first class.” It did not intend to preserve in the general council a power which the- language of the amendment shows was intended to be taken from it and placed in the board of public safety. It would violate every rule for the interpretation of statutes to hold that an amendatory statute intended to preserve all the provisions of the act of which it is an amendment, although some of the provisions of the amendment were inconsistent therewith. It would have been folly for the Legislature to declare that the government, administration, disposition, and discipline of the police department and police force should be such as the' board of public safety may, and was thereby authorized from time to time, by rules, orders, and regulations, prescribe, and at the same time leave it in the power of the general council to compel the board to control the police force in whatever way it might by ordinance prescribe. The amendment of 2894 gives the board of public safety the right to remove policemen upon charges; to see that the ordinances are enforced which are not in conflict with the law; to establish, provide, and furnish stations and station houses for the accommodation of members of the police force, and place for the temporary detention of persons arrested; to furnish horses and wagons, to be known as “patrol wragons,” which horses and wagons were placed under its exclusive control; to establish mounted patrol, and procure, use, and employ as many horses and equipments as shall be requisite for the purpose; to prescribe and *646cause to be used and teams and vehicles required; to ■make promotions of officers and members of the police force; to forfeit and withhold their pay for a specified time; to suspend without pay, and to withhold their pay, on account of absence for any cause without leave. There are other powers vested in it by the amendment of 1894. which are not necessary here to enumerate. Section 2884. Kentucky Statutes (being part of the act of 1894), reads as follows: “The board of public safety shall designate the salary and compensation for each member and officer of said police force, and may fix the salaries and compensation of such clerks and employes, other than policemen, whom they shall be authorized' by law to employ, subject, however, to the gross amount of the appropriation made by the general council for the support of said department. The compensation of the members of the police force shall be payable, monthly by pay rolls as provided by ordinances.” If it was intended, as held' by the court, that the general council could fix the compensation of .the patrolmen under the act of 189S, why was it provided in the act of 1894 that the board of public safety “shall designate the salary and compensation- for each member and officer of the police force?” Why did the Legislature do the idle thing of saying the -authority was vested in the board of public safety to regulate their salary and compensation, and at the same time intend that such authority should be exercised by the general council? To say that was the intention of the Legislature is to say that it used language plain and unambiguous, with a definite and certain meaning, to convey exactly the opposite meaning from that which it imports. It is to say that the Legislature, when it said that the board of public safety should designate salaries of policemen, meant that the general council *647should do so. If it was certain, under the act of 189;>, as held by the court, that the general oounoil had the authority to fix the salaries of polieem'en, why did the Legislature want to again confer,that power upon it by an amendatory act? But the strange part of it is, in order to confer that authority upon the general council in the amendatory act, it in terms said that the board of public safety was authorized to do that very thing. If this be a proper method of conveying ideas or expressing an intention, it would follow that if one desire to describe a black horse to his friend, he would say it was covered with a perfect coat of white hair. As the statute requires that the board of public safety shall designate the salaries and compensation of patrolmen, it would seem that no other authority dould do so. To designate salaries and compensation certainly does not mean that the board is to designate patrolmen to earn salaries wnicli have been designated by the general council. Independent of the language of the clause in question, I would conclude that it did not have such a meaning, because, by an express provision of the statute, the board is authorized to appoint the patrolmen. If it was intended by the Legislature that the general council should'designate the salaries of patrolmen, one, though not of an inquiring bent of mind, would ask why it expressly siaid the board of public safety should do so.
The court asks the question, may the general council cut down the police .force? It then proceeds to discuss it as if the answer to same depended upon showing that the Legislature can not give any city official an office for life or good behavior. That is not the’ question involved in this case. The question here is not whether the Legislature can give a city official an office for life *648or good behavior, but whether the general council can reduce the police force. , A constitutional question is not involved, but the question is whether the Legislature has conferred upon the general council or the board of public safety power to determine what number of policemen shall be employed. That the general council has the right to say whiat amount of taxes shall be levied and collected for the police department is not questioned. It is equally as plain under the law that the board of public safety shall say what number of patrolmen shall be paid out of the fund provided by the general council with this limitation, to wit, that the patrolmen whom they appoint shall .not exceed 300. The general council might, by making a small or insufficient appropriation, render it necessary for the board of public safety to reduce the compensation of patrolmen below living wages. From the power thus existing in the general council to starve or cripple the executive department of the government, the right does not arise to invade the province- of the police department of the executive branch of the Government, -and usurp functions expressly conferred upon that department. The legislative will and intention as to who shall fix the number of policemen and appoint them is clearly expressed in section 2880. which reads as follows: “The police force shall consist of one chief of police, with the rank of colonel; one assistant ehief of police, with the rank of major; captains of police, not 'exceeding in number one to each fifty of the total number of patrolmen; lieutenants of police, mot exceeding one to each thirty patrolmen; sergeants of police, not exceeding in number one to each thirty patrolmen; detectives of police, not exceeding twelve in number, one of whom shall be chief of detectives; and patrolmen not exceeding three hundred *649In number. The board of public safety shall appoint all the members of the police force. The board of public safety shall have power, and it is authorized to increase the police force by adding to the number of patrolmen from time to time, provided the general council shall have previously -made an appropriation for that express purpose. The board of general council may include in the annual tax levy1 an amount sufficient to provide for the compensation of the additional patrolmen authorized to be appointed pursuant' to the provisions of this section. The board-of public safety shall maintain and continue a detective force, and shall select and appoint to -perform detective duty as many ’ patrolmen, not exceeding twelve in number, us said board of public safety may, from, time to time, determine to be necessary to make this branch of the police force efficient. The patrolmen so selected and appointed shall be called detectives, and shall, while performing such detective duty, be vested with the same authority and be entitled to receive and be paid such salary as policemen, as the general council may, from time 'to time, provide. But the board of public safety may, by resolution, reduce to the grade of patrolmen and transfer such detectives, or anyr number of them, to perform patrol or other police duty, and when so transferred they shall only be entitled to receive and be paid the same rate of compensation each as patrolmen of police.” This section fixes the number of officers the police force shall have, and the number of detectives “and patrolmen, not exceeding three hundred in number,” and provides that the board of public safety shall appoint them. It further ■provides that “the board of public safety shall have power, and it is authorized to increase the police force by adding to the number of patrolmen from time to time, provided *650the general council shall liave previously made an appropriation for that express purpose.” It also provides that the general council may “include in the annual tax levy an amount sufficient to provide for the compensation of the additional patro'men authorized to be appointed pursuant to the provisions of -this section.”
There is no limitation on the right of the board of public safety to appoint patrolmen, within the number of 300. It can not appoint more than that number unless the general council has previously made an appropriation for * that express purpose. To have more than 300 patrolmen, it requires ithe concurrent action of the board of public safety and the general council. It is plain from that section that the general council can not appoint patrolmen, nor oontrol the number, within the 300 limit. It can only prevent an increase in the number over 300 by refusing to make an appropriation ito meet such an expense. The court draws an unauthorized conclusion from the provision that the board of public safety can only increase the force when the general council has made an appropriation therefor; for it says: “When the board of public safety is denied the power to increase the force until the general council has previously made am appropriation for that .express purpose, the general council, as the legislative branch of the city government, is left, as before, with power to regulate the matter.” The court is referring to the right of the general council to reduce the number of patrolmen. The reasoning is certainly very unsound, when the court considers that, because the law ■only authorizes the board of public safety to increase the number of patrolmen when an express appropriation has been made therefor, the general council can reduce the number which the law expressly authorizes the board *651of public safety to appoini; and maintain out of the general appropriation for that purpose. The provision to which so much importance is attached only imposes a condition upon which the increase of the number of patrolmen shall be made. It is not a grant of power to the general council, but to the board of public safety, to be exercised only on a contingency which the general council can create. Another deduction is drawn from a provision of section 2880, which is not supported by the letter or spirit of it. The court says: “It can not be reasonably supposed that the Legislature intended that the council might regulate the salaries of these, but be without power to regulate the salaries of the remainder.” The court referred to that part of section 2880 which reads1 as follows: “The board of public safety shall maintain and continue a detective force, and shall select and appoint to perform detective duty as many patrolmen not exceeding twelve in number, as said board of public safety may, from time to time, determine to be necessary to make this branch of the police force efficient. The patrolmen so selected and appointed shall be called detectives, and shall, while performing such detective duty, be vested with the same authority and be entitled to receive and be paid such salary as policemen, as the general council may, from time to time, provide. But the board of public safety may, by resolution, reduce to the grade of patrolmen and transfer such detectives, or any number of them, to perform patrol or other police duty, and when so transferred they shall only be entitled to receive and be paid the same rate of compensation each as patrolmen of police.” The detective force, not exceeding twelve, are independent of, and in addition to, the patrolmen which the board may appoint, and, while performing detective duty, are vested with the same au*652thority, and are entitled to receive and be paid such salaries as policemen as the general council may, from time to time, provide. The latter clause relates alone to the twelve detectives. Whatever may be meant by it, in view of the preceding part, which says they shall be paid such salaries as policemen, it is difficult to tell, unless it means to impose upon the general council the duty of providing by appropriation for the salaries of such detectives. It might with some plausibility be argued that the general council could fix the salaries of such detectives while acting as such, as the following clause of the section provides that the board <of public safety may, by resolution, transfer such detectives, or any number of them, to perform patrol or other police duty, and when so transferred they shall only be entitled to receive and be paid the same rate of compensation each as patrolmen of police. The question arises, if they have not been authorized while acting as detective to get any greater salary than policemen, why provide that when they are placed on police duty they are to have the rate of compensation each as patrolmen of police? As the language, “as the general council may, from time to time, provide,’’ relates exclusively to the twelve detectives, it is not, necessary to make further suggestions as to what is its meaning, as I understand there is no question' here of the right to reduce the detective force. But the most reasonable interpretation of it is that such a detective force, not to exceed twelve in number, shall be maintained, as the geperal council may provide the means to pay them. ’
Unexpended balance: The court holds that unexpended balances of appropriations for police purposes must be reappropriated before they can be used by the board of public safety to pay the expenses of the police depart*653ments of the cities, and as authority for so holding cites the case of the Board of Education of City of Paducah v. Paducah (Ky.) 56 S. W., 119. (21 Ky. L. R., 1650) A question similar or analogous to the one here involved was not decided by the court in that case, neither was one decided which is akin to it. By virtue of the charters of ,cities of the third class it was made the duty of their boards of education to estimate and report to the city council the amount of money needed to defray the expenses of the school for the current year, and it was the duty of the city council to make a' levy and raise the necessary fund. It appeared in that case that the city council did so, but more was collected than was needed for the purpose, and the council refused to pay the unexpended balance to the school board. The school board instituted an action to recover it, and the-court decided that, as the board had received all the ■money it had demanded, and to which it was -entitled, notwithstanding there was an excess collected, it was not entitled to recover it from the city. In that case unexpended balances had never been paid to the board of education, and the purpose of the suit was to recover, it. Neither was the question before the court as to what should be done with the exces-s that was in the hands of the city, for it said: “It is not important and would not be proper,, under the pleadings in this proceeding, to determine the disposition that should be made by the city council of the surplus money so illegally collected.” In this case the money collected under the levy made by the general council of Louisville was credited to the board -of public safety, as the law prescribed that it should remain as- a separate fund in the hands of the treasurer of the city, and it further provides that it shall not be diverted from the *654board or used by the mayor or general council for any other purpose. Whatever unexpended balance of taxes that were collected for the purpose of paying the police force is to the credit of the board of public safety. In the case of Board of Education of City of Paducah v. Paducah, there was no statute providing what should be done in the case of unexpended balances, but the statute did contemplate that the board should only receive an amount from the city which was sufficient to pay the expenses of the city school. Section 180 of the Constitution provides as follows: “The General Assembly may authorize the counties, cities or towns to levy a poll tax not exceeding one dollar and fifty cents per head. Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town, or municipal board or local legis-. lative body, levying a tax, shall specify distinctly the purpose for which such tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.” The Legislature, knowing that there might be deficits and unexpended balances of appropriations, enacted section 29.82, Kentucky Statutes (Acts 1898, p. 108), which reads as follows: “In no fiscal year shall the general council appropriate or expend, or contract for the expenditure, of more than ninety-five per cent, of the estimated revenue of the current year, unless more than that shall be actually collected; and if in any year less than ninety-five per cent, of the estimated revenue shall be collected, any deficiency within ninety-five per cent, may be provided for in the levy of the next year, and shall be called the 'deficit tax.’ Any unexpended balance of an appriation in any current fiscal year shall be added by the comptroller to the amount appropriated for the same *655purpose out of the levy for the succeeding year. Unappropriated balances of levies in any currant fiscal year when collected shall be passed by the treasurer to the credit of tiie same funds for the succeeding year.” This section contemplated that unexpended balances of taxes levied and collected for a specified purpose should be held and used for that purpose. It is not in conflict with the Constitution for the Legislature to regulate the use of these unexpended balances, in so far as its enactments provided they shall be used for the purpose for which they were levied and collected. The section of the statute quoted gives practical force and operation to section 180 of the Constitution. My opinion is that it is not. necessary to have a reappropriation of the unexpended balances of the fund levied for police purposes, because the Legislature has obviated that necessity by appropri ating or directing liow 'they shall be used.
Recurring to the matter hereinbefore discussed, I desire-to add that the scheme of the act of 1894 was io take-from the legislative department of the city government the control -of the police department, and place it within the control of the board of public safety, that being part of the executive branch of the government. It was deemed wise that the legislative department should provide the means to pay the expenses of the police force, but the responsibility for the appointment of patrolmen and their -officers, and the fixing of the compensation that each should receive, was -placed upon the b,oa,rd of public-safety. The act not only does this, but imposes many duties in addition thereto that were formerly imposed by law upon the general council. In my opinion, the court has not only reached an erroneous conclusion upon the *656issues raised; but lias considered and decided a question not involved on this appeal. I dissent from the ©pinion of the court.
Judges White and Guffy concurring.Petition for rehearing by appellee overruled.