(concurring).
The majority opinion holds that House Bill 65, making a Special Appellate Commissioner of each regular circuit judge, is valid. I agree with this conclusion but I cannot accept the reasoning of my colleagues in reaching the conclusion.
The majority opinion does all but eradicate the ink with which Section 246 of the Kentucky Constitution is written. I continue to adhere to my often expressed opinion that this is the prerogative of the people.
As I view House Bill 65, the General Assembly did three separate and distinct acts. First, it created at least sixty-five offices, to wit, Appellate Court Commissioners. Second, it filled each office with a regular circuit judge. Third, it set a uniform salary for the new commissioners.
As I construe the Act, each regular circuit judge is to hold two separate and distinct offices. The duties of one are strictly appellate for which the judge is to be paid $2400.00 per annum. The duties of the other office pertain to matters generally arising in a court of original jurisdiction for which he is to be paid not exceeding $8400.-00 per annum (Section 246 Kentucky Constitution) the payment of which is now authorized by KRS 64.498.
Under Section 235 of the Kentucky Constitution the salary of a public officer can*140not be changed during his term of office. Here, however, there is a completely new office created by statute and the duties thereunto attached are by the statute made coextensive with the Commonwealth. The new duties are so unrelated to the regular and general duties of a circuit judge that it is unnecessary to try to escape the limitations provided by Section 235. The judge has no extra duties as circuit judge. He has been given another job wholly unrelated and for which he is to receive additional compensation. There is no constitutional restriction upon the Legislature to authorize it. See Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133; James v. Cammack, 139 Ky. 223, 129 S.W. 582. Whether as an officer whose duties are coextensive with the Commonwealth or as a Commissioner of the Court of Appeals, both of which are specifically mentioned in Section 246, the Legislature could properly fix the salary so that the aggregate amount would not exceed $12,000.00, the limit provided by Section 246. This was done by the Legislature and, without the majority opinion, the constitutional bars would not be torn asunder. There is no need in the matter before us to do violence to Section 246 with the adequate pay dissertation.
I have considered the question of compatibility. It is my conclusion that so long as the Special Commissioner is not assigned cases appealed from his own court the offices of Circuit Judge and Special Appellate Commissioner are not incompatible.
The wording of Section 246 makes it clear to me that in no event can the aggregate compensation of the Circuit Judge and Special Commissioner exceed $12,000.-00.
It is my conclusion that the act must be upheld but that the constitutional limitations should be preserved. The majority opinion does not respect the sanctity of the fundamental writ and for that reason I cannot agree. I do, however, concur in its basic conclusion.