Hager v. Franklin

Opinion of the court by

JUDGE PAYNTER

Affirming.

The appellee, Robert B. Franklin, ivas. the Commonwealth’s attorney of the Fourteenth Judicial District for the term preceding the first Monday in January, 1904. At the last November election, he was re-elected, and qualified on the first Monday in January, 1904. For the year of 1903, he was paid $4,000 out of the treasury, made up of the $500 fixed by the statute, and his per cent, of fines recovered and paid into the State treasury. At the June term, 1903, of the Bourbon circuit court, a judgment was rendered imposing a fine of $1,500 on the Peacock Distillery Company. At the December term of the same 'year of the same court, a judgment was rendered against the Bluegrass Traction Company, imposing a fine of $500'. An appeal from the first-named judgment was prosecuted to the Court of Appeals, and there affirmed, and the judgment wras paid into the treasury March 29, 1904. The judgment against the Bluegrass Traction Company was paid into the State treasury in January,' 1904. The appellee, Franklin, has been paid in monthly installments the parts of the $500 salary fixed by the statute. He now claims he is entitled to 50 per cent, of the fines assessed against the Peacock Distillery Company and the Bluegrass Traction Company. If this per cent, is paid him, lie will have received about one-half of the $4,000 which he is entitled to receive as compensation as Commonwealth’s attorney for the present year, his right to which depends upon the interpretation of section 98 of the Constitution and sections 124, 125, Kentucky Statutes, 1899. They read as follows:

Section 98 of the Constitution: “The compensation of the Commonwealth’s attorney shall be by salary and such percentage of fines and forfeitures as may be fixed by law, and such salary shall be uniform in so far as the same shall be paid out of the State treasury, and not to exceed the sum of five hundred dollars per annum; but any county may make additional compensation, to be paid by said county. Should any percentage of fines and forfeitures be allowed by law, it shall not be paid except upon such proportion of the fines and forfeitures as have been collected and paid into the State treasury, and not until so collected and paid.”

Section 124, Kentucky Statutes, 1899: “The Common-. wealth’s attorney shall receive from the State treasury fifty per centum of all judgments for fines and forfeitures rendered in favor of the Commonwealth in the several courts of his district, and this shall be in lieu of all taxed fees and perquisites; but he shall not be paid or receive any part of said per. centum from the treasury except upon such proportion of the fines and forfeitures as have been collected "and paid into the State treasury, and not until so collected and paid, unless that portion belonging to the Commonwealth shall be remitted by the Governor.”

Section 125, Kentucky Statutes, 1899: “No Commonwealth’s attorney shall be paid, or receive as compensation ■for his services as such officer, for any one year, from the State treasury, more than four thousand dollars; and should the salary and per centum of fines and forfeitures allowed under this act to such officer in any district, for any year, exceed said sum of four thousand dollars, said excess shall not be paid to such officers, but the fiscal court or the board of commissioners, in counties where, for county governmental purposes, a city is by law separated from the remainder of the county of any county, may allow the Commonwealth’s attorney for that county such compensation as they see proper, to be paid as other claims against the county are paid.”

The lower court adjudged that the appellee was entitled to the 50 per centum of the fines. It is urged for reversal (1) that as the judgments were rendered in 1903, and the appellee having received $4,000 as salary for that year, he is not entitled to 50 per cent, of the fines paid into the treasury by virtue of the judgment; (2) that the per centum of fines, the same as the salary fixed by law, should be paid monthly out of the treasury.

It will be observed that, under section 98 of the Constitution, the salary of Commonwealth’s attorneys should be fixed by law, and that it shall be uniform in so far as it is paid out of the treasury, and that it shall not exceed the sum of $500 per annum. It was also contemplated that, in addition to the sum so limited to be paid out of the treasury, the General Assembly should provide by law that they are to have a percentage of the fines and forfeitures collected and paid into the treasury. Section 124, Kentucky Statutes, 1899, provides that they shall receive from the Slate treasury 50 per cent, of all fines and forfeitures, but that the treasurer shall not pay that per centum, “except upon such proportion of the fines and forfeitures as have been collected and paid into the State treasury, . , . unless that portion belonging to the Commonwealth shall be remitted-by the Governor.” Section 125, Kentucky Statutes, 1S99, limits his salary to $4,000, payable out of the State, treasury. The declaration of' the General Assembly that the 50 per centum should not be received by the Commonwealth’s attorney until collected and paid into the treasury was equivalent to saying that it should be paid to him when tlie fines and forfeitures were collected and paid into the treasury. The Legislature could not have made its meaning clearer, had it expressly provided that the 50 per centum of the fines and forfeitures should be paid to the Commonwealth’s attorney when collected and paid into tlie treasury. When a judgment is rendered for a fine or forfeiture, it may be said that the Commonwealth’s attorney has an inchoate interest in it, but that interest does not ripen into a demand upon the treasury until it is collected and paid into it. The mere fact that a judgment is rendered one year, and is not collected until the next year, and paid into the treasury, does not prevent the Commonwealth’s attorney from receiving his per centum of it, and applying it to his salary for the year in which it is collected, because the statute provides that, when collected and paid into the treasury, he shall receive his per centum of it. It is urged that a Commonwealth’s attorney might thus be enabled to collect his entire year’s salary in the first months of the year, and might then resign or die. This may be true. That suggestion is fully answered by a statement that it is not the province of executive officers and courts to legislate, nor to disi’egard laws enacted by the lawmaking department of government. The constitutional convention saw proper to restrict the power of the General Assembly so as not to allow Commonwealth attorneys reasonable compensation, except upon the contingency that they could recover judgments for fines and forfeitures, and have them paid into the State treasury. When the Legislature has expressly provided that, when the contingency arises which enables a Commonwealth’s attorney to collect part of his salary, the courts ought not to hold that it has not arisen, simply because a Commonwealth’s attorney might die or prove unfaithful to his trust. It is urged that the Commonwealth’s attorney should be paid his per centum of fines and forfeitures monthly. If the Legislature had recognized that the practical operation of the statute fixing the salary of the Commonwealth’s attorney would give him his per centum of the fines and forfeitures monthly, it would have so declared. It must have known that this could not be done, because at the close of many months in the year, probably, there would be nothing to the credit of the Commonwealth’s attorney for fines and forfeitures. Besides, it is impossible to tell what the Commonwealth’s attorney’s per centum of fines and forfeitures will be during the year. Therefore it is not possible to pay his per centum in monthly installments.

The conclusion the court has reached is that the Commonwealth’s attorney is entitled to his per centum of the fines and forfeitures when collected and paid into the treasury. This conclusion is in harmony with the spirit of the statute, for the amount , of the Commonwealth’s attorney’s salary depends upon a contingency. If an event happens in the early part of the year which brings a sum to make up his salary, he should have it, because it is possible that the contingency might not happen which would give him anything in addition to the $500, and, if it did happen, it might not be until the last of the year. Chinn v. Shackelford, 117 Ky., 700, 78 S. W., 908,25 Ky. Law Rep., 1813, is in harmony with >our conclusion in this case. We do not think the cases cited by the attorney general support the opposing view.

on rehearing January 25, 1905,

The judgment is affirmed.