I concur in the majority opinion insofar as it holds section 1 of the act under consideration constitutional, and that official expenses can be paid in a lump sum, but I am unable to agree with the majority of the court that sections 2 and 3 of the act are constitutional, basing my dissent mainly upon the ground that the expenses contemplated to be paid to the judges and commissioners of the Court of Appeals are personal expenses, rather than official expenses, the payment of which would constitute additional compensation to these officers and amount to an increase in salary.
This is the first time the legislature has ever attempted to pay officers and employees of the state to come to work at their regular place of employment. It has always been understood that an officer or employee would bear this burden out of his salary, and it is not readily understandable why the legislature would be so solicitous about the judges and commissioners of the Court of Appeals and so indifferent as to the other state officials and employees who must continue to bear the expense of their attendance at their place of employment.
The majority opinion establishes a dangerous precedent and once established would justify every other officer and employee of the state to demand of the legislature similar treatment. It would be better for the legislature, within the limits of the constitution, to enact legislation increasing salaries to an amount commensurate with the duties to be performed in the light of present economic conditions, and to do so directly, instead of under the guise of paying so called "official expenses," *Page 607 which are in their very nature "personal expenses."
An examination of the constitution of Kentucky with reference to public officials discloses that by section 114, the judges of the Court of Appeals are required to be residents of the judicial district from which they are elected; by section 112, they shall, at stated times, receive for their services an adequate compensation, to be fixed by law ($5,000, KRS 21.010), which is the highest amount that can be paid under section 246 of the constitution; by section 111, the Court of Appeals shall be held at the seat of government (Frankfort); by section 235 these salaries may not be changed during their term of office.
It is interesting to note that by section 42 of the constitution the compensation of members of the General Assembly is fixed at $5 per day and 15c per mile for traveling from their legal residence to place of meeting of the General Assembly and return, but this compensation may be changed by the legislature, which has been done.
The framers of the constitution recognized that the judges of the Court of Appeals would have to travel from their homes to the seat of government to perform their official duties, as they did that the members of the General Assembly would likewise be required so to do, but they saw fit to provide a mileage allowance for the members of the General Assembly and none for the judges of the Court of Appeals or any other officer mentioned in the constitution, thereby requiring the judges of the Court of Appeals and these other officers to look to their salaries as adequate compensation for the duties to be performed by them at the seat of government, and, in my opinion, the failure of the constitution to contemplate payment of such expenses to the judges or any other officer, except members of the General Assembly, indicates that it was not the intention of the framers of the constitution that such expenses be paid and is a clear inhibition upon the legislature to provide for the payment of such expenses.
It is a universally recognized rule of construction that, where the constitution or statute specifies certain things, the designation of such things excludes all others, *Page 608 and, in my opinion, the failure of the constitution to make provision for the payment of the expenses and for the other things mentioned in sections 2 and 3 of the act under consideration here, is an inhibition on the power of the legislature to provide for the payment of such expenses.
The emergency clause in the act clearly shows that the intention of the legislature was to grant more pay to the judges and commissioners on account of the fact that the present economic conditions impose an unconscionable burden upon the judiciary of the Commonwealth and creates a threat to the expenditious and impartial administration of justice. Clearly the legislature has attempted to find a lawful way to increase the "take home" pay of the judges of the Court of Appeals and commissioners without denominating its action as an effort to increase the salaries of these officials. The statements of the legislature in the emergency clause, if they be the sentiment of the legislature, are laudable. However, it is too patent to be denied that this "expense law" owes its origin to the fact that these salaries fixed some fifty-seven years ago, are now unfair and wholly disproportionate to the duties of these officers and the conditions under which they must be performed. The remedy for this wrong and injustice lies, however, not with the courts or the legislature, but with the people. On at least two occasions the people have refused to amend the constitution to permit an increase in salaries of public officials over and above the $5,000 limit as provided by section 246 of the constitution and it is earnestly hoped by the writer of this opinion that the amendment to accomplish this purpose will be ratified by the people in the general election in 1949, when such amendment will again be submitted to a vote of the people.
The majority opinion, while supported by the South Dakota cases, is contrary to the decided weight of authority, and since this is a case of first impression in Kentucky, it is the first time, so far as I can ascertain, that the Court of Appeals has refused to follow the decided weight of authority in any case.
I think this case turns upon the difference between official expenses and personal expenses and I am of the *Page 609 opinion that only "official" expenses can be paid, and that the expenses contemplated by sections 2 and 3 of the act are purely "personal" expenses. If this be true, then they become "perquisites," something gained by place or office beyond regular salary or fee, and constitute additional compensation or increase in salary.
Official expenses are those incurred by an official in the discharge of his official duties, and if he is required to leave his official place of business and go out through the state, the travelling expenses incurred by him, food and lodging, in attendance upon these duties would constitute official expenses, as would office rent, official telephone, stenographer, supplies, and expenses of that character, all of which would be incident to the discharge of his official duties.
The expenses contemplated to be paid for in a lump sum of $100 a month to the circuit judges by section 1 of the act, in my opinion, are official expenses, and it is admitted in this case that they fall into this category, and for this reason can be legally paid.
The judges of the Court of Appeals and commissioners are furnished an office, Stenographer, light, heat, telephone, stamps, stationery, typewriters, library, and every expense which I concede to be official expenses and are at no expense whatever in the discharge of their official duties, nor are they required to ever leave their official place of business at the Capitol and go out into the state in the discharge of their official duties, so that I can conceive of no incidence wherein either the judges or the commissioners would ever incur any official expenses.
Practically all the judges and commissioners of the Court of Appeals have voluntarily established a residence in Frankfort and had been living there for many years at the time the act in question was passed. Section 3 of the act could not have any application to them, even if it were constitutional, because they did not move to Frankfort in order to facilitate the work of the Court or to avoid the expense, delay and inconvenience of frequent trips to and from the place of their legal residences to the State Capitol, and to now pay them the sum of $150 each month on account thereof clearly would constitute a gratuitous payment for personal living expenses. This *Page 610 section of the act itself deals with the future contingencies and the legislature must not have intended to make this payment of lump sum expenses to the judges and commissioners of the Court of Appeals who were already residing in or near Frankfort at the effective date of the act, and for this additional reason the judges and commissioners of the Court of Appeals now in office and now residing at or adjacent to the capitol could not claim the benefit of this expense allowance.
As hereinbefore stated, the great weight of authority is to the effect that the expenses that may be paid are "official expenses" and not "personal expenses."
In 45 American Jurisprudence 154, section 368, it is written:
"Public officers are very often allowed statutory compensation for expenses incurred by them in the performance of their official duties. Such allowances for expenses are something different from salaries, emolument or perquisite, and prohibitious against changing these do not ordinarily apply to an allowance for expenses. Where, by constitutional provision, the compensation of a designated officer or class of officers for the performance of official duties is fixed, official expenses may be allowed to the officer, but not personalexpenses." (My emphasis)
In support of this text the following cases are analogous and support my position and constitute what I think is the weight of authority: Ferris v. Aten, 1947, 318 Mich. 528,28 N.W.2d 899; Gallarno v. Long, 1932, 214 Iowa 805, 243 N.W. 719; Dixon v. Shaw, 122 Okl. 211, 253 P. 500, 50 A.L.R. 1232; State v. Clausen, 142 Wn. 450, 253 P. 805; Ashton v. Ferguson,164 Ark. 254, 261 S.W. 624; Jones v. Hoss, 132 Or. 175,285 P. 205; Peay v. Graham, 162 Tenn. 153, 35 S.W.2d 568.
It is interesting to note that the South Dakota case which the majority opinion mainly relies upon, was rejected by the regular Court of Appeals in the case of Rhodes v. Miller, cited in the majority opinion. The dissenting opinion in the case of State v. Reeve, 44 S.D. 568, 184 N.W. 993, cited in the majority opinion, appears to me to be more sound than the majority opinion. In the dissent of Justice Hayes, appearing, 184 N.W. at page 1006, he stated: *Page 611
"Household expenses, living expenses, whether increased or diminished and regardless of where an official may elect to reside, are in their nature private, individual. These are the personal burdens on every man's shoulders. Payment directly or indirectly of a dollar thereon constitutes compensation, perquisite, or emolument additional to a prescribed salary. This act, being in the main for an unconstitutional purpose, that is, the payment of increased expenses of living at a place other than the legal residence of a judge of the Supreme Court, must wholly fail.
"In the majority opinion it is said that the Constitution of the state does not contain any restrictions upon the power of the Legislature to make allowance for the expenses of the several constitutional state officers who are intervenors in this proceeding. The Constitution (section 2, art. 21) does provide that it shall not be competent for the Legislature to increase the salary of these officers. The Legislature, thus limited, certainly may not go beyond payment of the actual official expenses. Payment to or for an officer of public funds in excess of such expenses, or for private or personal use, is an increase of salary and clearly forbidden. * * * "It is said that the members of the Supreme Court, if they had continued to reside at the place of their legal residence, might have been allowed expenses of travel to and from the seat of government and living expenses while there, as official expenses. Even if this were true, the fact that these judicial officers for years past have elected to live at Pierre and are permanently domiciled there precludes the possibility of classifying their living expenses, or part thereof, as in any sense 'official.' The personal character of living expenses is the same in Deadwood, Aberdeen, or Pierre, and is not affected by mere change of location. * * *
"The effect of this enactment is to increase the compensation of the Supreme Court judges from $3,000 to $4,800 annually, and permit them to pay certain personal expenses themselves. The fact that the compensation probably should be $7,500 per annum instead of $3,000 cannot affect the legal situation or validate this act.
"The Constitution (article 4, sec. 12) requires that state officials perform their duties at the seat of government. *Page 612 The compensation, limited to $1,800 per annum, is intended to cover their official services and personal expenses connected therewith. The act awarding $50 per month as expenses of removal to the capital city and increased expenses of living at a place other than his legal residence, and the expense of traveling to and from such legal residence, awards additional compensation and is in conflict with section 2 of article 21 of the state constitution. These defined expenses are not public, not official, not connected with the performance of official duties, but of a purely personal and individual character."
In State, ex rel. v. Turner, 117 Kan. 755, 233 P. 510, 511, it is stated:
"All legislative expenses may be properly paid. The expenses that may be paid are not those that are incurred by a member of the Legislature because he is at the capital city; they are those that are incurred by him in the performance of his duties. They are legislative expenses, not personal expenses. The distinction between expenses that are legislative and those that are personal is that legislative expenses are those that are necessary to enable the legislature to properly perform its functions, while those that are personal are those that must be incurred by members of the Legislature in order to be present at the place of meeting — expenses for his personal comfort and convenience, which have nothing to do with the performance of his duty as a member of the Legislature. Personal expenses are those incurred for room, meals, laundry, communication with their home, and other things of like character."
From Gallarno v. Long, supra, an Iowa case, we quote (214 Iowa 805, 243 N.W. 721):
"Personal expenses are for the comfort and convenience of the state official or employee, while at his official residence or abode, and those expenses have nothing to do with the performance of his duty as a state official or employee. Such expenses are those incurred for room, house rent, meals, laundry, clothes, personal communication by telephone, telegraph, or letter, and other things of like character. * * *
"An illustration of such governmental expense may be found in the case of a district judge who maintains *Page 613 his residence in one county and is required to go to another county in his district to hold court. While travelling to and from, and obtaining board and lodging in, the last-named county, such official is incurring govermental, as distinguished from a personal, expense. So, too, a legislative expense is incurred by the legislators in the performance of their duties. These legislative expenses are the costs necessary to enable the Legislature to properly perform its functions. To illustrate such legislative expense, reference is made to stationery, pencils, ink Codes, stenographers, clerks, telephone and telegraph charges for public business, office rent for state purposes, and other items of a similar nature."
So I conclude that the expenses incurred by the judges and commissioners of the court of Appeals in attending sessions of the court, the cost of their meals and lodging while in attendance upon the duties of their office at Frankfort are personal expenses as distinguished from official expenses, and the attempt of the legislature to pay these expenses amounts to an increase in the compensation of the judges of the Court of Appeals during their term of office and in excess of the $5,000.00 constitutional limit of salary and is, therefore, violative of both sections 235 and 246 of the constitution.
The argument is made by the appellees that the foregoing conclusion should not affect the right of the legislature to pay these expenses to the commissioners of the Court of Appeals because it has been held that they are not "officials" but "employees," and being "employees" they are not affected by either of these two sections of the constitution. This contention need not be answered in this case for the reason that it is inconceivable that the legislature would have enacted either section 2 or 3 of the act as to the commissioners alone. Most surely it would not have passed an act paying these expenses and making these allowances to the commissioners without making a similar provision for their superiors, the judges of the Court of Appeals. If that part of each of these sections of this act is unconstitutional as to the judges of the Court of Appeals, that part of the act is vital to the whole, and its invalidity or unconstitutionality strikes down each section of the act in its entirety. The provision for payment of expenses to the judges of the Court of Appeals in each of these *Page 614 sections is of the substance of the act, and it may be presumed that the legislature would not have passed these sections of the act at all, but for the invalid part, and both of these sections in their entirety are invalid. See Illinois Central Railroad Co. v. Commonwealth, 154 Ky. 332, 334, 157 S.W. 687,689; State Insurance Board of Kentucky v. Green, 185 Ky. 190,213 S.W. 218; Commonwealth v. Hatfield Coal Company, 186 Ky. 411, 217 S.W. 125; Neutzel v. Williams, 191 Ky. 351,230 S.W. 942. Under authority of Commonwealth v. Hatfield Coal Company, supra, section 1 of the act can be upheld and sections 2 and 3 stricken down as unconstitutional, because unconstitutional sections and provisions in a statute may be eliminated from an otherwise valid act, without affecting the validity of such other parts, if the remaining part is not so mutually connected with the invalid part that it would not warrant belief that the legislature intended the act to constitute a whole.
Entertaining the views herein expressed, I regret exceedingly that I cannot agree with the majority of the members of this court that the entire act under attack is constitutional. I realize the conscientious and painstaking consideration which they and the other members of this court have given to this case, and I further realize that the salaries paid to the judges and commissioners of the Court of Appeals are wholly inadequate and that their compensation should be materially increased, but entertaining the views herein expressed, I cannot in good conscience refrain from making this dissent under my oath to uphold the constitution. The only legal way to provide adequate compensation for these public officials is by an appropriate amendment to the constitution.