Adams v. Slavin

• Decision Date: 15 June 1928
• Citation: 7 S.W.2d 836,225 Ky. 135
• Parties: ADAMS, Judge, et al. v. SLAVIN et al.
• Court: Kentucky Court of Appeals

7 S.W.2d 836

225 Ky. 135

ADAMS, Judge, et al. v. SLAVIN et al.

Court of Appeals of Kentucky

June 15, 1928

Appeal from Circuit Court, Fayette County.

Suit under the Declaratory Judgment Act between Chester D. Adams Judge of the Fayette County Court, and others, and James Slavin, for, etc., and others. From the judgment rendered parties first named appeal, and Slavin and others cross-appeal. Reversed in part, with instructions.

Geo. W Vaughn, of Lexington, for appellants.

J Keene Daingerfield, Chester D. Adams, and James Park, all of Lexington, for appellees.

T. J. Sparks, of Louisville, amicus curiæ.

DIETZMAN J.

This is a suit under the Declaratory Judgment Act (Acts 1922, c. 83) to have determined four questions. They are: (1) Is the act of the General Assembly of 1928, known as Senate Bill No. 153, and entitled: "An act repealing section 1731, Kentucky Statutes, Carroll's 1922 Edition, in so far as same applies to county judges and enacting in lieu thereof an act fixing and regulating the fees of county judges in civil cases and disposing of costs in criminal cases and the fines and forfeitures in such courts and providing the method of fixing the compensation of said county judges in criminal causes," constitutional in so far as it authorizes and directs the fiscal courts to fix a reasonable compensation for the county judges now in office during the remainder of their present term of office for their services in presiding in the final trials of misdemeanor cases? (2) If the act be constitutional, does it apply to cases coming under section 331g of the Kentucky Statutes? (3) If the act be unconstitutional, do county judges and justices of the peace have the right to preside at final trials in misdemeanor cases and to tax their costs against such defendants on conviction as they formerly did in the absence of an objection on the part of the defendants to being so tried by such judges? and (4) If the act be constitutional, do justices of the peace still have the right to preside in final trials of misdemeanor cases and to tax their costs against such defendants on conviction as they formerly did, in the absence of an objection on the part of the defendants to being so tried by such justice of the peace?

The act of the General Assembly here involved was passed in an effort to solve, at least in some measure, the problems raised by the cases of Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A. L. R. 1243, and Wagers v. Sizemore, 222 Ky. 306, 300 S.W. 918. The first subsection of section 1 of the act, in effect, takes from the county judge that portion of the fines and forfeitures he received under the law as it stood prior to the passage of this act and gives it to the treasury of the county of such county judge. Subsection 2 of section 1 of the act comprises, first, a literal copy of section 1731 of the Kentucky Statutes as it appears in Carroll's 1922 Edition, omitting those items of costs therein appearing which pertain to costs in prosecutions of misdemeanors before a county judge. At the end of the last item of permissible costs appearing in this part of section 1 there is added the following: "The fees hereinabove provided shall apply to civil cases only and to county judges only. For presiding at a final trial in a misdemeanor case the county judge shall tax as costs the sum of $4.50 in the event of conviction and when collected by him shall be monthly paid to the county treasurer of his county, respectively, accompanied by an itemized statement, duly verified by him, showing the persons from whom such costs were received and same shall go into the general fund of the county."

The remaining portion of this subsection of section 1 of the act is, in the act, denominated "section 1731a" and reads:

"The fiscal courts of the several counties of the state shall fix a reasonable compensation for the county judges for their services in criminal misdemeanor cases, same to be in addition to any compensation now received from said counties respectively, payable as other salaries are paid and to remain as and when fixed for the remainder of the present term and thereafter to be fixed for the ensuing term at the last regular term of the fiscal court preceding the regular election for county officers, beginning in the fall of 1929 and every four years thereafter; provided, however, that said compensation in misdemeanor cases shall not exceed one-half of the regular salary now paid said county judges by the several counties of the commonwealth, respectively, and in no event shall the compensation of any county judge from all sources exceed five thousand dollars per annum."

Section 2 of the act provides:

"If any provision or section of this act shall be held to be invalid, such fact shall not affect or render invalid any other provision, part or section of this act, it being the intention of the General Assembly in enacting this act to enact each provision, part and section separately."

Section 3 declares an emergency to exist and that the act shall be in effect from and after its passage and approval by the Governor. Section 4 provides that all laws or parts of laws in conflict with the act are repealed.

We shall first dispose of the question whether justices of the peace have the right to preside in final trials of misdemeanor cases and to tax their costs against such defendants on conviction as they formerly did, in the absence of an objection on the part of the defendants to being so tried by such justices. This question is to be determined quite independently of the constitutionality of the act of 1928 here involved, but its solution will aid us in solving the question of that constitutionality so far as this case presents it. To ascertain whether the justices of the peace have the right to preside on final trials of misdemeanors and to tax costs as they formerly did requires an analysis of the Tumey and Wagers Cases, supra.

In the Tumey Case, it was held that a defendant, who seasonably objected to being tried by the mayor of a city for a misdemeanor in which, on conviction, a material part of the fine and costs went to the mayor as a fee for his services in so presiding, he getting no fee in the event of an acquittal could not be tried by such mayor without being deprived of the protection of the due process clause of the Fourteenth Amendment. The opinion and result reached in that case necessarily rest upon the fundamental propositions that the mayor's court as such had jurisdiction to try the accused, and that the statute providing that the mayor was to receive certain costs and part of the fine in the event of conviction was not, in itself, invalid. Indeed, it was the very right of the mayor to receive the costs and fine under the circumstances which disqualified him from acting as judge. Had he had no right to receive such costs and fines because the act which purported to vest him with such right was invalid, then he would not have been an interested judge and so would not have been disqualified. Wagers v. Sizemore, supra, necessarily rests on the same propositions. In this Sizemore Case, the attack upon the judgment of conviction was collateral. If the cost statute was invalid, then Sizemore, the justice of the peace, had the undoubted right to try Wagers because he was not a disqualified judge, being entitled to no costs or part of the fine in the event of conviction. The judgment in the misdemeanor case would then have...