Barnett v. Caldwell

• Citation: 21 S.W.2d 838,231 Ky. 514
• Parties: BARNETT et al. v. CALDWELL et al.
• Decision Date: 15 November 1929
• Court: Kentucky Court of Appeals

21 S.W.2d 838

231 Ky. 514

BARNETT et al. v. CALDWELL et al.

Court of Appeals of Kentucky

November 15, 1929

Appeal from Circuit Court, Boyd County.

Suit by John Barnett and others, as citizens and taxpayers, against William Caldwell and others, Commissioners of Boyd County Fiscal Court, to enjoin payment to defendants of any salary in excess of specified amount. From a judgment dismissing petition, plaintiffs appeal. Reversed, with instructions.

A. N Cisco, of Ashland, for appellants.

Geo. B Martin and John L. Smith, both of Catlettsburg, for appellees.

DIETZMAN J.

Section 1847 of the Kentucky Statutes as it appeared in Carroll's 1915 Edition of that work provided for the method of putting into effect in a county the commission form of government. By chapter 65 of the Acts of 1916 this section 1847 was amended first by a slight change of verbiage of the section secondly, by providing that the elections authorized by the section should be held not oftener than once every two years instead of eight years, as that section originally provided and, thirdly, by adding to the section ""subsection 2," which provided a stated compensation for commissioners in lieu of fees, the salary of commissioners of counties having a population of more than 30,000 and less than 50,000 being fixed at $600 a year. This act of 1916 found its way into the 1918 Supplement of Carroll's Kentucky Statutes as section 1847. In 1920 the Legislature passed an act known as chapter 115 of the Acts of that year. That act is entitled: "An Act to repeal, amend and re-enact Section 1847, Kentucky Statutes, Carroll's Edition 1915, relating to commissioners to constitute fiscal courts, and providing for special election therefor." (Italics ours.) The first section of this act begins thus: "Be it enacted * * * that Section 1847, Kentucky Statutes, Carroll's 1915 Edition, be and it is hereby repealed, amended and re-enacted, so that the same when so repealed, amended and reenacted shall read as follows." (Italics ours.) Then follow provisions governing the procedure for elections to determine whether or not the commission form of government shall be adopted, which provisions are quite different from those set out in the first subsection of the act of 1916 to which we have referred. This act of 1920 did not refer specifically to the act of 1916.

Section 2 of the act of 1920 provides: "All laws or parts of laws in conflict herewith are hereby repealed." Even without this provision, in so far as the provisions of the 1920 act were inconsistent with those of the 1916 act, the latter stood repealed. In the case of State Board of Charities & Corrections et al. v. Combs, 193 Ky. 548, 237 S.W. 32, 35, the facts were that in 1916 the Legislature adopted an act (Acts 1916, c. 39) which by its title purported inter alia to repeal, amend, and reenact chapter 19 of the acts of 1914. No reference was made in this title to the then section 3801 of the Statutes. The 1916 act contained provisions germane to its title, but which were inconsistent with section 3801 of the Statutes. It was held that, in so far as there was any such inconsistency, the provisions of section 3801 were repealed. We said:

"If an amendatory act contains legislation which is irreconcilably inconsistent with a provision of a previously existing statute, which is not mentioned in the title of the amendatory act, and the provision of the amendatory act is germane to its own title and not foreign to it, so that it is covered by the title of the act, no reason is perceptible why the provision of the amendatory act would not work a repeal of the previously existing and outstanding inconsistent statute, by implication."

In 1926 the Legislature by chapter 58 of the acts of that year amended section 1847 of the 1915 Edition of Carroll's Kentucky Statutes as theretofore amended by the act of 1920 by providing that in counties containing cities of the second class the commissioners should be paid a salary of not exceeding $2,000 per year. Again, although the 1916 act is not mentioned in this 1926 act, its provisions, where inconsistent with the 1926 act, stand repealed. The appellees herein were elected commissioners of Boyd county in the November election of 1925. Boyd county, when the 1916 act was passed, was a county having a population in excess of 30,000 and less than 50,000, and when the 1926 act was passed was a county containing a city of the second class. The act of 1926 went into effect in June of that year, and on July 10th following the Boyd county fiscal court, then composed of the appellees as commissioners, adopted the following order "It appearing that prior to the passage of the Act fixing salaries of commissioners in counties containing cities of the second class that no compensation was provided and the Act of the Legislature, chapter 58, page 174, Act of 1926, fixed the compensation of commissioners in counties having cities of the second class, it is now ordered that the salaries be fixed at the sum of $1,800 per annum, payable monthly." It may be said in...