Board of Ed. of Graves County v. De Weese

• Decision Date: 16 December 1960
• Citation: 343 S.W.2d 598
• Parties: BOARD OF EDUCATION OF GRAVES COUNTY, Kentucky, Appellant, v. James B. DE WEESE, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 598

343 S.W.2d 598

BOARD OF EDUCATION OF GRAVES COUNTY, Kentucky, Appellant, v. James B. DE WEESE, Appellee.

Court of Appeals of Kentucky.

Dec. 16, 1960.

Dissenting Opinion Jan. 13, 1961.

Rehearing Denied March 24, 1961.

Robbins & Cross, Mayfield, for appellant.

L. M. T. Reed, Martin, Neely & Reed, Mayfield, David R. Reed, Reed & Hines, Paducah, for appellee.

Robert F. Matthews, Jr., Asst. Atty. Gen., for Robert R. Martin, Superintendent of Public Instruction, amicus curiae.

James W. Stites, Louisville, for Kentucky Education Ass'n, and Ky. Association of School Administrators, amicus curiae.

J. T. Hatcher, Elizabethtown, Ky., for Kentucky School Bds. Ass'n, amicus curiae.

Bradley & Bradley, V. A. Bradley, Sr., Georgetown, for Bd. of Trustees of University of Ky., amicus curiae.

Lucian L. Johnson, Louisville, for Bd. of Ed. of Jefferson County, Ky., amicus curiae.

Jo M. Ferguson, Atty. Gen., amicus curiae.

PALMORE, Judge.

This is a declaratory judgment proceeding in which James B. DeWeese seeks recovery of the Graves County Board of Education in the principal amount of $8,000, consisting of salaries as superintendent ($5,250) and secretary ($2,250) from February 1 to November 1, 1957, and expense allowance ($500) from January 1 to November 1, 1957. On the theory that all payments other than the $7,000 per annum salary as superintendent were illegal, the school board counterclaims for $3,300, consisting of $1,500 paid as expense allowance from July 1, 1954, to December 31, 1956, $1,750 paid as secretary's salary from July 1, 1956, to January 31, 1957, and $50 paid as 'Secretary Salary--1st Mo.' on July 2, 1954. The facts are not in dispute. On the pleadings the trial court adjudged payment to DeWeese of the two salaries but invalidated the expense allowance and sustained the board's counterclaim for the $1,500 paid on that account. Both parties have appealed, and among the other parties intervening or appearing as amicicuriae are the Attorney General of Kentucky, the Superintendent of Public Instruction, the Kentucky Educational Association, the Kentucky Association of School Administrators, the Kentucky School Boards' Association, the Jefferson County Board of Education, the Kentucky Municipal League, and the Board of Trustees of the University of Kentucky, the last named institution being vitally affected because the questions relating to § 246 of the Constitution of Kentucky may jeopardize the possibility of staffing its newly established college of medicine.

By a resolution of the Board of Education of Graves County, Kentucky, adopted July 3, 1953, James B. DeWeese was elected as superintendent of schools and secretary of the board for a term of four years beginning July 1, 1954, 'with a salary of $7,000 per year for the superintendency and an expense account not to exceed $600 a year for local travel; any time duties requiring leaving Graves County on business that proper reimbursement be paid.' On the same day the parties executed a separate contract wherein, after reciting that DeWeese had a contract with the board as school superintendent, it was agreed that he would serve at no salary as secretary of the board for the same 4-year term and would devote all of his time to the performance of his duties in the two capacities. On June 27, 1956, the board again elected DeWeese as its secretary for a term of four years, beginning July 1, 1956, and fixed his salary therefor at $3,000 per annum payable monthly. From July 1, 1954, until January 31, 1957, he was paid his salary as superintendent at the rate of $7,000 per annum, and he was paid the expense allowance of $50 per month until December 31, 1956. From July 1, 1956, until January 31, 1957, he was paid also the secretary's salary of $250 per month. In addition to the foregoing items, it appears that on July 2, 1954, he received an isolated payment of $50 marked, 'Secretary Salary--1st Mo.' After January 31, 1957, the school board, controlled by new members, made no further payments to DeWeese, and he continued in service until November 1, 1957.

We may dispose of the cross-appeal at once. KRS 64.710 provides:

'No public officer or employe shall receive or be allowed or paid any lump sum expense allowance, or contingent fund for personal or official expenses, except where such allowance or fund either is expressly provided for by statute or is specifically appropriated by the General Assembly.'

It is not contended that there is any specific authority for lump sum expense allowances to school superintendents. Although the order of the school board recited that the allowance was 'not to exceed' $600 a year, the contemporaneous construction placed on it by the contracting parties as a lump sum allowance was conclusively evidenced by the fact that DeWeese actually was paid a flat $50 per month without itemization and by the further fact that in this proceeding he did not attempt to prove the items of expense. We conclude, as did the circuit court, that the payment of $50 per month was a blanket allowance violating KRS 64.710.

With respect to the $1,800 paid as secretary's salary the school board's position is as follows: A school superintendent is a public officer. Reynolds v. Board of Education of Lexington, 1949, 311 Ky. 458, 224 S.W.2d 442. DeWeese having been elected by the board for a 4-year term, his compensation during that term could not be changed. Const. §§ 161, 235. Beauchamp v. Snider, 1916, 170 Ky. 220, 185 S.W. 868: Board of Education of Boyle County v. McChesney, 1930, 235 Ky. 692, 32 S.W.2d 26. The maximum limits of compensation prescribed by Const. § 246 attach to the officer rather than the office (Barker v. Barnes, Ky.1952, 248 S.W.2d 901; Funk v. Milliken, Ky.1958, 317 S.W.2d 499) and a school superintendent is a local officer limited to a total annual salary of $7,200 from any combination of public positions not involving duties of statewide scope; hence the salary of $3,000 per annum as secretary to the board effectually violated § 246 as well as §§ 161 and 235 of the Constitution.

Against the basic premise of this argument the question arises as to whether a school superintendent is truly an officer within the intendment of Const. §§ 161, 235, and 246, thus inviting a re-examination and review, which we consider to be necessary and timely, of a problem that has troubled this court and vexed the public for well over half a century but had never been satisfactorily resolved.

It has been pointed out in the case of Pardue v. Miller, 1947, 306 Ky. 110, 206 S.W.2d 75 (Judges Sims and Thomas dissenting) that § 246 as it appeared originally in the Constitution applied only to officers, evidently because there seemed then to be no reason for the mumbers of the Convention (who regarded $5,000 as a 'munificent' income) to contemplate that the compensation of employees and subordinates would ever become a problem. And so it happened that the early cases centered not upon § 246, but on §§ 161 and 235.

In City of Louisville v. Wilson, 1896, 99 Ky. 598, 599, 36 S.W. 944, 946, 18 Ky.Law Rep. 427, it was held that members of the board of public safety and board of public works of the City of Louisville, the secretary of the board of public works, deputies of the police court, and an assistant bailiff of the police court all were public officers whose salaries could not be increased during their appointed terms. Apprehension that this result might set a mischievous pattern for the future was voiced in a dissenting opinion by Judge Guffy (in which Judge DuRelle concurred) to the effect that the progress of our institutions demanded 'that the compensation of all officers not mentioned in the constitution should be at all times subject to the control of the legislative power that creates the offices and fixes the compensation.'

But the precedent was established, and it was not long before the occasion arose to evade without retracting it. In City of Lexington v. Rennick, 1899, 105 Ky. 779, 49 S.W. 787, 50 S.W. 1106, 20 Ky.Law Rep. 1609, 1924, it was held that salaries of police officers (assumed without discussion to be public officers) not holding fixed terms of office may be changed. The distinction is thus stated in Commonwealth v. Ewald Iron Co., 1913, 153 Ky. 116, 154 S.W. 931, 934:

'These sections [161 and 235] apply to officers having a fixed term during which their compensation cannot be changed, and do not include officers who may be removed at the pleasure of the appointing body.'

The same principle was applied in Shanks v. Howes, 1926, 214 Ky. 613, 283 S.W. 966, approving an increase in the compensation of the chief clerk of the House of Representatives, though he was held to be a 'public officer.' (It is interesting to note that the purpose of this increase was to cover extra help employed by the chief clerk, an indirect maneuver designed to circumvent the injunction of Const. § 249 to the effect that the House shall never elect, appoint, employ or pay for more than one doorkeeper. The House chamber in the old State Capitol had but one door. See Sanders v. Talbott, 1934, 255 Ky. 50, 72 S.W.2d 758, holding that the total amount payable to the chief clerk is subject to the limitation of § 246.)

Meanwhile, in the case of Fox v. Lantrip, 1915, 162 Ky. 178, 172 S.W. 133, following the precedent of City of Louisville v. Wilson, supra, it was held that a county school superintendent was a public officer within the meaning of §§ 161 and 235.

It was not until the 1920's that § 246 began to chafe. In Carroll v. Fullerton, 1926, 215 Ky. 558, 286 S.W. 847, it was held applicable to the city prosecuting attorney of a third class city. In Whittenberg v. City of Louisville, 1931, 238 Ky. 117, 36 S.W.2d 853, it was established that § 246 attaches to the officer as distinguished from the office itself, so that two successive holders of the same office during a single year were not limited to proportionate shares of the...