Bosworth v. Ellison

Decision Date04 June 1912
Citation147 S.W. 400,148 Ky. 708
PartiesBOSWORTH, Auditor of Public Accounts, v. ELLISON.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Franklin County.

Action by George M. Ellison against H. M. Bosworth, Auditor of Public Accounts. Judgment for plaintiff, and defendant appeals. Reversed.

James Garnett, Atty. Gen., and M. M. Logan, Asst. Atty. Gen., for appellant.

B. B Snyder and Tye & Siler, all of Williamsburg, for appellee.


At the regular November election in 1909, Mat H. Morgan was elected jailer of Whitley county for a term of four years, beginning on the first Monday in January, 1910. At the time he took the office, the compensation of jailers was fixed at 50 cents per day for keeping and dieting prisoners. In 1910 the Legislature passed an act (Laws 1910, c. 61), which took effect in June, 1910, increasing the compensation of jailers for keeping and dieting prisoners from 50 cents to 75 cents per day. In August, 1911, Morgan resigned as jailer, and appellee, Ellison, was appointed to fill the vacancy. After Ellison became jailer, and in April, 1912, he presented a claim to the Auditor of Public Accounts for keeping and dieting prisoners between the time of his appointment and the date of the presentation of the claim, demanding that the Auditor allow him for this service at the rate of 75 cents per day. The Auditor refused to pay any amount in excess of 50 cents per day, and thereupon Ellison filed this suit asking for a mandamus against the Auditor to compel him to issue a warrant for $250.41, the difference between 50 cents and 75 cents per day for keeping and dieting the prisoners as set out in his claim. The lower court, upon these facts, granted Ellison the relief sought, and directed the Auditor to draw a warrant in his favor for the amount claimed. The Auditor is here asking a reversal of this judgment.

It is conceded that if Morgan had continued in the office of jailer he could not receive the benefit of the increased compensation authorized by the act of 1910 during his four-year term of office; but the argument is made that, as Morgan resigned the office after the act of 1910 took effect, and Ellison was appointed to fill the vacancy caused by the resignation of Morgan until it should be filled at a regular election in the manner provided by law, that he is entitled to the increased compensation provided by the act of 1910. The solution of the question is controlled by the proper construction of section 161 of the Constitution, reading: "The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he may have been elected or appointed."

Section 235 of the Constitution provides that: "The salaries of public officers shall not be changed during the terms for which they were elected; but it shall be the duty of the General Assembly to regulate, by a general law, in what cases and what deductions shall be made for neglect of official duties. This section shall apply to members of the General Assembly also." This section, although not directly in point, is a helpful aid in the construction of section 161, in so far as it relates to the matter in issue.

It is the contention of the commonwealth that the prohibition in section 161 against changing the compensation of any officer "during his term of office" means that the compensation shall not be changed during the period fixed by the statute or Constitution as the duration of the full term of the office, regardless of how many incumbents of the office there may be during the full term, caused by the filling of vacancies in the office. Or, as applied to the case at bar, that, as the compensation of Morgan could not be changed...

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14 cases
  • Comptroller of State v. Klein
    • United States
    • Maryland Court of Appeals
    • January 30, 1958
    ...Court we do not regard the precedent as persuasive. Somewhat similar decisions were rendered in the following cases: Bosworth v. Ellison, 1912, 148 Ky. 708, 147 S.W. 400. (This case had to do with an increase of a jailer's compensation for keeping and feeding prisoners, and the Court reache......
  • Wilson v. Shaw, 34290.
    • United States
    • Iowa Supreme Court
    • June 23, 1922
    ...“the appointee” had no term of office apart from the term of him for whose unexpired term he was appointed. Bosworth, Auditor, v. Ellison, 148 Ky. 708, 147 S. W. 400. It would not seem that argument is required to affirm that the reference to compensation which shall not be increased or dim......
  • Wilson v. Shaw
    • United States
    • Iowa Supreme Court
    • June 23, 1922
    ... ... Court held that "the appointee" had no term of ... office apart from the term of him for whose unexpired term he ... was appointed. Bosworth v. Ellison 148 Ky. 708, 147 ... S.W. 400. It would not seem that argument is [194 Iowa 37] ... required to affirm that the reference to ... ...
  • Carl v. Thiel
    • United States
    • Kentucky Court of Appeals
    • November 20, 1925
    ... ... Hager, 120 Ky. 428, 86 S.W. 969, 27 Ky. Law Rep. 813; ... Slayton v. Rogers, 128 Ky. 106, 107 S.W. 696, 32 Ky ... Law Rep. 897; Bosworth v. Ellison, 148 Ky. 708, 147 ... S.W. 400; Anderson v. Burton, 174 Ky. 459, 192 S.W ... 519, and Brown v. Laurel County Fiscal Court, 175 ... Ky ... ...
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