City of Louisville v. Wilson

• Decision Date: 24 June 1896
• Citation: 36 S.W. 944,99 Ky. 598
• Parties: CITY OF LOUISVILLE v. WILSON. SAME v. NEVIN. SAME v. HOERTZ. SAME v. MARTIN. SAME v. O'CONNELL.
• Court: Kentucky Court of Appeals

36 S.W. 944

99 Ky. 598

CITY OF LOUISVILLE v. WILSON.

SAME v. NEVIN.

SAME v. HOERTZ.

SAME v. MARTIN.

SAME v. O'CONNELL.

Court of Appeals of Kentucky.

June 24, 1896

Appeal from circuit court, Jefferson county.

"To be officially reported."

Cases submitted without action by Charles A. Wilson, by Joseph Nevin, by J. Henry Hoertz, by J. P. Martin, and by J. J O'Connell, against the city of Louisville. There were judgments for the plaintiffs, and defendant appeals. Affirmed.

Guffy and Du Relle, JJ., dissenting.

W. S Barker, Fairleigh & Straus, and John W. Barr, Jr., for appellant.

Dodd &amp Dodd, Humphrey & Davie, Carroll & Hagan, and D. W. Baird, for appellees.

LEWIS J.

It is agreed, in these five cases, submitted and decided without action, as follows: Appellees Wilson and Nevin were appointed by the mayor, for the term of four years, December 14, 1893 confirmed by the board of aldermen of Louisville, and immediately qualified as members, respectively, of the board of public safety and board of public works. January 9, 1894, by ordinance of the general council, the salary of each member of the two boards was fixed at $3,000 per annum. By ordinance approved January 26, 1894, it was provided there should be one secretary of the board of public works, his compensation being fixed at $2,000 per annum; and January 31, 1896, appellee Hoertz was by the board of public works appointed secretary for the term of four years. By ordinance approved May 21, 1894, it was provided the compensation of deputies of the police court should be $1,500 each, payable monthly; and in January, 1895, appellee J. J. O'Connell was by J. N. Vetter, bailiff of said court, appointed one of his assistants or deputies. January 9, 1894, by ordinance the compensation of official stenographer of the city court was fixed at $1,000 per annum; and February 24, 1894, appellee John P. Martin was by the judge of the court appointed to the office. December 26, 1895, the general council, composed of newly-elected members, passed an ordinance, duly approved by the mayor, changing salaries of members of the boards of public safety and public works to $2,500 each, per annum, that of secretary of board of public works to $1,200 per annum, that of deputy bailiff to $1,200 per annum, and that of official stenographer to $900 per annum.

The main question in this case is whether the ordinance of December, 1895, violates section 161 of the constitution, as follows: "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 office be extended beyond the period for which he may have been elected or appointed." And proper determination of it involves inquiry whether the various ordinances referred to which first fixed the compensation of these officers were valid and effectual for that purpose. If any of them be invalid at all, it is only because they were passed after the officers affected by them had qualified and commenced discharge of their duties; for all appear to have been regularly passed and approved, under authority conferred by section 2756, St. Ky. applicable to Louisville, a city of the first class, as follows: "Except as otherwise herein provided the general council may by ordinance prescribe the duties, define the terms of office, fix the compensation and the bonds, and time of election of all officers and agents of the city." But as none of those ordinances, except the particular one fixing salaries of members of the board of public health and of the board of public works, were passed subsequent to appointment and qualification of the several officers mentioned, there is no reason for calling in question the validity of any, except it may be that one.

The purpose of section 161 was to prevent as well reduction of compensation of officers, sometimes the result of prejudice and false economy, as increase of it, sometimes brought about by importunity and under influence on their part. So there cannot be any change at all of an officer's compensation during his term. But there is an essential difference, which we are satisfied the framers of the constitution had in mind, between fixing the amount of compensation an officer shall receive, not hitherto ascertained and settled, and changing it after it has been fixed. It is the obvious and uniform policy of government, state and municipal, as well as just to each officer, to fix his compensation definitely and certainly as to amount, except when he is paid by fees of office. And section 161 does not in terms, nor was it intended to, forbid or at all relate to any statute or ordinance that for the first time does fix the salary of an officer. But it is equally necessary, for protection of both the government and officer, that his salary, when once fixed, should not be changed during his term; and for no other purpose than to prevent that evil was section 161 made part of the constitution.

It is, however, contended, that section 2824 and section 2861 had the effect to fix and secure to members, respectively, of the board of public safety and board of public works a definite amount of compensation; the two sections being alike, and as follows: "Each member shall receive a salary of not less than twenty-five hundred dollars." But it is plain the legislature did not intend thereby any more than to prescribe a minimum of the compensation which the general council had been by section 2756 already empowered to definitely and authoritatively fix. And it is to us equally plain that, until the ordinance of January 9, 1894, was passed and approved, the members of the two boards did not have legal right to demand, nor the city treasurer legal authority to pay, them any compensation whatever. In our opinion the last-named ordinance is valid, and consequently the one of December 26, 1895, must be held invalid.

There can be no question of appellees Wilson and Nevin being officers, in the meaning of section 161, and the remaining inquiry is whether the other appellees are. There are various tests by which to determine who are officers, in the meaning of the law; but at last, in case of uncertainty, the intention of the lawmakers controls. To constitute an officer, it does not seem to be material whether his term be for a period fixed by law, or endure at the will of the creating power. But, if an individual be invested with some portion of the function of the government, to be exercised for the benefit of the public, he is a public officer. Mechem, Pub. Off. § 1. The board of public works is by statute vested, conjointly with the mayor, with executive power, and, as its name indicates, has control and supervision of public places and public improvements, with authority to make contracts in regard thereto. By section 2803 it has power to prescribe rules, not inconsistent with any statute or ordinance, regulating its own proceedings and the conduct of its officers, clerks, and employés distribution and performance of its business, and preservation of the books, records, papers, and property under its control; and, while it does not appear, from the agreed statement of facts, what particular duties are assigned to the secretary of the...