City of Pikeville v. Stratton

• Decision Date: 15 January 1935
• Parties: CITY OF PIKEVILLE et al. v. STRATTON.
• Court: Kentucky Court of Appeals

78 S.W.2d 12

257 Ky. 320

CITY OF PIKEVILLE et al. v. STRATTON.

Court of Appeals of Kentucky

January 15, 1935

Appeal from Circuit Court, Pike County.

Suit by T. M. Stratton against the City of Pikeville and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

Sidney Trivette, of Pikeville, for appellants.

W. K Steele, of Pikeville, for appellee.

REES Justice.

This suit involves a controversy over the salary of the chief of police of the city of Pikeville, a city of the fourth class for the term beginning on the first Monday in January, 1932.

On December 4, 1929, the city council adopted an ordinance fixing the salary of the chief of police at $150 per month. At that time the chief of police was appointed by the council for a term of two years, but thereafter, and more than sixty days before the November, 1931, election, an ordinance was adopted changing the method of selecting the chief of police and providing for his election by the voters of the city. The passage of that ordinance ipso facto changed the term to one of four years. Constitution of Kentucky, § 160; Baker v Combs, 194 Ky. 260, 239 S.W. 56.

Appellee T. M. Stratton, was elected chief of police of Pikeville at the election held in November, 1931, for the four-year term beginning on the first Monday in January, 1932. On December 17, 1931, the board of council adopted an ordinance fixing the salary of the chief of police at $135 per month, and, the city having refused to pay more than that sum, the appellee, conceiving that the ordinance of December 5, 1929, fixed the salary at $150 per month until repealed or amended and that the board of council was without authority to change the salary for the term beginning on the first Monday in January, 1932, after his election, brought this action to compel the city to pay him at the rate of $150 per month.

A demurrer to the petition was overruled, and the city having refused to plead further, a judgment was entered in accordance with the prayer of the petition.

Section 235 of the Constitution provides that the salaries of public officers shall not be changed during the terms for which they were elected and section 161 of the same instrument forbids the changing of the compensation of any city officer after his election or appointment or during his term of office. However, where the compensation of a municipal officer is not fixed before his election, it may be fixed after his election, but, when so fixed, it cannot be changed during his term. Howell v. City of Ashland, 239 Ky. 349, 39 S.W.2d 468; Roberts v. Walker, 227 Ky. 591, 13 S.W.2d 761; Hurt v. Morgan County, 166 Ky. 364, 179 S.W. 255; Fox v. Lantrip, 162 Ky. 178, 172 S.W. 133.

The sole question here is: Did the ordinance of December 5, 1929, fix the salary of the chief of police of the city of Pikeville only for the succeeding two-year term or was it in effect until repealed or amended?

In Marion County Fiscal Court v. Kelly, 112 Ky. 831, 56 S.W. 815, 816, 22 Ky. Law Rep. 174, cited and relied on by appellant, the fiscal court at the October term, 1897, fixed the salary of the county judge for the year 1897 by an order which read: "It is ordered that the salary of the county judge for the year 1897 be fixed at $800.00." Kelly was elected county judge at the regular November...