Coleman v. Hurst
| Decision Date | 27 November 1928 |
| Citation | 11 S.W.2d 133,226 Ky. 501 |
| Parties | COLEMAN, Auditor of Public Accounts, v. HURST. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Franklin County.
Action by Sam Hurst, Circuit Judge of the Twenty-Third Judicial District, for a mandatory injunction compelling Clell Coleman, Auditor of Public Accounts of the Commonwealth of Kentucky, to issue warrants for petitioner's salary as a member of the Judicial Council of the Commonwealth. From a judgment overruling a demurrer to the petition, petitioner appeals. Affirmed.
J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for appellant.
Edward C. O'Rear and Allen Prewitt, both of Frankfort, for appellee.
The General Assembly, at its regular session in 1928, enacted a bill to establish the Judicial Council of the commonwealth of Kentucky. The act is as follows:
"An Act to establish the Judicial Council of the Commonwealth of Kentucky, to provide for its duties and expenses.
Be it enacted by the General Assembly of the Commonwealth of Kentucky:
§ 1. That there is hereby established the Judicial Council of the Commonwealth of Kentucky. Such Council shall consist of the judges of the Court of Appeals of Kentucky and the Circuit Judges of said Commonwealth. The Chief Justice of the Court of Appeals shall be the presiding officer.
§ 2. Said Council shall meet on the call of the Chief Justice of the Court of Appeals. Said meeting shall be called at least once a year at some convenient time, and at some convenient place in the State. It shall be the duty of all members of said Council to attend such session.
§ 3. It shall be the duty of said Judicial Council to study the organization, rules, methods of procedure, and practice of the judicial system of the Commonwealth of Kentucky, the work accomplished and the results produced by that system in its various parts; the problems of administration confronting the Courts of the Commonwealth and the judicial system in general. It shall be the duty of each Circuit Judge to prepare and submit to the Council at such sessions a report setting forth the conditions in the Circuit Courts over which he presides and of the business dispatched and pending in said Circuit Courts. It shall be the duty of said Council to report biennially to the General Assembly of the Commonwealth of Kentucky concerning the work of the various branches of the judicial system of the Commonwealth together with any recommendations it may have for the modification or amelioration of existing conditions or for any amendments to the Codes of Practice and procedure.
§ 4. The clerks of the various courts of the Commonwealth shall make such reports to the Council as the Council may demand. Said Clerks making reports shall receive fifty cents for each page reported to said Council and shall be paid as other expenses of the Council are paid. The Council is empowered in its discretion to hold before the full Council or any committee thereof it may constitute for such purpose, public hearings on any question concerning which the Council may deem it proper to hold public hearings.
§ 5. If any session of said Council shall be held between the time of the election or appointment of any judge of the Court of Appeals or of any Circuit Judge and the time such judge-elect or so appointed shall take office, it shall be the duty of said judge-elect or so appointed to attend such session of said Council.
§ 6. Each member of said Council shall receive as compensation for attending the sessions of said Council or of any committee thereof, and for his services as a member of such Council or any committee thereof, the sum of six hundred dollars ($600.00) per annum, payable in equal monthly installments at the same time as his salary as judge is paid; provided, however, that no member of said Council whose salary as a Circuit Judge, which is paid by the State, is supplemented by any county or district and no member of the Court of Appeals and no judge-elect or appointed but who has not at the time he attends any session of the Council been inducted into office shall receive any compensation for attending any session of the Council or of any committee thereof or for his services as a member of such Council or any committee thereof. The said members and said judges who shall attend any session of said Council or that of any committee of said Council shall be allowed their necessary traveling expenses and such other actual expenses as do not exceed ten dollars ($10.00) per day for each day of any such session and for such days as may be reasonably necessary for them to reach and return home from the place of meeting of any such session. All claims for expenses as provided for in this Act shall be allowed and paid as provided by law for the payment of other claims against the Commonwealth but before such claims shall be allowed by the Auditor, the same shall be presented to and approved by the Chief Justice of the Court of Appeals.
§ 7. The Council and its committees shall be allowed from the State treasury such necessary expenses for clerical and other services as the Chief Justice shall approve, the same to be allowed and paid as provided by law for the payment of other claims against the Commonwealth.
§ 8. All laws or parts in conflict with any provision of this Act are hereby repealed.
Approved March 14, 1928."
The Attorney General, having doubts as to the constitutionality of the act, advised the auditor of public accounts that the salary provided for the members of the council should not be paid without first obtaining a judicial determination of the validity of the act. The auditor, pursuant to that advice, declined to issue warrants for the monthly salaries provided, whereupon Sam Hurst, circuit judge of the Twenty-Third judicial district of Kentucky, who by virtue of the provisions of the act became a member of the Judicial Council, instituted this action in the Franklin circuit court, seeking a mandatory injunction to compel the auditor to issue warrants for his salary. He made the necessary allegations to show that he was entitled to the salary if the act is valid, in that he alleged facts showing that he was a member of the council and belonged to that class of members who were entitled to receive a salary, and that he had been engaged in the performance of his duties as a member of the council, and was ready, willing, and able to continue his duties in accordance with the provisions of the law.
The regular circuit judge being disqualified to sit in the case, Hon. John C. Doolan, of the Jefferson county bar, was designated as special judge to try the case. The Attorney General filed a demurrer to the petition, which was overruled by the special judge, and, in a well-considered opinion, he upheld the validity of the act.
The Attorney General has brought the case to this court, and in support of his reasons for doubting the validity of the act he has filed a carefully prepared brief on the merits of the case, in which he points out with clarity the grounds of his objection, and argues the grounds with plausibilty. The case was orally argued, in addition to having been ably briefed on both sides, and this court now has before it the reasons advanced for and against the validity of the act.
The grounds of attack may be summarized as follows: (1) That the title to the act is defective and violates section 51 of the Constitution. (2) That the act violates section 133 of the Constitution, which requires that the compensation of circuit judges shall be equal and uniform throughout the state, so far as the same shall be paid out of the state treasury. (3) That the act violates the provisions of section 126 of the Constitution, in that it allows a salary to the members of the council who are circuit judges for services to be rendered under the law, which the General Assembly had the power to impose on circuit judges as such, and that it also violates section 136 of the Constitution for the same reason. (4) That it violates section 59 of the Constitution, in that it is special legislation relating to the practice of circuit courts. (5) That it violates the provisions of section 235 of the Constitution, in that it changes the salaries of the circuit judges during the terms for which they were elected.
There is another objection urged against the validity of the act, which may be inferred from the argument of the Attorney General, and that is that it is invalid, because it discriminates as to the question of salary among the members of the Judicial Council. The learned special judge, in passing on the demurrer to the petition, gave the reasons for his ruling in the following written opinion:
"This case has been ably argued on both sides and the court has reached the conclusion that the act in question is valid and constitutional. This conclusion seems warranted upon both principle and precedent.
I. On principle the act should be sustained because:
(1) It is firmly settled that all doubts as to the constitutionality of an act of the General Assembly should be resolved in favor of its validity. The main grounds of attack on this act are based on sections 51 and 235 of the Constitution. As to the objections under section 51, the court is of opinion that the title is sufficiently general to include all the subjects included in the body of the act. It can hardly be said, then there is anything in the body of the act not germane to the title or included in it. The court is of opinion that the clause of the title, 'to provide for its duties and expenses,' refers to the expenses of the Judicial Council, and this includes allowances of compensation to its members. Certainly this would be so, if the Judicial Council...
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