Frizzell v. Holmes

• Decision Date: 15 January 1909
• Citation: 131 Ky. 373,115 S.W. 246
• Parties: FRIZZELL et al. v. HOLMES et al.
• Court: Kentucky Court of Appeals

115 S.W. 246

131 Ky. 373

FRIZZELL et al. v. HOLMES et al.

Court of Appeals of Kentucky.

January 15, 1909

Appeal from Circuit Court, Butler County.

"To be officially reported."

Agreed case between John W. Frizzell and others and W. S. Holmes and others. From a decision in favor of the latter, the former appeal. Affirmed.

N. T Howard, for appellants.

G. V Willis, for appellees.

CARROLL J.

This case involves the question whether or not the act approved March 23, 1908 (Acts 1908, p. 116, c. 44), relating to jailers, applies to jailers holding office at the time the act took effect. The appellant, who is the jailer of Butler county, requested the fiscal court "to appropriate a sum sufficient to purchase the labor and material necessary to keep the courthouse, public square, clerk's offices jail, and other public buildings at the county seat at Morgantown, Ky. including the jailer's residence, in repair, and in a clean, comfortable, and presentable condition, and to heat and light the same." This it refused to do, upon the ground that it increased his compensation, and was therefore violative of section 161 of the Constitution. Thereupon an agreed case was made up and taken to the circuit court, where it was ruled that the act of 1908 increased the compensation of jailers, and hence was not applicable to jailers holding office when the act became effective. This decision was rested upon section 161 of the Constitution, which reads: "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.

The act of March 23, 1908, amended section 3948 of the Kentucky Statutes, so that said section as amended reads in part "The jailer of each county not having a population of seventy-five thousand or more shall be superintendent of the public square, court house, clerk's offices, jail, stray pen and other public buildings at the seat of justice, and the fiscal court of each of said counties shall annually appropriate, of the county funds, a sum sufficient to purchase the labor and materials necessary to keep the public property aforesaid, including the jailer's residence, if owned by the county, in repair and in clean, comfortable and presentable condition, and heat and light the same; said sum so appropriated to be expended by the jailer for the purposes aforesaid. ***" Before its amendment this section read in part, and so far as pertinent, as follows: "The jailer of each county shall be superintendent of the public square, court house, clerks' offices, jail, stray pen, and other public county buildings at the seat of justice. ***" It is very clear that, if this act changes by increasing the compensation of jailers, it cannot, in view of the constitutional provision, apply to jailers in office at the time of its passage; so that the question to be decided is, would the request made by the jailer of Butler county, if granted, have increased his compensation within the meaning of the Constitution?

The request of the jailer may properly be divided into three parts: He asked the fiscal court to appropriate (1) a sum sufficient "to purchase the labor and material necessary to keep the courthouse, public square, clerk's offices, jail, and other public buildings at the county seat at Morgantown, Ky. including the jailer's residence, in repair"; (2) a sum sufficient to keep this property "in a clean, comfortable, and presentable condition"; and (3) a sum sufficient "to heat and light the same." With respect to the request to appropriate money to keep the public property in repair, it is sufficient to say that the jailer is not charged with the duty of keeping the public buildings in repair. The fiscal court is required by section 1840 of the Kentucky Statutes "to erect and keep in repair necessary public buildings, secure a sufficient jail and a comfortable and convenient place for holding court at the county seat"; and it is very clear that the jailer of a county has no authority, even under the statute as amended to demand from the fiscal court an appropriation for keeping the public buildings in repair. He is under the new, and was under the old, statute charged with the duty of superintending the public buildings; but this does not imply any obligation upon his part to repair them. If they need repair, the fiscal court must make an appropriation for that purpose; but with this appropriation the jailer has nothing to do. So that this part of his request may be dismissed without further notice.

In respect to so much of the order as asked an appropriation to keep the public buildings and grounds "in a clean comfortable, and presentable condition," before the passage of the act of 1908 jailers under then existing laws were not entitled to any compensation for keeping "the courthouse, public square, clerk's offices, jail, and other public buildings at the county seat in a clean, comfortable, and presentable condition." The performance of this service was incumbent upon the jailer, but the statute did not provide compensation therefor. This point was expressly ruled in Mitchell v. Henry County, 124 Ky. 833, 100 S.W. 220. In that case the fiscal court of Henry county fixed the salary of the jailer at $150 per year, and "appropriated $350 per year for the purpose of employing a janitor to take charge of the buildings and grounds, and that said janitorship here provided for be at the option of the jailer to accept and discharge the duties thereof, subject to the direction of the county court." In considering the case, this court said: "The only questions involved in this case are of law, and are as follows: First, did the fiscal court have the power and authority to allow the jailer a salary in lieu of the fees allowed him by statute? And, second, did the fiscal court have the authority to appropriate $350, or any sum, to pay a janitor for his services in taking charge of the public buildings and grounds? *** There is no statute authorizing the fiscal court to make any kind or character of contract with the jailer. The jailer is elected by the people. The statute fixes his allowances and fees for all services rendered by him, and the court has no power to change or allow them in any other manner. Section 3948 of the Kentucky Statutes provides that 'the jailer of each county shall be superintendent of the public square, courthouse, clerk's office, jail, stray pen and other county buildings at the seat of justice'; but there is no provision of the statute authorizing payment to him for such services. *** Appellant contends that this appropriation by the fiscal court was for the employment of a janitor to keep this property in repair. The order says 'a janitor to take charge of the buildings and grounds.' Even if the fiscal court had power, which is not decided, to make an appropriation for repairs in the future, it was not done by the order in question; for it only made an appropriation for the performance of a duty required of the jailer under section 3948. *** But it is contended that the repairs would include the sweeping...