Funk v. Milliken
| Decision Date | 13 June 1958 |
| Citation | 317 S.W.2d 499 |
| Parties | Marshall FUNK, Warren County Attorney, etc., et al., Appellants, v. John M. MILLIKEN, Individually, et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Jo M. Ferguson, Atty. Gen., Edward L. Fossett, Asst. Atty. Gen., for appellant.
Aaron F. Overfelt, Bowling Green, for Marshall Funk, individually.
Henry J. Potter, Jr., Bowling Green, for Oval Motley.
Leland H. Logan, Bowling Green, for Carl Jordan.
August Winkenhofer, Jr., Bowling Green, for J. Scott Lowe.
Parker W. Duncan, Bowling Green, for A. L. Douglas.
G. D. Milliken, Jr., Bowling Green, for Raymond McClard.
Robert M. Coleman, Bowling Green, for S. C. Lawson.
Leland H. Logan, Bowling Green, for L. C. Stanley.
Charles W. Dobbins, Louisville, and Salem W. Moody, Richmond, as amicus curiae.
CULLEN, Commissioner.
This action was brought by the county attorney, county judge, county treasurer, and magistrates of Warren County, in their official capacities, against the persons who, in 1954, held the offices of county attorney, county judge, county court clerk, circuit court clerk and master commissioner, magistrates, jailer, sheriff, and constables. All of the offices occupied by the defendants were operated wholly or in part under the fee system. A declaratory judgment was sought upon a detailed list of questions that had arison upon an audit of the accounts of the various defendants, for the year 1954, involving the amounts allowable as personal compensation, and the amounts that properly could be credited against fees for office expenses and for compensation of deputies and assistants. The circuit court entered a judgment making declarations on the questions raised. The plaintiffs have appealed, agreeing with some of the declarations and disagreeing with others, and they are represented on the appeal by the Attorney General. There also are cross-appeals by the defendants who held the offices of county attorney and jailer, and by one of the defendants who held the office of magistrate.
We will discuss the various questions under descriptive headings.
The same person held the offices of circuit court clerk and of master commissioner. Prior to his election as circuit court clerk, the fiscal court had entered an order under KRS 64.530 fixing his maximum compensation for that office at $7,200 (the constitutional limit under Section 246 of the Constitution of Kentucky). For the year 1954 he had net earnings as circuit court clerk, after deducting office expenses and the compensation of his deputies, in the amount of $7,590.44. This indicated an excess of $390.44 to be paid over to the county. However, he also received net earnings as master commissioner of $1,879.20. The question is whether he may retain this as compensation, in addition to the $7,200 received as circuit court clerk. The lower court held that the two offices were completely separable, and that the compensation as master commissioner could be retained.
The judgment is clearly wrong on this point. Under Section 246 of the Constitution, the compensation of any public officer, other than those specifically named in the section and those having statewide jurisdiction, cannot exceed $7,200. The limit applies to the person, regardless of the number of offices he may hold. See Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133; City of Louisville v. Gorman, 286 Ky. 477, 150 S.W.2d 931; Barker v. Barnes, Ky., 248 S.W.2d 901. Furthermore, KRS 64.620 provides that the compensation of any local officer, 'for services rendered in one or more offices or positions of employment,' shall not exceed $7,200. And KRS 64.530(1) provides that for the purposes of fixing compensation, master commissioners 'shall be deemed to be county officers.'
The judgment should require that all net earnings of the combined offices in excess of $7,200 be paid over to the county as excess fees.
Two of the defendant magistrates, who held court, received net earnings for 1954, after deduction of allowable expenses, in excess of $5,000. The question is whether the limit on their compensation was $5,000, or $7,200. The lower court held that the limit was $5,000.
Under the 1949 amendment to Section 246 of the Constitution, and under the 1950 'Salary Act,' KRS 64.480 to 64.760, compensation up to $7,200 per annum is authorized to be fixed for local officers. However, KRS 64.700 provides:
'Until such time as the public officer or body authorized by KRS 64.480 to 64.760 to fix the compensation or the limits of compensation of a public officer or employe exercises such authority with respect to such officer or employe, the compensation of such officer or employe shall not exceed that fixed under the statutory law in force and effect prior to June 30, 1950, or, in the case of any officer whose compensation was limited only by the Constitution and not by statute, shall not exceed the limit fixed by Section 246 of the Constitution prior to its amendment. * * *'
At no time between June 30, 1950 (the effective date of the Salary Act) and the election of the defendant magistrates in 1953 did the fiscal court of Warren County exercise its authority to fix the limits of compensation for magistrates. Accordingly, the lower court was correct in holding that the old constitutional limit of $5,000 still governed. See Cheshire v. City of Frankfort, Ky., 272 S.W.2d 37. See also Shamburger v. Duncan, Ky., 253 S.W.2d 388.
The lower court included in its judgment a statement that since no maximum compensation for the office of magistrate had ever been fixed by the fiscal court, that body could now fix the compensation for the terms that began in 1954, not to exceed the limit of $5,000. We think this ruling is incorrect. Under KRS 64.730, when the compensation has not been fixed by the first Monday in May in the year of election, the compensation is to be the same as for the preceding term. We think this means that the compensation can neither be increased nor reduced. Accordingly, since the compensation limit for the preceding term was $5,000, the fiscal court cannot now reduce it below $5,000 for the term that began in 1954. The former rule, as to the authority to fix a compensation after the term commences, when no compensation previously has been fixed, was changed by KRS 64.730. See Upton v. Whitley County, Ky., 256 S.W.2d 3.
The pleadings indicated that one of the defendant constables had received net earnings for 1954 in excess of $5,000, and that a controversy existed as to whether the compensation for constables was $5,000 or $7,200 per annum. The lower court dismissed the action as to the constables, on the ground that no actual controversy existed. We think this was error.
The situation with respect to a compensation limit for the constables was exactly the same as it was for the magistrates, as above discussed, and the judgment should have made an adjudication the same as the one we have directed concerning the magistrates.
A question is presented as to whether the county attorney is entitled to receive the percentage of fines and forfeitures prescribed by KRS 69.260(1)(a), and the taxed fee prescribed by KRS 69.260(2), in prosecutions in quarterly court or magistrates's court in which he does not appear nor participate. The lower court held that the percentage should be paid and the fee taxed except in instances where the county attorney 'fails to attend or to participate' in the prosecution after having received written notice to attend under KRS 455.040.
Subsection (1)(a) of KRS 69.260 provides that the county attorney shall receive 40 percent of 'all fines and forfeitures recovered in prosecutions before a county judge or magistrate.' Subsection (1)(b) allows him a percentage of the fines and forfeitures recovered in circuit court 'in those cases in which he is present and assists in the prosecution,' and subsection (1)(c) allows him a percentage of the fines and forfeitures recovered in police court 'in those cases in which he is present and prosecutes.' Subsection (2) provides that when a fine or forfeiture recovered before a county judge or magistrate is less than $25 the county attorney shall be allowed a fee of $5 to be taxed as costs.
KRS 455.040 states that any magistrate before whom an arrested person is brought for trial shall give written notice to the county attorney of the time when and the place where the trial will be held, 'and that his presence is required.'
Subsection (2)(c) of KRS 64.410 prescribes that no officer shall demand or receive any fee for services not actually rendered.
On behalf of the county attorney it is argued that since subsections (1)(b) and (1)(c) of KRS 69.260 require actual presence and participation in circuit court or police court as a condition of receiving the fee, whereas subsection (1)(a) does not so require as to quarterly court or magistrate's court, presence and participation are not a condition of receiving the fee in the latter courts. It also is argued that the county attorney constantly is rendering service to the quarterly courts and magistrate's courts, through advice and consultation with the judges; that arrested persons often plead guilty because they know the county attorney can be available to prosecute them; and that there is no need for the county attorney to be present in cases where there is a plea of guilty.
The appellants maintain that the difference in wording between the various subsections of KRS 69.260, as concerns the requirement of presence and participation, is due to the fact that in circuit court that commonwealth's attorney normally is responsible for the prosecution, and in police court the city attorney has primary responsibility, so it was necessary for the statute to state specifically the circumstances in which the county attorney may...
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