Greene v. Cohen

• Decision Date: 14 June 1918
• Citation: 181 Ky. 108,203 S.W. 1077
• Parties: GREENE v. COHEN.
• Court: Kentucky Court of Appeals

203 S.W. 1077

181 Ky. 108

GREENE v. COHEN.

Court of Appeals of Kentucky.

June 14, 1918

Appeal from Circuit Court, Franklin County.

Action by Matt S. Cohen against Robert L. Greene. From judgment for plaintiff, defendant appeals. Reversed.

Charles H. Morris, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for appellant.

Leslie W. Morris, of Frankfort, for appellee.

MILLER J.

This case arises under section 235 of the Kentucky Constitution which reads as follows:

"The salaries of public officers shall not be changed during the terms for which they were elected; but it shall be the duty of the General Assembly to regulate, by a general law, in what cases and what deductions shall be made for neglect of official duties. This section shall apply to members of the General Assembly also."

The appellant, Robert L. Greene, is auditor of public accounts of the state of Kentucky, and the appellee, Matt S. Cohen, is its commissioner of agriculture, labor, and statistics. His term of four years began on the first Monday in January 1916; the duties of his office, prior to 1918, were fixed by chapter 4 of the Kentucky Statutes. Article 2 of chapter 5 of the Kentucky Statutes upon the subject of "Animals" related to infectious diseases of cattle and hogs, and their treatment, and for the purpose of carrying out the provisions of that statute the state live stock sanitary board had been created, consisting of the commissioner of agriculture labor, and statistics, ex officio chairman, the head of the division of animal husbandry of the Kentucky experiment station, ex officio member, and four members of the state board of agriculture. Ky. St.§ 63a, subsec. 11.

By an act approved March 20, 1918, entitled "An Act to suppress, * * * control, and eradicate communicable diseases in live stock, to provide the necessary officers and define their duties and powers, and to appropriate funds necessary for its enforcement, and repealing section 63a of article 2, chapter 5, Carroll's 1915 edition, Kentucky Statutes," the scope of the office and the duties of the commissioner were somewhat extended to accomplish the enlarged purposes contemplated by the new statute. Acts 1918, p. 361. This new act of 1918 covered, in a more elaborate manner, the same subjects that were covered by the act which it repealed. Section 12 of the new act of 1918 contains this provision:

"That, to carry out the provisions of this act, there is hereby constituted the state live stock sanitary board of Kentucky, which shall consist of the commissioner of agriculture, labor and statistics, ex officio chairman, the director of the Kentucky agricultural experiment station, ex officio member and vice chairman, the head of the division of animal husbandry of the Kentucky agricultural experiment station, ex officio member, and four members of the state board of agriculture, two from each of the dominant political parties, to be selected annually by the said state board of agriculture. The members of the board shall serve without salary, but shall receive ten dollars per diem for each day the board is actually in session, together with all the necessary traveling and other expenses incurred while engaged in the discharge of their official duties. The chairman of the board shall receive for his services, as such, a salary of one thousand five hundred dollars per annum and the necessary traveling and other expenses incurred while engaged in the discharge of his official duties. The chairman of the board may, and at the request of four members shall, call the meetings of the board at such times and places as may be deemed necessary for the best interests of the live stock industry."

Cohen made out and presented to the auditor an account for his monthly salary, and the auditor having refused to issue his warrant therefor, upon the ground that the act of 1918 violated section 235 of the Constitution when it attempted to raise appellee's salary during his term of office, Cohen instituted this action for a mandamus to require him to do so. The auditor demurred to the petition and answered, admitting all the allegations of the petition, except that paragraph thereof, which alleged that the duties required of the commissioner of agriculture, labor, and statistics, by the act of 1918, are wholly independent of and disconnected with the duties of the plaintiff as commissioner of agriculture, labor, and statistics. On the contrary the answer alleged that Cohen is required to perform the duties imposed upon him by the act of 1918 by virtue of his office of commissioner of agriculture, labor, and statistics.

The circuit court overruled the defendant's demurrer to the petition, sustained the plaintiff's demurrer to the answer, and the defendant having declined to further plead, it entered a judgment requiring him to issue his warrant in favor of the plaintiff for the salary claimed under the act. From that judgment the auditor prosecutes this appeal.

Appellee insists that this case does not present an increase of salary which is prohibited by sections 235 of the Constitution, because, as he claims, the act of 1918 merely provides compensation for the new and numerously increased duties imposed upon him as chairman of the state live stock sanitary board, which were not provided for or mentioned in the old law upon the subject. It is pointed out that the act of 1918 imposes upon the state live stock sanitary board many new duties that were not required of him formerly, including the duty to appoint a deputy state veterinarian, four assistant state veterinarians, one special veterinarian in tuberculosis work, and twelve emergency men scattered in as many districts in the state to work in connection with six federal employés supplied by the bureau of animal industry. The chairman also is required to issue licenses to vendors of hog cholera virus in the state, to approve appraisals of diseased animals and pay indemnity for their destruction; he is given the general supervision of, and held accountable for, the entire annual appropriation of $28,190, and all moneys received from licenses and forfeitures, to approve the appointment of county live stock inspectors in each county in the state, and to supervise the purchase of necessary supplies and equipment in carrying out the provisions of the act.

In support of his contention that the act of 1918 is constitutional, appellee relies principally upon the opinion of this court in James, Auditor, v. Cammack, 139 Ky. 223, 129 S.W. 582, while the commonwealth asks a reversal upon the authority of James, Auditor, v. Duffy, 140 Ky. 604, 131 S.W. 489, 140 Am. St. Rep. 404. In speaking in a general way of section 235 of the Constitution, this court, in James, Auditor, v. Cammack, supra, 139 Ky. 227, 129 S.W. 583, said:

"The second objection, that the act is inimical to section 235 of the Constitution, in that it increases the compensation of the officers after their election, is more serious. Undoubtedly, the provision in the Constitution against the changing of the salary of public officers after their election is mandatory as well as wise, and under no circumstances should the courts suffer or permit any consideration to induce them either to minimize or abrogate the fundamental law of the commonwealth."

It is there further said that the provisions of the Constitution should not, under any circumstances, be treated lightly or irreverently. And, in the Duffy Case, it was made clear that a public official has no contract with the state or county to perform all the duties imposed upon the office at the time of his election; that the duties of his office may be diminished without diminishing his salary, or that the duties may be increased without increasing his salary; and that he must, while holding a public office, discharge all of his duties, even though no compensation therefor be provided. In James, Auditor, v. Duffy, supra, the action was brought by Duffy, a county attorney, against the auditor, to recover a percentage compensation allowed county attorneys by the act of 1906 for services rendered in collecting taxes upon omitted property, and the auditor defended upon the ground that the act in that respect violated the Constitution by attempting to change the compensation of a county attorney during his term of office. In 1905 the county attorney was paid a salary fixed by the fiscal court, and the act of 1906 allowed him, in addition, 15 per centum of omitted taxes assessed in suits in which he appeared. In denying Duffy's right to recover the extra compensation allowed by the act of 1906, this court said:

"The question is, Is that a change of his compensation during his term of office? That it increases his compensation is beyond dispute. But it is argued it does not change it, because it is for new duties imposed, and therefore is a fixing of compensation for those duties alone. The fact still remains that the official receives more money as compensation for his official duties than he did before. In fact we do not regard the statute of 1906 as changing or adding to the duties required of the county attorneys. But let that be as it may, it is not material. The Constitution does not prohibit the Legislature from changing the duties of public officers--either adding to them or taking from them, but it does forbid changing their compensation. By compensation is meant pay for doing all that may be required of the official. Bright v. Stone, Auditor, 20 Ky. Law Rep. 817, 43 S.W. 207. If the compensation is a salary, the salary must remain the same throughout that official's term, whether or not the scope of his official duties has been increased or lessened. If the compensation be fees, then the same scale of fees must prevail for the

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