Herold v. Talbott

Decision Date21 June 1935
PartiesHEROLD et al. v. TALBOTT, Auditor.
CourtKentucky Court of Appeals

As Modified on Denial of Rehearing December 20, 1935.

Appeal from Circuit Court, Franklin County.

Action by John A. Herold, individually, and others, against J. Dan Talbott, Auditor of Public Accounts. From the judgment, the plaintiffs appeal.

Affirmed.

Orie S Ware, of Covington, for appellants.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice and David C Wall, Asst. Attys. Gen., for appellee.

RICHARDSON Justice.

John A Herold, clerk of the Kenton circuit court, filed this action in the Franklin circuit court against the Auditor of Public Accounts for a declaration of his rights and the authority of the auditor, under sections 1762, Carroll's Kentucky Statutes, and 1763-1, Kentucky Statutes (Baldwin's Supp. 1934). Section 1762 fixes the annual salary of Herold as clerk of the Kenton circuit court at $5,000. This section was enacted in 1893. Acts of the General Assembly, chapter 226, p. 1131, § 39. Section 1763-1 was enacted in 1934. See Acts 1934, c. 128, p. 539, § 1. It was enacted in lieu of section 1763, Carroll's Kentucky Statutes (Acts 1928, c. 121, p. 412, amending Acts 1893, c. 226, p. 1131, § 40). The material distinction between the amendatory act and the original is the salaries of the deputies of the circuit court clerk, "in counties having a population of seventy-five thousand (75,000) or over and up to two hundred thousand (200,000)," are fixed; the chief deputy at $2,500 a year, and of each of the other deputies at a reasonable sum not exceeding $2,000 a year.

The obligation is upon us to determine the declaration of Herold's rights as clerk of the Kenton circuit court, and those of the auditor in respect thereto, under these sections and section 106 of our Constitution.

"Kenton County, with a city of more than twenty thousand (20,000) and a population of more than seventy-five thousand (75,000), has two circuit judges whose courts are of continuous session." Section 980 et seq., Kentucky Statutes.

The compensation of Herold, as circuit court clerk, and his deputies, comes from fees earned, taxed, collected, and accounted for to the state treasury.

He argues strenuously that the clerk of the Kenton circuit court is not included in section 106 of the Constitution if and when it is given a correct or true interpretation. The office of the circuit court clerk as he contends not being embraced in section 106 of the Constitution, therefore sections 1762 and 1763-1 are not applicable to the office, "(a) because they are repugnant to the provision of the Constitution; (b) if so construed they would violate section 59 of the Constitution prohibiting local or special legislation, and (c) because the long-contemporaneous legislative and judicial construction make these sections applicable to Jefferson county alone."

He arrives at this construction by the process of elimination and substitution. He eliminates the first sentence in section 106; the word "or," in the second, and substitutes for it the word "of" or "with," making it read: "In counties 'of' / 'with' cities having a population, etc."

The Legislature, Acts 1893, c. 226, art. 18, p. 1156, approved June 15, 1893, by section 38 thereof, provided for the regulation of the salaries of the circuit clerk and his deputies, the clerk of the county court, commissioners, receivers, examiners, and the sheriff of each county having a population of 75,000 or over. It fixed the salary of each of the officers, excluding deputies, at the sum of $5,000 per annum. Section 39. By section 53, it regulated the fees of the jailer, county clerk, circuit clerk, commissioners, receivers, examiners, and sheriffs in a county having a population of over 40,000 and under 75,000 and fixed the salary of each officer and directed the fixing of the salary of each deputy or assistant employed by him.

The men who framed and voted for the act of 1893 "were contemporaneous with the constitution; *** the debates in the convention, and before the people while the constitution was pending before them for adoption, were fresh in the minds of all, and it is reasonable to say that as they had peculiar opportunities to know with what intention the clause [section 106] in question was inserted, that what it was intended to mean was more fully understood by them than it can be by us. *** A construction so given ought to be decisive of any doubt which might otherwise exist." Collins v. Henderson, etc., 11 Bush, 74.

This court in June, 1895, and again in February and December, 1897, decided that the Legislature was, by section 106, vested with the authority to fix the salaries of county officers based upon the population of a county, though it contained no city embracing the population described in section 106. In June, 1895, we said: "The only provision directing, expressly, the fees of the county offices to be fixed on a salary basis, is the 106th section, and by this it is provided that: 'The fees of county offices shall be regulated by law. In counties or cities having a population of 75,000 or more the county officers (naming them) shall be paid a salary to be fixed by law, but not to exceed seventy-five per centum of the fees collected by said officers respectively.' We do not doubt, however, the authority of the legislature to classify the other counties of the state, and to fix a salary for the respective county officers, as in this case; taking care to make it general, and not obnoxious to the several provisions of the constitution inhibiting special legislation." Commonwealth v. Chinn, 97 Ky. 730, 31 S.W. 727, 728, 17 Ky. Law Rep. 447.

In February, 1897, we said: "Section 106 confers power as to fixing the fees of county officers. It was competent for the legislature to fix the fees of appellee as it did, and leave some other of the county officers to receive the whole fees as fixed by law; the reason doubtless being that the fees of the omitted officers would not amount to $3,000." Stone, Auditor, v. Wilson, 39 S.W. 49, 51, 19 Ky. Law Rep. 126.

In December, 1897, we quoted with approval from Stone, Auditor, v. Wilson, supra, this statement: "The contention of appellants that the statute in question is not constitutional, because it applies only to counties having a population in excess of 75,000, and is therefore in violation of section 59 of the present constitution, cannot be sustained. The statute in question applies alike to all counties of the same class, and is therefore not in conflict with section 59 of the constitution. That identical question was considered in the case of Stone, Auditor, v. Wilson, herein referred to. In that opinion the court said: "'Local" or "special" legislation, according to the well-known meaning of the words, applies exclusively to special or particular places, or special and particular persons, and is distinguished from a statute intended to be general in its operation, and that relating to classes of persons or subjects."' Winston, Com'r, v. Stone, Auditor, 102 Ky. 423, 43 S.W. 397, 398, 19 Ky. Law Rep. 1483. See Ray v. Woodruff, 168 Ky. 563, 182 S.W. 662; Merriwether v. Summers, 179 Ky. 437, 200 S.W. 619; Neutzel v. Fiscal Court, 183 Ky. 2, 208 S.W. 11.

An examination of these cases discloses that we have for more than forty years consistently construed section 106 to vest in the Legislature the whole power of the state to deal with the subject of fixing and regulating the salaries of county officers on the basis of the population of the county, and that it was acting within the scope of this section, when its enactment was based upon the population of a county where there was no city therein of 75,000 or more, or in counties wherein there was a city having a population of 75,000 or more, and that such classification on the basis of the population of the county alone was not special or local legislation within the purview of section 59 of the Constitution.

It is an accepted rule that the courts construe a Constitution with great caution [District Board of Tuberculosis, etc., v. City of Lexington, 227 Ky. 7, 12 S.W.2d 348], and will not give it a technical construction which will defeat it. Board of Commissioners v. Spencer, 159 Ky. 255, 166 S.W. 1017. It is most hazardous to interpret it by rules of construction which should not be employed where its language and subject-matter leave no doubt of the intended meaning of the clause under investigation, unless the meaning may be reached in that way only, and with approximate certainty. The meaning and intent of a section of the Constitution, when ascertained, are mandatory. Craft v. Baker, 194 Ky. 205, 238 S.W. 389. True it is, the law, even the Constitution, is not static, but progressive, in its application to meet changed conditions, yet the meaning of a constitutional provision never varies. Fowler v. Obier, City Bldg. Inspector, et al., 224 Ky. 742, 7 S.W.2d 219. Where the language of the provision is plain and simple, rules of interpretation and construction are not to be applied to vary its meaning, or broaden the scope of its application, to meet new conditions.

With the legislative construction of the section and our own opinions sustaining it, in the cases supra, confronting us it would be equivalent to our engaging in the process of changing this section to strike therefrom the word "or" and substitute the word "of" or "with," so as to make the second sentence read: "In counties 'of,' or 'with' cities...

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