Herold v. Talbott, Auditor

Decision Date20 December 1935
Citation261 Ky. 634
PartiesHerold et al. v. Talbott, Auditor.
CourtUnited States State Supreme Court — District of Kentucky

2. Constitutional Law. Courts should construe Constitution with great caution and should not give technical construction to it which would defeat it.

3. Constitutional Law. — Rules of construction should not be employed to interpret Constitution when language and subject-matter of Constitution leave no doubt of intended meaning of clause under investigation, unless meaning can be reached in that way only and with proximate certainty.

4. Constitutional Law. — Meaning and intent of constitutional provision, when ascertained, are mandatory.

5. Constitutional Law. — While Constitution is progressive and not static in its application to meet changed conditions, meaning of constitutional provision never varies.

6. Constitutional Law. — Where language of constitutional 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.

7. Counties. — In construing provision in Constitution that fees of county officers should be regulated by law and that in counties or cities having population of 75,000 or more the county officers should be paid a salary to be fixed by law, provision that fees of county officers should be regulated by law could not be eliminated, and the word "or" after the word "counties" could not be eliminated and the word "of" or "with" substituted therefor (Constitution, sec. 106).

8. Constitutional Law. — Where meaning of constitutional provision is in doubt, provision should be given meaning which it possessed at time of its framing and adoption, as determined by contemporaneous legislative and administrative construction as to sense in which constitutional convention used words contained in doubtful provision.

9. Clerks of Courts; Statutes. Statute fixing salaries of clerks of circuit courts of counties having population of 75,000 or over at $5,000 held valid exercise of legislative authority (Ky. Stats., sec. 1762; Constitution, secs. 59, 106, 246).

10. Statutes. Statute fixing salaries of chief deputy clerk and deputy clerks of circuit courts in counties having population of 75,000 to 200,000 held not invalid as being "local" or "special legislation" (Ky. Stats. 1934, sec. 1763-1; Constitution, sec. 59).

11. Clerks of Courts. — That statute fixing salaries of chief deputy clerk and deputy clerks of circuit courts in counties having population of 75,000 to 200,000 would make it impossible for clerk to carry out duties of his office would not warrant giving new meaning to constitutional provision which for more than 40 years had been interpreted as vesting in Legislature whole power of state to deal with subject of fixing and regulating salaries of county officers on basis of population (Ky. Stats. Supp. 1934, sec. 1763-1; Constitution, sec. 106).

Appeal from Franklin Circuit Court.

ORIE S. WARE for appellants.

BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE and DAVID C. WALLS, Assistant Attorneys General, for appellee.



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, sec. 39. Section 1763-1 was enacted in 1934. See Acts 1934, c. 128, p. 539, sec. 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, sec. 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,...

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