James, Auditor, v. Cammack

• Decision Date: 17 June 1910
• Citation: 139 Ky. 223
• Parties: James, Auditor, v. Cammack.
• Court: Kentucky Court of Appeals

Page 223

139 Ky. 223

James, Auditor, v. Cammack.

Court of Appeals of Kentucky.

June 17, 1910.

Appeal from Franklin Circuit Court.

GEORGE C. WEBB, Special Judge.

Judgment for plaintiff, defendant appeals. — Affirmed.

JAMES BREATHITT attorney general and JOHN F. LOCKETT assistant attorney general for appellant.

EDELEN & DAVIS for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE BARKER — Affirming.

This action involves the constitutionality of an act of the General Assembly of the commonwealth of Kentucky, authorizing the regular circuit judges to act as special judges, and fixing their compensation for the additional duties discharged by them in so doing. The act in question is as follows:

"Be it enacted by the General Assembly of the commonwealth of Kentucky:

"Section 1. That the regular circuit judges of the commonwealth of Kentucky, except those whose district embrace a city of either the first or second class, and wherein a court of continuous session is held, be, and they are, hereby authorized to act as special judges of the circuit courts of this commonwealth.

"Sec. 2. In the absence of the regular judge of any circuit court in this commonwealth, or when he cannot preside, in any particular case or cases, if the parties cannot agree upon an attorney who is present to act as judge, and who shall receive no compensation for his services, the clerk shall at once notify the Governor, who, in turn shall immediately notify one of the circuit judges mentioned above who is not then engaged in holding a regular or special term of court in his district, and it shall be the duty of said circuit judges so notified by the Governor, to hold the court, or try the case, and the judge so notified by the Governor shall have all the powers of a regular judge of said court.

"Sec. 3. It shall be the duty of the clerk of each circuit court held by a judge whose district does not embrace a city of the first or second class, wherein a court of continuous session is held, to notify the Governor in writing immediately upon the final adjournment of each regular or special term of his court and also of the time when the next regular or special term to be held by said circuit judge shall begin, and it shall be the duty of the Governor to keep a roster of said circuit judges showing when each of them is not engaged in holding a regular or special term of court in his district, and the Governor in so notifying the circuit judges of their selection to hold any such court or to try any case, shall do so in such manner as to divide such special judge's work as equally as practicable between all the regular judges aforesaid.

"Sec. 4. It shall be the duty of the Governor, immediately upon this act taking effect, to issue a commission to each of said circuit judges, commissioning them as special judges of this commonwealth so long as they shall be regular judges thereof, and when any of said judges shall preside out of his district in holding a court or in trying a case, as provided in this act, he shall have his said commission recorded upon the order book of said court. Before entering upon the discharge of his duties every special judge must, in addition to the oath prescribed by the Constitution, take an oath as follows: `I, A. B., do solemnly swear (or affirm) that I will administer justice without respect of persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge all the duties incumbent upon me as judge, according to the best of my ability.' Said oaths, together with the certificate of the officer before whom same were taken showing the date thereof, shall be indorsed in writing on his commission.

"Sec. 5. The selection of special judges, the reason for such selection, and the fact that the requisite oaths have been taken, must be entered upon the order book of the court.

"Sec. 6. Such special judges shall respectively receive an annual salary of twelve hundred dollars payable monthly out of the treasury.

"Sec. 7. All the laws or parts of laws in conflict herewith, and particularly 971 of the Kentucky Statutes, are hereby repealed."

Two grounds are urged by appellant for holding that the act is unconstitutional: First, that the duties of a special judge are incompatible with those of a regular circuit judge, and, therefore, it falls within the inhibition of section 165 of the Constitution, which prohibits the holding of incompatible offices; and, second, that it is violative of section 235 of the Constitution. which provides that "the salaries of public officers shall not be changed during the terms for which they were elected. * * *"

The first objection may be disposed of in few words. In the cases of Mengel, Jr., Brother Co. v. Jackson, 94 Ky. 472, 22 S. W. 854, 15 Ky. Law Rep. 289, and Hughes v. Commonwealth, 89 Ky. 227, 12 S. W. 269, 11 Ky. Law Rep. 424, it was held that the Legislature had the power and authority to provide that a regular circuit judge should sit as special judge when the regular judge of any district failed to attend, or, being in attendance, could not properly preside.

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. The Constitution of the state is the result of the wisdom, experience, and judgment of the constitutional convention, which was composed of some of the greatest and wisest and most patriotic men of the commonwealth. They gave to the duty imposed upon them by the people much patriotic labor, and the instrument as completed by them was submitted to the whole people, and ratified by a large majority of the qualified voters of the commonwealth. An instrument thus brought forth, as the result of wise and patriotic labor, and ratified by those possessing all of the political power of the commonwealth, should not under any circumstances be treated lightly or irreverently. Like the Ark of the Covenant of old, it bears within its bosom the hopes and interests of a whole people, and should be free from the touch of impious or profane hands. If, then, the act under consideration is an attempt to evade the constitutional provision against increasing the salaries of officers after they are elected, it should be condemned without hesitation, no matter how high its beneficiaries may stand in the commonwealth or in the affections of the court whose duty requires it to render the judgment. But if, on the other hand, it can be established that the act does not fall within the inhibition of the Constitution, we should permit no sentimental fears of a profanation of its sanctity to prevent our doing justice to a deserving body of public servants who are notoriously underpaid.

At the outset, it is necessary to clearly distinguish between the judge and his office. Section 125 of the Constitution provides that "a circuit court shall be established in each county now existing, or which may hereafter be created, in this commonwealth." Section 126: "The jurisdiction of said court shall be and remain as now established, hereby giving to the General Assembly the power to change it." Section 128 provides for the establishment of judicial circuits, and section 129 for the election of judges of the various circuit courts so established. Section 130 provides the qualifications of the various circuit judges. Now, it is manifestly the duty of the circuit judge to discharge the duties which grow out of the jurisdiction of the court of which he is elected judge. Whatever belongs to that jurisdiction constitutes a part of his duty, and these duties he must perform for the whole term without any increase of salary. If the jurisdiction of his court is increased by the addition of a county or counties to his circuit, he must perform the additional duties growing out of the change without additional salary. If the jurisdiction is increased by the lowering of the minimum of jurisdiction so as to include those cases which, originally, were only cognizable in the courts of justices of the peace or county courts, still the circuit judge must discharge this additional labor without additional salary. But it is clear that there may be duties imposed upon the judge as an individual which do not belong to, or constitute a part of, the jurisdiction of his court, and which may not be intended by the Legislature to be a part of it; and to this class clearly belong the duties of special judge. It is manifestly not a part of the regular jurisdiction of one circuit court that its judge should hold special court in a different district when the occasion for the discharge of such duties arise. If this were otherwise, then it would be beyond the authority of the Legislature to confer upon any other than the regular circuit judges of the state the authority to perform the duties of special judge. But we know that from the time of the adoption of the present Constitution until the enactment of the law under consideration, the duties of special judge have never been discharged by regular circuit judges, but, on the contrary, those duties have been discharged by attorneys at law selected in the manner required by the statute in force at the time.

The Constitution has plainly left it within the discretion of the Legislature to provide how the duties of special judge shall be discharged. Section 136 is as follows: "The General Assembly shall provide by law for holding circuit courts when, from any cause, the judge shall fail to attend, or, if in attendance, cannot properly preside." If the act under consideration be held invalid, then...