Jefferson County Fiscal Court v. Thomas

• Decision Date: 20 January 1939
• Citation: 130 S.W.2d 60,279 Ky. 458
• Parties: JEFFERSON COUNTY FISCAL COURT v. THOMAS, Constable, et al.
• Court: Kentucky Court of Appeals

130 S.W.2d 60

279 Ky. 458

JEFFERSON COUNTY FISCAL COURT v. THOMAS, Constable, et al.

Court of Appeals of Kentucky

January 20, 1939

As Modified on Denial of Rehearing June 23, 1939.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Churchill Humphrey, Judge.

Action by the Jefferson County Fiscal Court, etc., against Charles L. Thomas, Constable, etc., and others, for a declaratory judgment as to constitutionality of statute relating to salaries of constables and deputy constables in counties having a population of more than 250,000. From the judgment the plaintiffs appeal.

Affirmed in part, and reversed in part.

Lawrence S. Grauman, Co. Atty., and Robert L. Sloss, Asst. Co. Atty both of Louisville, for appellant.

Eugene R. Attkisson and Attkisson & Attkisson, all of Louisville for appellees.

FULTON Justice.

In 1932 the General Assembly enacted Chapter 147, Acts of 1932, which is now incorporated in sections 1079, 1083a-1 et seq. of the Kentucky Statutes. This Act provided that constables should receive a salary of $200 a month and deputy constables $125 a month, but provided that in no event should the sums paid to said officers exceed the fees paid in on account of services rendered by them. As a practical matter, the Act merely limited the amount which a constable could earn from fees to $2,400 per year and the amount which a deputy constable could earn from fees to $1,500 per year. The constitutionality of the 1932 Act was sustained by this court in the case of Shaw v. Fox, 246 Ky. 342, 55 S.W.2d 11.

Chapter 96 of the Acts of 1938 amended and reenacted subsections 5 and 9 of the Act of 1932 and is now contained in Kentucky Statutes, sections 1083a-5, 1083a-5a and 1083a-9. This amendatory Act provides an outright salary of $2,400 per year to be paid each constable out of the general fund of the county and fixes the salary of deputy constables at $2,100 per annum, provided the amount paid to any deputy constable for any month should not exceed the amount paid into the general fund of the county by the deputy constable during the preceding month. It is further provided that the Act shall be retroactive and shall apply to the present official term of all constables and deputy constables. Both the original Act and the amendatory Act applied only to counties in the State having a population of more than 250,000, the practical effect of this being to apply the Act only to Jefferson County.

The Jefferson County Fiscal Court filed this action under the Declaratory Judgment Act, Civ.Code Prac. § 639a--1 et seq. against the constables and deputy constables and also against the recorders and deputy recorders, seeking a declaration of rights alleging that the 1938 Act was unconstitutional because (1) it violated sections 59 and 60 of the Constitution as being special and local legislation; (2) it violated section 51 of the Constitution in that the title of the Act is not broad enough to cover the provisions regulating salaries of constables and deputy constables; (3) that it violates sections 161 and 235 of the Constitution in that it applies to officeholders in office at the time of the passage of the Act and is an increase of compensation as to those officers during their term of office; and (4) that it is unconstitutional in that it attempts to give the recorder judicial power in conferring on him authority to release wages held under a garnishment, and that it violates the general law requiring justices of the peace to act as clerks of their courts by giving such power to the recorder. We will consider these contentions in order.

(1) Both the 1932 Act and the 1938 Act contained a preamble setting forth facts justifying the classification of counties containing a population in excess of 250,000 for the purposes of the legislation contained in the Act. The petition in this action put into issue the truth of the facts set forth in the preamble to the 1938 Act and affirmatively alleged that in other counties in the State the conditions set forth in the title or preamble exist in a fair, comparative and similar degree to those existing in counties having a population in excess of 250,000. It is insisted that the trial court erred in sustaining demurrer to this paragraph of the petition and that it should have heard evidence as to the truth of these allegations. In support of this contention appellant cites numerous cases from this court laying down the rule that where the Constitution limits the right of the Legislature to act to certain factual situations only, it is the duty of the court to determine the existence or non-existence of the facts authorizing legislative action; that the validity of the classification made by this Act depended upon the correctness of the facts recited in the Act as a basis for justifying the classification and that the court should have heard evidence as to the truth or falsity of those facts.

We are of the opinion, however, that the case of Shaw v. Fox, supra, is determinative of this question. The Act of 1938 is merely an amendment of the 1932 Act. The Shaw Case upheld the validity of the original Act and decided that the classification therein made was reasonable and not violative of sections 59 and 60 of the Constitution and, as long as that decision stands, it is conclusive of the question of classification as to all purposes embraced within the Act. The amendatory Act of 1938 merely enlarges and broadens the purposes and objects of the original Act; consequently, the reasonableness of the classification adjudicated by this court in the Shaw Case as to the original Act holds good for the amendatory Act.

Appellant comments on the manner in which Shaw v. Fox, supra, is practiced as a persuasive equity why this court should reconsider that decision or at least decide that the lower court should have considered the truth or falsity of the factual situation recited in the preamble of the 1938 Act for the purpose of determining its validity. However, we will assume that this court felt itself fully advised in that case and that the case had been so practiced that all matters necessary to the proper determination of the question were fully before it. This court has power, in passing on questions affecting the public interest, to control procedure to the end that cases before it shall be adequately, efficiently and in good faith presented, and we will assume that it exercised that power in that case.

Especially are we loath to question the correctness of the decision in Shaw v. Fox, supra, when a casual inspection of the Act makes so plainly apparent the likelihood of the correctness of the legislative finding or assumption of the natural and distinctive reasons for the classification made in the Act. We adhere to the decision in that case and are of the opinion that it is conclusive against this contention of appellant.

This conclusion we have reached is also decisive of a number of other contentions made by appellant, such contentions being (a) that the Act violates sections 59 and 60 of the Constitution because there is a general law, Kentucky Statutes, section 1733, providing for payment of constables' fees; (b) that the fees collected by a constable acting through deputies belong to the office of constable and the Legislature had no power to allocate all fees earned by the office of constable (through deputy constables) to the payment of salaries of deputy constables alone; and (c) that the county cannot be required to pay an outright salary of $200 per month to a constable where fees collected by him do not amount to that much.

A legal classification having been made by the 1932 Act as to counties containing a population of more than 250,000 for the purpose of legislation as to the payment of constables and deputy constables therein, all general laws pertaining to such payment cease to be operative (as to the payment of such officers) at the will of the Legislature. Any law thereafter enacted as to the method, manner and amount of payment of constables and deputy constables in such counties is valid unless it contravenes some other provision of the Constitution.

It is not alleged in the petition that the factual situation upon which the classification was approved in Shaw v. Fox, supra, has materially changed. If it has not, and we assume it has not from the absence of an allegation to that effect, then the decision in Shaw v. Fox is controlling in the present case. Reliance upon the principle announced by the Supreme Court in Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841, and similar cases, is not justified. In those cases it appeared that a changed condition existed. Here it does not.

(2) The only portion of the title of the 1938 Act having any bearing on the payment of salaries is as follows: "An Act to amend and re-enact subsections five (5) and nine (9) of Section 1083a of Carroll's Kentucky Statutes *** by providing ***; for the payment of the salaries provided by law for the officers of constable in the said counties."

Appellant contends that the language of the title was not sufficiently broad either to justify the fixing of the compensation of constables at an outright salary of $2,400 or to justify increasing the salary of deputy constables from $1,500 per year to $2,100 per year. As to this first contention, we are of the opinion that the title is sufficient. The 1932 Act provided a salary of $2,400 per year for the constables and we think the above quoted language of the title sufficiently broad to put anyone on notice that the 1938 Act was intending to legislate for the payment of that salary. It is true that the 1932 Act limits the amount to be paid to any constable to the amount paid in to the...