Manning v. Sims

• Decision Date: 13 August 1948
• Citation: 213 S.W.2d 577,308 Ky. 587
• Parties: MANNING, Commissioner of Finance, v. SIMS et al.
• Court: Kentucky Court of Appeals

213 S.W.2d 577

308 Ky. 587

MANNING, Commissioner of Finance, v. SIMS et al.

Special Court of Appeals of Kentucky.

August 13, 1948

Rehearing Denied Oct. 15, 1948.

Appeal from Circuit Court, Franklin County; Leslie W. Morris Special Judge.

Suit involving constitutionality of Judicial Expense Act, Acts 1948, H.B. 254,§§ 1-3, by N. Porter Sims and others, against J. W. Manning, Commissioner of Finance, Commonwealth of Kentucky. The Attorney General of Kentucky intervened. From the judgments, the defendant appeals.

Affirmed.

Hubert Meredith, of Owensboro, for appellant.

Herman G. Handmaker, Samuel M. Rosenstein, and Charles I. Dawson all of Louisville, for appellees.

Charles I. Dawson and Thomas S. Dawson, of Woodward, Dawson, Hobson &amp Fulton, all of Louisville, and A. E. Funk, Atty. Gen., for intervening petitioner.

LEARY Special Chief Justice.

This controversy requires the court to measure certain provisions of House Bill 254 of the 1948 General Assembly of Kentucky (hereinafter referred to as the Act) against the limitations of the Kentucky Constitution (particularly, Sections 3, 51, 58, 59, 60, 235, and 246) and to declare whether or not there is a conflict.

It is the first three sections of the Act which form the arena of debate. The full text of these three sections are appended to this opinion. Other sections of the Act, which create and replenish the fund from which payments, if permissible, are to be made are not in controversy.

The Act has been called the Judicial Expense Act and its title denominates it as 'An Act providing for the payment of certain expenses to the Judges and Commissioners of the Court of Appeals and the circuit judges of the Commonwealth.'

As will be observed from a reading of the title and the appended sections, the Act deals with the entire judiciary of the Commonwealth above the level of magistrates; county and quarterly courts. Section 1 of the Act deals with circuit judges and provides for the monthly payment from the State Treasury of 'the sum of $100.00, which sum is hereby declared to be the equivalent of the minimum sum that each (circuit) judge will expend each month, in the performance of his official duties, for postage, telephone service, supplies, stationery, stenographic assistance, law clerk hire, and books and periodicals.'

As it relates to Judges of the Court of Appeals and Commissioners of the Court of Appeals, the Act (Secs. 2 and 3) deals alternatively. If the Judge or Commissioner 'continues, during his term of office, to actually reside at his place of legal residence in the district from which he was elected or appointed' he 'shall be paid out of the State Treasury, his actual and necessary traveling expenses in going to and returning from the State Capital, and his actual and necessary food and lodging expenses for each day that he remains at the State Capital in the performance of his official duties.' But, if a Judge or Commissioner of the Court of Appeals 'in order to facilitate the work of the court, and to avoid the expense, delay and inconvenience of frequent travel to and from the place of his legal residence to the State Capital, shall establish a temporary place of abode at the State Capital, or in a place convenient thereto, he shall be paid out of the State Treasury, each month, the sum of $150.00 which is hereby declared to be the reasonable equivalent of the travel, food and lodging expenses which such judge would incur, in the performance of his official duties, if compelled to travel to and from the place of his legal residence.'

Acting pursuant to the provisions of Section 3 of the Act, the Judges and Commissioners of the Court of Appeals certified to the appellant (defendant below) Commissioner of Finance, that each of them had established a temporary place of abode at the State Capital or at a place convenient thereto, which was not their legal residence and requested payment according to the terms of the Act. The Commissioner of Finance, doubtful of the validity of the Act, refused to make the payments provided for therein without judicial determination that the Act was valid.

The Judges ^[*] and Commissioners of the Court of Appeals (and two circuit judges suing in a representative capacity) brought suit in the Franklin Circuit Court alleging the passage of the Act, the provisions thereof, the legal residence of the judges and Commissioners of the Court of Appeals (none of which were the State Capital), the establishment by the Judges and Commissioners of temporary places of abode at the State Capital or in places convenient thereto, the request made upon the Commissioner of Finance and his refusal to act in accordance with the provisions of the Act. The Attorney General of Kentucky intervened in behalf of the Judges and alleged that the Act in question did not violate any of the provisions of the Constitution of Kentucky. The Attorney General has filed a brief in this court in support of the Act.

The court was asked to declare that the Act was constitutional, to permit the plaintiff circuit judges to sue on behalf of all circuit judges in Kentucky similarly situated, and to declare that the Commissioner of Finance has power and authority to issue his warrants against the fund and in the amounts provided in the Act.

Special counsel was engaged to represent the Commissioner of Finance. In the court below a demurrer was filed to the petition and, without waiving the demurrer an answer was filed pleading the unconstitutionality of the Act. Appellees (plaintiffs below) demurred to the answer.

The regular judge of the circuit court, being a party to the action, disqualified as did not regular judges of the Court of Appeals for the same reason. The Honorable Leslie W. Morris of the Franklin County Bar, was designated as Special Judge in the court below. He adjudged the Act to be 'valid and constitutional' and directed the Commissioner of Finance to issue his warrants upon the Treasurer of the Commonwealth of Kentucky according to the terms of the Act. The demurrer to the petition was overruled. The demurrer to the answer was sustained. The defendant (appellant here) declined to plead further and an appeal was prosecuted to this court.

At the very outset it is appropriate that we announce our recognition of and adherence to certain general and well settled rules which must be observed when the constitutionality of an Act of the Legislature is drawn into question. It is essential that the sharp separation of the powers of government be preserved carefully by the courts. Those which are judicial must not be permitted to encroach upon those which are legislative. Section 27, Constitution of Kentucky.

The consistent rule of construction is well stated in Bowman v. Frost, 289 Ky. 826, 158 S.W.2d 945, 946, wherein it is said:

'In passing upon the constitutionality of legislative acts, courts are guided by certain well-established rules. One of those rules is that when the power of the Legislature to enact a law is called in question, the court should proceed with the greatest possible caution and should never declare an act invalid until after every doubt has been resolved in its favor.'

Our courts 'have been sensitive to the rule that an Act should be held valid unless it clearly offends the limitations and prohibitions of the constitution.' 'The burden is upon one who questions the validity of an Act to sustain his contentions.' Johnson, Governor, v. Commonwealth, ex rel. Meredith, 291 Ky. 829, 165 S.W.2d 820, 823. Many other cases, including Kerr v. City of Louisville, 271 Ky. 335, 111 S.W.2d 1046, Talbott v. Thomas, 286 Ky. 786, 151 S.W.2d 1, are to the same effect.

Another rule which is uniformly invoked in statutory construction is that the propriety, wisdom and expediency of legislation is exclusively a legislative question. Craig v. O'Rear, 199 Ky. 553, 251 S.W. 828.

Against this general concept of constitutional law which is announced more often than it is followed, let us proceed to measure the provisions of the Act against Sections 235 and 246 of the Constitution for it is here that the Act meets its severest test.

Section 235, in pertinent part, provides:

'The salaries of public officers shall not be changed during the terms for which they were elected * * *.'

Section 246, in pertinent part, provides:

'No public officer, except the Governor, shall receive more than five thousand dollars per annum, as compensation for official services * * *.'

It is apparent that if the Act accomplishes a change in salaries for the judges Section 235 would be violated. If the Act works an increase in compensation it would transgress Section 246 as respects the Judges who now receive $5000 per annum as compensation for official services. Appellant, to sustain the burden cast upon him, argues that the salary or compensation of the incumbent judges was burdened with all the expenses of the office at the time each of them began his term of office; that the Act relieves the incumbents of certain expenses connected with their office and necessarily increases the 'take home' pay of each of them which, in turn, is an increase in salary or compensation.

In our view, the argument will not stand resort to the authorities. The prohibition against a change of salary or compensation during the term of a public officer is a familiar one in state constitutions. Unless the contrary is clearly expressed, it is consistently held that the allowance of reasonable expenses incurred in the discharge of the official duties of an office is neither salary, compensation nor an emolument of the office within the purview of a constitutional prohibition against a change in compensation during the term. Taxpayers League, etc., v. John McPherson,...