Neutzel v. Fiscal Court of Jefferson County

• Citation: 183 Ky. 1,208 S.W. 11
• Parties: NEUTZEL, CLERK, v. FISCAL COURT OF JEFFERSON COUNTY. [a1]
• Decision Date: 24 January 1919
• Court: Kentucky Court of Appeals

208 S.W. 11

183 Ky. 1

NEUTZEL, CLERK, v. FISCAL COURT OF JEFFERSON COUNTY. ^[a1]

Court of Appeals of Kentucky.

January 24, 1919

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Petition by Fred O. Neutzel, clerk, for a writ of mandamus against the Fiscal Court of Jefferson County. From a judgment sustaining a demurrer to the petition, and denying the writ, petitioner appeals. Reversed and remanded, with directions.

J. S Luscher and C. H. Searcy, both of Louisville, for appellant.

J. Mat Chilton and Nat C. Cureton, both of Louisville, for appellee.

CARROLL C.J.

This litigation grows out of a controversy between Neutzel, clerk of the Jefferson county court, and the fiscal court that has charge of the fiscal affairs of the county, as to whether the clerk should be allowed the increased fee for rendering certain service that was authorized by an act of the Legislature passed after his term of office commenced.

At the time Neutzel was elected clerk of the Jefferson county court there was a law in effect, allowing clerks five cents for each tax bill made out for the sheriff or collector of taxes. After his election, and in 1918, the Legislature so amended the former law as to give clerks seven cents for each tax bill made out.

Assuming that he was entitled to the increased fees allowed by the act of 1918, the clerk presented his claim therefor to the fiscal court, and upon their refusal to pay the increased fees he brought this suit in the Jefferson circuit court, to compel them by mandamus to do so, and, the circuit court having decided against him, he prosecutes this appeal.

It is provided in section 161 of the Constitution that:

"The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office."

And also in section 235 of the Constitution that:

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

Under these constitutional provisions it has been written in numerous cases that neither the compensation, whatever may be the method of its payment or the service for which it is charged, nor the salary, if the office be a salaried one, of a public officer can be changed in any manner during his term of office either by increasing or reducing his compensation or his salary. If the compensation of the public officer is derived from fees for specified services, these fees cannot be diminished or increased during his term; and if he is paid a fixed sum as a salary for each day or week or month or year, his salary cannot be decreased or increased during his term. In other words, the purpose of these provisions was to secure to the officer during the term of his office exactly the same compensation or salary, no more and no less, that under the law he was entitled to receive at the time he was elected to the office. Thomas v. Hager, 120 Ky. 428, 86 S.W. 969, 27 Ky. Law Rep. 813; Frizzel v. Holmes, 131 Ky. 373, 115 S.W. 246; James v. Barry, 138 Ky. 656, 128 S.W. 1070; Greene v. Cohen, 181 Ky. 108, 203 S.W. 1077. Therefore if these provisions of the Constitution are applicable to the case we have, there is no room to doubt that the court below properly refused to allow the clerk to recover the increased fee authorized by the act that became a law after his election. Indeed this is conceded by his counsel.

It is contended, however, that the right of the clerk to the increased fee provided by the act of 1918 (Laws 1918, c. 95) is not to be controlled or determined by the sections of the Constitution referred to, the argument in this behalf being that these sections are not applicable to the clerk of the Jefferson county court, as Jefferson county has a population of more than 75,000, and under the Constitution and Statutes the compensation of the clerk of that county is regulated by section 106 of the Constitution and sections 1761, 1762, 1763, 1764, and 1769 of the Kentucky Statutes.

Section 106 of the Constitution reads in part as follows:

"In counties or cities having a population of seventy-five thousand or more, the clerks of the respective courts thereof (except the clerk of the city court), the marshals, the sheriffs and the jailers, shall be paid out of the state treasury, by salary to be fixed by law, the salaries of said officers and of their deputies and necessary office expenses not to exceed seventy-five per centum of the fees collected by said officers, respectively, and paid into the treasury."

Section 1761 of the Kentucky Statutes provides that the clerk of each county having a population of 75,000 or over shall, on the first day of each month, send to the state auditor of public accounts a statement, showing the amount of money received or collected by him during the preceding month, and with such statement shall send the amount so collected.

In section 1762 it is provided that the clerk shall receive an annual salary of $5,000 and the number of his deputies and the compensation to be received by each, and the amount allowed for the expenses of his office shall be regulated and fixed by the circuit court at a sum not exceeding $2,000 per year for his chief deputy and $1,500 per year...