Shanks v. Howes

• Decision Date: 18 May 1926
• Citation: 214 Ky. 613,283 S.W. 966
• Parties: SHANKS, AUDITOR, v. HOWES, CHIEF CLERK.
• Court: Kentucky Court of Appeals

283 S.W. 966

214 Ky. 613

SHANKS, AUDITOR, v. HOWES, CHIEF CLERK.

Court of Appeals of Kentucky.

May 18, 1926

Appeal from Circuit Court, Franklin County.

Action by Charles J. Howes, Chief Clerk of the House of Representatives at the 1926 Session of the General Assembly against W. H. Shanks, Auditor of Public Accounts. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank E. Daugherty, Atty. Gen., and Overton S. Hogan, Asst. Atty Gen., for appellant.

Leslie W. Morris, of Frankfort, for appellee.

SANDIDGE C.

At the 1926 session of the General Assembly, section 1991, Kentucky Statutes, was repealed, and in lieu of it a new section was enacted, by which, among other things, the salary of the chief clerk of the House of Representatives was increased from $8 per day, as fixed by the repealed statute, to $26 per day, as fixed by that enacted in lieu of it. The act by express terms was made retroactive so as to make the increase in salary effective from the date at which that session of the Legislature began its labors. Throughout that session of the Legislature appellee, Charles J. Howes, under election by it served as chief clerk of the House of Representatives. Under the provisions of the new act he demanded that appellant, W. H. Shanks, auditor of public accounts of the commonwealth of Kentucky, draw in his favor a warrant upon the treasurer for the amount of his salary as fixed by it. The auditor, to test the validity of the act in question declined to do so. This action was thereupon instituted to compel the auditor to issue the warrant under the new act. The trial below resulted in a judgment upholding the validity of the act in question and adjudging that under its terms appellee, as chief clerk of the House for the 1926 session of the General Assembly, was entitled to pay at the rate of $26 per day. The Auditor was directed to issue a warrant accordingly. This appeal is prosecuted from that judgment.

The validity of the act in question is challenged upon the ground that it is in conflict with the provisions of section 235 of the Constitution of Kentucky, which reads:

"The salaries of public officers shall not be changed during the terms for which they were elected; but it shall be the duty of the General Assembly to regulate, by a general law, in what cases and what deductions shall be made for neglect of official duties. This section shall apply to members of the General Assembly also."

The controversy as to whether or not the chief clerk of the House of Representatives is a "public officer" within the provisions of that section of the Constitution is twofold: First, whether or not he is a "public officer" in any event in contemplation of that section of the Constitution; and, second, whether, if so, he is brought within its terms by having a fixed term of office. The rule for determining who are "public officers" was written in these words, in City of Louisville v. Wilson, 99 Ky. 598, 36 S.W. 944, 18 Ky. Law Rep. 427:

"There are various tests by which to determine who are officers in the meaning of the law, but at last, in case of uncertainty, the intention of the law-makers control. To constitute an officer it does not seem to be material whether his term be for a period fixed by law or endure at the will of the creating power; but if an individual be invested with some portion of the functions of the government, to be exercised for the benefit of the public, he is a public officer. Meacham on Public Offices, § 1."

See, also, Fox v. Lantrip et al., 162 Ky. 178, 172 S.W. 133, and Lowry v. City of Lexington, 113 Ky. 763, 68 S.W. 1109, 24 Ky. Law Rep. 516.

Section 40 of our Constitution provides that each house of the General Assembly shall keep and publish a daily journal of its proceedings, requiring in certain cases that the yea and nay vote of the members shall be entered on the journal. Section 46 of the Constitution provides the method by which bills introduced may be passed by the General Assembly and become the law of the state. A consideration of the provisions of those sections will disclose the part played by the journals of the two houses in the passage of the acts of our General Assembly. By section 249 of the Constitution the General Assembly is expressly denied the right to elect, appoint, employ, or pay for exceeding one chief clerk, one assistant clerk, one enrolling clerk, and a fixed number of other officers and employees. Merely superficial examination of the language of that section will disclose that the positions and offices therein mentioned are not thereby created and required to be filled by the Legislature. The section is merely an inhibition against the Legislature creating more of such offices and positions and electing or employing more officers or employees to fill them than are there named. The office of chief clerk of the House of Representatives is created by section 1988 of the Kentucky Statutes, and the duties of the office are fixed by section 1989, by which, among other things, the duty of keeping the journal, which section 40 of the Constitution, supra, provides shall be kept, is imposed upon him. When the duties imposed upon the chief clerk of the House of Representatives by section 1989, Kentucky Statutes, are considered in connection with the important and necessary part which his duties play in the enactment of bills introduced into the Legislature into the laws of the commonwealth, as provided for by sections 40 and 46, of the Constitution, it is patent that that official is invested with a most important portion of the functions of the government which are exercised by him for the benefit of the public. The Constitution itself requires that the journal be kept in connection with that most important of all the functions of the legislative department of our state government, the enactment of our laws. The duty of keeping the daily journal of its proceedings is the chief duty of the chief clerk of the House. Since he is invested with that most important portion of the functions of the government, that is, performs a constitutionally required and indispensably necessary part in the enactment of our laws, we have no difficulty in reaching the conclusion that the chief clerk of the House of Representatives is a "public officer" within the meaning of that term as used in section 235 of the Constitution.

Careful consideration of the provisions of section 235 of the Constitution, however, will disclose that the inhibition against changing the salaries of "public officers" relates not to all "public officers," but only to such of them as have fixed terms of office. In other words, though one be a "public officer," yet, unless his term of office be fixed by law, and his election or appointment be for such fixed term, the inhibition of section 235 of the Constitution does not relate to him. That question was first dealt with by this court in City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787, 50 S.W. 1106, 20 Ky. Law Rep. 1609, 1924, and the conclusion above stated was there reached. The question was fully considered in that opinion, and it is referred to for a more extended discussion of the question now under consideration. The construction there given that section of the Constitution has been followed in London v. City of Franklin, 118 Ky. 105, 80 S.W. 514, 25 Ky. Law Rep. 2306; Parsons v. Breed, 126 Ky. 759, 104 S.W. 766, 31 Ky. Law Rep. 1136; and Commonwealth v. Ewald Iron Co., 153 Ky. 116, 154 S.W. 931, and has never been departed from.

It follows, therefore, that, though the chief clerk of the House of Representatives be held to be a "public officer," section 235 of the Constitution, which prohibits changing the salaries of "public officers" during the terms for which they were elected does not relate to him and his office, unless the office as created has a fixed term during which one elected to it performs its duties, exercises its powers, enjoys its emoluments, and is...