Shannon, Aud. of Pub. Accounts, v. Dean

• Decision Date: 20 June 1939
• Citation: 279 Ky. 279
• Court: United States State Supreme Court — District of Kentucky
• Parties: Shannon, Auditor of Public Accounts, v. Dean et al.

279 Ky. 279

Shannon, Auditor of Public Accounts, v. Dean et al.

Court of Appeals of Kentucky.

June 20, 1939.

1. Highways. — The statute creating "County Highway Patrol and Investigator" for each county is constitutional with possible exception as to authority of sheriff to issue subpoenas (Ky. Stats. Supp. 1939, sec. 3786-1 et seq.).

2. Officers. — The statute creating office of "county highway patrol and investigator" and requiring duties thereof to be performed by sheriff and his deputies so far as it provided for compensation to sheriff in office at time of its enactment was ineffective (Ky. Stats. Supp. 1939, sec. 3786-1 et seq.).

3. States. — The statute providing for compensation of sheriff for extra duties imposed upon him as "county highway patrol and investigator" out of the general fund prevails over prior enactment providing that all expenditures of the commonwealth shall be made by virtue of the authority of an annual or biennial appropriation (Ky. Stats. Supp. 1939, secs. 3786-4, 3786-5; Ky. Stats., secs. 1992b-6, 1992b-26; Acts 1938, c. 1; Constitution, sec. 230).

4. Officers. — The appropriation act of 1938 did not affect compensation of sheriff who was elected and assumed office before statute became effective (Acts 1938, c. 1).

5. States. — Under constitutional provision that no money shall be drawn from the state treasury except in pursuance of appropriations

made by law, direction to the auditor to issue a warrant and the treasurer to pay it out of the general fund is an "appropriation," it being unnecessary that the Legislature use the word "appropriate" (Constitution, sec. 230).

6. States. — Under statutes creating office of county highway patrol and investigator and requiring duties thereof to be performed by sheriff and his deputies, it is not necessary for an appropriation to be made by the Legislature before a warrant can be issued for the amount fixed by the auditor for the services rendered by sheriff and his deputies (Ky. Stats. Supp. 1939, sec. 3786-1 et seq.; Constitution, sec. 230).

7. Statutes. — The enrolled bill which is duly attested by the presiding officers of the two branches of the General Assembly is the "law," the journals to the contrary notwithstanding.

8. Statutes. — The legislative history which clarifies the language of a statute may be properly considered in interpreting it.

9. Highways. — Under statute relating to compensation of sheriff for performance of duties of "highway patrol and investigator" and in view of legislative history, sheriff must support his claim upon the auditor for compensation for the services rendered by him by reasonable and substantial evidence as to the basis of computation or standards of measurement prescribed and he must satisfy auditor as to what the highest net receipts in any one year of his tenure or tenure of his predecessor was and his net receipts for the year as sheriff, and auditor then must allow difference between these two sums provided it does not exceed $1,500 and entire compensation does not exceed constitutional limit of $5,000 (Ky. Stats. Supp. 1939, sec. 3786-1 et seq.).

10. Highways. — Where the highest amount received by sheriff's predecessor in any one year was $3,903.52 and the net receipts of sheriff from other sources during year 1938 was $1,838.61, making difference of $2,064.91, and allowance of maximum compensation fixed by statute creating office of highway patrol and investigator and required duties thereof to be performed by sheriff would bring emoluments of office up to only $3,338.61, sheriff was entitled to $1,500 as compensation for extra duties (Ky. Stats. Supp. 1939, sec. 3786-1 et seq.).

Appeal from Franklin Circuit Court.

Hubert Meredith, Attorney General, and M.B. Holifield, Assistant Attorney General, for appellant.

R.W. Keenon for appellees.

Before William B. Ardery, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming in part and reversing in part.

The case presents for consideration Chapter 13 of the Acts of the Fourth Extraordinary Session of the Legislature, 1936, published as Section 3786-1 et seq. of the Statutes, by which was created a "County Highway Patrol and Investigator" for each county, the duties of which are performed by the respective sheriffs. The Act is constitutional, except possibly as to the authority of the sheriff to issue subpoenaes. Milliken v. Harrod, 275 Ky. 597, 122 S.W. (2d) 148. But in so far as it provided for compensation to sheriffs in office at the time of its enactment, it was ineffective. Shannon v. Combs, 273 Ky. 514, 117 S.W. (2d) 219. The construction the court is now asked to give relates to the amount and method of ascertaining the compensation allowed the sheriffs who assumed office after the act became effective. The case also involves the question of the effectiveness of the provision as to compensation in the absence of specific appropriation of funds by the legislature.

The appellee, Everett B. Dean, Sheriff of Jessamine County, made a claim upon the Auditor of Public Accounts for $1500, as compensation for services during 1938. In support he filed affidavits of himself, of the County Attorney and Circuit Court Clerk, showing that he had performed the duties and made the necessary reports fully and strictly as required by the statute, and had otherwise complied with the law. In his own affidavit the sheriff stated that after excluding reasonable compensation for his deputies and expenses of his office, his net receipts, as sheriff, amounted to $1,838.61. He also filed detailed statements upon forms provided by the Auditor of the receipts and expenses of his office during the year 1938, and of his predecessor for the year during his term of office in which he had received the highest gross and net amount, the latter sum being $3,903.52. The Auditor, however, declined to fix the amount of the sheriff's compensation for his services under this act and to issue a warrant therefor. This suit was then filed seeking a declaration of rights in several specific respects. All of the foregoing facts were well pleaded. The court adjudged:

"1. That the Act referred to in the pleading is constitutional.

"2. That it is the duty of the defendant, E.E. Shannon, Auditor of Public Accounts, to hear proof on the claim presented by the plaintiff as to the character of services rendered by said plaintiff, Everett B. Dean, Sheriff of Jessamine County, and his deputies.

"3. That after hearing such proof, the said defendant will fix an amount to compensate the plaintiff for the services performed under said Act, and will make a reasonable allowance for the services performed in a sum not to exceed One Thousand Ninety-six Dollars and Forty-eight Cents ($1,096.48), this being the difference between the highest net amount received by the plaintiff's predecessor, John Combs, and the maximum amount allowed by the Constitution of Kentucky, Five Thousand Dollars ($5,000.00).

"4. That it is not necessary for an appropriation to be made by the Legislature of the Commonwealth of Kentucky before a warrant can be issued for the amount fixed by the defendant for the services rendered by the plaintiff and his deputies; that when said amount is thus fixed, the defendant, Ernest Shannon, Auditor of Public Accounts, is directed to issue a warrant on the Treasurer of the Commonwealth of Kentucky, payable out of the General Fund for the amount fixed.

"5. It is further ordered that the plaintiff is not entitled to receive the sum of Fifteen Hundred Dollars ($1,500.00), under the Act during the year 1938."

The Auditor appeals and challenges the correctness of the declaration. The appellee cross-appeals and challenges, particularly, the correctness of the third declaration that he is entitled to less than $1,500.

Sections 4 and 4a of the Act (Sections 3786-4 and 3786-5 of the Statutes) are as follows:

"Section 4. Each county sheriff for the additional services herein required shall receive reasonable compensation therefor, and not more than One Thousand Five Hundred Dollars ($1,500.00), per annum, to be determined by the Auditor of Public Accounts of the Commonwealth and paid by the treasurer thereof out of the General Fund, provided the compensation of said officer as sheriff, together with his other compensation as sheriff, as now provided by law, shall not in any year exceed a total of...