Spalding v. Thornbury

• Decision Date: 26 June 1907
• Citation: 128 Ky. 533,103 S.W. 291
• Parties: SPALDING, COUNTY ATTORNEY, v. THORNBURY.
• Court: Kentucky Court of Appeals

103 S.W. 291

128 Ky. 533

SPALDING, COUNTY ATTORNEY, v. THORNBURY.

Court of Appeals of Kentucky.

June 26, 1907

Appeal from Circuit Court, Marion County.

"Not to be officially reported."

Action by R. D. Thornbury against W. W. Spalding, county attorney of Marion county. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm. C McChord, Wm. W. Spalding, T. L. Edelen, and Chinn & Edelen for appellant.

H. W Rives and John McChord, for appellee.

HOBSON J.

W. W Spalding was elected county attorney of Marion county in November, 1905. He entered upon the discharge of his duties as county attorney in January, 1906. On February 27, 1906, the fiscal court made the following order: "For the consideration hereinafter named, it shall be the duty of William W. Spalding, county attorney of Marion county, Kentucky, to diligently prosecute the collection of all back taxes, interest on taxes, taxes on property omitted from assessment, judgments, or other moneys due Marion county, also all claims, of whatsoever kind or character, that Marion county may have against any individual, corporation, or association, including all moneys now held in trust for said county, or which may have become the property of the county by reversion or remainder; but this is not to include such delinquent taxes as are now in the hands of the ex-sheriffs of Marion county and which it is their duty to collect. In the prosecution of any of the claims hereinbefore mentioned, if the said county attorney shall deem it necessary or advisable to institute suit thereon, he shall have full power to do so in the name of Marion county, Kentucky, and to prosecute such actions to final determination. For his services in collecting any of the said claims or demands hereinbefore mentioned, in whole or in part, the said Spalding shall be entitled to 20 per cent. of the amount collected by him, or paid to any officer of Marion county as a result of the efforts of the said Spalding under the provisions of this order, and this commission of 20 per cent. shall operate upon all taxes that are collected for Marion county as the result of any proceeding by any revenue agent or sheriff in which the county attorney appears and assists in the prosecution thereof. It is hereby made the duty of the said Spalding upon the collection of any of the claims or demands hereinbefore mentioned to pay the amount collected to the treasurer of Marion county after deducting his said commission of twenty per cent. In the event the said Spalding collects nothing or has nothing collected under this order, he shall be paid nothing whatever for his services in attempting to make or have made such collection." On April 18, 1906, the court allowed a number of claims, among which is this: "W. W. Spalding, County Attorney, salary for 1906, $500.00." It appears that for several years the fiscal court of Marion county has allowed the county attorney an annual salary of $500, but that before Spalding's election it had made no order fixing the salary of the office. A taxpayer of the county brought this suit attacking the order of February 27th as void, on the ground that the fiscal court was without authority to make such an order. The circuit court so adjudged, and the county attorney appeals.

Section 161 of the Constitution forbids that the compensation of any county officer be changed after his election or appointment or during his term of office. Under this provision it has been held that it is the duty of the fiscal court to fix the salaries of the county judge, county attorney, and county superintendent, and that, when once the salary is fixed, it cannot be changed during the term of the incumbent; but...