Talbott v. Jones
| Decision Date | 19 March 1935 |
| Citation | 80 S.W.2d 566,258 Ky. 449 |
| Parties | TALBOTT, Auditor of Public Accounts, v. JONES et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Franklin County.
Suit by Silas N. Jones and others against J. Dan Talbott, Auditor of Public Accounts. From a judgment for plaintiffs, defendant appeals.
Affirmed.
Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for appellant.
Ellerbe Carter and Leslie W. Morris, both of Frankfort, for appellee.
This is a suit by twenty-five highway patrolmen, in which they ask for a declaration of their rights and for a writ of mandamus against the defendant Auditor requiring him to draw his warrant on the Treasurer for the amount alleged to be due to the plaintiffs for pay as employees of the state. A demurrer was filed to the petition as amended, and upon the overruling of the demurrer by the trial court the defendant declined to plead further, and judgment was entered in accordance with the prayer of the petition.
It is alleged that the plaintiffs were duly appointed and employed for the purpose of enforcing all the motor vehicle laws of the commonwealth, by executive orders promulgated by the Governor, dated August 30, 1934, and December 19, 1934, under authority of chapter 18 of the Acts of the Special Session of the General Assembly of 1934. Following their appointment plaintiffs say they were paid their salaries and expenses for the month of October, 1934, but since then the Auditor of Public Accounts has declined to draw his warrant for their salaries for the months of November and December. The Auditor assigns as his basis for refusal to draw the warrant that chapter 18 of the Acts of the Special Session of 1934 is unconstitutional because it is not within the scope of the Governor's call for the Special Session, and because it is an unconstitutional delegation of legislative power.
Following the assertion of these claims by the Auditor, the State Highway Commission, under date of November 27, 1934 commissioned each of the plaintiffs as a member of the highway patrol, upon the authority of chapter 106, § 18, of the Acts of the General Assembly of 1932 (Kentucky Statutes, 1933 Supplement, § 2739g-97).
It is alleged in the petition that on October 11, 1934, plaintiffs enlisted and were sworn in as members of the Franklin county unit of "Active Militia," created pursuant to chapter 51 of the Acts of the Regular Session of 1934, and were thereupon ordered on active duty by the sheriff of Franklin county.
Likewise, it is alleged that plaintiffs enlisted in the Kentucky National Guard on November 27, 1934, and were ordered into active field service as members of the National Guard by an executive order dated November 27, 1934.
We are concerned with these various statutes and appointments only so far as they relate to the right of the plaintiffs to their pay. We shall consider only the points deemed necessary to answer that question.
Chapter 18 of the Acts of the Special Session of 1934, known as the "Uniform Operator's License Act," in section 2, provides for the payment of a fee of fifty cents in securing the license. Twenty-five cents of this payment are used to defray the expense of collection, while the remaining twenty-five cents are forwarded to the state treasury "and credited to a revolving fund maintained for the purposes of paying salaries and expenses for the enforcement of the motor vehicle laws of the Commonwealth, said fund to be expended in the manner determined by the Governor of the Commonwealth, and warrants to be issued by the Auditor of Public Accounts against said funds for the aforesaid purposes upon the order of the Governor of the Commonwealth."
It is claimed that the Uniform Operator's License Act is a police regulation and that its revenue-raising feature is merely incidental and secondary; that it must be sustained, if at all, as a revenue measure. This necessitates an examination of the applicable provisions of the Governor's proclamation under which the Special Session was convened. So far as material here, the proclamation reads:
To continue reading
Request your trial
-
Richmond v. Lay
...upon the payment of a fee of $2 may fairly be said to come within the intendment of the call, as a revenue measure. Talbott v. Jones, 258 Ky. 449, 80 S.W.2d 566. will be observed, however, (if we assume, as we must to sustain any of it, that chapter 13 is a revenue measure) that the class t......
-
Richmond v. Lay
...upon the payment of a fee of $2 may fairly be said to come within the intendment of the call, as a revenue measure. Talbott v. Jones, 258 Ky. 449, 80 S.W. (2d) 566. It will be observed, however (if we assume, as we must to sustain any of it, that chapter 13 is a revenue measure) that the cl......