Talbott v. Thomas

• Decision Date: 17 January 1941
• Citation: 286 Ky. 786,151 S.W.2d 1
• Parties: TALBOTT, Commissioner of Finance v. THOMAS et al.
• Court: Kentucky Court of Appeals

151 S.W.2d 1

286 Ky. 786

TALBOTT, Commissioner of Finance v. THOMAS et al.

Special Court of Appeals of Kentucky.

January 17, 1941

Rehearing Denied May 15, 1941.

DINNING GRASSHAM, and WALLACE, Special Judges, dissenting.

Appeal from Circuit Court, Franklin County; W. B. Ardery, Judge.

Suit by Gus Thomas and others against J. Dan Talbott, Commissioner of Finance, to require defendant to carry into effect Chapter 131 of the Acts of 1940 relating to the retirement of judges of the Court of Appeals, providing for the payment of certain public emoluments to the judges after their retirement making an appropriation therefor, and declaring an emergency. From a judgment for plaintiffs, defendant appeals.

Judgment reversed for proceedings in accordance with opinion.

Hubert Meredith, Atty. Gen., and Jesse K. Lewis and A. E. Funk Asst. Attys. Gen., for appellants.

Richard Priest Dietzman and James W. Stites, both of Louisville, for appellees.

Alvin E. Evans, of Lexington, and Clifford E. Smith, Clyde E. Reed Samuel M. Rosenstein, and J. J. Leary, all of Frankfort, amicus curiae.

FAUREST Special Judge.

At its 1940 Session the General Assembly of the State of Kentucky passed an act entitled: "An Act relating to the retirement of Judges of the Court of Appeals, and providing for the payment of certain public emoluments to the Judges of the Court of Appeals after their retirement, and making an appropriation therefor, and declaring in emergency." See Acts 1940, c. 131, page 528.

Among the provisions of that act are the following:

Section 1. "After ten years or more of continuous service as a Judge of the Court of Appeals, any Judge of said Court upon reaching the age of sixty-five years, or who is now sixty-five years of age, who retires from office, either voluntarily or otherwise, shall be paid out of the State Treasury the sum of five thousand dollars ($5,000.00) per annum for the remainder of his life, which amount shall be payable monthly at the same time and in the same manner as the salaries of the Judges of the Court of Appeals are now paid. The provisions of this section shall apply to any person who retires from office as a Judge of the Court of Appeals, either voluntarily or otherwise, any time after reaching the age of sixty-five years provided such person has served as a Judge of the Court of Appeals continuously for not less than ten years prior to such retirement."

Section 2. "After sixteen years or more of continuous service as a Judge of the Court of Appeals, any person who retires from office as a Judge of said Court because of ill health, physical incapacity, or whose health or physical condition is such that continued service as a judge of said Court would be reasonably calculated to impair the health or life of such person, who retires from office voluntarily thereafter shall be paid out of the State Treasury the sum of five thousand dollars ($5,000.00) per annum for the remainder of his life, which amount shall be payable monthly at the same time and in the same manner as the salaries of the Judges of the Court of Appeals are now paid."

Section 3. "Every Judge of the Court of Appeals hereafter retiring from office, either voluntarily or because of the expiration of his term, shall be paid out of the State Treasury at the rate of five thousand dollars ($5,000.00) per annum for a period immediately following his retirement equal to one-half of the entire time that he served as a Judge of the Court of Appeals subsequent to December 31, 1939, which payments shall be made monthly at the same time and in the same manner as the salaries of the Judges of the Court of Appeals are now paid. The payments provided to be made in this Section shall be in addition to the payments provided in Sections 1 and 2 of this Act if such person be eligible to receive payments under either of said Sections."

The act further provided the method for carrying it into effect, and made the appropriations necessary for that purpose.

The appellant, Commissioner of Finance of the State of Kentucky, doubted the constitutionality of the act and declined to make provision for payment of the amounts appropriated by it. The appellees, six of the seven regular members of this court, instituted this suit to require the Commissioner to carry the act into effect. The appellant defended upon the ground that the act violated the Constitution and was therefore, invalid. The lower court sustained the act, except to the extent that Section 3 may be interpreted as providing for payments in excess of the limits fixed by Section 246 of the Constitution, and granted the relief sought. The case is now before us on an appeal from that judgment.

The appellant contends that the act violated Sections 3, 23, 26, 59, subsection 18, 171, 235 and 246 of the Constitution of this state. The conclusions reached by us render it unnecessary to consider any of these except Sections 3 and 246.

Section 3 of the Constitution provides: "All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services."

Section 246 of that instrument is as follows: "No public officer, except the governor, shall receive more than five thousand dollars ($5,000.00) per annum as compensation for official services, independent of the compensation of legally authorized deputies and assistants, which shall be fixed and provided for by law. The general assembly shall provide for the enforcement of this section by suitable penalties, one of which shall be forfeiture of office by any person violating its provisions."

At the outset all the special members of this court desire to express high appreciation of the ability, industry, and integrity of the regular members of this court. Their work is arduous, and requires great knowledge of the law, and ability and skill in applying that law in the cases that come before them. We do not hesitate to say that personally we consider the present salaries of the regular members of the court entirely inadequate compensation for the services rendered. However, in deciding this case, we are bound by the provisions of the Constitution, and cannot sustain an act that offends that instrument. We must lay aside all personal views as to the wisdom of any limitation therein found, and apply its provisions as adopted.

There are certain fundamental rules that must be observed in the consideration of the questions here presented. We quote the following from Black's Handbook of Constitutional Law:

"Every presumption is in favor of the Constitutionality of an Act of the legislature. *** Every reasonable doubt must be resolved in favor of the statute, not against it; and the Court will not adjudge it invalid unless the violation of the Constitution is, in their judgment, clear, complete and unmistakable." Section 39.

"It is a cardinal rule in the interpretation of Constitutions that the instrument must be so construed as to give effect to the intention of the people, who adopted it." Section 48.

"It is not permissible to disobey, or to construe into nothingness, a provision of the Constitution merely because it may appear to work injustice, or to lead to harsh or obnoxious consequences or invidious and unmerited discriminations, and still less weight should be attached to the argument from mere inconvenience." Sec. 49-10.

We shall examine this act in the light of these rules.

It has been urged before us that the validity of the act depends solely upon whether it violates Section 3 of the Constitution. If that be true, and the act in no way offends any other provision of that instrument, and assuming for the purposes of this case that the classification of the judges that may participate in its benefits is justified, there would be little question as to its validity. Section 3 contains no limitation on the amount that may be paid to an official for his services.

The limitation there is only as to the consideration for which emoluments may be granted, and which must be the rendition of public services. The official services of a judge of the Court of Appeals are unquestionably public services. So that section taken alone sets no limit on the amount that may be paid nor when it may be paid.

But the Constitutional Convention went further than this and by section 246 it did provide a limitation upon the compensation any state officer, other than the Governor, may receive. Sections 3 and 246 are harmonious and complement each other. Section 3 declares that public emoluments shall not be granted to any one except for public services, and section 246 that when these emoluments are granted for official services they shall not exceed $5000 per annum. That this latter provision was considered of great importance is shown by the fact it expressly directed the General Assembly to provide for its enforcement by enacting suitable penalties for its violation, one of which should be forfeiture of office.

The regular salary of each judge of the Court of Appeals is, and has been for many years, $5000 per annum. The retirement pay provided by the Act of 1940 constitutes emoluments over and above the salary of $5000 per annum. The words "per annum" in section 246, limiting compensation for official services to $5000 per annum, evidently refer to the period during which the services were rendered, and not to the time of payment. The object was to limit the amount of compensation for a year's service. If this were not true, and the Constitution referred to the amount of compensation that could be paid within one year, the Convention and the people did a vain thing in adopting section 246, for there would be no limitation upon...