Whittenberg v. City of Louisville

• Decision Date: 20 March 1931
• Citation: 238 Ky. 117,36 S.W.2d 853
• Parties: WHITTENBERG v. CITY OF LOUISVILLE.
• Court: Kentucky Court of Appeals

36 S.W.2d 853

238 Ky. 117

WHITTENBERG v. CITY OF LOUISVILLE.

Court of Appeals of Kentucky

March 20, 1931

Appeal from Circuit Court, Jefferson Chancery Branch, First Division.

Suit by Dr. J. I. Whittenberg against the City of Louisville, in which the defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals.

Reversed.

H. C T. Whittenberg, of Louisville, for appellant.

Davis Edwards, of Louisville, for appellee.

REES J.

This appeal involves the construction of section 246 of our Constitution, which reads: "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."

Dr. Roy Carter was a candidate for the office of coroner of Jefferson county at the November, 1925, election, and was awarded a certificate of election. He qualified and acted as coroner until June 27, 1927, when a vacancy in the office was created by virtue of the judgment of this court in the case of Taylor v. Neutzel, 220 Ky. 510, 295 S.W. 873. On June 27, 1927, appellant, Dr. J. I. Whittenberg, was appointed by the county judge to fill the vacancy, and he qualified and acted as coroner of Jefferson county until November 22, 1927. During the time he served as coroner he collected from Jefferson county and the city of Louisville fees amounting to $2,568, and, claiming that the city of Louisville was indebted to him in the additional sum of $1,512 in fees for inquests held by him in the city, he brought this suit to recover that amount.

The city filed an answer and counterclaim, in the third paragraph of which it alleged that Dr. Roy Carter was coroner from January 1, 1927, to the 27th day of June, 1927, and that during that time he collected from the county of Jefferson $264, and from the city of Louisville $4,320, or a total of $4,584 as salary for the year 1927; that on June 27, 1927, the appellant became coroner of Jefferson county, and as such coroner he collected from Jefferson county $336, and from the city of Louisville $2,232, or a total of $2,568, and that the total amount collected by Roy Carter and appellant was $7,152, or $2,152 in excess of the constitutional limit, and judgment was asked against appellant for this alleged excess. A demurrer to the third paragraph of the city's answer and counterclaim was overruled. Appellant declined to plead further, and the circuit judge, being of the opinion that appellant was entitled to a proportionate part of the $5,000, the maximum salary permitted by the Constitution, based on the time he had acted as coroner, which was four months and twenty-six days, adjudged that he was entitled to $2,016.13 and entered a judgment against him in favor of appellee in the sum of $259.89, which the city had paid him after he had received the full amount to which he was entitled.

The lower court reached this conclusion by construing the limitation in section 246 of the Constitution as applying to the office rather than the individual holding the office. The section plainly provides, however, that "no public officer *** shall receive more than five thousand dollars ($5,000.00) per annum as compensation for official services." Where public officers receive compensation in the form of fees or commissions, as do coroners, sheriffs and many other officers, it is frequently true that their compensation is received at irregular intervals, and most of it, in some instances, during a particular period of the year. It would be possible for an officer paid under the fee system to receive during the first month of the year the maximum amount permitted by the Constitution. If he continued...