James v. Cammack

129 S.W. 582, 139 Ky. 223, 1910 Ky. LEXIS 26

• Court: Court of Appeals of Kentucky
• Decided: June 17, 1910
• Status: Published

Opinions

Opinion op the Court by

Chief Justice Barker

Affirming.

This action involves the constitutionality of an act of the General Assembly of the commonwealth of Kentucky, authorizing the regular circuit judges to act as special judges, and fixing their compensation for the additional duties discharged by them in so doing. The act in question is as follows:

“Be it enacted by the General Assembly of the commonwealth of Kentucky:

‘‘Section 1. That the regular circuit judges of the commonwealth of Kentucky, except those whose district embrace a city of either the first or second class, and wherein a court of continuous session is held, be, and they are, hereby authorized to act as special judges of the circuit courts of this commonwealth.

“Sec. 2. In the absence of the regular judge of any circuit court in this commonwealth, or when he cannot preside, in any particular case or cases, if the parties cannot agree upon an attorney who is present jo act as judge, and who shall receive no compensation for his services, the clerk shall at once notify the Governor, who, in turn shall immediately notify one of the circuit judges mentioned above who is not then engaged in holding a regular or special term of court in his district, and it shall be the duty of said circuit judges so notified by the Governor, to hold the court, or try the case, and the judge so notified by the Governor shall have all the powers of a regular judge of said court.

“Sec. 3. It shall be the duty of the clerk of each circuit court held by a judge whose district does not embrace a city of the first or second class, wherein a court of continuous session is held, to notify the Governor in writing immediately upon the final adjournment of each regular or special term of his court and also of the time when the next regular or special term to be held by said circuit judge shall begin, and it shall be the duty of the Governor to keep a roster of said circuit judges showing when each of them is not engaged in holding a regular or special term of court in his district, and the Governor in so notifying the circuit judges of their selection to hold any such court or to try any case, shall do so in such manner as to divide such special judge’s work as equally as practicable between all the regular judges aforesaid.

“Sec. 4. It shall be the duty of the Governor, immediately upon this act taking effect, to issue a commission to each of said circuit judges, commissioning them as special judges of this commonwealth so long as they shall be regular judges thereof, and when any of said judges shall preside out of his district in holding a court or in trying a case, as provided in this act, he shall have his said commission recorded upon the order book of said court. Before entering upon the discharge of his duties every special judge must, in addition to the oath prescribed by the Constitution, take an oath as follows: ‘I, A. B., do solemnly swear (or affirm) that I will administer justice without respect of persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge all the duties incumbent upon me as judge, according to the best of my ability.’ Said oaths, together with the certificate of the officer before whom same were taken showing the date thereof, shall be indorsed in writing on his commission.

“Sec. 5. The selection of special judges, the reason for such selection, and the fact that the requisite oaths have been taken, must be entered upon the order book of the court.

“Sec. 6. Such special judges shall respectively receive an annual salary of twelve hundred dollars payable monthly out of the treasury.

“Sec. 7. All the laws or parts of laws in conflict herewith, and particularly 971 of the Kentucky Statutes, are hereby repealed.”

Two grounds are urged by appellant for holding that the act is unconstitutional: First, that the duties of a special judge are incompatible with those of a regular circuit judge, and, therefore, it falls within the inhibí lion of section 165 of the Constitution, which prohibits the holding of incompatible offices; and, second, that it is violative of section 235 of the Constitutor). which provides that “the salaries of public officers shall not be changed during the terms for which they were elected. * * *”

The first objection maj7' be disposed of in few words. In the cases of Mengel, Jr., Brother Co. v. Jackson, 94 Ky. 472, 22 S. W. 854, 15 Ky. Law Rep. 289, and Hughes v. Commonwealth, 89 Ky. 227, 12 S. W. 269, 11 Ky. Law Rep. 424, it was held that the Legislature had the power and authority to provide that a regular circuit judge should sit as special judge when the regular judge of any district failed to attend, or, being in attendance, could not properly preside.

The second objection, that the act is inimical to section 235 of the Constitution, in that it increases the compensation of the officers after their election, is more serious. Undoubtedly, the provision in the Constitution against the changing of the salary of public officers after their election is mandatory as well as wise, and under no circumstances should the courts suffer or permit any consideration to induce them either to minimize or abrogate the fundamental law of the commonwealth. The Constitution of the state is the result of the wisdom, experience, and judgment of the constitutional convention, which was composed of some of the greatest and wisest and most patriotic men of the commonwealth. They gave to the duty imposed upon them by the people much patriotic labor, and the instrument as completed by them was submitted to the whole people, and ratified by a large majority of the qualified voters of the commonwealth. An instrument thus brought forth, as the result of wise and patriotic labor, and ratified by those possessing all of the political power of the commonwealth, should not under any circumstances be treated lightly or irreverently. Like the Ark of the Covenant of old, it bears within its bosom the hopes and interests of a whole people, and should be free from the touch of impious or profane hands. If, then, the act under consideration is an attempt to evade the constitutional provision against increasing the salaries of officers after they are elected, it should be condemned without hesitation, no matter how high its beneficiaries may stand in the commonwealth or in the affections of the court whose duty requires it to render the judgment. But if, on the other hand, it can be éstablished that the act does not fall within the inhibition of the Constitution, we should permit rj.o sentimental fears of a profanation of its sanctity to prevent our doing justice to a deserving body of public servants who are notoriously underpaid.

At the outset, it is necessary to clearly distinguish between the judge and his office. Section 125 of the Constitution provides that “a circuit court shall be established in each county now existing,'or which may hereafter-be created, in this commonwealth.” Section 126: “The jurisdiction of said court shall be and remain as now established, hereby giving to the General Assembly the power to change it.” Section 128 provides for the establishment of judicial circuits, and section 129 for the election of judges of the various circuit courts so established. Section 130 provides the qualifications of the various circuit judges. Now, it is manifestly the duty of the circuit judge to discharge the duties which grow out of the jurisdiction of the court of which he is elected judge. Whatever belongs to that jurisdiction constitutes a part of his duty, and these duties he must perform for the whole term without any increase of salary. If the jurisdiction of his court is increased by the addition of a county or counties to his circuit, he must perform the additional duties growing out of the change without additional salary. If the jurisdiction is increased by the lowering of the minimum of jurisdiction so as to include those cases which, originally, were only cognizable in the courts of justices of the peace or county courts, still the circuit judge must discharge this additional labor without additional salary. But it is clear that there may he duties imposed upon the judge as an individual which do not belong to, or constitute a part of, the jurisdiction of his court, and which may not be intended by the Legislature to be a part of it; and to this class clearly belong the duties of special judge. It is manifestly not a part of the regular jurisdiction of one circuit court that its judge should hold special court in a different district when the occasion for the discharge of such duties arise. If this were otherwise, then it would be" beyond the authority of the Legislature to confer upon any other than the regular circuit judges of the state the authority to perform the duties of special judge. But we know that from the time of the adoption of the present Constitution until the enactment of the law under consideration, the duties of special judge have never been discharged by regular circuit judges, but, on the contrary, those duties have been discharged by attorneys at law selected in the manner required by the statute in force at the time.

The Constitution has plainly left it within the discretion of the Legislature to provide how the duties of special judge shall be discharged. Section 136 is as follows: “The General Assembly shall provide by law for holding circuit courts when, from any cause, the judge shall fail to attend, or, if in attendance, cannot properly preside.” If the act under consideration be held invalid, then immediately the authority to discharge the duties of special judge will devolve upon the appointees of the Governor from the lawyers of the commonwealth, under the act which the present law undertakes to repeal. So that, clearly, it is not a part of the jurisdiction of any circuit court of this commonwealth that its judge shall discharge the duties of special judge in any other district; and although, it may be within the competency of the Legislature to impose the duties of holding special court upon the regular judges, these duties are not a part of the regular jurisdiction of their courts, but entirely outside of that jurisdiction. They are duties which the Legislature can either impose upon the regular circuit judge of the state or not, as it sees proper. They are duties which the Legislature can with equal propriety impose, or authorize to be imposed, upon any other members of the bar of the state qualified to hold circuit court. A special judge need not be a regular circuit judge; he may be any person authorized by law to preside as special judge.

Now, then, if it be true that the duties of a special judge are hot a part of the jurisdiction of a circuit court, or a part of the duties of a regular judge, then it seems to us, both upon reason and authority, that if the Legislature sees proper to impose upon the regular circuit judges these extra judicial duties, it may at the same time provide what in its opinion is a reasonable remuneration to these officers for discharging these extra duties; and the act which does so does not fall within the inhibition of section 235 of the Constitution.

The case of Slayton v. Rogers, 128 Ky. 106, 107 S. W. 696, 32 Ky. Law Rep. 897, presented in principle the very question we have here. J. L. Rogers, the county attorney of Muhlenberg county, performed services under contract with the fiscal court which were not imposed upon him as a part of the regular duties of his office; and the question arose, whether he was entitled to receive extra compensation for these services, or whether, on the contrary, the constitutional provision (section 235) forbade his receiving any increase in salary after his election. We there held,' after a full discussion and review of all the authorities bearing upon the point, that, inasmuch as the services for which the county attorney was claiming remuneration were not a part of the regular duties of his office, he was entitled to the extra compensation. In the opinion it is said: “We are of opinion, therefore, that the facts of this case bring it within the rule that, where an officer or employe performs extra services outside of official duties and with which they have no affinity or connection, and which do not interfere with his official duties, he is entitled to compensation. Abbott on Municipal Corporations, vol. 2, sec. 686a.”

The case of Flowers v. Logan County, 127 S. W. 512, also involved the same principle under discussion. There Flowers, a justice of the peace, performed services for Logan county, as road committee, courthouse committee and poorhouse committee, and the question arose, whether or not he could receive an increase of salary after his election as justice of the peace; and we there held that these services were not a part of the regular duties of the office of justice of the peace, and, therefore, the allowance was not prohibited by section 235 of the Constitution.

In the case of Converse v. United States, 21 How. 463, 16 L. Ed. 192, the same question we have here arose, as follows: A statute of the United States provided: * * No collector, surveyor, or naval officer, shall ever receive more than $400 annually, exclusive of his compensation as collector, surveyor, or naval officer, and the fines and forfeitures allowed by law for any service he may render in any other office or capacity.” Converse, as collector, upon the order of the Secretary of the Navy, performed certain services not appertaining to the duties of his office as collector, and claimed additional compensation therefor. In the opinion, Chief Justice Taney said on the subject of the extra compensation: “The agency was entirely foreign to his official duties, and far beyond the limits of the district to which the law confined his official duties and power. And as the department appointed him to perform a duty required by law, for which the compensation was fixed my law, and the money appropriated to pay it, he is entitled to the compensation given by law, if he has performed the duty; for the 'Secretary has no more discretionary power to withhold what the law gives, than he has to give what the law does not authorize. The agency and services performed in this instance had no more connection with his official duties and position than the purchase of a supply of shoes for the troops in Mexico, in the late war, would have been, in the absence of any other person authorized to make such a purchase. And if such a duty was requested or required of him by the head of the proper department, and performed, nobody would deny his right to compensation, if the law authorized and required the service to be donq, and fixed the compensation for it. ’ ’

The duties of a special judge are performed outside of the regular judge’s district, and they have no legal connection with his regular duties. The duties of a special judge by the act in question are imposed upon the judge as an individual, and are not a part of the duties of his office. To remunerate him for these duties is not an increase of the salary of his office within the meaning of the constitutional inhibition. The Legislature may add them or not, as it pleases, and afterwards, if it sees proper, may repeal the act and deprive the judges of the opportunity to perform the extra labor and receive the extra salary without in any wise changing their compensation within the meaning of section 235. So far as the performance of the duties of special judge are concerned, the regular judges stand as any other qualified individuals. They may be appointed by the legislative power or not, as the General Assembly deems proper. With the wisdom or unwisdom of this act this court has nothing to do. If it is within the competency of the Legislature, it is for it to decide upon the scheme which will best subserve the public interest in supplying special judges when necessity requires. The regular judge cannot demand that these duties shall be imposed upon him, nor can he successfully demand to retain them, after they have been imposed upon him, if the Legislature sees proper to provide other means of performing the duties of special judge.

We are of opinion that the learned special judge, who decided the case below, correctly held the act to be valid; and his judgment is therefore affirmed.