Opinion op the Court by
Special Chiep Justice Leary
Affirming.
This controversy requires the court to measure certain provisions of House ■ Bill 254 of the 1948 General Assembly of Kentucky (hereinafter referred to as the Act) against the limitations of the Kentucky Constitution (particularly, Sections 3, 51, 58, 59, 60, 235, and 246) and to declare whether or not there is a conflict.
It is the first three sections of the Act which form the arena of debate. The full text of these three sections are appended to this opinion. Other sections of the Act, which create and replenish the fund from which payments, if permissible, are to be made are not in controversy.
The Act has been called the Judicial Expense Act and its title denominates it as “An Act providing for the payment of certain expenses to the Judges and Commissioners of the Court of Appeals and the circuit judges of the Commonwealth.”
As will be observed from a reading of the title and the appended sections, the Act deals with the entire judi
ciary of the Commonwealth above the level of magistrates; county and quarterly courts. Section 1 of the Act deals with circuit judges and provides for the monthly payment from the State Treasury of “the sum of $100.00, which sum is hereby declared to be the equivalent of the minimum sum that each (circuit) judge will expend each month, in the performance of his official duties, for postage, telephone service, supplies, stationery, stenographic assistance, law clex-k hire, and books and periodicals.”
As it relates to Judges of the Court of Appeals and Commissioners of the Court of Appeals, the Act (Sec. 2) deals alternatively. If the Judge or Commissioner “continues, during his term of office, to actually reside at his place of legal residence in the district from which he was elected or appointed he shall be paid out of the State Treasury, his actual and necessary traveling expenses in going to and returning from the State Capital, and his actual and necessary food and lodgixxg expexxses for each day that he remains at the State Capital in the performance of his official duties.” But, if a Judge or Commissioner of the Court of Appeals “in order to facilitate the work of the court, and to avoid the expense, delay and inconvenience of frequent travel to and from the place of his legal residence to the State Capital, shall establish a temporary place of abode at the State Capital, or in a place convenient thereto, he shall be paid out of the State Treasury, .each month, the sum of $150.00 which is hereby declared to be the reasonable equivalent of the travel, food and lodging expenses which such judge would incur, in the performance of his official duties, if compelled to travel to and from the place of his legal residence.”
' Acting pursuant to the provisions of Section 3 of the Act, the Judges and Commissioners of the Court of Appeals certified to the appellant (defendant below) Commissioner of Finance, that each of them had established a temporary place of abode at the State Capital or at a place convenient thereto, which was not their legal residence and requested payment according to the terms of the Act. The Commissioner of Finance, doubtful of the validity of the Act, refused to make the payments provided for therein without judicial determination that the Act was valid.
The Judges
and Commissioners of the Court of Appeals (and two circuit judges suing in a representative capacity) brought suit in the Franklin Circuit Court alleging the passage of the Act, the provisions thereof, the legal residence of the judges and Commissioners of the Court of Appeals (none of which were the State Capital), the establishment by the Judges and Commissioners of temporary places of abode at the State Capital or in places convenient thereto, the request made upon the Commissioner of Finance and his refusal to act in accordance with the provisions of the Act. The Attorney General of Kentucky intervened in behalf of the Judges and alleged that the Act in question did not violate any of the provisions of the Constitution of Kentucky. The Attorney General has filed a brief in this court in support of the Act.
The court was asked to declare that the Act was constitutional, to permit the plaintiff circuit judges to sue on behalf of all circuit judges in Kentucky similarly situated, and to declare that the Commissioner of Finance has power and authority to issue his warrants .against the fund and in the amounts provided in the Act.
Special counsel was engaged to represent the Commissioner of Finance. In the court below a demurrer was filed to the petition and, without waiving the demurrer an answer was filed pleading the unconstitutionulity of the Act. Appellees (plaintiffs below) demurred to the answer.
The regular judge of the circuit court, being a party to the action, disqualified himself as did the regular judges of the Court of Appeals for the same reason. The Honorable Leslie W. Morris of the Franklin County Bar, was ■designated as Special Judge in the court below. He adjudged the Act to be “valid and constitutional” and directed the Commissioner of Finance to issue liis warrants upon the Treasurer of the Commonwealth of Kentucky according to the terms of the Act. The demurrer to the petition was overruled. The demurrer to the .answer was sustained. The defendant (appellant here) ■declined to plead further and an appeal was prosecuted to this court.
At the very outset it is appropriate that we announce our recognition of and adherence to certain general and well settled rules which must be observed when the constitutionality of an Act of the Legislature is drawn into question. It is essential that the sharp separation of the powers of government be preserved carefully by the courts. Those which are judicial must not he permitted to encroach upon those which are legislative. Section 27, Constitution of Kentucky.
The consistent rule of construction is well stated in Bowman v. Frost, 289 Ky. 826, 158 S. W. 2d 945, 946, wherein it is said:
“In passing upon the constitutionality of legislative acts, courts are guided by certain well-established rules. Oné of these rules is that when the power of the Legislature to enact a law is called in question, the court should proceed with the greatest possible caution and should never declare an act invalid until after every doubt has been resolved in its favor.”
Our courts “have been- sensitive to the rule that an Act should be held valid unless it clearly offends the limitations and prohibitions of the constitution.” “The burden is upon one who questions the validity of an Act to sustain his contentions.” Johnson, Governor, v. Commonwealth, ex rel. Meredith, 291 Ky. 829, 165 S. W. 2d 820, 823. Many other cases, including Kerr v. City of Louisville, 271 Ky. 335, 111 S. W. 2d 1046, Talbott v. Thomas, 286 Ky. 786, 151 S. W. 2d 1, are to the same effect.
Another rule which is uniformly invoked in statutory construction is that the propriety, wisdom and expediency of legislation is exclusively a legislative question. Craig v. O’Rear, 199 Ky. 553, 251 S. W. 828.
Against this general concept of constitutional law which is announced more often than it is followed, let us proceed to measure the provisions of the Act against Sections 235 and 246 of the Constitution for it is here that the Act meets its severest test.
Section 235, in pertinent part, provides:
“The salaries of public officers shall not be changed during the terms for which they were elected #
*'
Section 246, in pertinent part, provides:
“No public officer, except tbe Governor, shall receive more than five thousand dollars per annum, as compensation for official services * * #.”
It is apparent that if the Act accomplishes a change
in salaries
for the judges Section 235 would be violated. If the Act works an increase
in compensation
it would transgress Section 246 as respects the Judges who now receive $5000 per annum as compensation for official services. Appellant, to sustain the burden cast upon him, argues that the salary or compensation of the incumbent judges was burdened with all the expenses ®f the office at the time each of them began his term of office; that the Act relieves the incumbents of certain expenses connected with their office and necessarily increases the “take home” pay of each of them which, in turn, is an increase in salary or compensation.
In our view, the argument will not stand resort to the authorities. The prohibition against a change of salary or compensation during the term of a public officer is a familiar one in state constitutions. Unless the contrary is clearly expressed, it is consistently held that the allowance of reasonable expenses incurred in the discharge of the official duties of an office is neither salary, compensation nor an emolument of the office within the purview of a constitutional prohibition against a change in compensation during the term. Taxpayers League, etc., v. John McPherson, et al., 49 Wyo. 251, 54 P. 2d 897, 106 A. L. R. 767; State ex rel. Weldon v. Thomason, 142 Tenn. 527, 221 S. W. 491; Milwaukee County v. Halsey, 149 Wisc. 82, 136 N. W. 139; Scharrenbroich v. Lewis & Clark County, 33 Mont. 250, 83 P. 482; Clark v. Board of County Commissioners, 64 S. D. 417, 267 N. W. 138. .
The weight of authority is stated in 43 Am. Jur. Sec. 371, pg. 155, as follows:
“Generally, statutory compensation to a public officer for expenses necessarily incurred in performing the duties of his office is neither salary nor an emolument of the office and is not within a prohibition against increasing or otherwise changing his compensation during his term of office, or against payment to him of any fees
or perquisites in addition to his salary, or against withholding any portion of the officers salary.”
Frequently, in recognition of changing economic conditions, the Legislature deems it sensible to allow, increase or diminish expense allowances incident to the performance of the duties of an office. For years in Kentucky the expense of a state officer or employee “incident to traveling in his own motor vehicle” in the discharge of his official duties has been “not (to) exceed
five
cents per mile.” KRS 44.060. The 1948 General Assembly of Kentucky, recognizing that “motor vehicles, accessories, repairs, gasoline, and oil have increased in price,” enacted a law providing that “The amount allowed for such expenses shall be fixed by the Commissioner of Finance not to exceed seven cents per mile.” H. B. 308, Eff. Mar. 24, 1948.
We do not apprehend that such legislation violates either Section 235 or 246 of the Constitution. True, the “take home” pay — the gross receipts — of the officer or employee may be increased or diminished but the Constitution deals with salary or compensation which is not changed by the allowance, increase or decrease in expenses incident to the performance of official duties.
Appellant argues that Estill County v. Noland, 301 Ky. 204, 191 S. W. 2d 223, second appeal, 304 Ky. 870, 202 S. W. 2d 376, Rhoads, et al. v. Miller, Commissioner 298 Ky. 346, 182 S. W. 2d 248, and Frizzell v. Holmes, 131 Ky. 373, 115 S. W. 246, militate against the conclusion which we have reached but, when analyzed, it will be seen that these cases are not necessarily in point.
Estill County v. Noland, supra (301 Ky. 204, 191 S. W. 2d 224), denied the right of a Fiscal Court to allow a County Judge “$25.00 each month for traveling expenses,” primarily, because “There is no legal or statutory authority for such a blanket allowance * * In the instant case there is no lack of statutory authority.
Rhoads et al. v. Miller, Commissioner, supra (298 Ky. 346, 182 S. W. 2d 250), was a case in which the 1944 General Assembly, by a general law, raised certain allowances to
future
members of the General Assembly from twenty dollars to fifty dollars but “in lieu of the (same) allowances,” it, by resolution, provided that
“each member of the
present
General Assembly, shall be entitled to the sum of three hundred dollars * * #.” Acts 1944, c. 194, The court correctly held:
“But we are of the opinion that the General Assembly, by specifically enacting the following Statute fixing the expense allowance and compensation of
future
members, has made unmistakably clear its intent that all but $50 of the expense allowance to each member should be retained by him as compensation.”
The vice of the contested legislation in the Rhoads case was apparent on its face. The court properly condemned it.
Frizzell v. Holmes, supra, involved the constitutionality of an Act (Acts 1908, p. 116, Ch. 44, Eff. Mar. 23, 1908) which required the Fiscal Courts of the counties to appropriate “a sum sufficient to purchase labor and materials necessary to keep the public property * * *, including the jailer’s residence, if owned by the county, in repair and in clean, comfortable and presentable condition, and heat and light the same * *
Before the enactment of the 1908 Act the statute provided that “The jailer of each county shall be superintendent of the public square, court-house, * * * and other public county buildings * * Ky. St. 1903, sec. 3948.
The 1908 Act was assailed on the ground that it increased the compensation of incumbent jailers in violation of Section 161 of the Constitution. The court held that so much of the 1908 Act was unconstitutional (as applied to incumbent jailers) as compensated them for duties which they were required to do without charge to the county under laws in force when they were elected.
Our conclusion is not at odds with the conclusion reached in the Frizzell case. We are aware of no law in force when the incumbent judges were elected which required them to absorb the expenses of their office without charge to the Commonwealth, nor are we aware of any law which requires them to
continue
to absorb such expenses. Legal considerations in the Frizzell case are different from those in the case under consideration and the conclusions reached are consistent.
We hold, therefore, thát in the absence of specific constitutional or statutory prohibition (and we have found none) the allowance by the Legislature of expenses incurred by the judges in the discharge of their official duties is neither salary, compensation nor an emolument of their office within the meaning of Sections 235 and 246.
We come now to consider the propriety of the Act. in fixing a lump sum equivalent of actual expenses. In the case of circuit judges the sum is $100 per month “which sum is hereby declared to be the equivalent of the minimum sum that each judge will expend each month, in the performance of his official duties, for postage, telephone service, supplies, stationery, stenographic assistance, law clerk hire, and books and periodicals.” In the case of Judges and Commissioners of the Court of Appeals who “shall establish a temporary place of abode in the State Capital, or at a place convenient thereto” the lump sum is $150 per month “which is hereby declared to be the reasonable equivalent of the travel, food and lodging expenses which such judge would incur, in the performance of his official duties, if compelled to travel to and from the place of his legal residence.”
The scope of judicial examination into the action of the Legislature in making a lump sum appropriation in lieu of actual expenses incurred is — and should be— rather narrow. The legislative declaration of the nature and purposes of the allowance is binding upon the courts, and will be upheld, unless from the Act itself and without extraneous aid, the court can say without, hesitation that the legislation is, in fact and in truth, a device to increase compensation. Compare Rhoads v. Miller, Commissioner, supra, State, ex rel. Weldon, v. Thomason, supra, Peay v. Noland, 157 Tenn. 222, 7 S. W. 2d 815, 60 A. L. R. 408.
We are now brought face to face with the South Dakota cases of McCoy v. Handlin, 35 S. D. 487,
153
N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046, and State, ex rel. Payne v. Reeves, 44 S. D. 568, 184 N. W 993. These cases are squarely in point. Indeed the Kentucky Act probably was motivated by the South
Dakota opinions. It is clear that this court must either follow the South Dakota opinions or ignore them.
In McCoy v. Handlin, supra (35 S. Dak. 487, 153 N. W. 373), the South Dakota court had before it a statute, Laws S. D. 1911, c. 239, which provided as follows:
“That whenever a judge of the Supreme Court, whose legal residence shall be at some place other than the state capital shall have changed his place of actual residence to the capital, there shall be paid to such judge in consideration of expenses incident to removal to the capital, the increased expenses of living at a place other than his legal residence, the expenses of traveling to and from such legal ■ residence the fixed sum of fifty dollars for each month payable upon the certified vouchers of such judge filed in the office of the state auditor.”
The Constitution of South Dakota, like the Constitution of Kentucky, prohibits an increase in the salaries of public officers over the amount fixed by the constitution. After determining first that “it should be clear that it is universally held that allowance and expenses incident to the discharge of the duties of office is not an increase in salary, a perquisite, nor an emolument of office,” (35 S. D. 487, 153 N. W. 373), the court continued:
“The Constitution of this state, as well as the Constitutions of nearly all the other states, contains no provision requiring the judges of the appellate court to reside at the capital. In many states the judges do not reside at the capital; in one at least they are required to reside in the district from which elected. The territorial Supreme Court of Dakota territory was composed of the several district judges who held stated terms of appellate court at the capital, and were engaged at other times in the trial of cases in the several districts. The framers of our Constitution knew of these facts and undoubtedly intentionally so worded the Constitution as to allow the judges of this court to retain their actual, as they expressly allowed them to retain their legal, residences at their former homes. The Constitution merely requires that they hold two terms of court at the capital. It would therefore be entirely proper and legal for plaintiff to have retained his actual residence at Aberdeen, the place of his legal residence, just as many of the judges in other states live away from
the capital. If the judges of this court continued to reside at the places of their legal residence, no question, under any authority, could be raised as to the constitutionality of a law which appropriated money to reimburse them for the actual expenses incident to their travel to and from, and for their hotel bills while at, the capital. Such an allowance would leave to the judges clear, as compensation for their official services, the salary provided by law, and no one could, and we apprehend no one would, say that they received perquisites or emoluments. In view of the number of trips that would have to be made to the capital and the number of days that would have to be spent there, it is clear that the aggregate of such expenses would be in excess of $600 per year for each judge so living away from the capital. Let us suppose that the several judges of this court were living at the places of their legal residence, and the Legislature were asked to enact legislation to reimburse them for their actual expenses incurred in going to and remaining at the capital, which expenses could, from their nature, be itemized. Is it possible that such Legislature could not say to the judges of this court:
“ ‘We believe that, owing to the fact that the duties of your office require your presence at the capital a considerable portion of the time, you can better discharge the duties of such office if you will reside at the capital; hence, in the furtherance of a sound public policy, we ask you to make your actual residence at the capital, and, in order that you may do so without financial loss to you, we will, in place of paying your expenses of traveling to and boarding at the capital, while living at your places of legal residence, allow you such a sum as will cover the extra expense incident to your moving to and living at the capital.’
“Would not the allowance in the one case be as much an allowance for expenses, and in no sense a perquisite or emolument, as in the other? Certainly it would; the only difference being that in the one case the law could provide for the expenses to be itemized and the exact amount paid, while in the other, from the very nature of things, it would be necessary for the Legislature to estimate the reasonable and probable amount of such expenses and appropriate a lump sum therefor. If
the Legislature could .pass such a law to encourage the judges to move to the capital, for the same reasons it certainly could pass one where, prior thereto, the judges had voluntarily moved to the capital. This they did, and no one had ever claimed that the allowance made was greater than the amount of such expenses, or that it is greater than would be the expense incident to the judges coming to and remaining at the capital in the discharge of official duties if they lived at the places of their legal residences. The one allowance is just as clearly for expenses as would be the other, and is therefore as clearly permissible under the Constitution as the other. The Legislature had the right, if deemed best as a matter of public policy, to enact the law which it did enact, provided it did not make the allowance greater than the expenses it was designed to cover; and it was for such Legislature to determine a reasonable and proper amount. It is clear that the Legislature did not intend, in the enactment of such legislation, to increase the salaries of the judges, or to grant them any perquisites or emoluments for the discharge of their duties, but only intended to assure them, in so far as possible, that for the performance of their official duties alone, and not for the performance of such duties and the payment of the expenses incident thereto, they should receive the salaries provided by law for the performance of such duties. The Legislature had a right, in determining the advisability of this legislation, to take into account what would have been the probable allowance necessary to meet the expenses for which the judges would have been justly entitled to be reimbursed, if they had remained at their legal residences, and also to take into account the estimated amount of additional expense incident to moving to and living at the capital; so long as it has not exceeded either of these sums, there is left no ground to claim that it has increased their salaries. The mere fact that the Legislature, in the exercise of its discretion, has seen fit to estimate, in advance, the amount of such expenses, and to limit the same to the sum of $50 per month, does not transform the expense allowance into an increase of salary. The only purpose of the act was to enable the judges to retain for their own proper use, and for the support of their families, the salaries allowed them for their official
services, instead of paying out such salaries for expenses that should properly be paid by the state. ’ ’
Six years later the Legislature increased the allowance for judges in South Dakota from fifty dollars per month to one hundred and fifty dollars per month, and again the question reached the highest court of that state in Payne v. Reeves, supra (44 S. Dak. 568, 184 N. W. 999), from which is taken the following language:
“Whether the expense allowance of $150 per month to each judge of the Supreme Court is or is not excessive is a question depending to some extent upon the standard of living of the judges of the Supreme Court. The station or position in life of the party whose expenses are under consideration should be considered, and the Legislature in enacting the law now under consideration was dealing with the question of the expense of judges of the Supreme Court. Those judges are entitled under the Constitution to the salaries fixed by the Constitution, and they are entitled to such allowances for expenses as will enable them to live in a manner becoming the judges of the Supreme Court of a great state. The Legislators may well have thought it the part of wisdom to make provision for the expenses of the judges in such an amount that it would not be necessary for them to take from their inadequate salaries the money necessary to pay such expenses. This court will not presume that the matter of the amount and the necessity for these expenses was not made the subject of proper investigation by the Legislature, and its determination as to the facts cannot, under any principle of constitutional law, be disturbed by this court unless the amount allowed is so plainly and palpably in excess of any amount of expenses which could possibly be incurred by the judges in the discharge of their official duties as to show without evidence or argument, beyond all reasonable doubt, that the Legislature intended to increase the salary of the judges and not to provide for the payment of expenses incident to the discharge of official duties. The question is not what this court might conclude would be a reasonable amount to allow the judges for expenses incurred in the discharge of their official duties, if it were authorized to fix such allowance, but whether the amount fixed by the Legislature is plainly
and palpably in excess of any amount which the judges could possibly incur. In other words, this court, to sustain the contention of the learned Attorney General, must take judicial knowledge of the fact, if it be a fact, that $150 per month allowed to each of the judges as expenses is in excess of any amount that could possibly be incurred. It is the action of the Legislature — the chosen representatives of the people — which is under investigation in this proceeding, and not the action of the Supreme Court or its judges.”
Provisions of the South Dakota Statutes and Constitution closely parallel those of Kentucky. Neither the Constitution nor the Statutes of Kentucky require the Judges or Commissioners of the Court of Appeals to reside at the capital. Indeed, the Judges of the Court of Appeals must reside “in the district in which he is elected two years next preceding his election” (Sec. 114, Constitution), while “the Court of Appeals shall be held at the seat of government” (Sec. Ill, Constitution). In Kentucky, as in South Dakota, it would be “entirely proper and legal” for the Judges and Commissioners to retain their actual residences in the districts from which they are elected or appointed. If they did so we think “no question, under any authority, could be raised as to the constitutionality of a law which appropriated money to reimburse them for the actual expenses incident to their travel to and from, and for their hotel bills while, at the capital.”
If the Legislature may reimburse the judges for actual expenses may it, in lieu of actual expenses, make a monthly lump sum appropriation? We think so. The rationale of the South Dakota cases finds support in Coleman, Auditor, v. Mulligan, 234 Ky. 691, 28 S. W. 2d 980, 981, where a mileage allowance for conveying prisoners to the penitentiary was under attack. The Court of Appeals of Kentucky, citing many instances of lump sum allowances in lieu of expenses in the statutory law of Kentucky, said:
“It will be observed that the statute only allows the officer the actual necessary expenses for said lodging and transporting the prisoners. He must pay his own expenses and the expense of his guards, and the only return that is made to him is the allowance of ten
cents a mile. This allowance of ten cents a mile is a legislative estimate of the reasonable expenses of the officer. There are always incidental expenses to every trip. The officer and the guard must have food, and not unfrequently must hire a vehicle, such as busses or cars. The Legislature evidently did not intend all these things to be left unpaid, and, as the expenses might vary from time to time, it fixed ten cents a mile as the gross allowance that might be paid to cover all these expenses of the officers and the guards. There are a number of similar statutes. The circuit judge by the Act of 1926 (c. 31), when engaged outside of his district, is allowed, in addition to his salary, his actual expenses not exceeding $10 a day, and by the Act of 1928, c. 20, the circuit judges, as members of the judicial council, have an allowance of $10 a day for expenses. Both of these acts have been upheld. Again, by section 1098, Kentucky Statutes, the clerks of circuit courts, on a change of venue, are allowed ten cents a mile for the expenses of travel. The members of the Legislature are allowed mileage in addition to their pay. The electors for President and Vice President receive the same per diem and mileage as is allowed to a member of the Legislature. Kentucky Statutes, sec. 343. In all of these cases the mileage is simply an amount estimated by the Legislature to cover the officers ’ expenses, and we see no reason why the same rule should not he applied to section 361, Kentucky Statutes, above quoted.”
We consider the South Dakota opinions to contain sound and salutary principles of constitutional law. We approve the principles therein announced. We believe we leave to the Courts adequate room to cope with any legislative device calculated to increase the salary or compensation of public officers without encroaching upon that sphere of governmental activity which, under constitutional government, should be left to the legislative branch of the government.
Tested by the principles which have been approved, it follows that we are not prepared to presume that the legislative estimates are “so plainly and palpably in excess of any amount of expenses which could possibly be incurred by the judges in the discharge of their official duties as to show without evidence or argument, beyond all reasonable doubt, that the Legislature intended to
increase the salary of the judges and to provide for the payment of expenses incident to the discharge of their official duties.”
We are not unmindful of a line of cases, Dixon v. Shaw, 122 Okl. 211, 253 P. 500, 50 A. L. R. 1232; Gallarno v. Long, 214 Iowa 805, 243 N. W. 719; Ferris v. Aten, Auditor, 318 Mich. 528, 28 N. W. 2d 899, which hold that there is a distinction between official expenses and personal expenses. The gist of these cases seems to be that the allowance of official expenses does not amount to an increase in compensation, while the allowance of personal expenses is, in fact, an increase in compensation. Nothing we have said in this opinion will, or is intended to, preclude judicial inquiry into expense allowances of public officers and if it appears that allowances exceed official expenses or reasonable estimates thereof, the courts are free to condemn them. The allowances here under consideration and the legislative estimates thereof are, in our view, reasonable, and involve no element of personal expense.
It is claimed that the Act is a revision, amendment or extension of KES 45.180 which deals generally with the expense accounts of state officers and employees and, consequently, it is claimed, that KES 45.180 should have been reenacted and published at length in the Act in accordance with the provisions of Sec. 51 of the Constitution. We believe that the Act is not a revision, amendment or extension, but is new legislation complete in itself without reference to other laws.
It is said in Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S. W. 1017, 1023;
“When the act does not purport to be an amendment to an existing law, but a new act, it is not necessary to set out or re-publish any part of any old law that may be changed or repealed by the new law.”
It is also claimed that the Act violates Sections 59 and 60 of the Constitution because (a) it is special legislation, and (b) because it becomes a special or local Act “by the repeal in part of a general act.”
This argument proceeds upon the theory that the Act is local and special in its application to the judges and exempts them from the provisions of the general law
relating to expense accounts of state officers and employees. Legislation which applies to and operates uniformly upon all members of any class of persons requiring legislation peculiar to themselves in the matter covered by the legislation is general and not special or local. Jefferson County v. Cole, et al., 204 Ky. 27, 263 S. W. 1114. Classification is within the power of the legislative branch of the government and so long as classification is not manifestly arbitrary and unjust the courts will not disturb it. Stevenson v. Hardin, 238 Ky. 600, 38 S. W. 2d 462; Johnson, Governor, v. Commonwealth, 291 Ky. 829, 165 S. W. 2d 820; Shaw v. Fox, 246 Ky. 342, 55 S. W. 2d 11. The qualifications required of judges, the nature of the work that they do, their geographical locations and the places where they are required to do their work furnish an ample basis for the classification which the Legislature has made. Also, we find no substantial discrimination with any of the classes created by the Legislature.
Section 3 of the Constitution which provides that “no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public service” offers no constitutional obstacle to the legislation here under consideration in view of what has been said, nor do we find any constitutional objection in Section 58 which provides that the General Assembly shall neither audit nor allow any private claim against the Commonwealth.
Other arguments were advanced. All have been carefully considered, but none of them have been found sufficient to strike down the Act. The Constitution of Kentucky does not contain any restrictions upon the power of the Legislature, directly or by necessary implication, which prevents the allowance for expenses of state officers. What the Legislature is not forbidden to do by the Constitution it should not be prevented from doing by the courts. The presumption in favor of constitutionality is strong. Nothing advanced by appellant is so compelling as to require a holding of unconstitutionality.
The judgment of the lower court is affirmed. Appellant is directed to comply with the provisions of the Act.
Appendage.
Section 1. Each Circuit Court Judge of the State shall be paid out of the State Treasury, each month, the sum of $100.00, which sum is hereby declared to be the equivalent of the minimum sum that each judge will expend each month, in the performance of his official duties, for postage, telephone service, supplies, stationery, stenographic assistance, law clerk hire, and books and periodicals. The Commissioner of Finance shall, on the first of each month draw his warrant on the Treasurer in favor of each Circuit Court Judge, for the sum above stated, and the same shall be paid out of the Revolving Fund created by Section 4 of this Act. The sums so received shall be expended by each Circuit Court Judge in his discretion, the manner in which the same shall be applied in payment or reimbursement of such expenses being determined by the Judge.
Section 2. Each Judge and Commissioner of the Court of Appeals who continues, during his term of office, to actually reside at his place of legal residence in the district from which he was elected or appointed, shall be paid, out of the State Treasury, the actual and necessary traveling expenses in going to and returning from the State Capital, and his actual and necessary food and lodging expenses for each day that he remains at the State Capital in the performance of his official duties. Payment shall be made upon the submission of expense statements under oath of the Judge or Commissioner submitting same. Said payment shall be made out of the Revolving Fund created by Section 4 of this Act.
Section 3. In the event any Judge or Commissioner of the Court of Appeals, in order to facilitate the work of the court, and to avoid the expense, delay and inconvenience of frequent travel to and from the place of his legal residence to the State Capital, shall establish a temporary place of abode in the State Capital, or in a place convenient thereto, he shall be paid out of the State Treasury, each month, the sum of $150.00, which is hereby declared to be the reasonable equivalent of the travel, food and lodging expenses which such Judge would incur, in the performance of his official duties, if compelled to travel to and from the place of his legal residence. When a Judge or Commissioner has estab
listed a temporary place of abode at the State Capital, or a place convenient thereto, he shall certify that fact to the Commissioner of Finance, and payment of the monthly allowance shall then commence and shall thereafter continue so long as the Judge or Commissioner remains in office and continues to maintain an actual place of abode in the State Capital or a place convenient thereto. Said payment shall be made out of the Revolving Fund created by Section 4 of this Act.