Shamburger v. Duncan

253 S.W.2d 388, 1952 Ky. LEXIS 1090
CourtCourt of Appeals of Kentucky (pre-1976)
DecidedDecember 12, 1952
StatusPublished
Cited by17 cases

This text of 253 S.W.2d 388 (Shamburger v. Duncan) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shamburger v. Duncan, 253 S.W.2d 388, 1952 Ky. LEXIS 1090 (Ky. 1952).

Opinion

DUNCAN, Justice.

This agreed case was submitted pursuant to the provisions of Section 637 of the Civil Code of Practice. The appellants who were defendants below are Boman L. Shambur-ger, County Judge, Mark Beauchamp, Robert A. Fihe, and Mortimer Viser, County Commissioners, which four constitute the Fiscal Court of Jefferson County. The ap-pellee, plaintiff below, is County Attorney of that county.

*390 Continuously from 1916 until 1952, the salary of County Commissioners in Jefferson County has been fixed at $3,000 per an-num. KRS 67.110, Ky.St. 185lb-7. The appellants, Beauchamp, Fihe, and Viser, were receiving this salary as County Commissioners when the 1952 General Assembly amended KRS 67.110, Chapter 14, Acts of 1952 to read as follows:

“That Section 67.110, K.R.S. be amended and re-enacted, so that when amended it shall read as follows:
“Compensation of Justices and Commissioners for Serving on Fiscal Courts. (1) Each county commissioner serving on a fiscal court may be paid out of the county treasury the following compensation for his services:
“(a) In counties containing a city of the first class, a salary of five thousand dollars per annum, payable monthly.
“(b) In counties containing a city of the second class, a salary of four thousand dollars per annum, payable monthly-
“(c) In counties containing a city of the third or fourth class, a salary of not more than one thousand, eight hundred dollars per annum, payable monthly-
“(d) In other counties, the same compensation per day as justices of the peace receive under Section 64.530 KRS.
“Notwithstanding any provision of KRS 64.530, county commissioners in counties containing a city of the first or second class who- are in office on the effective date of this act and who were elected at the election at which the amendment to Section 246 of the Constitution of Kentucky was adopted may be paid the compensation authorized by this section, but not retroactively.
“Whereas it is deemed necessary to authorize an increase in the compensation of such county commissioners now in office, an emergency is declared tO' exist and this act shall take effect upon its passage and approval by the Governor.’’

The statute as amended became effective on March 26, 1952. On April 23, 1952, the Fiscal Court of Jefferson County adopted three separate resolutions, increasing the annual salaries of Commissioners Beau-champ, Fihe, and Viser from $3,000 to $5,-000, effective May 1, 1952.

The county attorney maintains that KRS 67.110 is unconstitutional insofar as it permits the increase in compensation of county commissioners during their terms of office, Ky.Const.Sections 161 and 235, and that the resolutions of the fiscal court are invalid as applied to the incumbent Commissioners. The Commissioners maintain that the amendment and resolutions are valid because of the provisions of the 1949 amendment to1 Section 246 of the Kentucky Constitution.

The 1949 amendment to Section 246, so far as applicable to this controversy, reads in part as follows:

“Compensation within the limits of this amendment may be authorized by . the General Assembly to be paid, but not retroactively, to- public officers in office at the time of its adoption, or who-are elected at the election at which this amendment is adopted.”

Mr. Beauchamp was elected County Commissioner for a term of four years in November, 1949, the same election at which the amendment was adopted. Commissioner Fihe was elected in November, 1947, and was in office. at the time the amendment was adopted. He was re-elected in November, 1951. Commissioner Viser was elected in November, 1951. He was neither in office nor elected at the election at which the amendment was adopted, 'but was in office at the effective date of the 1952 amendment to KRS 67.110.

In reaching a solution to the controversy, we are required to construe the 1949 amendment to Section 246 to determine the extent to which Sections 161 and 235 were suspended by the amendment.

Of particular applicability here is the rule of construction that “courts in construing constitutional provisions will look to the history of the times and the state of existing things to ascertain the intention *391 of the framers of the Constitution and the people adopting it, and a practical interpretation will be given to the end that the plainly manifested purpose of those who created the Constitution, or its amendments, may be carried out.” Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604, 607.

Section 246 has long been a subject of controversy in this State. An amendment to remove entirely the salary limitation fixed therein was proposed by the 1942 General Assembly but was defeated by the voters of the State at the election held in November, 1943. The 1949 amendment does not remove all salary limitation but provides new maximum limits within which the Legislature may regulate compensation of public officials. The present amendment, as did the 1942 proposed amendment, also provides that any regulation of compensation by the General Assembly under the authority of the amendment might he made to relate to public officials in office at the time of its adoption, or who were elected at the election at which such amendment was adopted. The proposed amendment went further than the present amendment and stated specifically that after such regulation of compensation by the General Assembly following its adoption no change should thereafter be made increasing or decreasing the compensation of public officers. Therefore, both the proposed and adopted amendments had the effect of suspending Sections 161 and 235 insofar as they affected public officials then in office or elected at the election at which the amendments were to be adopted.

Sections 161 and 235 prohibit change in the compensation or salary of public officials after their election or appointment or during their terms. These sections secure to public officers during the term of their office the same compensation they were entitled to receive at the time of their election to such office. Neutzel v. Fiscal Court of Jefferson County, 183 Ky. 1, 208 S.W. 1. The history of the efforts to amend Section 246 convinces us that it was never the intention of the Legislature in proposing or the people in adopting the amendment to do more to Sections 161 and 235 than enable the Legislature to extend to those officers who were within the inhibitions of the latter sections the immediate increases which might be authorized under authority of the amendment.

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253 S.W.2d 388, 1952 Ky. LEXIS 1090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shamburger-v-duncan-kyctapphigh-1952.