SPECIAL JUDGE WOOD
dei.iveeed the opinion or the cotjbt.
This is an agreed case submitted to the judge of the Franklin Circuit Court on agreed facts, which are, in substance, as follows:
That appellant, Stone, is the Auditor of Public Accounts of the State of Kentucky; that appellees, W. S. Pryor, Joseph H. Lewis and James H. Hazelrigg, were each judges of the Court of Appeals at the time of the institution of this action; that Judge Pryor was elected in 188?, Judge Lewis in 1890, and Judge Hazelrigg in November, 1892; that Judge Pryor’s term expired January 1, 1897, that Judge Lewis’ term will expire January 1, 1899, and Judge Hazel[648]*648rigg’s, January 1, 1901; that they were then filling said ■ offices; that there was due said Judges Pryor, Lewis and Hazelrigg their respective salaries for the month of January, 1896; that they presented to said auditor their claims for said salary for said month of January, and demanded of him a warrant for $416,66 2-3 for said month; that said auditor refused to issue a warrant for such amount, but tendered a warrant to each of said judges for $333.33 1-3, which said judges declined to accept; that said judges contended that, under the la.ws of this State, their salaries were $5,000 each per annum, the auditor contending that, under said laws, they were only entitled to $4,000 each per annum; and the appellees (plaintiffs below) Asked the court for a mandamus against the the auditor to compel him to issue his warrant for said sum of $416.66 2-3 in favor of each of said judges.
Upon the final hearing of this case, the Franklin Circuit Court entered judgment directing the auditor to draw his warrant on the treasurer of the State in favor of each of said judges on account of salaries as judges of the Court of Appeals, at stated times, as provided by law, in such amounts as would not exceed the sum of $5,000 per annum each; and from that judgment the auditor has appealed.
In order to a proper solution of this question, we will have to review, to some extent, the new Constitution. We use the word “new” with reference to the present Constitution, because it is,, in every sense'of the word, a new Constitution. While many of the threads of the old Constitution were retained in the new, yet it is essentially a new instrument.
[649]*649The Bill of Rights is different from that in the old Constitution. The election law provisions are radically different. The provisions pertaining to municipalities, revenue and taxation, education, corporations, railroads and commerce, are also different from the old Constitution. Much of it — especially that pertaining to muncipalities, corporations and railroads and commerce — was not in the old Constitution.
There is a radical change in the courts. All common pleas, criminal and chancery courts were abolished by the new Constitution, as likewise the superior court, after January 1, 1895.
The Court of Appeals as established by the new Constitution is entirely different from that provided for in the old Constitution. By section 113, it was provided that after 1894, the Court of Appeals should consist of not less than five nor more than seven judges; and by section 115, it was provided that the judges then in office should hold their offices until their respective terms expired — until their successors were elected. It was further provided by said section that the General Assembly should, before the regular election in 1894, provide for the election of such judges of the Court of Appeals, not less than five nor more than seA^en; and section 116 provided that the judges of the Court of Appeals should be elected by districts, and that the General Assembly should provide, before the regular election of 1894, for dividing the State, by counties, into as many districts as there were judges to be elected; and in pursuance of this section the Legislature, on June 17, 1893 (Ky. Stats., section 936), did divide the State into seven [650]*650districts, and the judges were to be elected one from each of said districts at the November election, 1894, except those districts where the judges then in office were permitted to hold their offices until their time expired, thus creating a new Court of Appeals, composed of seven judges. And the Constitution further provided (section 1Í8), that, if the court was composed of seven judges, it should divide itself into sections, for the transaction of business, if, in the judgment of the court, such arrangement was necessary.
The framers of the new Constitution, and the people who adopted it, could have provided that the terms of all the judges then in office should expire with the regular election in November, 1894. They could have provided that the Governor should appoint these judges for a given time. The only restriction upon the people in making the Constitution was, that it should be republican in form and not in conflict with the Constitution of the United States. Therefore, these judges were kept in office, you may say, by grace, in order that no injustice might be done; and they were to become members of the new court on the 1st of January, 1895, at which time all the judges elected at the November election, 1894, were to take office. By the terms of section 115 of the new Constitution, the terms of the judges then in office were extended four months each.
By article 4, section 3 of the old Constitution, it was provided that the judges of the Court of Appeals should, at stated times, receive for their services an adequate compensation, to be fixed by law, which should not be diminished during the term for which they -were elected. It will be seen from this provision of the old Constitution that [651]*651the salaries of the judges of the old court could not be •diminished during their terms, of office, but could be increased.
Section 112 of the new Constitution provides: “The judges of the Court of Appeals shall severally hold their offices for a term of eight years, commencing on the first Monday in January next succeeding their respective elections, and until their several successors are qualified, subject to conditions hereinafter prescribed. For any reasonable cause, the Governor shall remove them, or any one or more of them, on the address of two thirds of each House of the General Assmbly, the cause or causes for which said removal shall be stated at length in such address and in the Journal of each House. They shall, at stated times, receive for their services an adequate compensation, to be fixed by law.”
In 1880, the salaries of the judges of the Court of Appeals were fixed at $4,000 per anum. This act was in force at the time of the election of the appellees, and at the time the new Constitution took effect, September 28, 1891. On March 4, 1894 (Acts 1894), p. 66), the Legislature, in pursuance of the mandate of the Constitution (section 112), proceeded to fix the salaries of the judges of the Court of Appeals. Said act reads as follows:
“Section 1. That the salaries of the judges of the Court of Appeals of this Commonwealth shall be $5,000 each per anum.
“Sec. 2. That the provisions of this act shall not apply to the incumbents during the present term of their office.
[652]*652“Sec. 3. That aril laws in conflict with this act are hereby repealed.”
Free access — add to your briefcase to read the full text and ask questions with AI
SPECIAL JUDGE WOOD
dei.iveeed the opinion or the cotjbt.
This is an agreed case submitted to the judge of the Franklin Circuit Court on agreed facts, which are, in substance, as follows:
That appellant, Stone, is the Auditor of Public Accounts of the State of Kentucky; that appellees, W. S. Pryor, Joseph H. Lewis and James H. Hazelrigg, were each judges of the Court of Appeals at the time of the institution of this action; that Judge Pryor was elected in 188?, Judge Lewis in 1890, and Judge Hazelrigg in November, 1892; that Judge Pryor’s term expired January 1, 1897, that Judge Lewis’ term will expire January 1, 1899, and Judge Hazel[648]*648rigg’s, January 1, 1901; that they were then filling said ■ offices; that there was due said Judges Pryor, Lewis and Hazelrigg their respective salaries for the month of January, 1896; that they presented to said auditor their claims for said salary for said month of January, and demanded of him a warrant for $416,66 2-3 for said month; that said auditor refused to issue a warrant for such amount, but tendered a warrant to each of said judges for $333.33 1-3, which said judges declined to accept; that said judges contended that, under the la.ws of this State, their salaries were $5,000 each per annum, the auditor contending that, under said laws, they were only entitled to $4,000 each per annum; and the appellees (plaintiffs below) Asked the court for a mandamus against the the auditor to compel him to issue his warrant for said sum of $416.66 2-3 in favor of each of said judges.
Upon the final hearing of this case, the Franklin Circuit Court entered judgment directing the auditor to draw his warrant on the treasurer of the State in favor of each of said judges on account of salaries as judges of the Court of Appeals, at stated times, as provided by law, in such amounts as would not exceed the sum of $5,000 per annum each; and from that judgment the auditor has appealed.
In order to a proper solution of this question, we will have to review, to some extent, the new Constitution. We use the word “new” with reference to the present Constitution, because it is,, in every sense'of the word, a new Constitution. While many of the threads of the old Constitution were retained in the new, yet it is essentially a new instrument.
[649]*649The Bill of Rights is different from that in the old Constitution. The election law provisions are radically different. The provisions pertaining to municipalities, revenue and taxation, education, corporations, railroads and commerce, are also different from the old Constitution. Much of it — especially that pertaining to muncipalities, corporations and railroads and commerce — was not in the old Constitution.
There is a radical change in the courts. All common pleas, criminal and chancery courts were abolished by the new Constitution, as likewise the superior court, after January 1, 1895.
The Court of Appeals as established by the new Constitution is entirely different from that provided for in the old Constitution. By section 113, it was provided that after 1894, the Court of Appeals should consist of not less than five nor more than seven judges; and by section 115, it was provided that the judges then in office should hold their offices until their respective terms expired — until their successors were elected. It was further provided by said section that the General Assembly should, before the regular election in 1894, provide for the election of such judges of the Court of Appeals, not less than five nor more than seA^en; and section 116 provided that the judges of the Court of Appeals should be elected by districts, and that the General Assembly should provide, before the regular election of 1894, for dividing the State, by counties, into as many districts as there were judges to be elected; and in pursuance of this section the Legislature, on June 17, 1893 (Ky. Stats., section 936), did divide the State into seven [650]*650districts, and the judges were to be elected one from each of said districts at the November election, 1894, except those districts where the judges then in office were permitted to hold their offices until their time expired, thus creating a new Court of Appeals, composed of seven judges. And the Constitution further provided (section 1Í8), that, if the court was composed of seven judges, it should divide itself into sections, for the transaction of business, if, in the judgment of the court, such arrangement was necessary.
The framers of the new Constitution, and the people who adopted it, could have provided that the terms of all the judges then in office should expire with the regular election in November, 1894. They could have provided that the Governor should appoint these judges for a given time. The only restriction upon the people in making the Constitution was, that it should be republican in form and not in conflict with the Constitution of the United States. Therefore, these judges were kept in office, you may say, by grace, in order that no injustice might be done; and they were to become members of the new court on the 1st of January, 1895, at which time all the judges elected at the November election, 1894, were to take office. By the terms of section 115 of the new Constitution, the terms of the judges then in office were extended four months each.
By article 4, section 3 of the old Constitution, it was provided that the judges of the Court of Appeals should, at stated times, receive for their services an adequate compensation, to be fixed by law, which should not be diminished during the term for which they -were elected. It will be seen from this provision of the old Constitution that [651]*651the salaries of the judges of the old court could not be •diminished during their terms, of office, but could be increased.
Section 112 of the new Constitution provides: “The judges of the Court of Appeals shall severally hold their offices for a term of eight years, commencing on the first Monday in January next succeeding their respective elections, and until their several successors are qualified, subject to conditions hereinafter prescribed. For any reasonable cause, the Governor shall remove them, or any one or more of them, on the address of two thirds of each House of the General Assmbly, the cause or causes for which said removal shall be stated at length in such address and in the Journal of each House. They shall, at stated times, receive for their services an adequate compensation, to be fixed by law.”
In 1880, the salaries of the judges of the Court of Appeals were fixed at $4,000 per anum. This act was in force at the time of the election of the appellees, and at the time the new Constitution took effect, September 28, 1891. On March 4, 1894 (Acts 1894), p. 66), the Legislature, in pursuance of the mandate of the Constitution (section 112), proceeded to fix the salaries of the judges of the Court of Appeals. Said act reads as follows:
“Section 1. That the salaries of the judges of the Court of Appeals of this Commonwealth shall be $5,000 each per anum.
“Sec. 2. That the provisions of this act shall not apply to the incumbents during the present term of their office.
[652]*652“Sec. 3. That aril laws in conflict with this act are hereby repealed.”
Section 235 of the new Constitution reads as follows: “The salaries of public officers shall not be changed during the term for which they were elected. . . .”
It is contended by the Auditor of Public Accounts thaf,, by reason of section 235, the salaries of the judges in office at the time the Constitution was adopted could not be Increased. And it is further contended by him that the second section of the act of March 4, 1894, supra, excluded them from its operation, and that they could only draw the salary of $4,000, under the act that was in force at the time of their election. With this contention we can not agree; first, because, under the section of the old Constitution quoted (article 4, section 3), the salaries of Judges Pryor and Lewis could have been increased, and second,, it is a well-established principle of construction that constitutions have no retroactive effect — that they operate in the future, and not in the past. The appellees, Judges Pryor and Lewis, were permitted by the Constitution to hold their offices during the period for which they were elected. They would become a part of the new court when it was organized January 1, 1895; and they knew that, by the 112th section of the new Constitution, the Legislature had the right to fix their compensation — and can it be doubted, if thé Legislature had fixed the compensation of the judges of the Court of Appeals in the act of March 4, 1894, at $3,500, that that is all the salary they could have received after the 1st day of January, 1895? Section 235 of the Constitution, which provides that the salaries of [653]*653public officers shall not be changed during the terms for which they were elected can only operate after the Legislature has acted and fixed the compensation.
Judge Hazelrigg took office January 1, 1.893, having been elected after the new Constitution was adopted; and can it be contended, by reason or authority, that his salary couid not be fixed by an act of the Legislature after he went into office, or that he would not be compelled to accept whatever salary it might fix, under section 112 of the Constitution? But when once fixed, it could not be reduced during his term of office..
The salaries of the appellees, Pryor and. Lewis, as we •have before stated, could be increased under the old Constitution, and certainly the new Constitution did not take this right away from them; but their salaries were subject to legislation, after the adoption of the new Constitution, and after it was fixed by the act of 1894, supra, it can not be reduced during their terms of office.
We have been cited to a number of cases by the learned Attorney-General, but none of them militate against the views herein expressed, except the case of Commonwealth v. Addams, clerk (85 Ky., 588). In section 246 of the Constitution, it is provided that no public officer shall receive more than $5,000 per annum as compensation, except the Governor. In June, 1893, the Legislature passed an act requiring the clerk to report to the Auditor all fees received by him, and, after retaining for himself as salary $4,000, and after paying his assistants or deputies, and all expenses of the office, the balance remaining was to be paid over to ■the Auditor of the State. ■ A heavy penalty was imposed [654]*654on the clerk for failure to comply with the provisions of this act. The clerk contended that, by section 235 of the Constitution, his salary could not be diminished during his term. But in this case the controlling point in the decision was, that, in the debates in the convention that adopted the Constitution (Debates, Con. Con., vol. 3, pp. 4202-3, 4236), they disclaimed any purpose of interfering with the compensation of the “present incumbent.”
In the Dakota cited by the Attorney-General, of Polk v. Minnehaha County (5 Dak., 129), the Legislature of Dakota Territory passed an act, approved March 7, 1883, which provided that the district attorneys should receive such salaries for their services as the board of county commissioners of the proper counties should allow, not less than $400 per year; but the salary of such district attorney should not be diminished during the term for which he should be elected or appointed. It appears from the facts in that case that appellant Polk qualified as district attorney for Minnehaha county on January 3, 1887; and on January 8, 1885, at a regular session of the board of county commissioners, the salary of the district attorney was fixed by the board at $1,200, and that was the salary fixed when Polk was sworn into office. About an hour after he -was sworn in, the county commissioners met and reduced the salary to $700, and the court decides in that case that this they could not do, because the salary had been fixed before he was sworn into office and it could not be changed during his term. The court uses this language in that case: “The salary, when fixed or allowed, relates and attaches to the office itself, and also to the individual officer, in so far [655]*655as that the person who, for the time being, holds the office is entitled to receive the salary of the office. . . . The board of county commissioners had no power or authority to diminish the salary of the office of district attorney, after the term of office for which the plaintiff (appellant) was elected had begun — that is, during his term. Their action was illegal, and the district court should have so found and declared, and judgment have been rendered accordingly.” It will be seen from that case that the salary of the district attorney, under the law, had been fixed before Polk was sworn into office, and it was there decided — and correctly, too, as we think — that it could not be changed after he was sworn in.
The Attorney-General in his brief cites us to the case of Bright v. Stone. This case is now pending on a petition for rehearing, and can not be regarded as authority here. But it is sufficient to say that, by act of the Legislature, approved June 15, 1893, the fees of all the circuit and county clerks, sheriffs, constables and jailers, were fixed, and they were all inducted into office January 1, 1893, before that act was passed.
/ The Attorney-General also cites us to the case of City of Louisville v. Wilson, 99 Ky. It seems that, on January 9, 1894, the general council of the city of Loáisville passed an ordinance fixing the salaries of the officers. of the Board of Public Safety and Public Works at $3,000 per annum; that by ordinance approved January 26, 1894, it was provided that there should be one secretary of the Board of Public Works, whose compensation should be [656]*656was, by the Board of Public Works, appointed secretary for the term of four years. By ordinance approved May 21, 1894, it was provided that the compensation of deputies of the police court should be $1,500 each, payable monthly. In January, 1895, appellee J. J. O’Connell was, by one I. N. Vetter, bailiff of said court, appointed one of his assistants or deputies. January 9, 1894, by ordinance, the compensation of official stenographer of said court was fixed at $1,000. February 24, 1894, appellee John P. Mar-tine was, by the judge of. the court, appointed to that office. December 26, 1895, the general council, composed of newly elected members, passed an ordinance, duly approved by the mayor, changing the salaries of the members of the boards of Public Safety and Public Works to $2,500; that of secretary of the board to $1,200; that of deputy to $1,200; that of official stenographer to $900. The court decides in that case that the salaries of these officers having been fixed by ordinance after they were qualified, could not be reduced during their terms of office. While there is a dissenting opinion in that case by Judges Guffy and DuRelle, they agree that the court was right on that proposition, that is, that the salaries of these officers could not be reduced during their terms; but they differ with the majority of the court on the ground that these offices were not constitutional offices, and the Constitution only meant that the salaries of 'public officers recognized by it could not be changed during their terms.
The case of Purcell v. Parks (82 Ill., 346) cited by appellees in their brief, sustains the position here announced; -that is, that where the power is given by the Constitution [657]*657to fix salaries of public officers, that power remains unexhausted until the Legislature acts, but when once fixed it can not be changed. Under the Constitution of Illinois, the feqs, or salary, or compensation of no muncipal officer, elected or appointed, could be increased or diminished during his term. It further provided that county clerks were required to be elected in each county on the first Monday in December, for the term of four years. Section 8 of article 10, of the Constitution provided that as to all county officers who should be in office at the meeting of the General Assembfy after the adoption of the Constitution, all laws in force fixing their fees should terminate with their respective terms of office, and that the General Assembly should provide for and regulate the fees of such officers and their successors, so as to reduce the same to a reasonable compensation for services actually rendered. It was also provided by the Constitution that the county board of each county should fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel and other expenses; and in all cases where fees were provided for, said compensation should be paid only out of, and not in any instance exceeding, the fees actually collected; that they should not allow either of them more than $2,000 per annum, in counties containing twenty thousand and not exceeding thirty thousand inhabitants; “Provided, That the compensation of no officer shall be increased or diminished during his term of office.” All fees or allowances by them received, in excess of their said compensation, should be paid into the treasury of the county. By an act of the General Assembly of Illinois, approved [658]*658March 29, 1872, it regulated the fees of county clerks. In the county of Marion the county board took no action in fixing the compensation of the county clerk of that county until March, 1874. Purcell was elected county clerk pf that county at the November election, 1873, for a term of four years from and after the first Monday of December of that year, and on the latter day qualified as such, and entered upon the duties of his office, and charged and received fees, under the act of 1872, providing for and regulating the fees of various officers. At the March term, 1874, during the term of this officer, the county board of Marion county made and entered on record, against the protest of this officer, an order, as follows: “Ordered, that the salary of the county clerk be $1,000 per year, to be in force from the 1st day of December, 1873, as provided by an act of the General Assembly, approved March 29, 1872, and in force July 1, 1872.” The action was brought by the treasurer of the county, Parks, to recover of the county clerk all fees he had received in excess of $1,000, which it was agreed was $1,000.61, after deducting necessary expenses.
The court gave judgment for that sum and he appealed. The court in its opinion, says:
“I am instructed by the court to say that, in the opinion of a majority of the judges thereof, the clerk, under the Constitution and statute, is not entitled to appropriate to his own use any of the fees of his office, except by virtue of an order of the county board. In the absence of such order, such clerk has no compensation by law whatever. Hence the fixing of such compensation by the county board, in their order of March, 1874, did not, in the sense of the [659]*659Constitution, either increase or diminish the compensation of such officer, for up to that time, he had, by law, no compensation to be increased or diminished. It was the duty of the county board to have fixed the compensation in question before the election. Not having done so, the power remained unexhausted, and the board might have been compelled, either before or after the term began, to exercise the power and fix the same.
We are all of the opinion that when the board had once acted, and fixed the compensation of the county clerk, that compensation can not be changed so as to increase or diminish the compensation to be received by him during his term.”
This decision is in line with all the authorities we have been able to find — that is, that the compensation of public officers, after it has been fixed by the Legislature, can not be changed during their terms of office.
By section 112 of the new Constitution, the Legislature provided that the judges of the Court of Appeals should receive for their services an adequate compensation, to be fixed by law; and the Attorney-General admits in his brief that that provision is mandatory. As before stated, the Legislature did fix the compensation, by the act of March 4, 1894, at $5,000. But the contention is, that it does not apply to the judges then in office, by reason of section 2 of said act. We can not agree to this. The Constitution established a new Court of Appeals, beginning January 1, 1895, and we think the second section of the act of 1894 had reference alone to the judges of the old court from the time of the adoption of the act until the organization [660]*660of the new court on January 1, 1895. Otherwise, if that provision (section 2) had not been inserted in that act, the judges of the old court would have been entitled to $5,000 from the time of adoption of the act until the new court was organized January 1, 1895; and we think the reasonable construction of that act is, that the salaries of the judges should be equal, and each judge of the new court should draw $5,000 from the organization of the new court on January 1, 1895. And our conclusions are fortified by the 112th section of the Constitution, by the use of the language, “They shall, at stated times, receive for their services an adequate compensation, to be fixed by law.”
It was not contemplated by the framers of the Constitution, or the people that adopted it, that old and experienced judges should have a less salary than the new judges to be elected in November, 1894, and who were to form a part of the new court on the 1st day of January, 1895. The spirit and the intent of the people in adopting this new Constitution was equality — equality in salaries, equality in taxation, equality in rights; and it certainly would be unequal and unjust that these old judges, Pryor and Lewis, who had served on the bench for years, should receive a less salary than new judges to be elected, who were without experience in this court of last resort. These views are further fortified by section 133 of the new Constitution, providing that the circuit judges shall receive for their services an adequate compensation to be fixed by law, “which shall be equal and uniform throughout the State.” The salary of the circuit judges was fixed at $3,000 before the adoption of the new Constitution, and [661]*661the power given by section 133 has never been exercised by the Legislature. They still continue to draw $3,000, and will continue to do so until the Legislature acts.
We conclude that the New Constitution provided for a supreme court called the Court of Appeals of Kentucky; that it was a new court, to go into effect on the 1st day of January, 1895; that the Legislature had the right to fix the compensation of the judges of said court: they did fix it, by the act of March 4, 1894, and it applied to all the judges of that court organized January 1, 1895, and that said judges, including the appellees, are entitled, under that act, to a salary of $5,000 per annum each.
Judgment affirmed.
Special Judge Waddle dissenting and will file dissenting opinion.