Talbott, Commissioner of Finance v. Thomas

Opinion op the Court by Faurest, Special Judge— Reversing. At its 1940 Session the General Assembly of the State of Kentucky passod an act entitled: “An Act relating to the retirement of Judges of the Court of Appeals, and providing for the payment of certain public emoluments to the Judges of *788 the Court of Appeals after their retirement, and making an appropriation therefor, and declaring an emergency.” See Acts 1940, c. 131, page 528. Among the provisions of that act are the following: Section 1. “After ten years or more of continuous service as a Judge of the Court of Appeals, any Judge of said Court upon reaching the age of sixty-five years, or who is now sixty-five years of age, who retires from office, either voluntarily or otherwise, shall be paid out of the State Treasury the sum of five thousand dollars ($5,000.00) per annum for the remainder of his life, which amount shall be payable monthly at the same time and in the same manner as the salaries of the Judges of the Court of Appeals are now paid. The provisions of this section shall apply to any person who retires from office as a Judge of the Court of Appeals, either voluntarily or otherwise, any time after reaching the age of sixty-five years provided such person has served as a Judge of the Court of Appeals continuously for not less than ten years prior to such retirement.” Section 2. “After sixteen years or more of continuous service as a Judge of the Court of Appeals, any person who retires from office as a Judge of said Court because of ill health, physical incapacity, or whose health or physical condition is such that continue^, service as a Judge of said Court would be reasonably calculated to impair the health or life of such person, who retires from office voluntarily thereafter shall be paid out of the State Treasury the sum of five thousand dollars ($5,000.00) per annum for the remainder of his life, which amount shall be payable monthly at the same time and in the same manner as the salaries of the Judges of the Court of Appeals are now paid.” Section 3. “Every Judge of the Court of Appeals hereafter retiring from office, either voluntarily or because of the expiration of his term, shall be paid out of the State Treasury at the rate of five thousand dollars ($5,000.00) per annum for a period immediately following his retirement equal to one-half of the entire time that he served as a Judge of the Court of Appeals subsequent to December 31, *789 1939, which payments shall be made monthly at the same time and in the same manner as the salaries of the Judges of the Court of Appeals are now paid. The payments .provided to be made in this Section shall be in addition to the payments provided in Sections 1 and 2 of this Act if such person be eligible to receive payments under either of said Sections.” The act further provided the method for carrying it into effect, and made the appropriations necessary for that purpose. The appellant, Commissioner of Finance of the State of Kentucky, doubted the constitutionality of the act and declined to make provision for payment of the amounts appropriated by it. The appellees, six of the seven regular members of this court, instituted this suit to require the Commissioner to carry the act into effect. The appellant defended upon the ground that the act violated the Constitution and was therefore, invalid. The lower court sustained the act, except to the extent that Section 3 may be interpreted as providing for payments in excess of the limits fixed by Section 246 of the Constitution, and granted the relief sought. The case is now before us on an appeal from that judgment. The appellant contends that the act violated Sections 3, 23, 26, 59, Subsection 18, 171, 235 and 246 of the Constitution of this state. The conclusions reached by us render it unnecessary to consider any of these except Sections 3 and 246. Section 3 of the Constitution provides: “All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services. ” Section 246 of that instrument is as follows: “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. The general assembly shall provide for the enforcement of this section by suitable *790 penalties, one of which shall he forfeiture of office by any person violating its provisions.” At the outset all the special members of this court desire to express high appreciation of the ability, industry, and integrity of the regular members of this court. Their work is arduous, and requires great knowledge of the law, and ability and skill in applying that law in the cases that come before them. We do not hesitate to say that personally we consider the present salaries of the regular members of the court entirely inadequate compensation for the services rendered. However, in deciding this case, we are bound by the provisions of the Constitution, and cannot sustain an act that offends that instrument. We must lay aside all personal views as to the wisdom of any limitations therein found, and apply its provisions as adopted. There are certain fundamental rules that must be observed in the considertaion of the questions here presented. We quote the following from Black’s Handbook of Constitutional Law: _ “Every presumption is in favor of the Constitutionality of an Act of the legislature. * * * Every reasonable doubt must be resolved in favor of the statute, not against it; and the Court will not adjudge it invalid unless the • violation of the Constitution is, in their judgment, clear, complete and unmistakable. ” Section 39. “It is a cardinal rule in the interpretation of Constitutions that the instrument must be so construed as to give effect to the intention of the people, who adopted it.” Section 48. “It is not permissible to disobey, or to construe into nothingness, a provision of the Constitution merely because it may appear to work injustice, or to lead to harsh or obnoxious consequences or invidious and unmerited discriminations, and still less weight should be attached to. the apguiriQnt from mere inconvenience.” Section 49-10. We shall examine this act in the light of these rules. It has been urged before us that the validity of the act depends solely upon whether it violates Section 3 of the Constitution. If that be true, and the act in no wav ¡offends any other provision of that instrument, and as *791 suming for tbe purposes of this case that the classification of the judges that may participate in its benefits is justified, there would be little question as to its validity. Section 3 contains no limitation on t*he amount that may be paid to an official for his services. The limitation there is only as to the consideration for which emoluments may be granted, and which must be the rendition of public services. The official services of a judge of the Court of Appeals are unquestionably public services. So that section taken alone sets no limit on the amount that may be paid nor when it may be paid. But the Constitutional Convention went further than this and by Section 246 it did provide a limitation upon the compensation any state officer, other than the Governor, may receive. Sections 3 and 246 are harmonious and complement each other. Section 3 declares that public emoluments shall not be granted to any one except for public services, and Section 246 that when these emoluments are granted for official services they shall not exceed $5000 per annum. That this latter provision was considered of great importance is shown by the fact it expressly directed the General Assembly to provide for its enforcement by enacting suitable penalties for its violation, one of which should be forfeiture of office. The regular salary of each judge of the Court of Appeals is, and has been for many years, $5000 per annum. The retirement pay provided by the Act of 1940 constitutes emoluments over and above the salary of $5000 per annum. The words “per annum” in Section 246, limiting compensation for official services to $5000 per annum, evidently refer to the period during which the services were rendered, and not to the time of payment. The object was to limit the amount of compensation for a year’s service. If this were not true, and the Constitution referred to the amount of compensation that could be paid within one year, the Convention and the people did a vain thing in adopting Section 246, for there would be no limitation upon the amount that could be paid an official for a year’s service, provided the payments were spread over a sufficient length of time. It is clear that the amounts authorized by this act to be paid the judges after their retirement is intended as additional compensation for the official services rendered by them. In order to receive these amounts they *792 are required to do nothing more than perform their official duties while in office. The name by which the additional allowance may be called cannot affect what it really is. In Sanders v. Talbott, 255 Ky. 50, 72 S. W. (2d) 758, Sanders was Chief Clerk of the House of Representatives. The Constitution provided that the House should elect, appoint or pay only specified officers. It then sat in the old building, where these officers were sufficient. When the New Capitol Building was occupied, more officers became necessary. This court held that extra help could not be paid (Shanks, Auditor, v. Julian, 213 Ky. 291, 280 S. W. 1081). To meet the situation, the employees that were allowed by the Constitution were paid larger salaries than they would otherwise have received and they divided with the unauthorized employees. The Chief Clerk participated in this arrangement. He presented to the auditor a bill for his services that ran the total above the $5,000 limit. In the bill was a bonus of $300 voted him by the House, which he claimed should not be counted in determining whether the compensation exceeded the $5,000 limit. It will be noted that he paid out part of his allowance to other employees of the House, and that the $300 was granted as a bonus, but this court said [255 Ky. 50, 72 S. W. (2d) 761]: “Mr. Sanders alleges the $300 bonus that was voted him was not received as salary, and hence should not be counted, but Section 3 of our Constitution provides that no grant of emoluments shall be made to any man or set of men except in consideration of public services. Therefore, this bonus could only be paid to him for his public services, and it must be included in the computation.” In Opinion of Justices, 175 Mass. 599, 57 N. 10. 675, 676, 49 L. R. A. 564, relied on by appellees, an opinion was asked as to whether an appropriation to the widow of a person, who died while holding office, of the amount of the salary the officer would have drawn if he had lived out his term, was valid. The justices, including Justice Holmes, in advising that such an appropriation could be made, said: “If such a provision should be enacted with regard to the widow, heirs, or legal representatives of a living officer, it naturally would be regarded as pledg» *793 ing the faith of the state to the officer himself, and thus as constituting part of the consideration for his future service.” If a provision for the widow or heirs of one in office, to be effective on his death, would be considered part of the consideration for his future services, a fortiori a provision for the officer himself on retirement from office must be treated as a part of the compensation for his services while in office. In State of Nebraska ex rel. Haberlan v. Love, 89 Neb. 149, 131 N. W. 196, 199, 34 L. R. A., N. S., 607, Ann. Cas. 1912C, 542, relied on in brief of amicus eurise, the court, in upholding a fireman’s pension, said: “In applying these limitations to the instant case, it may be conceded that the pension forms an inducement to the individual to enter and remain in the service of the fire department, and that the pension in a sense is part of the compensation paid for those services. 2 G-oodnow, Comparative Administrative Law, p. 74; Gray, Limitations of Taxing Power & Public Indebtedness, Section 336. In this aspect of the case, if no part of the service was rendered subsequent to the enactment of the law, the compensation would be a gratuity forbidden by the fundamental law of the state. Mead v. Acton, 139 Mass. 341, 1 N. E. 413.” While no case precisely like the one under consideration has heretofore been before this court, yet, the court has been outspoken in its enforcement of the $5,000 limitation. In Robinson v. Elliott County Fiscal Court, 236 Ky. 63, 32 S. W. (2d) 554, 555, it was said: “There can be no question but that it is competent for the Legislature to provide for the separate allowance of salaries to public officers for different specified services; there being nothing in the Constitution requiring that the allowance should be made in one lump sum, the only limitation being that the aggregate of the allowance shall not exceed the Constitutional limit of $5,000, and that all of it should be fixed before induction into office.” In Coleman v. Hurst, 226 Ky. 501, 11 S. W. (2d) 133, 135, which involved the right of the Legislature to *794 add to the salaries of Circuit Judges, then in office, further compensation for their services as members of the Judicial Council, this court affirmed the decision of the learned Special Judge, who heard the case below, and quoted with approval from his opinion. In that opinion it was said: “Since it provided that the membership shall be composed of judges, no sufficient reason appears why they should not be paid for their services in this extraofficial character (so far as their judicial capacity is concerned), so long as the provisions of Section 246, limiting to $5,000 the compensation of public officers other than the Governor, are not violated.” And again: “Moreover, the act shows on its face that the General Assembly, in withholding compensation from judges of the Court of Appeals and from those Circuit Judges whose salaries are supplemented by their local communities was careful to keep within the Constitution by observing strictly the provisions of Section 246.” After quoting with approval the aforesaid opinion, this court further said: “It is nothing new, therefore, for the General Assembly to provide that the Judicial Council shall be composed of the members mentioned in the act, but when we come to the question of compensation a different matter is presented. Section 246 of the Constitution contains the provision that no public officer other than the Governor shall receive more than $5,000 per annum as compensation for official services. It is not allowable to pay exceeding $5,000 annually to the same person for public services, whether such services are rendered in one position or more than one. If it were allowable to pay compensation up to the Constitutional limit for each public position held, the provision of the- Constitution would mean nothing. Therefore, in allowing compensation for public services, the aggregate of the amount allowed for services to the same person holding different public offices must be limited to the sum prescribed in Section 246 of the Constitution.” *795 If it be contended that the sums to be paid the judges on retirement are not paid as part compensation for the services theretofore rendered, Section 3 of the Constitution is encountered. That section, as heretofore shown, forbids the granting of public emoluments except in consideration of public services. If these retirement payments are not part of the compensation for the services rendered while on the bench, there are no public services to justify the payments. The act under consideration makes no requirement of any public service except the services theretofore rendered as appellate judge, in order to entitle the retired official to the allowance. The Legislature is not only not authorized to pay in excess of the $5,000 per annum for the services of the judges during their terms of office, but it is expressly forbidden to pay in excess of that amount for those services. Manifestly, these services for which the Legislature is forbidden to pay any more than has been paid, cannot be taken as public services for which additional public emoluments may be granted. A distinction is suggested between the services rendered by a judge and for which he has been paid and long service upon the bench, and it is claimed that these extra amounts are justified as an inducement to long tenure of office. However, no such distinction is to be found in Section 246. That section makes no difference in the limit of compensation that may be paid for the first year’s services, and for those of subsequent years. The same limitation applies to the 16th year and subsequent years as to all those that have gone before. The pay cannot exceed $5,000 per annum. That means that if an official serves 10 years he cannot receive more than $50,000 and if he serves 16 years not more than $80,000. There is no sliding scale. The Constitution makes no provision for an increase in compensation to encourage long service. We cannot write into the Constitution something that is not found therein. It is pointed out that wnen a lawyer becomes a regular member of this court, he must give up his practice, and, if he serves for a long time, he is at a great disadvantage in resuming the practice. When a judge accepts a place upon the bench it is implicit that he must give up his practice, and that he cannot resume his practice while on the bench. The Constitutional Convention and the people must have known these things when Sec *796 tion, 246 was adopted. The salary of $5,000 must have been intended to compensate for all such losses. Certainly, it was never intended that an official should be paid $5,000 per annum for his official services and in addition be compensated for the loss of what he would have made if he had not accepted the office. It is argued, in effect, that the work of judges of this court has increased greatly and become much more onerous since the adoption of our Constitution, and for that reason, their compensation in some form or other, should be greater. That may be a sound argument for an amendment to the Constitution permitting this, but the Constitution has not been amended. In fact, the people recently refused to so amend it. Until it is amended, it represents the will of the people and is the supreme law of the state and cannot be disregarded, no matter what change has come about in the amount of services rendered. t Counsel for appellees, and attorneys filing briefs amicus curiae, discuss at considerable length the right of the Legislature to grant pensions in certain cases, and cite Bosworth v. Harp, 154 Ky. 559, 157 S. W. 1084, 45 L. R. A., N. S., 692, Ann. Cas. 1915C, 277; Board of Trustees v. Schupp, 223 Ky. 269, 3 S. W. (2d) 606; De Wolf v. Bowley, 355 Ill. 530, 189 N. E. 893; State ex rel. Dudgeon v. Levitan, 181 Wis. 326, 193 N. W. 499; Opinion of Justices, 175 Mass. 599, 57 N. E. 675, 49 L. R. A. 564; In re Advisory Opinion to the Governor, 98 Fla. 843, 124 So. 728; People, etc., v. Policemen’s Annuity Fund, 326 Ill. 579, 158 N. E. 220, 54 A. L. R. 940; Fellows, Attorney General, v. Connolly, 193 Mich. 499, 160 N. W. 581; Manning v. Spry, 121 Iowa 191, 96 N. W. 873; and perhaps other eases, as sustaining the right to grant pensions in consideration of public services. But none of those cases presented the question we have here, In none of the cases outside of Kentucky was there any constitutional limitation of the compensation that might have been paid public officers, such as we have here. In Bosworth v. Harp, the court upheld the grant of pensions to Confederate soldiers upon the ground that they had performed a public service. But those soldiers were not officers of this state, nor had they received any compensation whatever from the state. In Board of Trustees v. Schupp, the pension was- *797 to policemen who had been in the service of a city, rendering public services. The pension was small and did not involve a consideration of Section 246. We do not consider any of the cases relied upon to be in conflict with this opinion. It no doubt is true that a judge of this court might render some outstanding act of public service in a matter having no connection with his office or his official duties that might justify the Legislature in making some grant to him in recognition of that act, even as they might to a private citizen. But when he has been paid the full limit for his official services, the outstanding act for which he is rewarded must be “outside of official duties and with which they have no affinity or connection.” Slayton v. Rogers, 128 Ky. 106, 107 S. W. 696, 699, 32 Ky. Law Rep. 897. Such is not the case here. If the act in question is sustained, it would open the way to a complete disregard of Section 246 of the Constitution. If it is once established that that section may be evaded by fixing a salary within the prescribed limit during the term of office, with a pensión to follow on for life or for a definite term of years, it will effectually wipe out the restraint that was intended to be placed on legislative action by the sections referred .to. If the Legislature may grant a pension following 10 years or 16 years service, for which $5,000 per annum has been paid, it may grant a pension following four years of similar service, and this will apply to all officials, and not merely to judges of this court. It is clear to us that the act in question violated the constitutional provisions herein before set out, and is for that reason invalid. That being true, it becomes unnecessary to consider whether it violates any of the other sections of the Constitution relied on by the Attorney General. The judgment below is reversed for proceedings in accordance with this opinion. Considered by the Whole Court consisting of the following Special Judges, viz.: Chief Justice Joseph. P. Goodenough and Judges C. C. Grassham, Wilbur K. Miller, J. Donald Dinning, W. L. Wallace, Frank C. Maliu, and L. A. Faurest. *798 Chief Justice Goodeonugh and Judges Miller and Malin concur. Judges Grassham, Dinning and Wallace dissent.