City of Louisville v. Wilson

JUDGE LEWIS DEEIVERED THE OPINION OF THE COURT. It is agreed in these five cases, submitted and decided without action, as follows: Appellees Wilson and Nevin were appointed by the mayor for the term of four years, December 14, 1893, confirmed by the board of aldermen of Louisville, and immediately qualified as members respectively of the board of public safety and board of public works. January 9, 1894, by ordinance of the general council the salary of each member of the two boards w’as fixed at $3,000 per annum. By ordinance approved January 26, 1894, it was provided there should be one secretary of the board of public works, his compensation being fixed at $2,000 per annum; and January 31,1896, appellee Hoertz was, by the board of public works, appointed secretary for the term of four years. By ordinance approved May 21,1894, it was provided the [602] compensation of deputies of the police court should be $1,500 each, payable monthly; and January, 1895, appellee, J. J. O’Connell, was by I. N. Vetter, bailiff of said court, appointed one of his assistants or deputies. January 9,1891, by ordinance, the compensation of official stenographer of the city court was fixed at $1,000 per annum; and- February, 24, 1894, appellee, John P. Martine, was, by the judge of the court, appointed to the office. December 26, 1895, the general council, composed of newly-elected members, passed an ordinance, duly approved by the mayor, changing salaries of members of the boards of' public safety and of public works to $2,500 each per annum; that of secretary of board of public works to $1,200 per annum ; that of deputy bailiff to $1,200 per annum; and that of official stenographer to $900 per annum-. The main question in this case is whether the ordinance of December, 1895, violates section 161 of the Constitution, as follows: “The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment or during his term of office; nor shall the term of any such office be extended beyond the period for which he may have been elected or appointed.” And the proper determination of it involves the inquiry whether the various ordinances referred to, which first fixed the compensation of these officers, were valid and effectual for that purpose. If any of them be invalid at all it is only because they were passed after the officers affected by them had qualified and commenced the discharge of their duties, for all appear-to have been regularly passed and- approved under authority-conferred by section 2753, Kentucky Statutes, applicable to-Louisville, a city of the first class, as follows: “Except as-otherwise herein provided, the general council may, by [603] ordinance, prescribe the duties, define the terms of office, fix the compensation, and the bonds and time of election of all officers and agents of the city.” But as none of those ordinances, except the particular one fixing salaries of members of the board of public safety and of the board of public works, were passed subsequent to appointment and qualification of the several officers mentioned, there is no reason for calling in question the validity of any except it may be that one. The purpose of section 161 ovas to prevent as well the reduction of compensation of officers, sometimes the result of prejudice and false economy, as increase of it, sometimes brought about by importunity and undue influence on their part, and so there can not be any change at all of an officer’s compensation during his term; but there is an essential difference which we are satisfied the framers of the Constitution had in mind, between fixing the amount of compensation an officer shall receive, not hitherto ascertained and settled, and changing it after it has been fixed It is the obvious and uniform policy of government, State and municipal, as well as just to each officer, to fix his compensation definitely and certainly as to amount, except when he is paid by fees of office. And section 161 does not in terms, nor was intended to forbid or at all, relate to any statute or ordinance that for the first time does fix the salary of an officer; but it is equally necessary for the protection of both the government and officer that his salary, when, once fixed, should not be changed during his term, and for no other purpose than to prevent that evil was section 161 made part of the Constitution. It is, however, contended that section 2824 and section 2861 had the effect to fix and secure to the members respec [604] tively of the board of public safety and board of public works a definite amount of compensation, the two sections being alike, and as follows: “Each member shall receive a salary of not less than twenty-five hundred dollars.” But it is plain the legislature did not intend thereby any more than to prescribe a minimum of the compensation which the general council had,been, by section 2753, already empowered to definitely and authoritatively fix; and it is to us equally plain that until the ordinance of January 9, 1894, was passed and approved the members of the two boards did not have the legal right to demand nor the 'city treasurer legal authority to pay them any compensation whatever. In our opinion the last-named ordinance is valid, and, consequently, the one of December 26, 1895, must be held invalid. There can be no question of appellees Wilson and Nevin being officers in the meaning of section 161, and the remain* ing inquiry is whether the other appellees are. There are various tests by which to determine who are officers in the meaning of the law, but at last, in case of uncertainty, the intention of the law-makers control. To constitute an officer it does not seem to be material whether his term be for a period fixed by law or endure at. the will of the creating power; but if an individual be invested with some portion of the functions of the government, to be exercised for the benefit of the public, he is a public officer. (Meacham on Public Offices, section 1.) The board of public works is by statute vested conjointly with the mayor with executive power, and, as its name indicates, has control and supervision of public places and public improvements, with authority to make contracts in regard thereto. [605] By section 2803 it has power to prescribe rules, not inconsistent with any statute or ordinance, regulating its own proceedings and conduct of its officers, clerks and employes-, distribution and performance of its business, and preservation of the books, records, papers and property under its control; and, while it does not appear from the agreed statement of facts what particular duties are assigned to the secretary of the board, it is manifest he was intended to be and is more than a mere employe, for he is req aired to execute bond for the proper discharge of his duties, and, being next in authority to members of the board, is the proper per. son to keep the required journal of its proceedings, preserve books, papers and records affecting the public. In our opinion he should be held an officer in meaning of section 161. As to appellee O’Connell performing, as assistant bailiff, the duties of a peace officer, and having authority to serve process and make arrests, there can be no question of his being an officer. Besides, the statute expressly provides for the appointment of assistant bailiff, as it does for the appointment of official stenographer, whose official acts have in degree the same verity and force as do those of the clerk of the police court. We think appellees are all officers in the meaning of section 161. Judgment affirmed. Judge Gully and DuRelle dissenting.