Duff v. Mosley

Opinion of the Court by Chief Justice Miller Affirming. By this action the appellant, A. J. Duff, jailer of Leslie County, sought to enjoin Elihu Mosley, judge of the Leslie County Court, from entering an order placing John Bishop, John Smith and Richard Jones, prisoners confined in jail, at work upon the public highway and public roads of the county to -satisfy judgments rendered against each of them for $75.00 in the Leslie Circuit Court, under which each of them was required' to be placed at hard labor one day for .each $1.00 of said fine and costs. The circuit court sustained a demurrer to the petition, and the plaintiff appeals. Chapter 89 of the acts of 1914, repeals section 1379 of the Kentucky Statutes by substituting therefor a new act, subsection 1 thereof reading as'follows: “In all cases, in which, a court, or jury shall provide that the defendant shall work at hard labor until his fine and costs or imprisonment or both are satisfied, the defendant shall be placed in the workhouse, if there be one in the county, or at work upon some public work or road of the county or he may be placed upon the public works of any city or town in the county. The place of working such prisoners shall be determined by the county judge and it shall be his duty to enter an order on the order book of the county, specifying the manner in which such prisoners shall be worked and he shall give preference to work on'the roads of the county, whenever the weather will permit.”. Acts 1914, page 465. The remaining sections of the act are administrative in their character. Acting under the authority of the statute, the appellee, as county judge, was about to enter an order directing the jailer to deliver the three prisoners above named, to the county manager for work upon the public roads [63] as provided by the statute, supra, when this action was filed to enjoin him. ■ 'The petition alleges that the plaintiff was elected jailer at the November election, 1913, and qualified as such officer on January 1st, 1914; that at the time be ■ took office be was entitled, under the statute, to the sum of seventy-five cents per day for dieting and keeping each prisoner committed to bis custody; and, that upon the conviction of the prisoners Bishop, Smith and Jones, the appellant became immediately entitled to the sum of seventy-five cents for each of said prisoners for a period of seventy-five days, by reason of the conviction and judgments against said prisoners, provided they did not pay or replevy said judgments. Appellant contends that he has full power and control of said prisoners, and is entitled to retain control of them and to be paid for their support until they shall have worked out their fines, and that if the county court be permitted to take them from the possession of the plaintiff and work them upon the county roads, his compensation as jailer will be reduced to that extent, and in violation of section 161 of. the constitution, which provides that 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. Stated differently, the appellant’s contention is, that the legislature was without power to change the law relating to the custody and employment of prisoners in any way that would either directly or indirectly affect a jailer’s fees. It being conceded, however, that if the prisoner should pay or replevy his fine, the jailer’s compensation for dieting and keeping the prisoner would be terminated, we. are' unable to see how a payment of the fine would present a case different in principle from that where the prisoner is withdrawn from the custody of the jailer and put to work upon the public roads. The jailer’s office is not a salaried office. His profits depend upon the work and labor he performs under the statutory fees provided therefor. Section 161 of the constitution contemplates an office with a fixed salary or fixed fees; it never contemplated that the legislature might not indirectly affect a jailer’s- fees by changing the method of punishing criminals. The jailer has no such vested right to keep and feed prisoners as will prevent the legislature from [64] changing the method of punishing them, or the method by which they may satisfy their fines. If the legislature had attempted to change the plaintiff’s scale of fees, it would have been invalid because prohibited by the constitution. Commonwealth v. Carter, 21 Ky. L. R., 1509, 55 S. W., 701; Thomas v. Hagan, 120 Ky., 428. But the case here is entirely different. The jailer is not interested in the fine; his only interest consists in his fee for keeping- and feeding the prisoner so long as he may be committed to the jailer’s custody. But changing the custody of the prisoner does not, within the meaning of section 161, supra,, amount to a change in the compensation of the jailer, which is by fees fixed by law, and remain unchanged by the statute which changed the custody. Judgment- affirmed’. • '