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Shamburger v. Duncan

December 12, 1952

SHAMBURGER, COUNTY JUDGE, ET AL.
v.
DUNCAN, COUNTY ATTORNEY



Duncan

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. Shamburger, County Judge, Mark Beauchamp, Robert A. Fihe, and Mortimer Viser, County Commissioners, which four constitute the Fiscal Court of Jefferson County. The appellee, plaintiff below, is County Attorney of that county.

Continuously from 1916 until 1952, the salary of County Commissioners in Jefferson County has been fixed at $3,000 per annum. KRS 67.110, Ky.St. 1851b-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 Beauchamp, 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 to 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 ...


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