DUNCAN, Justice. This agreed question presented under Section 637 of the Civil Code of Practice concerns the right of appellee, Charles A. Walter, to compensation from the City of Louisville for his services in presiding over what is referred to as the Night Branch of the Louisville Police Court.
The controversy requires the construction of KRS 26.220, which is Chapter 166, Acts of 1950, and provides as follows:
'The judge of police court of a city of the first class may appoint two trial commissioners, and may designate one of them to serve as pro tem judge. They shall hear cases in rooms provided by the city legislative body for police court and as trial commissioners may sit simultaneously with the elected judge. The pro tem judge shall have the same rights, powers and duties as the elected judge whenever the elected judge fails to attend and hold court, or vacates the bench. The trial commissioners and pro tem judge shall have the same qualifications as the elected judge, shall hold office at the pleasure of the elected judge and shall not practice any case in police court. The compensation of the trial commissioners and pro tem judge for services rendered shall be fixed by ordinance not to exceed the rate of salary of the elected judge and be paid by the city at the same time as the salary of other city officers.'
The police judge of the city, in order to facilitate handling of the enormous volume of cases falling within the jurisdiction of the police court, divided the work of the court into separate branches as follows:
(a) Police Court proper -- presided over by the police judge and handling all cases within the general jurisdiction of the court except those assigned or transferred to other branches.
(b) Traffic Branch -- handling all cases involving traffic violations.
(c) Domestic Relations Branch -- handling all cases involving problems of domestic relations.
(d) Night Court -- for the prompt handling of all cases arising at hours when the regular court is not in session.
Prior to July 1, 1952, the judge of the police court had construed KRS 26.220 as authorizing him to appoint two trial commissioners and a judge pro tem. However, upon submission of that question to the Jefferson Circuit Court, in an action which was never appealed, that court ruled to the contrary, and it was determined that the judge pro tem must be one of the two trial commissioners.
Accordingly, after July 1, 1952, the police judge was faced with the administrative problem of providing a staff for the police court proper and its three branches without exceeding the number of trial commissioners authorized by KRS 26.220, as interpreted by the former action. To meet the situation, he adopted the following plan:
(a) Michael M. Hellman was appointed as one of the trial commissioners and assigned to the duty of hearing all cases involving traffic violations.
(b) At or about noon on Monday, Wednesday and Friday of each week, Hugo Taustine was appointed trial commissioner and judge pro tem and assigned to the duty of hearing all cases involving problems of domestic relations on the afternoons of those three days.
(c) At or about 5:30 p. m. on every Monday, Wednesday and Friday, the appointment of Taustine as trial commissioner and judge pro tem was terminated and the appellee, Charles A. Walter, was thereupon appointed as trial commissioner and judge pro tem, thus enabling him to hold night court sessions of the police court on every night and to act as the second trial commissioner at all periods of time except the three afternoons each week when Taustine was so acting. The appointments of appellee were likewise terminated by appropriate orders prior to the sitting of Taustine in the Domestic Relations Branch.
By this arrangement, no more than two trial commissioners were serving concurrently although within the period of one day, on Mondays, Wednesdays and Fridays, three ...