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Love v. Duncan

March 27, 1953

LOVE ET AL.
v.
DUNCAN, COUNTY ATTY. ET AL.



Cammack

CAMMACK, Justice. The principal questions involved on this appeal and cross appeal are whether the official stenographic reporters of the various branches of the Jefferson Circuit Court are public officers, and in the event they are deemed to be public officers, whether they hold office for a fixed term of four years. There are involved also the questions of whether the reporters may charge the county certain fees in addition to the salaries paid them by the county, and, in the event they are held to be term officers, when the terms of the officers began.

Judge Will H. Fulton, as Special Judge, tried the cases. In a well considered opinion, which will be incorporated hereinafter, Judge Fulton concluded that the reporters are public officers; that they are four year term officers; that they are entitled to the fees in question; that the reporters became term officers October 1, 1942, when the Kentucky Revised Statutes became effective. Since we concur in the conclusions reached by Judge Fulton, and agree with the reasoning set forth in his opinion, we are adopting it as our own.

It may be said in passing that the question as to when the terms of the court reporters began after the adoption of the Kentucky Revised Statutes presents a rather novel situation. Prior to October 1, 1942, the reporters were public officers subject to removal at any time by the circuit judges. No action was taken by the judges relative to the court reporters in office on October 1, 1942, and it was Judge Fulton's conclusion that the reporters then holding office began four year terms on that date. This part of his opinion has not been questioned. His solution presents a practical one, and provides for reporters other than those holding offices which have been created within recent years to hold under concurrent terms. Furthermore, it will permit that group of reporters to be eligible for increased compensation when the terms which they are now holding end on October 1, 1954. There is basis for the contention that the reporters in office on October 1, 1942, at the time the Kentucky Revised Statutes became operative, held over as de facto officers. We believe, however, that Judge Fulton's solution of this problem, which seems to be not under attack by any of the parties at this late date, furnishes a practical solution to a difficult problem. For these reasons we have decided to approve Judge Fulton's solution of this particular problem in the interest of its practical administration.

Judge Fulton's opinion follows:

'Pursuant to KRS 28.440 recommendations were made to the Fiscal Court of Jefferson County on May 16, 1952 for increases in the salaries of the official stenographic reporters of the various branches of the Jefferson Circuit Court who had been appointed on various dates between January 1st and May 26th, 1952.

'On August 1, 1952 the Fiscal Court entered an order increasing the salaries, the increase to be effective as of July 1, 1952, though the increases were not as great as those recommended. The salaries the reporters had been receiving up to July 1, 1952 were the same as those paid to their predecessors.

'The County Treasurer refused to pay these increases in salaries and this action was filed by the County Attorney against the official reporters seeking a declaration of rights with reference thereto and with reference to the statutory fees for reporters.

'The County Attorney contends that the reporters are officers appointed for a fixed term of four years; that their salaries were fixed prior to the attempted increase of July 1, 1952 and, therefore, that the attempted increase is void as being in violation of Sections 161 and 235 of the Constitution which forbid the changing of salaries of public officers during their terms of office.

'Sections 161 and 235 do not apply to officers who hold at the pleasure of the appointing power, Jefferson County v. Cole, [204 Ky. 27], 263 S.W. 1114, and it is the contention of the defendant reporters that they are not officers because their duties are purely ministerial and that, even if they are officers, they are removable at the pleasure of the judge, and, therefore, are not within the purview of these constitutional provisions. It is further contended that their salaries were not fixed prior to the order of the Fiscal Court of August 1, 1952 fixing the salaries as of July 1, 1952 and, consequently, that the increase was validly made.

'A further question is whether the reporters may charge the increased fees fixed by the 1952 amendment to KRS 28.440, effective June 19, 1952.

'A minor and subordinate question in this respect is whether the reporters may charge the County fees in addition to the salaries paid by the County.

'We consider first the question whether official reporters are officers and, if so, whether they are appointed for a fixed term.

'In Taylor v. Commonwealth [305 Ky. 75], 202 S.W.2d 992, the Court laid down the principles by which to determine the status of one as an officer or employe, and these principles were reaffirmed in Nichols v. Marks [308 Ky. 863], 215 S.W.2d 1000, as follows:

'(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, ...


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