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Stone, Auditor, v. Pryor, etc.

salaries of circuit judges, fortifying the position of the majority, as contended, it seems to me to overturn it and sustain the views I entertain.

This section, it will be observed, uses the same language as to the salaries of the circuit judges as section 112 does as to the salaries of the judges of the Court of Appeals, but goes further and says: "Which shall be equal and uniform throughout the State." If the phrase, "an adequate compensation to be fixed by law," means an equal and uniform compensation in section 112, why should it not mean the same thing in section 133, and if it did, why the necessity of going further and providing that this adequate compensation should be equal and uniform throughout the State? To hold that the word "adequate" means equal and uniform in section 112 of the Constitution, and does not mean the same thing in section 133, we will have to presume that the framers of that instrument used the same language in different sections in reference to the same subject with different meanings. The presumption of the law is, that the same language in different parts of an instrument means the same thing. The salaries of the circuit judges were fixed by law at the time of the adoption of the Constitution at three thousand dollars. per annum, in the same way as the salaries of the judges of the Court of Appeals were fixed by law at four thous and dollars. They continued thereafter to be entitled to, and have ever since that time been paid, a salary of three thousand dollars. These judges were elected under the new Constitution in 1892, and they, or their successors, were elected in 1897, with the old salary of three thous

Stone, Auditor, v. Pryor, etc.

and dollars attaching to their office and fixed by law. I doubt not that each of them, relying upon section 235 of the Constitution, expected that no change could be made in their compensation during their term, and I deny the right of the Legislature to violate not only the letter, but the spirit of the Constitution, and change the salary of these judges, as it is held it can do by the majority. There is no reason why the salary of these circuit judges should not be equal and uniform, because they are all elected at the same time, and for the same term; but if they were elected alternately, as the judges of the Court of Appeals, the reason why the framers of the Constitution would not enjoin equality of salary would become apparent.

This case is not, as contended by the learned counsel of appellees, a case entirely of first impression and sui generis. The same constitutional provisions and statutes of the same character as are involved in this case have been considered by this court and construed. Cases involving the same principle as this have been considered and decided by this court, and the opinion in those cases stand, as I think, in direct antagonism to the opinion of the majority in this case. And especially is this true of the case of Commonwealth v. Addams, 95 Ky., 568. Mr. Addams, the appellee in that case, was elected to the office of clerk of the Court of Appeals, prior to the adop tion of the Constitution of 1891, and was in the enjoyment of the emoluments of his office at that time. He was allowed as compensation for his services not a salary, but certain fees prescribed by law. The Constitution (section 120) provides: "The present Clerk of the Court

Stone, Auditor, v. Pryor, etc.

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of Appeals, shall serve until the expiration of the term, for which he was elected, and until his successor is elected and qualified." His term will expire first Monday in September, 1898.

Section 246 of the Constitution provides: "No public officer, except the Governor, shall receive more than five thousand dollars per annum as compensation for official services, independent of legally authorized deputies and assistants, which shall be fixed and provided by law."

It is a well known fact that the compensation of the clerk, under the old law, and the fee system, largely exceeds five thousand dollars per annum. In June, 1893, the Legislature passed an act requiring the clerk to report to the auditor all fees received by him, and after retaining for himself as a salary, four thousand dollars per annum, and paying his deputies and office expenses, the balance to be paid to the auditor of the State and covered into the treasury. He refused to comply with the act of 1893, claiming that it changed his compensation during his term of office, and invoked the provisions of sections 161 and 235 of the Constitution, as preventing the application of the act of 1893 to him.

In passing upon that case and discussing the provisions of sections 161 and 235 this court said: "So, by these express provisions of the organic law, it was evidently intended to prevent any interference with the salary or compensation of a public officer during his term of office." And the court. held that, while the office of clerk of the Court of Appeals is not expressly mentioned, it is an office recognized by

Stone, Auditor, v. Pryor, etc.

the Constitution, and that so far as the compensation is concerned fell within the spirit and meaning of the provisions of the Constitution preventing legislative interference with the compensation during the term of office. So we find an officer elected prior to the present Constitution, and his term of office continued until the expiration of the time for which he was elected, just as two of the appellees were; and yet, although the Legislature passed an act in pursuance to the mandate of the Constitution which would result in a reduction of his compensation, without any attempt to exempt him from the provisions of the act, as in the case of the judges, the court holds that under the spirit and meaning of these constitutional provisions preventing legislative interference with official compensation during the term of office, the Legislature had no power to change the compensation fixed by law at the time of the adoption of the Constitution, attaching as it did to the offices and officers continued by its provis ions. No reason can be advanced for the application of the provisions to the present clerk of this court, that does not apply ten fold to the judges who were in, and who now continue in office by the new Constitution, just as he was. I think the majority has misconceived the opinion in that case in holding that the court was controlled by the debates of the Constitutional Convention.

The debates of the Convention are not law, and certainly this court, nor the distinguished judge who rendered the opinion, intended to so hold. In that case this. court held, that the compensation of the clerk could not

Stone, Auditor, v. Pryor, etc.

be changed, and, applying the same construction in this case, we would be compelled to hold, under the same provisions of the Constitution, that the salaries of the judges could not be changed. The Addams case was the first and leading case of construction of these new provisions, for the first time introduced into our organic law. It is published in the books as authoritative, and is the beginning corner of this new field of investigation; and I insist that if the opinion of the majority is to stand as the law, the Addams case should be overruled.

In the case of the City of Louisville v. Willson, (99 Ky., 603), in which the same principles of constitutional construction were involved, this court said: "The purpose of section 161 was to prevent as well the reduction of compensation of officers, sometimes the result of prejudice and false economy, an 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 com. pensation an officer shall receive, not hitherto ascertained and settled, and changing it after it has been fixed."

The court further says:

"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

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