Clarke, John H., Jr.

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University of Kentucky

Kentucky Law JournalVolume 31 | Issue 1 Article 41942Pensions for Members of the Court of AppealsJohn H. Clarke Jr.Follow this and additional works at: https://uknowledge.uky.edu/kljPart of the Courts Commons, and the State and Local Government Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationClarke, John H. Jr. (1942) "Pensions for Members of the Court of Appeals," Kentucky Law Journal: Vol. 31 : Iss. 1 , Article 4.Available at: https://uknowledge.uky.edu/klj/vol31/iss1/4NOTESPENSIONS FOR MEMBERS OF THECOURT OF APPEALSThe Kentucky legislature enacted a statute granting apension to judges of the Court of Appeals of $5,000 per year forthe rest of their lives (a) if they retired at 65 after ten years ofcontinuous service on the court or (b) if they found it advisableto retire because of poor health after as much as sixteen yearsof continuous service.1 Six members of the highest court broughtaction to require the Commissioner of Finance to carry out pro-visions of the act. Decree for petitioners below as to the twoprovisions set out. Held-Reversed for the state on appeal. TheKentucky Constitution must be construed as a unit and the sup-plementary effect of sees. 3 and 246 is that no public emolu-ments shall be granted except for public service, and that thegovernor is the only public official who can receive more than$5,000 per year. Thus, any legislative enactment which attemptsto increase the compensation for judges of the Court of Appealsto an amount greater than $5,000 for each year's service is un-constitutional.2  Talbott, Comm. of Finance v. Thomas, 286 Ky786, 151 S. W (2d) 1 (1941).Members of the court receive $5,000 per year while servingactively The pension in the statute is based on the previousrendition of services as a member of the court, and after retire-ment under either of the stated provisions no duties are imposedon those to receive the benefits of the pension.See. 3 of the Kentucky Constitution provides."All men, when they form a social compact, are equal; and no'Acts 1940, C. 131, Page 528, Legislative Enactments of the Com-monwealth of Kentucky.2 In considering the principal case, it is to be noted that "On twooccasions within the last ten years the people of this state have beencalled upon to change the public policy of the state as declared bythe constitution m the matter of limitation of salaries of publicofficers. The legislature has submitted to the people for theirapproval at least two constitutional amendments. The first one wasto do away with see. 246 of the Constitution, and the second one wasto except the judges of the Court of Appeals from its provisions. Thepeople by their vote rejected both of the amendments, and thus re-affirmed the constitutional declaration of public policy." Talbott v.Thomas, 286 Ky. 786, 807, 151 S. W (2d) 1 (1941).PENSIONS FOP JUDGESgrant of exclusive, separate public emoluments or privileges shallbe made to any man or set of men, except m consideration of publicservices",and see. 246"No public officer except the governor, shall receive more than$5,000 per annum as compensation for official services "It is apparent that the term public services as used in see. 3is broader than, and includes official services as set out in see.246. Thus, it would be possible for a situation to exist where anofficer of the state who received compensation for official serviceswould also be the recipient of additional emoluments (a) forrendering public services, winch were in no way connected, eitherdirectly or indirectly, with the duties of his office. 3 For example,let us suppose that the hobby of one of the judges of the highcourt was scientific research, and that while serving on the courthe discovered a compound which proved valuable in the curingof tobacco, which resulted in great benefits to the whole state.4It would seem that the legislature could properly grantemoluments to the judge for public services. Furthermore, sucha grant could be made either while the judge was serving in hisofficial capacity, or after his term on the bench had ended. Theother possibility is (b) that he should receive emoluments forpublic service growing from the rendition of official servicesaccruing either at the time of the rendition of the officialservices or subsequentlyIn considering the validity of the Judges' Pension Act, noconsideration need be given to (a) for the statute does notattempt to award the pension to anyone for public servicesother than officials, and the only public services necessary toqualify as a beneficiary are the official services for which com-pensation has already been granted. Therefore, the statute musthave been drafted on the theory that there is a public servicegrowing out of the official services rendered, which publicservice may be realized at a time subsequent to the rendition ofthe official services. Hence, the granting of emoluments duringthe time the benefits were being received would be within the' Talbott v. Thomas, supra n. 2, at 801, the ma3ority admits,"under sec. 3, therefore, one may be awarded a public emolument forpublic services, whether the one performing the public service is anofficer or a private citizen"'Ibid. at 795.KENTUCKY LAW JOURNALrequirements of see. 3 of our constitution. However, it is sub-mitted that such a grant does not come within the limits of sec.246. In effect the majority properly said that public servicesaccruing from official services are in reality nothing more thanofficial services, for which the judges were paid the maximumsalary while on the bench.The minority of the court attempt to validate the statuteby relying on Kentucky cases upholding pensions for fire-men and policemen. 5 In neither of these cases did the totalcompensation exceed $5,000. Therefore an interpretation ofsee. 246 was not necessary as it is in the principal case. Like-wise, the Confederate pension case is not analagous to, or author-ity for, the dissenting view, since no official services wererendered by those to receive the pensions.6JOHN H. CLARKE, JR.IMiller v Price, 282 Ky. 611, 139 S. W (2d) 450 (1940),(Validity of pension for firemen assumed), Board of Trustees v.Schupp, 223 Ky. 269, 3 S. W (2d) 606 (1928), (Validity of pensionfor policemen assumed).* Bosworth v. Harp, 154 Ky. 559, 157 S. W 1084 (1913).

Pensions for Members of the Court of Appeals

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Pensions for Members of the Court of Appeals

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