I am unable to concur in the opinion of the majority in this case. The question presented is whether or not officers within the protection of sections 161 and 235 of the State Constitution, and in office at the time of the passage of our State Income Tax Act (Acts 1936, 3d Ex. Sess., c. 7), are subject, with respect to the salaries they were receiving by law at the time the act was passed, to this income tax. The majority opinion holds that to subject them to the tax with respect to such salary does not work a change of their compensation within the meaning of the aforesaid constitutional provisions set out in full in that opinion. *Page 420

I concede that in so far as officers elected or appointed hereafter are concerned, they will be subject to the tax. Nor does anything in the case of Miles v. Graham, 268 U.S. 501,45 S. Ct. 601, 69 L. Ed. 1067, militate to the contrary. In that case the Supreme Court had before it the question whether a Judge of the Court of Claims, appointed after the effective date of the federal income tax law, and whose salary was fixed by a statute passed subsequent to the passage of the income tax act, was liable with respect to his salary as such judge to the federal income tax. The court held as a matter of statutory construction that the act fixing the salary of the judge meant the salary to be exempt from the tax. The court did not decide the question of the power of Congress to subject that salary, nor salaries of any federal judges appointed after the effective date of the federal income tax law to the tax imposed by that act. That this is so may be demonstrated by the opinion in the case of Williams v. U.S., 289 U.S. 553, 53 S. Ct. 751,77 L. Ed. 1372, wherein it was held that a Judge of the Court of Claims sits in a legislative court, and not a constitutional court, and his salary is not protected against change by the Federal Constitution. So we see Judge Graham's salary could have been made subject to the income tax had Congress seen fit to do so. The court in this case simply held that Congress had not seen fit to do so.

It has been settled time and again that under our State Constitution a change in the compensation of constitutional officers may be effective as to those who are elected after such change is made, although not effective as to those in office at the time such change is made. See Adams v. Slavin,225 Ky. 135, 7 S.W.2d 836; Greenup County v. Spears,259 Ky. 114, 81 S.W.2d 905. It is conceded by the appellants that the federal government cannot constitutionally lay an income tax on the appellee herein with respect to the salary he receives from the state. Equally is it true that the State of Kentucky cannot constitutionally lay an income tax on federal office holders with respect to the salary they receive for their services as such from the United States Government. My is this so? It is because, as the courts all say, such a tax, although imposed on the individual, has a very direct relationship to the salary he receives, and in effect burdens the same. *Page 421 This being true, the officer receiving the salary is exempt from so much of the tax as is levied with respect to such salary because neither the state nor the federal government can constitutionally burden the operations of the other's government. New York ex rel. Cohn v. Graves, 57 St. Ct. 466, 81 L.Ed. ___, 108 A.L.R. 721. The essence of such holding is the "direct burden" proposition. And so those cases headed by Evans v. Gore, 253 U.S. 245, 40 S. Ct. 550, 64 L. Ed. 887, 11 A.L.R. 519, and among which are Long v. Watts, 183 N.C. 99,110 S.E. 765, 22 A.L.R. 277, and Green v. Dupont (Del. Super.) 180 A. 437, in the latter of which, as well as in the annotation to be found in 82 A.L.R. 989, may be found a list of them, are all based on this "direct burden" theory, and being so based, hold that to subject the office holder protected by constitutional provisions such as here involved to an income tax with respect to his salary fixed before the tax law was enacted, would be to work a change in that compensation not allowed by such constitutional provisions. Such reasoning is to my mind sound and conclusive.

The argument made in the majority opinion following a like argument in the dissenting opinion of Judge Holmes in the Evans Case, supra, to the effect that there is no difference between the effect of an income tax on salary, and the effect on such salary of the taxes a judge has to pay out of his salary on a house he owns, or on a gallon of gasoline he may buy wherewith to run his automobile, or an excise tax that he may pay on a ticket to get into a moving picture show, disregards what Justice Holmes also says in his book on the Common Law, page 312:

"The distinctions of the law are founded on experience, not in logic. It therefore does not make the dealings of men dependent upon a mathematical accuracy."

Lord MacCauley, in his Essay on History, states the same proposition in these words:

"All questions in morals and politics are questions of comparison and degree."

The effect of an income tax on salary is so markedly different from the exceedingly indirect effect of a tax on judge's home or a tax on a moving picture ticket *Page 422 on that salary, that argument to sustain the proposition is superfluous. Such an indirect burden does not constitutionally affect the salary. But a direct burden, such as an income tax, must in the light of the authorities be conceded, in my judgment, to come within the constitutional prohibitions against a change in compensation.

The Wisconsin case, cited in the majority opinion, went off entirely upon interpretation put by the Supreme Court of Wisconsin on the Income Tax Amendment to the State Constitution. The other cases cited in support of the decision here made, follow the reasoning of the dissenting judges in Evans v. Gore. A reading of the annotation in 82 A.L.R. 989, wherein the cases on this matter are gathered, will disclose that the weight of authority is contrary to the majority opinion herein delivered. I believe the weight of authority is on the side of better reasoning.

For the reasons herein set out, I am compelled to dissent from the decision of the majority, and believe that the opinion of the lower court should be affirmed.

I am authorized to state that Special Justices Prewitt and McMurry concur in this dissent.