The majority opinion, insofar as it upholds the validity of Section 2 and Section 3 of the so-called "Judicial Expense Act," is contrary to the great weight of authority and should not be allowed to become a part of the organic law of Kentucky, no matter how urgent the need for revision of some of its supposedly outmoded limitations and restrictions upon the salaries of public officials. The judgment in favor of the Judges and Commissioners of the Court of Appeals is predicated, and must stand or fall, upon the provisions of Section 3 of the Act. Section 2, under the admitted facts, has no application whatsoever to the present situation of the members of the court and, in fact, has only an indirect bearing upon the issues in suit.

The pertinent provisions of Section 3 read:

"In the event any Judge or Commissioner of the Court of Appeals, in order to facilitate the work of the Court and toavoid the expense, delay and inconvenience of frequent travel to and from the place of his legal residence to the State Capital, shall establish a temporary place of abode in the State Capital, or in a place convenient thereto, he shall be paid out of the State Treasury, each month, the sum of $150.00, which is hereby declared to be the reasonable equivalent of the travel, food and lodging expenses which said Judge would incur, in the performance of his official duties, if compelled to travel to and from the place of his legal residence" (Emphasis mine.)

It is apparent that the allowances so provided contravene the mandatory inhibitions of Section 235 of the Constitution of Kentucky, that: "The salaries of public officers shall not be changed during the terms for which they were elected; * * *." And, since each of the members was and is now drawing the maximum salary of $5,000 per annum, the additional allowances violate the limitations imposed by Section 246 of the Constitution, that: "No public officer, except the Governor, shall receive *Page 621 more than five thousand dollars per annum, as compensation for official services, * * *."

1. The lump sum allowance made by Section Three, considered in light of the present record and its own terms, is not to cover an expense actually incurred. Rather, it is to cover expenses that might, or could have been, tho confessedlywere not, incurred. It is in lieu of an artificial or ostensible expenditure, not an expense in actuality. It was never contemplated, nor intended, by either the framers of the Constitution, or by the people of Kentucky, that any such pseudo expense should be permitted or sanctioned or allowed to operate as an effectual negation of the carefully chosen — albeit plain, simple and understandable — limitations imposed by the above sections of the Constitution upon the powers of the legislative branch of the government.

It is most assuredly true, as pointed out in the majority opinion and frequently held by the courts, that the sovereignty of the people inheres in the legislature and it does not have to look to the Constitution for grant of its authority. But, those very facts serve to emphasize the importance of requiring the most strict and rigid observance by the legislature of such express limitations as the people saw fit to impose upon that body in the exercise of its otherwise unlimited powers. While it may not be required to look to the Constitution for its powers, there is a strict injunction in the Constitution itself against legislative abuse of the limitations upon those powers. Section 26 of the Constitution declares that all laws "contrary to this Constitution, shall be void." If the provisions of Sections Two and Three are contrary to the Constitution — no matter what the legislature may say about them — they are void. "The name by which the additional allowance may be called cannot affect what it really is." Talbott v. Thomas, 286 Ky. 786, 151 S.W.2d 1, 4. If void, they are a nullity and cannot sustain the allowances attempted to be made. And, who shall say whether or not those provisions are contrary to the Constitution and, therefore, void? Certainly, not the legislature, thereby making it the judge of the legality of its own actions. The function and duty of determining the validity and meaning of legislative acts rest exclusively with the courts. That is an elementary proposition. It finds full expression *Page 622 in these excerpts taken from the opinion in Jefferson County v. Jefferson County Fiscal Court, 273 Ky. 674, 117 S.W.2d 918,919:

"It seems hardly necessary to say that the reasonableness, wisdom and propriety of an Act of the legislature is not for the courts to determine. That is a right vested in that body of magistracy, and there is neither power nor desire to usurp that right. However, unlike those governments possessing no written constitution, the power of the legislative departments of our national and state governments is not omnipotent. The nature and form of our government imposes limits upon it. The constitution itself is in every real sense the supreme law, the makers thereof being the people themselves in whom, under our political system, sovereignty primarily resides. Though the legislature of a state may exercise all governmental power not denied it and may enact any law not expressly forbidden by the state or the federal constitution, where such authority has been withheld the people have declared that any act transcending that restriction or opposing that supreme law shall be void. It long ago passed from the realm of argument that the judiciary not only has the authority but is charged with the duty of determining whether a legislative act does conflict with the constitution, and if it does, to declare it ineffective.

* * * * * *

"And though, as has been frequently said, a constitution is not static, if its adaption to a given act of the legislature is destructive of its specific principles, or is clearly opposed to its particular requirements or restrictions, such accommodation cannot be recognized."

Nor am I unmindful of the many presumptions and rules of construction suggested in the majority opinion and observed by the courts in favor of upholding the validity of acts of the legislature, unless such acts are clearly in conflict with the constitution. On the other hand, the courts should always stand as the bulwark of the people against any infringement upon their rights, from whatsoever source such attempted infringement may come. These rights and powers of the court are inviolate and should never be surrendered under any pretext, no matter how seemingly urgent it may be. Were *Page 623 it otherwise, the courts would tend to lose their efficacy, become weakened, and finally impotent to perform their proper functions as an indispensable branch of our government.

So, this statute, like any other statute, must be read and considered dispassionately with the view of ascertaining its true intent and objective. The intent and objective of the present act plainly appear from its terms to be an effort on the part of the legislature to surmount all constitutional obstacles by doing indirectly what is forbidden to be done directly and make provision for salary increases to the members of the court. The very reasons expressed in the act "in order to facilitate the work of the court, and to avoid the expense, delay and inconvenience of frequent travel" — as well as the recitals in Section 7 of the Act that, "whereas, present economic conditions are such as to impose un unconscionable burden upon the Judiciary of the Commonwealth, and to create a threat to the expeditious and impartial administration of justice, an emergency is declared to exist" — stamp the Act as anything else than a plan of reimbursement of official expenses. Since each of the Judges and Commissioners, as disclosed by the record, has already established a temporary place of abode in the State Capital, or in a place convenient thereto, and had done so prior to passage of the Act, it seems obvious from the very face of the Act that it was not designed to cover a new situation so as to avoid the expense, delay and inconvenience of frequent travel, but its ultimate purpose was to provide a monthly allowance to the Judges and Commissioners, which allowance is tantamount to an increase in salary. There seems little escape from this conclusion, for the simple reason that the grounds recited in the Act for its passage were and are known to be nonexistent.

The courts are not concluded by mere legislative declarations contrary to the true character of their Act. Addressing this proposition, the court, in an enlightening opinion in the case of Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815, 819, 60 A.L.R. 408, used this language:

"The constitutionality of an act depends on its real character, and on the end designed to be accomplished, and the courts are not concluded by mere declarations, *Page 624 for in whatever language a statute may be framed, its purpose and constitutional validity must be determined by its natural and reasonable effect."

In James, Auditor, v. Duffy, 140 Ky. 604, 131 S.W. 489, 490, 140 Am. St. Rep. 404, the court, in exercising its duties in striking down an unconstitutional act, employed this language:

"If the compensation is a salary, the salary must remain the same throughout that official's term, whether or not the scope of his official duties has been increased or lessened. If the compensation be fees, then the same scale of fees must prevail for the same services, and if new duties are imposed with fees attached, the incumbent when the change is made cannot charge for the new duties. The section of the Constitution is inexorable. It admits of no exceptions. It affords no opportunity for evasion by the Legislature or other body. Its purpose cannot be defeated by indirection. It is a complete barrier to change of compensation, whether the salary, scale of fees, or both. It operates upon the office and the official — not upon his duties."

This language was quoted with approval in Green, v. Cohen,181 Ky. 108, 203 S.W. 1077, 1078, wherein the court further stated:

"Undoubtedly, the provision in the Constitution against the changing of the salary of public officers after their election is mandatory as well as wise, and under no circumstances should the courts suffer or permit any consideration to induce them either to minimize or abrogate the fundamental law of the commonwealth."

Many other instances may be cited where the Court of Appeals of Kentucky, in the exercise of its proper judicial prerogatives, struck down abortive attempts of the legislature to violate the Constitution, among which may be mentioned the following: Estill County v. Noland, 301 Ky. 204,191 S.W.2d 223; Rhoads v. Miller, Commissioner of Finance, 298 Ky. 346,182 S.W.2d 248, Sanders v. Talbott, Auditor, 255 Ky. 50,72 S.W.2d 758; and Frizzell v. Holmes, 131 Ky. 373,115 S.W. 246; and the authorities cited in the opinions in those cases.

(2) Furthermore, the declared expenses (in both *Page 625 Sections 2 and 3 of the Act) include in no small part "food and lodging expenses" while the Judge or Commissioner is at the Capital in the performance of his official duties.

There appears to be no dispute between the parties to this cause; in fact, it is recognized in the vast majority of opinions, that the allowance of personal expenses, as distinguished from official expenses, would amount to a violation of the Constitution prohibiting a change in salary. The general rule on the subject is thus summed up in 43 Am.Jur., page 154, Section 368:

"Public officers are very often allowed statutory compensation for expenses incurred by them in the performance of their official duties. Such allowances for expenses are something different from salary, emoluments, or perquisites, and prohibitions against changing these do not ordinarily apply to an allowance for expenses. Where, by constitutional provision, the compensation of a designated officer or class of officers for the performance of official duties is fixed, official expenses may be allowed the officer, but not personalexpenses, or expenses unnecessarily incurred."

Many authorities sustaining this well recognized rule might be cited, but since there is no dispute about it, it would be idle to do so here.

What, then, are personal expenses — and what are official expenses?

The answer is to be found in the authorities. The array of well reasoned decisions on the subject are most convincing that the "board and lodging expenses" of officials, while at the Capital, whose duties require them to be there, (as Section 111 of the Constitution requires of the Judges of the Court of Appeals) are personal, and not official, expenses within the meaning of the rule. The majority opinion in the instant case holds to a contrary view.

The question was presented in the late case of Ferris v. Aten, Auditor General, et al., 318 Mich. 528, 28 N.W.2d 899,900 (decided October 13, 1947). The court, in that case, condemned as unconstitutional a statute providing that each member of the legislature "while absent from his usual place of residence while in attendance *Page 626 at the regular or extra sessions of the legislature and while in the discharge of his official duties in the service of the state, be reimbursed for actual xpenses incurred for room andmeals in the same amounts as are paid to the state officers, for like expenses while absent on business of the state, not to exceed $7.50 per diem."

The court, in that case, concluded its opinion in the following language:

"(1) By the great weight of authority there is a distinction between legislative or governmental and personal expenses. Those expenses incurred in the performance of official duties as in the Ware case^* are allowable, while purely personal expenses are considered as perquisites of office, and being such are forbidden by constitutional provision.

"(2) In State ex rel. v. Turner, 117 Kan. 755, 233, P. 510, 511, it is said:

" 'All legislative expenses may be properly paid. The expenses that may be paid are not those that are incurred by a member of the Legislature because he is at the capital city; they are those that are incurred by him in the performance of his duties. They are legislative expenses not personal expenses. The distinction between expenses that are legislative and those that are personal is that legislative expenses are those that are necessary to enable the Legislature to properly perform its functions, while those that are personal are those that must be incurred by a member of the Legislature in order to be present at the place of meeting — expenses for his personal comfort and convenience, which have nothing to do with the performance of his duty as a member of the Legislature. Personal expenses are those incurred for rooms, meals, laundry, communications with their homes, and other things of like character.'

"Other jurisdictions in harmony with the above *Page 627 statement are recorded in the following decisions: Dixon v. Shaw, 122 Okl. 211, 253 P. 500, 50 A.L.R. 1232; Gallerno v. Long, 214 Iowa 805, 243 N.W. 719; State v. Clausen, 142 Wash. 450,253 P. 805; Ashton v. Ferguson, 164 Ark. 254,261 S.W. 624; Jones v. Hoss, 132 Or. 175, 285 P. 205; Peay v. Graham,162 Tenn. 153, 35 S.W.2d 568.

"(3) The act in question provides that a member of the legislature while in the discharge of his official duties at a session of the legislature shall be reimbursed for actual expenses incurred for room and meals, not to exceed $7.50 per diem. Such an allowance for board and room, if permitted by the act here under consideration, would thereby become a perquisite of the office and as such is prohibited by the Constitution. It, therefore, follows that the act in question is unconstitutional for the reasons above stated."

The majority opinion embraces and follows the contrary doctrine laid down in the two South Dakota cases (McCoy v. Handlin and State v. Reeves) which is diametrically opposed to that announced in most reported decisions, from other states, on the subject. The opinions in the South Dakota cases have been expressly repudiated in some of the decisions from other states and tacitly, if not actually so, by the Court of Appeals of Kentucky in Rhoads v. Miller, 298 Ky. 346, 182 S.W.2d 248. The dissenting opinion in State v. Reeves, one of the South Dakota cases, is most persuasive and is more consonant with sound reasoning than the majority opinion in that case.

The doctrine announced by the court in the case of Ferris v. Aten, supra, and in the various cases therein cited and reviewed is fundamentally sound and should be adopted and followed in Kentucky. The South Dakota cases should be repudiated as laying down a dangerous innovation, one that should not be allowed to become a part of the fundamental laws of this state through any process of judicial interpretation.

For the foregoing, among many other reasons that might be advanced, Section 2 and Section 3 of the Act are in direct conflict with the Constitution (Sections 235 and 246) and should be declared invalid. *Page 628

3. Thus far, the Judges and Commissioners have been treated as being in the same attitude. It was argued by proponents of the Act, however, to the effect that the Commissioners are not "officials," but mere "employees" and are not affected by the constitutional limitations as to salary. Whether or not this contention is sound becomes immaterial to the present inquiry for the simple reason that if these sections violate the Constitution and should be held invalid as to the Judges, they must fail the Commissioners also. This is so because the allowances in favor of the Commissioners "are so essentially and inseparably connected with and dependent upon" those in favor of the Judges, for whose primary benefit the Act was passed, that it is apparent the legislature would not have enacted in favor of the Commissioners, without the Judges receiving at least as much compensation. Section 446.090, KRS.

4. The allowances in favor of Circuit Judges made by Section One of the Act were therein declared "to be the equivalent of the minimum sum that each Judge Will expend each month, in the performance of his official duties, for postage, telephoneservices, supplies, stationery, stenographic assistance, lawclerk hire, and books and periodicals," (italics mine). Every item so specified is one to be used only in connection with the performance of official duties, as distinguished from apersonal expenditure, by the Circuit Judges. Such allowance, therefore, clearly partakes of the nature of official expenses, and in no wise clashes with the constitutional inhibitions against change or increase in salary above the prescribed limit. The majority opinion appears to be sound, therefore, in so holding.

5. There may be, and undoubtedly are, strong and impelling reasons for increasing the salaries of members of the Court to the point where they will be commensurate with present day costs of living. It appears to be generally conceded that the work of the court has kept abreast of the growth and development of the state and that the cost of living has greatly increased since adoption of the Constitution. No one can gainsay that members of the court should receive compensation for their important work sufficient to maintain them in an atmosphere of dignity and respect incident to their high office. Arguments of this nature, however, are more *Page 629 properly addressed to the advisability of amending the Constitution so as to permit these things to be done. Until it is amended, its present provisions must be regarded as the supreme law of the state and enforced accordingly, no matter what changes have come about in the amount of services rendered or in living costs.

Entertaining these views, I am constrained to dissent from the majority opinion to the extent that it sustains the validity of Section 2 and Section 3 of the Act.

^* The Ware case, alluded to in the above opinion, (being Ware v. City of Battle Creek, 201 Mich. 468, 167 N.W. 891, L.R.A. 1918E, 673), was cited and relied on in the brief filed in this case on behalf of Members of the Court. That case involved an allowance of actual office expenses for a city attorney and the court properly held such expenses to be official expenses.