Gatewood v. Matthews

403 S.W.2d 716, 1966 Ky. LEXIS 348

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 31, 1966
• Status: Published

Opinions

WILLIAMS, Judge.

W. C. Gatewood, individually and for all residents, voters and' taxpayers of the Commonwealth of Kentucky, brought this suit in the Franklin Circuit Court demanding a declaration of rights and seeking to enjoin the Attorney General and the Secretary of State from certifying the question of adoption of a proposed Constitution. The Franklin Circuit Court delivered a well reasoned opinion defining the rights of the appellant and those he represents, and declined to issue an injunction. This appeal results.

By amendment to KRS 7.170, the 1964 General Assembly established the “Constitution Revision Assembly” to carry on a program of study, review, examination and exposition of the Constitution of Kentucky, to propose and publish drafts, amendments, or revisions thereof, and to report the result of its work to the General Assembly. Pursuant to that mandate, a Constitution Revision Assembly was appointed by majority vote of the Governor, Lieutenant Governor, Speaker of the House, and Chief Justice of the Court of Appeals. The Assembly was composed of all former living Governors, one delegate from each of the 38 Senatorial Districts, and five delegates from the State-at-large. The Assembly conducted detailed studies on each section of the Constitution. At the conclusion of its labors it recommended to the 1966 General Assembly a draft of a reformed Constitution.

In 1966, the General Assembly passed Senate Bill 161, which submits to the voters at the general election on November 8, 1966, adoption or rejection of the Constitution prepared by the Constitution Revision Assembly. S.B. 161 requires publication of the proposed Constitution in at least two newspapers of general circulation published in Kentucky, once not less than ninety days before and once not less than seven days before the date of the election. It further directs the Attorney General to cause “the proposed Constitution and schedule or summaries thereof to be further publicized by other communication media in order that the voters of the Commonwealth may have a reasonable opportunity to become informed on the issue to be decided by them.”

The primary question to be considered is whether by the terms of Sections 256 and 258 of the Constitution the people have imposed upon themselves exclusive modes of amending or of revising their Constitution.

Section 258 authorizes the General Assembly to enact a law at two successive sessions providing for taking the sense of the people as tc the necessity and expediency of calling a convention for the purpose of revising the Constitution. Section 256 provides for the proposal of amendments to the Constitution by the General Assembly.

It is the appellant’s contention that those sections do represent exclusive modes of reforming the Constitution. He points out that in each of the former constitutions of this Commonwealth there has been a section which established procedure for revision. (Article XI, 1792 Const.; Article IX, 1799 Const.; Article XII, 1850 Const.; and sections 256-263, 1891 Const.) It is his argument that whatever power the Constitution has conferred upon the legislature in reference to proposing amendments or other modes of revision must be strictly pursued.

This is the first time this Court has had before it the question of whether sections 256 and 258 provide exclusive modes for changing the Constitution. In several cases we have considered efforts to amend or revise the Constitution in compliance with one of those sections. In each case this Court has held that such effort must follow precisely the procedure established in that particular section. Harrod v. Hatcher, 281 Ky. 712, 137 S.W.2d 405 (1940); Arnett v. Sullivan, 279 Ky. 720, 132 S.W.2d 76 (1939); McCreary v. Speer, 156 Ky. 783, 162 S.W. 99 (1914). In no case have we held that sections 256 and 258 are the exclusive modes of changing the constitution.

Here the proposed procedure does not follow the dictates of section 256 or 258 of the Constitution. In fact, there is no section specifically setting out the mode of revision prescribed in S.B. 161. If there be authority for such action it must be derived from the sovereign power of the people as delineated in section 4 of the Bill of Rights:

“All power is inherent in the people, and. all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.”

These words were supposedly penned by Thomas Jefferson as section 2, Article XII, of the 1792 Constitution. In any event they express the historical experience of the people in securing a government in which they have freedom of action not permitted by “the Divine Right of Kings.” They simply and forcefully state the doctrine of popular sovereignty. The doctrine was recognized in Miller v. Johnson, 92 Ky. 589, 18 S.W. 522, 15 L.R.A. 524 (1892), where it was said:

“It is conceded by all that the people are the source of all governmental power; and, as the stream cannot rise above its source, so there is no power above them. Sovereignty resides with them, and they are the supreme law-making power. Indeed, it has been declared in each of the several constitutions of this state that ‘all power is inherent in the people;’ and this is true, from the very nature of our government. * * * ”

The Bill of Rights has always been recognized as the supreme law of the Commonwealth. That fact is emphasized by section 26 of the Constitution, which is carried over from the past constitutions:

“To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.”

It is inconceivable to assume the people might be divested of the power to reform their government by the procedures established in sections 256 and 258 of the Constitution. Nowhere is that power limited either expressly or by necessary implication. In fact, one portion of a resolu. tion offered at the 1890 Convention is as follows:

“Resolved, That the Constitution shall not be altered, amended or changed in any way except as provided in this article.”

Vol. I, Debates, Constitutional Conventions, 1890, p. 144.

It was not adopted. The power of the people to change the Constitution is plenary, and the existence of one mode for exercising that power does not preclude all others.

History shows there were popular ratifications of both the 1850 and 1891 Constitutions despite the lack of provision therefor. Miller v. Johnson, supra. The legislative limitation that a constitution adopted by a convention should not become effective until ratified by a vote of the people was upheld in Gaines v. O’Connell, 305 Ky. 397, 204 S.W.2d 425 (1947), where we said:

“The challenge of this limitation upon the Convention, if one should be held, is that the constitutional provisions with respect to this mode of revision deal with every phase of the calling, organization and duties of a convention, and contain no authority for the General Assembly to bind the members to submit their work to a vote of the people. Hence, it is argued, the framers of the present constitution did not intend to confer upon the Legislature the power to restrict or limit the action of the convention.”

“Since the constitution of Kentucky * * * contains no inhibition or restriction upon the General Assembly in this matter of initiating a call for a Constitutional Convention, it was at liberty to exercise its plenary power in attaching the condition to the submission of the question of calling a convention. When they vote upon it, they will do so with the assurance that the result of the deliberations of the Convention, if called, will be submitted to them for ratification or rejection. By this course, the people keep a firm hold upon their liberties and may obtain a charter of government wanted by the majority.” * * *

And in Chenault v. Carter, Ky., 332 S.W.2d 623 (1960), we held that the legislature was not prohibited from limiting a convention to consideration of only twelve subjects.

In a landmark opinion the Supreme Court of Rhode Island reversed a former opinion which applied the rule “expressio unius est exclusio alterius,” in holding the amendatory language of their constitution was the exclusive mode of revision. In Re Opinion To The Governor, 55 R.I. 56, 178 A. 433 (1935). Their constitution provided that the people had a right “to make and alter their constitutions of government” by any “explicit and authentic act of the whole people.” That Court approved an act of the General Assembly calling for a convention, although no such procedure was provided in the constitution. The Court said:

“The power granted to the General Assembly by article 13 can naturally and reasonably be viewed as an additional rather than an exclusive power, and the recognized rule is that if two constructions of a constitutional provision are reasonably possible, one of which would diminish or restrict a fundamental right of the people and the other of which would not do so, the latter must be adopted. * * * ”

The people of Georgia voted approval of a constitution submitted by their General Assembly in 1945. The Bill of Rights of the Constitution of Georgia, Article I, section 5, provided:

“The people of this State shall have the inherent, sole and exclusive right to regulating their internal government and the police thereof, and of altering and abolishing their Constitution whenever it may be necessary to their safety and happiness.”

The Supreme Court of Georgia, in Wheeler v. Board of Trustees, etc., 200 Ga. 323, 37 S.E.2d 322 (1946), held that the sections of the Georgia Constitution providing different modes of changing the Constitution did not limit the sovereign power of the people to approve the Constitution submitted to them by the General Assembly, and it further held that it is the vote of the people that gives life to the Constitution. The language used by that Court in upholding the doctrine reposing sovereign power in the people, is as follows:

“We now consider whether the instrument is valid as a new constitution. The constitution of 1877, article 13, section 1, paragraph 2 (Code, § 2-8602), provides as follows: ‘No Convention of the people shall be called by the General Assembly to revise, amend or change this constitution, unless by the concurrence of two-thirds of all the members of each house of the General Assembly. The representation in said convention shall be based on population as near as practicable.’ It is contended that this provision means that a completely revised or new constitution can be formulated by a convention, and in no other manner. We are now dealing with a written constitution — the original law by which our system of government was set up. It creates the government. By its provisions the three branches of our government— legislative, executive, and judicial — are created. The three branches of government must look to it for all their power and authority. Not so with the sovereign power, the people. Under our system of government all power and authority is vested in the sovereign people, subject only to such limitations as they have expressly imposed upon themselves by this organic law, the constitution. With this as the basis from which we reason, is it true that this provision of the constitution of 1877 limits the power of the sovereign people to a convention as the only means by which they can have a completely revised or new constitution ? The language does not say so. The section purports to do nothing more than to place limitations upon the legislative branch of government as to the manner in which a convention can be called by this branch of the government. If we should say that the sovereign people themselves can adopt a new constitution by the convention method only, we would by implication be writing into this clause of the constitution a limitation on the sovereign power of the people. We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. This would be an unauthorized exercise of sovereign power by the court. * * * ”

In the ultimate sense, the legislature does nothing unless and until the people ratify and choose to give the revised constitution life by their own direct action. In this respect the legislature merely performs the role of messenger or conduit. The process is no more than corollary to the right of petition and address reserved to the people in section 1 of the Constitution.

We cannot accept the proposition that section 4 has been preserved throughout all these years as a mere relic, a museum piece without meaning or substance as a viable principle of free government. To the contrary, it seems clear to the majority of this Court that in each of our four constitutions the Bill of Rights has been purposefully set aside as supreme and inviolate because it represents those things that are basic and eternal, all other matters being transitory and subject to change. It follows that nothing else in the Constitution can be construed as a limitation, restriction or modification of any of these fundamental rights.

Each of the four constitutions of this state has provided a method or methods of amendment and revision. Significantly, in none of them have such specified procedures been declared exclusive. The reason is obvious. The right of each generation to choose for itself is inalienable, as it was recognized and said from the very beginning. Being thus inalienable, that right cannot be cut down or subjected to conditions any more than it could be completely denied by one generation to another. So long as the people have due and proper notice and opportunity to acquaint themselves with any revision, and make their choice directly by a free and popular election, their will is supreme, and it is to be done.

As a practical matter, the intent of the framers of the Constitution is more than satisfied by this proposed action. Section 258 directs that two sessions of the legislature provide for a vote by the people on calling a convention. Two sessions were apparently thought necessary adequately to inform the public of the impending election. Further, the fight to vote for delegates assured the people of a voice through their elected representatives. Here the procedure goes even further. News and information are disseminated faster and more efficiently today than was anticipated when the Constitution was drafted. But even more significant is the fact the people need not rely on a representative to speak for them. They participate directly and individually. Each person may cast his vote for or against the adoption of the proposed constitution knowing full well what it says. Another thing of significance is that until he casts his vote the document is as nothing. Only a majority vote of the people can give it force and effect.

The question to be submitted to the voters is set out in S.B. 161, as follows!

“Are you in favor of reforming the Constitution of the Commonwealth to cause same to be in the same form and language as finally submitted to the Governor and the General Assembly of Kentucky by the Constitution Revision Assembly and set forth in Senate Bill No. 161 enacted at the Regular Session of the General Assembly of Kentucky held in the year 1966 and as heretofore scheduled and published as required by law?”

Suffice it to say the question conforms to the requirement of the statute, KRS 118.-170(3), and affords an intelligible opportunity to the voters to express a clearly defined preference. Turner v. Board of Education of Scottsville Independent School Dist., Ky., 266 S.W.2d 321 (1954); Armstrong v. Fiscal Court of Carter County, 162 Ky. 564, 172 S.W. 972 (1915); Stone v. Gregory, 110 Ky. 492, 61 S.W. 1002 (1901).

S.B. 161 provides that the complete, text of the reformed Constitution shall be published in at least two newspapers of general circulation in the Commonwealth; once not less than ninety days before and again not less than seven days before the election. In addition, the Attorney General is directed to cause the proposed Constitution and schedule or summaries thereof to be publicized by other communication media. There is nothing vague or uncertain about the mandatory publication of the proposed Constitution, and the Attorney General’s honorable and full compliance with the legislative direction must be expected and is to be presumed. To anticipate otherwise would constitute an unwarranted excursion outside the scope of judicial authority both as an intrusion upon the executive function and an invasion of that shadowy area where no justiciable controversy resides. Combs v. Matthews, Ky., 364 S.W.2d 647 (1963).

The action taken by the legislature does not violate the form or the spirit of the Constitution of Kentucky or the Constitution of the United States. When the people vote on the proposed Constitution it will be an expression of the inalienable right of the ultimate sovereign to reform the government. That right is guaranteed by Section 4 of the Bill of Rights, and is not preempted by the inclusion in the Constitution of alternate modes of revision.

The judgment is affirmed.

HILL, J., dissented.