Hatcher, SEC. of State v. Meredith, Atty. Gen.

173 S.W.2d 665, 295 Ky. 194, 1943 Ky. LEXIS 191

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 15, 1943
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Reversing.

The General Assembly, at its regular 1942 session, passed an act, which is Chapter 171 of the Acts of 1942, submitting to the electorate a proposed amendment to the Constitution of Kentucky, to repeal Section 246 thereof and to substitute provisions which materially alter that section. On February 3, 1943, Honorable Hubert Meredith, as Attorney General, filed this action wherein said Act is assailed as being in conflict with several sections or the Constitution, and seeking a declaration of rights. The court was first called upon to determine whether the Act in question was constitutional, and, if the question of the constitutionality was determined adversely to the contentions of appellee (plaintiff below), then he prayed that the court adjudge whether the question to be submitted to the voters was to be stated on the ballot as set forth in the Act, or in the manner provided by Kentucky Revised Statutes, Section 118.430, which directs that the Attorney General shall formulate the question to be stated on the ballot, in a manner calculated to inform the voters of the substance of the proposed amendment in order that they may understandingly decide whether they favor or oppose the suggested change.

A general demurrer was filed to the petition, and the trial court overruled the demurrer. Appellants (defendants below) stood upon their demurrer and declined to plead further. Thus the parties pitched the case upon the determination of the legal questions aforesaid, and apparently there is no issue as to facts. Judgment was entered declaring the said Act unconstitutional and void, and ordering appellants not to advertise the amendment or cause it to be placed upon the ballot for the vote of the people, and from said judgment appellants have prosecuted this appeal.

We are first confronted with the issue as to whether the Act which seeks to submit the proposed amendment is offensive to Section 51 of the Constitution. The title to this act is as follows: "An Act to amend Section 246 of the Constitution of the Commonwealth of Kentucky relating to compensation for official services," and the position taken by appellee is that it is too limited in its scope and is not sufficiently broad to give notice of the full import of the provisions contained in the body of the Act. The right to propose a constitutional amendment has been granted to the Legislature by the framers of the Constitution, but the exercise of this right is not legislative in the ordinary sense, and indeed the Legislature is denied the privilege of amending the Constitution. That is a matter which can be determined only by the direct vote of the people as a whole. While the authority of the Legislature to suggest amendments to the Constitution is plenary, yet it differs widely from the function of the General Assembly to enact laws. The power to submit amendments to the vote of the electorate is special in its nature and may be exercised either by a bill, order, resolution or vote, as is provided by Section 256 of the Constitution, and, so far as the title is concerned, the passage of the bill would have been just as valid without any title at all, and an order or resolution would have served the same purpose. So far as we are advised this particular question has not previously been before the court of last resort in this State, but the decided weight of outside authority supports the views which we have herein expressed the cases of Cooney v. Foote, 142 Ga. 647, 83 S.E. 537, Ann. Cas. 1916B, 1001, and Johnson v. Craft, 205 Ala. 386, 87 So. 375, are typical of the numerous decisions. Apart from this, our Kentucky Court of Appeals has consistently held that if the title to an act sets out the number of the section to be amended, it sufficiently accords with Section 51 of the Constitution which requires the purposes of the act to be expressed in the title. Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S.W. 1017; Morrison v. Com., 197 Ky. 107, 246 S.W. 128; Guess v. Linton, 236 Ky. 87, 32 S.W.2d 718; Frost v. Johnston, 262 Ky. 592,90 S.W.2d 1045; and Muffett v. Black, 263 Ky. 199, 92 S.W.2d 74.

The two outstanding changes which would result from the amendment of Section 246 would be (1) to remove the present salary limitation as to public officials and permit the General Assembly to regulate the compensation of such officials and employees, and (2) to provide that such regulation shall affect the compensation of those ill office, or elected to office, at the time of the adoption of the amendment, but thereafter the compensation of such officials shall not be increased or decreased during the terms for which they are elected or appointed. Sections 235 and 161 of the Constitution provide that the compensation of public officials shall not be changed during the terms for which they were elected or appointed. Complaint is made that two amendments are coupled together in one submission, and that they relate to different subjects in violation of Sections 256 and 51 of the Constitution each of' which sets forth a limitation that no amendment shall relate to more than one subject. If this contention is sound, the proposal would be in violation of the Constitution.

Thus our inquiry narrows to the question of whether the whole matter found in the amendment is so related to the general subject of the amendment as to have a natural connection with it, or is so foreign to it as to have no bearing upon the general subject matter and the object sought to be accomplished. Constitutional limitations such as the one now under consideration are intended to prevent the submission, as one amendment, of two or more propositions which are so widely separated in meaning and purpose as to have no logical interdependence. A single question on such a double proposal cannot be truthfully answered, "Yes" or "No," by a voter who favors one proposal, while opposing the other. He cannot vote at all without supporting what he desires to oppose or opposing what he desires to support. In this manner, the fate of one proposal might turn, not upon its own merits, but upon the popularity or unpopularity of the unrelated proposal with which it was linked. Such a proposal would relate to more than one subject and would violate Section 256 of the Constitution. If, however, each provision of a proposed amendment is an integral part of a general plan, the amendment is not plural. It seems clear to us that there is but one subject contained in the proposed amendment of Section 246 of the Constitution. The first proposition is that the General Assembly shall regulate the compensation of public officials and employees, and the second proposition is that such regulation of compensation shall apply to those in office, or who have been elected to office, at the time of the adoption of the amendment. There is no subject embraced in the proposal other than the regulation of the compensation of public officials and employees. The changes sought to be made are so logically and directly connected that none of them is independent, or foreign to the one subject of official compensation. A comparatively recent case before the Court of Appeals was that of Burke v. Department of Revenue, 293 Ky. 281, 168 S.W.2d 997, wherein an act was involved, the title of which was this: "An Act relating to revenue and taxation." In the body of the act the qualifications of tax commissioner were defined. It was contended that more than one subject was embraced, but it was held that the qualifications of a, tax commissioner have a direct relationship to revenue and taxation, and that there was a single subject. In the case of City of Ravenna v. Boyer Fire Apparatus Co., 218 Ky. 429,291 S.W. 782, 784, an attack was made upon the constitutionality of an act entitled: "An Act relating to cities of sixth class." There was a provision in it for the purchase of fire apparatus, and it was argued that this was not germane to the subject, but it was decided that only one subject was involved. See also Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667,106 S.W. 260, 108 S.W. 1138.

Even though it may be, said that the effect of the amendment will be to suspend, temporarily, Sections 235 and 161 of the Constitution, this does not mean that more than one subject is embraced. The fact that an amendment impliedly repeals sections not mentioned therein does not thereby render it unconstitutional. Ex parte City of Paducah, 125 Ky. 510, 101 S.W. 898; Edrington v. Payne, 225 Ky. 86, 7 S.W.2d 827; Barnett v. Caldwell,231 Ky. 514, 21 S.W.2d 838. A very pointed declaration upon this subject is found in Mitchell v. Knox County Fiscal Court,165 Ky. 543, 177 S.W. 279, 282, wherein it was held that an amendment to the Constitution impliedly modifies any existing section thereof with which it is in conflict. The court said:

"Section 157a, being an amendment to the Constitution, necessarily annuls any and all former provisions of that instrument which conflict with it; and, since it permits the state to give its aid to the building of county roads, it cannot be said to violate Section 177, which was intended to be changed in this respect."

Appellee calls to our attention the passage by the General Assembly at the same 1942 session, of another act submitting another amendment to the Constitution providing for a compulsory system of workmen's compensation, to be voted upon at the same election as the one here in question. One of the many provisions of Section 256 of the Constitution is that not more than two amendments shall be voted upon at any one time. It is said by appellee that the public official compensation amendment is in reality two or more amendments, and that the workmen's compensation amendment runs the whole number beyond two which is the limit which can be submitted at any election. 'However, our conclusion already expressed that Section 246 covers only one subject disposes of this question.

It is further provided by Section 256 of the Constitution that amendments thereto shall be so submitted as to allow a separate vote upon each. It is forcefully insisted that the proposed amendment to Section 246 does not allow to a voter a separate vote as to whether the salary limitation, which is now a part of Section 246, shall be removed, and a separate vote on the other proposition as to whether it shall apply to officials in office or elected at the time of the adoption. The argument is plausible, and somewhat persuasive, but it does not accord with the law. Numerous States have constitutional provisions very much like ours with reference to submission of amendments so as to allow a separate vote upon each. For example the constitution of North Dakota, Section 202, as amended, has this provision:

"If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately";

and, in State ex rel. Fargo v. Wentz, 40 D. N. 299, 168 N.W. 835, 5 A.L.R. 731, the Supreme Court of that State decided that two or more propositions may be embodied in one amendment, without submission to separate vote, if the propositions all relate to one general and natural subject. This view, generally regarded as sound, has been well expressed by the highest court of Wisconsin in the case of State ex rel. Hudd v. Timme,54 Wis. 318, 11 N.W. 785, 791, in language as follows:

"We think amendments to the constitution, which the section above quoted requires shall be submitted separately, must be construed to mean amendments which have different objects and purposes in view."

Neither is this a new question in Kentucky. The case of Curry v. Laffoon, 261 Ky. 575, 88 S.W.2d 307, 308, is like the instant case in principle. Before the days of State prohibition of the sale of intoxicating liquors, Section 61 of the Constitution provided for local option regulation of the liquor traffic. Section 226a, the prohibition amendment to the Constitution, was adopted by the people, and later the Court of Appeals held that Section 226a being inconsistent with Section 61, the latter section was thereby repealed. Still later the General Assembly passed an act proposing the repeal of Section 226a and the re-enactment of Section 61. In the Curry case, supra, it was urged, as in this case, that as the two propositions were submitted in one amendment, the amendment was in conflict with that portion of Section 256 of the Constitution providing that amendments must be so submitted as to allow a separate vote upon each, but it was held that the section embraced but a single subject, that of regulation of the liquor traffic, and was not in violation of Section 256 of the Constitution. In the course of the opinion the court said:

"The fact that the question submitted was more narrow than it might have been refutes, rather than sustains, appellant's argument that the question submitted was duplicitous."

It was further pointed out in that case that the General Assembly in proposing an amendment may attach a condition to it. In so holding, the following language was employed:

"The fact that the Legislature saw fit to condition the repeal of Section 226a upon the re-enactment of Section 61 merely presented a single subject in a more narrow form."

In the same case the court quoted with approval from the case of State v. Alderson, 49 Mont. 387, 142 P. 210, Ann. Cas. 1916B, 39, to the effect that if the proposals may be logically viewed as parts of a single plan, the constitutional requirement is met in their submission as one amendment. In the case before us for determination, the voters will be called upon to decide at the polls whether they favor the proposed amendment of Section 246 of the Constitution on condition that it shall apply to those who are in office or who have been elected at the time of its adoption. The condition is a closely related part of a single plan.

It is further insisted that the amendment will violate Section 6 of the Constitution that elections shall be free and equal. We find no merit in this position. We see nothing in connection with the proposed amendment which will obstruct any voter from freely and equally exercising the elective franchise. This section has been construed to mean that the voter shall not he physically restrained in his right to vote. Robertson v. Hopkins County, 247 Ky. 129, 56 S.W.2d 700.

Moreover the conclusions which we have reached find support in numerous decisions that courts should be reluctant to declare legislative acts unconstitutional, and will resolve doubts in favor of their validity and will sustain such acts unless clearly in conflict with constitutional limitations. Commonwealth v. Hodges, 137 Ky. 233, 125 S.W. 689; Fiscal Court of Pendleton County v. Pendleton County Board of Education, 240 Ky. 589, 42 S.W.2d 885; Stevenson v. Hardin,238 Ky. 600, 38 S.W.2d 462; Commonwealth Life Ins. Co. v. City of Paducah, 244 Ky. 756, 52 S.W.2d 704; Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court,273 Ky. 674, 117 S.W.2d 918; Burton v. Mayer, 274 Ky. 245,118 S.W.2d 161; and Martin v. Gage, 281 Ky. 95,134 S.W.2d 966, 126 A.L.R. 449.

It has been suggested that the proposed amendment of the Constitution deals with more than one subject because it not only repeals Section 246 of the Constitution, imposing a "ceiling" on the compensation of all "public officers" (except the Governor), but also limits or destroys the right of local self-government of municipal corporations with respect to their "private" affairs as distinguished from their "public" or "governmental" functions. In McDonald v. City of Louisville,113 Ky. 425, 68 S.W. 413, and in City of Lexington v. Thompson, 113 Ky. 540, 68 S.W. 477, 57 L.R.A. 775, 101 Am. St. Rep. 361, the doctrine that such corporations are free front legislative control of their private affairs was announced and has been adhered to in many recent cases, vide Campbell v. Board of Trustees, 235 Ky. 383, 31 S.W.2d 620; Board of Aldermen v. Hunt, 284 Ky. 720, 145 S.W.2d 814.

While in some of these cases it was sometimes said that "the state" cannot take away this right of local self-government, all of the cases actually involved only legislative interference and we have found no case in which it was held that the right might not be taken away or restricted by constitutional provisions.

But that is not the question we have. Our question is whether or not a constitutional amendment, which removes the present "ceiling" on compensation for public service and confers upon the General Assembly the power to regulate such compensation, deals with more than one subject because, if adopted, the power thus conferred upon the General Assembly might be exercised in a manner which would interfere with the exclusive power heretofore vested in municipal corporations to fix the compensation of officeholders in charge of their private or nongovernmental affairs.

Section 246 of the Constitution fixes the maximum compensation payable to "public officers." The proposed amendment removes that "ceiling" and grants to the General Assembly the power to "regulate compensation of public officials and employees." The Court of Appeals has held in Talbott v. Public Service Commission, 291 Ky. 109,163 S.W.2d 33, that Section 246 of the Constitution embraces public "employees" as well as public officials. If the proposed amendment is sufficiently broad to permit the Legislature to regulate the compensation of local public employees (a question which we are not called upon to decide) it remains the one subject of compensation of public officials or employees.

It may be said that the Act proposing the amendment is obscure, or that it would not be wise to adopt it, but these are questions in the first instance for the General Assembly and in the latter instance for the people. The right of the people to decide whether or not the Constitution shall be amended as proposed cannot be denied because of a fear that they will not make a wise decision. The court cannot be governed by a foreboding as to the consequences of the adoption of the amendment. In any event, past experience hardly justifies such apprehensions. The host of public servants, state and local, who have served and are now serving for compensation less than $5,000 annually, despite the importance of the duties imposed upon many of them, seems to indicate a disposition to parsimony rather than extravagance.

We live under a democratic form of government. We choose to do so, not because it invariably serves the immediate interest of man better than other systems, but because it is more congenial to his spirit — that spirit of independence and self-reliance which gives dignity to his life. For the sake of this, we forego the temporary advantages which may attend a more absolute or centralized form of government. Having made this choice, we must bear with its consequences. The people of Kentucky have the right to amend its constitution as they please and, if mistakes are made, we must patiently await the time when experience will lead to their correction.

Since it is our view that the trial court erred in holding that the proposed amendment is unconstitutional, and as we are holding that it is proper for the suggested amendment to be submitted to the vote of the people, we are brought to the issue whether the question to be stated on the ballot shall be in the form prescribed by Section 4 of Chapter 171 of the Acts of 1942, or in the form of a question to be composed by the Attorney General clearly stating the substance of the amendment. The authority granted to the General Assembly in connection with amendments to the Constitution is to propose them to the voters. As we have stated, this is a special power which is not legislative in character. The General Assembly by the enactment of Section 118.430, Kentucky Revised Statutes (formerly Section 1459 of Baldwins' Revised Statutes, 1936 Edition), has by general law provided the machinery by which all proposals to amend the Constitution shall be certified to the officials charged with the responsibility of placing the proposal on the ballot. As that general law existed at the time of the adoption of the proposal here in question, the duty devolved upon the Attorney General to prepare and certify to the Secretary of State the question to appear upon the ballot.

Without any expressed purpose either in the title or body of the act proposing the amendment to repeal or modify Section118.430, Kentucky Revised Statutes, the General Assembly has by Subsection 4 of the proposed amendment ignored its general law enjoining upon the Attorney General the duty of preparing and certifying the question to the Secretary of State. By Subsection 3 of the Act, the General Assembly invoked the machinery of its general act, which in Subsection 4 it ignored. Subsection 4 of the Act is therefore void.

As to the required publication of a proposed amendment for not less than ninety days preceding the election, Section118.430, KRS, attempts to impose this duty upon the Governor, the Attorney General and the Secretary of State, but by Section 257 of the Constitution this duty is imposed upon the Secretary of State alone. The provision of the Constitution should therefore prevail.

Judgment reversed and cause remanded with directions for further proceedings consistent with this opinion.

Whole Court sitting.