173 S.W.2d 665 | Ky. Ct. App. | 1943
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *196 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
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,
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 *199
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,
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 *200
City of Paducah,
"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: *201
"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,
"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,
"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 *202 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,
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,
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,
It has been suggested that the proposed amendment of the Constitution deals with more than one subject because *203
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,
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,
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
Without any expressed purpose either in the title or body of the act proposing the amendment to repeal or modify Section
As to the required publication of a proposed amendment for not less than ninety days preceding the election, Section
Judgment reversed and cause remanded with directions for further proceedings consistent with this opinion.
Whole Court sitting.
Concurrence Opinion
I regret that I am unable to concur in the majority opinion, for the reasons now set out.
The General Assembly of 1942 enacted, or agreed to, a plan for the amendment of the Constitution of Kentucky. Its action is set out now totidem verbis:
*206"Be it enacted by the General Assembly of the Commonwealth of Kentucky:
"Section 1. That Section 246 of the Constitution of Kentucky be and the same hereby is amended by repealing said section in its entirety and enacting in lieu thereof the following.
"Section 2. The General Assembly, as soon as practicable after the enactment of this amendment, shall regulate compensation of public officials and employees, including those in office and those elected to office at the time of adoption of this amendment; and provide for penalties and what deductions shall be made for neglect of official duties. Thereafter, the compensation of public officials shall not be increased or decreased during the terms for which they are elected or appointed.
"Section 3. This amendment shall be submitted to the voters of the State for their ratification or rejection at the time and in the manner provided for under Sections 256 and 257 of the Constitution of Kentucky, and under the provisions of Section 1459 Kentucky Statutes, Baldwin's 1936 Revision and KRS Section.
"Section 4. The substance of the amendment to be stated on the ballot shall be as follows: Are you in favor of amending Section 246 of the Constitution to read as follows:
" 'The General Assembly, as soon as practicable after the enactment of this amendment, shall regulate compensation of public officials and employees, including those in office and those elected to office at the time of adoption of this amendment; and provide for penalties and what deduction shall be made for neglect of official duties. Thereafter, the compensation of public officials shall not be increased or decreased during the terms for which they are elected or appointed.' " Acts 1942, c. 171.
In order to uphold the amendment, the court, through the majority opinion, was forced to expunge in entirety Sections 3 and 4 from the proposal. It was put under this compulsion by the Legislature which proposed the amendment, and as an integral part of the proposal inserted these sections. The third section, if left in the proposal, destroyed the whole of it; for it demanded that the publication be as under Section 1459 of the Baldwin 1936 revision of the Statutes, a section which had *207
been revised in entirety by an Act of 1940, c. 38. Section 1459 of the 1936 Baldwin Revision left it to the Secretary of State to frame the question as it should appear upon the ballot. The 1940 Act, current when the proposal was agreed to, now substantially appearing as Section
It is not untimely to consider the Act of 1940 (now KRS
It is my judgment that there are at least three reasons why the court is not at liberty to discard Sections 3 and 4. They are these:
First. Bearing in mind that the portion of the proposal which the majority discards deals alone with the *209
matter of publication, let us read what Chief Justice Hobson wrote for the court in McCreary v. Speer,
"The framers of the Constitution intended to leave to the Legislature to determine the form of the publication and the manner of it (that is, whether it should be by handbills, or in the daily press or in the county papers, etc.); and, when the Legislature prescribes the manner of the publication, to ignore its requirement is to ignore the constitutional provision itself."
In the face of the exactitude in the legislative prescription of its own manner and wording of the publication, the majority opinion's discarding of Sections 3 and 4 of the proposal seems to me to do just what Chief Justice Hobson wrote we might not do. Let us repeat his words — "when the Legislature prescribed the manner of the publication, to ignore its requirement is to ignore the constitutional provision itself." The majority opinion does not overrule it. It would hardly be meet for us, set up as a court for this single case, to do so. The majority opinion says that "the authority granted to the General Assembly in connection with amendments to the Constitution is to propose them to the voters." It is apparently under that concept that the majority opinion just dismisses Sections 3 and 4. Section 256 of it provides that when an amendment is proposed, the vote shall "be taken thereon in such manner as the General Assembly may provide." In the face of this clear authority, it is not to be said that the Constitution limits the General Assembly to the proposal of amendments, and denies to it the right to provide how the vote shall be taken. If there were not such power, then KRS
Second. There is something else in the Section of the Constitution dealing with amendments that may well give us pause. It is that an amendment is "proposed" in either house; and if it be "agreed to" by 3/5 of the entire membership, it shall be submitted to the electorate; and each man who agrees to the proposal, and each man who will not agree to it, is put upon public record — their individual action must be "entered in full" in the journals of their respective houses. Thus, in the most solemn form, the Constitution put it up to each member to agree or disagree. In ordinary legislation, the voting on many, indeed on a great majority of, the issues is perfunctory. An administration bill (as most of them are in that they are either of administrative origin, or have received administrative approval) comes up for passage, a vote is called, the bill lives or dies, nobody goes on record, only a few know or care. Not so with amendments to the Constitution; for the framers of it put it up to each member to think, and to take his record position, and to agree, or disagree. Under this compulsion, 3/5 of the membership have agreed to all, not part of the four sections of the proposal. The majority opinion says that, while the 3/5 did agree to all of it, and notwithstanding that they did not agree on any of it less than as a unit, it is permissible to destroy the 3/5 part of the agreement, and that it is sound law to bind the agreers by 1/2, the first two sections. And it is sound judgment that we have no right to speculate that the 3/5 are willing to have their agreement, by judicial fiat, cut in half. Their agreement was thus: "We propose this amendment to be voted upon in this way." The majority opinion writes it for the agreers, thus: "We propose this amendment to be voted upon as the Attorney General may put it to the people." Now the 3/5 never agreed to any such thing. They did not mean to let the Attorney General act — for they phrased the question so that, or maybe it were better said, it resulted that, he could have no part in it. And the majority opinion, perforce, has the 3/5 to agree to something to which they did not agree. *211
So, it is believed by the writer, the entire four sections must stand or fall as a unit.
But if we measure the proposal, as the majority has it, by its first two sections, is it not just essentially and fundamentally bad? Before measuring it, we reflect that the Attorney General, as under the majority opinion, and as under KRS
"The Attorney General shall state the substance of the amendment in the form of a question in a manner calculated to inform the electorate of the substance of the amendment."
The substance of a thing is defined by Webster as, among other things, "essence" and "essential import"; and the word "calculated" as "likely to produce a certain effect"; and the word "inform" as "to communicate knowledge of." Applying these definitions, to make plainer that which is already plain, the Act might be thus paraphrased:
"The Attorney General shall state the essential import and essence of the amendment in the form of a question in a manner likely to communicate knowledge to the electorate of the essence of the amendment."
In order that what further may be said herein may be better understood, we endeavor to set forth, as under KRS
1. Whether he wishes to delete from the Constitution the $5,000 annual salary limitation, without substitution of any other limit therefor.
2. Whether he wishes that the Legislature be ordered to fix and regulate, at their own discretion, the compensation of all public officers.
3. Whether he wishes that there be included in this fixation and regulation those in office when the amendment is adopted.
4. Whether he wishes to forbid the Legislature *212 thereafter to fix or regulate the compensation of those currently serving the public.
5. Whether he wishes to take from municipalities their right to fix the compensation of their employees, and instead to order the Legislature to fix their compensation.
6. Whether he wishes the Legislature to provide for penalties and deductions for neglect of official duties.
Every single query, in the multiple queries in this outline, is for consideration by the voter. If he votes intelligently, he must make up his mind upon all of them; and yet, in the end, no matter whether his judgment approves some of them, or disapproves of others, he must say yea or nay, must take them all, or must leave them all. The majority opinion concludes that, since all of these elements have to do with compensation, the amendment deals with but a single subject. About that we have these reflections, some of them possibly reconcilable with the majority opinion, but one of them, as it seems to us, destructive of the conclusion reached by the majority. Now:
The makers of the Constitution considered the salary limitation of $5,000 to be of sufficient individual importance to be set up in a separate numbered section of the Constitution. It is to be found in Section. 246.
The Constitution makers likewise set up in a separate numbered section of the Constitution, 235, a prohibition against the change of salaries of public officers during the terms for which they were elected.
These same Constitution framers deemed the matter of the compensation of city, county, town and municipal officers to be yet another separate subject; and interdicted, under Section 161, the increase of their salaries during the terms for which they were elected.
Now, notwithstanding the outlook of the framers of the Constitution upon the subject, notwithstanding their approach to the treatment of public pay, and notwithstanding that these three provisions are made the subjects of independent sectioning, it is not unfair, perhaps, to say, with the majority, that they deal with but a single subject, that of compensation for those who work for the public for pay. *213
There is in the amendment another "subject" than that of pure compensation. It is inserted so quietly into, and is blended so inconspicuously in, the amendment, that it is not seen — just perhaps because it is too visible, too seemingly in accord with the whole body of the amendment, to invite our scrutiny. But when the entire text is scanned, piece by piece, the fault in its double aspect stands out so that all may see it. Here is the subject extraneous to that of pure salary — the amendment is that the Legislature shall regulate, not only the pay of public officers, as has been (subject to the $5,000 limitation) a legislative right since the adoption of the Constitution, but also the pay of city and town employees who exercise no governmental functions, a right never at any time within the General Assembly, a power which it could not employ constitutionally. The people of Kentucky may prefer that Frankfort shall say what Louisville and Paducah and Leitchfield and Somerset and Georgetown and Carlisle and Mt. Sterling (all for example) shall pay the ash-cart hands, the scrubwomen in the public buildings, the sewer-tenders, the street-cleaners, the firemen, and all others rendering services of this general nature; but if they so prefer, there must be written into the Constitution a new section to take away from these organized localities this power to regulate and govern and run their own local managements, their purely domestic hiring. Let it be borne in mind that, apart front the general regulation of compensation, the amendment includes this new matter, one of distinguishing importance, the subject of changing the form of municipal governments by destroying their right to contract with their employees, at rates fixed by the several cities, and substituting therefor a new element of concentrated power in the General Assembly to say what these several localities must pay for even the most minor services. No such right has ever existed in the Legislature. Let us prove the statement. In City of Lexington v. Thompson,
"If the rate of pay to be fixed for such employés is governmental, then, also, is the variety of fire engines to be used, the size and breed of the horses which pull them, the number of fire plugs or cisterns to be established, and the personnel of the force. If the legislature can arbitrarily fix the rate of payment for such services at $65 per month, it can fix it at any other sum which it deems reasonable; and if fixing the pay of firemen is a governmental function because firemen render service in the preservation of the property of citizens of the commonwealth, then it is also a governmental function to fix absolutely the per diem of the street sweepers and the monthly wages of the janitors in the city hall. We do not think such legislative interference in a matter in which no one but the firemen and the taxpayers of the city can possibly be interested could have been in contemplation of the framers of our constitution, or of the voters who sanctioned its adoption."
The opinion concluded thus:
"We do not think the legislature can fix the salaries of firemen, any more than it can fix the pay of street sweepers, the drivers of ash carts, or fix the price per square yard which the citizens shall pay for an improvement of public ways."
Since, as within this rule, the cities now have the right, exclusive of any right in the General Assembly, to fix the pay of their employees; and since the proposed amendment, if adopted, would exactly reverse the present rule, and would erect a totally new method of foreign regulation of their now existing domestic control, it need not be argued that this is a "subject" complete in itself. It is under the ban of Section 256 of the Constitution, a prohibition against the submission of more than two amendments at any one time. The same section provides that "no amendment shall relate to more than one subject." At the time of the adoption of the proposal in question, there had been agreed to the proposal of a *215
prior amendment dealing with compulsory workmen's compensation, Printed Acts 1942, p. 196. In the dual nature of this proposal before us, plus the employees' compensation amendment proposed, there are three, not two, amendments. It deals with more than one subject. It should not have judicial approval. It is not overlooked that, in Alvey v. Brigham,
"This does not mean the General Assembly may legislate on fiscal affairs and other matters of purely municipal concern."
Then, too, this Warley case itself was dissected in the Campbell case; and the court expressly adhered to the doctrine of the Thompson case. In the end, City of Lexington v. Thompson is the law of Kentucky, unquestioned in its strict and narrow rule that the fiscal affair of fixing the pay of its public employees (as set over against its officers) is a city, and not a state, adjunct and right. The constitutional destruction of that right of local self-government is assuredly a subject in itself. It is an alteration in the resting-place of the right to fix the pay.
The majority opinion says that "there is no other subject embraced in the proposal other than the regulation of the compensation of public officials and employees "; and that it does not, therefore, infract the Constitution's ban against more than one subject. The argument is too narrow for acceptance. Pay for public service is an incident to all such service; but it will not do to say that every species of governmental functions may be altered by a single amendment, by the device of inserting in the amendment a provision for the fixation of pay. That concept would permit many subjects to be included in a single amendment. *216
We are in accord with the opinion of the majority, and the cases cited in it, that a constitutional section may be repealed by the adoption of a contrary amending section; but we have no such case here in this matter of local employee pay. What it presents is the conferring upon the General Assembly, by this amendment, a power that it never had before, and the taking away from municipal governments, by this same amendment, powers that they have exercised ever since, and historically long before, the adoption of the Constitution.
Perhaps Curry v. Laffoon,
And is it not inescapable that there are these three amendments, one in excess of the constitutional allotment, in the offing for the November, 1943, election — (1) an amendment dealing with workmen's compensation, (2) an amendment voiding the $5,000 official salary limitation, and a bestowal upon the General Assembly of the right to regulate such salaries, and (3) the rape of city governments of their inherent right (City of Lexington v. Thompson, supra) to manage the fiscal ends of their own employments? If the answer be in the affirmative, and it is my judgment that it should be so, the judgment here would need to be affirmed.
There are certain other reflections that impinge upon, and that merit something of weight in testing this proposal. A demand of Constitutional Section 256 is that amendments "shall be so submitted as to allow a separate vote on each." Taking full stock of the absolutism of the majority's opinion's declaration that there is only a single subject, that of compensation, dealt with in the amendment, we are yet constrained to wonder about the soundness of that conclusion. To illustrate:
The proposal is that the Legislature shall "regulate" compensation. Is it enlightening in this form? Is it fair to the voters? What is the essential nature, and what is the purport, of this amendment? It is to remove from the Constitution of Kentucky, in toto, the prohibition of Section 246 of the Constitution that no public officer other than the Governor shall receive more than $5,000 per annum. There is no information, in the General Assembly's formulated amendment, as to the removal of this limitation, a limitation with which all informed people of Kentucky have long been familiar, a limitation which long has been the subject of public interest in the press, and of editorial comment, and of judicial consideration. The proposal is merely that the General Assembly shall "regulate" compensation of public officials. It is not unfair to assume that the voter, coming to reflect upon the question upon which he was to express his will, might very well assume that this "regulation" left in full force and effect the $5,000 prohibition, and that the regulation which should be exercised by the General Assembly, if the amendment were adopted, was a regulation yet subject to that constitutional top bracket. So the proposal thus formed was not calculated to tell the people of Kentucky that a vote in the affirmative *218 was to discard the $5,000 limit, or that a vote in the negative was to retain it. Again, and somewhat by way of repetition, it may be questioned gravely whether the use of the word "regulate" clarifies and makes patent the real purpose of the amendment. To fix, to set, the amount of the pay of the Governor, or of a school janitor, without limit up or down, is one thing, a thing which knows no limit. To regulate the pay in no sense excludes the idea of bottom limits, and top limits, on the salaries of the Governor, or the janitor, either statutory or constitutional; for the regulation might very well, in its intendment, be the adjusting of the salaries of the different officials as within these brackets; and the use of the word itself is concealing, rather than informative.
The form of the proposal as submitted is an enigma which neither speculation nor reason will solve. As remarked above, there was submitted by the same Session another amendment, one relating to compulsory workmen's compensation. It is to be found at page 196 of the Printed Acts 1942. It is clear in its text. While it provides the manner of its publication on the ballot, its demand was that the publication be under the exact present constitutional and statutory law. It said that it should be submitted in the manner provided by Sections 256 and 257 of the Constitution, which was exactly as it should be; and that it should be submitted in the manner provided by Chapter 38 of the Acts of the General Assembly of 1940, which, again, was exactly as it should be, because that was then the general statute governing publications, the one providing for the formation of a lucid question by the Attorney General and that if the Revised Statutes were adopted, the publication should be as under KRS
It is fundamental that, in the making of a constitution, or in the alteration of it afterward, the power of the public is supreme. It is equally true that, as a corollary of this power, it is requisite that when the public comes to act, it should be, and it has the right to be, informed in the clearest and most unequivocal way of the intent of what is presented to it — presented to it so that it need not accept what it does not like in order to get what it does like. The proposal, duplicitous in the ways portrayed above, requires that the public take all, or reject all. It denies the constitutional demand that a separate vote be "allowed on each." It does not justify the writer's approval.
What is written here is written out of a compelling conviction. It is said with the utmost respect for the able and concurring majority.
ADDENDUM: Since the preparation of the foregoing, the court's opinion through the majority has been modified, with the result that certain matter appearing in the foregoing is responsive to positions not appearing in the amended opinion. Thus:
The original opinion discarded both Sections 3 and 4 of the amending act. Upon the modification, only Section 4 appears to have been eliminated. The modification *221
specifically treats of Section 3 as a component part of the act. It says "By Subsection 3 of the Act, the General Assembly invoked the machinery of its general act, which in Subsection 4 it ignored." Then the modification holds that the submission of the amendment under KRS
"When the Legislature prescribed the manner of publication, to ignore its requirement is to ignore the constitutional provision itself."
The opinion as amended says that the court is "not called upon to decide" whether the amendment, if ratified by the people, will extend to create a legislative right to deal with salaries of municipal employees. Since one *222
of the questions, if not indeed the major question in the whole matter, was whether a constitutional conferring of such a right upon the Legislature was not a separate subject or amendment in itself, would it not seem that the court had an obvious and impelling duty to perform in deciding this question? Notwithstanding the declaration of the court that it was not called upon to decide the question, the court cites Talbott v. Public Service Commission,
It is hoped and believed that there need be no apology for this extension; since, perforce, it is fair that the dissenting opinion, as the last word upon the subject, should extend to cover the final expression of the court through the majority.
I am authorized to say that Judge Bradley concurs in the above opinion and its addendum.