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Funk v. Fiedler

October 23, 1951



STANLEY, Commissioner. The circuit court, in a representative taxpayer's declaratory judgment suit, held 'void and of no effect,' an Act of the General Assembly of 1950, Ch. 137, directing the submission to the electorate for adoption or rejection of an amendment to the Constitution which is designed to permit the submission of more than two amendments at one time and to expedite the referendum thereon. If adopted, it will supersede present Section 256.

In the approach to the two questions raised, a general observation seems pertinent.

The Bill of Rights, Sec. 4, declares that for the advancement of the principle of the inherent power of the people to govern themselves, the people 'have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.' To the General Assembly, whose members are the representatives of the people, has been delegated the special, extra-legislative power to initiate changes in the organic law. Hatcher v. Meredith, 295 Ky. 194, 173 S.W.2d 665. It has directed the submission to the people themselves of the opportunity of reforming this phase of government in this manner. Being a political matter, or a question which pertains to the polity of government with which the legislative body is vested, the courts should review the action of the General Assembly with a deep sense of their own constitutional limitations. This has relation not only to the substance but to the form of the submission.

1. The trial court was of opinion that the Act submitting the proposed amendment is void and of no effect because it, in fact, submits two amendments in the form of one, namely, the repeal of one provision and the adoption of another, in contravention of the present Section 256 of the Constitution, the very section proposed to be altered.

The first paragraph of the Act, following the enacting clause, is: 'That Section 256 of the Constitution be amended by repealing said section in its entirety and enacting in lieu thereof the following:' But the proposed amendment does not itself recite or indicate in any way that its adoption will repeal any part of the Constitution or that it is to be a substitute. The General Assembly, of course, never thought that it could accomplish either repeal or enactment. The statement in the Act is to be construed as intending to inform the members of the legislature and others interested in the Bill as to what the adoption of the proposed amendment would accomplish. It is not a part of the amendment. The pertinent provision of the present Section 256 is that 'no amendment shall relate to more than one subject.' (Emphasis added.) The proposed amendment, copied below, stands alone without reference to the present section it would replace. The predicate of the argument of duality ignores the proposed amendment itself.

It is at least of interest to note that the Seventh Amendment to the Constitution (later published as Section 226a), establishing state-wide prohibition of the manufacture, sale and transportation of intoxicating liquor, and adopted by the people in November, 1919, contained the express provisions: 'All sections or parts thereof of the constitution insofar as they may be inconsistent with this section, are hereby repealed and nullified.' No question was ever raised that that amendment violated the terms of Section 256, although it would have afforded sounder grounds for the argument made in the instant case. In initiating the submission of the repeal of Sec. 226a, the Act, Ch. 58, Acts of 1934, contained a preamble similar to the present Act, and further set out in full Section 226a as well as the amendment which was to be submitted, which was the former Section 61. This was held in Curry v. Laffoon, 261 Ky. 575, 88 S.W.2d 307, not to offend the provisions of Section 256 limiting an amendment to one subject.

It was not necessary that the General Assembly should have stated that the amendment proposed would repeal the present provisions relating to the same subject, but it has been the usual declaration. That is the only effect it could have. Amendments are usually adopted for the express purpose of making changes in some part of the existing system rather than of creating new powers or establishing new limitations. Where there is inconsistency or repugnancy between an adopted amendment and pre-existing provisions, the new must prevail and be deemed to supersede the old because it is the latest expression of the people. Gatton v. Fiscal Court of Daviess County, 169 Ky. 425, 184 S.W. 1. But the fact of repeal and supersession has never been regarded as dealing with plural subjects so as to render the amendment itself unconstitutional. Hatcher v. Meredith, 295 Ky. 194, 173 S.W.2d 665, and cases cited therein.

The trial court, having reached the conclusion stated, did not find it necessary to pass upon the form of the question submitting the proposal, but it is before us.

2. The suit seeks to have the submission of the amendment stopped upon the ground that the form of the question to appear on the ballots, prepared by the Attorney General as prescribed by KRS 118.430, is not stated 'in a manner calculated to inform the electorate of the substance of the amendment'.

The generality of the constitutional provision that the 'vote to be taken thereon in such manner as the General Assembly may provide' left it open for the legislature to prescribe the manner, and, in doing so, it enacted KRS 118.430. So, in considering the point of a defective question, it must be remembered that we are dealing with a statute and the claim that the statute was not complied with by the Attorney General, whose duties are therein prescribed. The case is, therefore, different from the cases dealing with constitutional directions such as Section 257 of the Constitution mandatorily requiring that an amendment shall be published by the Secretary of State at least ninety days before the election, of which, McCreary v. Speer, 156 Ky. 783, 162 S.W. 99, is the leading one. Since it is but a statute implementing the machinery of the Constitution in this respect, it should be given a liberal construction in its application. If the question is not misleading or inconsistent and reveals the essential character and purpose of the proposed amendment, it must be deemed to meet the requirements of the Constitution and the statute.

The amendment proposed is as follows, with the numbers and letters inserted by us for convenient comparison with the framed question:

'Amendments to this Constitution may be proposed in either house of the General Assembly at a regular session, or, if stated in the original proclamation as a subject to be considered, at a special session, [a] and if such amendment or amendments shall be agreed to by three-fifths of all the members elected to each house, such proposed amendment or amendments, with the yeas and nays of the members of each house taken thereon, shall be entered in full in their respective journals. Then such proposed amendment or amendments [2] shall be submitted to the voters of the State for their ratification or rejection at the next general election which occurs not less than ninety days from the final passage of such amendment or amendments, [3] the vote to be taken thereon in such manner as the General Assembly may provide. [b] If it shall appear that a majority of the votes cast for and against an amendment at said election was for the amendment, then the same shall become a part of the Constitution of this Commonwealth, and shall be so proclaimed by the Governor and published in such manner as the General Assembly may direct. [4] Said amendments shall be so submitted as to allow a separate vote on each, unless the General Assembly provides for a single vote on two or more amendments. [5] No amendment shall relate to more than one general subject. [c] The approval of the Governor shall not be necessary to any bill, order, resolution or vote of the General Assembly proposing an amendment or amendments to this Constitution.'

The question, with corresponding numbers inserted for ...

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