Gaines v. O'Connell

• Decision Date: 19 September 1947
• Citation: 305 Ky. 397,204 S.W.2d 425
• Parties: GAINES et al. v. O'CONNELL.
• Court: Kentucky Court of Appeals

204 S.W.2d 425

305 Ky. 397

GAINES et al. v. O'CONNELL.

Court of Appeals of Kentucky

September 19, 1947

Rehearing Denied Sept. 30, 1947.

Appeal from Circuit Court, Franklin County; W. B. Ardery, Judge.

Suit by Noel Gaines, individually, etc., and others against Charles K. O'Connell, Secretary of State, to have Acts of state legislature providing for a referendum on the necessity for calling a constitutional convention declared invalid and to enjoin defendant from proceeding with preparations for such election, wherein interveners filed a cross-action. From a judgment holding the Acts valid and enforceable, plaintiffs appeal.

Judgment affirmed.

Lewis & Asher, of Frankfort, and Charles I. Dawson of Louisville, for appellants.

Eldon S. Dummit, Atty. Gen., Ben Fowler, Asst. Atty. Gen., Stoll Townsend, Park, Mohney & Davis, of Lexington, and Allen McElwain, Dinning, Clarke & Ballantine, of Louisville, for appellee.

STANLEY Commissioner.

The case presents two questions concerning the actions taken by the General Assembly and the Secretary of State for holding a referendum 'to take the sense of the people of the state as to the necessity and expediency of calling a convention for the purpose of revising or amending' the Constitution of Kentucky. One question is presented in a suit by a representative taxpayer, and a group of citizens opposing the convention as intervenors, to have the Acts of the Legislature declared invalid and to enjoin the Secretary of State from proceeding with preparations for the election. It is based on an alleged illegal expenditure of public money. The other question is presented in a cross action by a group of intervening citizens favoring the convention, in which they have sought a judicial declaration that the provision of the Acts which require that the Convention, if held, submit its production to the people for ratification is valid and binding.

The circuit court held that the Acts are valid and enforceable and that the Secretary of State had the authority to cause notice of the election to be published as he had already done. He was directed to proceed with the performance of his duties. The court further adjudged that the provision requiring that the work of the Convention be submitted to the people for ratification is valid and enforceable. The plaintiffs have appealed and seek the opposite judgment. The importance of the case compels the court's careful and serious consideration in its determination.

I

In conformity with Section 258 of the Constitution, the General Assembly of 1944 passed an Act to the end stated (Chapter 4) and the General Assembly of 1946, c. 145, concurred and made provision for the election to be held on November 4, 1947.

Section 263 of the Constitution reads as follows: 'Before a vote is taken upon the question of calling a Convention, the Secretary of State shall cause notice of the election to be published in such manner as may be provided by the act directing said vote to be taken.'

But the General Assembly made no provision for publishing notice of the election. Therein lies the difficulty.

Notwithstanding the absence of such explicit provision, on the day the petition in this case was filed, on the advice of the Attorney General, the Secretary of State caused publication of notices to begin in Louisville and Lexington newspapers of general circulation throughout the State. This was 78 days before the election. An amended petition met the changed status, but the form or duration of the publication was not questioned.

The primary contention of the appellants is that since the Legislature failed to prescribe the manner of publication of notice, the Secretary of State was without authority to do so, hence his action is abortive. The real question is not the constitutionality of the Acts of the Legislature but whether they are operative.

The argument of the appellants is that all of Section 263 is mandatory; that the Secretary of State is required to cause notice to be published in a manner prescribed by the Legislature and in no other way; hence it is also mandatory on the Legislature so to prescribe, and it failed. The argument is no ingenious refinement, or one without merit. It seems to be sustainable by a strict construction of the Constitution.

The contention of the appellees is that the word 'shall,' used in Section 263 in relation to the duties of the Secretary of State, makes the provision mandatory as to him, but the word 'may,' used in relation to the manner of publication to be prescribed by the General Assembly, being a word of permission or discretion, leaves it open for that body to prescribe the manner or not to do so; hence, its omission cannot cancel the obligatory duty of the Secretary of State. It is submitted that the Legislature having failed to exercise the power, the official was nevertheless required to perform his duty under the self-executing provision applying to him, and in doing so he has properly exercised a prudent and reasonable judgment as to what was adequate.

It has often been said that all the provisions of the Constitution are mandatory. It begen with Bliss v. Commonwealth, 12 Ky. 90, 2 Litt. 90, 13 Am.Dec. 251. But this broad statement is subject to the qualification, just as often declared, that they are not to be so regarded if by express language or necessary implication a different intention is manifest. It is a cardinal rule of construction that no part of the Constitution should be construed so as to defeat its substantial purpose or the reasonable intent of the people in adopting it. Cooley, Constitutional Limitations, 124, 130. What is implied is as much a part of the instrument as what is expressed. 1 Am.Jur., Constitutional Law, Sec. 56. Whereever the language admits a doubt, it is presumed that it was intended to be in accordance with generally recognized rules and principles of public policy. Still another familiar concomitant rule, no less binding on the courts, is that all presumptions and all reasonable doubts are to be resolved in favor of constitutionality of any act of the General Assembly. Jefferson County v. Jefferson County Fiscal Court, 273 Ky. 674, 117 S.W.2d 918; Bowman v. Frost, 289 Ky. 826, 158 S.W.2d 945.

The foregoing are canons of construction applicable to legislation of the usual character. A fortiori, are they applicable to the present inquiry. We are not dealing with pure legislation affecting commercial or personal affairs, nor with legislation with which the people in their capacity of electors have nothing to do. We are dealing with machinery and procedure under the Constitution. The actions of the Legislature and the Secretary of State are but steps toward the end. The great mass of the electors of the Commonwealth constitutes the body which considers and determines the question of whether there shall be a constitutional convention. Their vote is the paramount act. The framers of the Constitution well appreciated that this is a government by the people and that a revision of the organic law must be made by them. They well knew that substance is supreme and more potent than method and form. Method and form may not be disregarded, to be sure, for by them the essentials are secured. But they are not themselves the essentials. We are dealing with a matter in which the sovereign people are vitally concerned--with the inherent right of the people to express themselves with respect to revising their charter of government. It is sound and proper to hold that a case of this character requires an extremely liberal construction, just as would an Act which might violate the Bill of Rights require a rigid construction in order to protect the people.

We are not without precedent. In Green v. Weller, 32 Miss. 650, 684, it was said in reference to the adoption of an amendment to a constitution: 'The means provided for the exercise of their sovereign right of changing their Constitution should receive such a construction as not to trammel the exercise of the right.'

In Baker v. Moorhead, 103 Neb. 811, 174 N.W. 430, 431, it was held in reference to a statute defining the manner of electing delegates to a constitutional convention (as stated in the syllabi prepared by the court):

'The general rule that the provisions of a Constitution will be construed as mandatory, rather than directory, does not apply with the same strictness to provisions of the Constitution providing for future constitutional conventions, as it applies to other parts of the Constitution'; and

'A construction of a provision of the Constitution which would make difficult or impossible any fair and just method of revising it will not be adopted by the courts.'

See to the same effect, In re Opinion of the Justices, 88 N.H. 495, 190 A. 712; Sandell v. City of Omaha, 115 Neb. 861, 215 N.W. 135.

Our own case of Denton v. Pulaski County, 170 Ky. 33, 185 S.W. 481, 483, involved the construction of that part of Section 256 of the Constitution which provides that where a majority of votes were cast for an amendment it shall become a part of the Constitution 'and shall be so proclaimed by the Governor, and published in such manner as the General Assembly may direct.' The Legislature had provided for publishing the result of the election but not as to how an adoption should be proclaimed or published. The result had been so published and the Governor had recommended appropriate action by the Legislature to effectuate the amendment, but there was no formal proclamation. We said 'In the absence of legislative action prescribing the particular manner in which an amendment shall be proclaimed and published, we conclude that the foregoing steps constituted a substantial compliance with the Constitution.' The...