Gatewood v. Matthews

• Decision Date: 31 May 1966
• Citation: 403 S.W.2d 716
• Parties: W. C. GATEWOOD, Individually and for and on Behalf of All Residents, Voters and Taxpayers of the Commonwealth of Kentucky, Appellants, v. Robert MATTHEWS, Attorney General of the Commonwealth of Kentucky, and Thelma L. Stovall, Secretary of State of the Commonwealth of Kentucky, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 716

403 S.W.2d 716

W. C. GATEWOOD, Individually and for and on Behalf of All Residents, Voters and Taxpayers of the Commonwealth of Kentucky, Appellants, v. Robert MATTHEWS, Attorney General of the Commonwealth of Kentucky, and Thelma L. Stovall, Secretary of State of the Commonwealth of Kentucky Appellees.

Court of Appeals of Kentucky.

May 31, 1966.

William E. Johnson, Johnson & Burton, Frankfort, for appellants.

Robert C. Carter, Louisville, amicus curiae.

Robert Matthews, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., Frankfort, Morton Holbrook, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.

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 resonable 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 to 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 resolution 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...