Curry v. Laffoon

Opinion of the Court by Judge Stites Affirming. This is an appeal from a judgment of the Franklin circuit court sitting in equity. Suit was filed November-15, 1935 (after the general election), by appellant as a citizen, resident, and taxpayer of Mercer county, setting out the fact that the General Assembly at its 1934 session proposed to the people an amendment to the Constitution of Kentucky (Acts 1934, e. 58) repealing-section 226a of the Constitution and re-enacting section 61 thereof. At the same session (Acts 1934, c. 59) the General Assembly submitted another amendment to the. Constitution providing for the payment of old-age pensions. This suit is directed against the alleged validity of the first amendment submitted on the ground that its form and method of submission violate section 256 of the Constitution providing that (1) “Not more than two amendments shall be voted upon at any one time,” and (2) “Said amendments shall be so submitted as to. allow a separate vote on each, and no amendment shall *576 relate to more than one subject.” Section 226a was the so-called prohibition amendment, which became a part of the Constitution in November, 1919. Section 61 of the Constitution, on the other hand, related to loeal_ option and required the General Assembly to provide _ a means for taking the sense of the people of particular localities “as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated.” In the case of Renfro v. Hamlin, Sheriff, 256 Ky. 192, 75 S. W. (2d) 1067, it was held that section 226a was inconsistent with section 61, and therefore repealed it. The trial court sustained a demurrer to the petition. Appellant declined to plead further, and final judgment was thereupon entered, from which this appeal is prosecuted. It is contended by appellant that the repeal of the juohibition amendment and the re-enactment of the local option provision are two separate and distinct subjects, which should have been submitted by separate acts; that the amendment voted on is therefore invalid (1) because it relates to more than'one subject, and (2) because, together with the old-age pension amendment, it resulted in the submission of three amendments at one time. Of course, if the amendment relates to but one subject, both contentions are unsound. It is argued that a voter might favor repeal of the prohibition amendment but be opposed to local option, or might be opposed to the repeal of the prohibition amendment and in favor of adding thereto local option as to medicinal liquor. Plainly, if the question had been proposed to the voters in the manner suggested, four, and not two, options would have been opened. They might-vote “yes” as to each question or “no” as to each, or they might vote “yes” on one and “no” on the other, -or vice versa. Instead of submitting two distinct questions and thus permitting four possible results, the General Assembly saw fit to limit the outcome to two; namely, to preserve the prohibition amendment as a part of the Constitution,' or to substitute local option therefor. The subject was the policy to be adopted in the regulation of intoxicating liquors. 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. No one will dispute the fact that one question might *577 have been submitted, wiping out of the Constitution all provisions in regard to intoxicating liquors, had the Legislature deemed such a provision wise. The greater includes the less. '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. Under section 256 of the Constitution, it is one of the functions of the General Assembly to propose amendments to that instrument. It is a matter for that body to determine how far it will go in submitting changes to the fundamental law. Here- the General Assembly may have been, and doubtless was, unwilling to submit an amendment which absolutely wiped out all of the constitutional provisions on the subject of intoxicating liquors. The prohibition amendment had changed the publie policy of the state in dealing with the evils incident to the liquor traffic. Lakes v. Goodloe, 195 Ky. 240, 242 S. W. 632. In the judgment of many people this changed policy was not successful and was attended with more evils than those it was designed to suppress. In submitting the amendment here attacked, the General Assembly clearly intended to take the sense of the voters on the question of continuing under the policy expressed in the prohibition amendment or of returning to the policy existing prior to its adoption. In considering an analogous question, where a single amendment submitted a provision for both initiative and referendum, under a similar constitutional provision, the Supreme Court of Montana, in the case of State v. Alderson, 49 Mont. 387, 142 P. 210, 212, Ann. Cas. 1916B, 39, said: ‘ ‘ The fact that an amendment can be separated into two or more propositions concerning the value of which diversity of opinion may exist is not alone decisive. If, in the light of common sense, the-propositions have to do with different subjects, if they are so essentially unrelated that their association is artificial, they are not one; but if they may be logically viewed as parts or aspects of a single plan, then the constitutional requirement is met in their submission as one amendment.” We have not heretofore been called upon to pass on the exact question, but many other courts have followed the principle expressed by the Montana court. Gabbert. *578 v. Chicago, R. I. & P. Ry. Co., 171 Mo. 84, 70 S. W. 891; Gottstein v. Lister, 88 Wash. 462, 153 P. 595, Ann. Cas. 1917D, 1008. It is clearly right. A comprehensive collection of the cases on the subject is to be found in the opinion of the Supreme Court of North Dakota in the case of State v. Wetz, 40 N. D. 299, 168 N. W. 835, 847, 5 A. L. R. 731. It is argued on behalf of the commonwealth that a taxpayer cannot raise the questions here presented after the general election, and that every reasonable intendment should be indulged in favor of the validity of a constitutional ámendment after its ratification by the people at the polls. State v. Thompson (Fla.) 163 So. 270, 276; People v. Sours, 31 Colo. 369, 74 P. 167, 102 Am. St. Rep. 34. It is also argued that the repeal of section 226a would automatically have revived section 61 without the necessity of expressly restoring it to the Constitution, under the rule of the common law that when a repealing law is itself repealed the older law is revived. It is argued that even if section 61 should be ■considered as dealing with a different subject from section 226a, that so much of the amendment as related to ■section 61 was pure surplusage and might therefore be ignored. Since we have concluded that the amendment •as proposed related to but one subject, within the meaning of section 256 of the Constitution, we do not deem it necessary to consider these other contentions. Judgment affirmed. Whole court sitting.