The General Assembly voted to submit the constitution directly to the people for approval in November 1966. When the votes were counted, the revised constitution had not carried a single county.

The overwhelming defeat was due to more than a resistance to changing the Constitution, however. Many people objected to the revision because it was not done according to the manner prescribed by the Constitution. The Court of Appeals, however, had upheld in Gatewood v. Matthews (1966) that the people had a "right to alter, reform or abolish their government in such manner as they may deem proper,” as stated in the Bill of Rights of the Constitution. The revision and revision process became issues politically, too, both between parties and between factions of the Democratic Party.

The next effort for revision by convention was made when the 1974 General Assembly approved placing the call for a convention on the ballot. The 1976 General Assembly concurred, and the vote on a convention will take place in 1977.

Court Interpretation of the 1891 Constitution

If the 1891 Constitution is so restrictive and detailed, how has this Commonwealth managed to survive, and even progress, into the 1970's? The answer lies largely in court interpretations of the Constitution.

Allan M. Trout wrote in 1960 that the Court of Appeals, now the Supreme Court, had made the Constitution work by functioning as a blue ribbon convention of seven delegates whose continuing duty has been to keep the old Constitution in harmony with new conditions.

state. '

Consider these decisions and the impact they have had on the progress of this

Section 181 of the Constitution permits cities to levy taxes on income but only in lieu of property taxes. Louisville, in dire need of revenue in the late 1940's, levied the occupational tax. The Court of Appeals upheld the tax on the basis that the occupational tax is a privilege tax on those engaged in specified businesses, and the money earned is simply a measurement on which to base the tax. City of Louisville v. Sebree (1948). Consequently, approximately 40 Kentucky cities now levy the occupational tax, as well as the property tax, and depend upon it as a vital part of city finance. The occupational tax in Louisville, for instance, accounts for 45 percent of the total city

revenue.

Section 246 of the Constitution sets maximum salary limits for state officers. The framers of the Constitution did not consider the change in dollar value that would occur in the future. The $5,000 limit in 1891 was reasonable, but as the purchasing

power of the dollar shrank, the limit became totally unreasonable. Yet attempts to pass a constitutional amendment eliminating the limits failed in 1925, 1927, 1929, and 1943. In 1949 an amendment passed which raised the salaries to other specified limits. The rapid change in the economy soon outdated these 1949 limits, but again in 1963 an amendment to remove the salary limits was defeated. The Court of Appeals held in Matthews v. Allen (1962) that the constitutional salary provisions could be interpreted to equate current salaries with the purchasing power of the dollar at the time the salary provision was adopted into the Constitution. This decision, often referred to as the "rubber dollar'' decision, permits state government to pay its officers salaries which are compatible with the costs of living.

There is no provision in the Constitution authorizing urban county government, which Lexington and Fayette County now have. The Court upheld this form of government in Holsclaw v. Stephens (1973) on the basis that the Constitution does not limit the form of local government to the traditional cities, towns and counties. In this same case, the Court refused to consider Lexington anything other than a city of the second class although it had the requisite population for a city of the first class, but the General Assembly had not changed its classification. The Court has traditionally held that only the General Assembly has the authority to classify a city. Green v. Commonwealth (1894); London v. Brown (1919).

Section 157 of the Constitution limits the indebtedness of a county, city, town, taxing district or other municipality to the income and revenue of one year without the approval of two-thirds of the voters. The difficulty of obtaining this majority of voter approval has brought about the use of revenue bonds. These bonds are debt securities to be retired from the proceeds produced by the project that is funded, e.g., municipal utilities and parking lots. Revenue bonds to be discharged from a special benefit assessment are used for such projects as sewers, sewage treatment plants and waterlines. The Court has held that these bonds are not subject to the constitutional debt limitations since they involve no pledge of future tax revenues. Bowling Green v. Kirby (1927); Robertson v. Danville (1956). The Court has also held that a school board can build a school building to be paid for with future tax revenues without being subject to constitutional limitations. The school board can create a separate, nonprofit corporation which issues revenue bonds, builds the school and then leases the building back to the school board for enough to retire the bonds. Only the annual rent is counted toward the debt limitation. Waller v. Georgetown (1925). A city parks board could follow the same procedure to construct a swimming pool. Thus, an avenue for capital construction within constitutional debt limitations has been developed, and it is used at all levels of state government.

These decisions are a few of the many ways the Supreme Court (Court of Appeals) has had to interpret Kentucky's Constitution to meet situations which were not envisioned in 1891. The problem with this approach is that Kentucky's basic law lies to a great extent in judicial opinions scattered throughout the years; and in Allan Trout's words, the average citizen can know only a "shadow of the substance" by reading the Constitution.8

CHAPTER II

METHODS OF REVISING STATE CONSTITUTIONS

The Diversity of State Constitutions

The function of a constitution is to provide a framework of fundamental law. The United States Constitution serves as an excellent example. It is brief; it outlines the three branches of government, and it reserves certain powers for the federal government. The greatest weakness of state constitutions is the inclusion of details which should be provided by statute.

Kentucky's constitutional history seems to follow the evolution of state constitutions generally. When the United States first became independent, the thinking of the times was to transfer the sovereignty from the king to the people via the legislatures. The tremendous growth of the country and the demands for expansion of services placed great pressures on the legislatures. When the legislators yielded to pressures of corporations and political bosses, the people took action by placing into the constitutions restrictions which cured the current difficulties but did not consider the changes which lay ahead. Consequently, amendments became necessary, and lawsuits abounded on the long, detailed constitutions.

There are no two state constitutions alike, and they range in length from 6,600 words in Vermont to 600,000 words in Georgia. Significantly, the briefest state constitutions are the oldest and the newest. There are three state constitutions which have fewer than 10,000 words, and they were adopted in 1973 (Vermont), 1858 (Minnesota), and 1965 (Connecticut). Five states have constitutions containing more than 40,000 words, and all five were adopted in the late ninteenth and the twentieth centuries. Kentucky's Constitution, adopted in 1891, now contains approximately 23,000 words and is over 60 percent longer than the constitution preceding it.

Revision by Amendments

How do other states, then, keep their constitutions up-to-date? Constitutional amendments are the easiest and most frequently used means of constitutional update. The number of amendments permitted per election and the requirements for submission vary widely from state to state. Forty-five states have no limit on the number of amendments submitted at one election while Kentucky has the strictest limitation by allowing no more than two amendments to be submitted only at elections for members of the House of Representatives, which occur every two years. Furthermore, in Kentucky, amendments can only be considered at regular sessions of the General Assembly,

years. An

and the same amendment cannot be submitted for a second vote within five amendment may not relate to more than one subject, and each amendment must be voted on separately.

Limitations on the amending process in other states include requiring the proposed amendment to be approved by two sessions of the legislature before being submitted to the voters. South Carolina requires the legislature to approve the proposed amendment a second time after the voters have approved it. New York requires an attorney general's opinion on the proposed amendment before legislative action. Tennessee requires a majority approval of one session and a two-thirds approval of the second session of the legislature. Pennsylvania requires the majority approval of two sessions, but also provides for emergency passage of a proposed amendment with a twothirds vote of the legislature and a majority of the voters at an election held within one month after legislative approval. Vermont requires approval by a majority at two legislative sessions, permits amendments to be submitted only every four years but does not limit the number of amendments. Three states provide the option of approval by one or two sessions. If approved by one session, the required vote must be three-fourths of the legislature in Connecticut, two-thirds in Hawaii and three-fifths in New Jersey. A majority of two sessions will place an amendment on the ballot in all three of these

states.

In summary, 35 states require approval of proposed amendments by one session of the legislature. Twelve states require approval of two sessions of the legislature. Three states provide the option of approval by a majority of two sessions or approval by a greater percentage of one session. Kentucky requires approval by threefifths majority of one session of the legislature to place a constitutional amendment on the ballot.

All states require voter approval of the proposed amendment except Delaware, which permits the proposed amendment to be a part of the constitution on being approved by two-thirds of two sessions of the legislature.

Three states limit the number of amendments submitted to the voters at one time—Kentucky, two; Arkansas, three; and Kansas, five. Two states limit the number of articles in the constitution that can be affected by amendments but place no restriction on the number of amendments-Illinois, three articles; Colorado, six articles. The other 45 states have no limitations on proposed amendments.

Voters in 17 states can have a constitutional amendment placed on the ballot through the initiative petition. The required number of signatures is usually based on the total number voting in the last election for governor. The percentage required varies