Because of the public importance of the question involved in this case, the minority deems it proper to state the reasons which impel us to dissent.
We believe that the benefits which the General Assembly by Chapter 131, Acts of 1940, granted to the judges of the Court of Appeals upon retirement from office under the conditions therein stated are not pay or compensation, but gratuities, given by a grateful people in recognition of public services; that the power to enact such legislation is inherent in the General Assembly unless prohibited by the Constitution of Kentucky; that the judges who qualify under the requirements of Sections 1 or 2 of the Act are properly classified as public benefactors entitled to the exclusive separate emoluments granted to the members of those classes; that they render "public services" within the meaning of Section *Page 818 3 of the Constitution; that the receipt of a gratuity cannot increase "compensation for official services," and so cannot cause an official's compensation to exceed the limit of $5,000 fixed by Section 246; that no provision of the Constitution prohibited the enactment of Sections 1 or 2 of the Act; that the well-settled rules, long established for the guidance of a court considering the matter of the judicial branch of government nullifying the action of another coordinate branch, should be followed and not disregarded; and that the court should not be influenced by the personal views of its members as to the wisdom of the policy of granting these pensions, since the propriety, wisdom, and expediency of legislation isexclusively a legislative question.
These points will now be discussed in more detail.
Section 3 of the Constitution prohibiting the granting of separate public emoluments or privileges to any man or set of men, is expressly limited in scope by the clause: "except in consideration of public services," and in our opinion, the majority is not justified in construing these words as if they had been: "except as compensation for public services." A more logical and more proper construction of the clause is: "exceptin recognition of public services." We have been unable to find any authority to support the majority view, but we have found judicial language supporting ours.
In the case of Board of Education of Calloway County et al. v. Talbott, Auditor, 261 Ky. 66, 86 S.W.2d 1059, 1064, the Court of Appeals of Kentucky held:
"It is true that we have construed Sections 3 and 171 of our Constitution 'to mean that an appropriation may be made by way of gratuity in recognition of public services.' " (Italics ours.)
Beyond the words actually used in Section 3, we have been shown no recorded evidence of the meaning which the members of the Constitutional Convention intended to convey thereby, although the history of the section and the Debates of the Conventions were reviewed and commented upon in the briefs filed in this case. Therefore, it seems to us that the language of the Kentucky court in the Talbott case should control.
The prohibition contained in Section 3 was not directed toward gratuities granted in recognition of public *Page 819 services, as is clearly seen from the history of that section, and from an examination of the terms used in that and other sections of the Constitution.
The provisions of Section 3 of our present (Fourth) Constitution are substantially the same as in our First Constitution, adopted in 1792. It is well understood that historically Section 3, which was borrowed from the Constitution of Virginia at the time Kentucky became a state, was intended to put an end to certain abuses which were prevalent in England at the time when the Colonies declared their independence. It was then the practice of English Kings to confer pecuniary favors upon favorites, of both sexes, by placing them upon "the civil pension list," which enabled them to draw handsome allowances from the public treasury without rendering even "public" services.
Had the framers of the Constitution intended to restrict the meaning of the term "public services," it could as easily have used only the word "services" in Section 3, as in the eight other sections where the latter term is found in reference to compensation for officers. Sections 42, 74, 86, 96, 112, 133, 140, and 245. In fact, had the framers desired to express the limitation as the majority now construes the words used by them, they could and would have used language to correctly express that thought, such as: "except as compensation for services." The fact that in the entire Constitution the term "public services" is used only once (in Section 3) and the term "official services" also is used only once (in Section 246), is quite significant. We do not think it proper for the court, by judicial construction, to rewrite the sections by ignoring the distinction obviously made by those who prepared the Constitution.
The minority is convinced that there exists a form of "service" which is not embraced within the term "official services," and which those drafting the Constitution sought to identify by using the term "public services" in connection with Section 3, instead of the term "official services" found in Section 246. In Ferguson v. Landram, 1 Bush 548, 64 Ky. 548,593, it is stated that the term "public services," as used in Section 3, can be applied to "great mental endowments" or "a life of public virtue," as distinguished from the rendition of "service." *Page 820
The majority concede that public service, as well as official services, may be rendered by an official, but they say, in effect, that an official's public service is not to be included within the meaning of the term "public service" found in Section 3, if its rendition has any connection with the performance of official duties. The reason given is that the official's salary covers all such services. This could be important in the consideration of this case only if Section 3 prohibited the granting of an allowance unless made inpayment for the public services. Section 3 could be so construed only by giving to the expression "in consideration of" the meaning "as payment for." Yet five members of this court have agreed, and have expressly so stated in the concurring opinion and in this dissenting opinion, that the words "in consideration of" mean "in recognition of," or "on account of," and were not used "in a contractual sense." The majority opinion does not express a contrary view for the remaining two members. Notwithstanding such agreement upon this most vital point in the case, the majority reaches a conclusion that necessarily gives the term a contractual application, although such was admittedly not intended by the framers of the Constitution.
If a quid pro quo is essential, then the pension is not a gratuity, but is a salary, giving the pensioner vested rights therein.
It is well settled that a pension is a gratuity and that the pensioner has no vested rights to the continuance thereof if the Legislature sees fit to repeal the act granting it.
In the case of Rohe v. City of Covington et al., 255 Ky. 164,73 S.W.2d 19, 20, involving policemen's and firemen's pensions, the court said:
"Indeed the granting of a pension in the first instance does not stand on the plane of a contract right or right vested by statute. A pension is a bounty springing from the appreciation and graciousness of the sovereign, and may be given or withheld at its pleasure."
In Head v. Jacobs, 150 Ky. 290, 150 S.W. 349, 350, involving policemen's pensions, the court held that:
"A pensioner has no vested right to his pension. *Page 821 The Legislature which created it can recall its bounty at its discretion."
In the note in A.L.R. to People ex rel. Donovan v. Retirement Board, etc., 326 Ill. 579, 158 N.E. 220, 54 A.L.R. 940, the annotator says:
"The unquestioned rule is that a pension granted by the public authorities is not a contractual obligation, but a gratuitous allowance, in the continuance of which the pensioner has no vested right; and that a pension is accordingly terminable at the will of the grantor."
In Dickey v. Jackson, 181 Iowa 1155, 165 N.W. 387, 389, the court said: A pension "is ordinarily a gratuity from the government or some of its subordinate agencies, in recognition, but not in payment, for past services."
The power of the General Assembly to classify for the purpose of preferring the members of one class over those of another class, is no longer open to question, providing the classification is not arbitrary or unreasonable.
In Commonwealth v. Goldburg, 167 Ky. 96, 180 S.W. 68, 73, involving a construction of Section 3, the court said:
"But so far as the mere question of the authority for legislative classification is concerned, there is no room for dispute. It has been time and again settled by courts everywhere that it is competent for the Legislature to create classes and deal with these classes, both in respect to civil as well as criminal rights and liabilities, separately, the only limitation being that the classification must rest upon some reasonable difference existing between the class selected for treatment and other classes of persons or property. So that the mere fact that the Legislature may confer upon a certain class rights and privileges not enjoyed by other classes is in itself no objection to the statute, unless the classification is arbitrary or unreasonable. * * *
"Therefore reasonable legislation, having for its purpose the creation of classes and their separate treatment, should not be interfered with on the ground that it is unreasonable or arbitrary, unless *Page 822 it plainly appears to be and is an effort to confer some undue privileges in excess of the lawful rights of the person or businesses affected, or to deny to the persons or businesses affected some privilege to which they are fairly entitled. So that the question whether the classification here made is reasonable depends on whether the class of property selected for separate classification and treatment is of such a character as that it may reasonably be set apart in a class by itself. We think it is. * * *
"And the accomplishment of these objects, affecting as they do the public good, authorizes the Legislature to put the persons and businesses treated of in a class by themselves."
The General Assembly has the same powers of classification for pension purposes. In the case of Rohe v. City of Covington, supra, the court said:
"* * * It is for the Legislature to say what classes of persons shall receive pensions, and to fix the terms and conditions on which they will be granted."
The free sovereign people of the Commonwealth of Kentucky, through their duly accredited representatives, met in General Assembly, have spoken these words:
"It is hereby declared that sound public policy is that reasonable security and financial independence should be established for those serving on the highest court of this State, * * *"
and have enacted a law and made an appropriation to put into effect such a public policy.
We are called upon to determine whether the will of the people, as expressed by the legislative branch of the government, and approved by the executive branch, must be denied approval by the judicial branch. If it can be approved, within the law, it must be approved. It can be approved unless this particular attempt of the Legislature to exercise its powers was forbidden by the Constitution of Kentucky, inexpress terms or by necessary and proper implication. Unlike the Federal Constitution, which is a grant of powers, the State Constitution is merely a limitation on powers otherwise absolute.
The power of the General Assembly, and the only *Page 823 extent to which the Constitution limits that power, is thus stated in the case of Board of Trustees of Policemen's Pension Fund v. Schupp, 223 Ky. 269, 3 S.W.2d 606, 608, in which the policemen's pension law was upheld:
"Much of the confusion that might arise in considering cases of this kind will be removed by a few moments' reflection upon the power of the General Assembly of Kentucky. The people of Kentucky are a free, a sovereign people, and when the duly accredited representatives of that people meet in general assembly, that sovereignty inheres in that assembly. It does not look or have to look to Constitutions for grant of its authority, for it is the representative body of a sovereign people, recognizing no human authority above itself, and restricted only by those limitations which have been, for the common good, yielded to the federal government, and those which for our common safety have been embodied in our state Constitution.
"The theory that the right of local self-government inheres in the municipalities of this state is essentially unsound, and is based upon the now discarded doctrine that the Constitution of this state is a grant or delegation of power by the people of the state to the state government, and is not, as is now generally recognized, a limitation upon a power which, merely by virtue of its sovereignty, would otherwise be absolute. When this section of the Constitution provided for the classification of cities for their organization and a definition of their powers by general law, that was not a grant to the General Assembly of authority so to do, but was a limitation upon what, without those limitations, would be the absolute power of the General Assembly to do what it pleased. When we look at these questions from this position, and view our Constitution not as a grant of authority, but as a series of limitations upon what otherwise would be the absolute power of the General Assembly, the solution of this case presents no difficulty."
While no claim has been made in this case that the members of the highest court in the judicial branch of government are not as worthy of separate classification for pension purposes as firemen, or policemen, or school *Page 824 teachers, or soldiers, yet we desire to briefly call attention to some of the many laudable motives which must have prompted the General Assembly to pass this act.
Had the General Assembly been actuated only by a desire to discharge a moral obligation toward the set of men who are devoting their lives and talents to the administration of justice from the highest court of the Commonwealth, at the cost of the economic security which their private practice at home would assure, and with all the other economic hazards which inevitably accompany the secluded life of an appellate judge, there is judicial language supporting appropriations for such purposes.
In the case of Board of Education of Calloway County et al. v. Talbott, Auditor, supra, dealing with school teachers, the court said:
"The Legislature may make an appropriation in recognition of moral or equitable obligations, such as a just man would be likely to recognize in his own affairs, whether by law he is required to do so or not. 'Taxation to raise money to pay a claim based on a moral obligation, and not enforceable at law, is for a public purpose, and is proper unless forbidden by some constitutional provisions.' Cooley on Taxation, Vol. 1, 4th Ed., Section 194, page 412."
In the case of DeWolf v. Bowley, 355 Ill. 530, 189 N.E. 893,894, the Supreme Court of Illinois had this to say on the subject:
"Pensions have generally been sustained on the ground that public benefit accrues in two ways: By encouraging such officers or employees to remain in the service, and by retiring from public service those who have become incapacitated from performing the duties as well as they might be performed by younger or more vigorous persons. I Dillon on Mun. Corp. (5th Ed.), Section 430. Cooley, in his treatise on taxation (1 Cooley on Taxation [3rd Ed.] 189), presents the view of courts generally of this country concerning, pensions, that their primary object is not a private but public interest, to show appreciation for meritorious public service, which may reasonably be expected to have a powerful influence in inducing long and continued service. *Page 825 He expresses the opinion that the power of the Legislature to pass such acts is undoubted."
Then follows a review of the judicial pension systems in force for many years in "all the major nations of the world," including the Federal Courts of the United States, and the state courts of eighteen states in this country. (Since 1934, when this case was decided, the number of states adopting judicial pension systems has increased to at least twenty-nine, exclusive of Kentucky.)
Another opinion containing language pertinent to this subject is in the case of State ex rel. Dudgeon v. Levitan,181 Wis. 326, 193 N.W. 499, 500, where the Supreme Court of Wisconsin, in upholding teachers' pensions, used the following language:
"As we view it, the annuity based on past service is not intended to be, or operate as, compensation for past service. It was rather intended to be, and in fact is, an inducement to the seasoned and experienced teacher to remain in the service and give the public the benefit of his experience."
The issues presented in the Illinois case are almost identical with those in this case, the constitutional limitations are fully as restrictive as those of this Commonwealth, and its finding that a grant of judicial pensions is valid, notwithstanding a constitutional provision of Illinois prohibiting the granting of any "extra compensation,fee, or allowance to any public officer * * * after service has been rendered" (since a pension is not "compensation," etc.) should be a valuable precedent for this court to follow. The efforts to distinguish the case are strained and unsound, but as we have ample domestic authorities to support our view we shall not devote the required space to an analysis of that case nor the decisions of the courts of any other states.
In the Schupp case, the Kentucky Court of Appeals quotes with approval the following from R. C. L.:
" 'The establishment of a pension system for municipal officers and employees, whereby, after serving a certain number of years or upon disablement from injuries received in the course of their duties, they are retired from active service and paid a certain *Page 826 proportion of their salaries for the remainder of their lives is not an unconstitutional disposition of public moneys for private use when applied to officers and employees who have entered or continued in the service after the system went into effect. * * * A judiciously administered pension fund is doubtless a patent agency in securing and retaining the services of the most faithful and efficient class of men connected with those arms of the municipal service in which every property owner and resident of the city is most vitally interested. Reasons in support of this proposition need not be stated in detail. They are such as readily suggest themselves to every reflecting mind.' 19 Rawle C. L. 726, 727."
The many public benefits resulting from the adoption of a pension system for the judges of the highest court of a State are commented upon in an article entitled "Pensions for Judges" by Burke Shartel, Professor of Law of the University of Michigan, in 27 Michigan Law Review 134, to which is directed the attention of those interested in a more detailed discussion of the subject.
Although the grant is made directly to an individual, the primary object of a pension may be the general public, as was pointed out by the Justices of the Supreme Judicial Court of Massachusetts, including Justice Holmes, in an opinion entitled In re Opinion of the Justices, 175 Mass. 599, 57 N.E. 675, 49 L.R.A. 564, where it is said: "Such a gift may be intended primarily for an object which is no more private than a memorial hall." In that case the court, although recognizing the general rule that public funds may not be appropriated to private uses, holds that to a great extent it should be left to the conscience of the legislature to distinguish between private and public benefits, and that a pension to a widow of a person who died while holding office could be approved since "it fairly can be thought that the public good will be served" thereby.
We shall next consider the reasonableness of the classifications for benefits under the Judges Pension Act.
Section 1 of the Act creates a class consisting of (1) judges of the Court of Appeals, (2) who have served *Page 827 ten years or more, (3) continuously, (4) who have reached the age of sixty-five, and (5) who retire from office.
Section 2 of the Act creates a class consisting of (1) judges of the Court of Appeals, (2) who have served sixteen years or more, (3) continuously, (4) who retire from office, (5) because of ill health or physical incapacity, (6) when such facts are certified by order of the court or a majority of its members.
Although the minimum age requirement is stated in Section 1 and not in Section 2, yet it does not follow that the standards for qualifying under Section 2 are not as high, nor that the same good reasons do not support both classifications, since the minimum term of continuous service is increased by sixty per cent., and ill health or physical incapacity is added to the other requirements. The classification of beneficiaries who receive rights and privileges not enjoyed by those who cannot qualify is no ground for invalidating the act, the classification not being arbitrary or unreasonable. Commonwealth v. Goldburg, supra.
Section 3 of the Act does not expressly or impliedly contain any requirement for a minimum age, nor for a minimum period of service, nor does it apply to retirement due to ill health or physical incapacity, nor is a certification of any facts by the court or its members required. The only qualification is retirement from the office of Judge of the Court of Appeals. Although the conclusion arrived at by the majority in this case renders it unnecessary to differentiate between the three sections of the act, yet the minority is constrained to state its belief that the standards for qualifying under Section 3 are not sufficiently high to constitute a valid classification and, therefore, our approval of the act does not extend to Section 3.
There is nothing new about Kentucky granting pensions in consideration of public services. The best known domestic pension case is Bosworth v. Harp, 154 Ky. 559, 157 S.W. 1084,1085, 45 L.R.A., N.S., 692, Ann. Cas. 1915C, 277, decided in 1913, where the court held that the General Assembly may create a class of public benefactors to receive pensions. In approving pensions to Confederate soldiers, the court said:
"Necessarily the matter is one committed to the discretion *Page 828 of the General Assembly, and, when the Legislature has declared the use a public one, its judgment will be respected by the courts, unless the use is palpably without reasonable foundation."
The court expressly found that Section 3 did not forbid such gratuities, even though the "public services" may have been rendered outside the State, when the soldier was a resident of another state, and even though Kentucky was not one of the Confederate States. Is such a strong precedent to be brushed aside by merely saying that Confederate soldiers were not "public officers"? After being the law of the land for twenty-eight years is this court justified in rendering a decision which, in effect, at least, approves appellant's criticism that it is "bad law"?
We have examined every pension case decided by the Court of Appeals of this Commonwealth to which our attention has been called, and such others as we could find by independent investigation, and we have seen none which supports the view of the majority or which is contrary to the views of the minority.
The Court of Appeals has reviewed many cases involving Acts of the General Assembly granting pensions to policemen and firemen: McDonald v. City of Louisville, 113 Ky. 425,68 S.W. 413 (Act of 1893, as amended in 1900); Board of Trustees of Firemen's Pension Fund v. McCrory, 132 Ky. 89, 116 S.W. 326, 21 L.R.A., N.S., 583 (Act of 1902); Tyson v. Board of Trustees, Firemen's Pension Fund, 139 Ky. 256, 129 S.W. 820 (Act of 1902); Schmid v. Board of Trustees of the Firemen's Pension Fund, 146 Ky. 335, 142 S.W. 688 (Act of 1902); Head v. Jacobs, supra (Act of 1912, replacing an Act of 1904); Stone v. City of Lexington, 192 Ky. 60, 232 S.W. 50 (Act of 1894, as amended in 1900 and 1920); Board of Trustees of Policemen's Fund v. Schupp, supra (Act of 1912, as amended in 1926); Campbell et al. v. Board of Trustees of Firemen's Pension Fund of Louisville, 235 Ky. 383, 31 S.W.2d 620 (Act of 1912, as amended in 1928).
As recently as 1940, the Court of Appeals has continued its policy of approving the firemen's and policemen's pension acts. Miller v. Price et al., 282 Ky. 611, 139 S.W.2d 450, 453.
Another class receiving pensions in this state are *Page 829 school teachers, and these have also been held to be public officers. Board of Education of Calloway County et al. v. Talbott, Auditor, supra. That case did not involve pensions, but merely the right of teachers to salary under an invalid statute. However, many of the statements of general principles of law, like the one previously quoted in this opinion, are applicable to this case.
The foregoing precedents of judicial approval of pensions to public officers should completely answer the contention that one who has received a salary for official services cannot accept a pension for public services having any affinity with his official services. There is no difference, so far as the law of the case under consideration is concerned, between the right of a judge to receive a pension in recognition of his public services growing out of the discharge of his official duties, and the right of a policeman, fireman or school teacher to receive a pension in recognition of public services growing out of the discharge of their official duties. According to the construction placed on Section 3 by the majority, theexception to the prohibition contained in Section 3 is meaningless as far as officials who receive the salary limit are concerned, since they are ineligible for the benefits which the Legislature may wish to grant them in recognition of their public services.
An attempt is made by the appellant to distinguish these cases upon the ground that the pension systems involved have some contributing features. This is completely answered in the case of Miller v. Price et al., supra, where the court held that "the fact that a pensioner has made compulsory contributions does not vest him with rights in the fund," and that the pension is nevertheless a gratuity or bounty.
The majority says that the precedent created by the court's approval of Confederate pensions (Bosworth v. Harp, supra) is not applicable here because it did not involve a public officer. This contention is answered by the court in the case of Schmitt, Auditor, v. Dooling, 145 Ky. 240, 140 S.W. 197,198, 36 L.R.A., N.S., 881, Ann. Cas. 1913B, 1078, which holds that firemen and policemen are "public officers." The opinion also says, "* * * a pension system is provided for firemen and policemen alike." If being a public officer was no objection *Page 830 in the case of a policeman (Schupp case) why should it be in this case?
The majority also says that the Schupp case is distinguishable because the pension there was small. Obviously, the size of a pension should not be the test of the constitutionality of the act creating it. 'While the point has not been directly involved in any of the decisions, it is interesting to note that the annual appropriation for teachers' pensions is $500,000 (Chapter 192, Acts of 1940) while that for judges is only $25,000, and there would be very little probability of the benefits under this act ever requiring the entire appropriation, since if all seven judges were eligible for pensions and retired at the same time, the total amount required would be only $35,000. No one has contended in this case that the taxpayers' money will not be put to as good use under this act as under the acts pensioning policemen, firemen, school teachers, or soldiers.
It is suggested that the act is subject to criticism because all the members of the class selected for this pension, when eligible, will get the same amount each year as a pension, when it is highly improbable that each will render the same quality of public service. The same objection could have been raised against the school teachers, and the court could have refused to hold constitutional the policemen's pensions, the firemen's pensions, and the Confederate pensions, on the same grounds. Moreover, it is a sufficient answer that the court has previously held that it is for the Legislature to fix the terms of pensions as well as to say what classes shall receive them. Rohe v. City of Covington, supra. There have been numerous instances where the Legislature has allowed gratuities to those it considered had rendered public services which have not reached the court for a test as to validity. For instance, an appropriation of $50 a month so long as he might live was made to one Robinson, a guard at the penitentiary (Acts of 1926, Chapter 365); a pension of $50 a month so long as he might live was allowed to one Overton, injured while firing a cannon celebrating an anniversary recognized by prior resolution of the Legislature (Acts of 1924, Chapter 297); and the much discussed pension of $300 a year for life to Judge George Muter, Chief Justice of the Court of Appeals of Kentucky, referred to in a dictum in the opinion in Barker v. Crum,177 Ky. 637, *Page 831 198 S.W. 211, L.R.A. 1918F, 673, which pension was later withdrawn by the Legislature and never the subject of court litigation. Perhaps there have been many other similar pensions for life in Kentucky. Certainly there have been a great many gratuities for less than life. Acts of 1940, p. 897; Acts of 1938, Ch. 199; Acts of 1938, Ch. 241; Acts of 1930, Ch. 550; Acts of 1928, Ch. 595; Acts of 1916, p. 721; Acts of 1914, p. 509; Acts of 1914, p. 503; Acts of 1912, p. 663; Acts of 1906, p. 547; Acts of 1904, p. 327; Acts of 1904, p. 326; Acts of 1898, p. 151; Acts of 1896, p. 75; Acts of 1894, p. 370; Acts of 1892-3, p. 1544; Acts of 1887-8, Vol. 1, p. 261; Acts of 1885-6, Vol. 1, p. 273; and Acts of 1881-82, Vol. 1, p. 151. The beneficiaries of such gratuities have included a number of public officials.
It will thus be seen that the courts of this Commonwealth have not previously denied to the General Assembly its power to grant pensions to public officials in recognition of public services. In every instance where the question has been presented to the court, the power has been upheld. In all cases not reaching the courts, of which we have been advised, the ministerial officers of the Commonwealth and of the various municipalities involved have audited and paid such pensions without doubt or question. The court has stated that such "contemporaneous practical construction" should serve as a guide to the court in arriving at a solution of the constitutional questions presented.
In James, Auditor v. State University, 131 Ky. 156,114 S.W. 767, 772, the court said:
"Looking to the contemporaneous practical construction of these two sections of the Constitution for guidance in arriving at a solution of the questions raised by appellant's final contention, we find that the Legislature has since the adoption of the present Constitution passed like acts to that under consideration appropriating large sums of money to such institutions as appellees, which have been approved by the sinking fund commissioners and other executive boards of the state, and audited and paid by its ministerial officers without doubt or question."
From all of the foregoing authorities, it is clear to the minority that the classification under Sections 1 and *Page 832 2 of the Act is not arbitrary or unreasonable, in view of benefits to the public, the plain purpose of the General Assembly in passing this act, and the legislative and judicial precedents.
The majority concedes that "the official services of a judge of the Court of Appeals are unquestionably public services," and that, if the validity of the act under consideration depended solely upon a construction of Section 3, "there would be little question as to its validity," unless it offends some other provision of the Constitution. The "other" provision upon which the majority bases its conclusion is stated to be Section 246, and most of the opinion is devoted to a discussion of that section.
The pertinent portion of Section 246 provides that "No public officer, except the governor, shall receive more than five thousand dollars ($5,000.00) per annum as compensation for official services * * *." According to the majority "the words 'per annum' in Section 246 * * * evidently refer to the period during which the services were rendered, and not to the time of payment." (Italics ours.) In effect, the majority says that this plain language should be construed as follows: (a) the words "shall receive * * * per annum" necessarily mean "shall receive at any time for the services rendered in one year," (b) the words "as compensation for" necessarily include that which is given without obligation on the donor to give or to continue to give, and that which is received by the donee without obligation to perform any service in return, and (c) that the word "official" necessarily includes "public" services.
The majority justifies this interpretation, as well as its conclusion as to the invalidity of the act as a whole, by saying that "Sections 3 and 246 are harmonious and complement each other." To the minority this is the same as saying that while neither one will invalidate this act, yet the two together will accomplish that result. It does not seem logical to say that if neither Section 3, standing alone, nor Section 246, standing alone, renders the act invalid, the two when read together will do so. That result can be accomplished, if at all, only by substituting the word "official" (admittedly of narrower meaning) at the place where the word "public" (admittedly of broader meaning) appears in Section 3, *Page 833 and substituting the broad term "public" for the narrow term "official," in Section 246, and also substituting the expression "as compensation for" at the place where the expression "in consideration of" appears in Section 3, and substituting the expression "in consideration of" at the place where the expression "as compensation for" appears in Section 246. As if not satisfied with this wholesale scrambling of the two sections, the majority then reads into Section 246, as thus revised, the three words "at any time" between the words "shall receive" and the words "per annum." In this manner, by judicial construction, there are created two entirely new sections of the Constitution, differing from the originals in sufficient essential qualities to render the act invalid, contrary to the admonition of the court to construe, not construct, the Constitution.
In District Board of Tuberculosis Sanitarium Trustees for Fayette County v. City of Lexington et al., 227 Ky. 7,12 S.W.2d 348, 351, the court said:
"In questioning the validity of a statute or construing the language of the Constitution, courts proceed with great caution. 'We must never forget,' said Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. [316] 407, 4 L. Ed. 579, 'that it is a Constitution we are expounding.' In similar spirit we must always remember that we are construing, not constructing, a Constitution, and that whoever assails as unconstitutional an act of the General Assembly, where the legislative power of the people is reposed, labors under the burden of placing his finger on the section or provision of the Constitution which the act violates."
We cannot agree that any of the authorities cited by the majority hold that Section 246, expressly, or by necessary implication, forbids an ex-official within a properly designated class from receiving from the Commonwealth a gratuity in recognition of public services, where he has received an annual salary of $5,000 during the period he was in office.
In the case of Sanders v. Talbott, 255 Ky. 50,72 S.W.2d 758, cited by the majority on this point, an official was given additional fees, including a "bonus" of $300, in order to increase his salary sufficiently to enable him to divide with other employees for whom no provision *Page 834 for compensation could be made under the law. This was admittedly a subterfuge. The court correctly held that this bonus should be counted in determining whether the official's compensation received "in any one year" had reached the maximum salary permitted by Section 246. It was paid to him during his term, the same as his regular fees, and the court would not have been justified in giving it a different classification for the purpose of excluding it from the total of the compensation received by him during that year. This item was only one of a number that the official contended should not be counted, and it very properly shared the same fate as the others. Furthermore, there was no classification by the General Assembly. The opinion approves the validity of an additional allowance (bonus) to a public official in recognition of his public services even though he has already been paid a salaryfor those services. We do not consider that the court held, or intended to hold, that a bonus declared and paid during the year of active service of an official to enlarge his annual compensation is the same as a gratuity paid after his term to provide security during the period following active service. We do not find where the court of this or any other State has ever accepted the Sanders case as such a precedent, or construed that opinion as so holding.
The majority also relies upon Robinson v. Elliott County Fiscal Court, 236 Ky. 63, 32 S.W.2d 554, but that case merely held that the regular salary of an official could be supplemented by special fees for extra work, even though the extra allowance was made at a different time from the order of the fiscal court fixing the regular salary.
The third care which the majority cites as supporting its view is Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133, which upheld the validity of the act creating the Judicial Council, the membership of which is drawn from the active judges of the Court of Appeals and of the various circuit courts of the Commonwealth. Certain duties were imposed upon the members and compensation therefor fixed. The court very properly held that no sufficient reason appeared why the active judges might not be paid for the additional services thereby imposed upon them, so long as the total annual salary of each did not exceed $5,000. Clearly, this additional *Page 835 compensation was a salary, paid in return for additional services rendered, which, in the instances where the regular and special salaries combined would exceed $5,000, plainly involved Section 246, as written. Obviously, the Judicial Council case is no authority against the validity of the Judges Pension Act.
The last case relied upon in the majority opinion is Slayton v. Rogers, 128 Ky. 106, 107 S.W. 696, 32 Ky. Law Rep. 897, which involved the special employment of a county attorney to render extra services for extra pay. The court held he was entitled to be so employed and to accept the extra pay, since the duties were not connected with his regular duties as county attorney for which he was paid the regular salary. Section 246 of the Constitution was not mentioned in the opinion, but if the extra pay had increased the official's total compensation beyond the $5,000 limit, there would have arisen a case for the application of the bar of Section 246, since obviously the services in both capacities were official, and all the compensation received was in payment for those services. So far as a proper decision of the Judges Pension case is concerned, no significance should be attached to the fact that the court in Slayton v. Rogers said, in effect, that the standard for determining whether certain duties were within the scope of existing employment was to ascertain whether the extra services were "outside of official duties and with which they have no affinity or connection, and which do not interfere with his official duties." Clearly, the court did not hold, nor intend to hold, that an official may not receive a gratuity unless he performs services therefor, nor unless those services are outside his official duties, because no such facts were involved in that case.
This disposes of all the cases relied upon in the majority opinion, so we shall now consider a few of the authorities supporting our view that Section 246 is not involved in this pension case.
In Board of Trustees of Policemen's Pension Fund v. Schupp, et al., supra, the court upheld the constitutionality of the policemen's pension law, notwithstanding the fact that it is possible for the total amount which may be received by a policeman to exceed $5,000, although the period of his active service may be limited to a single year. For example, if a policeman should be *Page 836 permanently disabled during or at the end of his first year of service, he would draw, in addition to the salary paid him during his active service, a pension of $60 a month, as the court said, "during his remaining days." This pension, alone, would exceed $5,000 in less than seven years, and when his salary is also considered, the total would exceed $5,000 probably in five years. Even if the policeman were 82 years old when pensioned, he would have an expectancy in excess of five years, according to the Wigglesworth life tables. Certainly, the able counsel attacking the constitutionality of that pension case, and the members of the court considering the case, could not have completely overlooked that point of vulnerability, if it existed. On the contrary, it is apparent that the court had in mind the distinction between compensation which the city owed a policeman for official services (which is limited by Section 246) and a pension for public services (which is not limited by Section 246), for it said: "* * * it must be remembered this pension is not a debt of the city, but only a gratuity."
The same situation applies to the pensions now in operation in this state (other than for soldiers) such as the firemen's pensions, the policemen's pensions, and the teachers' pensions. Section 246 is not involved in old age pensions, of course, because the pensioner might not be an official, and the constitutional amendment permitting old age pensions was certainly not adopted for any such reason. However, the amendment was necessary to avoid the prohibition of Section 3, since old age pensions are available to those who have rendered no public service of any kind.
Also, it should be borne in mind that the proposed amendments to the Constitution which were voted down three times, mentioned in the arguments and briefs in this case, affected only salary limitations, and not pensions. No constitutional amendment sanctioning pensions has been submitted to the voters, — nor need it be, according to our construction of the language of the existing Constitution, if the pension is granted to a properly designated class, for public services.
If it were necessary to find in the Constitution a provisionauthorizing the benefits conferred by the act, this court would be justified in upholding the validity of Sections 1 and 2 under Section 244a of the Constitution, which reads as follows: *Page 837
"The general assembly shall prescribe such laws as may be necessary for the granting and paying of old persons an annuity or pension."
The amendment does not fix a minimum age for beneficiaries of old age pensions nor provide any other qualification. The General Assembly has enacted legislation to grant old age pensions and has fixed the minimum age at 65 years (Section 3766bb-1, Kentucky Statutes). It will be noted that the minimum age requirement in Section I of the Judges' Pension Act is also 65. The fact that there are additional requirements in the act does not affect the applicability of Section 244a. Because the minimum age for eligibility on the Court of Appeals is 35 years and the minimum length of service before becoming eligible for benefits under Section 2 of the Act is more than sixteen years, an implied age qualification is fixed, since there is no possibility for a judge becoming eligible for benefits prior to reaching his fifty-second year. Although we are dealing with possibilities and not probabilities, it should be conceded by all that it is quite a rare case indeed for one to become a member of the Court of Appeals at such an early age and that the probabilities are that any judge who has completed as many as 16 years of continuous service will then have reached the age mentioned in Section 1 and in the old age assistance statute mentioned above. The fact that the title to the Judges' Pension Act does not indicate that it was intended simply as old age legislation does not affect the applicability of Section 244a, nor the duty of the court to uphold the act if valid. "If any possible reasonable basis can be conceived to justify the classification, then it should be upheld." Markendorf v. Friedman, 280 Ky. 484, 133 S.W.2d 516, 519, 127 A.L.R. 416.
However, it is not necessary to rely upon Section 244a (or any other provision of the Constitution) as authority for the Legislature to enact this legislation. The minority bases its conclusions upon their inability to find in the Constitution any prohibition against the exercise of its inherent powers by the General Assembly.
If Kentucky is to be denied the benefits of a reasonable pension system, let it not be by a strained judicial construction of the existing Constitution, but by a clear and unambiguous amendment, such as those found *Page 838 in Alabama, Mississippi, Oklahoma, and South Carolina, where the Constitutions provide:
"The Legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer."
In view of our finding that this pension is a gratuity, and that the expression "in consideration of," appearing, in Section 3, has a different meaning from the expression "as compensation for," appearing in Section 246, and that the framers of the Constitution must also have had a reason for using the term "public Services" in Section 3 and "official services" in Section 246, we, like the majority, find it unnecessary to devote further space to a discussion of Section 23, since no "office" is created by this act, nor of Section 26, since this act is not contrary to the Constitution, nor of Section 59 (18) since this is not a special act (See 24 Ky. L. J. 351), nor of Section 171, since the taxes required to pay these pensions are levied and collected for a public purpose, according to the Legislature's declaration of public policy, nor of Section 235, since these pensions are not "salaries," and so no salaries of public officers are being changed during the terms for which they were elected.
This also disposes of the cases so strongly relied upon by appellant, which merely involved a consideration of one or more of those sections. McCracken County v. Reed, 125 Ky. 420,101 S.W. 348, 31 Ky. Law Rep. 31; Harlan County, etc., v. Brock,263 Ky. 530, 92 S.W.2d 757, 759; Whitley County Board of Education v. Rose, 267 Ky. 283, 102 S.W.2d 28; Shannon, Auditor v. Combs, 273 Ky. 514, 117 S.W.2d 219; Jefferson County Fiscal Court v. Thomas, etc., 279 Ky. 458,130 S.W.2d 60.
When the constitutionality of an act of the General Assembly is questioned, the court should confine itself within the long-established rules for its guidance, and proceed with the greatest possible caution, and never declare an act invalid until after every doubt has been resolved in its favor, and then only if it is able to say that the act is plainly repugnant to the Constitution.
As stated in Craig v. O'Rear, 199 Ky. 553, 251 S.W. 828,830, by the court, through the revered Judge William *Page 839 Rogers Clay, whose long and outstanding public service must have been fresh in the memory of the General Assembly when this Pension Act was enacted:
"The right of courts to declare an act unconstitutional has been settled by a long line of decisions, from which there is no dissent; but, as the Legislature is a separate and independent department of government, invested by the Constitution with the power to make laws, the courts have fixed certain rules for their own guidance, in order that the power to declare an act invalid may not be exercised too freely. In the first place, the propriety, wisdom, and expediency of legislation is exclusively a legislative question, and courts are not at liberty to declare a statute invalid because, in their judgment, it may be unnecessary, or opposed to the best interests of the state. McCray v. United States, 195 U.S. 27, 24 S. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561. Another rule is that an act will not be declared void on the ground that it is opposed to the spirit supposed to pervade the Constitution, or is against the nature and spirit of the government, or is contrary to the general principles of liberty, or the genius of a free people. * * * A third rule is that courts should always proceed with the greatest possible caution, and should never declare an act invalid until after they have resolved every doubt in its favor, and are then able to say that it is plainly repugnant to the Constitution." (Italics ours.)
The same general principle is stated in this language in the case of Duke et al. v. Boyd County, 225 Ky. 112,7 S.W.2d 839:
"It must not be overlooked that, when the power of the Legislature to enact a law is called in question, the sole duty of the courts is to look to the provisions of the federal and state Constitutions, and if they do not in express terms, or by necessary and proper implication, forbid the exercise of such power, they must uphold the validity of the act. Beyond the constitutional restrictions thus to be interpreted the only limits upon the state Legislature in enacting laws are its own wisdom, sound judgment, and patriotism. In case of doubt its action will not be interfered with by the courts. Respect for the wisdom of a co-ordinate department of *Page 840 the government, as well as sound policy, forbids such interposition except upon clear and satisfactory grounds."
To the same effect is Coleman v. Hurst, supra [226 Ky. 501,11 S.W.2d 135], where the court said:
"It is firmly settled that all doubts as to the constitutionality of an act of the General Assembly should be resolved in favor of its validity."
Appellant does not seriously question the wisdom of this particular policy, but directs criticism primarily to the possible results of creating a precedent.
Appellant's distrust of the people's use of their power when they discover that they have it, is not warranted by past experience. Innumerable opportunities to raid the treasury now exist, such as increasing the salary of all State employees to the limit of $5,000, or giving pensions to all war veterans, and not to Confederate veterans only, or to increase existing pensions to $5,000, — but the Legislature has not abused its power, and, if such prostitution of power were attempted such acts would have to meet the test of proper classification of beneficiaries. Also, the people would not tolerate such abuses longer than necessary to replace the offending legislators and repeal the objectionable law. Financial chaos or bankruptcy is no more at stake with the Judges Pension Law upheld than with it declared invalid.
It is unnecessary for this court to have or express an opinion on the question of public policy, as it affects the case under consideration or as it may affect the future course of legislation, since "the propriety, wisdom, and expediency of legislation is exclusively a legislative question." Craig v. O'Rear, supra.
In Flowers v. Logan County, 138 Ky. 59, 127 S.W. 512, 515, 137 Am. St. Rep. 347, the court said:
"There is no public policy which prohibits the Legislature from doing anything which the Constitution does not prohibit."
Arduous labors with small pay during active service is enough to exact from these public spirited judges, without denying that "reasonable security and financial independence" which the people, through the Legislature *Page 841 sought by this act to "establish for those serving on the highest court of this State."
Beyond the foregoing expression of our views on all the legal questions before this court, we can do no more than conclude this dissent with the following pertinent language from the opinion in Coleman v. Hurst, supra:
"The court cannot reconcile itself to the view that a narrow construction should be placed upon the Constitution of Kentucky, which will hamstring the judiciary of the state and render it impotent to discharge its vital functions."
Special Judges Grassham and Wallace concur in this dissent.