(concurring).
I concur in the result announced by the majority, but because of my dissent in Board of Registration Commissioners et al. v. Hallahan, County Clerk et al., Ky., 485 S.W.2d 759 (decided September 27, 1972) I am unable to subscribe to the opinion rendered without expression of my reasons for decision in this case. The majority appears to have done an about face. My position in both cases has at least the virtue of consistency, if it has no other saving grace.
It would appear that the license to completely ignore statutory language issued in the Hallahan case has been cancelled less than 30 days after that decision. In my view, the petitioners in this case came closer to compliance with the applicable statutes by a wide margin than was true in Hallahan. When the key words and phrases used in the Hallahan majority opinions are applied to the present case, the situation pattern appears disturbingly similar. Those key words and phrases are: “compelled,” “purely technical,” “facilitate,” “not to obstruct,” “reliance upon the construction placed upon the statutes in question by the constituted officials of the state and county.” Significance was also attached to the purity of motives of those who construed the statutes, and that their construction was approved by the circuit judge was cited.
The majority told us in Hallahan that election statutes should be construed liberally to favor the right of suffrage. A respected text authority makes the statement, which is based on the majority of decisions on the issue, that provisions for referendum are liberally construed to execute their purpose, to facilitate and not to hamper the exercise by the voters of the rights granted thereby. 42 Am.Jur.2d, Initiative and Referendum, Sec. 5, p. 653. Therefore, this salutary but abstract principle applies in both cases. Nevertheless, the simple, elemental fact is that in neither Hallahan nor here did the concerned parties obey the clear requirements prescribed by the language of the legislature, and in both instances the legislative language evidenced a deliberate and discernable policy choice made by the law-making branch of *754government while acting within the constitutional restrictions placed upon its power. Regardless of motivation or the claimed purity thereof, if contemporaneous construction ignores the clear language of the legislature that expresses a constitutionally permissible policy choice, it is my conviction that a court shirks its duty when it supinely validates such action whether its decision is popular or unpopular at that moment in time.
I submit that in legal circles, which doubtless influences the media in their comments on judicial performance, there is far too much reliance on labels. “Activist,” “strict constructionist,” “letter of the law man,” “sterile literalist,” “technicalities at the expense of justice,” “continuity and stability at the cost of justice denied,” are all hurled about with very little analysis. They are too often used as a kind of shorthand means of expressing passionate dissatisfaction with a particular result.
The argumentative logician or the expert propagandist would describe these expressions as “labels”; I call their indiscriminate use “slogan huckstering.”
This case and the Hallahan case present rationales of decision that appear contradictory, particularly if one uses “the reaction of the man-on-the-street” as indicative of “common sense.” I am firmly persuaded that the average man on the street today would experience considerable difficulty in understanding why, if existence of the right of suffrage validates a result to the effect that if honest, well-intentioned public officials agree to ignore the language of law prescribing reasonable standards to avoid fraud in the electoral process and a large number of people rely upon their construction, these actions are valid because the opposite result is not “compelled,” then why another group of people who desire to exercise a legislatively granted right of suffrage concerning the imposition of a tax upon them for a non-specified period of time cannot exercise that right when they and the honest, well-intentioned public officials on whom they relied believed that a few week’s tardiness in verifying the addresses of the signers of a petition to cause a public vote should not be fatal. It is decided, nevertheless, that the invalidity of their action despite their good intentions “compels” a result opposite to that reached in the first instance. In Hallahan most qualified citizens who desired to register could have properly registered in time to vote and in the instant case the addresses were verified in ample time to permit placing the proposition on the ballot. Surely the answer cannot be that courts are empowered to make a subjective choice, if the right of franchise is lawfully extended, that its exercise produces a better social result in some circumstances than in others — hence, it will strictly view in one instance and indulgently in another. Although some advocated a monarchy in the formative years of our nation, the scepter was to be offered to the executive —not to the judiciary.
If a monarchy had been instituted in this nation, I wonder if the judicial branch would have demonstrated the same courage as did Coke on the occasion of his appearance before James I.
“To this Coke answered on behalf of the judges that by the law of England the king in person could not adjudge any cause. All cases, civil and criminal, were to be determined in some court of justice according to the law and custom of the realm. ‘But’, said the king, T thought law was founded upon reason, and, I and others have reason as well as the judges.' ‘True it was,’ Coke responded, ‘that God had endowed His Majesty with excellent science and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life or inheritance of goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of the law, which law is an art which requires long study and experience before that a man can attain to cognizance of it.’ At this the king was greatly offended saying that: in such *755case he should be under the law which it was treason to affirm. Coke answered in the words of Bracton, that the king ought not to be under any man but under God and the law.” (Pound, The Development of Constitutional Guarantees of Liberty, Yale University Press, 1957, pp. 45, 46.) One might reasonably suspect that the king regarded Coke’s position as a stubborn reliance on “technicalities” at the expense of “justice.” The action of the English common law judges in holding void the grant of a monopoly to sell playing cards by Elizabeth I as being “contrary to the common law and contrary to certain acts of Parliament,” could hardly be regarded as common sense. To oppose a strong-willed, popular monarch contradicts the proposition that discretion is the better part of valor. Nevertheless, the flow of these decisions gave birth to the principle that if the sovereign undertook to act contrary to the Constitution, courts had the power and the duty to declare such acts void. The great John Marshall did not pick his principle out of the air or as the result of inspired revelation.
“Technicality at the expense of justice”? What distinguishes a “technicality” from a “deeply embedded principle that compels a result” is as elusive as is the meaning of “justice.” A national publication reported that in a specified locality a significant number of citizens stated to a pollster that they were opposed to several of the provisions of the first ten amendments to the Constitution of the United States. The guarantee against unreasonable searches and seizures may be regarded as an arid “technicality” by the business man when it prevents the introduction of illegally seized evidence against an accused criminal; the same business man might demand its protection if the government sought to seize and search and read his first class mail because he had taken a position unpopular to the government; again, the same guarantee might be viewed as an arid “technicality” by the convicted petty thief when he sees the affluent business man accused of an antitrust violation successfully plead the constitutional provision.
Another fashionable shibboleth is “continuity and stability at the cost of justice denied.” That this catch phrase has attained the status of a slogan is evidenced by a fairly recent note in 60 Ky.L.J. pp. 236, 245. This note gratuitously misconstrues the opinion in Colley v. Colley, Ky., 460 S.W.2d 821, wherein the court construed several statutes applicable to divorce in this state. The thrust of the entire discussion in this note is an attempt to make the court say what it deliberately refused to say. The court did not say that the wife had to be free of fault in order to be entitled to alimony. The author of the note did not mention the existence of or the frequent amendments to KRS 403.020, the statute in force in which grounds for divorce were stated at the time of the opinion, nor did he mention or allude to KRS 21.060, which prohibits an appeal from that part of a judgment granting a divorce. The grounds statute had removed the requirement of a showing of freedom from fault in several instances including the ground commonly called “cruelty”. The court had decided that although the prohibition against appeal from a judgment granting a divorce prevented a reversal of the divorce itself that did not prevent the appellate court from determining that a party was “legally entitled to a divorce” for purposes of property division and alimony even though that party was not free from fault in those instances, which represented probably over 90 percent of statutory ground cases presented. Thus sterile literalism was rejected in statutory interpretation to the extent permissible. The unfairness of regarding fault as a categorical imperative was pointed out. The hands of trial judges were untied. There was such a scholarly desire, however, to huckster a label that the existence of applicable statutes and decisions was either consciously or negligently omitted, in the interest of applying the label.
*756Although it may be represented that my dissent in Hallahan represents opposition to recent judicial precedent encouraging freer exercise of the right of franchise, this is simply incorrect. The legislature provided for a comprehensive overhaul of the electoral process to commence on December 1, 1972. On and after that date, if the legislature chooses as a policy decision to permit registration by mail without regard to “presence” or “absence,” then my duty is to respect that language to carry out that policy in the decisional process. There is no constitutional stricture that prevents the legislative choice. Before that date the language and policy express to me a prophylactic requirement evidenced by the words “absent” and “absentee” that have at the bare minimum the direction that an applicant for registration must be absent from somewhere, somehow, sometime, in order to be eligible to register by mail. Whether the policies adopted in either instance are the wisest or the best solutions possible are judicially irrelevant.
Great jurists, with vastly greater abilities than mine, have frankly expressed their inability to define justice or to know what is really meant by that word. Holmes, who said the law was not logic but experience, was one of them. If statutory declarations are not the law, but mere evidence of it, and courts declare the law, the problem is really not eased. If law has a reason for existence, then it must represent a consistent application of acceptable principles developed from experience to situation patterns which present the same determinative elements of fact. This operation may be as representative of the concept of “justice” as human conditions allow.
I have no blind faith in sterile literalism nor in an inflexible “letter of the law” approach. Where the legislature has not occupied the field, or where it has occupied the field partially, or where legislative expressions are ambiguous or contradictory, then courts must express policy choices in order to resolve conflicting claims when disputants invoke the decisional process. If courts, however, relegate themselves to the status of a complaint and adjustment bureau of the legislature, then perhaps judges should be elected for two-year terms on a partisan ballot, as are members of the House of Representatives, in order to assure that their implementation and revision of legislative acts represent the will of the majority.
It is apparent that the device of popular referendum presents serious policy choices to a legislative body. On the one hand, it is argued that despite its inherent revision of traditional notions of a representative rather than a direct system of government, it is a healthy procedure that operates to prevent arbitrary action and is deeply rooted in the populist attitude. On the other hand, it is asserted that since the people elect their representatives and may periodically remove and replace them by other representatives who have the power to repeal prior actions and substitute others, it is a singularly unworkable process if elected representatives have responsibilities imposed upon them, but are subjected to a device which bars them from carrying out their assumed responsibilities; particularly in issues concerning the public health, safety, morals or welfare, it is argued that the referendum device creates a system of government consisting of all checks and no balance.
In the case before us, the legislature could have subjected every decision of the school board to an unlimited referendum by the citizens who elected it, or it could have denied the referendum device entirely. The legislature chose a middle ground and made a policy choice; a strictly circumscribed and limited right of referendum was extended where the elected and responsible representatives of the people decided that the imposition of the particular legislatively authorized tax was needed for a more adequate school system. The statute required that the addresses of the signers to the petition for the referendum be verified. This data was as important as *757the signatures themselves because it went to establish whether or not the signer was qualified. 42 Am.Jur.2d, Initiative and Referendum, Sec. 29, p. 677. It is conceded that the addresses were not verified within the statutory time granted to file the petition. Generally, omission of the verification cannot be corrected after the time for filing the petition has expired. 42 Am.Jur.2d, Initiative and Referendum, Sec. 36, p. 684. The legislative conditions were not complied with; hence, the petitioners must be relegated to their remedy of the elective process of the representatives who made the decision that this action was necessary to carry out their responsibilities of office.
I do not reach the result as an exercise in literalism nor with a joyous “letter of the law” confidence. The motives of the concerned public officials or of the petitioners must, in my view, be regarded as irrelevant. The legislative policy choice is clearly expressed. “Liberal” construction may indulge relatively insignificant curable variations in form, but in view of the total context, outright and complete noncompliance cannot be afforded such treatment.
I concur in the reversal of the judgment.