(dissenting).
I am hesitant to write this dissenting opinion. Too much has been written and said concerning this case, so much that I feel that the real question should be stated again, briefly, in the interest of clarity. The main point in the litigation is obscured in the majority opinion by the discussion of Kentucky Constitution Sections 161 and 235 and a definition of “public officer.”
This action started when James B. De-Weese sued the Graves County Board of Education to recover money he claimed to be due him for his services as superintendent and secretary. The question as to whether DeWeese was entitled to collect for such services more than $7,200 per annum was presented in an affidavit filed by the Board in opposition to DeWeese’s motion for a summary judgment. It was presented specifically by the following statement in the affidavit: “ * * * if said Board is correct in its position that the plaintiff was not legally entitled to payment of said funds or that he is limited to payment of not more than $7,200 per year under the Kentucky Constitution then said Board is entitled to have a credit by the total amount of such unlawful payments against the plaintiff’s claim for salary as school superintendent, thereby reducing substantially the amount of plaintiff’s claim.”
To settle once and for all certain statements and claims made by various interested parties that the question of the salary limitation imposed by Kentucky Constitution Section 246 was never in this case, reference is made to pages 10 and 11 of the appellant’s original brief and to page 10 of the appellee’s original brief wherein it is discussed. Thus, the question as to whether DeWeese’s compensation was limited to $7,200 by Kentucky Constitution Section 246 was squarely presented. In the original majority opinion, withdrawn after reconsideration, the issue was met face to face and it was decided that the *609limitation did apply. The later majority opinion follows the pattern of writing around the plain language of the Constitution set in Pardue v. Miller, 306 Ky. 110, 206 S.W.2d 75.
The pertinent part of Kentucky Constitution Section 246 follows:
“No public officer or employe except the Governor, shall receive as compensation per annum for official services, * * * any amount in excess of the following sums: Officers whose jurisdiction or duties are coextensive with the Commonwealth, * * * Twelve Thousand Dollars; * * * all other public officers, Seven Thousand Two Hundred Dollars. * *
This is the language of Section 246 as amended by a vote of the people in November 1949, effective March 6, 1950. Formerly, the pertinent part of Section 246 read as follows:
“No public officer, except the governor, shall receive more than five thousand dollars ($5,000.00) per annum as compensation for official services, * * *»
The meaning of this section of the Constitution was construed in 1942 in Talbott v. Public Service Commission, 291 Ky. 109, 163 S.W.2d 33, 34, with Rees, J., dissenting in part and Cammack, J., not sitting.
In holding that Section 246 applied to officers and employees, including “the president and professors of the University of Kentucky and the Teachers’ Colleges,” alike, the reasoning of the Court was:
“It seems to us to be inconceivable that the members of the constitutional convention would feel impressed with the obligation to limit salaries of those engaged in the performance of duties of grave responsibility, and, at the same time, permit persons in positions subordinate in authority and responsibility to receive unlimited compensation. To attribute to them such intention would be to charge them with a total absence of appreciation or sense of values and would amount to an accusation that they proceeded on an absurd hypothesis. Such interpretation would be to hold that the Constitution forbids officers, upon whom rests the responsibility of approving the expenditure of millions of dollars a year, from receiving as much salary as may be paid to mere messenger boys in the departments such officers direct. That such construction would result in an absurdity does not require reflection, it is apparent on its face. We therefore conclude that section 246 of the Constitution is not limited in its application to that class of employees of the state who are technically known as officers, but that common sense dictates that the word ‘officers’ must be construed to include, by inference, employees subordinate thereto.”
In the dissenting opinion in the Pardue case, in which Judge Thomas joined, Chief Justice Sims said:
“The logic of the above quotation is irrefutable. It stands out as a lighthouse on a rocky reef to show, those who would use the Constitution as a compass, a course by which to bring our Ship of State safely into port in stormy weather.” [306 Ky. 110, 206 S.W.2d 79].
The logic of the reasoning in the Talbott case is no less irrefutable today. It is interesting to note that no subsequent decision or opinion has pointed out any fallacy in this reasoning.
The decision in the Pardue case overruling the Talbott case was based on the fallacious reasoning that the failure of the framers of the Constitution to include the word “employees” in the language of the salary limitation provision indicated an intent to exclude employees. Then, the Par-due opinion pointed out the “enormous change in economic conditions” and the “havoc” that would be wrought unless re*610lief -was given. This has a very familiar ring and is incorporated in the majority opinion in this case.
The following comment by Chief Justice Sims in his dissent is equally applicable to the Pardue decision and the majority opinion here, to-wit:
• “The opinion of the majority gives most excellent reasons why § 246 should be amended, with which I am heartily in accord, and then it proceeds to amend our Constitution. This a court has no authority to do. Especially is this true in face of the fact that the amendment of this very section has been submitted to the voters three or four times within the last two decades and has been overwhelmingly defeated each time. The last efforts to remove this salary limitation by amendment was defeated by the electorate in 1943.”
Again, efforts to gain relief from the salary limitation by amendment were defeated by the electorate in the November 1960 election. Again, the comment of Chief Justice Sims is especially applicable when he wrote :
“It is my thought that § 246 should be amended by a vote of the people and not by judicial interpretation.”
The. majority opinion bases its holding that Section 246 does not apply to employees on Smith v. Hatcher, 311 Ky. 386, 223 S.W.2d 182. This is . done despite the inclusion of the word “employee” in the Act authorizing the vote on the amendment, Acts 1948, c. 172. This presents an oddity since in the Pardue case the same result was reached because the word “employees” was not included. One is led to wonder how employees'might be made subject to the salary limitation with two such decisions.
In Smith v. Hatcher, the Court had before it the single question of whether there was any significance in the phrase “or employee” which appeared in the Act and the amendment. The Court held simply that it had no significance and it was not necessary to the question submitted to the electorate. No mention was made of the Talbott and Pardue cases or of the two distinct contrary lines of reasoning contained therein. No decision was made in Smith v. Hatcher as to whether the salary limitation in Section 246 did or did not apply to employees. Those who sought to avoid the salary limitation in the Constitution seized on this decision as meaning that employees were not subject to the salary limitation when, in fact, under the irrefutable logic of the Talbott opinion, and I am sure under the reasoning of the average citizen, there was no significance to the phrase “or employee” because it would have been reasoned that the limit for officers would impliedly be the limit for employees serving thereunder. It is apparent that Chief Justice Sims and Judge Thomas, both of whom were still on the Court, applied this reasoning and considered that any limit on the officer would also be a limit on the employee. Neither dissented in the Smith case although both had dissented on the same grounds nine months previously when the question of salary limitation was presented in Nichols v. Marks, 308 Ky. 863, 215 S.W.2d 1000, 1003. Chief Justice Sims, in his dissent in that case, may have unwittingly suggested, perhaps sarcastically, the basis for the majority opinion here when he wrote:
“It occurs to me that it will not be long before we have a dearth of offi- ■ cers and a plethora of employees serving in this Commonwealth should this Court continue to circumvent Section 246. It may come to pass at no too distant date that this Court will in one bold stroke say all persons rendering public service, except elective officers, are employees.”
Under such circumstances, it cannot be suggested or imagined that Judges Sims and Thomas did an about-face in their views in Smith v. Hatcher. Those who knew those eminent jurists know that they *611felt that the Smith v. Hatcher decision was in harmony with the reasoning in the Tal-bott case or there would have been a third dissent.
Thus, when the question arose whether the constitutional salary limitation applied to James B. DeWeese as superintendent and secretary of the Graves County Board of Education, the Court, as then composed, after long deliberation and careful consideration met the question squarely by a four to three vote, followed the reasoning herein outlined, and held that the limitation applied to officers and employees alike. A change in Court personnel has resulted in a four to three vote in favor of the present majority opinion. As long as there is more than one judge on a court, there may be a difference in opinion as to what the law is. Five years after the Talbott decision there was a difference in opinion expressed in the Pardue case. The majority opinion in the present case represents a difference in opinion in a much shorter period of time. No one can foresee the future and say what changes may come in personnel which might result in another change in opinion on this subject.
The ill effects of the majority opinion are very far-reaching. The many prior decisions of this Court, without being named, decided over the years since 1892, defining the word “officers” as used in many places in the Constitution, are cast aside as being no longer authoritative, without the dignity of being expressly overruled. It will be many years before this area of the law receives the clarity enjoyed prior to the rendition of the majority opinion.
The majority opinion says that the function of this Court is “to interpret the constitution as a living instrument.” No authority is cited for this statement. Is the meaning of the Constitution then to be tossed thither and yon by each passing waft of desperate exigency or demanding expediency? The following quotation from the opinion in City of Louisville v. German, 286 Ky. 477, 150 S.W.2d 931, 935, is still pertinent:
“We fully realize that the limitation fixed by section 246 of the constitution, which was possibly wise and suited to existing conditions at the time of its adoption, has by reason of changed economic conditions, increased governmental activities and exactions of public position, become onerous, tending to impede progress and efficiency and discouraging many competent and qualified persons to seek public office because of allurements of more lucrative fields. However, the court may not shape its course by the exigencies of the situation but must give such effect to the plain, unambiguous terms of the section as will carry out its manifest purpose regardless of the result. The power to amend or repeal the constitution is not with the court but is reposed in the people who adopted it.”
Judge Rees wrote in City of Louisville v. Presbyterian Orphans Home Society, 299 Ky. 566, 186 S.W.2d 194, 200, in answering the argument that a change of economic conditions and of social outlook warrant a change of constitutional interpretation:
“The meaning of a constitutional provision does not change. It means now what it meant when it was adopted, and the public policy declared may not be changed by the Legislature or the courts but only by formal amendment.”
The living and breathing theory of constitutional interpretation was denounced in the Presbyterian case.
The most devastating effect of the majority opinion has been expressed thus: “Law becomes what the court thinks is best and convenient and the people be hanged.” This conclusion was prompted by the action of the Court taken in little over a month after the people had said by their vote that no change in the Constitution was desired despite the fact that revision of the salary *612limitation provision was proposed to be made.
I hasten to apologize for the length of this opinion, but it is felt that the possible ill effects of the majority opinion should be pointed out. Constitutional revision and reform may be much needed and desired but should come by the appropriate constitutional methods instead of through usurpation by the judiciary of the legislative function and democratic processes. Stability of democratic government demands it.
BIRD, C. J., and MILLIKEN, J., concur.