(concurring).
In view of the manner of the presentation of this case for decision by this court and in view of the timing employed by the litigants- when considered in the light of the understandable public concern evidenced in the communications media, I deem it proper to record some of my views concerning this case. In the first place, in spite of characterization of the “long awaited” decision of the Court of Appeals concerning the constitutionality of a merger plan of government, the simple truth is that the jurisdiction of this court was not invoked concerning the constitutionality of the merger plan until after the so-called “Charter” had been submitted to the people of Lexington and Fayette County for adoption or rejection at a public election. An additional truth is that the last briefs filed by some of the parties to this appeal were not presented to this court until about December 10, 1973. It seems to me that much of the speculation and uncertainty could well have been avoided by a true adversary testing before the courts of this plan prior to its submission to the local electorate. After all, the suit pended in the circuit court from January of 1973. It became necessary for this court, on its own motion, to direct acceleration of the briefing procedure in order to make some final disposition concerning the structure of government in Lexington and Fayette County that could legally exist on January 1, 1974.
The structure of government under question is new in this Commonwealth. The enabling statute, KRS 67A.010, et seq., the constitutionality of which we upheld in Pinchback v. Stephens, Ky., 484 S.W.2d 327 (1972), applies to 119 counties of the 120 counties presently comprising this Commonwealth; therefore, the decision in this case required no small measure of consideration in view of its impact on local government within the Commonwealth.
I am persuaded that the unanimous decision of this court in the Stephens case was correct. If the Constitution of Kentucky means what it says, it is not unreasonable to assume that significance should be attached to its silence. I can find no prohibition expressed in the 1891 Constitution which would prohibit the legislature from validly adopting KRS 67A.010 et seq. The elastic language within the several sections of the Constitution referring to local governmental units reinforces this conclusion. Furthermore, when courts consider the constitutionality of legislation, the circumstances that the change proposed shall be effected only upon a vote of the people affected is a persuasive element. The judicial philosophy that recoils from imposing court-made law as an authoritarian solution based only upon the subjective notion of wisdom of the judges rather than action by the people, either directly or by elected representatives, should be hesitant to reject action by the elected representatives of the poeple which extends to the electorate the right for itself to determine action that is recommended as an improvement.
The majority opinion says that the General Assembly should bear the responsibility for the wisdom of the action. I would prefer to add that the advocates of the proposition and the electorate who adopted it should also bear responsibility for the wisdom of the change.
The real difficulty in this case, in my view, is not the validity of the action of the General Assembly but is rather the plainly apparent mistaken notions of the draftsmen of the document referred to as the “Charter.” One is immediately struck by the erroneous view adopted by the draftsmen when they called the instrument *483a “Charter.” The enabling statute authorized the formulation and submission of a “comprehensive plan.” This choice of language by the legislature evidences to me that only structure and not ultimate governmental power was envisioned. Our decision today permits no more governmental power to be exercised over the people of Fayette County than was exercisable by either the City of Lexington or Fayette County prior to the approval of urban county government by the people of the affected city and county. The substantial effect of the adoption of the new structure is to allow exercise of the governmental power of a second class city on a county-wide basis. The city is destroyed, the county remains as a geographic unit. The recitation in the “Charter” that it will be “liberally construed” to accomplish its purposes illustrates again a mistaken notion concerning the extent of authority provided by the legislature.
The simple truth is that any provision of the “Charter” may be deleted or changed by action of the General Assembly by adoption of a general law applicable to the class “urban county government.” Any recitation in the “Charter” surely could not repeal, amend or prevent any such contrary direction by the General Assembly, nor are the courts of this Commonwealth bound to construe the “Charter” in any fashion other than by the accepted rules of law.
The “Charter” certainly is subject to the supervisory control of the General Assembly and is subject to the requirements of the Constitution of Kentucky. For example, Section 27 of our Constitution explicitly provides for a tripartite government in the entire Commonwealth consisting of an executive department, a legislative department, and a judicial department. Section 28 of the same constitution requires that no person or collection of persons being of one of those departments shall exercise any power properly belonging to either of the others.
Article 10 of the “Charter” is entitled “urban county courts.” In section 10.02 of the “Charter” the draftsmen undertake to provide for the status of the Fayette Circuit Court. The Fayette Circuit Court is created by the Constitution in section 125 thereof. Neither the urban county government nor the county judge as administrator of the urban county courts possesses any authority whatever to exercise any function, administrative, supervisory or otherwise, over the Fayette Circuit Court, and so long as the Constitution of Kentucky provides for the doctrine of the separation of powers, neither the legislature nor an amendment to the “Charter” could validly provide otherwise.
The same mistaken notion concerning the extent of authority has caused this court to strike as invalid that portion of the “Charter” which undertakes to require the General Assembly to act if an amendment which has the effect of abolishing the “Charter” shall become effective. It is plainly envisioned in the enabling statute that the people affected who have the right to adopt this structure of government also have the right to amend it, including the right to abolish it. When the draftsmen of the “Charter” undertook to interpose the requirement of action by the General Assembly before any such abolition would be effected, they impermissibly undertook to dictate legislative action by the legislative body of this Commonwealth and they further undertook to impose a condition not envisioned by the General Assembly. The majority opinion does not undertake to say what form of local government would prevail in the event the “Charter” should be abolished by action of the electorate. To me it is unthinkable that in the absence of contrary direction by the General Assembly, the form of government would be other than that of a county, if the reasoning of the majority opinion in its other areas is carried to a logical conclusion.
The majority opinion suggests a problem concerning .the applicability of Section 157 of the Constitution prescribing tax rates. *484The legislation here, however, provides that the urban county government shall possess the governmental powers that the City of Lexington possessed. It would appear to me that the constitutional provisions concerning tax rates applicable to the City of Lexington would apply to the urban county government.
The allocation of rural road funds and other problems either discussed or implied in the majority opinion will doubtless be the subject of action by the General Assembly. I deem it helpful to point out in this aspect that the General Assembly must act by means of general laws within the classification urban county government which, as we have said, has now been made applicable upon a vote by the affected electorate to 119 counties to this state.
The decision of this court should be recognized as approving an endeavor by the people to improve the structure of their local government. The decision should also be recognized as assuring the right of the people to change or abolish that new structure if it should prove sufficiently unsatisfactory or unworkable. The limitations imposed by this court are important and should not be ignored by the officials of the new governmental unit. The majority opinion predicts that urban county government will be a fruitful source of future litigation. It is my hope that the necessity for some of the predicted future litigation will be obviated by legislative action by the General Assembly and by recognition of error made by the draftsmen of the “Charter” concerning the extent of their constitutional authority. In view of the increasing complexities caused by urban concentration, and the onerous burdens thrust upon citizens caused in part by needless duplication of governmental activities, one should have to be completely insensitive not to hope that this experiment will succeed.