dissenting.
Respectfully, I dissent.
With apologies to Gertrude Stein, “pneu-moconiosis is pneumoconiosis is pneumoconi-osis.” The majority opinion erroneously upholds the constitutionality of discriminatory, class-based legislation which severs a natural class of disabled workers, all of whom suffer from the same disease, occupational pneumo-coniosis. The statute unconstitutionally metes out special benefits to some members of the class based solely on the environmental source of the particles which cause their *457disease. The flip side of this distinction is a concomitant severance of a natural class of employers, only some of whom must bear the cost of those special benefits, without an opportunity to offer evidence to the contrary. In my view, KRS 342.732(l)(d) is precisely the type of legislation that § 59(24) of the Kentucky Constitution prohibits.
The majority opinion addresses the special legislation challenge by reciting the well known factors for determining whether a law is “general,” for purposes of constitutional analysis. The test was set out forty years ago in Schoo v. Rose, Ky., 270 S.W.2d 940 (1954). The law must meet the following requirements: (1) it must apply equally to all in a class, and (2) there must be distinctive and natural reasons inducing and supporting the classification.
With respect to the first factor, the majority concludes that “KRS 342.732(l)(d) applies equally to all coal workers who have contracted pneumoconiosis.” (emphasis added). This is decidedly true. However, this is the right answer for the wrong class. By narrowing the relevant class definition to include only coal workers, the majority makes it axiomatic that the statute “applies equally to all in the class.”
Many examples of prior § 59 cases serve to illustrate the flaw inherent in a misidentifi-eation of the relevant class. In Gillis v. Yount, Ky., 748 S.W.2d 357 (1988), the unconstitutional statute exempted unmined coal from being considered “real property” for tax purposes. Unlike in the present case, the class subject to analysis was not the class of “all unmined coal.” Instead the Court properly viewed the relevant class as (at least) the class of “all unmined minerals,” if not “all other interests in real estate.” Gillis at 363.
Similarly, in Tabler v. Wallace, Ky., 704 S.W.2d 179 (1985), the challenged statute granted immunity to architects, engineers, and builders from personal injury liability occurring after five years from the date of substantial completion of the building or improvement. In Tabler the relevant class correctly included all of the individuals (e.g. materialmen, etc.) who could properly be named as defendants in a particular action, not simply the architects, engineers and builders. Using the present majority’s approach to class definition, the Tabler court would have been forced to the conclusion that since the statute applies equally to all architects, engineers and builders, the first prong of the Schoo test is met.
As a general proposition, an unduly narrow view of the class to be analyzed under the Schoo test will yield, ipso facto, a self-sustaining classification (as to the first prong,) no matter how outrageous it might be. For purposes of. § 59 analyses, it only makes sense that the relevant class for determining whether a statute applies equally to all in the class is the original unit severed, not the severed subclass.
The majority’s use of the classification upheld in Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648 (1916) as analogous to the present scheme also confuses the law on classification. In fact, that case serves as authority for the proposition of this dissent. In Greene, the Court upheld the Workers’ Compensation Act of 1916 against a special legislation challenge. The majority opinion generalizes the classification to a fault in an effort to draw support for its conclusion in this case. The opinion states, “Contrary to appellant’s arguments, the fact that the Workers’ Compensation Act applied only to certain employers and employees and not to all employers and employees did not render it special legislation.” The resulting implication, that if the Greene classification is constitutional, then KRS 342.732(l)(d) is as well, further demonstrates the majority’s misunderstanding of what constitutes permissible or impermissible classification.
The key difference is that the classification established by the Act of 1916 is a broad one which does not necessarily, but theoretically can, accommodate all employers and employees. If, as the majority argues, it “applies only to certain employers and employees and not to all [of them],” it is solely because the excluded employer or employee has elected for the legislation not to apply. Unlike KRS 342.730(l)(d), the Workers’ Compensation Act of 1916 provides the employer and employee a choice. Each can opt to be similarly situated with the class affected by the legisla*458tion, or not. That makes the two statutes radically different, and unavailable for meaningful comparison on this point.
The majority also concludes that the second prong of the Schoo test is satisfied, finding distinctive and natural reasons inducing and supporting the classification. “The sheer number of coal workers’ pneumoconio-sis claims involving the Special Fund and the economic impact of those particular claims on the entire system is further justification of a more standardized treatment of those claims.” However, this conclusion, too, flows from faulty analysis.
The majority correctly states that Tablet v. Wallace, supra, is “highly and historically instructive of Kentucky Constitution, Section 59.” It then attempts to distinguish the present statute principally by highlighting the differences in the circumstances under which the two statutes were passed. The unconstitutional architect/builder immunity statute in Tablet was enacted, that court determined, solely in response to the influence of special interest groups. Tablet at 184. More significantly, the Court found, it was enacted without benefit of committee meetings or legislative debate concerning its purpose. Id. In contrast, the present statute was “derived from the 15 months’ study of a 16-member task force, representing both industry and labor.” Moreover, “[t]he record supporting the passage of KRS 342.-732(l)(d) is replete with reasons, evidence of committee meetings and debate discussing its purposes.”
While the Tablet court’s discussion of special interest lobbying contributes to an understanding of the historical framework of and purposes behind § 59, it neither embodies nor represents the well established considerations which, in this jurisdiction, are dispositive of a § 59 challenge. In the same vein, while evidence demonstrating a rational purpose behind a classification scheme is a necessary condition to its constitutionality under § 59, it is not a sufficient condition. Our cases make this abundantly clear.
The majority’s use of a “bare-bones” rational purpose test to uphold this legislation under § 59 is erroneous because the most this analysis demonstrates is that the statute comports with equal protection. But in Tablet, this Court clearly recognized that “Section 59 is mote than simply another way of restating the generalized language of the equal protection clause[s]” of either the federal or state constitution. Id. at 183. (emphasis added). Indeed, § 59 enhances the protective principles for which equal protection already provides. It requires not merely the existence of a rational purpose underlying a classification. It mandates that the classification itself be “based upon a natural, real, or substantial distinction inhering in the subject matter [of the law].” City of Louisville v. Klusmeyer, Ky., 324 S.W.2d 831, 834 (1959). However rational it may be to require the coal industry to shoulder the burden that derives from that industry, the manner in which KRS 342.732(l)(d) seeks to accomplish that policy choice is unjustifiable under our law.
“Pneumoconiosis” is simply a generic term for a lung disease evidenced by pigmentation and fibroid induration. The disease is traceable to not only coal dust, but other types of dust particles as well. Some of these include: aluminum (aluminosis), asbestos (asbestosis), cotton dust (byssinosis), iron (sider-osis), sandstone (silicosis), tobacco (tabaco-sis), and ostrich feathers (ptilosis). The fact that these many other environmental sources of particles also cause pneumoconiosis is the proverbial fly in the ointment for this legislative scheme. There is no medical evidence whatever that any characteristic of disease, itself, supports a “natural” or “real” distinction in the class of workers who contract it, based on whether the employee was a coal miner or custodian of the ostrich cage at the Louisville Zoo.
Such individuals, vis a vis pneumoconiosis, are absolutely similarly situated in the eyes of the law. Each is a disabled worker with an occupational lung disease called pneumo-coniosis. Each contracts the disease in basically the same way, albeit from a different source. Each is diagnosed in the same manner by a physician specializing in lung disease. Each has elected to exercise a right to advance his/her claim for benefits in the workers’ compensation arena. However, one *459is subject to unjustifiably disparate treatment under the law.
A worker from a non-coal industry whose lung x-rays reveal the presence of opacities of a size and stage substantially similar to the coal worker at the next x-ray machine must bring his/her claim under KRS 342.316 and KRS 342.730. In order to recover, that employee must prove causation and impairment to earning capacity, to be eligible for payment pursuant to KRS 342.730. The coal worker, on the other hand, receives the benefit of an irrebuttable presumption of total, permanent disability. Whether actually functionally impaired or not, the coal worker need prove nothing.
The technical medical data cited in the majority opinion as legislative fact speaks only to the radiographic classification of various categories of all pneumoconioses. It adds nothing to the argument that a distinction based on the source of the disease is proper according to § 59 criteria.
The majority’s “economic impact” rationale relating to depletion of the Special Fund by the sheer number of claims on behalf of coal industry workers, also fails to support this classification. In Gillis, sivpra, we stated that “size alone does not constitute a reason for classification unless that size produces other qualitative differences related to the purpose of the classification. Id. at 364 (emphasis added) (quoting Bd. of Educ. of Jefferson Co. v. Bd. of Educ. of Louisville, Ky., 472 S.W.2d 496, 498 (1971)). While the majority would like to convince otherwise, any difference the size of the coal industry makes, relating to the purpose of this classification, is purely quantitative.
Individual workers with pneumoconiosis stand in the same relationship to the law whether they hail from the coal mine or the ostrich cage. If the environmental source of them pneumoconioses has no qualitative bearing on any aspect of the illness itself, then neither should it impact the law that governs compensation for it.
While this dissent has focused on the unconstitutionality of KRS 342.732(l)(d) with respect to its effect on the disabled employee, the logic herein applies just as forcefully (if not more) to the employer of workers with pneumoconiosis. The statute severs a natural class of employers, too. It leaves intact the ability of the non-coal employer to defend against claims for benefits with credible medical evidence. Not so for the employer of the .coal worker. What operates as a non-stop ticket to total, permanent disability status for coal workers turns out to be an irrebuttable red light for their employers. To deprive only part of this class of the opportunity to be heard and defend against liability not only violates § 59, but may violate other constitutional provisions as well. If legislative policy says the buck should stop with the coal employers, it should not be based on a distinction without a real difference, and it should not be at the courtroom door.
KRS 342.732(l)(d) obviously was not intended to be special legislation. I cannot disagree with the logic underlying its enactment. But the legislature must find a way to classify that meets the criteria of § 59 of our constitution, or devise an across-the-board solution to the Special Fund problem. Until it does, I am of the opinion that the statute is unconstitutional, and should be treated by this Court as just that.
LEIBSON and SPAIN, JJ., join in this dissent.