I regret the arising of any occasion when, because of the importance of the question involved, I feel myself impelled to register my disagreement with my associate members of this court. With the multiplied question coming before it for determination there are occasions when all of the seven members of the court are not in complete accord with the conclusions announced in the opinion, but in a large majority of them the dissenting member submerges his disagreement without even recording the fact, thereby preserving apparent harmony and suppressing false criticism of him as a contrary and contentious member. But in such cases the involved questions are of minor importance and possess no far-reaching effect the one way or the other. However, a different course is taken when the involved question is of such vast importance as is the one in this case, where constitutional power of one of the departments of the state government is the issue. In such and other approachingly important *Page 157 questions it is not only the right, as I conclude, but the duty of a member of the court, when he is conscientiously impressed that a majority of his fellows have announced an erroneous conclusion, to not only say so, but briefly to give his reasons therefor, and which I now propose to do in this case.
Section 36 of our Constitution fixes the time for the convening of regular sessions of our General Assembly "on the first Tuesday after the first Monday in January, eighteen hundred and ninety-four, and thereafter * * * on the same day every second year." Section 27 of that instrument divides the powers of government into the legislative, executive, and the judicial departments, and the following section (28) says that no person filling an office in one of the departments shall exercise any power properly belonging to one of the others, "except in the instances hereinafter expressly directed or permitted." Section 69 of the same instrument says: "The supreme executive power of the Commonwealth shall be vested in a chief magistrate, who shall be styled the 'Governor of the Commonwealth of Kentucky.' " Its section 80 is inserted in the majority opinion, and it is unnecessary to again do so here. Necessarily to the extent that it confers discretion, as well as power to exercise it, on the Governor as the one possessing the "supreme executive power of the Commonwealth" to determine whether or not there shall be an extraordinary session of the Legislature, and, if so, the subjects upon which it may legislate at such session, it furnishes one of the instances wherein he may exercise to that extent legislative authority, and which, I conclude is embraced within the exception stated in section 28, supra, of the Constitution, as being an instance "hereinafter expressly directed or permitted." The same is also true, as I conclude, as to the veto power of the Governor of statutes that the General Assembly has enacted and submitted to him.
With reference to extraordinary sessions of the General Assembly, section 80, supra, clearly makes the Governor, in the exercise of the power vested in him by its section 69, the exclusive judge as to whether or not there shall be such a session. He is presumed to be acquainted with public situations and affairs and to know when the public weal requires immediate *Page 158 legislation on a particular subject or subjects, as well as to correctly weigh the urgency therefor, before the meeting of the next regular session. From such sources he concludes that such extraordinary session should be convened to take action on such subject or subjects, which the same section says he shall name in his proclamation evidencing such determination and which is the initial step towards convening the Legislature in extraordinary session. He may name one or as many more subjects as he sees proper.
The theory of the majority opinion is based on the fiction that when that step is once taken by the Governor the Legislature is in legal effect convened (constructively) in extraordinary session from that moment; for if it be not true that it is not then convened then the discretion, as well as the power lodged with the Governor by section 80, is clearly not exhausted. Multiplied happenings might occur (many of which are not beyond the ordinarily probable) between the time of the issuing of the proclamation and the day set for the convening of the extraordinary session, and which would entirely remove the necessity for the legislation that the Governor had in mind to provide for when the proclamation was issued. One illustration would be the prevalence of a great drouth of sufficient intensity and duration as to dry up all the accessible streams and pools in the country so as to produce serious and threatened danger to life and health and render it necessary for the state to undertake the sinking of wells at public expense to alleviate the situation, and to do so the Governor would issue his proclamation for the convening of the Legislature in extraordinary session to make provision therefor. The imagined situation might on the same day, or immediately thereafter, be entirely relieved because of bountiful rains and floods whereby a superabundance of water would be supplied and the necessity for legislation upon the subject of the call be entirely removed. In such circumstances, according to the majority opinion, the Governor would be powerless to save the expense to the state of the convening of the members of the Legislature in extraordinary session because he had exhausted his power when he issued his proclamation.
An extraordinary session of the General Assembly of Kentucky was recently called to raise revenue for *Page 159 relief purposes, whereby the commonwealth might be enabled to furnish its small pro rata part to a much greater sum furnished by the federal government whereby its unemployed and greatly impoverished inhabitants might have their absolutely needed wants supplied. In that instance, if the Congress of the United States had repealed the federal appropriation statute, or if the Supreme Court of the United States had declared it unconstitutional in the meantime, then, according to the majority opinion, the Governor would be powerless to prevent the convening of the Legislature under his proclamation therefor, although the only subject mentioned therein may have in either of the ways indicated become moot.
Section 80 of our Constitution is no more mandatory in its terms, nor nonelastic in its purpose, than is a statute prescribing the right of an analogous executive officer of a county with reference to the convening of a special session of its fiscal court; or that of the executive officer of a municipality in convening extraordinary sessions of its city council. We know as a matter of history and observation that the practice is constantly followed by such executive officers of calling such extraordinary sessions of the bodies referred to, and that they are frequently revoked before the time set for the convening, and no one up to date within the history of this state, so far as I have been able to find, has ever had the temerity to call in question such revoking orders or proclamations made by such executive officers of those governmental subdivisions of the state.
The conclusion reached by the majority opinion, as I conclude, is based entirely upon its faulty interpretation of the language contained in that section of the Constitution, without giving any effect to the other sections, supra, whereby light is thrown upon the intention and purpose of the Convention in adopting it. In arriving at their conclusion the majority of the court not only ignored and overrode the only opinion rendered upon the subject by an appellate court within the confines of the United States (Tennant's Case, 3 Neb. 409, 19 Am. Rep. 634), but it likewise adopted two fictions in order to justify the conclusion reached. One of them is referred to above, and which, I repeat, is that the extraordinary session of the Legislature *Page 160 stands convened, and its meeting is beyond the power of the Governor to recall, from and after the time the proclamation is issued and duly lodged. The majority also concedes that, although the proclamation is beyond the subsequent interference by the Governor, still he may thereafter add to the subjects therein submitted for consideration by the Legislature at its extraordinary session, and which holding is justified by the second fiction above referred to, i. e., that such action is nothing more than the Governor issuing a new or additional call for the convening of the extraordinary session; when if the proclamation for the call after it is issued takes the form of the laws of the "Medes and Persians" as the majority opinion holds, it should not thereafter be altered in any respect. The addition of new subjects is an alteration of the proclamation. The language of section 80 requiring the subjects to be mentioned is as mandatory as any other requirement contained in it, and the ignoring of that requirement by saying that additional subjects may be included by proclamations issued in the interim through the operation of an alleged additional call is but a fiction to escape the theory of unalterability of the proclamation after it leaves the Governor's hands.
The Supreme Court of Arkansas in the case of Foster v. Graves, 168 Ark. 1033, 275 S.W. 653, 655, had before it the question as to whether the Governor might alter the proclamation convening the Legislature in extraordinary session after it was made and before the convening, by proclaiming additional subjects upon which it might legislate, and it followed the case of Pittsburg's Petition, 217 Pa. 227,66 A. 348, 120 Am. St. Rep. 845, in which the Pennsylvania Supreme Court adopted the same fiction in plain violation of the unalterability of the call by saying that the later proclamation containing the additional subjects was also another one convening the Legislature in extraordinary session. In the Arkansas opinion, after quoting from the Pennsylvania case, the Supreme Court of that state said: "It follows that the power of the executive over the form of his proclamationand the subjects to be embraced therein continues and is plenary until the Legislature has actually convened pursuant to the call contained in the proclamation. See People ex rel. A.W. Tennant v. Delos Parker, 3 Neb. 409 [19 Am. Rep. 634.]" (My italics.) *Page 161
It will be observed that the court therein gave its approval to the doctrine announced in the Nebraska case, and which it did when it said: "See People ex rel. A.W. Tennant v. Delos Parker, 3 Neb. 409 [19 Am. Rep. 634]." It will also be observed the court said that "the power of the executive * * * is plenary [over the subjects to be submitted] until the Legislature has actually convened pursuant to the call," etc. The citation of that case, and the calling of the attention of the reader to it, was and is purposeless, unless the court intended to follow and approve the doctrine therein announced. The only one announced in it was that the Governor had the right under such constitutional provisions to revoke and recall a proclamation for the convening of the Legislature in extraordinary session. There was no question in the Nebraska case of the right of the Governor to merely alter his proclamation by the addition of subjects to be considered, or otherwise; the sole question being, not whether the call might be altered, but whether it could be entirely revoked. Moreover, if the subsequent proclamation containing additional subjects to be considered may be justified and upheld on the ground that they are additional calls, then I maintain that by the same token it would logically follow that the subjects contained in the original proclamation could be curtailed and reduced by their withdrawal from the consideration of the Legislature, and that such later proclamation would be authorized on the ground that it was also an additional call. If that logical conclusion is sound (and it was approved by the Arkansas court), then if there was but one subject named in the original proclamation and the Governor should issue a later one, before the convening in session occurred, withdrawing that single subject, the Legislature would then have nothing to consider when it convened; but which it must nevertheless do according to the majority opinion, since the Governor would have no power to actually and expressly revoke the call that he first made for the convening, although he might "pick the goose clean" by withdrawing from the consideration by the assembly of the only one or other subjects named in the call.
The conclusion that the power of the Governor is not exhausted when he issues the call and that he may later modify it by withdrawing submitted subjects as well as adding to the list submitted, is sustainable *Page 162 from the very language of the constitutional section. No express authority to do either is contained therein, and the power and authority to do either is sustainable only by necessary implication. That the Governor shall state the subjects to be submitted to the Legislature is as mandatorily required by the section as is any other authority it confers, and if the majority opinion is the correct interpretation, then no alteration of the proclamation in any respect may thereafter be made by the Governor. However, three Supreme Courts of as many different states have held to the contrary, but in two of them (Pennsylvania and Arkansas) the only alteration involved was the submission of additional subjects, but neither of them intimated in their opinions that an alteration by withdrawal of subjects was not authorized.
An intimated reason for the conclusion of the majority is that the Constitution makers, perhaps, thought that designing persons might influence the Governor to revoke a call of an extraordinary session of the Legislature after issuing his proclamation therefor, and to circumvent such possibility such revoking authority was withheld, and which reason, it is said, fortifies the conclusion that it was so withheld. But that reason vanishes when it is considered that the same influence might be exercised by the same class of individuals in procuring the Governor to issue his proclamation in the first instance, and which he might later discover; but which he would be powerless to correct under the doctrine of the majority opinion.
The fact that, in construing similar conferred powers on the Governor to those contained in section 80 of our Constitution, the Nebraska Supreme Court adopted the opposite view (which was approved by the Arkansas Court) to that of the majority opinion in this case, and from what we have already said, plus the consideration of the purposes for convening the Legislature in extraordinary session with the exclusive power in the Governor to sit in judgment in that respect, undoubtedly renders it at least a doubtful question as to whether he has or has not the power of revoking the call. If that doubt is evenly balanced, then I think it would be the duty of the court to resolve it in favor of the action taken, which in this case was a revoking of the call.
Furthermore, I conclude that in case of such a *Page 163 doubt it should be resolved so as to preserve the power and authority, the exercise of which by the Governor would be the most calculated to carry out the purpose of the makers of the Constitution when they adopted the constitutional provision, and the one that would better enhance the public good. When the subject remains with the Governor until the actual convening of the Legislature in extraordinary session it is left open to him to act on occurrences happening in the meantime, and it also gives him the benefit of what he might learn touching the proclaimed subjects for legislation during that period. The moving incentive for the call might disappear entirely before the extraordinary session actually convenes or its members assemble at the place designated, as we have already pointed out; or the Governor might in the meantime be informed by the members of the Legislature (or a majority of them) that they were opposed to any legislation on the mentioned subjects and would not vote for the enactment of any law pertaining thereto, and which would render the call futile. In any of such contingencies it would clearly be to the interest of the public that the call should be revoked; but the interpretation adopted by the majority opinion would raise its clenched fists and say to the Governor: "Nay! You have (in the language of the opinion, 'crossed the Rubicon,' and, although your purpose in issuing your revoking proclamation is not only both sensible and logical, and would result in great saving to the treasury of the Commonwealth, yet you must remain mute because you sewed up your lips when you issued your first proclamation."
Such conclusion on the part of the majority is also attempted to be fortified by comparing the authority to make the call for an extraordinary session of the Legislature with the veto, appointive and pardon powers given to the Governor by other provisions of the Constitution. The fallacy of those analogies is to my mind clearly apparent. The Governor in each of them, after following certain prescribed courses, has undoubtedly finished the subject and can no more revoke his action than the Legislature can reconvene after a sine die adjournment. Moreover, the issuing of a pardon (as well as the appointment to office) when so finished by the Governor confers rights and powers on the one pardoned, or on the one appointed to office; *Page 164 and Judge Marshall in the celebrated and cited case of Marbury v. Madison, 1 Cranch, 137, 162, 2 L. Ed. 60, emphasized that fact in his opinion when he said: "But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional, power of accepting or rejecting it." The same consideration enters into all opinions, including ours, denying the authority of the Governor to revoke a pardon after it has become effectual.
In order for those cases to be analogous, the fallacious reasoning which I first adverted to herein must prevail, i. e., that the Legislature stands convened in extraordinary session from and after the issuing and proper lodgment of the proclamation of the Governor calling it, but which for the reasons stated, and others to follow, I cannot accept. The involved section (80) of our Constitution authorizes the Governor to state in his calling proclamation the place of the convening of the extraordinary session if for any of the reasons stated therein it should or could not meet "at the seat of government." If any of those reasons existed at the time of the call but should become removed before the day set for the meeting to be at some place other than the seat of government, his call could not be modified so as to change the place of convening and direct it to be held at the seat of government, if the call when once made, or a proclamation when once issued, becomes a finished product and beyond his power of revocation in any respect.
Another pertinent argument that suggests itself is one that the necessity therefor is to be regretted, because the purpose in doing so might be misconstrued by the partisans of the two distinguished individuals involved, and by the advocates of, or opponents to, the purpose of the original call. But courts are not influenced by such considerations. Their duty demands that they be blind toward them and to cast aside all personal considerations and endeavor as best they can to *Page 165 correctly solve the legal propositions involved. Therefore, in resorting to this argument I do not do so in any spirit of criticizing, or personally approving any action that has been taken by any one connected with the subject-matter of this litigation. It is, that the regular de jure Governor of a state has never, so far as I am aware, endeavored to revoke his proclamation convening the Legislature of his state in extraordinary session. The only two instances of record where it was attempted to be done was in this case, and in the Nebraska one, in each of which the call for the session was made when the regular de jure Governor was temporarily absent from the state. While not attributing any improper motives by either of the two individual actors in either instance, yet it is conceivable that it might be otherwise, and that the one temporarily acting as Governor might be moved to issue the convening proclamation when the reigning regular Governor, who is responsible for the administration of the affairs of the state during his term, might consider the call of grave detrimental propriety and disastrous to his views of the public needs. The fact that only a method of nominating candidates for state offices is involved in this case does not alter the situation, since the power to call an extraordinary session to legislate on that subject also includes the power to enlarge the subjects so as to embrace every one about which a General Assembly may legislate; and that was to a large extent true in the Nebraska case, where the call made by the temporarily Acting Governor included eleven enumerated subjects of broad ramification and coverage, and involved a large part of the statutory laws of Nebraska.
It is my conception that the facts producing such a situation may be considered in the determination of the question as to whether or not the Constitutional Convention, by the language employed in section 80, supra, purposed and intended to tie the hands of the Governor so as to render him powerless to revoke his call for an extraordinary convening of the Legislature at any time before the convening takes place. There is, as we have seen, no express inhibition against it, and three courts, as shown above, adopted the view that the calling proclamation may be later altered, and one of them expressly declared that it may be revoked outright. Those opinions accord with the views of the *Page 166 dissenting members in this case, and that fact, with the reasons hereinbefore advanced, convinces them of the soundness of their position.
I do not conceive that any rights are conferred on any of the members of the General Assembly by merely issuing the proclamation; but if any of them should attend in obedience to the proclamation without knowledge of the revocation of the call, they, perhaps, would be entitled to whatever the law allows them for the actions they have taken before receiving such knowledge, and, when they are compensated therefor, all the rights that accrued to them by virtue of the call are safeguarded. The necessities of this dissenting opinion do not require a more extended discussion, although I believe that much more could be said in favor of the position herein taken, since (leaving out of consideration all of the foreign cases, supra) from every viewpoint it is the only sustainable one.
I am authorized to say that Chief Justice Clay and Justice Perry join me in this dissent, and for the reasons stated therein it is our opinion that the judgment is erroneous and should be reversed.