Request By:
Honorable Eugene P. Stuart
Senator
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear
You request our opinion on the Governor's power to change the date of the call for the Special Session of January 10, 1983. It is your belief that once the call has been issued and delivered to the Secretary of State, it is then out of the Governor's hands and beyond his power to change or rescind the date.
Section 80 of the Kentucky Constitution reads:
"He (the Governor) may, on extraordinary occasions, convene the General Assembly at the seat of government, or at a different place, if that should have become dangerous from an enemy or from contagious diseases. In case of disagreement between the two Houses with respect to the time of adjournmeht he may adjourn them to such time as he shall think proper, not exceeding four months. When he shall convene the General Assembly it shall be by proclamation, stating the subjects to be considered, and no others shall be considered." (Emphasis added).
The Court of Appeals, in Richmond v. Lay, 261 Ky. 138, 87 S.W.2d 134 (1935) 135, advanced the concept that the purpose of § 80 is to give notice to the public of the subjects to be considered, in order that interested persons may be present if they desire, and also that it is a check upon legislative action, such that no matters outside the proclamation shall be acted on.
The case of Royster v. Brock, 258 Ky. 146, 79 S.W.2d 707 (1935) held on the narrow point that once the Governor signs the proclamation and delivers it to the Secretary of State under § 91 of the Constitution, he cannot revoke the call.
A recount of the essential facts and pertinent language in the Royster case is helpful in getting § 80 into perspective.
On February 6, 1935, while Governor Ruby Laffoon was absent from Kentucky, Lieutenant Governor A.B. Chandler, as Acting Governor, issued a proclamation convening the General Assembly in extraordinary session at the seat of government in Frankfort, at noon on February 8, 1935. The only subject was "to enact a compulsory primary law for the selection of all party nominees for all state offices at state wide primaries." The proclamation was signed by Chandler and registered in the Office of the Secretary of State under § 91, Constitution.
Governor Laffoon returned posthaste to Kentucky on February 7, 1935, and at once issued a proclamation, stating that no extraordinary occasion had arisen, and expressly revoking, rescinding and annulling the Chandler proclamation, and directing the General Assembly not to meet on the convening date.
The Court of Appeals, in Royster, in holding that Governor Laffoon could not revoke the call under the circumstances, noted on page 709 that the right to convene the General Assembly does not inhere in the office of the Governor, that the right is not an incident of that office. To the contrary, the Court said that the right to convene is given only by § 80 of the Constitution, which, in effect, must be strictly construed.
Section 80, Constitution, imposes some express conditions: (1) The call can only be by a formal proclamation. (2) The occasion must constitute an emergency as considered by the Governor. (3) The proclamation must recite specific subjects to be considered by the General Assembly. (4) The Governor may adjourn the General Assembly in case of disagreement as to adjournment by both houses. (5) The original convening requires a date certain.
The Court in Royster wrote that once the proclamation is issued, it takes effect at once and is a law unto the legislature, which must obey its mandate (meet and consider the subject or subjects of the call).
The Royster case mentioned the case of Foster v. Graves, 168 Ark. 1033, 275 S.W. 653, and held it distinguishable on the basis that the Governor of Arkansas, after issuing a proclamation for a special session, added subjects, but stuck with the original convening date. To the same effect was the case of Pittsburg's Petition, 217 Pa. 227, 66 A. 348. Thus the dictum in Royster suggests that the Governor may add to the subjects for consideration, provided the original convening date of the session is honored.
In Stickler v. Higgins, 269 Ky. 260, 106 S.W.2d 1008 (1937), Justice Thomas (who dissented in Royster, above), wrote for the Court that the Governor could add to the subjects to be considered by the legislature, but there was no deviation from the original date of convening. The court, in effect, leaned on the reading of § § 79 and 80 together. Section 79 deals with the Governor's recommending legislation to the General Assembly. See also Trenton Graded School Dist. v. Board of Education, 278 Ky. 607, 129 S.W.2d 143 (1939), relating to limiting the legislature to subjects designated by the Governor's proclamation.
CONCLUSION
We acknowledge that there are no Kentucky cases directly in point. However, reasoning from the above cited cases, it is our opinion that § 80 of the Constitution does not authorize the Governor to issue another proclamation to change the original convening date for the extraordinary session.
The Royster case establishes firmly that the Governor cannot revoke the call. The proclamation and its convening date are one and inseparable, in that the proclamation requires a specific date of convening. There is no express authority in § 80 for the Governor's changing the date of convening, and there is no basis for implying that the Governor may make such a change. Indeed, were the Governor authorized to change the date at will, a practical revocation would take place upon the attempted change of date, for it would be a different session.
The dictum in Royster, page 710, strongly suggests that the original convening date must be observed. While it could be argued that adding the subjects to be considered by another proclamation is a kind of revocation, our courts have not so held. The essential point is that the appellate courts have never held that the convening date may be changed. In fact, if Governor Laffoon had possessed the authority in 1935 to change the date of the Special Session called by Lieutenant Governor Chandler, he could have postponed such session until after the election, which was only a few months away, and thus have negated the very purpose for which the session was called.
For all practical purposes, this controversy is a tempest in a teapot, since apparently both the Governor and the General Assembly wish to change the convening date. Therefore, no actual harm is foreseen by them so doing. But this matter would take on great significance should the Governor and the General Assembly at some future time disagree on this question.
Conceivably and practically, the Governor, if he could change the date of convening, could so delay or change the date of the special session as to in effect cancel the session. This was certainly not the intent of the framers of our Constitution, who gave only to the Governor the power to call a special session but gave only to the General Assembly the power to adjourn once the session is called, unless they cannot agree on a date for adjournment. Section 80 of the Constitution contemplates serious legislative consideration of items chosen by the Governor for the emergency. It also envisions a call for emergency legislation only after careful executive deliberation. It does not envision unnecessary or impulsive calls.