Request By:
Hon. John D. Rogers
State Senator
Republican Floor Leader
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL
In your letter you ask two questions concerning House Bill 940, the education reform act.
Your first question asks whether the title of House Bill 940 violates Section 51 of the Kentucky Constitution. Section 51 states, in pertinent part: "No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title . . . ." The title of House Bill 940 is:
"An act relating to the reform of the Commonwealth's system of common schools, raising revenues incidental thereto, and responding to the Supreme Court's mandate in Rose v. Council for Better Education, Inc. and declaring an emergency."
Section 51 of the Constitution was added to prevent an evil that had grown up in the past where the legislature would include in one act many distinct and wholly disconnected subjects which were neither remotely germane to or in any wise connected with the title. Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244 (1935). Section 51, therefore, requires that the title "furnish general notification of the general subject in the act. If the title furnishes a 'clue' to the act's contents, it passes constitutional muster." Commonwealth ex rel. Armstrong v. Collins, Ky., 709 S.W.2d 437, 443 (1986), See, also, Hayes v. State Property and Buildings Commission, Ky., 731 S.W.2d 797, 804 (1987).
In Carroll v. Bosworth, 151 Ky. 337, 151 S.W. 916 (1912), the Court, in discussing Section 51, cited the case of Phillips v. Cov. & Cin. Bridge Co., 2 Metc. 219, as follows:
"Hence it not unfrequently happened that the title of an act gave no indication whatever of some of the subjects to which its provisions related. And by permitting amendments to be made to a bill, by which distinct and unconnected matters might be introduced into and made a part of it, an improper influence was sometimes brought to aid in its final passage. To remedy this evil, the constitutional provision under consideration was adopted. Such a construction should therefore be given to it as is necessary to render it effectual in accomplishing the object for which it was designed. But it should not be so construed as to restrict legislation to such an extent as to render different acts necessary where the whole subject-matter is connected, and may be properly embraced in the same act. It is not necessary for the accomplishment of the purpose contemplated to go from one extreme to the other, nor would such a course be consistent with the intention of the framers of the Constitution. This prohibition should receive a reasonable, and not a technical construction; and, looking to the evil intended to be remedied, it should be applied to such acts of the Legislature alone as are obviously within its spirit and meaning. None of the provisions of a statute should be regarded as unconstitutional where they all relate directly or indirectly to the same subject, have a natural connection, and not foreign to the subject expressed in its title." (emphasis added)
The Court went on to state that it was not necessary for the legislature to pass two separate acts to effect the object it had in view. To do so would lead to an unnecessary and absurd result.
In Harbison v. George, 228 Ky. 168, 14 S.W.2d 405, 406 (1929), the Court also had this to say about Section 51:
"When courts are called upon to declare an act of the Legislature invalid, they will approach the question with great caution, and not declare it void unless its invalidity appears beyond reasonable doubt. Doubts as to the constitutionality of an act of the Legislature should always be resolved in favor of constitutionality, and it is the duty of the court to seek to ascertain and carry out the intention of the Legislature in its enactment, and to give full effect to such intention. Referring to Section 51 of the Constitution in Campbell v. Commonwealth (Ky.) 17 S.W.(2d) 227, decided February 12, 1929, it was said: 'This section of the Constitution has been prolific of much litigation. In its interpretation a liberal construction has always been given, and, unless the provisions were foreign or unrelated to the subject expressed in the title, the validity of the act was sustained as being sufficient compliance with the constitutional requirement.'"
In Rose v. Council for Better Education, Inc. , Ky., No. 88-SC-804-TG (June 8, 1989, as modified September 28, 1989), the Kentucky Supreme Court held the system of education in Kentucky to be violative of Section 183 of the Constitution. As an integral part of this finding, the Court specifically held that the funding of the educational system was defective as being wholly inadequate.
House Bill 940 addresses the holding of Rose both in the reform of the substantive education statutes and the reform of the funding of the system of education. The revenues raised by House Bill 940 are intended to fulfill the Supreme Court's mandate to adequately fund the system of common schools in Kentucky. Clearly, as the Supreme Court held in Rose , an educational system is of no force and effect, no matter how progressive its policy may be, if it is not adequately funded. House Bill 940 does just that -- reforms the system of common schools in all respects; governance, curriculum and finance. Financing the system and raising the revenues to do so is irrevocably connected to the entire system of common schools. As Section 646 of House Bill 940 states:
"Whereas, the decision of the Supreme Court of Kentucky in Rose v. Council for Better Education, Inc. , mandates that the General Assembly reform and improve the system of common schools in Kentucky; and
"Whereas, the reforms imposed by the court and recommended by the educational task force have vastly expanded educational programs and the state's role in these programs; and
"Whereas, with the expansion of educational programs comes an expansion of the costs necessary to pay for such programs; and
"Whereas, the Governor has indicated and the General Assembly agrees that state revenues are insufficient to pay for the needed improvements and that an increase in revenues is the only solution to that insufficiency, but is incidental to education reform; and
"Whereas, primary state funding for education comes from the General Fund, which is a commingling of revenues from various sources and which is spent for general government purposes as well as for education; and
"Whereas, the amount of the tax increases proposed, together with revenues from the General Fund will both be necessary to fund the educational programs contained in this legislation:
"The General Assembly finds and declares that the revenue measures contained in this Act are a necessary incident to the education reform provisions of this Act."
Consequently, it is our opinion that the title to House Bill 940 does not relate to more than one subject and that subject is expressed in the title. House Bill 940 does not violate § 51.
Your second question asks whether the Senate may offer amendments to House Bill 940 which do not relate to raising revenue. Section 47 of the Constitution states:
"All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose amendments thereto: provided, No new matter shall be introduced, under color of amendment, which does not relate to raising revenue. "
In Central Construction Co. v. City of Lexington, 162 Ky. 286, 172 S.W. 648 (1915), the Court held that the term "a bill for raising revenue" was confined to bills to levy taxes in the strict sense of the word and did not embrace bills for other purposes which incidentally create revenue.
The primary purpose of House Bill 940 is the reform of the system of common schools and the revenue produced by the bill is incidental and integral thereto. Consequently, it would appear that House Bill 940 is not "a bill for raising revenue" as that term is used in § 47. Therefore, the Senate may offer amendments to the bill which do not relate to raising revenue.
We have been asked by Rep. William R. Strong, Rep. Kenneth F. Harper and Rep. Bill Lile to include in this opinion an answer to the question of whether passage of House Bill 940 will require a simple majority or will it require 51 votes as are required for budget matters. The matter of the 51 votes refers to Section 46 of the Constitution, which states, in pertinent part: "Provided, Any act or resolution for the appropriation of money or the creation of debt shall, on its final passage, receive the votes of a majority of all the members elected to each House." Since House Bill 940 does not contain a provision for the appropriation of money or the creation of debt, it would not come within the purview of § 46.