Request By:
Mr. Robert B. Sales
Attorney at Law
Marion E. Taylor Building
Suite 414
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
It is your contention that, based upon the language employed in the Act of Congress, approved February 4, 1791, admitting Kentucky into the Union, the use of the term "Commonwealth" in connection with our state seal [KRS 2.020], flag [KRS 2.030] etc., is in violation of said Act of Congress. You believe that only the term "State of Kentucky" should be used. The Act of Congress does not mention the "Commonwealth of Kentucky." It only refers to the "State of Kentucky."
The word "Commonwealth" is defined in Webster's Seventh New Collegiate Dictionary, p. 167, as being a nation, state or other political unit. Another definition in Webster's states that it means "a state of the United States, used officially of Kentucky, Massachusetts, Pennsylvania, and Virginia." (Emphasis added). The term "Commonwealth" or "Commonwealth of Kentucky" appears profusely in our state constitution [as well as former Kentucky Constitutions] and in our statutory law.
At the outset the basic relative powers of the federal government and a state government must be considered. "The United States is a government of limited, enumerated, and delegated powers, and it cannot exercise any authority not granted by the Federal Constitution either in express words or by necessary implication." 16 Am.Jur.2d, Constitutional Law, § 199, p. 434. See
Ashton v. Cameron County Water Improv. Dist., 298 U.S. 513, 80 L. Ed. 1309, 56 S. Ct. 892. The Tenth Amendment to the Federal Constitution provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." (Emphasis added). Each state has the power to "order its own affairs and govern its own people except so far as the Federal Constitution expressly or by fair implication has withdrawn that power. When the American people created a national legislature with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the states." 16 Am.Jur.2d, Constitutional Law, § 200, p.p. 435-436.
United States v. Appalachian Power Co., 311 U.S. 377, 85 L. Ed. 243, 61 S. Ct. 291. "There can be no restriction upon any state [upon admission] other than one prescribed upon all the states by the Federal Constitution. Congress, in admitting a state, cannot restrict such state by bargain." 16 Am.Jur.2d, Constitutional Law, § 201, p.p. 437-438.
The public policy of a state is to be found: first, in the constitution; second, in the Acts of the Legislature; and third, in its judicial decisions.
Kentucky State Fair Board v. Fowler, 310 Ky. 607, 221 S.W.2d 435 (1949) 439.
We find that from the beginning of this Commonwealth the term "Commonwealth" was officially used synonymously, and obviously equated with, the word "state." It is not necessary here to go into the full historical background which would reflect why the term "Commonwealth" was employed. It suffices to know that the term "Commonwealth" was embraced by the stout hearted Kentuckians at the very start of our state government. The preamble to our 1891 Kentucky Constitution reads: "We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution." (Emphasis added). We find the term "Commonwealth" being used synonymously with "state" throughout our 1792, 1799, 1850 and the present 1891 Constitutions.
A declaration of public policy [the official use of "Commonwealth" as a synonym for "state"] was in effect contained in the first constitution of Kentucky and those that followed. In the first act of the Kentucky legislature the term "Commonwealth" was used. Acts of 1792, Chapter 1, p. 59, Littell, The Statute Law of Kentucky. This was shortly after the effective admission into the Union, which admission occurred on June 1, 1792. Collins, History of Kentucky, Vol. I, p.p. 22 and 272. It is a cardinal rule of construction that no part of the constitution should be construed so as to defeat its substantial purpose or the reasonable intent of the people in adopting it.
Gaines v. O'Connell, 305 Ky. 397, 204 S.W.2d 425 (1947) 427.
We find that the official and legal use of the word "Commonwealth" is deeply and well established as a part of our legal history, documents, literature, and culture.
We can clearly see that the use of "Commonwealth" as a snynonym for "state" violates in no way the Federal Constitution or the Federal Act of Admission. The use of "Commonwealth of Virginia" in the Admission Act in no way militates against this analysis. There is nothing in Article 4, § 3 [admission of states] of the Federal Constitution prohibiting such usage. Even if Congress intended to restrict Kentucky to using only the term "State of Kentucky" and not "Commonwealth of Kentucky" [which intention is actually not evident], the Congress in the 1791 Admission Act had no constitutional authority whatsoever to limit Kentucky to such terminology. Here we are not critically concerned with what the term "Commonwealth" meant as applied to the former colonies nor what the term means as applied to a territory such as Puerto Rico, which is called a "Commonwealth." Cf.
Feliciano v. United States (U.S. Dist. Court D. Puerto Rico - 1969) 297 F.Supp. 1356, 1362. Here "Commonwealth of Kentucky" simply means "State of Kentucky."
As Justice Lurton observed, in
Coyle v. Smith, 55 L. Ed. 853 (1910), the definition of a "state" is found in the powers possessed by the original states which adopted the constitution, a definition emphasized by the terms employed in all subsequent acts of Congress admitting new states into the Union. He said the first two admitted were Vermont and Kentucky, and that no terms or conditions were exacted from either. He wrote that each act declares that the state is admitted "as a new and entire member of the United States of America." Justice Lurton further wrote that "The Union was and is a union of states, equal in power, dignity, and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself."
The use of the term "Commonwealth" as being synonymous with "state" was and is clearly within the sovereign powers of Kentucky as a state. And there is nothing in the Federal Constitution or Act of Admission which prohibits such word use.
Sister states have used the term "Commonwealth" as being synonymous with "state."
The case of
State v. Lambert, W.Va., 28 S.E. 930 (1898) 931, involved a writ of recognizance wherein the cognizors acknowledged themselves to owe the "Commonwealth of West Virginia" instead of the "state" of West Virginia. The Supreme Court of Appeals of West Virginia, in upholding the validity of the writ, said that it is true that the code provides that in criminal cases the recognizances shall be payable to the "state" of West Virginia. However, the court held that the word "Commonwealth", in such case, is merely synonymous with the word "state."
The Supreme Court of Appeals of Virginia, in Roller v. State Milk Commission, 204 Va. 536, 132 S.E.2d 427 (1963) held that the State Milk Commission was not "Commonwealth" within the statute exempting Commonwealth from payment of costs. Virginia has a general statute providing that judgments for costs against the Commonwealth are not generally allowable. The court reasoned that, while the Commission was an instrumentality of the Commonwealth, it is not "the Commonwealth" within the meaning of the statute. Further, the operations of the Commission were not supported by general taxation. This holding is tantamount to ruling that the "Commission" was not the "state of Virginia" under the costs statute.
The Supreme Court of Pennsylvania, in Adam Eidemiller, Inc. v. Commonwealth, 408 Pa. 195, 182 A.2d 911 (1962), held that the Pennsylvania Highway and Bridge Authority comes within the meaning of "Commonwealth" in the Board of Claims Act, which was equivalent to holding that the Highway and Bridge Authority comes under the concept of "state" of Pennsylvania under the Board of Claims Act.
Judge Swaim, in Detres v. Lions Building Corporation (U.S.C.A. -7, 1956) 234 F.2d 596, at p. 600, wrote this about "Commonwealth":
"The word commonwealth does not have a definite, single meaning. Webster's New International Dictionary 541 (2d ed. 1953) defines commonwealth as used in American History as: 'Any of the individual States of the United States. Massachusetts, Pennsylvania, Virginia, and Kentucky are officially called commonwealths.' The same dictionary also gives the following broader definition of the term commonwealth: 'The body of people constituting a state or politically organized community; a body politic; hence, a state, esp. one constituted by a number of persons united by compact or tacit agreement under one form of government and system of laws.' This definition describes both a state of the United States and a territory such as Puerto Rico."
In
Interior Airways, Inc. v. Wien Alaska Airlines, Inc., (U.S. Dist. Ct. D. Alaska, 1960) 188 F.Supp. 107, at p. 112, the Court wrote this about powers of a state upon admission into the union:
"The essence of the power of statehood must be maintained without impairment by any condition of admission, compact, or agreement. A state cannot be restricted in its legislative power in respect of any matter which is not plainly within the regulatory power of the national government. 'Each state must be competent to exercise that residuum of sovereignty not delegated to the United States by the constitution.' What is prohibited is not all conditions, compacts, or stipulations, but only those which would not be valid and effectual if the subject of Congressional legislation after the state's admission."
While our mother state, Virginia, uses the term "Commonwealth", the historians should not overlook the fact that the great early leaders of Kentucky, coming out of Virginia, Maryland, Pennsylvania, and New Jersey, were imbued with a consciousness of their pioneering uniqueness, as expressed in their free thought and free spirit. A newphew of United States Senator John J. Crittenden of this Commonwealth, when asked in 1851 in Havana, Cuba, to kneel in order to be shot by a firing squad, replied that "A Kentuckian kneels to none but God." Collins, History of Kentucky, Vol. I, p. 584. The term "Commonwealth of Kentucky" implies a socio-political symbolism; but legalistically and constitutionally it simply means the "state of Kentucky." Kentucky's historical and legal usage of the term "Commonwealth" represents a proper exercise of its sovereign powers as a state; and this long and unassailed practice in synonymity is not subject to the regulatory control of the Congress. As we stated above, in connection with the United States Supreme Court holdings, a state cannot be restricted in its legislative power in respect to any matter which is not plainly within the regulatory power of the national government.