Request By:
Vic Hellard, Jr., Director
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
You state that there are two vacancies in the State Senate and questions have arisen as to the interpretation of several sections of the Kentucky Constitution relative to General Assembly operations.
Basically, the questions revolve around:
What number of members constitutes a quorum? How is a quorum determined? How many members are required to pass a bill or override a veto? Under these circumstances what number constitutes a constitutional majority? 19 members or 20 members?
Section 37 of the Kentucky Constitution states:
Not less than a majority of the members of each House of the General Assembly shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and shall be authorized by law to compel the attendance of absent members in such manner and under such penalties as may be prescribed by law.
Section 46 of the Kentucky Constitution provides in part as follows:
No bill shall become a law unless, on its final passage, it receives the votes of at least two-fifths of the members elected to each House, and a majority of the members voting, the vote to be taken by yeas and nays and entered in the journal: 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.
Section 35 of the Kentucky Constitution and KRS 5.100 provide that the number of State Senators is thirty-eight.
In 4 McQuillin Mun. Corp. (3rd Ed.), § 13.27.15, the following appears in part relative to the computation of a quorum:
In determining the legal quorum of a municipal governing body, ordinarily the whole membership of the body is to be counted. Where vacancies occur, the whole number entitled to membership must be counted and not merely the remaining members.
In 81A C.J.S. States, § 51, the following appears in part:
Generally, a majority of the members of a legislative body will constitute a quorum, in the absence of a constitutional provision fixing the number, irrespective of whether or not one or more vacancies have occurred because of death, resignation, or other reasons.
Section 37 of the Kentucky Constitution states that a majority of the members of the legislative body constitutes a quorum. There are no provisions for recalculating a quorum in the case of vacancies. Thus, since the Senate consists of thirty-eight members, a quorum consists of twenty members.
In calculating the number of senators' votes needed to pass a bill, we start with requirement that at least a quorum must be present before the bill can be considered. If a quorum is present as required by Section 37 of the Kentucky Constitution, we next must consider the requirements of Section 46 of the Kentucky Constitution.
Under Section 46 of the Kentucky Constitution, no bill can become law unless, on its final passage, it receives the votes of two-fifths of the members elected to the Senate, and a majority of the members voting. Thus, a bill must receive not only the vote of the majority of those senators voting but it also must receive the votes of at least 40 per cent of the members elected which is 15.2 and that number rounded off is 16 votes. No matter how many members over a quorum are present the bill must receive at least 16 affirmative votes to pass. The purpose of such a provision, the court said in Kirchdorfer v. Tincher, 204 Ky. 366, 264 S.W. 766, 769 (1924), is to prevent the enactment of a law by a majority of a bare quorum. In the case of the State Senate, this could be as few as eleven votes were it not for the provisions of Section 46 of the Kentucky Constitution.
Note also that Section 46 of the Kentucky Constitution provides that 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, which in the case of the State Senate is twenty votes. See, by way of comparison, OAG 90-29, copy enclosed, at page five, where we said that under the provisions of Section 46 of the Kentucky Constitution, 51 votes of the members of the House of Representatives would be necessary to pass a bill involving the appropriation of money.
In connection with overriding a veto, Section 88 of the Kentucky Constitution states in part:
If, after such reconsideration, a majority of all the members elected to that House shall agree to pass the bill, it shall be sent, with the objections, to the other House, by which it shall likewise be considered, and if approved by a majority of all the members of that House, it shall be a law.
Thus, in the case of the State Senate, to which thirty-eight persons are elected, a majority of all members elected to that body is twenty. At least twenty votes in the State Senate would be required by Section 88 of the Kentucky Constitution.