I am constrained to disagree with the majority of my brethren and, as the question is of the utmost importance, it seems fitting that I should give the reasons for so doing.

The opinion of the majority gives most excellent reasons why section 246 should be amended, with which I am heartily in accord, and then it proceeds to amend our Constitution. This a court has no authority to do. Especially is this true in face of the fact that the amendment of this very section has been submitted to the voters three or four times within the last two decades and has been overwhelmingly defeated each time. The last efforts to remove this salary limitation by amendment was defeated by the electorate in 1943.

While the majority seem to think they have given Sec. 246 a broad construction in keeping abreast of the times and to meet the exigencies of present day conditions, to my mind their interpretation is about as narrow as any they could have put upon it. Their opinion forcefully points out that the framers of the Constitution were bent upon keeping salaries within the $5,000 limitation, and that instrument, as well as the *Page 117 Constitutional Debates, convinces me it was the intention of the framers of our Constitution that no person, except the Governor, should draw a salary from the public treasury exceeding $5,000 per annum. Then the majority draw the most narrow distinction between "officers" and "employees" in saying that the limitation applies only to the former. Had the section read "no man shall receive more than $5,000 per annum" it would be just as logical to hold that the limitation would not apply to women, as it is to say it applies to officers and not to employees. By reading together secs. 34 and 249 it will be seen that the framers of our Constitution used the terms "officers" and "employees" interchangeably.

Some five years ago this court in Talbott etc., v. Public Service Commission, 291 Ky. 109, 163 S.W.2d 33, 34, wrote:

"It seems to us to be inconceivable that the members of the constitutional convention would feel impressed with the obligation to limit salaries of those engaged in the performance of duties of grave responsibility, and, at the same time, permit persons in positions subordinate in authority and responsibility to receive unlimited compensation. To attribute to them such intention would be to charge them with a total absence of appreciation or sense of values and would amount to an accusation that they proceeded on an absurd hypothesis. Such interpretation would be to hold that the Constitution forbids officers, upon whom rests the responsibility of approving the expenditure of millions of dollars a year, from receiving as much salary as may be paid to mere messenger boys in the departments such officers direct. That such construction would result in an absurdity does not require reflection, it is apparent on its face. We therefore conclude that section 246 of the Constitution is not limited in its application to that class of employees of the state who are technically known as officers, but that common sense dictates that the word 'officers' must be construed to include, by inference, employees subordinate thereto."

The logic of the above quotation is irrefutable. It stands out as a lighthouse on a rocky reef to show, those who would use the Constitution as a compass, a *Page 118 course by which to bring our Ship of State safely into port in stormy weather.

I agree with the majority that Martin v. Smith, 239 Wis. 214,1 N.W.2d 163, 140 A.L.R. 1063, correctly held that the President of the University of Wisconsin is not an officer within the meaning of the Constitution of that State forbidding any person to hold an office of profit or trust under the United States who holds such an office in Wisconsin. The Talbott opinion is not in conflict therewith. It expressly holds that the President and Professors of our University and Teachers Colleges are employees of the state and are embraced by the provisions of sec. 246 of the Constitution. There, we did not hold teachers are officers but only that the limitation of 246 applies to teachers as well as to officers.

The majority opinion in the Talbott case refused to give 246 a narrow construction, but the dissenting opinion gave it the narrowest interpretation possible and limited its meaning to the very words contained therein. Now come the majority in the instant case and say "but the court ought not to press too rigid an interpretation or application of a provision in which the intention is unclear or may only be surmised where it threatens public welfare under changed conditions unforeseen." After this clear exposition of the law the majority then proceeds to adopt the strict construction of the dissenting opinion in the Talbott case. This does not strike my mind as being either logical or consistent.

It is made clear in the Talbott opinion that the limitation in sec. 246 does not apply to persons, firms or corporations rendering independent services to the State. Such services are neither continuous nor regular and are not of a permanent nature as are those rendered by employees. Persons rendering such services are usually known in law as independent contractors.

In the case at bar, the majority clearly say in the construction of the Constitution courts often search for the intention of the framers of that instrument and the people adopting it. Then follows this sentence: "In *Page 119 this instance they never contemplated that it would be necessary to consider the application of this section to public employes, for the current standards of their compensation was too low." Perhaps when the people adopted their present Constitution in 1891, they did not consider that the ceiling on salaries was too low for the then standards. But the people when that very question was submitted to them in 1943 and again indirectly in 1947 did not think the limitation was too low when considered in the light of economic conditions now existing.

It is my thought that sec. 246 should be amended by a vote of the people and not by judicial interpretation.

For the reasons stated I most respectfully dissent from the majority opinion. I am authorized by Judge Thomas to say that he concurs in this dissent.