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within these limitations its activities are controlled by the Constitution; but outside of them it may act with a free hand, subject, of course, to the restraint imposed by the federal Constitution. So that when the validity of legislation is challenged in the courts, the inquiry is limited to the questions: What provision of the Constitution does it violate? What does it do, or propose to do, that the Constitution forbids?" Therefore, whatever our opinion might be as to the policy of this legislation, we are not at liberty to set it aside on the ground that it is unwise and detrimental to the best interests of the citizens of the state to permit courts to take out of their hands, when laboring under no disability, the power to manage and control their own property. Fortunately, however, we think there can be found in the Constitution of the state ample authority for holding this legislation invalid. [2] In the Bill of Rights, among the great and essential principles of liberty and free government, we find it declared that:

* *


have certain inherent and inalienable rights,
"All men are, by nature, free and equal, and
among which may be reckoned; *** the
right of seeking and pursuing their safety and
happiness. *** The right of acquiring and
protecting property.
Absolute and ar-
bitrary power over the lives, liberty and prop-
erty of freeman exists nowhere in a republic, not
even in the largest majority. * **Nor can
he be deprived of his life, liberty or property,
unless by the judgment of his peers or the law
of the land: *** No person shall, for the
same offense, be twice put in jeopardy of his life
or limb, nor shall any man's property be taken
or applied to public use without the consent of
his representatives, and without just compensa-
tion being previously made to him."

"The right of every man to do what he will with his own, not interfering with the reciprocal right of others, is accepted among the fundamentals of our law. The instances of attempt to interfere with it have not been numerous since the early colonial days. A notable instance of an attempt to substitute the legislative judgment for that of the proprietor, regarding the manner in which he should use and employ his property, may be mentioned. In the state of Kentucky at an early day an act was passed to compel the owners of wild lands to make certain improvements upon them within a specistate in case the statute was not complied with. fied time, and it declared them forfeited to the It would be difficult to frame, consistently with the general principles of free government, a plausible argument in support of such a statute.

And our own court has added its potent voice in support of this ancient and highly valued principle, in the following language, found in Davis v. Ballard, 1 J. J. Marsh. 563:

"The enjoyment of life, liberty, and property, and the right to pursue happiness, embrace all of acquiring, by the application and exercise of the comforts and pleasures which man's physical, intellectual, and moral nature is capable the various faculties with which he is endowed, and all that the world can afford him. The right to pursue happiness includes the right to use proper exercise of our faculties. The acquisition all means necessary for its attainment, by the of property, to some extent at least, is indisFood and raiment are property, and without pensable to our most limited ideas of happiness. food and raiment, existence cannot be preserved many days. Whether our acquisitions shall be limited to a bare subsistence, or shall be multiplied to the accumulation of every luxury, will the success of the business to which it may be depend upon the degree of labor employed, and directed; but it equally results, whether we have much or little, that one of the objects in the formation of the Constitution was to secure the enjoyment of that which we do possess and own."

These provisions of the Bill of Rights which will be found in every Constitution of the state bear striking testimony to the high regard in which the people of the state Many other authorities declaring a like have always held the right to acquire, en- doctrine might be referred to, but we deem joy, and dispose of property. They placed it unnecessary to lengthen this opinion with it in the same class with life and liberty, and citations approving a sentiment that is the surrounded its use and enjoyment with common experience of mankind, and the effect the same safeguards; nor is it singular of which is observed by all of us in the everythat they should have done this, because in day affairs of life. No man can fail to have the whole history of the world civilized peo- noted how eager our people are to acquire ple have always recognized that the right of property, how tenaciously they hold it, and the individual, free from disability, to ac- how bitterly they resist even the most trifling quire, use, enjoy, and dispose of his property, hostile or unwelcome intrusion upon the right, free from the control, restraint, or dominion and so it is easy to understand how necesof any other person or set of persons, was sary possession and dominion of property is indispensable to the happiness of an en- to the happiness of the people, and how dislightened people. Thus Blackstone, in his contented the normal man would be to find Commentaries, book 1, page 93, in speaking himself the owner of an estate, but without of the absolute rights of persons, said: the right of possession and control so dear "And these may be reduced to three principal to the desires and ambitions of manhood. or primary articles; the right of personal security, the right of personal liberty, and the Nor is this craving for dominion, that is the right of private property; because, as there is natural inheritance of the race, to be satisno other known method of compulsion, or of fied by income received from the hands of abridging man's natural free will, but by an another. What virile men want, in connecinfringement or diminution of one or other of these important rights, the preservation of these, tion with property, is the pride and happiinviolate, may justly be said to include the pres-ness that spring from exclusive control and ervation of our civil immunities in their largest the undivided right to do as they please with it; or as finely said by Blackstone in book 2, page 1:

and most extensive sense."

And in equally strong, if less eloquent, language, Cooley, in his Constitutional Limi

"There is nothing which so generally strikes

mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."

come into the use and possession of this property given to him in his infancy. It is, of course, true that he will derive from it each year a valuable income, but this falls far short of the exclusive dominion that every adult citizen of sound mind desires to and should have the high privilege of exercising over his own property.

Having its origin in the human feeling that perhaps found its first permanent expression in the Great Charter, this love of sole dominion has been handed down for And entirely aside from the constitutional centuries as a part of the heritage of every prohibitions against its exercise, it seems to free and civilized people. Influenced by us an intolerable situation that the Legislaconditions such as we have attempted to set ture of the state should have the power, forth, the Constitution makers, from the be- through the instrumentality of the court, to ginning of the state, have put together in take from a person, in his infancy, for the the same class, and in the order named, life, full period of his life, the right to the use liberty, and property as the most highly treas- and enjoyment of property that except for ured rights of our people, and any interfer-this he would come into the full possession ence with the exclusive dominion of the adult of when he reached his majority, and viewed citizen of sound mind over his property, unless sanctioned by the Constitution and laws made pursuant thereto, is a denial of the right of seeking and pursuing his happiness guaranteed by the Constitution.

case we have.

Keeping now in mind the exacting care with which Constitutions and courts have guarded the right of the citizen from any attempt to interfere with his exclusive enjoyment of property owned, we may stop here a moment to have clearly before us just what this act of 1916 does, as exhibited in the Here are three infants, one 11, one 16, and the other 18, years of age; they own the fee-simple title, subject to a life estate, in a body of land in one of the life estate, in a body of land in one of the great coal-producing counties of the state, the value of the coal in which, we may say without exaggeration, is many millions of dollars. One of these infants in about 2 years from now will have reached his ma

jority, the other in about 4 years, and the other in about 9 years, at which times each of them, free from any restraints, except those imposed by the judgment of the Pike circuit court, would come into the full possession and enjoyment of this enormously valuable body of land, and each of them when he had reached his majority would have the undisputed right to manage, control, and enjoy it to the same extent as any other adult citizen of sound mind in the state would have the right to manage, control, and enjoy his property. But if the judgment stands, Jake, when he reaches his majority in 2 years from now, and when he might reasonably expect to come into the possession and enjoyment of his estate like any other citizen, will find that shortly before he arrived at age the circuit court of Pike county had leased his land, or at least the only valuable part of it, for a term of 40 years, with the privilege on the part of the lessee to extend the lease for 40 years, so that Jake, if he lived to be a centenarian, would at the end of his life come into the full possession of his estate for the first time. It is, however, probable, if not certain, that he would never live to see the day when he would

in the light of the constitutional guaranties referred to it would be folly to say that the citizen has the inalienable right to acquire, hold, and enjoy property, if by legislative declaration it may be taken from him in the manner attempted in this case. The declarations by which the right of the citizen to exercise dominion over his property were permanently secured would have little meaning if he could be deprived of its control and possession by the decree of a court, pursuant to a legislative enactment like the one here in question. Everybody will readily admit that the Legislature could not, by any enactment, take from an adult citizen of sound mind the right to control and manthat such exercises of arbitrary power have age his property,. although it should be said been attempted more than once, but in every instance the efforts were met and set aside

by judicial authority.

Thus in Wilkinson v. Leland, 2 Pet. 627,

7 L. Ed. 942, the Supreme Court of the United States said:

"That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court or justice in this country would be warranted in assuming that the power to violate and disregard them-a power so repugnant to the common principles of justice and civil liberty-lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and wellbeing without very strong and direct expressions of such an intention. In Terrett v. Taylor, 9 Cranch, 43 [3 L. Ed. 650], it was held by this court that a grant or title to lands, once made by the Legislature to any person or corporation, is irrevocable, and cannot be reassumed by any subsequent legislative act; and that a different doctrine is utterly inconsistent with the great and fundamental principle of a republican government, and with the right of the citizens to the free enjoyment of their property lawfully acquired. We know of no case in which a legislative act to transfer the property of A. to B. without his consent has ever been held a constitutional exercise of legislative pow

er in any state in the Union. On the contrary, I have seen, it does not stop there; it conit has been constantly resisted as inconsistent tinues to restrain his rights, to deprive him with just principles by every judicial tribunal in which it has been attempted to be enforced." In People v. Morris, 13 Wend. (N. Y.) 325, the Supreme Court of New York said:

"It is now considered a universal and fundamental proposition in every well-regulated and properly administered government, whether embodied in a constitutional form or not, that private property cannot be taken for strictly private purposes at all, nor for public without a just compensation; and that the obligation of contracts cannot be abrogated or essentially impaired. These and other vested rights of the citizen are held sacred and inviolable, even against the plenitude of power of the legislative department."

And in Ervine's Appeal, 16 Pa. 256, 55 Am. Dec. 499, the Supreme Court of Pennsylvania said:

"If the Legislature possessed an irresponsible power over every man's private estate, whether acquired by will, by deed, or by inheritance, all inducement to acquisition, to industry, and economy would be removed. The principal object of government is the administration of justice and the promotion of morals. But if property is subject to the caprice of an annual assemblage of legislators acting, tumultuously, and without rule or precedent, and without hearing the party, stability in property will cease, and justice be at an end. If the government is interdicted from taking private property even for public use without just compensation, how can the Legislature take it from one man and dispose of it as they think fit. The great principle is that a man's property is his own, and that he shall enjoy it according to his pleasure (injuring no other man) until it is proved in due process of law that it is not his, but belongs to another. Many acts of assembly have been passed, it is true, authorizing guardians, trustees, and executors to convey lands. This power has been sustained by this court where the persons in interest were minors and lunatics, and could not act for themselves, and where the guardians, etc., requested the passage of the laws."

And our court, in Gossom v. McFerran, 79 Ky. 236, in holding so much of section 491 of the Civil Code as attempted to authorize the sale of an adult's land against his consent unconstitutional, said:

"Where any of the citizens are incapacitated to act for themselves, it becomes the duty of the state to protect their interests, and it is upon this idea and for this reason that jurisdiction has been conferred upon the courts to sell and reinvest the proceeds of property belonging to such persons when in the judgment of the court it is to their interest. The court acts and consents for them because they cannot act or consent for themselves. But so long as the citizen is under no legal disability to act for himself in the management of his property he is protected by the Constitution from interference on the part of the state, whether that interference comes directly by legislative act operating immediately upon the property, or intermediately through the courts."

But it is said that this legislation only operates on the property and affects the rights of infants and persons of unsound mind. In a limited sense this is true, and there could be no objection to the legislation if its course was stopped when the disability of the

of his property, and to deny him the exercise of acts of ownership over it after the disability is removed to the same full extent that it does during the continuance of the disability. Nor can it be said that because courts of equity have always exercised the power within the limitations prescribed by the Code to sell the lands of infants and persons of unsound mind, thereby divesting them completely of title thereto, there is no substantial difference between that method of taking from the infant, or person of unsound mind, his estate and the method employed by leasing it in the manner authorized by this legislation.

The difference between the sale of infant's land for purposes of reinvestment, or for his education and maintenance, and the leasing of it for a period of time long beyond his infancy, is so obvious that it scarcely need be distinguished. When the land of an infant is sold for purposes of reinvestment, there is only a change in the character or, perhaps, the location of his estate. The principal fund remains intact to come into his possession when he reaches his majority. If his estate is sold for his education and maintenance, during infancy, only so much of it as may be necessary for this purpose can be sold, or, if more, it will be reinvested in other property over which he will have exclusive dominion and control when the period of his minority is over. When, however, the

whole estate is seized during his infancy, and at a time when he is presumed to be incapable of acting for himself, and leased for a term of years that will, under ordinary conditions, extend far beyond the period of his life, the Legislature, through the instrumentality of the court, is assuming to exercise a guardianship for life over his affairs that is only tolerated in cases of infancy and mental unsoundness.

There could scarcely be conceived any legislation that would be more obnoxious to the Constitution or offensive to the instincts of vigorous men than to make them, by legislative action and without their consent, the beneficiaries for life of the bounty of a lessee to whose keeping their estates had been committed. It is true that the Constitution does not, in express terms, forbid the taking of the property of the citizen out of his possession and placing it in the control and possession of another, and yet it has always been agreed that this could not be done except for some public purpose. As said by Cooley, in his Constitutional Limitations, page 209:

"Nor where fundamental rights are declared by the Constitution, is it necessary at the same time to prohibit the Legislature, in express terms, from taking them away. The declaration is itself a prohibition, and is inserted in the Constitution for the express purpose of operating as a restriction upon legislative power. Many things, indeed, which are contained in


W. 75, 23 L. R. A. (N. S.) 659, also held valid the lease of an infant's interest in land for a period beyond his minority, when it appeared that it would be beneficial to his interests. The Alabama court, in McCreary v. Billing, 176 Ala. 314, 58 South. 311, Ann. Cas. 1915A, 561, also upheld a long-time lease of an infant's real estate, upon the ground that it would be beneficial; the court saying:

Constitutions, are not, and from the very na- | in Beauchamp v. Bertig, 90 Ark, 350, 119 S. ture of the case cannot be, so certain and definite in character as to form rules for judicial decisions; and they are declared rather as guides to the legislative judgment than as marking an absolute limitation of power. The nature of the declaration will generally enable us to determine without difficulty whether it is the one thing or the other. * So the forms prescribed for legislative action are in the nature of limitations upon its authority. The constitutional provisions which established them are equivalent to a declaration that the legislative power shall be exercised under these forms, and shall not be exercised under any other. A statute which does not observe them will plainly be ineffectual."

"It guarantees them a nice income, free from care or trouble, with ironclad security for same, until they reach middle life-the age of wisdom and discretion."

In all of these cases it would seem that And so, when the Constitution declares that the court was influenced to give its approval no man's property shall be taken or applied to a lease of infants' land, or interest thereto public use without just compensation, this in, that would extend far beyond the minorprecludes the idea that it may be taken with- ity of the infant, upon the ground that the out his consent under any circumstances or best interest of the infant would be promotconditions for a private use; and when it de-ed by the lease. But, with all due respect clares that the right of acquiring and protect to the ability and learning of these courts, ing property is among the inalienable rights it seems to us that they have failed to give of the citizen, this right of acquiring and protecting carries with it the right of control by the lease upon the person affected after proper significance to the burden imposed. and dominion, and a citizen can no more be he has reached his majority, and would be deprived of his right of control and dominion presumed to have the ability and capacity, than he can be deprived of his right of acas well as the desire, to manage and control quisition and protection. Accordingly, this his own property. It is, of course, well legislation, in our opinion, is violative of the enough that the best interest of the infant true intent and meaning of the constitutional should be the sole guide in the leasing and provisions contained in the Bill of Rights de disposition of his estate by the court, but its claring that: (1) The right of seeking and superintending and supervising jurisdiction pursuing their happiness, (2) the right of ac- and authority should end with the infancy. quiring and protecting property, are among These courts, in the opinions referred to, the inalienable rights of the citizen; and, have not only undertaken to control the esfurther, that (3) no man's property shall be tate during infancy but for many years theretaken except for public purposes. We have, after, and it would seem, as we have before however, discovered some authority holding said, that there is little, if any, difference a contrary view to that herein expressed, and between leasing the land of a young man of to this authority some reference should be 18 years for 99 years and leasing the land of


The Oklahoma court, in Cabin Valley Mining Co. v. Mary Hall (Okl.) 155 Pac. 570, L.

R. A. 1916F, 493, held that under the law of

served that in no one of these cases was

ture the assertion that no one of these courts a young man of 21 for 96 years. Yet we venwould sustain the ruling of an inferior court, that state a guardian, when authorized by the if the ruling undertook to lease, without his although pursuant to legislative authority, county court so to do, might execute an oil consent, for any period of years, or for and, gas lease upon the lands of an infant consent, for any period of years, or for for a period of years extending beyond his any time, the land or any interest therein of a sound-minded young man who was over 21 minority, when it appeared that the best in-years of age, it should, however, be obterests of the infant would be subserved by the lease; and the United States Circuit Court of Appeals, in Mallen v. Ruth Oil Co., 231 Fed. 845, 146 C. C. A. 41, in considering the validity of an Oklahoma lease made by the guardian of an infant for a period of time extending beyond his minority, ruled that under the laws of the state of Oklahoma such a lease might be made by the guardian with the approval of the court, when it appeared to be for the best interest of the infant. In Ricardi v. Gaboury, 115 Tenn. 485, 89 S. W. 98, the Tennessee court approved a lease of infant's land for a period of 99 years, upon the ground that it clearly appeared that the interests of the infant would be benefited by the lease. The Arkansas court, 203 S.W.-47

reference made to constitutional provisions prohibiting courts from exercising authority or control over the estates of adults, although it might be thought beneficial or helpful to the adult to have the management of his property taken out of his hands. In some of the cases referred to, it seems to have been assumed that in the absence of legislation the courts had the power exercised, and in others full juștification for the judgment was found in statutory provisions.

It may be true, as said in these cases, that the interest of the infant would be benefited by the execution of a lease extending beyond his minority in the sense that he

(180 Ky. 799)





might during infancy be able to realize a larger income from the lease than he would get if it terminated with his minority; and it (Court of Appeals of Kentucky. May 31, 1918.) may be true that the arrangement would yield to him, after reaching manhood, a greater financial profit than he could realize To be valid, restraint from engaging in a from it by his own endeavors. But consider- business imposed on a person must be incident ations like these should, as we think, have to, and in support of, another contract or sale little weight in determining what our judg-terest in the business needing protection. in which the person benefited acquires some inment should be. The guardianship of the courts should be confined to persons under disability, and therefore presumed to be un- Where the owner of an extensive mail order able to protect themselves, and all others liquor business covering a large portion of the should be left to their own endeavor, wheth-will, the restraint imposed upon him by the constate of Indiana sold the business and good er it means success or failure. This is the tract of sale not to engage in the business in spirit of a Constitution that speaks the best the state of Indiana for five years was not more judgment and wisdom of the ages, and its than reasonably necessary for the protection of directions should not be set aside or ignored the good will sold, and therefore valid. to promote the personal convenience or ad- 3. DAMAGES 28-BREACH OF CONTRACT. The buyer of a mail order liquor business, vantage of the individual. suing for damages sustained through the seller's breach of his agreement not to engage in the business in the state of Indiana for five years, to the time of trial. was entitled to recover all damages accruing up 4. CONTRACTS 207-AGREEMENT NOT TO

It is true that in many wills and trust deeds provision is made for taking the estate out of the hands of the devisee or grantee for many years, or during his life, and putting in another the right to control and manage it, but it does not follow from this that the courts, acting under legislative direction, should have the same power, although it might appear that the exercise of it would be beneficial to the person affected. There is no room for analogy between the act of giving to a devisee or grantee property burdened with conditions that deprive him of its control, and a legislative act that takes out of the hands of the owner the right to manage and control that which he received free from any restraints upon its control or disposition. In the one case the devisee or grantee takes the property in the first instance subject to the limitations imposed by the instrument giving it to him, while in the other case he comes into the fee-simple title and possession of the property without any limitations after legal disabilities are removed upon his right to manage and control it. In the one case the devisee or grantee voluntarily elects to take the estate burdened with the conditions the instrument granting it contains, while in the other he takes the estate free from any conditions, and thereafter, without his consent, the control and management of it is taken

out of his hands.

Upon a careful consideration of the question involved, we think the act of 1916, in so far as it attempts to authorize the leasing, during the infancy or unsoundness of mind of the owner, the "coal, oil, gas, and other minerals or mineral substances and products" for a period beyond the minority of the infant, or beyond the period when the disability of the person of unsound mind is removed, is void.

Wherefore the judgment is reversed, with directions to proceed in conformity with this opinion.


Where the seller of a mail order liquor business contracted not to engage in such business ed his agreement by filling in Indiana, by dein the state of Indiana for five years, he violatlivery to a common carrier, orders received from persons residing in Kentucky, the sales taking place in Indiana within the meaning of the contract, so that the profits on such sales must be considered in determining the buyer's damages.


On counterclaim by the buyer of a mail order liquor business for the seller's breach of his agreement not to engage in such business in Indiana for five years, the damages sustained by the buyer should not be measured by the entire profits of the seller, but only by the profits of which the buyer was deprived by the seller's breach.


On such counterclaim, evidence held to support the conclusion that the buyer's damages of $4,000, as fixed by the trial court, were actually sustained.

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