other railroad purposes. The question is, was such evidence competent? The rule seems to be that in estimating the value of property taken for public use the owner is entitled to the reasonable market value of the property, which value must be ascertained, not by what use the property has been actually applied, but with reference to its availability and adaptability for valuable uses, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. The proper inquiry in such case is, what is its value in view of any use to which it may be applied and to all the uses to which it is adapted? (Boone & Co. v. Patterson, 98 U. S., 403; Lewis on Eminent Domain, section 479.)

The issue in such case is not what the land is worth to the appellant, or how profitably it may use it in its business, nor the costs and expense that it would be compelled to incur in obtaining other property or in fitting it for his business, if he failed to obtain that particular property. (Lewis on Eminent Domain, section 479, and authorities there cited.)

The law should be given to the jury without including the evidential matters indicated. They are evidence only, but in such cases the jury should be admonished not to let those matters indicated as not evidence influence them.

The judgment is reversed and cause remanded for further proceedings consistent with this opinion.

TABOR v. LANDER, &c.

HAYNES v. COMMONWEALTH.

(Filed April 4, 1893.)

Repeal of local option law by implication-An amendment to the charter of the town of Hawesville, enacted in 1888, which authorized the town council to license taverns and coffeehouses with the privilege of retailing liquors in the town, operated as a repeal of the general local option law as to said town which was then in force in the magisterial district of which the town was a part; the amendment, being repugnant to and inconsistent with the "local option law," must be regarded as a repeal of it.

The vote taken on the "local option question" in said district in 1890, which resulted against the sale of intoxicating liquors therein, did not in any sense operate as a re-enactment of the local option law as to the town, or suspend the force of the amendment to its charter.

Sweeney, Ellis & Sweeney for appellants.

W. J. Hendrick for Commonwealth.

W. S. Morrison for Lander, &c.

Appeal from Hancock Circuit Court.

Opinion of the court by Judge Hazelrigg.

On the petition of the appellees, Lander and others, filed in the circuit court in May, 1892, a writ of probibition issued against the appellant, Tabor, as judge of the Hancock County Court, who is alleged to be about to grant licenses to sell spirituous, vinous ard malt liquors within the limits of Hawesville, a city embraced within the territorial limits of Magisterial Dis

trict No. 1 in Hancock county. In this district, it is alleged, at a duly appointed election held in August, 1890, a majority of the legal voters had voted against the sale of such liquors, and of which fact due record had been made in the proper office. Such is the first-named proceeding.

In the second case mentioned above the appellant, Haynes, having obtained a license from the county court (Tabor, judge) to sell such liquors in the town named, and, being engaged in so selling, was indicted in May, 1892, for violating the "local option" law, so called, and on an agreed state of fact the lower court, having perpetuated the writ of prohibition against County Judge Tabor and found Haynes, the liquor dealer, guilty of violating the law named, they have each appealed from the judgment against them, and as the main question in each case is the same they will be heard together.

That question is whether or not in May, 1892, the local option law was in force in the town of Hawesville.

In the district a vote was taken under the provisions of the law in August, 1884, and again in 1890, resulting each time against the sale. In April, 1888, an amendment to the charter of the city of Hawesville was adopted by the legislature conferring for the first time authority on the city council to license taverns and coffeehouses, with the privilege of retailing liquors in the city, and it is now insisted that this act repealed the operation of the local option law then in force so far as the city was concerned.

In the case of Gifford v. Commonwealth, 2 Ky. Law Rep., 437, it was held by this court that a section in the charter of the town of Falmouth, passed by the legislature in 1878, granting the council of that town the power to license and regulate the sale of liquors, operated as a repeal of the general local option law which was then in force in the town, because repugnant thereto and inconsistent therewith, and the same construction has been adopted by the courts of other States. (Wisenheub v. State, 18 Texas App., 491.) And it would seem, outside of this direct authority, that such must be the necessary result of such legislation. The legislature has complete control of the subject. It may say that liquors shall not be sold in a given territory, or that the question of its sale shall be left to all the voters therein, or that liquors may be sold in a given locality, or that the question may be left to the council of a city or board of trustees."

In this case the legislative body must have known that the local option law had been voted into operation in Hawesville and was in force in April, 1888, and its action in making it thereafter lawful for the council of said city to fix the rate of city tax for the privilege of selling liquors by retail in the city must have been intended to vest the power of licensing the sale in a dfferent set of electors-that is, in the councilmen of the city, instead of the voters in the district.

The city was incorporated in 1882, and while the powers of the city council are set out in great detail, and the trades and occupations placed under the control and regulation of that body are extraordinarily numerous, the right to license, regulate or control the liquor trade is no where conferred; and while the local option law was in full force and in operation in the district the legislature enacts a law directly repugnant to and inconsistent with the general law, and specially empowers the city authorities to exercise its taxing power on this special traffic for the benefit, it is alleged, of the common schools of the city.

We think a clear intent to repeal or suspend the operation of the general law is evident.

It was, in effect, a separation of the two political divisions— the city from the civil district.

But thereafter, and in 1890, the vote was taken in the district, and resulted against the sale, and it is insisted that this should operate to re-enact the general law, or at least again put into orce and effect that law, even if it had been suspended by this amendment. We can not see how this could be. If the right to regulate the traffic was conferred on the council, a vote of the people-and that, too, of a people in an outlying territory-can not affect the legislative power so conferred. The power to license and tax in such a case must mean an exclusive power. Any other construction would result in irreconcilable conflict of authority.

Prior to the passage of the local option law the councils of the various towns and cities of the State, as a rule, had the right to license and tax this business. The local option law was enacted applicable to all alike, and it was the manifest intention of the legislature to have this law apply to such towns and cities in spite of the right theretofore conferred to so control this trade by the councils, etc.; but where that law has been put into operation in a civil district, and the legislature, as in this case, deliberately confers that right or power on another and specified tribunal, it must be supposed to have intended a change in the manner of controlling and reuglating the traffic, and until this special act be repealed the special power and right therein conferred must be regarded as the exclusively controlling power. It may be observed in this case that before exercising the power conferred under the amendment the vote was again submitted to the people of the city of Hawesville as provided by the general law, and this resulted in favor of the sale. This, whether necessary or not, was in pursuance of the spirit of the local option law. The least possible effect to be given the amendment of April. 1888, is that of separating or divorcing the theretofore existing political divisions and of recognizing the city as having a distinct and separate entity, and as a separate and distinct political division. And in this view the most that can be required of the city is to take the vote on the question of the sale as such distinct division, and this was done by the vote of 1892.

We think it clear, therefore, that the right to issue the license existed, and that when issued it afforded protection to the licensee. It is not necessary to consider other minor questions raised by counsel for the appellants. The petition should have been dismissed and the writ of prohibition quashed and the finding in the penal case should have been for the defendant.

For these reasons the judgments in both cases are reversed, with directions to dismiss both proceedings.

ROBERTS v. YANCEY, &c.

(Filed April 6, 1893.)

1. Champerty-A contract between an attorney and his client, whereby the attorney takes from the client an assignment of a note, agreeing to prosecute an action upon it in his own name and at his own expense, and to pay the client a certain part of the "amount collected," retaining the balance for his services, is champerious and, therefore, voic.

2. Same-Conclusiveness of judgment-As such a contract extends to the collection of the judgment that may be recovered, in an action by the attorney to subject to the payment of a judgment which he has obtained under the contract a fund held in trust for the judginent defendant, the trustee, not being a party to the action in which judgment was rendered, may plead that the contract was champertous; the common law judgment. against the cestui que trust does not bind the trustee.

Lindsay & Botts for appellant.

E. E. Settle for appellees.

Appeal from Owen Circuit Court.

Opinion of the court by Chief Justice Bennett.

R. S. Yancey executed and delivered to Jesse Halbrook his. promissory note. Thereafter Halbrook assigned said note to W. B. Roberts, a lawyer, and appellant.

The consideration of the assignment was that the appellant, as such assignee, was to bring suit on said note against R. S. Yancey at his own costs and expense and divide whatever sum that he might collect from said Yancey between himself and Halbrook. Judgment was obtained by default against Yancey for the amount of said note, and execution having issued thereon and returned no property found, the appellant instituted this equitable action against the said appellant and R. H. Yancey, his trustee, to subject the trust estate held by R. H. Yancey to. said debt. R. H. Yancey, who was not a party to the cominon law suit, by an amended answer contested the right of the appellant to subject said trust estate to said debt upon the ground that the contract being champertous and void, the judgment rendered thereon was void.

The lower court overruled a demurrer to the amended petition, and from this judgment the appellant appealed to the SuperiorCourt, and that court affirmed the judgment, and from that opinion this appeal is prosecuted. (Ante, 42.)

The appellant contends, first, that the law of champerty does not apply to this case, because it is not alleged that suit was pending at the time the contract was made with a person not a party on record.

Section 1 of chapter 11, General Statutes, provides: "All contacts, agreements and conveyances made in consideration of the services to be rendered in the prosecution or defense, or in the aiding in the prosecution or defense, in or out of court of any suit by any person not a party on record in such suit, whereby the thing sued for or in controversy, or any part thereof, is to be taken, paid or received by such person for his services or assistance, shall be null and void.

"Section 8. Neither party to any contract made in violation of the provisions of this chapter shall have any right of action or suit thereon."

As to the first contention of the appellant it is sufficient to say that it is not necessary that an action should be pending the order to create a champertous contract in the meaning of said section. (Burt v. Larue, &c., 4 Litt., 418; 3 American and English Encyclopædia of Law, page 70.) Also the section quoted under the statute does not mean that an action must be pending in order to make the contract champertous.

The eighth section quoted expressly provides that neitherparty to such contract shall have any right of action or suit thereoon. Said section makes it clear, if there was otherwise

any doubt, that no action or suit shall be brought on such contract, evidently because the contract, being vicious and against public policy, tainted the whole transaction, and, consequently, any judgment rendered thereon, the object of which is to enforce said contract, may be set aside by the proper parties. Therefore, there is no doubt that any person not a party or privy to said common law judgment is not bound thereby, and whenever an attempt to enforce it antagonizes his rights or duties he may resist said judgment to the extent that its enforcement antagonizes his rights, and in order to do so he may show that said judgment is void on account of champerty, etc.

The trustee held some estate willed to him by his father in trust for his brother, R. S. Yancey, and he was entrusted with the control and management of the same for the use of his said brother during his life and then to his children. This trust does not make him his brother's privy. His control and management of the estate is absolute, being only subject to an action for damages if he abuses his trust.

"He, as trustee, and his brother as cestui que trust, as a general rule, are regarded as being so independent that proceedings against one has no effect upon the other, and both are essential to a complete determination of any action in reference to the trust estate." (Freeman on Judgments, section 173.)

That is to say, as a general rule, a common law judgment against the cestui que trust, a trustee not being a party, does not bind him; and he, in an action that seeks to subject the trust estate to satisfaction of that judgment, may contest the correctness of the judgment and show that it is void in order to protect the trust property.

The judgment is affirmed.

HARMON v. KY. COAL, IRON & DEVELOPMENT CO. (LIMITED), &c.

(Filed April 6, 1893-Not to be reported.)

Appointment of a receiver-The lower court did not abuse its discretion in refusing to appoint a receiver for the large tracts of land involved, since it appears that the lands are in the hands of appellees, who paid full value therefor at a fair sale, and that appellant's interest therein is small and uncertain, and that he has an adequate remedy by attachment or demanding an allotment.

W. J. Hendrick for appellant.

Knott & Edelen, Johnson, Gallup & Hurry, Ed. C. O'Rear and Thos. J. Bigstaff for appellees.

Appeal from Bell Court of Common Pleas.

Opinion of the court by Judge Pryor.

This case is not here on its merits, but is an appeal from an order made by the court below refusing to appoint a receiver at the instance of the appellant. The appellant is claiming an interest in many thousand acres of mountain land, or its proceeds, purchased by some of the appellees, and after which the appellant became interested on certain conditions.