*

*

*

within these limitations its activities are con- "The right of every man to do what he will trolled by the Constitution; but outside of them with his own, not interfering with the reciproit may act with a free hand, subject, of course, cal right of others, is accepted among the fundato the restraint imposed by the federal Consti- mentals of our law. The instances of attempt tution. So that when the validity of legislation to interfere with it have not been numerous is challenged in the courts, the inquiry is lim- since the early colonial days. A notable inited to the questions: What provision of the stance of an attempt to substitute the legislative Constitution does it violate? What does it do, judgment for that of the proprietor, regarding or propose to do, that the Constitution forbids?" the manner in which he should use and employ Therefore, whatever our opinion might be of Kentucky at an early day an act was passed

his property, may be mentioned. In the state as to the policy of this legislation, we are to compel the owners of wild lands to make cernot at liberty to set it aside on the ground fied time, and it declared them forfeited to the

tain improvements upon them within a specithat it is unwise and detrimental to the state in case the statute was not complied with. best interests of the citizens of the state to It would be difficult to frame, consistently with permit courts to take out of their hands, the general principles of free government, a when laboring under no disability, the power

plausible argument in support of such a statute.” to manage and control their own property. And our own court has added its potent Fortunately, however, we think there can be voice in support of this ancient and highly found in the Constitution of the state ample valued principle, in the following language, authority for holding this legislation invalid. found in Davis V. Ballard, 1 J. J. Marsh.

[2] In the Bill of Rights, among the great 563: and essential principles of liberty and free "The enjoyment of life, liberty, and property, government, we find it declared that:

and the right to pursue happiness, embrace all “All men are, by nature, free and equal, and cal, intellectual, and moral nature is capable

the comforts and pleasures which man's physihave certain inherent and inalienable rights, of 'acquiring, by the application and exercise of among which may be reckoned;. * *.* the the various faculties with which he is endowed, right of seeking and pursuing their safety and and all that the world can afford him. The right happiness. * *

* The right of acquiring and to pursue happiness includes the right to use protecting property.

Absolute and ar

all means necessary for its attainment, by the erty of freeman exists nowhere in a republic, not proper exercise of our faculties. The acquisition even in the largest majority. * Nor can he be deprived of his life, liberty or property, Food and raiment are property, and without

pensable to our most limited ideas of happiness. unless by the judgment of his peers or the law food and raiment, existence cannot be preserved of the land:

* No person shall, for the same offense, be twice put in jeopardy of his life many days. Whether our acquisitions shall be or limb, nor shall any man's property be taken limited to a bare subsistence, or shall be multior applied to public use without the consent of plied to the accumulation of every luxury, will his representatives, and without just compensa- the success of the business to which it may be

depend upon the degree of labor employed, and tion being previously made to him.”

directed; but it equally results, whether we have These provisions of the Bill of Rights much or little, that one of the objects in the which will be found in every Constitution formation of the Constitution was to secure

the enjoyment of that which we do possess and of the state bear striking testimony to the own.' 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 and most extensive sense."

with it; or as finely said by Blackstone in And in equally strong, if less eloquent, book 2, page 1: language, Cooley, in his Constitutional Limi

"There is nothing which so generally strikes

mankind, as the right of property; or that sole, come into the use and possession of this and despotic dominion which one man claims property given to him in his infancy. It and exercises over the external things of the world, in total exclusion of the right of any is, of course, true that he will derive from other individual in the universe."

it each year a valuable income, but this falls

far short of the exclusive dominion that Having its origin in the human feeling every adult citizen of sound mind desires that perhaps found its first permanent ex- to and should have the high privilege of pression in the Great Charter, this love of exercising over his own property. 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, un- in the light of the constitutional guaranties less sanctioned by the Constitution and laws referred to it would be folly to say that the made pursuant thereto, is a denial of the citizen has the inalienable right to acquire, right of seeking and pursuing his happiness hold, and enjoy property, if by legislative guaranteed by the Constitution.

declaration it may be taken from him in the Keeping now in mind the exacting care manner attempted in this case. The declarawith which Constitutions and courts have tions by which the right of the citizen to guarded the right of the citizen from any exercise dominion over his property were attempt to interfere with his exclusive en- permanently secured would have little meanjoyment of property owned, we may stop here ing if he could be deprived of its control a moment to have clearly before us just what and possession by the decree of a court, purthis act of 1916 does, as exhibited in the suant to a legislative enactment like the case we have. Here are three infants, one one here in question. Everybody will readily 11, one 16, and the other 18, years of age; I admit that the Legislature could not, by they own the fee-simple title, subject to a life estate, in a body of land in one of the of sound mind the right to control and man

any enactment, take from an adult citizen great coal-producing counties of the state, the value of the coal in which, we may say age his property, although it should be said without exaggeration, is many millions of that such exercises of arbitrary power have dollars. One of these infants in about 2 been attempted more than once, but in every years from now will have reached his ma- instance the efforts were met and set aside jority, the other in about 4 years, and

by judicial authority.

Thus in Wilkinson v. Leland, 2 Pet. 627, the other in about 9 years, at which times each of them, free from any restraints, except 7 L. Ed. 942, the Supreme Court of the

,

United States said: those imposed by the judgment of the Pike circuit court, would come into the full possession “That government can scarcely be deemed to and enjoyment of this enormously valuable be free, where the rights of property are left body of land, and each of them when he had body, without any restraint. The fundamental

solely dependent upon the will of a legislative reached his majority would have the undis- maxims of a free government seem to require puted right to manage, control, and enjoy that the rights of personal liberty and private it to the same extent as any other adult property should be held sacred. At least no

court or justice in this country would be warcitizen of sound mind in the state would ranted in assuming that the power to violate have the right to manage, control, and enjoy and disregard them--a power so repugnant to his property. But if the judgment stands, the common principles of justice and civil lib

erty-lurked under any general grant of legislaJake, when he reaches his majority in tive authority, or ought to be implied from any 2 years from now, and when he might rea- general expressions of the will of the people. sonably expect to come into the possession The people ought not to be presumed to part and enjoyment of his estate like any other being without very strong and direct expressions

with rights so vital to their security and wellcitizen, will find that shortly before he ar- of such an intention. In Terrett v. Taylor, 9 rived at age the circuit court of Pike county Cranch, 43 [3 L. Ed. 650], it was held by this had leased his land, or at least the only val- court that a grant or title to lands, once made

by the Legislature to any person or corporauable part of it, for a term of 40 years, with tion, is irrevocable, and cannot be reassumed by the privilege on the part of the lessee to any subsequent legislative act; and that a difextend the lease for 40 years, so that Jake, ferent doctrine is utterly inconsistent with the

great and fundamental principle of a republiif he lived to be a centenarian, would at the can government, and with the right of the citiend of his life come into the full possession zens to the free enjoyment of their property of his estate for the first time. It is, how- lawfully acquired. We know of no case in

which å legislative act to transfer the property ever, probable, if not certain, that he would of A. to B. without his consent has ever been never live to see the day when he would held a constitutional exercise of legislative powe

er in any state in the Union. On the contrary, 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." of his property, and to deny him the exer

cise of acts of ownership over it after the In People v. Morris, 13 Wend. (N. Y.) 325, disability is removed to the same full exthe Supreme Court of New York said:

tent that it does during the continuance of “It is now considered a universal and funda- the disability. Nor can it be said that bemental proposition in every well-regulated and properly administered government, whether em- cause courts of equity have always exerbodied in a constitutional form or not, that pri- cised the power within the limitations prevate property cannot be taken for strictly pri- scribed by the Code to sell the lands of invate purposes at all, nor for public without a just compensation; and that the obligation of fants and persons of unsound mind, thereby contracts cannot be abrogated or essentially im- divesting them completely of title thereto, paired. These and other vested rights of the there is no substantial difference between against the plenitude of power of the legisla- that method of taking from the infant, or tive department.”

person of unsound mind, his estate and the And in Ervine's Appeal, 16 Pa. 256, 55 Am. method employed by leasing it in the manner Dec. 499, the Supreme Court of Pennsylvania

authorized by this legislation.

The difference between the sale of infant's said:

land for purposes of reinvestment, or for his “If the Legislature possessed an irresponsible power over every man's private estate, whether education and maintenance, and the leasing acquired by will, by deed, or by inheritance, all of it for a period of time long beyond his ininducement to acquisition, to industry, and econ- fancy, is so obvious that it scarcely need be of government is the administration of justice distinguished. When the land of an infant and the promotion of morals. But if property is sold for purposes of reinvestment, there is is subject to the caprice of an annual assemblage only a change in the character or, perhaps, of legislators acting, tumultuously, and without the location of his estate. The principal rule or precedent, and without hearing the par- fund remains intact to come into his possesty, stability in property will cease, and justice be at an end. If the government is interdicted sion when he reaches his majority. If his from taking private property even for public estate is sold for his education and mainteuse without just compensation, how can the nance, during infancy, only so much of it as Legislature take it from one man and dispose of it as they think fit. The great principle is may be necessary for this purpose can be that a man's property is his own, and that he sold, or, if more, it will be reinvested in other shall enjoy it according to his pleasure (injur- property over which he will have exclusive ing no other man) until it is proved in due pro- dominion and control when the period of cess of law that it is not his, but belongs to another. Many acts of assembly have been his minority is over. When, however, the passed, it is true, authorizing guardians, trus- whole estate is seized during his infancy, and tees, and executors to convey lands. This at a time when he is presumed to be incapower has been sustained by this court where the persons in interest were minors and luna pable of acting for himself, and leased for a tics, and could not act for themselves, and where term of years that will, under ordinary conthe guardians, etc., requested the passage of ditions, extend far beyond the period of his the laws."

life, the Legislature, through the instrumenAnd our court, in Gossom v. McFerran, 79 tality of the court, is assuming to exercise a Ky. 236, in holding so much of section 491 guardianship for life over his affairs that is of the Civil Code as attempted to authorize only tolerated in cases of infancy and mental the sale of an adult's land against his con- unsoundness. sent unconstitutional, said:

There could scarcely be conceived any legis"Where any of the citizens are incapacitated lation that would be more obnoxious to the to act for themselves, it becomes the duty of Constitution or offensive to the instincts of the state to protect their interests, and it is vigorous men than to make them, by legislaupon this idea and for this reason that juris- tive action and without their consent, the diction has been conferred upon the courts to sell and reinvest the proceeds of property be- beneficiaries for life of the bounty of a leslonging to such persons when in the judgment see to whose keeping their estates had been of the court it is to their interest. The court committed. It is true that the Constitution acts and consents for them because they cannot does not, in express terms, forbid the taking the citizen is under no legal disability to act of the property of the citizen out of his posfor himself in the management of his property session and placing it in the control and poshe is protected by the Constitution from inter session of another, and yet it has always ference on the part of the state, whether that interference comes directly by 'legislative act been agreed that this could not be done except operating immediately upon the property, or for some public purpose. As said by Cooley, intermediately through the courts."

in his Constitutional Limitations, page 209: But it is said that this legislation only op- "Nor where fundamental rights are declared erates on the property and affects the rights by the Constitution, is it necessary at the same of infants and persons of unsound mind. terms, from taking them away. The declaration

time to prohibit the Legislature, in express In a limited sense this is true, and there is itself a prohibition, and is inserted in the could be no objection to the legislation if its Constitution for the express purpose of operatcourse was stopped when the disability of the Many things, indeed, which are contained in

ing as a restriction upon legislative power.

*

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 defi- W. 75, 23 L. R. A. (N. S.) 659, also held valid nite in character as to form rules for judicial the lease of an infant's interest in land for a decisions; and

and they are declared rather as guides to the legislative judgment than as mark- period beyond his minority, when it appeared ing an absolute limitation of power. The na- that it would be beneficial to his interests. ture of the declaration will generally enable The Alabama court, in McCreary v. Billing, us to determine without difficulty whether it is the one thing or the other. * * So the 176 Ala. 314, 58 South. 311, Ann. Cas. 1915A, forms prescribed for legislative action are in 561, also upheld a long-time lease of an inthe nature of limitations upon its authorityfant's real estate, upon the ground that it The constitutional provisions which established would be beneficial; the court saying: them are equivalent to a declaration that the legislative power shall be exercised under these "It guarantees them a nice income, free from forms, and shall not be exercised under any care, or trouble, with ironclad security for same, other. A statute which does not observe them until they reach middle life—the age of wisdom will plainly be ineffectual.”

and discretion." And so, when the Constitution declares that the court was influenced to give its approval

In all of these cases it would seem that 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 proper significance to the burden imposed protecting carries with it the right of control by the lease upon the person affected after 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 than he can be deprived of his right of ac- presumed to have the ability and capacity,

as 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 a contrary view to that herein expressed, and between leasing the land of a young man of

said, that there is little, if any, difference to this authority some reference should be 18 years for 99 years and leasing the land of made.

The Oklahoma court, in Cabin Valley Min- a young man of 21 for 96 years. Yet we vening Co. v. Mary Hall (Okl.) 155 Pac. 570, L. ture the assertion that no one of these courts

would sustain the ruling of an inferior court, R. A. 1916F, 493, held that under the law of 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 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 served that in no one of these cases was the lease; and the United States Circuit any reference made to constitutional proCourt of Appeals, in Mallen v. Ruth Oil Co., visions prohibiting courts from exercising 231 Fed. 845, 146 C. C. A. 41, in considering authority or control over the estates of the validity of an Oklahoma lease made by adults, although it might be thought benethe guardian of an infant for a period of ficial or helpful to the adult to have the time extending beyond his minority, ruled management of his property taken out of that under the laws of the state of Oklahoma his hands. In some of the cases referred such a lease might be made by the guardian to, it seems to have been assumed that in the with the approval of the court, when it ap- absence of legislation the courts had the peared to be for the best interest of the in-power exercised, and in others full justifant. ,In Ricardi v. Gaboury, 115 Tenn. 485, fication for the judgment was found in stat89 S. W. 98, the Tennessee court approved a utory provisions. lease of infant's land for a period of 99 It may be true, as said in these cases, years, upon the ground that it clearly appear-that the interest of the infant would be beneed that the interests of the infant would be fited by the execution of a lease extending benefited by the lease. The Arkansas court, beyond his minority in the sense that he might during infancy be able to realize a

(180 Ky. 799) larger income from the lease than he would KOCHENRATH V. CHRISTMAN. 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

1. CONTRACTS Om 116(2)-AGREEMENT NOT TO

ENGAGE IN BUSINESS. 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

2. CONTRACTS Om 116(2)—SALE OF BUSINESScourts should be confined to persons under RESTRAINT UPON SELLER. 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- state of Indiana sold the business and good

will, the restraint imposed upon him by the coner 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.

3. DAMAGES w 28BREACH OF CONTRACT. to promote the personal convenience or ad

The buyer of a mail order liquor business, vantage of the individual.

suing for damages sustained through the seller's It is true that in many wills and trust breach of his agreement not to engage in the deeds provision is made for taking the es-business in the state of Indiana for five years,

was entitled to recover all damages accruing up tate out of the hands of the devisee or to the time of trial. grantee for many years, or during his life, 4. CONTRACTS C207 — AGREEMENT NOT TO and putting in another the right to control

ENGAGE IN BUSINESS-VIOLATION. and manage it, but it does not follow from Where the seller of a mail order liquor busithis that the courts, acting under legisla-ness contracted not to engage in such business tive direction, should have the same power, ed his agreement by filling in Indiana, by de

in the state of Indiana for five years, he violatalthough it might appear that the exercise livery to a common carrier, orders received from of it would be beneficial to the person affect- persons residing in Kentucky, the sales taking ed. There is no room for analogy between place in Indiana within the meaning of the the act of giving to a devisee or grantee be considered in determining the buyer's dam

contract, so that the profits on such sales must property burdened with conditions that de- ages. prive him of its control, and a legislative 5. DAMAGES 40(2)-BREACH OF CONTRACT act that takes out of the hands of the owner

PROFITS. the right to manage and control that which der liquor business for the seller's breach of his

On counterclaim by the buyer of a mail orhe received free from any restraints upon agreement not to engage in such business in its control or disposition. In the one case Indiana for five years, the damages sustained the devisee or grantee takes the property in by the buyer should not be measured by the

entire profits of the seller, but only by the the first instance subject to the limitations profits of which the buyer was deprived by the imposed by the instrument giving it to him, seller's breach. while in the other case he comes into the 6. DAMAGES Ow189—AGREEMENT Not To ENfee-simple title and possession of the prop

GAGE IN BUSINESS-BREACH-SUFFICIENCY

OF EVIDENCE. erty without any limitations after legal dis

On such counterclaim, evidence held to supabilities are removed upon his right to man-port the conclusion that the buyer's damages of age and control it. In the one case the dev- $4,000, as fixed by the trial court, were actnally

sustained. isee or grantee voluntarily elects to take

7. TRIAL Om11(3) EQUITABLE ACTION the estate burdened with the conditions the

TRIAL OF ISSUE AT LAW-TIME FOR MOTION. instrument granting it contains, while in the Where a litigant desires to have an issue other he takes the estate free from any con- at law arising in an equitable action tried by ditions, and thereafter, without his consent, a jury, the motion to have the case transferred the control and management of it is taken the pleading tendering the issue is filed, or with

to the common-law docket must be made when out of his hands.

in a reasonable time thereafter. Upon a careful consideration of the ques-8. TRIAL Cm11(3) - EQUITABLE ACTION tion involved, we think the act of 1916, in so

TRIAL OF LEGAL ISSUE - RESTORATTON OF

RIGHT. far as it attempts to authorize the leasing,

Where plaintiff, by failing to move in propduring the infancy or unsoundness of mind er time, lost his right to jury trial in his equiof the owner, the “coal, oil, gas, and other table action of the issue at law of defendant's minerals or mineral substances and prod- not restore the right by first dismissing the pe

right to damages on a counterclaim, he could ucts" for a period beyond the minority of tition, and then moving to transfer to the comthe infant, or beyond the period when the mon-law docket. disability of the person of unsound mind is Appeal from Circuit Court, Oldham County. removed, is void.

Suit by Charles A. Kochenrath against Wherefore the judgment is reversed, with Otto W. Christman. From the judgment for directions to proceed in conformity with this defendant on his counterclaim, plaintiff apopinion.

peals. Affirmed.