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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:

“All men are, by nature, free and equal, and have certain inherent and in alienable rights, among which may be reckoned; * * * the right of seeking and pursuing their safety and happiness. * * The right of acquiring and protecting property. * * * Absolute and arbitrary power over the lives, liberty and property 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 compensation being previously made to him.”

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 have always held the right to acquire, enjoy, and dispose of property. They placed it in the same class with life and liberty, and surrounded its use and enjoyment with the Same Safeguards; nor is it Singular that they should have done this, because in the whole history of the world civilized people have always recognized that the right of the individual, free from disability, to acquire, use, enjoy, and dispose of his property, free from the control, restraint, or dominion of any other perSon Or Set Of perSons, Was indispensable to the happiness of an enlightened people. Thus Blackstone, in his Commentaries, book 1, page 93, in Speaking of the absolute rights of persons, said:

“And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property; because, as there is no other known method of compulsion, or of abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.”

And in equally strong, if less eloquent,

language, Cooley, in his Constitutional Limi- ||

“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 specified time, and it declared them forfeited to the state in case the statute was not complied with. 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 the comforts and pleasures which man’s physical, intellectual, and moral nature is capable of acquiring, by the application and exercise of 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 all means necessary for its attainment, by the proper exercise of our faculties. The acquisition of property, to some extent at least, is indispensable to our most limited ideas of happiness. Food and raiment are property, and without food and raiment, existence cannot be preserved many days. Whether our acquisitions shall be limited to a bare subsistence, or shall be multi£ to the accumulation of every luxury, will epend upon the degree of labor, employed, and the success of the business to which it may be 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.” Many other authorities declaring a like doctrine might be referred to, but we deem it unnecessary to lengthen this Opinion With citations approving a sentiment that is the common experience of mankind, and the effect of which is observed by all of us in the everyday affairs of life. No man can fail to have noted how eager our people are to acquire property, how tenaciously they hold it, and how bitterly they resist even the most trifling hostile or unwelcome intrusion upon the right, and so it is easy to understand how necessary possession and dominion of property is to the happiness of the people, and how disContented the normal man WOuld be to find himself the owner of an estate, but without , the right of possession and control so dear to the desires and ambitions of manhood. Nor is this craving for dominion, that is the natural inheritance of the race, to be satisfied by income received from the hands of another. What Virile men Want, in connection with property, is the pride and happiIneSS that Spring from eXclusive Control and the undivided right to do as they please with it; or as finely said by Blackstone in book 2, page 1: “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.”

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 centuries as a part of the heritage of every free and civilized people. Influenced by conditions such as we have attempted to set forth, the Constitution makers, from the beginning Of the State, have put together in the same class, and in the Order named, life, liberty, and property as the most highly treasured rights Of Our people, and any interference With the exclusive dominion of the adult 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. 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 case we have. 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 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 majority, 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

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. And entirely aside from the constitutional prohibitions against its exercise, it seems to us an intolerable situation that the Legislature of the state should have the power, through the instrumentality of the court, to take from a person, in his infancy, for the full period Of his life, the right to the use and enjoyment of property that except for this he would come into the full possession Of When he reached his majority, and VieWed 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 manage his property, although it Should be Said

that such exercises of arbitrary power have

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 power in any state in the Union. On the contrary, it has been constantly resisted as inconsistent 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

* have seen, it does not stop there; it continues to restrain his rights, to deprive him of his property, and to deny him the exercise of acts of ownership over it after the disability is removed to the same full ex

| tent 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 Constitutions, are not, and from the Very nature 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.”

And so, when the Constitution declares that no man’s property shall be taken Or applied to public use without just compensation, this precludes the idea that it may be taken without his consent under any circumstanceS Or conditions for a private use; and when it declares that the right of acquiring and protecting property is among the inalienable rights of the citizen, this right of acquiring and protecting carries with it the right of control and dominion, and a citizen can no more be deprived of his right of control and dominion than he can be deprived of his right of acquisition and protection. Accordingly, this legislation, in Our Opinion, is Violative of the true intent and meaning of the constitutional provisions contained in the Bill of Rights declaring that: (1) The right of seeking and pursuing their happiness, (2) the right of acquiring and protecting property, are among the inalienable rights of the citizen; and, further, that (3) no man’s property shall be taken except for public purposes. We have, however, discovered some authority holding a contrary view to that herein expressed, and to this authority some reference should be made.

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 that state a guardian, When authorized by the county court SO to do, might execute an Oil and, gas lease upon the lands of an infant for a period of years extending beyond his minority, When it appeared that the best interests 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,

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in Beauchamp v. Bertig, 90 Ark. 350, 119 S. 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:

“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 the court was influenced to give its approval to a lease of infants’ land, or interest therein, that would extend far beyond the minority of the infant, upon the ground that the best interest of the infant would be promoted by the lease. But, with all due respect to the ability and learning of these courts, it seems to us that they have failed to give proper significance to the burden imposed. by the lease upon the person affected after he has reached his majority, and would be presumed to have the ability and CapaCity, as Well as the desire, to manage and control his own property. It is, of course, well enough that the best interest of the infant Should be the Sole guide in the leasing and disposition of his estate by the court, but its superintending and supervising jurisdiction and authority Should end With the infancy. These courts, in the opinions referred to, have not only undertaken to control the estate during infancy but for many years thereafter, and it would seem, as We have before said, that there is little, if any, difference between leasing the land of a young man of 18 years for 99 years and leasing the land of a young man of 21 for 96 years. Yet we venture the aSSertion that no One Of these courts would Sustain the ruling of an inferior court, although pursuant to legislative authority, if the ruling undertook to lease, without his consent, for any period of years, or for any time, the land or any interest therein of a sound-minded young man who was over 21 years of age, it should, however, be obServed that in no One of these cases was any 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 justification 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 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 may be true that the arrangement would yield to him, after reaching manhood, a greater financial profit than he could realize from it by his own endeavors. But considerations like these should, as We think, have little weight in determining what our judgment Should be. The guardianship Of the courts should be confined to perSons under disability, and therefore presumed to be unable to protect themselves, and all others should be left to their OWn endeavor, Whether it means success or failure. This is the Spirit of a Constitution that speaks the best judgment and wisdom of the ages, and its directions should not be set aside or ignored to promote the personal convenience or adVantage of the individual. 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 be 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.

(180 Ky. 799) KOCHENRATH v. CHRISTMAN. (Court of Appeals of Kentucky. May 31, 1918.)

1. CoNTRACTS @->116(2)—AGREEMENT NOT TO ENGAGE IN BUSINESS. To be valid, restraint from engaging in a business imposed on a person must be incident to, and in support of, another contract or sale in which the person benefited acquires some interest in the business needing protection.

2. CONTRACTS @->116(2)—SALE OF BUSINESSRESTRAINT UPON SELLER. Where the owner of an extensive mail order

liquor business covering a large portion of the state of Indiana sold the business and good will, the restraint imposed upon him by the contract of sale not to engage in the business in the state of Indiana for five years was not more than reasonably necessary for the protection of the good will sold, and therefore valid.


The buyer of a mail order liquor business, 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, was entitled to recover all damages accruing up to the time of trial.

4. CONTRACTS @:207 – AGREEMENT NOT TO ENGAGE IN BUSINESS—VIOLATION. Where the seller of a mail order liquor business contracted not to engage in such business in the state of Indiana for five years, he violated his agreement by filling in Indiana, by delivery 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. 5. DAMAGES @->40(2)—BREACH OF CONTRACTPROFITS. 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. 6. DAMAGES @->189—AGREEMENT NOT TO ENGAGE IN BUSINESS—BREACH-SUFFICIENCY OF EVIDENCE. 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. 7. TRIAL (3:11(3) — EQUITABLE ACTION – TRIAL OF ISSUE AT LAW-TIME FOR MOTION. Where a litigant desires to have an issue at law arising in an equitable action tried by a jury, the motion to have the case transferred to the common-law docket must be made when the pleading tendering the issue is filed, or within a reasonable time thereafter. 8. TRIAL 3+11(3) — EQUITABLE ACTION – TRIAL of LEGAL Issue — RESTORATION OF RIGHT. Where plaintiff, by failing to move in proper time, lost his right to jury trial in his equitable action of the issue at law of defendant’s right to damages on a counterclaim, he could not restore the right by first dismissing the petition, and then moving to transfer to the common-law docket.

Appeal from Circuit Court, Oldham County.

Suit by Charles A. Kochenrath against Otto W. Christman. From the judgment for defendant on his counterclaim, plaintiff appeals. Affirmed.

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