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 was 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. 542, 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 of 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 well-being without very strong 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. 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 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 a 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 § 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 legis lative lative 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 person affected was removed. But, as we 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 extent that it does during the continuance of the disabil ity. 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 devesting them completely of title thereto, that 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 an 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 the Bills of Rights to be found in the American 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 establish 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 Constitutional of the true intent extending beyond minority and meaning of the of ward. 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,

law-lease

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 Min. Co. v. Hall, 53 Okla. 760, L.R.A.1916F, 493, 155 Pac. 570, 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. 146 C. C. A. 41, 231 Fed. 845, 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 ninetynine years, upon the ground that it clearly appeared that the interests of the infant would be benefited by the lease. The Arkansas court, in Beauchamp v. Bertig, 90 Ark. 351, 23 L.R.A. (N.S.) 659, 119 S. W. 75, 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 So. 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 in

fant's 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 abil ity 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 eighteen years for ninety-nine years and leasing the land of a young man of twenty-one for ninety-six 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 twenty-one 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 pow er exercised, and in others full jus

tification 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 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 are 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.

A petition for rehearing having been filed, Carroll, J., on October 29, 1918, handed down the following additional opinion (181 Ky. 764, 205 S. W. 951):

The opinion in this case may be found in 180 Ky. 815, 203 S. W. 731. The act of the legislature (Laws 1916, chap. 99) under consideration in this case provided for the leasing of the real estate or any interest therein of infants and persons of unsound mind for the purpose "of mining and removing all or part of the coal, oil, gas, and any and all of the mineral or mineral substances or products therein" for a term beyond the minority of the infant or the removal of the disability of the person of unsound mind, and in the opinion we treated coal and mineral of all kinds as well as oil and gas as being in the same class, and in concluding the opinion said that "the Act of 1916, in so far as it attempts to authorize the leas