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that the property be leased and prescribe the royalty to be paid. Sections 5, 6, 7, and 8 relate to the practice and procedure, and prescribe the descent of the estate upon the death of the infants or person of unsound mind, without having disposed of the same. In § 9 it was provided that the guardian, curator, or committee should settle from time to time his accounts "and upon the infant becoming of age or the person of unsound mind becoming of sound mind shall make a final and complete settlement of all amounts received under such lease, and account for the same as herein and by law provided; and shall thereupon be discharged from further duty or accountability as such guardian or committee. Thereafter the rights and obligations of such former infant or person of unsound mind and the lessee shall be the same as if the lease had been executed originally to the lessee by a person over twenty-one years of age and free from any disability."

In 1917 Jesse D. Kash, as statutory guardian of Octavia, Jake, and Ike Smith, filed his petition in the Pike circuit court against these infants, averring that Octavia was eleven, Ike sixteen, and Jake eighteen, years of age; that they were the owners of about 2,500 acres of land devised by the will of Jacob Smith, in 1906, to their father for life, with remainder to them in fee; that the land was unfit for cultivation on account of its rough and mountainous character, and its sole value consisted in the coal thereon; that the infants have no income, and if they were permitted to lease the coal and mining rights in the land the royalty derived therefrom would be sufficient to educate and maintain them; he prayed that the court enter a decree authorizing him to lease the property for coal-mining purposes, pursuant to the terms of a lease proposed to be made between these infants by Kash, as their guardian, of the one part, and the Lawrence E. Tierney Coal Company of the other part.

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This lease stipulated that the grantors, in consideration of certain royalties provided for, leased all of the coal in and under the land to the coal company for a period of forty years, with the privilege of renewal for an additional term of forty years. The lease further contained a number of stipulations providing for the use and occupation of the property by the coal company to enable it to mine and deliver the coal, and then provided that the lessee should pay to the lessors, during the continuance of the lease, or any renewal thereof, a royalty of 10 cents for each ton of coal produced from the land and 15 cents for each ton of coke that might be manufac tured on the premises, the minimum royalty to be $5,000 for the first year, $10,000 for the second, and $15,000 for the third, and each year thereafter.

After this, the infants were properly brought before the court and a guardian ad litem was appointed to represent them, and he filed a report reciting that, in his opinion, the lease would be beneficial to them. Thereupon evidence was taken supporting the averments of the petition, and afterward the court rendered a judgment authorizing the guardian, Kash, to lease the land for a period of forty years, with the privilege of renewal for forty years for the purpose of mining and removing coal therefrom, with the usual privileges contained in such leases. The judgment further recited that the conditions of the lease filed with the petition were reasonable and satisfactory, and that the guardian should lease the coal privileges in the land under and according to the terms of the form of lease filed with the petition at public outcry, reserving to the court the right to reject any and all bids. Following this, the privileges as set out in the lease filed with the petition were sold pursuant to the judgment, and the Lawrence E. Tierney Coal Company, being the only bidder, became the purchaser under the terms of

(180 Ky. 815, 203 S. W. 731.)

the lease heretofore referred to. Formal exceptions were filed to the report of sale by the company and overruled, and it prosecutes this appeal for the purpose of having the correctness of the judgment and the rulings of the court in respect to the exceptions determined by this court in order that there might be no questions about the validity of the lease, and its rights and privileges thereunder. It may here be remarked that the proceedings had

in the lower court were in conformity with the provisions of the act, and so, if there were no objections to its validity, the judgment should be affirmed.

At this point we may digress a moment to briefly review the state of the law previous to the Act of 1916. In §§ 489-498 of the Civil Code, provision is made for the sale of the real estate of infants and persons of unsound mind. But the sale of the real estate of infants and persons of unsound mind, under these Code provisions, is only allow able: (1) For the purpose of paying a debt of the ancestor with which the infant or person of unsound mind may be chargeable; (2) for the purpose of paying the debts of the infant or person of unsound mind; (3) for the maintenance and education of the infant, and the maintenance of the persons of unsound mind and their families; (4) for purposes of reinvestment in other property. It has also been frequently and consistently held that courts of equity have no inherent power to sell, for any purpose, the real estate of into sell infant's fants or persons of

Equity-power real estate.

unsound mind, and

that when it is sought to sell their real estate express authority for the sale must be found in statutory provisions, and these provisions must be strictly complied with. Walker v. Smyser, 80 Ky. 620; Elliott v. Fowler, 112 Ky. 376, 65 S. W. 849. It is further provided in § 2031 of the Kentucky Statutes that a guardian "may lease any real

estate of the ward till the ward shall arrive at full age; but no such lease shall be made for a longer term than seven years." So that before the Act of 1916, a court of equity could not lease for a longer term than the minority of the infant his real estate or any interest, mineral or otherwise, therein, nor could his real estate, or any part thereof or interest therein, be sold for any pointed out in the statutory proany purposes except those

visions referred to.

the state, as expressed in legislative It had always been the policy of enactments and court opinions, to guard with jealous care the property rights of infants and persons under disability, but it was never thought that the courts had any power to undertake to regulate or control in any manner, by proceedings brought during infancy, the estate after the infant had arrived at full age, or the disability was removed. When either of these contingencies happened, then the person who had been an infant, or who had been laboring under some legal disability, was restored to his rightful status as a citizen of the state entitled to the free and unrestrained use and management of his property to the same extent as that of any other person of full age and sound mind. But the Act of 1916 undertook to make a radical and sweeping change in this timehonored public policy of the state, and to give to circuit courts having general equity jurisdiction powers not only to regulate and control the estates of infants and persons of unsound mind during the infancy or period of disability, but to project this regulation and control far beyond the time theretofore prescribed and long after the infant had arrived at age, or the disability had been removed; and the question is, Did the legislature have this power?

In determining this question, we have not overlooked the fact, so often declared by this court, that a

legislative act will not be declared

Statute-when invalid.

invalid unless the legislation was prohibited by the Constítution, because the rule long pursued by this court, and generally observed by other courts, is that there are no restraints upon the authority of the legislative department except those imposed by the Federal and state Constitutions. Thus it was said in Johnson v. Higgins, 3 Met. (Ky.) 566, that "the duty, and sole duty, of this department of the government, when the constitutional power of the legislature to enact a law is questioned, is to look to the provisions of the Federal and state Constitutions, and if they do not, in express terms, or by necessary and proper implication, forbid the exercise of such power, the enactment must be adjudged valid and enforceable as a law. Beyond the constitutional restrictions thus to be interpreted, the only limits upon the state legislature in enacting laws are its own wisdom, sound judgment, and patriotism. And it may be added that in doubtful cases, where it is not clear that the fundamental law has not been invaded, courts rarely, if ever, interfere to arrest the operation of legislative enactments. Respect for the wisdom of a co-ordinate department of the government, as well as sound policy, forbids such interposition, except upon clear and satisfactory grounds."

And again in Com. v. Goldburg, 167 Ky. 96, 180 S. W. 68, we said: "Laws cannot be disregarded merely because they are supposed to be repugnant to some governmental principles that lie outside of constitutional limitations. The Constitution of this state, in §§ 27 and 28, distributing the powers of government, confided to the legislative branch the authority to enact laws, and this authority the judiciary is not at liberty to interfere with unless the legislation violates directly or by necessary implication some provision of the state or Federal Constitution. Subject to this limi

tation, the policy of the legislation or the wisdom or the propriety of it is not for the judicial branch of the government to decide. When the courts have exercised their jurisdiction in restraining the legislature from transgressing constitutional bounds, they have reached the limit of their control. The people put in the Constitution such limitations as they wished to impose on the legislative branch, and 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.

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 inalienable rights, among which may be reckoned; The right of seeking and pursuing their safety and happiThe right of acquir ing and protecting property. Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. Nor can

ness.

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he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land:

(180 Ky. 815, 203 S. W. 731.)

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 BlackThus 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 Limitations, page 475, says: "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, inteilectual, 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 multiplied to the accumulation of every luxury, will depend 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 are 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 happiness 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 the imagination, and engages the affection of 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."

Influ

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. enced 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 eleven, one sixteen, and the other eighteen, 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 two years from now will have reached his majority; the other in about four years, and the other in about nine 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 two 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 ar rived 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 forty years, with the privilege on the part of the lessee to extend the lease for forty years, so that Jake, if he lived to be a

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