Central Kentucky Asylum For Insane v. Drane, &c. CASE 40-ACTION BY CENTRAL KENTUCKY ASYLUM TO SUBJECT THE Central Kentucky Asylum for the Insane v. Drane, &c. APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. JUDGMENT For DefendanTS AND PLAINTIFF APPEALS. INSANE PERSONS-CONFINEMENT IN AFFIRMED. ASYLUMS-PAUPER LUNATIC CONCLUSIVENESS OF FINDING-LIABILITY FOR BOARD IN ASYLUM- Held: 1. The finding of a jury that a lunatic is a pauper, so as to entitle him to be admitted to a State asylum without payment in advance, as provided by Kentucky Statutes, section 256, is not such an adjudication between the lunatic and the State as to preclude further inquiry as to the ability of the lunatic to pay; express provision being made by Id. section 257, for the recovery of the patient's board where he has, or subsequently acquires, estate. 2. Kentucky Statutes, section 257, authorizing a, suit to subject the estate of a lunatic who has been committed as a pauper in the event that he has or shall acquire "estate which can be subjected to debt," is to be read in connection with Id., section 256, which provides that the lunatic shall, if married, be admitted as a pauper if he is unable to pay the board "besides providing for others naturally dependent;" and therefore, where the income of the estate acquired was not more than sufficient to support the patient's wife and child, he had no estate which could be subjected to debt, within the meaning of the statute. HOLT & ALEXANDER, ATTORNEYS FOR APPELLANT. POINTS AND AUTHORITIES. 1. The recitation in the inquest, that the lunatic "owns estate of any kind" is not a judgment which precludes an inquiry or constitutes a plea in bar. The finding is a mere direction to the superintendent, as to who he is to receive as a pauper patient, and has no bearing upon or connection with section 257, which is the remedial statute. 113 281 114 837 Central Kentucky Asylum For Insane v. Drane, &c. 2. The court will not pass upon the constitutionality of a statute, unless a decision upon that very point becomes necessary to the determination of the cause, and under the petition and the amendment thereto a recovery can be had, if not under the statutes, then, upon a quantum meruit. 3. The mere fact that the statute applies to a particular class of persons, to the exclusion of all other classes does not render it unconstitutional, provided all persons are treated alike under similar circumstances and conditions. 4. The statute is remedial in character. There is no encroachment of the legislative upon the judicial branch of the government. It is true the Legislature fixes the amount to be charged, but the court tries all issues and determines the case, and the charge of $200 per year is not unreasonable. 5. The confinement of a violent lunatic is as defensible as the punishment of a criminal, and the State in its sovereign capacity would be justified in confiscating the entire estate of a lunatic supported in a State institution. The charge of $200 per year is the exercise of the police power of the sovereign. The stat ute is remedial and compensatory, rather than arbitrary and oppressive. 6. Under section 30, article II., chapter 48 of the Acts of 1894, no personal judgment can be had against a lunatic. The remedy is an action in rem to subject his estate. The case must therefore be referred to the commissioner to ascertain the value and nature of his estate, the extent of his indebtedness, and what property is necessary to be sold to satisfy the debts of the estate. The same as in the case of a decedent. 7. The provisions of section 257 of the Kentucky Statutes are: "When a patient has or shall acquire property subject to debt (not if he has property which yields an income more than sufficient to support those naturally dependent), such property can be subjected for the payment of his board." The statute neither expressly nor by implication provides that the lunatic himself must have property sufficient for the support of his family, and that the excess can only be subjected. The statute, however, does provide that a father shall not be compelled to pay for the board of his insane child or the husband for the board of his insane wife if unable to provide for others naturally dependent. In other words, the statutory provision is, the lunatic must pay if he has property subject to debt, the parent or husband must pay for his child or wife, if he has an income over a sufficiency to provide for others naturally dependent. 8. The wife having a separate income of her own of twenty Central Kentucky Asylum For Insane v. Drane, &c. five dollars per month, is not dependent upon her husband's estate for support. The question of support is not the issue. She is merely entitled to the exemptions given her by the law. Engling Committee v. Bank, 14 Bush, 708; Coleman v. Asylum, 6 B. Mon., 239; Cooley's Con. Lim., pages 139, 193; 5 Bush, 687. Tiedeman Lim. of Police Power, pp. 105, 110; Gossom v.McFerran, 79 Ky., 237; Smith v. Cochran, 7 Bush, 555; Templeton v. Stratton, 128 Mass., 137; Kentucky Statutes, 257; 2561, 2150; Civil Code, sec. 430; Asylum v. Penick Committee, 19 R., 1584; Southland Stat. Const., sec. 399; 169 U. S., 248. W. P. HILLSMAN AND PIRTLE & TRABUE, FOR APPELLEES POINTS AND AUTHORITIES. 1. This case is controlled by section 256 of Kentucky Statutes, which provides that if an insane person be married and be unable to pay his board besides providing for others naturally dependent upon him, he shall be held to be a pauper. 2. Such patients as come within the definition stated are expressly excepted by section 255 of the Kentucky Statutes from the paying of board. 3. Where an insane person has a wife and child to support and has prior to his marriage or inquest so conveyed his estate that the total net income per year from same is $280.32 or $23.36 per month, allowing nothing for loss of rents or vacant property, he is a pauper within the meaning of the statute as the payment of his board would reduce the income of his wife and child to an insignificant sum. Especially is this true where the wife has others dependent upon her and is on account of feeble health unable to earn a living for herself as admitted by the pleadings. 4. There are no facts alleged in the pleadings to show that this case should be referred to the commissioner. The estate is not shown to be insolvent or to owe any debts. The motion to refer to the commissioner was made before issues of the case were made. This question, however, can not be considered because the motion is not in the record. 5. The question as to whether or not patient's estate is liable for board is not a question of exemption nor does it come within the exercise of the police power of the State. The exemption of this class of patients from payment of board is the exercise of the State's charity toward its unfortunates and is a matter of legislative discretion as expressed by the statutes relating to charitable institutions. 6. Section, 256 of the Kentucky Statutes provides that the court holding the inquest as to lunacy shall require the jury to Central Kentucky Asylum For Insane v. Drane, &c. return a finding on the subject as to whether the patients is a pauper within the meaning of the statute or to use the language of the statute applying to this case "if married be unable to pay such board besides providing for others naturally dependent." The jury returned a finding that appellee "owned no estate of any kind" after hearing evidence showing his property and estate to be as shown in this case. He had the same estate then as пого. The verdict of the jury is binding, not only on the superintendent as to receiving the patient, but also conclusive as to the question of board. The board of commissioners can not ignore or change the definition of a pauper patient. Both the facts of this case and the verdict of the jury at the inquest show appellee, Drane, to be a pauper within the meaning of the statute. The court will hold him to be a pauper upon the facts even if the verdict had not shown him to be such. 7. Section 263 of Kentucky Statutes fixes the sum of $150 per annum as the allowance to each patient in the asylum. The extra fifty dollars sued for herein is either an arbitrary exaction or tax on a particular class of litigants or a penalty or excessive attorney's fee charged against an unsuccessful litigant and is illegal and contrary to the statute against usury. 8. Two hundred dollars of the claim sued on accrued more than five years before the filing of this suit and is barred by the Statute of Limitation. OPINION OF THE COURT BY JUDGE DURELLE-AFFIRMING. In March, 1895, an inquest was held in the Jefferson circuit court, and Edgar Drane was found to be a lunatic, and a judgment rendered committing him as a pauper lunatic to the Central Kentucky Asylum for the Insane. In Novem ber, 1900, an action was instituted under section 257 of the Kentucky Statutes, seeking to subject his estate to the payment of his board at the rate of $200 per annum. The finding of the jury at the inquest was "that he owns no estate of any kind,” but at that date he owned, and still owns, undivided interests in various pieces of real property, his interest wherein would be worth upwards of $10,000 if unincumbered, and his interest in the rents of which amounts to $780 per annum, but subject to a life estate in the in Central Kentucky Asylum For Insane v. Drane, &c. come in favor of his mother, which reduces the net income of the lunatic to about $300 per annum. The lunatic has a wife and child about seven years old, and the wife owns property of her own, from which she derives an income of about $25 per month. Upon final hearing the petition was dismissed upon the ground that appellee's estate did not produce an inocme more than sufficient for the support of his wife and child. It is contended that this was error, because the question of the sufficiency of the lunatic's estate to support his family was not the issue, but whether he had property subject to debt. We have held in the case of Schroer v. Kentucky Asylum (this day decided), 113 Ky., 288; 21 R., 150; G8 S. W., 150, that the jury's finding that the lunatic owns no estate of any kind does not preclude further inquiry, as the section providing for such finding is to be read in connection with section 257, providing for such a suit as this. A number of other questions presented by this record are considered and decided in that case, and need not be referred to here. The only question necessary to be decided here is the proper construction of the language used in section 257, authorizing a suit to subject the estate of the lunatic who has been committed as a pauper in the event that he has or shall acquire "estate which can be subjected to debt." On behalf of the asylum it is claimed that section 256 is not to be considered in construing section 257, and that it is merely a direction that the superintendent of the asylum shall receive as a pauper each patient that the verdict given at the inquest shows to be a pauper. The statute (section 256) provides: "An insane person shall be held to be a pauper if unable to pay six months' board in advance, or, if married, be unable to pay said board besides providing for others naturally dependent; or, if a minor, the parents of said person are unable to pay board besides sup |