dissenting.
Respectfully, I dissent. Considering my oath to support our Kentucky Constitution (and, of course, its Amendments), to dissent in present circumstances is an onerous task. I do so only from a strong sense of conviction that there are compelling reasons; reasons that must be stated.
The Majority Opinion has lost sight of the judicial function. The first paragraph of the Majority Opinion trumpets that through the enactment of the Broad Form Deed Amendment “the people have declared that henceforth” Broad Form Deeds do not convey the right to strip mine without the surface owner’s consent, and have “swept away” “numerous court decisions” to the contrary. The Majority Opinion fails to appreciate that, while majoritarian rule applies to state legislative enactments and state constitutional amendments, court cases are different. *290They must be decided according to law, not by the will of the majority. The majority cannot dictate contract rights previously transferred by a deed because the U.S. Constitution, Art. 1, Sec. 10, guarantees the individual citizen’s vested contract rights: “No state shall ... pass any ... Law impairing the Obligation of Contracts.”
The Majority Opinion treats two separate issues as one.
The first issue is the rights conveyed by a Broad Form Deed, which by its terms conveyed the mineral estate and authorized the grantee to use the surface in any manner which may be deemed necessary or convenient for the exercise and enjoyment of the property rights conveyed. Do such deeds convey to the grantee the right to engage in surface mining without first obtaining permission from the persons presently holding title to the surface estate regardless of the mining methods extant at the time of the deed? We have so held in a long and unbroken line of cases, both old and recent.
The second and separate issue only arises if we continue to recognize that a Broad Form Deed conveys such right. If we recognize the rights conveyed by a Broad Form Deed include the right to engage in surface mining to remove the minerals without first obtaining further consent from the surface owner, does the recently enacted amendment to the Kentucky Constitution, now codified as Sec. 19(2) of the Constitution, by denying mineral owners such right, violate the Federal Constitution?
Why does the Majority Opinion go to great lengths to overrule our previous decisions on the appropriate judicial construction of a Broad Form Deed when such is not raised by the appellants? And why does the Majority Opinion bother to take up the Federal “Contract Clause” question if a Broad Form Deed does not include the right to surface mine in the first place? Obviously the Federal “Contract Clause” does not protect nonexistent contract rights, so why pontificate on a subject that seemingly has become a moot question? If the rights conveyed to mineral owners by Broad Form Deeds, properly construed, do not include the right to engage in surface mining without further permission from the surface owner, quite obviously the new constitutional amendment is surplusage, and there is no need to explain why it is not in conflict with the Federal “Contract Clause.” I suggest the reason the new judicial construction is necessary is because without it the “Contract Clause” violation is abundantly clear.
I turn first to the issue of judicial construction. Our opinion overrules Buchanan v. Watson, Ky., 290 S.W.2d 40 (1956), generally recognized as the principal authority for construing Broad Form Deeds as including the right to surface mine. But it also overrules our recent decision in Akers v. Baldwin, Ky., 736 S.W.2d 294 (1987), and by implication a long line of other cases to the same effect, including (inter alia): Rudd v. Hayden, 265 Ky. 495, 97 S.W.2d 35 (1930), Treadway v. Wilson, 301 Ky. 702, 192 S.W.2d 949 (1946), Bevander Coal Co. v. Matney, Ky., 320 S.W.2d 301 (1959), Blue Diamond Coal Co. v. Neace, Ky., 337 S.W.2d 725 (1960), Kodak Coal Co. v. Smith, Ky., 338 S.W.2d 699 (1960), Blue Diamond Coal Co. v. Campbell, Ky., 371 S.W.2d 483 (1963), and Martin v. Kentucky Oak Mining Co., Ky., 429 S.W.2d 395 (1968).
One reading the Majority Opinion might infer that Akers v. Baldwin overruled Buchanan. But Akers v. Baldwin only modified Buchanan by requiring the payment of damages to the surface owner in some instances; it followed Buchanan in construing the Broad Form Deed as conveying the right to engage in surface mining without the surface owner’s consent, and more importantly, it held unconstitutional the 1984 statute declaring otherwise, KRS 381.940, the same statute then proposed and adopted in 1988 as a constitutional amendment.
The decision on these issues was not a plurality decision, as the present Majority Opinion so demeans it. It was a Majority Opinion: Justice Vance’s Concurring Opinion did not differ from Chief Justice Stephens’ Majority Opinion in any respect material to the issues in the present ease. Of course, a majority of this Court has the raw power to overrule precedent, both recent and longstanding, construing the rights conveyed by *291the forms used in ancient documents. But should we do so when the parties have not raised the issue and presented compelling reasons to believe our previous decisions erred in construing the documents? Should we do so because of popular clamor for a different result? No, not even when public opinion is expressed through a constitutional amendment. Of course the constitutional amendment overrides judicial precedent to the contrary, but that does not mean it was wrong. It is one thing to say the constitutional amendment is now the law, and an entirely different thing to say passing the constitutional amendment proves previous judicial decisions were erroneous. Contrary to the lead paragraph in the Majority Opinion, the “people” have not “swept away .... numerous court decisions addressing the proper construction of the so-called ‘broad form’ deeds.” It is our Court which now “sweep[s] away” an unbroken line of precedents, and public opinion can provide neither reason nor excuse. It may well be that by constitutional amendment the people of Kentucky exercise higher authority than this Court, but as a legal proposition the “proper construction of so-called ‘broad form’ deeds” stands on its own merit. While our oath constrains us to “support” the “constitution of this Commonwealth” it does not constrain us to abdicate the judicial function to popular will: to declare that the previous decisions of this Court were erroneous because a constitutional majority prefers a different result. The constitutional amendment does not prove the previous decisions of this Court were wrong any more than it proves they were right. If the Majority had discovered some new truth so compelling that our precedents should be overruled, let it so state. But judicial truth does not spring from the constitutional amendment any more than it sprung from the identical statute enacted in 1984 intended to override our previous decisions, which we struck down as unconstitutional in Akers v. Baldwin, supra.
The issues stated in the Appellants’ Brief are: (1) “the mineral deed in this case is not a broad form deed”; (2) “the respondents did not produce sufficient evidence to prove their title”; and (3) as a fallback position, not that previous cases were wrong, but that the 1988 Kentucky constitutional amendment is higher authority. We have disagreed with the Appellants on points 1 and 2, as did the Court of Appeals. Thus, from the standpoint of the parties, the sole issue presently before us is whether the constitutional amendment, per se, controls this case. Of course it does, but only if still higher authority found in the Federal Constitution is not violated by the state constitutional amendment. Of course this Court must apply the state constitutional amendment regardless of whether previous decisions were right, but not if we are constrained to do otherwise by our oath to “support the Constitution of the United States.”
Our judicial analysis of the present case should start with the fact that the Kentucky constitutional amendment changes the bundle of rights previously held by the parties to Broad Form Deeds and by their successors in title, and proceed from there to the question whether this change in the bundle of rights mandated by the Kentucky constitutional amendment offends the limitations on state power established by the federal constitution. We have not chosen this approach. The Majority seems to be aware, at least subconsciously, that unless we first reinterpret the rights held by the parties to the contract, quite obviously the state action is in derogation of the Federal Constitution guarantee.
The Majority Opinion quotes hornbook law stating “[t]here is no vested right in the decisions of a court.... although the effect of such change is to impair the validity of a contract made in reliance on prior decisions.” 16A Am.Jur.2d, Constitutional Law, See. 703 (1979). The operating premise is that, theoretically, courts do not make law, they simply interpret and apply it. If this case is merely a matter of stating that previous decisions construing other similar contracts were in error, and not an exercise of state legislative authority, the contract clause is not implicated, not even if what we do overrules the portion of Akers v. Baldwin, supra at 307, “limiting] the application of this decision [i.e., payment of damages] by excluding from its effect all conveyances by broad form deed ... between the effective date of Buchanan, *292May 4, 1956, and the initial rendition date of this decision, July 2, 1987.”
But, while it is hornbook law that cases correcting judicial precedents do not implicate the Federal “Contract Clause,” it is also hornbook law that “state constitutions and constitutional amendments” as well as state statutes fall squarely within its purview. 16A Am.Jur.2d, supra, Sec. 701 at p. 710. If the new state constitutional amendment conflicts with the Federal “Contract Clause” it is as much a Federal constitution violation as the previous 198k statutory enactment, which we addressed in Akers v. Baldwin, supra, 736 S.W.2d at 310, where we stated:
“A statute that functions retroactively to determine the meaning of a preexisting deed or lease is constitutionally impermissible because this impairs the obligation of a contract.... The General Assembly can specify prospectively what rights are granted or denied by use of certain language in contracts in the future, but they cannot affect vested property rights.”1
The discussion in Akers v. Baldwin on this point was brief, but it was to the point. The Majority Opinion here fails to point out why it was in error. The Majority Opinion here has confused the portion of the Opinion in Akers which gave only prospective effect to the change in construction with regard to the payment of damages, and the portion of the Opinion addressing the constitutional issue raised by the statute. Our decision to apply the change in construction regarding the payment of damages only prospectively was a fairness issue, not a constitutional issue. It was mandated in the portion of the opinion before we reached the portion devoted to “The Constitutional Challenge.” See 736 S.W.2d at 307.
When we reached the portion of the opinion addressing whether the 1984 statute was a constitutional impairment of contract, Ak-ers cited and followed Dept. for Nat. R. & E. Pro. v. No. 8, Ltd., Ky., 528 S.W.2d 684 (1975), addressing an earlier legislative approach to the same subject matter. The statute in No. ⅞ Ltd. was not materially different from the statute addressed in Akers v. Baldwin or the constitutional amendment with which we are in the present case. In No. 8, Ltd., the statute in question required that a mineral owner’s application for a strip mining permit be accompanied by a statement of consent signed by the surface owner. Thus, a mineral owner, even though he had the right to strip mine under his Broad Form Deed, would have been unable to obtain a permit without the consent of the surface owner. Then, as now, the principal thrust of the legislation was to give the surface owner veto power over strip mining. In No. 8, Ltd. we struck down the statute as unconstitutional stating “the primary purpose and effect [of the statute] is to change the relative legal rights and economic bargaining positions of many private parties under their contracts rather than achieve any public purpose. It is, therefore, axiomatic that [this statute] is unconstitutional.” Id. at 687.
Dept. for Natural Resources v. No. 8, Ltd. represents the work of this Court at its best. Carefully crafted by Justice Robert Lukow-sky, it cuts like a beacon through the fog of public purpose and regulatory power arguments to the essence of the “Contract Clause” issue:
“The limits are that the [state] police power may be used so as to invade private rights only if the legislation bears a real and substantial relation to the public health, safety, morality or some other phase of the general welfare. [Citations omitted.]
This dissection exposes the ‘gut issue’ here. May [this statute] be justified as a legitimate exercise of the police power?
In order to be justified it must stand as an environmental conservation measure. ...
But that is not this case. Here the legislation is ineffective as an environmental conservation measure. It does no more than delegate to an individual, a privy of a party to the contract which severed the mineral, a veto over the use of the land by the other party to the contract. It puts the surface owner in a position to be paid again for what he or his predecessor in *293title has already received compensation.” Id. at 686.
It seriously depletes our limited supply of Kentucky jurisprudential resources to replace Justice Lukowsky’s constitutional insights in No. 8, Ltd. with the vagaries of the present opinion.
I will not burden the reader by attempting here to expand on Justice Lukowsky’s analysis of the correct application of Federal “Contract Clause” jurisprudence in the present circumstances. Further understanding of the problem and the U.S. Supreme Court’s approach to it may be gleaned from contrasting two cases: Home Building and Loan Ass’n. v. Blaisdell, 290 U.S. 398, 64 S.Ct. 231, 78 L.Ed. 413 (1934) and Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727, reh. den. 439 U.S. 886, 99 S.Ct. 233, 58 L.Ed.2d 201 (1978).
In the Blaisdell case the court upheld a Minnesota statute providing a procedure by which the period of redemption for mortgages could be extended, noting five circumstances that it found significant. None of these circumstances exists here to any significant degree as necessary to justify the present legislation.
In Spannaus, the court struck down a Minnesota statute which assessed a “pension funding charge” against certain employers, stating the law could “hardly be characterized, like the law at issue in the Blaisdell case, as one enacted to protect a broad societal interest rather than a narrow class.” Id. at 249, 98 S.Ct. at 2724. If anything, Span-naus presented a more forceful circumstance for avoiding the “Contract Clause” than any that exist in the present case. In an extensive, scholarly article by Robert M. Pfeiffer, Kentucky’s New Broad Form Deed Law — Is It Constitutional?, Journal of Mineral Law and Policy, Vol. 1 (1985), University of Kentucky College of Law, p. 85, the author summarized the Federal “Contract Clause” issue raised by the 1984 statute (KRS 381.940). This analysis applies here because the new Kentucky constitutional amendment is substantially identical:
“Given the history surrounding H.B. 32, it is reasonable to infer that the true purpose of the Act is simply to adjust the respective rights between mineral owners and surface owners in order to reach what the legislature considered to be a more equitable result. Accordingly, it may well be said that the Act is, in fact, addressed to ‘the mere advantage of particular individuals,’ rather than ‘the protection of a basic interest to society.’ ” [This quotation from Pfeiffer was utilizing the U.S. Supreme Court’s “Contract Clause” analysis in Blaisdell as a frame of reference.]
The various purposes for the constitutional amendment, as stated in the proposing legislation, S.B. 145, Ch. 117, 1988, are almost identical to the purposes stated in the bill enacting KRS 381.940 four years earlier. These purposes relate primarily (if not entirely) to protecting private interests, those of the surface owners. The Preamble states seven purposes: six of the seven cite narrow objectives related to the area of mineral titles and land transfers and obviously intend to correct perceived hardship and injustice to the surface owners caused by our previous judicial decisions, and only one of which bears even the pretext of regulation in the public interest. The one exception states that we must “promote the conservation and the full and efficient use of all natural resources of the state, including the land, the making of improvements to the land, the growth of agriculture, the development of new industry and the general economic well-being of the state and its people.” There is no inkling as to how this law will effect this purpose in any way. The law does not regulate surface mining except to say mineral owners must purchase permission to surface mine from the surface owners before undertaking mining operations. Its effect as a conservation measure is speculative at best, either minimal or nonexistent depending on one’s point of view. To withstand constitutional review the primary purpose and effect of the legislation must promote the general welfare as contrasted with a potentially remote or incidental effect.
Assuming for argument’s sake this Preamble somehow suggests the kind of purpose that would satisfy the Blaisdell model, the amendment itself fails the test of serving this purpose. The new Kentucky constitutional *294amendment, like the statutes preceding it, falls far short of a measure to promote the general welfare sufficient to justify impairing the individual rights protected against state action by the Federal “Contract Clause.” As held in United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977), merely stating “public purposes” is not enough; the purposes must be legitimate, and the legislation must be a reasonable and appropriate means of achieving that purpose. In the classical treatise on “Popular Government” written by the 19th century legal scholar, Sir Henry Maine, he characterized the contract clause in the U.S. Constitution as “the bulwark of American individualism against democratic impatience and socialistic fantasy.” Popular Government 247-48 (1885). The “Contract Clause” is part of the package of individual rights which our constitutional forbears considered sufficiently important to protect against abrogation by state action, against-the tyranny of the majority. Progressive societies, wrote Sir Henry Maine in his pathbreaking book, “Ancient Law” (1861), had evolved from status to contract.
The framers of the present Kentucky constitutional amendment, if not the members of this Court, recognized the obvious connection, and the conflict, between the proposed amendment and the contract clause in our Kentucky constitution: to avoid it they located the present amendment as subsection 2 of Sec. 19 of our Constitution, which is our own “Contract Clause,” and which has stood since 1792 as protection against “any law impairing the obligation of contracts.” Before enactment of this amendment, Sec. 19 stated:
“No ex post facto law, nor any law impairing the obligation of contracts, shall be enacted.”
Sec. 19 now reads that no law impairing the obligation of contract shall be enacted with the exception stated in the Broad Form Deed Amendment. This step suffices to protect against our state “Contract Clause,” but it only serves to highlight how the amendment violates the Federal “Contract Clause” which reads the same as our Kentucky Constitution once read.
There is a corollary to this problem that I address briefly before concluding this dissent. The Fifth Amendment to the U.S. Constitution, which is applicable to the states through the Fourteenth Amendment, provides “nor shall private property be taken for public use, without just compensation.”
The United States Supreme Court has recognized a symbiotic relationship exists between the so-called Fifth Amendment “Taking Clause” and the “Contract Clause” previously discussed. Statutes enacted incidentally impairing contract rights sometimes escape the Contract Clause because the legislation is tested under the “regulatory” law analysis applied to the “Taking Clause” rather than “Contract Clause” analysis. The leading case on the subject is Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), which involved a constitutional attack on a Pennsylvania statute that proscribed the mining of anthracite coal in any manner that might cause a subsidence of certain types of surface structures, including residences. This ease was decided on the “Taking Clause” rather than the Contract Clause, but the statute was held unconstitutional because it failed to provide just compensation for the rights taken from the coal owners.
Highly pertinent to the present case, in reaching its decision the U.S. Supreme Court reasoned that “[f]or practical purposes, the right to coal consists of the right to mine it. [Citations omitted.] What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.” 260 U.S. at 414, 43 S.Ct. at 159.
In the present case, taking from the mineral owners the right to mine the surface where it is otherwise “commercially impracticable” to remove the coal, cannot be justified under federal “Taking Clause” jurisprudence even were we to assume that such taking could be justified to promote the general welfare. This is because the coal company has not been compensated for the “taking” of its property (its mining rights). See Pennsylvania Coal Co. v. Mahon, supra. The *295only way to circumvent the obvious dilemma is to declare, as the Majority has done, that Broad Form Deeds give no surface mining rights to the mineral owners in the first place. To do so it is necessary to overrule precedent, both long-standing and recent, in a case where we have been presented no new or compelling reasons aside from public clamor against our previous decisions. Our Court bowed to the will of the majority at the sacrifice of individual rights protected in the United States Constitution which we are obligated to defend.
For the reasons stated I would hold the state constitutional amendment is in conflict with the Federal Constitution.
STEPHENS, C.J. and REYNOLDS, J., join in this dissent.
. And the same rule of law applies to a state constitutional amendment.