dissenting.
Movants’ brief charges that “On June 10, 1976, Donna Cooper filed a complaint with Appellant Kentucky Commission on Human Rights, alleging that the Appellee had terminated her on account of her pregnancy, and therefore her sex, in violation of KRS 344.040.”
KRS 344.230(2) provides:
“If the commission determines that the respondent has engaged in an unlawful practice, the commission shall state its findings of fact and conclusions of law and shall issue an order requiring the respondent to cease and desist from the unlawful practice and to take such affirmative action as in the judgment of the commission will carry out the purposes of this chapter....”
The Commission found that “As a direct result of being terminated, and of Respondent’s statements to her and about her, Complainant was humiliated and embarrassed.” Humiliation and embarrassment are simple phases of mental anguish. In other words, what movant Donna Cooper is saying is that she was humiliated and embarrassed by her awareness that respondent called her pregnancy to the attention of other people. Pregnancy is a condition exclusively feminine and it cannot for long be kept a secret from the knowledge of others.
If there is any substantial evidence to support the findings of the Commission, they cannot be found to be arbitrary and will be sustained. Taylor v. Coblin, Ky., 461 S.W.2d 78 (1970). However, when we measure the charge made by movant Cooper against respondent that she was fired because she was pregnant with the findings of the Commission, we are confronted with a failure of the proof to show or intimate humiliation and embarrassment. Although movant Cooper was angered and hurt when her employment was terminated by reason of her pregnancy, there is no showing of humiliation and embarrassment. There is a great deal of difference between being humiliated and embarrassed and being angered and hurt. Neither includes the other.
The evidence is insufficient to support the findings of the Commission; therefore, they are clearly erroneous.
KRS 344.230(3)(h) is an unconstitutional usurpation of judicial power.
In Kentucky we have a trifurcated form of government, legislative, executive, and judicial (Ky.Const. § 27), and except in certain instances not here applicable no one of these departments may exercise any power properly belonging to either of the other departments (Ky.Const. § 28). However natural and commonplace to many are these constitutional mandates and however much we give them lip service, yet it is not so. Of more recent years there has developed in our government a fourth branch known as administrative proceedings, which is a combination of legislative, executive and judicial. It is most difficult to ascertain where the power of one department stops and the delegated power of the administrative branch begins. The Civil Rights Act of Kentucky (KRS Ch. 344) has a wholesome *858and salutary purpose. However, and irrespective of the high purpose, there are certain limits to which even the highest of design must yield.
KRS 344.230(2) provides, as we have heretofore noted, that in the event the Commission determines that the respondent has engaged in an unlawful practice, it may take affirmative action. This affirmative action which the Commission is delegated to take, among other things, may require the payment of damages for injury caused by an unlawful practice resulting in humiliation and embarrassment.
Section 7 of the Kentucky Constitution provides that “The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.” Amendment Seven to the United States Constitution provides that “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury, shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of common law.” The right to trial by jury was expanded by a provision in our Rules of Civil Procedure. CR 38.01 states, “The right of trial by jury as declared by the Constitution of Kentucky or as given by a statute of Kentucky shall be preserved to the parties inviolate.”
This court, after quoting Section 7 of the Kentucky Constitution and in speaking to it, stated in Branham v. Commonwealth, 209 Ky. 734, 273 S.W. 489 (1925), as follows:
“The ancient mode of trial by jury, the right to which is guaranteed one charged with crime, by the section, supra, is a trial by jury according to the forms and requirements of the common law, the essential features of which were and are that he be put upon his trial in a court of justice, presided over by a judge, and that he be tried by a jury of the vicinage composed of 12 men, all of whom must agree upon a verdict.”
Since the constitutional challenge has been made under Section 7 of the Kentucky Constitution and also under the Seventh Amendment to the United States Constitution, we need to consider the relation of these provisions to each other. The Seventh Amendment to the United States Constitution was adopted in 1791, while Section 7 of the Kentucky Constitution was adopted in 1891. The only restriction upon the people of Kentucky in making the 1891 Constitution was that it should be republic in form and not in conflict with the Constitution of the United States. Stone v. Pryor, 103 Ky. 645, 20 K.L.R. 312, 45 S.W. 1053, 1136 (1898). Thus, 1791 is the criterion year here applicable to the issue.
In the early case of United States v. Mesna, D.Minn., 11 F.R.D. 86 (1950), it was said that a defendant is entitled to a jury trial only upon those common law matters as to which jury trial existed in 1791. The question, however, of a right to jury trial must be decided from the allegations in the pleadings. All American Airways v. Village of Cedarhurst, E.D.N.Y., 15 F.R.D. 490 (1954). In the absence of pleadings, we must look to the issue made by the charges, the findings of fact, and the conclusions of law of the Commission, its order and award of damages. In the present case the issue is: did respondent discharge Donna Cooper by reason of her sex? If so, was she humiliated and embarrassed thereby to her damage? This latter issue is purely and simply one of law as contrasted to an issue of equity.
We must consider the present issue bearing in mind that our state constitution is a limitation upon the exercise of power rather than a grant of any specific power to the legislature. Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974).
The delegation of power to the Commission to find facts is not under attack. It is the attempted delegation of power to the Commission to award damages for humiliation and embarrassment that cries out for redress. It is important to this case that we note that it grows out of a controversy between an administrative body acting for and on behalf of a private person, Donna Cooper, as complainant and a private per*859son, Alisdair Fraser, as respondent. In truth and in fact, it actually grows out of a controversy between two individuals. It is the nature of the issue that is the criterion for determining whether it is a common law tort triable by a jury. That this particular statutory proceeding did not exist prior to 1791 is of no concern. The legal nature of the issue is the proper concern. Humiliation and embarrassment are the same as emotional distress.
This court has recognized that humiliation and embarrassment are torts for which redress lies. In Perkins v. Ogilvie, 148 Ky. 309, 146 S.W. 735, 737 (1912), we said, “. .. Humiliation and mortification are simply phases of mental anguish; and under the allegation of distress or mental anguish any phase of mental anguish could be proven, and a recovery had therefor.” We have repeatedly held that where a passenger is unlawfully ejected from a train he may recover for humiliation and mortification, and that these are elements of compensatory damages. Lexington & E. Ry. Co. v. Lyons, 104 Ky. 23, 46 S.W. 209, 20 Ky.Law Rep. 516 (1898); Spink v. L. & N.R.R. Co., 52 S.W. 1067, 21 Ky.Law Rep. 778 (1899). In Perkins we further wrote: “... It is also the rule that, where a landlord unlawfully and forcibly enters the premises and evicts the tenant and his family, he is liable in damages for the tenant’s sense of shame and humiliation in having his wife and family turned out into the streets. Moyer v. Gordon, 113 Ind. 282,14 N.E. 476; Richardson v. O’Brien, 44 Ill.App. 243; Rauma v. Bailey, 80 Minn. 336, 83 N.W. 191; Fillebrown v. Hoar, 124 Mass. 580; Sutherland on Damages, Vol. 3, § 866.”
In discussing liability in tort, it is written in 74 Am.Jur.2d, Torts, § 17:
“The violation of a statutory provision containing a mandate to do an act for the benefit of another, or the prohibition of the doing of an act which may be to his injury, is generally regarded as giving rise to a liability and creating a private right of action, whenever the other elements essential to a recovery are present. The omission of a statutory duty and common negligence may together give rise to what is but a single cause of action in tort.”
The history of the emergence of the common law tort is dealt with in 86 C.J.S., Torts, § 5, as follows:
“Acts now called torts have been committed from the very beginning of society, but a development of anything like a clearly formulated conception of a tort is comparatively recent. While from the earliest times certain invasions of personal or property rights, now comprehended under the head of torts, were recognized as wrongful and as constituting a basis for civil liability, in some sort, both in the English law and in other legal systems still more ancient the concepts of tort and crime were at first confusedly intermingled, and no clear distinction was made between private and public law. In the next stage of development of the common law the notion of tort, in a distinct and integral sense, still remained unformulated and the history of tort is to be sought in the history of the various delic-tual actions which, in conjunction, made up the whole sum of then recognized civil liability for wrongs. By 1720, however, an attempt was made to consider these several specific wrongs in a work consolidating them under the general heading of torts, although the law on the subject was as yet in no respect systematized and neither bench nor bar had as yet any notion of a general law of torts; and Blackstone employs that term with respect to them. Throughout our legal history, torts of a specific character have been increasing steadily in number.”
Movants, in arguing that neither the Seventh Amendment to the United States Constitution nor Section 7 of the Kentucky Constitution are violated, refer this court to three cases which were decided by the Supreme Court of the United States and one case from this court. Movants’ reliance is ill put. The most recent of the United States Supreme Court cases so cited is Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Commission, 430 U.S. *860442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). It not only does not support movants’ position but actually speaks against it. We find no constitutional inhibition against the fact-finding power of the Commission. Atlas Roofing Co. is an action by the government against an individual, while the subject action was initiated by and prosecuted in the name of Donna Cooper against another individual for damages growing out of alleged humiliation and embarrassment through the medium of an administrative body.
In speaking to the right to a trial by jury, the Supreme Court of the United States, in Atlas Roofing Co., wrote:
“... At least in cases in which ‘public rights’ are being litigated — e.g., cases in which the Government sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact — the Seventh Amendment does not prohibit Congress from assigning the factfinding function and initial adjudication to an administrative forum with which the jury would be incompatible.7”
By way of explanation, the court, in Note 7, said:
“These cases do not involve purely ‘private rights.’ In cases which do involve only ‘private rights,’ this Court has accepted factfinding by an administrative agency, without intervention by a jury, only as an adjunct to an Art. Ill court, analogizing the agency to a jury or a special master and permitting it in admiralty cases to perform the function of the special master. Crowell v. Benson, 285 U.S. 22, 51-65 [52 S.Ct. 285, 292-98, 76 L.Ed. 598] (1982). The Court there said: ‘On the common law side of the federal courts, the aid of juries is not only deemed appropriate but is required by the Constitution itself.’ Id., at 51 [52 S.Ct. at 292].”
In emphasizing its position as to differentiating between private and public rights, the United States Supreme Court further wrote:
“... Our prior cases support administrative factfinding in only those situations involving ‘public rights,’ e.g., where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights. Wholly private tort, contract, and property cases, as well as a vast range of other cases, are not at all implicated.” (Emphasis added.)
The Kentucky case cited by movants is Stearns Coal and Lumber Co. v. Commonwealth, 167 Ky. 51, 179 S.W. 1080 (1915). This was an action to cause property to be assessed for the purpose of taxation. It arose out of a factfinding background in a controversy between the government and an individual. It in no way involved a dispute between individuals.
We are faced with the proposition that in the subject action Donna Cooper seeks to recover damages as the result of humiliation and embarrassment which are common law torts. The government of Kentucky was selected by Donna Cooper as the instrument and facility in which she sought to enforce her right, in view of which I have no hesitancy in finding that so much of KRS 344.230(3)(h) conflicts with both the Seventh Amendment of the United States Constitution and Section 7 of the Constitution of this Commonwealth.
I would affirm the decision of the Court of Appeals affirming the judgment of the trial court.