Bibb v. Miller
| Decision Date | 21 September 1875 |
| Citation | 74 Ky. 306 |
| Parties | Bibb, & c. v. Miller, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM OHIO CIRCUIT COURT.
WALKER & HUBBARD, SWEENEY & STUART, For Appellants,
Upon the question of agency:
6 Johns. 39, Green v. Miller.
3 Baxter, 459, Slough v. Law.
5 Wheat. 326, Mechanic's Bank v. Bank of Columbia.
11 Johns. 169, Jackson v. Veeder.
10 Vern. 523, Low v. Perkins.
13 B. Mon. 402, Lynn v. Burgoyne.
Confusion of property:
7 Mass. 127, Bond v. Ward.
8 Pick. 443, Shumway v. Rutter.
19 Ohio 337, Inglebright v. Hammond.
20 Vern. 333, Pratt v. Bryant.
21 Pick. 298, Ryder v. Hathaway.
Legislative powers and lotteries:
Constitution of Kentucky, art. 2, sec. 38.
Session Acts 1873, Shelby College Act.
| Civil Code, section 330. | 11 Mass. 376. |
Session Acts 1871, vol. 2, p. 502, sec. 7.
3 Seld. 228, Gov'rs of Alms Houses v. Am. Art Union.
23 Wend. 418, The People v. Sturtevant.
13 Barb. 577, The People v. Am. Art Union.
12 Abbott, 210, Negley v. Devlin.
44 Miss. 820, Miss. Soc'y of Arts v. Musgrove.
12 Ala. 170, Broadlett v. Tuscaloosa Art, etc.
10 Wheat. 395, Brent, & c. v. Davis.
13 Penn. 328, McKnight v. Biersecker.
MCHENRY & HILL, For Appellees,
(Brief not in record.)
J. H. Miller and others instituted their action in equity against G. M. Bibb and others to recover the possession of a certain paper or coupon representing an interest of one tenth in ticket No. 21,101 in the fourth grand gift concert of the Public Library of Kentucky.
They alleged that they were the joint owners of, and entitled to, the possession of said coupon, and that it entitled them to demand and receive from the Public Library the sum of seven thousand five hundred dollars, which amount was awarded to the holders thereof in the distribution of prizes on the 31st day of March, 1874.
They alleged further, that the defendants held said coupon without right, and they sought and obtained an order enjoining them from collecting and the Library from paying to them any part of the sum due and payable on the coupon in question.
Pending the litigation the Library paid the amount due to a receiver appointed by the court. Upon hearing, the complainants were adjudged to be the owners of the coupon, and, therefore, of the money in the hands of the court, and from that judgment this appeal is prosecuted.
Preliminary to the questions of fact we are called upon to determine whether or not the right which appellees assert arises out of a transaction forbidden by the penal statutes of this commonwealth.
It is insisted that the library company had no legal authority to sell such tickets and to distribute such prizes as the ticket and prize claimed by appellees.
The 7th section of the act incorporating the Public Library (page 499, vol. 2, Session Acts, 1871) authorizes it to obtain books, issue stock, accept sureties and loans, and " also to give, not to exceed five in number, public literary, musical, or dramatic entertainments, at which they may distribute by lot to patrons of the entertainment a portion of the proceeds arising from the sale of tickets of admission."
It is claimed that the sale of the tickets and the distribution of prizes culminating at the concert of March 31st, 1874, were unauthorized by this grant of power; and it is argued that the library company, instead of selling tickets of admission to a musical concert and distributing portions of the proceeds arising therefrom to the patrons, as a matter of fact set up and caused to be drawn a regular lottery. We are therefore asked to declare that the drawing was unauthorized and illegal, and to adjudge that the chancellor should have refused to lend his aid to the protection or enforcement of any right depending upon or growing out of it.
It is to be observed that this is not a controversy between the appellees and the library, and that the chancellor did not find it necessary to enforce the agreement entered into by the library and the ticket-holder. The corporation recognized its obligation to pay, and voluntarily paid into court the amount claimed to be due on the coupon. The contest is between parties claiming under the same title, and who, if the source of title be tainted with illegality, are necessarily in pari delicto. The question as to the legality of the sale of tickets and the distribution of prizes arises collaterally and derives its importance solely from the fact that the plaintiffs in the action are compelled to rely on such sale and distribution in order to make out their title to the fund in controversy.
It is the benefit of the public and not the advantage of the defendant to an action that is to be considered in cases in which one or more of several parties in pari delicto rely for defense upon the illegality of the transaction out of which the claim arises, and in such cases the presumption is in favor of the transaction; and if it be susceptible of two meanings, the one legal and the other not, that...
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