Hanger v. Commonwealth

• Decision Date: 16 January 1908
• Citation: 60 S.E. 67,107 Va. 872
• Parties: HANGER . v. COMMONWEALTH. CRAWFORD SOCIAL CLUB . v. SAME.
• Court: Virginia Supreme Court

60 S.E. 67

107 Va. 872

HANGER .

v.COMMONWEALTH.

CRAWFORD SOCIAL CLUB .

v.SAME.

Supreme Court of Appeals of Virginia.

Jan. 16, 1908.

1. Penalties — Enforcement — Nature of Proceedings.

The forfeiture prescribed for a breach of the Sunday law (Code 1887, § 3799 [Code 1904, p. 2031]) cannot be recovered by a criminal warrant, but must be recovered by a civil warrant.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Penalties, §§ 13-17.]

2. Writ of Error—Questions Reviewable— Want of Jurisdiction of Trial Court.

The question of the jurisdiction of the trial court may be raised for the first time in the appellate court.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1166-1178.]

3. Same—Harmless Error—Instructions.

Where no verdict other than that rendered could have been rendered on the evidence, instructions given or refused will not be considered.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4227, 4230.]

4. Corporations — Purposes of Incorporation.

A charter of incorporation may be granted to an association of persons to conduct any business that an individual may lawfully conduct under the laws of the state, but not to authorize the conduct of a business which an individual may not lawfully conduct.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, § 16.]

5. Clubs—Nature and Purpose of Organization—Incorporation.

An association organized, as shown by its certificate of incorporation, for social fellowship, with the privilege of providing for its members refreshment, etc., is a social club, within Acts 1002-04, p. 461, c. 270, subc. 4 [Code 1904, § 1105d], authorizing the incorporation of societies without capital stock, etc., and is not a business corporation within chapter 1, p. 437, of the act providing for the incorporation of corporations for the transaction of any lawful business.

6. Same — Annulment of Incorporation — Grounds.

A corporation operating a drug store had habitually violated the Sunday law. Its president was notified by the chief of police that the law against selling on Sunday would be enforced, and thereafter the corporation observed the law and made no sales of tobacco, soda water, etc. Subsequently the president and a stockholder of the corporation and a clerk in its employ formed a social club, for the purpose of social fellowship, with the privilege of providing to its members refreshment, etc., including soft drinks. No initiation fee was required to become a member, nor were there any dues. The corporation leased to the club the privilege of running the soda fountain and the use of tobacco, etc., for the members of the club. Thereafter employes of the corporation operated the drug store on Sundays as on other days, but sold soda water, etc., to the members of the club only. Held, that the club was incorporated for the fraudulent purpose of securing the privilege of selling goods on Sunday in violation of the Sunday law, authorizing the annulment of its charter.

7. Same.

Where it is made clearly to appear that the charter of a social club was fraudulently obtained, or is being abused by its use to shield individuals or a corporation from punishment for violating the laws or otherwise, the charter, in a proper proceeding for that purpose, will be adjudged void.

Error to Hustings Court of Portsmouth.

S. T. Hanger was convicted of violating the Sunday law, and he brings error. Quo warranto by the commonwealth against the Crawford Social Club, in which judgment annulling the charter of the club was rendered, and it brings error. Judgment of conviction reversed, and judgment of annulment affirmed.

Thos. H. Willcox and R. H. Bagby, for plaintiff in error.

The Attorney General, for the Commonwealth.

CARDWELL, J. It may be said that these are companion cases. They were argued together here, and will be disposed of in this opinion in the order named.

The plaintiff in error, S. T. Hanger, in the first-named case, complains of a judgment in the lower court, affirming a judgment rendered by the mayor of the city of Portsmouth, whereby he was fined $2 for personal violation of section 3799 of the Code of 1887 [Code 1904, p. 2031], known as the "Sunday law, " and $2 each for two servants employed by him at work on the same day.

Section 3799 of the Code, supra, was construed by this court in the recent case of Wells v. Commonwealth, 57 S. E. 588, where it is held that the forfeiture prescribed for a breach of the statute cannot be recovered by a criminal warrant but must be by civil warrant. We are met therefore at the threshold of this case with the question of jurisdiction.

It is argued for the commonwealth that, as no objection was made in the trial court to the form and nature of the proceedings, plaintiff in error is precluded from making that objection here; but, as was said by Buchanan, J., in South & Western R. Co. v. Commonwealth, 104 Va. 314, 51 S. E. 824, citing a number of authorities: "To hold that the question of the jurisdiction of the trial court could not be made in the appellatecourt for the first time would be in effect to hold that consent could give jurisdiction, and might result in the affirmance of a judgment which the trial court had no authority to enter."

Among the authorities cited is Jones & Ford v. Anderson, 7 Leigh, 308, 314, where it is said: "It must always be ex officio the duty of a court to disclaim a jurisdiction which it is not entitled to exercise. To do otherwise would be to usurp a power not conferred by law."

See, also, Furst Bros. v. Bank, 101 Va. 208, 43 S. E. 360, and Wayt v. Glasgow, 106 Va. 120, 55 S. E. 536, where it is said that the question of jurisdiction is an open question in every case until the case is finally disposed of.

It follows that the judgment in this case must be reversed; and this court will enter such judgment as the hustings court for the city of Portsmouth should have entered, dismissing the prosecution.

The writ of error in the second case is to a judgment of the hustings court for the city of Portsmouth, annulling the charter of the plaintiff in error obtained from the State Corporation Commission, pursuant to its authority to grant charters to organizations known as social clubs.

The proceedings were had upon a writ of quo warranto, issued by the lower court upon a petition filed by the attorney for the commonwealth for the city of Portsmouth, the grounds stated upon which the said charter was asked to be annulled, revoked, and vacated being (1) misuse of the corporate privileges and franchises conferred by the charter; (2) for the exercise of a privilege and franchise not conferred by law; and (3) because the charter of incorporation was obtained for a fraudulent purpose, and for a purpose not authorized by law.

The judgment complained of was rendered upon the verdict of a jury finding the facts to be as charged in the petition for the writ of quo warranto; and plaintiff in error relies upon two assignments of error for a reversal of the judgment: First, misdirection of the jury; and, second, the refusal of the trial court to set aside the jury's verdict as contrary to the law and the evidence.

As we view the case, it is needless to consider the instructions given or refused; since it appears plainly from the evidence that no other verdict could have been rendered thereon than that rendered by the jury. Interstate, etc., Co. v. Clintwood, etc., Co., 105 Va. 574, 54 S. E. 593; Southern Ry. Co. v. Oliver, 102 Va. 710, 47 S. E. 862; Leftwich v. Wells, 101 Va. 255, 43 S. E. 364, 99 Am. St. Rep. 865; Richmond Pass., etc., Co. v. Steger, 101 Va. 319, 43 S. E. 612.

The law authorizing the chartering of social clubs is found in chapter 4 of the "act concerning corporations" (Acts 1902-04, p. 461, c. 270); and, while the act does not define the functions that may be exercised by such corporations, and there is no general law describing the character of the business that may be done, or regulating the conduct of corporations of this nature, it was clearly never intended to confer upon the organization authority to conduct a business which if conducted by an individual would be in violation of law. A charter of incorporation may be granted to an association of persons to conduct any business that an individual may lawfully conduct under the laws of the state (Ward L. Co. v. Henderson-White Mfg. Co. [recently decided by this court] 59 S. E. 476); but never to authorize the conduct of a business which an...