Schubach v. McDonald

• Decision Date: 23 December 1903
• Citation: 179 Mo. 163,78 S.W. 1020
• Court: Missouri Supreme Court
• Parties: SCHUBACH v. McDONALD, Judge, et al. HIRT v. KINEALY, Judge, et al. LEONARD v. FISHER, Judge, et al. SCHUBACH v. HOUGH, Judge, et al. STEINER v. WOOD, Judge, et al. WASSERMAN & CO. et al. v. HOUGH, Judge, et al.

78 S.W. 1020

179 Mo. 163

SCHUBACH v. McDONALD, Judge, et al.

HIRT v. KINEALY, Judge, et al.

LEONARD v. FISHER, Judge, et al.

SCHUBACH v. HOUGH, Judge, et al.

STEINER v. WOOD, Judge, et al.

WASSERMAN & CO. et al. v. HOUGH, Judge, et al.

Supreme Court of Missouri.

December 23, 1903.

CARRIERS — LIMITED TICKETS — TRANSFERABILITY —SALE BY UNAUTHORIZED PERSONS —TICKET BROKERS—INJUNCTION.

1. Where a court has jurisdiction of the subject-matter, it has power to decide whether a petition states a cause of action, and failure to state a cause of action, or the defective statement of a good cause of action, does not affect the jurisdiction.

2. A petition by a railroad against a ticket broker alleged that on account of the World's Fair nontransferable excursion tickets would be issued, based on reduced rates, which, by their terms, would be good only in the hands of the original purchaser, and that it would be impossible or unbearably inconvenient for the original purchaser to be identified in St. Louis, and have the return ticket stamped, or for the train conductors to determine whether the person attempting to ride was the original purchaser; that it would be a fraud on the railroads for any one except the original purchaser to ride on such a ticket, and a fraud for the original purchaser to sell the return tickets to brokers, and for the brokers to sell the tickets to third parties; that the railroad could not ascertain that the frauds were to be committed until the trains had left St. Louis and the tickets presented; that the ticket brokers were insolvent, and that the discovery of the frauds would involve a multiplicity of suits—the prayer was for an injunction to restrain defendants from buying, selling, or dealing in tickets issued by plaintiff which by their terms were nontransferable, Held that, if the bill was insufficient to invoke the jurisdiction of the court because failing to set out a concrete case and live subject-matter, it was made good by the broker's return to the rule to show cause, which alleged that the broker had a number of such tickets, which he had purchased in good faith, under the belief that they were transferable, and would be honored, by whomsoever presented; and that an injunction would render such tickets valueless, and destroy the broker's business; and therefore a writ of prohibition to restrain the issuance of the injunction would not lie.

3. It is competent for a railroad to issue special tickets, based on reduced rates, and to make them nontransferable, and valid only in the hands of the original purchaser; and that such tickets may be limited or unlimited as to time or occasion, and the original purchaser thereof cannot assign or transfer them, or any rights whatever thereunder, to any third person.

4. If any person buys a special nontransferable ticket, and sells it to a third person, to be used by him, the railroad can invoke the aid of equity to cancel the contract because of the fraud thus perpetrated; or, if the ticket is used by another, it can sue for damages for the breach of the contract.

5. Under Rev. St. 1899, § 3649, providing that injunction may issue to prevent the doing of any legal wrong whatever, where, in the opinion of the court, an adequate remedy cannot be afforded by an action for damages, injunction may issue in cases involving a threatened fraud where defendant is insolvent, and the threatened injury would be irreparable, or the redress of the injury would result in a multiplicity of suits.

6. There is an existent controversy concerning a legal subject-matter between live parties presented for adjudication to the court and within its jurisdiction where a petition for injunction, together with the return of the rule to show cause, show that the defendant ticket brokers have in their possession, and assert a property right to, nontransferable tickets issued by plaintiff railroad, and sold to defendant brokers by the original purchaser, and which the defendant brokers threaten to sell to others.

7. Ticket brokers who assert a right to buy and sell and deal in nontransferable railroad tickets notwithstanding their terms, and notwithstanding the fact that the original purchaser could confer no rights upon any one thereunder, thereby threaten to invade an existent property right of railroads, which, owing to the insolvency of the brokers and the nature of the business, will work irreparable injury, and which entitles the railroads to injunction restraining them from so doing.

8. The court, by granting an injunction restraining ticket brokers from buying and selling nontransferable railroad tickets, does not infringe on the powers of the Legislature.

Valliant and Gantt, JJ., dissenting.

In Banc. Separate applications for writs of prohibition by Herman Schubach, George L. Hirt, Charles J. Leonard, Max Schubach, Simon Steiner, and Wasserman & Co. and others against Jesse A. McDonald and others judges of the circuit court of the city of St. Louis, and the Chicago & Alton Railway Company and others. On rule to show cause. Rule discharged.

Judson & Green and Henry W. Bond, for plaintiffs. Johnson & Richards, Chas. C. Allen, Geo. P. B. Jackson, and E. S. Robert, for defendants.

MARSHALL, J.

These are original proceedings against the defendant judges of the circuit court of the city of St. Louis to prohibit them from further entertaining jurisdiction in certain injunction suits, pending before them in said court, wherein the railroads that are joined as defendants are the plaintiffs and the plaintiffs herein are the defendants. A preliminary rule was issued by one of the judges of this court, the defendants made return thereto, and the plaintiffs moved for judgment upon the pleadings.

The controversy is this: The defendant railroads have systems extending over a large portion of the United States, and have termini in St. Louis. The plaintiffs herein are ticket brokers engaged in business in St. Louis. The railroads, each for themselves, instituted about 50 suits in the circuit court of St. Louis asking injunctions against the plaintiffs herein and other ticket brokers in that city. The petitions are practically alike. The substance of the averments of the petition is fairly stated by one of the counsel for the defendants to be as follows: "That in the year 1904 the Louisiana Purchase Exposition Company will hold a World's Fair at St. Louis, to which all of the nations of the world have been invited, to which 23,000 citizens have subscribed, and the federal government contributed $5,000,000, the city of St. Louis $5,000,000, the subscribers $5,000,000, and the state of Missouri $1,000,000 for a state exhibit. That various meetings and ceremonies will take place before and during the fair. That to enable the people to attend the fair and such meetings and ceremonies excursion tickets will be issued from time to time. That they will attend in such large numbers that it is impracticable to secure their signatures to the return parts of the tickets. That for the same reason identification is impracticable. That, in addition to these World's Fair tickets, said railroad, from time to time, issues nontransferable `excursion' tickets, `mileage' tickets, and `commutation' tickets below the regular one-fare rate for various meetings, assemblages, and purposes. That such tickets are by their express terms, set forth therein, good for the transportation of the original purchaser alone, and void in the hands of others. That by virtue of the terms of said tickets, if presented by one other than the original purchaser, the conductor must lift the same. That the sale of such nontransferable tickets, where they are interstate, is forbidden by the interstate commerce law, and where within the state is forbidden by the laws of the state of Missouri, because the purchaser would thereby get a lower rate than the general public. That the sale of the same is not only void for that reason, but because it is a fraud on the purchaser and on the railroad company, or a joint fraud on both. That where persons purchase such tickets innocently it frequently leads to their being ejected from trains because said scalpers have represented such tickets to be good; and that where the purchaser knows they are nontransferable, and void in the hands of persons other than the original purchaser, the buyer deceives the conductor and servants of the railroad; and that it is a fraud on the plaintiff. That some of the tickets so issued have a return coupon, which must be presented to the agent before presentation for the return trip. That the defendants are residents of the city of St. Louis and engaged in the business of ticket brokers or scalpers in the city of St. Louis, and that they have full knowledge of the character of such tickets, that they are issued at a special rate and that they are null and void in the hands of any person other than the original purchaser. That they either deceive the buyer by representing them as good, or deceive the railroad by aiding the buyer in using them; and that Herman Schubach is engaged in the business of selling such tickets, and proposes to continue the sale of the same, and regularly deal in the sale of said nontransferable tickets, thus defrauding the railroad or the buyers of the ticket, or both. That by reason of the impossibility of detecting such frauds the plaintiff is subjected to recurring loss and injury, and the innocent buyer to pecuniary loss, annoyance, and humiliation. That the burden cast on the conductors of detecting such fraudulent tickets subjects the railroad company to constant danger from suits for damages for unavoidable errors, and subjects the railroad and public to interruption and delay in the operation of trains. That the railroad company has no way of discovering who the persons are who so defraud it, or who are thus defrauded, by the purchase of such nontransferable tickets, because of the impossibility of securing...