OPINION
GRAVES,
J.
On
July 28, 1905, Herbert S. Hadley, Attorney General, filed in
this court his information, ex officio, in the nature of a
quo warranto against the respondent corporation, the purpose
of which is to divest said corporation of its franchises and
forfeit its property to the state. To this information the
respondent interposed a demurrer, which matter, being in
issue, was submitted to this court and fully disposed of by
an opinion by Burgess, J., not yet officially reported, but
found in 92 S.W. 185, in which opinion the information is
fully set out, and for that reason will not be incorporated
herein.
After
the disposition of the demurrer by the opinion aforesaid, the
respondent filed answer as follows:
"Respondent,
Delmar Jockey Club, comes by its attorneys and for its answer
to the information of the Attorney General herein, admits
that it is a corporation duly organized and incorporated
under the laws of the state of Missouri, and denies each and
every other allegation in said information alleged or
contained. Wherefore respondent prays that it be hence
discharged with its costs.
"(2)
For its further answer to that portion of the information of
the Attorney General herein wherein it is alleged that
respondent has failed to exercise certain franchises, claimed
to be possessed by it, this respondent states that it has
fully carried out and exercised all those provisions in its
charter authorizing it to give exhibition of agricultural
products and exhibitions of contests of speed and races
between horses for the purpose of encouraging and promoting
agriculture and the improvement of stock, and has provided
suitable fair grounds of the same, in this: that between the
18th day of January, 1901, and the 16th day of June, 1905, in
pursuance of the provisions and requirements of section 7419
to 7424, inclusive, Rev. St. Mo. 1899, respondents duly paid
large sums of money into the treasury of the state of
Missouri, to the credit of the state fair fund, the same
being a fund created by section 7424, Rev. St. Mo. 1899, for
the development and advancement of the industrial interests
of this state under the direction of the State Board of
Agriculture, and that all said moneys so paid into said fund
was received, used, and appropriated by the state of Missouri
for the purpose of holding and giving annual exhibitions of
agricultural products and stock of every kind and description
at the city of Sedalia, Mo., and that the said sums of money
paid by respondent into the treasury of the state of Missouri
under the terms of section 7419 to 7424, inclusive, were used
and appropriated by the said state of Missouri and by said
State Board of Agriculture solely for the maintenance and
support of the said Missouri State Fair held annually at
Sedalia, Mo., and for the further purpose of providing,
constructing, improving and equipping all grounds, stands,
and buildings necessary for the holding and giving of said
fair. Respondents further state that by exercising and
receiving the said sums of money for the above-mentioned
purposes the said state of Missouri intended to and did
accept the same as full and complete performance and use by
respondents of its franchise to give exhibitions of
agricultural products and stock, and the said state of
Missouri thereby intended to and did waive any other or
further exercise of such franchise on the part of
respondents. Further answering the allegations of nonuser
from June 16, 1905, to the date of the filing of this
information, to wit, July 28, 1905, respondent states that
the franchise of giving exhibitions of agricultural products
and stock is not one which can be exercised continuously and
at all times from the beginning to the end of the year, but
is one, owing to its peculiar character, which can only be
exercised during the harvest season of each year. For these
reasons respondent was not required to exercise such
franchise between the above-specified dates; but respondent
further avers that it has in good faith endeavored at all
times to exercise the franchise granted to it by its articles
of incorporation in the manner and for the purposes intended
by such grant, and that such is its purpose in the future,
and respondent intends in every way to comply with and
perform according to law all the obligations which it assumed
upon the grant of the aforesaid franchises to it by the state
of Missouri; and respondent again specifically denies each
and every charge, allegation, or assertion of a contrary
purpose on its part, contained in the information filed
herein. Wherefore respondent prays that it be hence
discharged with its costs."
Upon
the filing of this answer the Attorney General filed motion
for judgment upon the pleadings, and the issues thus raised
are the ones now for consideration and judgment by the court.
This motion is as follows:
"Comes
now Herbert S. Hadley, Attorney General of the state of
Missouri, who in this behalf prosecutes for the state, and
moves the court for judgment on the return and answer for
respondent herein, for the following reasons:
"First.
That said return and answer fails to state facts showing any
sufficient cause or excuse for, or any legal defense to, the
nonuser of respondent's franchises authorizing it to give
exhibitions of agricultural products and exhibitions of
contests or speed or races between horses for the purpose of
encouraging and promoting agriculture and the improvement of
stock, and for the establishing and maintaining of suitable
fair grounds in the city and county of St. Louis, as set
forth and charged in the information herein.
"Second.
It appears from the facts stated in said return and answer,
and the second count thereof, that respondent is guilty of
the acts of misuser and abuser of its franchises charged in
the information herein filed, in this, to wit, that
respondent engaged in the business of book making and pool
selling, registration of bets, and the acceptance of bets in
violation of the laws of this state; wherefore informant
prays that final judgment of ouster be rendered against the
respondent as prayed for in the information in this
case."
As a
further part of the history of the case it might be said that
the court sustained the motion for judgment and entered
judgment of ouster, and levied a fine of $ 5,000, but filed
no opinion. This judgment of ouster was for both misuser and
nonuser, and upon motion for rehearing was set aside, and
said cause taken as submitted on the motion as above stated,
and then assigned for opinion. Points respectively urged by
contending counsel will be duly noted in the course of our
remarks.
1. The
first question is to determine the effect of respondent's
answer. There is first a general denial. This, without
further pleading, would raise the issue both as to the
misuser and nonuser charged in the information. As to
nonuser, the general denial first pleaded is followed by a
plea, hereinabove fully set out, which amounts to a plea of
confession and avoidance. This answer admits in effect that
it was the duty of the corporation to maintain fair grounds
and hold an agricultural fair "in the city and county of
St. Louis" as provided by its charter, the language of
which charter is as follows: "The purposes for which
this corporation is formed are to encourage and promote
agriculture and the improvement of stock, particularly
running, trotting and pacing horses, by giving exhibitions of
agricultural products and exhibitions of contests of speed
and races between horses, for premiums, purses and other
awards and otherwise ; to establish and maintain suitable
fair grounds and a race track in the city and county of St
Louis with necessary buildings, erections and improvements,
and to give or conduct on said grounds and race track, public
exhibitions of agricultural products and stock, and of speed,
or races, between horses, for premiums, purses or other
awards made up from fees or otherwise, and to charge the
public for admission thereto and to said grounds and track;
to engage in pool selling, book making, and registering bets
on exhibitions of speed or races and the said race track and
premises, as provided by law, and to let the right to others
to do the same, to conduct restaurants, cafes, and other
stands, for the sale of food and other refreshments to
persons on said premises ; and to do and perform all other
acts necessary for fully accomplishing the purposes
hereinbefore specifically enumerated." It undertakes to
avoid this admitted failure by saying that by reason of the
requirements of sections 7419 to 7424 of the Revised Statutes
of 1899 it had paid large sums of money into the state
treasury which was used to maintain a state fair at Sedalia,
Mo. These sections of the statutes constituted the old law
providing for licensing pool selling and book making, and
providing that the license fees should go to the state fair
fund. Even before its repeal, this law, which is article 2 of
chapter 105 of the Statutes of 1899, in no wise excused the
respondent from exercising the franchise granted it to
establish and maintain an agricultural fair. Whatever moneys
it paid the state under these sections of the law was license
fees belonging to the state, which could have been just as
properly put In another fund by the Legislature as into the
state fair fund. No money paid the state by reason...