State ex rel. Attorney Gen. v. Miller

• Citation: 1 Mo.App. 48
• Parties: THE STATE, ex rel. THE ATTORNEY GENERAL, Respondent, v. GEORGE C. MILLER et al., Appellants.
• Decision Date: 31 January 1876
• Court: Court of Appeal of Missouri (US)

1 Mo.App. 48

THE STATE, ex rel. THE ATTORNEY GENERAL, Respondent,

v.GEORGE C. MILLER et al., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 31, 1876.

By an act of the General Assembly, approved January 16, 1833, the trustees of the town of New Franklin were authorized to raise, by lottery, $15,000, for the construction of a railroad from the bank of the Missouri river to the town of New Franklin. By act of February 26, 1835, they were further empowered to contract with any person to have the lottery drawn in any part of the United States, on such terms as they should consider most advantageous. By act of February 8, 1839, the power previously given to raise money for a railroad was withdrawn; the trustees were authorized to apply the funds raised to a macadamized road, and the Governor, on certain preliminary conditions, might, by proclamation, authorize the raising by lottery of a sum sufficient to complete the work, not exceeding $15,000. On November 17, 1840, proclamation was issued by the Governor to that effect. On June 1, 1842, the trustees made an agreement with Walter Gregory, whereby they sold to him “the said lottery and all right to control the same,” and appointed him “the sole manager and conductor of said lottery or lotteries, for the benefit of the town of New Franklin, under the provisions,” etc. Gregory assumed all the risk and expense of the undertaking, and agreed to pay the trustees $15,000, in semi-annual installments of $250 each, beginning with January 1, 1843. A proviso was added whereby $1,100 previously paid to the trustees by other parties should be considered as payments made by Gregory on his said purchase. On April 11, 1849, the board of trustees entered on its minutes a memorandum of an agreement that, in consideration of $500 paid by Gregory, in addition to the $1,100 acknowledged by the contract of June 1, 1842, he was released from all further payments under said contract until July 15, 1851--the semi-annual installments of $250 then to commence, and to continue until the further sum of $13,400 should be fully paid, making, in all, $15,000. This memorandum purports to be signed and sealed by the trustees, but is not executed by Gregory. By act of December 6, 1855, “all contracts made by the said trustees for the purpose of raising the amount of money authorized to be raised” by the several acts above recited, “for the purpose of constructing a rail or macadamized road,” etc., were declared to be legal, and the same might be carried out according to the true intent of the parties thereto. No part of the money raised by the lottery was ever applied to the making of a road of any kind. By an information in the nature of quo warranto, on the relation of the Attorney General, filed in the St. Louis Circuit Court, on the____day of______, 1875, the defendants, as assignees of Gregory, were required to show their authority for selling lottery tickets in Missouri. Judgment of ouster was rendered in the Circuit Court. It was held that the Circuit Court had jurisdiction of the controversy.

Held (BAKEWELL, J., dissenting), that the judgment of ouster was proper, and must be affirmed.

Per GANTT, P. J.--1. At any time prior to 1865 it was competent for the Legislature to either legalize or forbid the selling of lottery tickets, unless, by a contract with some person or persons, the power of prohibition was so far withdrawn. A right to sell, so vested by contract, could not be interfered with by general penal statutes against lotteries, or by any other instrumentality of the State governments.

2. The contract of June 1, 1842, must, in the light of its repeated sanctions by the Supreme Court, be considered unimpeachable. But, that contract having expired in 1870, by completion of the period which it covered, no one could have, under the acts of 1833 and 1835, and the contract of 1842, a right to sell lottery tickets in Missouri.

3. The contract of April 11, 1849, under which it is claimed that the privileges conferred on Gregory were extended in point of time, being wholly without consideration as to the trustees of New Franklin; being, in fact, a surrender of rights held under the former contract without compensation derived, or corresponding advantage of any sort; and being, not in furtherance of the objects contemplated by the act of 1833, but manifestly in hindrance of them, was null and void. The act of December 6, 1855, gives it no support.

4. Although a seal, or a scroll by way of seal, imports a consideration, no presumption arises of a consideration different from that which is ascertained by the instrument itself; and if the declared consideration be illegal or worthless, while, in some cases, another may be proved, yet there is no legal presumption of the existence of such other consideration.

5. Quære, whether persons acting in a representative capactity can, by affixing a scroll to their signatures, shut the door upon an inquiry by their principals into the reasons for their action.

6. Even if the memorandum of April 11, 1849, were a binding contract, its operation would only be to extend the time within which Gregory was to make his payments, and to diminish, by loss of interest, the price of his purchase. It could not be understood as enlarging the privileges previously acquired by him, or that any such enlargement should be in precise proportion to his own failure of performance of the original contract.

7. Ever since 1870, when the last payment was due under the contract of June 1, 1842, the defendants have been without the protection of any contract to justify their selling lottery tickets in violation of the general law. Hence, the judgment of ouster was proper, and ought to be affirmed.

Per LEWIS, J.--1. The contract of April 11, 1849, cannot be treated as a nullity in this proceeding. The State, by act of December 6, 1855, declared it to be legal, and gave her assent to its being carried out according to the intent of the parties.

2. The proceeding by information in the nature of quo warranto was a part of the common law, and so introduced into Missouri. The statute of Anne, and the corresponding statute of this State, in authorizing a private relator, did not take away the right of the government to appear by its law officer, as relator, in a common law court of original jurisdiction.

3. A municipal charter is a delegation of the State's sovereignty for local purposes, and is, in general, not judicially forfeitable, like a private franchise. But when to such a grant is added a special franchise, independent of the local government and operative beyond its limits, the latter is liable to forfeiture for non-user, misuser, or breach of condition. The lottery privilege granted to the corporation of New Franklin was such a franchise, and is shown to have been forfeited in every mode possible for the case.

4. The defendants and Gregory, their assignor, took the franchise subject to all the conditions, including the liability to forfeiture for certain causes. A judgment of forfeiture against them for such cause would not impair the obligation of their contract, but would simply enforce its terms.

5. The authority given the trustees to contract on such terms as they should ““consider most advantageous,” did not imply a right to create terms which would be in derogation of law.

6. The judgment of ouster was proper, for forfeiture of the franchise by failure of the conditions upon which it was granted.

Per BAKEWELL, J., dissenting.--

1. The contract of April 11, 1849, whether legal or not upon general considerations, was validated by the act of December 6, 1855.

2. Consideration is not of the essence of a contract, though necessary to support one. A contract under seal needs no consideration, and is binding between the parties, not only without a consideration, but even when, as in this case, one is set out and appears to be no consideration at all, because already past.

3. A contract or agreement is where a promise is made on one side and assented to on the other.

4. The general laws of 1836 and 1842, prohibiting lotteries, were inoperative as to the Missouri lottery, that being expressly authorized by the same power which uttered the prohibition. The prohibitory act of 1845 cannot be set up against the contract of 1849, because the latter was ratified and validated by the act of December 6, 1855. This ratification and validation did not constitute a law retrospective in its operation, within the meaning of the Constitution.

5. The lottery franchise could not be forfeited by any act of the trustees of New Franklin, after they had sold it to another. A judgment of forfeiture would impair the obligation of their contract of sale, which was made by authority from the State, and ratified by the same power.

6. The contract of 1849 having been in full force before the constitutional prohibition of 1865 against lotteries, no subsequent constitutional ordinance, or law, or decision of any court could impair its validity, and it is valid now.

7. Gregory and his assigns could not control the application by the trustees of the funds raised from the lottery, and, therefore, cannot be held responsible for any misappropriation of them after the transfer. The defendants cannot be deprived of their franchise because of such misappropriation; since that would be to assume that the Legislature gave to the trustees a right to make a sale which would be revocable at the legislative will.

8. Courts of justice cannot undertake to annul any legislation, within the constitutional authority of the General Assembly, for apparent rashness or improvidence in the enactment.

9. The Circuit Court had jurisdiction of this proceeding. It was never intended by the statute to limit the common law jurisdiction of the Circuit Court over ex-officio informations in the nature of quo warranto.

10. The judgment of ouster was improperly rendered, and ought to be reversed.

APPEAL from the St. Louis Circuit Court...