State ex rel. Attorney Gen. v. France

• Decision Date: 30 April 1880
• Citation: 72 Mo. 41
• Parties: THE STATE ex rel. THE ATTORNEY GENERAL v. FRANCE.
• Court: Missouri Supreme Court

72 Mo. 41

THE STATE ex rel. THE ATTORNEY GENERAL

v.FRANCE.

Supreme Court of Missouri.

April Term, 1880.

Quo Warranto.

OUSTER AWARDED

E. T. Farrish for relator.

Wm. O. Bateman, Chester H. Krum and Jas. O. Broadhead for respondents.

NORTON, J.

This is an original proceeding by quo warranto at the relation of the attorney general, the information alleging that since the 1st day of January, 1878, the defendants have been exercising and using, without lawful authority, a lottery franchise, known as the Missouri State Lottery, after said franchise had expired and lapsed in law and fact. Judgment of ouster is prayed

The defendants, in their answer and return, assert their right to exercise the franchise they are charged with usurping, in virtue of a contract made in 1842, as modified and amended in 1849, by and between the trustees of the town of New Franklin and one Gregory, which said contract had been transferred to them through assignments, made by the representatives of said Gregory; that said contract conferred upon them the right to exercise the said lottery franchise till the 1st day of January, 1878; that this right had been interfered with, and by reason of a judgment of ouster rendered on the 22nd day of December, 1875, by the circuit court of St. Louis county, in a quo warranto proceeding instituted by the State against Murray, Miller & Co., the then owners of the franchise, they were prevented from exercising the same from that time till the 4th day of March, 1878, when the said judgment was reversed by this court; that they were thus interrupted and denied the right of pursuing the said lottery business for more than two years of the time allotted to them in said contract. The answer further avers that on the 14th day of December, 1878, the trustees of the town of New Franklin made a further contract with said Murray, Miller & Co., the assignees and successors of the said Gregory, by which it was agreed that in further consideration of the sum of $100 then paid, and which was to be considered as payment number one under said amended contract, the annual installments should continue as follows: On the 1st day of January, 1879, $100, on the 2nd day of January, 1880, $100, and so on in annual installments of $100 each until the sum of $13,400, as provided for in the contract of April 11th, 1849, should be fully raised, making the sum of $15,000 as provided for in the acts of the legislature and the contracts thereunder. It is further averred that neither said Murray, Miller & Co., nor defendants, ever abandoned said lottery franchise or their rights or privileges under the laws and contracts relating thereto; that neither of the steps provided in said contract of 1842 for the termination of said contract by the act of said parties, was ever taken by either of the parties; that is to say, neither the notice declaring said contract null and void was ever given by said trustees, nor did said Murray, Miller & Co., or defendants, ever give to said trustees the ninety days notice provided in said contract as a condition precedent to the abandonment thereof by said Gregory or his assigns.

The plaintiff, in effect, demurs to defendants' answer by filing her motion for judgment notwithstanding what is therein set up.

The contract relied upon by defendants as a justification, entered into by and between the trustees of the town of New Franklin and the said Gregory in 1842, as modified in 1849, by virtue of authority conferred upon said trustees by an act of the general assembly passed in 1833, and amended in 1839, 1855 and 1870, has been heretofore before this court for adjudication in the cases of the State v. Morrow, 26 Mo. 141; State v. Miller, 50 Mo. 132; State ex rel. v. Miller, 66 Mo. 340, in all of which two distinct questions were made; the first of which was whether the trustees of said town were authorized by an act of the legislature to make the Gregory contract, and the second was, if they did have such power whether the right which was vested in Gregory under a contract made in the exercise of such power to conduct and manage a lottery could be taken away or in any manner impaired by legislative enactment. All of the said cases answer the first question in the affirmative, and the second in the negative.

Notwithstanding it was held in the last of the above cited cases that the right of Gregory and his assignees under the said contract expired according to its terms in 1877, and notwithstanding the admission made in the answer that by the terms thereof it expired on the 1st day of January, 1878, it is earnestly claimed by counsel that the right of defendants to exercise the privilege of selling lottery tickets should be continued for an additional length of time after the 1st day of January, 1878, equal to the time their business is alleged to have been suppressed by reason of the judgments of ouster and interference of the police of the city of St. Louis, set up in the answer, which suspension lasted from the 22nd day of December, 1875, to March 4th, 1878. The question thus presented as to whether or not the said interference as set up had the effect claimed by counsel, cannot possibly be solved without a construction of the following clause contained in the Gregory contract, viz: “And the respective parties further agree that the party of the second part (Gregory) shall not be bound by this agreement in the event of any interference by the legislature, judiciary or any other power, so that he cannot conduct the business, in which case payment is to be made by him to the time of such interference only.” It is contended on behalf of the State that the said contract by virtue of the above clause was terminated as soon as such interference as is therein mentioned occurred, and that upon its occurrence both parties were absolved from all obligations and rights created by it. It it contended, on the other hand, that such interference of itself neither abrogates, annuls nor cancels the contract, but is merely recognized as an occurrence which would authorize Gregory or his...