State ex rel. Voyles v. French Lick Springs Hotel Co.

• Decision Date: 26 November 1907
• Docket Number: 6,400.,Nos. 6,399,s. 6,399
• Parties: STATE ex rel. VOYLES, Pros. Atty., v. FRENCH LICK SPRINGS HOTEL CO. SAME v. WEST BADEN SPRINGS CO.
• Court: Indiana Appellate Court

42 Ind.App. 282

82 N.E. 801

STATE ex rel. VOYLES, Pros. Atty.,

v.FRENCH LICK SPRINGS HOTEL CO.

SAME

v.WEST BADEN SPRINGS CO.

Nos. 6,399, 6,400.¹

Appellate Court of Indiana, Division No. 1.

Nov. 26, 1907.

Appeal from Circuit Court, Orange County; Bayless Harvey, Special Judge.

Actions by state of Indiana, on the relation of Willard H. Voyles, prosecuting attorney, against the French Lick Springs Company and West Baden Springs Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

C. W. Miller, Atty. Gen., W. H. Voyles, Pros. Atty., C. C. Hadley, James Bingham, Atty. Gen., and Dowling, White & Cavins, for appellant. A. G. Smith, Bernard Korbly, John W. Kern, M. B. Hottel, Perry McCart, and W. C. Mitchell, for appellees.

ROBY, C. J.

This action was brought by the state, on relation of the prosecuting attorney of the Forty-Second circuit. The appellee is a corporation organized under the act of March 9, 1901, concerning the organization of voluntary associations. Acts 1901, p. 289, c. 127; section 4583, Burns' Ann. St. 1901. The purpose of its organization was to own and operate a hotel and health resort. The theory upon which the complaint proceeds is that it has abused its corporate privilege and franchise, and that because thereof its existence should be terminated. The procedure followed is authorized by the act of April 7, 1881 (Acts 1881, p. 380, c. 38; section 1145, Burns' Ann. St. 1901). The trial court sustained a demurrer to the complaint, and the correctness of its action therein is duly presented and is the sole question for determination.

The averments of the pleading show that as a part of its enterprise appellee constructed or acquired a large building called a “casino,” to which men, women, and children had free access, and in which gambling in many forms was systematically conducted. It is averred, both generally and specifically, that the criminal law was habitually and persistently violated, that the resort has been widely advertised throughout the United States as a place where gamblers may be lavishly entertained and engage in their unlawful practices without fear of molestation, and that the local authorities are unable to enforce the law. The argument against the sufficiency of the facts stated in the complaint is confined to the proposition that the corporation is affirmatively shown to have successfully carried on the business for the doing of which it was chartered. This argument does not take into account the fact that the corporation is not charged with nonfeasance, but with malfeasance. To have successfully conducted a hotel is no answer to a charge of contributing to the delinquency of children. It may also be observed that the form of any agreement as to the division of spoils between persons engaged in the commission of crime is likewise immaterial. The demurrer, in so far as it raised the question of insufficient facts, should have been overruled.

The further proposition argued is that the prosecuting attorney is not a proper relator, that the action to terminate the existence of a corporation organized under the act of 1901, concerning the incorporation of voluntary associations, can only be brought on the relation of the Attorney General, and that the provisions of said act as to such forfeiture render the act under which this proceeding is brought inapplicable. The general statute is, in part, as follows: “An information may be filed against any person or corporation in the following cases: *** Fourth: or where any corporations do or omit acts, which amount to a surrender or a forfeiture of their rights and privileges as a corporation or where they exercise powers not conferred by law. *** The information may be filed by the prosecuting attorney in the circuit court of the proper county upon his own relation, whenever he shall deem...