OPINION
ROBERTSON, P. J.
--On
December 14, 1912, the prosecuting attorney of Greene county
filed in this court his information against the defendant
alleging its organization and incorporation in 1910, under
and by virtue of the provisions of chapter 33, article 10, of
the Revised Statutes of Missouri for 1909, for the purposes
set out in the articles of incorporation, as follows:
"The
objects of this organization are fraternal and social and to
promote temperance and brotherhood amongst men of color or as
commonly called of African descent.
"To
accomplish such objects a club room shall be provided where
members may meet for social intercourse and for transacting
the business of the club.
"The
board of trustees shall also provide for a reading room and
for the purchase of books and magazines from time to time
they shall also provide a room for pool and billiard tables
for the recreation of members, and as
the condition of the organization will permit such board may
provide a room for athletics. From time to time such board
shall provide for musical and literary entertainments and
banquets as the funds of the organization will permit. The
further object of said organization will be the uplifting of
the African American citizens by full and open discussion
amongst the members and such speakers, instructors and
lecturers as may from time to time be invited, of questions
social, economical and political and for the advancement of
our race, especially in the city of Springfield, and for the
better relation with our brother white citizens and to a
better understanding and co-operation between them."
The
information charges that the corporation is a resident of the
city of Springfield and that the respondent has ever since
its organization continually, notoriously and willfully at
said place offended against and violated the laws of the
State and grossly perverted and misused its
corporate authority, franchise and privileges and has
unlawfully assumed and usurped franchises and privileges not
granted to it by the laws of the State of Missouri,
especially in that it has not at any time pursued or
attempted to pursue the objects and privileges as set forth
in its articles of association, that from the date of its
organization up to the filing of said information, the
respondent, through its officers, agents, employees and
members, has conducted within said city of Springfield a
gaming and disorderly house, and has engaged, permitted,
aided, abetted and assisted persons in meeting in the rooms
of the association and engaged in the open and gross
violation of the laws of the State, more especially sections
4750, 4751, 4753 and 4754, Revised Statutes 1909, and that it
has not kept or performed any of the alleged objects and
purposes of its organization, and praying that the respondent
may be ousted of all its franchises and corporate privileges
and that the same may be declared forfeited.
The
same day on which the information was filed, summons was
issued and thereafter returned served. On December 19, 1912,
the relator filed a motion for judgment, respondent not
having made any return; and at that time respondent filed an
application for an extension of time in which to make its
return. The time was thereupon extended upon the application
until December 23, 1912, at which time the return hereinafter
discussed was filed. On December 23, 1912, an order was
entered in this court, a portion of which reads as follows:
"It
is ordered and adjudged by the court by and with the consent
of the parties hereto that the marshal of this court take
immediate charge of the premises and the property of the said
respondent and hold the same safely and securely pending the
further orders of this court."
It was also further ordered that Harry H.
Mitchell be appointed commissioner of the court to take
testimony, with full power to subpoena witnesses, administer
oaths, and employ a stenographer to take and transcribe the
testimony; and the further hearing of the cause was set for
Thursday, January 9, 1913.
On
January 8, 1913, the commissioner filed his report, which
included the testimony taken in the cause.
The
return of the respondent, except as to the italicized words
and figures, was as follows:
"Comes
respondent and for return herein respectfully says that it
protests against the original jurisdiction of this honorable
court herein and protests to the procedure herein and does
not by its appearance hereto to make return to the writ
herein issued and does not by its return thereto intend to
waive and does not waive its objections to said jurisdiction
and to said procedure, but expressly reserving all objections
thereto for its plea and return says that respondent here was
duly incorporated in and by the said name on the ___ day of
___, 1910, by a pro forma decree of the circuit
court of Greene county, Missouri, under chapter 33, of
article 10, Rev. Stat. of Missouri, 1909, and that under the
laws of said State the said circuit court has original
exclusive jurisdiction to regulate the said respondent or to
revoke the powers by said decree created.
"Wherefore
respondent prays that the writ issued herein be quashed and
the application dismissed, and for such other relief as to
this court may seem meet and proper.
"For
further and distinct return and still protesting against the
jurisdiction of this honorable court and against the
procedure herein and respectfully stating that by its
appearance to make return to the writ issued herein and by
making said return, it does not intend to waive and it does
not waive its objections on such ground but
expressly reserves the same for its plea and return,
nevertheless says that prior to the filing of the application
herein and prior to the issuance of the writ herein, to-wit:
On the 7th day of December, 1912, the relator herein, in the
circuit court of Greene county, Missouri in Division No. Two
of said court filed an application against respondent herein
in the name and against each and all the officers thereof
setting forth substantially the same allegations as are in
the petition and writ herein contained, and alleging that
defendants therein constituted the respondent club and were
operating a club under said name and praying a dissolution
and ouster of said club and praying for a restraining order
therein.
"Respondent
states that the parties in both said proceedings are the same
and that the issue in both proceedings are identically the
same and that the same evidence will be adduced in each case
in support of the application for quo warranto and
that the
same evidence will be adduced by respondents therein to
defeat said application as will be adduced in support of and
in resistance to the petition herein.
"And
respondent, further answering, says that upon said
application ex parte, and without notice to
respondents therein, who are and were at said time the
officers of respondent herein, the said circuit court of
Greene county issued its restraining order restraining said
respondents from in any manner conducting or operating said
club. Respondent says that in respect to and in obedience to
said order the respondents therein named and respondent
herein has absolutely refrained from opening its said club or
its rooms and has absolutely refrained from conducting said
club in any manner, and respondent says it will obey the said
commands of said court.
"Respondent
says that said writ is made returnable to the January, 1913,
term of said court and that the same is now
pending and the injunction therein granted and served is now
in full force.
"Wherefore,
respondent says that the said circuit court of Greene county,
a court of competent jurisdiction and the court which entered
the pro forma decree organizing respondent has full
and prior jurisdiction in the premises and the proceedings
herein are cumulative and oppressive.
"And
respondent therefore prays that this proceeding be abated,
the writ issued herein quashed and the petition herein be
dismissed, and for such other relief as to this court may
seem meet and proper.
"And
for further return to the writ and petition herein and still
respectfully protesting to the jurisdiction of this honorable
court and not intending to waive such contention by this
appearance and answer but expressly reserving all rights in
the premises, for such return and plea respondent further
says that this honorable court has not jurisdiction herein
and that the proceedings herein are in violation of the
rights guaranteed to this respondent and to the officers and
members thereof by the Constitution of the State of Missouri
and especially by sections 22, 28 and 30 of article II of
the State of Missouri and of article 14 of the amendments to
the constitution of United States.
"In
support of such return and plea, respondent says that by the
application herein relator charges and charges only that
respondent by and through its officers and members has been
guilty of violations of the criminal laws of the State of
Missouri, which it denies, and the sole purpose of such
inquiry is to have respondent and its said officers and
members found and adjudged guilty of such violations and with
such basis to revoke the charter of respondent.
"That
by reason of the premises relator prays this honorable court
to usurp the functions of a jury and to...
