State v. Business Men's Athletic Club

CourtCourt of Appeal of Missouri (US)
Writing for the CourtRobertson
Citation178 Mo. App. 548,163 S.W. 901
Decision Date12 February 1914
PartiesSTATE on Inf. of WEAR, Pros. Atty., v. BUSINESS MEN'S ATHLETIC CLUB.
163 S.W. 901
178 Mo. App. 548
STATE on Inf. of WEAR, Pros. Atty.,
v.
BUSINESS MEN'S ATHLETIC CLUB.
Springfield Court of Appeals. Missouri.
February 12, 1914.

1. QUO WARRANTO (§ 53) — PLEADING — AMENDMENT.

Under Rev. St. 1909, § 1821, providing that an answer or replication may allege facts which have occurred since the institution of the suit, section 1848, providing that the court may at any time before final judgment amend any record, pleading, etc., by inserting other allegations material to the cause, and section 1864, providing that the provisions of that article, which includes section 1848, shall extend to informations in the nature of quo warranto, in a proceeding to oust a corporation of its franchises and privileges, the prosecuting attorney would be permitted to amend his information so as to allege a continuation of the acts complained of up to the date of the trial.

[163 S.W. 902]

2. CORPORATIONS (§ 29) — INCORPORATION — ATTACKING VALIDITY.

In a quo warranto proceeding against a corporation, the state cannot question the fact that it was duly and legally organized.

3. QUO WARRANTO (§ 25)—PERSONS AGAINST WHOM RELIEF MAY BE GRANTED.

Where the object of a quo warranto proceeding is to test the validity of a corporation's organization, the information should be filed against the individuals who, it is claimed, are usurping the prerogatives of a corporation; but, if it is to effect the dissolution of a corporation which has an actual legal existence, or to oust it of some power which it unlawfully exercises, the proceeding is properly against the corporation.

4. QUO WARRANTO (§ 1)—NATURE AND SCOPE OF REMEDY.

Quo warranto proceedings are in the nature of a public prosecution to recover to the state usurped or forfeited franchises, and not to redress private grievances.

5. CORPORATIONS (§ 597)—FORFEITURE OF FRANCHISES—MISUSER.

To forfeit a corporate franchise for misuser in quo warranto proceedings, the acts complained of must be detrimental to the public welfare, and such as work or threaten substantial injury to the public, or amount to a violation of the purpose for which the corporation was organized, since a corporation, by engaging in a business not authorized by the statute under which it is incorporated, only exceeds its powers, and unless unlawful or against the public welfare, it is not a usurpation of a franchise.

6. CORPORATIONS (§ 31)—NATURE OF "CORPORATE FRANCHISE" — "CORPORATE POWERS."

A corporate franchise is the right to exist as an entity for the purpose of doing things permitted by law, while the things which it is authorized to do are its powers as distinguishable from its franchise.

7. CORPORATIONS (§ 607) — FORFEITURE OF FRANCHISE—ESTOPPEL.

That a corporation procured from the circuit court a pro forma decree declaring it a body corporate, and that the Secretary of State thereupon issued a certificate of incorporation, did not preclude the state by quo warranto from inquiring into and ascertaining the validity of the objects and purposes for which it was organized.

8. CORPORATIONS (§ 387)—CORPORATE EXISTENCE—ESTOPPEL TO DENY.

Though the state, in a quo warranto proceeding against a corporation, cannot deny its corporate existence where some of the objects and purposes for which a corporation was formed are authorized by law, and others are not so authorized, the state may, in a proceeding against the corporation, attack its right to exercise the unauthorized objects and purposes.

9. CORPORATIONS (§ 14)—PURPOSES OF INCORPORATION — "FRATERNAL BENEFICIAL PURPOSE"—"EDUCATIONAL PURPOSE"—"SCIENTIFIC PURPOSE."

A corporation organized to provide and give to its members entertainment and lawful exhibition of feats of strength, agility, and activity, such as boxing, sparring, wrestling, basket ball, and any and all other indoor sports and harmless games, acceptable and beneficial to its members, was not organized for a fraternal beneficial, educational, or scientific purpose within Rev. St. 1909, § 3432, authorizing the organization of corporations for such purposes, nor for a purpose incident to either of such objects, since the term "fraternal beneficial" is applied to organizations on the lodge plan, paying death and sick benefits, while section 3435 specifies the kinds of organizations that may be incorporated for educational or scientific purposes, as schools, colleges, etc., including associations formed to promote literature, etc., or the establishing of a museum, etc., and in general any association, society, company, or organization tending to the public advantage in relation to the objects enumerated, and whatever is incident to such objects, and, while athletic training might have some educational value to those trained, the mere entertainment of the corporation's members with such exhibitions was entirely foreign to the purposes outlined in the statute.

10. CORPORATIONS (§ 373) — CHARTER — CONSTRUCTION.

Where the articles of association of a corporation specified its purposes as the providing and giving to its members of entertainment and exhibition of feats of strength, etc., such as boxing, sparring, etc., and "any and all other indoor sports and harmless games" that might be acceptable and beneficial to its members, the quoted provision applied only to the kind and character of exhibitions specifically thereinbefore stated.

11. CORPORATIONS (§ 593) — FORFEITURE OF FRANCHISES—FRAUDULENT INCORPORATION.

A corporation organized June 14, 1913, to promote social intercourse and family relations among its members, provide athletic exhibitions, such as boxing, sparring, etc., provide its members with books, magazines, and periodicals, and suitable, harmless, and healthful refreshments, and to procure suitable clubrooms, etc., made a nominal charge of $1 for membership, and fixed no standard by which the qualifications of applicants should be measured, as required by statute, but left this entirely to the judgment of the membership committee and board of directors. By a vote, the manager of the corporation was authorized to stage any athletic entertainment without consulting the other directors. Several boxing or sparring contests between professionals who were paid for giving the contest were held in a room for which the corporation paid a specified rental for each exhibition, and later in another room having no equipment for carrying out the purposes specified except a ring designed and used solely for boxing exhibitions. The members were charged a fee for admission to these exhibitions, and they were advertised as other exhibitions for the benefit of the public. On

[163 S.W. 903]

August 30, 1913, 361 members had been admitted, and at the date of the trial of a quo warranto proceeding there were 523 members, and, so far as the records disclosed, applicants were not passed on by the board of directors as required by the by-laws, but only by the membership committee, which kept no record of its meetings. Held, that the facts showed that the corporation was engaged in giving public boxing exhibitions in violation of the criminal laws of the state, and that such exhibitions were the only object its incorporators had in view, and hence it would be ousted of its franchises and charter privileges, and they would be forfeited to the state.

12. PRIZE FIGHTING (§ 1)—NATURE AND ELEMENTS—"PRIZE FIGHT."

The essential element of a "prize fight" is the prearranged fighting under certain rules of two persons by striking each other with their fists and hands for the purpose and with the intent of inflicting on each other such physical pain or injury as to disable his adversary from continuing the contest, and the inhibition of the law is not against the giving of a prize or reward, but against the kind of fights developed thereby, and the fact that rules have been enacted and are observed tending to make the fight less dangerous to life and limb, and to lessen the pain and physical injury to the combatants, does not prevent such contests from being prize fights, nor does the fact that the fight may be stopped by the referee before an actual knock-out when it has progressed long enough, and with such results that there is no longer a doubt as to which will disable the other, nor that it be agreed that the fight shall cease after a certain time, the victor to be determined, if neither is disabled, by which has inflicted the most punishment or nearest disabled his adversary.

13. PRIZE FIGHTING (§ 1)—STATUTORY PROVISIONS.

Rev. St. 1909, § 9253, providing that the councils of cities of the third class shall have power to license, tax, regulate, or suppress boxing and sparring exhibitions, cannot supersede section 4681, prohibiting such exhibitions, in view of section 9582, providing that, if municipal corporations having authority to pass ordinances regulating subjects, matters, and things upon which there is a general law, unless otherwise prescribed or authorized, shall confine and restrict their jurisdiction and the passage of ordinances to and in conformity with the state law.

Original quo warranto proceeding by the State, on information of Sam M. Wear, Prosecuting Attorney of Greene County, against the Business Men's Athletic Club. Writ of ouster awarded.

Sam M. Wear, Pros. Atty., and Mann, Todd & Mann, all of Springfield, for relator. Patterson & Patterson and Neville & Gorman, all of Springfield, for respondent.

ROBERTSON, P. J.


The prosecuting attorney of Greene county filed in this court his information, alleging that the defendant was organized as a corporation ostensibly under the provisions of chapter 33, art. 10, Revised Statutes of 1909, authorizing the incorporation of associations for benevolent, religious, educational, and scientific purposes, and charged that the respondent had grossly perverted and misused its charter authority, franchises, and privileges, and unlawfully usurped franchises and privileges not granted it by the laws of the...

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6 practice notes
  • State ex Inf. Huffman v. Show-Me Power Co-Op., No. 38883.
    • United States
    • United States State Supreme Court of Missouri
    • January 14, 1946
    ...in Section 14406 does not preclude the application of the rule of ejusdem generis. State ex rel. Wear v. Business Men's Club, 178 Mo. App. 548. Henry C. Salveter, Gregory C. Stockard, Wilbur L. Morse and Virginia Morsey for (1) Respondent is engaged in a mercantile business and in selling a......
  • State ex Inf. McKittrick v. Mo. Utilities Co., No. 34073.
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1936
    ...Rodney v. Gibbs, 184 Mo. 10. (7) The respondent is the only proper party defendant in this action. State ex rel. v. Business Men's Club, 178 Mo. App. 548; State ex rel. v. Monarch Transfer & Storage Co., 20 S.W. (2d) 60. The respondent says that its bondholders are necessary parties. Th......
  • State ex rel. v. City of St. Louis, No. 28373.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...Railway, 117 Mo. 11, 22 S.W. 910; St. Louis v. Bernard, 249 Mo. 51, 155 S.W. 394; State ex inf. v. Business Men's Club, 178 Mo. App. 551, 163 S.W. 901; Ewing v. Hoblitzelle, 85 Mo. 76; State ex rel. v. Bell, 119 Mo. 75, 24 S.W. 765; State ex rel. v. Matthews, 94 Mo. 117, 7 S.W. A reading of......
  • State ex rel. Schneider's Credit Jewelers v. Brackman, No. 28671
    • United States
    • Court of Appeal of Missouri (US)
    • September 15, 1953
    ...the rights and privileges conferred upon corporations pursuant to the legislative authority. State ex rel. Wear v. Business Men's Club, 178 Mo.App. 548, 163 S.W. 901; State ex rel. Gentry v. Monarch Transfer & Storage Co., 323 Mo. 562, 20 S.W.2d 60; State ex inf. McKittrick v. Murphy, 3......
  • Request a trial to view additional results
16 cases
  • State ex Inf. Huffman v. Show-Me Power Co-Op., No. 38883.
    • United States
    • United States State Supreme Court of Missouri
    • January 14, 1946
    ...word "all" in Section 14406 does not preclude the application of the rule of ejusdem generis. State ex rel. Wear v. Business Men's Club, 178 Mo. App. 548. Henry C. Salveter, Gregory C. Stockard, Wilbur L. Morse and Virginia Morsey for (1) Respondent is engaged in a mercantile business and i......
  • State ex Inf. McKittrick v. Mo. Utilities Co., No. 34073.
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1936
    ...Rodney v. Gibbs, 184 Mo. 10. (7) The respondent is the only proper party defendant in this action. State ex rel. v. Business Men's Club, 178 Mo. App. 548; State ex rel. v. Monarch Transfer & Storage Co., 20 S.W. (2d) 60. The respondent says that its bondholders are necessary parties. The Co......
  • State ex rel. v. City of St. Louis, No. 28373.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...Railway, 117 Mo. 11, 22 S.W. 910; St. Louis v. Bernard, 249 Mo. 51, 155 S.W. 394; State ex inf. v. Business Men's Club, 178 Mo. App. 551, 163 S.W. 901; Ewing v. Hoblitzelle, 85 Mo. 76; State ex rel. v. Bell, 119 Mo. 75, 24 S.W. 765; State ex rel. v. Matthews, 94 Mo. 117, 7 S.W. A reading of......
  • Hazen v. National Rifle Ass'n of America, No. 7090.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 5, 1938
    ...v. Commissioner, 2 Cir., 42 F.2d 184, 72 A.L.R. 400 (American Birth Control League); State of Missouri v. Business Men's Athletic Club, 178 Mo. App. 548, 564, 565, 163 S.W. 901, 907, 908 (athletic club); Memphis Chamber of Commerce v. Memphis, 144 Tenn. 291, 232 S.W. 73 (chamber of commerce......
  • Request a trial to view additional results

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