State v. Business Men's Club
| Decision Date | 24 February 1914 |
| Citation | 163 S.W. 901,178 Mo.App. 548 |
| Parties | STATE OF MISSOURI, upon the Information of SAM M. WEAR, Prosecuting Attorney of Greene County, Missouri, relator, v. BUSINESS MEN'S CLUB, respondent |
| Court | Missouri Court of Appeals |
Quo Warranto.
WRIT OF OUSTER AWARDED.
WRIT OF OUSTER AWARDED.
Sam M Wear, Prosecuting Attorney, and Mann, Todd & Mann, for relator.
(1) The contests staged under the auspices of respondent corporation were prize fights. State v. Patton, 64 N.E. 850; Seville v. State of Ohio, 15 L. R. A. (Old) 516; Commonwealth ex rel. Pratt v. McGovern, 66 L. R. A 280; State v. Purtell, 43 P. 783; People v Finucan, 80 N.Y.S. 929. (2) The respondent, "The Business Men's Athletic Club," is a mere subterfuge and a scheme organized and conducted for the purpose of evading the law which prohibits the giving of public sparring or boxing exhibitions. State ex inf. Hadley v. Rose Hill Pastime Athletic Club, 121 Mo.App. 81; State ex inf Hadley v. Kirkwood Social Athletic Club, 121 Mo.App. 87; State ex inf. Hadley v. Merremac Rod and Gun Club, 121 Mo.App. 364; Commonwealth v. Mack, 73 N.E. 534. (3) Respondent corporation is not within the purview of any of the provisions of Art. 10, Ch. 33, and its purposes are not covered by Secs. 3432, 3433, 3435, R. S. 1909. Vredenburg v. Behan, 33 La. Ann. 627, 637; Prairie Slough Fishing and Hunting Club v. Kessler, 159 S.W. 1080. (4) Respondent's charter should be forfeited. State ex rel. Mason v. Springfield African Social and Improvement Club, 154 S.W. 158.
Patterson & Patterson, Neville & Gorman, for respondent.
(1) The contests staged by respondent were not prize fights. State v. Purtell, 56 Kas. 478, 480, 481; People v. Taylor, 96 Mich. 576. (2) Distinction between "prize fighting" and "boxing" or "sparring." Secs. 4679, 4681, 9253, R. S. 1909, Acts 1913, p. 429. (3) Boxing exhibitions are not per se unlawful; their publicity alone renders them so. Sec. 4681, R. S. 1909. The exhibitions given by respondent were not public. (4) The purposes of the club were scientific, fraternal--beneficial and educational.
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, Article 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 State of Missouri, especially in that it had not pursued the objects and privileges as set forth in its articles of association, and that its objects and purposes are not entirely fraternal, beneficiary, educational and scientific, and that it had not and did not maintain a club where its members and such persons as may become members could meet for advancement and for the purposes contemplated by law; that from the date of its organization up to the time of filing the information the respondent had conducted within the city of Springfield prize fights in violation of the law, and had aided, abetted and assisted persons who were engaged in public sparring or boxing exhibitions, all in violation of the law, and especially in violation of sections 4679, 4680 and 4681 of the Revised Statutes of 1909, and that it had not kept or performed any of the alleged objects and purposes of its organization and that in fact it is nothing more nor less than an organization incorporated under the form of law for the sole purpose of aiding and abetting prize fights and public sparring or boxing exhibitions in violation of the law; and that the unlawful acts complained of constitute all of the business or things done by the respondent under and by virtue of the franchise and authority conferred upon it as a body corporate; that the respondent had wilfully, continuously and unlawfully misused and abused the privileges and authority conferred upon it by the laws of this state, and that the nonuser and misuser in violation of the laws of the State had been of great harm and injury to the public and a perversion and misuser of the franchise granted to it and an usurpation of franchise and privileges not granted to the respondent, all to the great injury of the general public and the State of Missouri, and praying that the respondent be ousted of all of its franchises and corporate privileges and that the same may be forfeited.
The respondent's answer admits the incorporation but denies generally the other allegations in the information.
A commissioner was appointed by this court to take the testimony, which he did, the respondent appearing thereat, and the issues are now before us for consideration.
The testimony offered is all in behalf of the relator and discloses that the respondent was, by pro forma decree of the Greene county circuit court, on May 24, 1913, declared a body corporate under the provisions of Chapter 33, Article 10, of the Revised Statutes of 1909, after which the Secretary of State on June 14, 1913, issued his certificate upon articles of association stating the purposes as follows:
"First. Promoting social intercourse and friendly relation among its members.
Second. Providing for and giving 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 that may be acceptable and beneficial to its members.
Third. Providing for its members books, magazines and periodicals suitable for their entertainment.
Fourth. Providing suitable, harmless and healthful refreshments to and for its members.
Fifth. Procuring suitable club rooms, furniture, fixtures and paraphernalia for the carrying out of the foregoing purposes."
These articles of association were signed by fourteen citizens of the city of Springfield.
During the taking of the testimony the prosecuting attorney stated that he would ask permission to amend his information so as to allege the continuation of the acts complained of up to that date and now asks leave to so amend. The relator has announced that if the amendment is allowed it desires to offer no additional testimony. This amendment, we think, should be allowed under section 1848, Revised Statutes of 1909, permitting amendments before final judgment, which is, by section 1864, Revised Statutes of 1909, extended to informations in the nature of quo warranto. Section 1821, Revised Statutes of 1909, recognizes the rights of the parties litigant to have all facts material to the issues in the case determined up to the date of the trial. [In this behalf see Alfter v. Hammitt, 54 Mo.App. 303; Ward v. Davidson, 89 Mo. 445, 455, 1 S.W. 846; Cohn v. Souders, 175 Mo. 455, 467, 75 S.W. 413; and Clothing Co. v. Steidemann, 120 Mo.App. 519, 526, 97 S.W. 220.]
The first business transaction by the respondent and the first regular meeting of the members of the association, according to the records offered in evidence, was on July 25, 1913, at which time a president, secretary and treasurer were elected, who were also appointed as a committee to draft by-laws governing the club and to present same at the next meeting. The secretary was authorized to purchase such books and records as might be necessary in order to keep a complete record of all business transacted by the club, "and especially to have a complete record of all applications for membership and when passed upon by the proper committee." The following also appears in the record of the first meeting:
The record of the respondent club recites that on August 1, 1913, pursuant to call of the president, the members met and elected nine of their number directors, one of whom was elected vice-president and general manager. The record then recites that, "Upon motion, the manager was authorized to stage any athletic entertainment for the amusement of the members at any time without consulting other directors of the club, and to receive all moneys that might be taken in by the club, out of which funds he is to pay himself a salary of $ 100 per month and defray all expenses incident to the operation of the club." The committee appointed to draft by-laws submitted a draft thereof which was adopted. Three members of the board were appointed as "permanent members of the membership committee."
The record further recites that on August 2, 1913, "Applications for membership to the number of one hundred and forty-six, as shown by the record of members, were reported favorably by the membership committee, and were accepted by the board of directors." This is all of the record of that meeting.
On August 5, 1913, a similar record was made showing that eighty-one applicants were admitted to membership. A similar record states that on August 7, 1913, eighty-two applicants were admitted and that on August 15, 1913 twelve applicants were admitted. On August 22, 1913, applications for membership to the number of twenty-one were voted on by the membership committee but six were rejected because they had not signed the application blank in person; the...
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