State v. Delmar Jockey Club

• Citation: 98 S.W. 539,200 Mo. 34
• Parties: STATE ex inf. HADLEY, Atty. Gen., v. DELMAR JOCKEY CLUB.
• Decision Date: 22 November 1906
• Court: United States State Supreme Court of Missouri

98 S.W. 539

200 Mo. 34

STATE ex inf. HADLEY, Atty. Gen., v. DELMAR JOCKEY CLUB.

Supreme Court of Missouri.

November 22, 1906.

1. CORPORATIONS — CHARTER — FORFEITURE — ESTOPPEL.

Where a corporation formed to encourage and promote agriculture, the improvement of stock, etc., by giving exhibitions of agricultural products and speed contests, and to establish suitable fair grounds and a race track in the city of St. Louis, where public exhibitions of agricultural products and stock, etc., were to be conducted, paid large sums of money to the state for the use of the state fair under Rev. St. 1899, §§ 7419-7424, licensing pool selling and book-making, and requiring the license fees to be paid to the state fair fund, the acceptance of such payment did not constitute a waiver by the state of the corporation's duty to exercise the part of its franchise providing for the establishment and maintenance of an agricultural fair.

2. PLEADING — GENERAL DENIAL — SPECIAL PLEA—CONFESSION AND AVOIDANCE.

A plea of general denial does not raise an issue where it is followed by a special plea of confession and avoidance.

3. CORPORATIONS — FRANCHISES — NONUSER— FORFEITURE.

Where a corporation was authorized to promote agriculture, establish and maintain suitable fair grounds, and give and conduct races and public exhibitions of agricultural products and stock, but for a long period of time will-fully failed to conduct any agricultural fairs or to use its property except for the maintenance and operation of a race track, there was such a willful nonuser of its corporate franchise as justified a forfeiture of its charter.

In Banc. Information in the nature of quo warranto by the state, on relation of Herbert S. Hadley, Attorney General, against the Delmar Jockey Club. Judgment for relator.

The Attorney General and John Kennish for informant. Bond, Marshall & Bond and C. H. Krum, for respondent.

GRAVES, J.

On July 28, 1905, Herbert S. Hadley, Attorney General, filed in this court his information, ex officio, in the nature of a quo warranto against the respondent corporation, the purpose of which is to divest said corporation of its franchises and forfeit its property to the state. To this information the respondent interposed a demurrer, which matter, being in issue, was submitted to this court and fully disposed of by an opinion by Burgess, J., not yet officially reported, but found in 92 S. W. 185, in which opinion the information is fully set out, and for that reason will not be incorporated herein.

After the disposition of the demurrer by the opinion aforesaid, the respondent filed answer as follows:

"Respondent, Delmar Jockey Club, comes by its attorneys and for its answer to the information of the Attorney General herein, admits that it is a corporation duly organized and incorporated under the laws of the state of Missouri, and denies each and every other allegation in said information alleged or contained. Wherefore respondent prays that it be hence discharged with its costs.

"(2) For its further answer to that portion of the information of the Attorney General herein wherein it is alleged that respondent has failed to exercise certain franchises, claimed to be possessed by it, this respondent states that it has fully carried out and exercised all those provisions in its charter authorizing it to give exhibition of agricultural products and exhibitions of contests of speed and races between horses for the purpose of encouraging and promoting agriculture and the improvement of stock, and has provided suitable fair grounds of the same, in this: that between the 18th day of January, 1901, and the 16th day of June, 1905, in pursuance of the provisions and requirements of section 7419 to 7424, inclusive, Rev. St. Mo. 1899, respondents duly paid large sums of money into the treasury of the state of Missouri, to the credit of the state fair fund, the same being a fund created by section 7424, Rev. St. Mo. 1899, for the development and advancement of the industrial interests of this state under the direction of the State Board of Agriculture, and that all said moneys so paid into said fund was received, used, and appropriated by the state of Missouri for the purpose of holding and giving annual exhibitions of agricultural products and stock of every kind and description at the city of Sedalia, Mo., and that the said sums of money paid by respondent into the treasury of the state of Missouri under the terms of section 7419 to 7424, inclusive, were used and appropriated by the said state of Missouri and by said State Board of Agriculture solely for the maintenance and support of the said Missouri State Fair held annually at Sedalia, Mo., and for the further purpose of providing, constructing, improving and equipping all grounds, stands, and buildings necessary for the holding and giving of said fair. Respondents further state that by exercising and receiving the said sums of money for the above-mentioned purposes the said state of Missouri intended to and did accept the same as full and complete performance and use by respondents of its franchise to give exhibitions of agricultural products and stock, and the said state of Missouri thereby intended to and did waive any other or further exercise of such franchise on the part of respondents. Further answering the allegations of nonuser from June 16, 1905, to the date of the filing of this information, to wit, July 28, 1905, respondent states that the franchise of giving exhibitions of agricultural products and stock is not one which can be exercised continuously and at all times from the beginning to the end of the year, but is one, owing to its peculiar character, which can only be exercised during the harvest season of each year. For these reasons respondent was not required to exercise such franchise between the above-specified dates; but respondent further avers that it has in good faith endeavored at all times to exercise the franchise granted to it by its articles of incorporation in the manner and for the purposes intended by such grant, and that such is its purpose in the future, and respondent intends in every way to comply with and perform according to law all the obligations which it assumed upon the grant of the aforesaid franchises to it by the state of Missouri; and respondent again specifically denies each and every charge, allegation, or assertion of a contrary purpose on its part, contained in the information filed herein. Wherefore respondent prays that it be hence discharged with its costs."

Upon the filing of this answer the Attorney General filed motion for judgment upon the pleadings, and the issues thus raised are the ones now for consideration and judgment by the court. This motion is as follows:

"Comes now Herbert S. Hadley, Attorney General of the state of Missouri, who in this behalf prosecutes for the state, and moves the court for judgment on the return and answer for respondent herein, for the following reasons:

"First. That said return and answer fails to state facts showing any sufficient cause or excuse for, or any legal defense to, the nonuser of respondent's franchises authorizing it to give exhibitions of agricultural products and exhibitions of contests or speed or races between horses for the purpose of encouraging and promoting agriculture and the improvement of stock, and for the establishing and maintaining of suitable fair grounds in the city and county of St. Louis, as set forth and charged in the information herein.

"Second. It appears from the facts stated in said return and answer, and the second count thereof, that respondent is guilty of the acts of misuser and abuser of its franchises charged in the information herein filed, in this, to wit, that respondent engaged in the business of book making and pool selling, registration of bets, and the acceptance of bets in violation of the laws of this state; wherefore informant prays that final judgment of ouster be rendered against the respondent as prayed for in the information in this case."

As a further part of the history of the case it might be said that the court sustained the motion for judgment and entered judgment of ouster, and levied a fine of $5,000, but filed no opinion. This judgment of ouster was for both misuser and nonuser, and upon motion for rehearing was set aside, and said cause taken as submitted on the motion as above stated, and then assigned for opinion. Points respectively urged by contending counsel will be duly noted in the course of our remarks.

1. The first question is to determine the effect of respondent's answer. There is first a general denial. This, without further pleading, would raise the issue both as to the misuser and nonuser charged in the information. As to nonuser, the general denial first pleaded is followed by a plea, hereinabove fully set out, which amounts to a plea of confession and avoidance. This answer admits in effect that it was the duty of the corporation to maintain fair grounds and hold an agricultural fair "in the city and county of St. Louis" as provided by its charter, the language of which charter is as follows: "The purposes for which this corporation is formed are to encourage and promote agriculture and the improvement of stock, particularly running, trotting and pacing horses, by giving exhibitions of agricultural products and exhibitions of contests of speed and races between horses, for premiums, purses and other awards and otherwise; to establish and maintain suitable fair grounds and a race track in the city and county of St. Louis with necessary buildings, erections and improvements, and to give or conduct on said grounds and race track, public exhibitions of agricultural products and stock, and of speed, or races, between horses, for premiums, purses or other awards made up from fees or otherwise, and to charge the public for admission thereto and to said grounds and track; to engage in pool selling,...