State v. Frost

• Decision Date: 06 January 1900
• Citation: 54 S.W. 986,103 Tenn. 685
• Parties: STATE v. FROST et al.
• Court: Tennessee Supreme Court

54 S.W. 986

103 Tenn. 685

STATE v. FROST et al.

Supreme Court of Tennessee.

January 6, 1900

Appeal from circuit court, Houston county; A. H. Munford, Judge.

H. C Frost and J. W. Robertson were convicted for unlawfully selling intoxicating liquors, and they appeal. Affirmed.

J. C Bradford and J. L. Frazee, for appellants.

G. W Pickle, for the State.

WILKES J.

The defendants were prosecuted for unlawfully selling liquors. They were tried in the court below before the judge, a jury being waived, and were each fined $50 and costs, and were each sentenced to 60 days' confinement in the county workhouse; and each has appealed, and through counsel has assigned errors.

There are three counts in the presentment, --the first charging the sales to have been made within four miles of a school house the second charging the sales to have been made within four miles of an incorporated institution of learning, and the third charging that the sales were in violation of Acts 1899, c. 221. The finding of the trial judge was that the defendants were guilty of unlawfully selling intoxicating liquors as a beverage within four miles of a school house. The proof showing sales of such liquors within four miles of a school house is abundant, and is not denied, but is conceded, and excused or justified on the ground that they were within the limits of an incorporated town, and were not, therefore, unlawful. It is conceded that the sales are contrary to the provisions of Acts 1899, c. 221; but it is insisted that this act is unconstitutional and invalid, and hence, the incorporation being legal, the sale is permitted and lawful under the laws existing prior to the passage of said act. The state insists that the corporation is a sham and device to evade the operation of the law usually called the "Four-Mile Law," which prohibits the sale of intoxicating liquors within four miles of an institution of learning; that the requirements of the statute as to the formation of corporations have not been complied with by it; and that the act is constitutional and valid.

The statutes provide that any part of a county not within any municipality may be incorporated by any number of legal voters over 14, being freeholders, and residing within the territory to be incorporated. Shannon's Code, §§ 1881, 1882. And subsequent provisions of the same compilation give in detail the proceedings that are required to form the corporation, and provide that unless they are complied with the incorporation shall be void. It is insisted that the record shows a complete compliance with all the requirements of the statutes relating to the obtaining of charters. These requirements are numerous. They are set out with much of detail in Shannon's Code, §§ 1881-1902, inclusive, and are epitomized in the case of Town of Woodbury v. Brown, 101 Tenn. 707, 50 S.W. 743. In that case it is said that all these requirements must be strictly and literally complied with, to render the charter valid. We cannot now take the time to enumerate them all. They are crude, as a system, and somewhat obscure. What purports to be the charter is set out in the record, in the cross-examination of the witness Cooley. It shows a somewhat informal compliance with many of the requirements. We do not find in the record any application for the charter, as section 1882 requires. We do not find any evidence of the poll book required in section 1883, nor the verification prescribed in section 1884. We do not find any evidence of the notice prescribed in section 1887. Some of these matters are certified to by the county court clerk. We do not find any evidence that the application or charter was ever registered, as required by section 1897, in the county of Houston, where the corporation is to have its situs. It is true that Cooley, the register of the county, when cross-examined, stated that he produced the charter, and set it out in haec verba, but he does not state that it was ever registered. This registration is essential to the validity of the corporation, and without it the corporation is invalid. Shannon's Code, §§ 1897-1899; Town of Woodbury v. Brown, 101 Tenn. 707, 50 S.W. 743; Ruohs v. Athens, 91 Tenn. 25, 18 S.W. 400. We cannot presume, from the mere fact recited in the record, that the register of the county presented the charter, that it was registered. Besides, the fact that the charter, on being set out, has no certificate of registration, negatives any such presumption, if it could arise.

It is said, also, that the corporation is not made in good faith but is a mere sham to evade the laws relating to the sale of intoxicating liquors. During the pendency of the proceedings for obtaining the charter, and when they had so far progressed as that an election was about to be held, a bill was filed in chancery to enjoin further proceedings upon the grounds above stated. The case so far progressed that this court affirmed the decree of the court of chancery appeals (53 S.W. 318), which held that the incorporation could not be enjoined upon the ground of fraudulent purpose, but that, if the requisite steps were taken as prescribed by statute, the charter could be obtained, and the incorporation had. That case, however, turned upon the effect of the fraudulent purpose to evade the law, and not upon any defects in the steps taken to comply with the statutory requirements; and the defect now pointed out did not then exist, as the proceedings had not reached that stage of the incorporating process. This being so, the prior adjudication in that case is not conclusive of the questions raised in this. It was developed in that case, and in the evidence in the present case, that the town of Erin, containing 1,200 or 1,500 people, had surrendered its charter in order to prevent the sale of intoxicating liquors near its schools, in which the defendant had unlawfully and persistently engaged, and thereupon the defendant Frost, with others, had surveyed a plat of some five or six acres of ground contiguous to Erin, and proceeded to have the same incorporated. The new town was to be situated about halfway between Erin and Arlington, and was to be called "Midway." There were only 15 voters within the limits of the proposed corporation, and its entire population was less than 100. It had no business house in it except the saloon of the defendant Frost, which was erected immediately upon the incorporation, and the sale of liquors began before any corporate acts were done thereunder. It appears that ...