State v. Hawthorn

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: State v. Hawthorn, 9 Mo. 389 (Mo. 1845)
• Decision Date: 31 October 1845
• Parties: STATE OF MISSOURI v. JACOB HAWTHORN.

9 Mo. 389

STATE OF MISSOURI

v.JACOB HAWTHORN.

Supreme Court of Missouri.

October Term, 1845.

ERROR TO ST. LOUIS CRIMINAL COURT.

STRINGFELLOW, Attorney-General, for The State. The State elies on the following points and authorities, to reverse the decision of the Criminal Court: 1st. It was in the power of the Legislature to repeal the act granting to the managers the power to raise money by lottery, so long as that power remained in their hands. See Freleigh v. The State, 8 Mo. R. 606; State of Delaware v. Phalen & Paine, 3 Harrington R. 452. 2nd. The amendatory act did not create any contract, or authorize the commissioners to make any contract of a character different in its obligations from that authorized by the act establishing the lottery. The latter authorized the appointment of a manager, with power to sell tickets, and draw the lottery in this State. The former to draw the lottery in any part of the United States. If the manager in the one case could not be deprived of his rights, neither could he in the other. 3rd. The defendant, Hawthorn, can only be regarded as the agent of the managers; they had no right to sell the lottery, but only to appoint managers to draw the lottery. So long as they had not or conld not sell their powers, they could be taken away by the Legislature. State of Delaware v. Phalen & Paine, above referred to; Statutes of Delaware, 2827, p. 131, entitled: “An act authorizing a Lottery,” &c.

GEYER, for Defendant. In support of the judgment of the Criminal Court, the defendant in error submits the following propositions: 1. The act of the 9th February, 1833, is a contract which could not be impaired by the act of a subsequent Legislature. It is a grant to the commissioners, a quasi corporation, in trust for the use of the Sisters of Charity. It is not a mere naked power, revocable at pleasure, but it is at least a power coupled with an interest, and as such irrevocable. 2. The act of February, 1835, was the creation of a new power,--a power to make contracts, which power being executed, by the making a contract authorized by it--that contract is obligatory upon the State, and the commissioners as well as the other contracting party--and could not be constitutionally altered, or impaired. 3. The clause in the contract, which declares that Gregory shall not be bound, after any interference of a competent power to prevent its execution, can make no difference. It confers no power on the Legislature to annul it--and the question of power must depend on the authority of the Legislature, aside of the contract; besides, the exemption depends upon the competency of the interfering power and not upon the mere exertion of an assumed power, without regard to its constitutionality. 3. The act of Assembly under which the defendant was indicted, passed 19th December, 1842, must either be construed not to include lotteries to be drawn under contracts authorized by the State, or if construed to include these, it is unconstitutional and void as to the lottery for the benefit of thd St. Louis Hospital,--drawn or to be drawn in pursuance of the previous acts of Assembly,--and the contracts made in conformity thereto. State of Delaware v. Phalen & Paine, 3 Harrington R. 452.

NAPTON, J.

The defendant, Hawthorn, was indicted by the grand jury of St. Louis county, for selling lottery tickets, in the lottery for the benefit of the St. Louis Hospital. Upon a plea of not guilty, and a trial had thereon, the jury found a special verdict, upon which the judgment of the court was for the defendant. The facts found by the special verdict were as follows: On the 9th February, 1833, the Legislature passed an act, entitled, “An act to authorize a sum of money to be raised by Lottery, to be given to the Sisters of Charity, in the city of St. Louis, for the use of the Hospital, over which they now, or may hereafter have the control and management.” The first section of this act, appointed certain persons named therein as commissioners, and authorized them, by a lottery or lotteries, to raise the sum of ten thousand dollars, to be paid to the Sisters of Charity, for the use of the hospital. By the second section, the commissioners were authorized to appoint a manager, to sell the tickets and draw the lottery in any part of this State, provided the scheme or schemes were first approved by the commissioners. The third section required the manager to execute his bond to the County Court, with such security as the commissioners might require, in the sum of fifteen thousand dollars, conditioned, that he would pay all prizes, payment of which should be demanded within twelve months after the drawing, and pay over to the commissioners, all sums in his hands, after the payment of prizes, commissions and other necessary expenses. The tickets were required to be signed by the manager, and countersigned by one of the commissioners.

On the 26th February, 1835, a supplementary act was passed. By this act the third and fourth sections, and the proviso to the second section of the former act were repealed, and the commissioners were authorized “to contract with any person to have said lottery drawn in any part of the United States, on such terms as they shall consider most advantageous,” and they were allowed “the same privileges as to the sale of tickets in this State as heretofore, until the amount authorized in said act be raised.” The commissioners were also required to take bond and security of the person with whom they contracted, conditioned for the payment of the money, and the faithful performance of the contract.

On the 28th December, 1835, an agreement was made between the commissioners on the one part, and Dudley S. Gregory, on the other part, signed and sealed by all the parties thereto. This agreement after reciting the acts of the Legislature above referred to, and that the commissioners had agreed to dispose of said right of drawing schemes of a lottery or lotteries, for the purpose of raising the sum of money authorized by the act, proceeds to state, that the commissioners in consideration of two and a half per cent. of the sales of tickets in this State, agreed to sell, dispose, assign, transfer and set over to, and appoint the said Dudley S. Gregory, sole manager and conductor of said lottery, and transfer to him the sole and exclusive right to draw such scheme or schemes, with the privilege as to the sale of tickets, without the payment of any tax, by virtue of the two acts above cited. The commissioners further transfer to said Gregory, the right to decide the fate of the tickets, by the numbers which may be drawn in any designated class of lotteries, authorized by the laws of Virginia, and under the management of said Gregory. The said Gregory agreed to assume the entire management of the lottery, to pay the two and a half per cent. upon the amount of sales made in this State, to pay all expenses, costs and charges, attending the management of said lottery, and sustain all risks and losses, and pay all prizes drawn, after deducting fifteen per cent. The said Dudley was to give bond and security, in the penalty of thirty thousand dollars, for the performance of every duty required by this contract. The said Gregory also reserved to himself the privilege of abandoning the contract, upon giving sixty days' notice, and paying the money due up to the time of abandonment, and was not to be bound by this agreement, in the event of such interference by the Legislature, judiciary, or other competent power, so that the lottery business could not be conducted, in which case payment was to be made only up to the time of such interference. The right of assigning his contract to any other person was also stipulated for.

On the 23rd August, 1841, Dudley S....