State v. Miller

• Citation: 50 Mo. 129
• Parties: THE STATE OF MISSOURI, Respondent, v. GEORGE MILLER, Appellant.
• Decision Date: 31 March 1872
• Court: United States State Supreme Court of Missouri

50 Mo. 129

THE STATE OF MISSOURI, Respondent,

v.GEORGE MILLER, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Court of Criminal Correction.

For the particulars of the contract with Gregory referred to in the decision, see State v. Morrow, 26 Mo. 135.

R. E. Rombauer, for appellant.

The interpretation of the law, and the contract under the law, by repeated adjudications of the court of last resort in this State, furnished a rule of property on which the defendant in this case had every reason to rely. (Ohio Life Ins. & Trust Co. v. Debolt, 16 How. 432; Gelpcke v. City of Dubuque, 1 Wall. 206; see also Dodge v. Woolsey, 18 How. 331, 360.)

This case falls within the principle of the case of The State v. Hawthorn, 9 Mo. 389. The terms employed in transferring the lottery of New Franklin are the same as those used in the contract in the case of Hawthorn just mentioned, and no point was made on them in that case. The judgment there stands on the assumption that the contract was a legal one. (State v. Morrow, 26 Mo. 142.)

The object of the contract made between the town of New Franklin and Walter Gregory, was to raise $15,000 to the trustees of the town and not to Gray and Eichholz, or Gregory. For that reason it is provided that all moneys paid by Gray and Eichholz to the trustees (and not all money raised by them by the lottery, above expenses) shall be credited to Gregory as part of the $15,000 to be by him paid to the trustees. For that reason it is provided that Gregory was to pay toward the same amount (the amount of $15,000) $250 on the 1st day of January, 1843, $250 on the 1st day of June, 1843, and so on, paying the said sum of $250 semi-annually until the aforesaid sum of $15,000 is fully raised to the said parties of the first part (the trustees of the town of New Franklin). Can counsel for the State point out any mode by which, under this clause, the sum of $15,000 could have been raised to the trustees of New Franklin except by continuing the semi-annual payments of $250 until their aggregate, with the amount previously received from Gray and Eichholz, amounted to the sum of $15,000? If they can, they certainly have not attempted to do so.

II. The Court of Criminal Correction holds that the franchise ceases when the proceeds, after deducting expenses, amount to the sum authorized to be raised. This is simply a decision that Gregory was not acting under a contract, but was a mere agent of the New Franklin board of trustees, and practically it overrules the two cases decided by this court.

III. The only difference between the present case and the two other cases is that in the latter an act of the Legislature prohibited the sale of lotteries, and now that prohibition is made in the new State constitution. The convention could no more pass a law or constitutional provision impairing the obligation of contracts than the Legislature. (Cummings v. The State of Missouri, 4 Wall. 277; French v. Tumlin, 10. Am. Law Reg., N. S., 641; Cohen v. Virginia, 6 Wheat. 414; McNeely v. Gregory, 10 Am. Law Reg., N. S., 647, note.)

Krum & Patrick, with John M. Krum, for respondent.

1. The right of the trustees of New Franklin to raise money by lottery was limited by law, and the governor's proclamation to a right to raise by lottery a sum not exceeding $15,000.

2. When making the contract of 1842, they (the trustees) could assign to Gregory no greater right to raise money by lottery than they themselves possessed.

3. By the terms of the contract of 1842, said trustees do not profess, nor did they intend to convey, any other power to raise money by lottery than they themselves possessed.

4. Therefore, Gregory took, under said contract, only a power to raise the sum of $15,000.

5. As that sum, after deducting all costs, is admitted to have been raised, the lottery power under said contract, acts and proclamation is exhausted by its own limitation, viz: by the raising of the amount authorized to be raised by said power.

6. But if it could be held, from a legal and just construction of the terms of the contract of 1842, that the said trustees intended to violate their duty and convey to Gregory a different right to raise money by lottery from what they themselves possessed, the contract must stand as wholly void, and no rights can be taken under it.

7. The act of 1855 could not validate the contract, because to enable it to do so would require that it should be given a retrospective operation, and to give it such operation would make it violate the constitution of the State.

8. Therefore, if said contract was void in 1842, it is void now.

9. In the event that the New Franklin lottery grant was exhausted prior to the offense specified in this information, the defendant stands before the general law against lotteries in the same position as any vendor of lottery tickets who did not set up a pretense of any immunity.

10. In the event that the contract of 1842 was void, and was not validated by the law of 1855, the defendant occupies the position of any other violator of law who sells lottery tickets in this State.

WAGNER, Judge, delivered the opinion of the court.

The appellant was convicted in the Court of Criminal Correction for...