State v. Morrow

• Decision Date: 31 October 1857
• Citation: 26 Mo. 131
• Parties: THE STATE, Respondent, v. MORROW, Appellant.^a1
• Court: Missouri Supreme Court

26 Mo. 131

THE STATE, Respondent,

v.MORROW, Appellant.^a1

Supreme Court of Missouri.

October Term, 1857.

1. The act of the general assembly of February 8, 1839 (see Sess. Acts, 1839, p. 311,) entitled “an act to amend ‘an act to incorporate the town of New Franklin,’ approved January 16, 1833,” only repealed so much of the seventh section of the amended act as provided that the board of trustees of New Franklin should have power to raise by lottery a sum of money, not exceeding $15,000, for the construction of a railroad from the bank of the Missouri river to the town of New Franklin. The object of the act of 1839 was, not to overthrow the power to raise money by lottery, but to divert the application of the money, so to be raised, from the construction of a railroad to that of a macadamized road. The trustees of New Franklin were authorized, after the passage of the act of 1839, to contract, as provided for in the third section of the act of February 26, 1835, (Sess. Acts, 1835, p. 56,) with any person to have said lottery drawn in any part of the United States, &c.

2. The contract entered into in 1842 by the board of trustees of New Franklin with Gregory is within the protection of the provision of the constitution of the United States, that no state shall pass laws impairing the obligation of contracts.

Appeal from St. Louis Criminal Court.

David I. Morrow was indicted at the May term, 1855, of the St. Louis Criminal Court, under the “act for the entire abolition of lotteries” (R. C. 1845, p. 723), for unlawfully selling, and unlawfully causing to be sold, lottery tickets. Upon the plea of not guilty the jury found a special verdict, which is as follows:

“The State v. D. I. Morrow. We, the jurors empanelled in this cause, do find, as to the issue joined, that in and by an act of the general assembly of the state of Missouri entitled ‘an act to incorporate the town of New Franklin,’ approved January 16, 1833 (see Sess. Acts, 1833, p. 35), it was enacted as follows: [Here follows the act of incorporation at large. The seventh section thereof is as follows: ‘Sec. 7. Be it further enacted, that the board of trustees as aforesaid shall have power and authority to pass by-laws and ordinances, to prevent and remove nuisances; to restrain or prohibit gambling; provide for licensing, regulating or restraining theatrical or other amusements within said town; to prevent or restrain the meeting of slaves; regulate and establish markets; to raise by lottery a sum of money not exceeding fifteen thousand dollars for the construction of a railroad from the bank of the Missouri river to the town of New Franklin aforesaid; to provide for the construction and completion of said road and the application of said fund to that specific object; to fix by ordinance the tolls that shall be paid for the use of said road after the same shall have been constructed and finished, or for the transportation of goods, wares and merchandise upon said road, and collect the same; to procure by contract the land upon which said road is to be constructed, and to keep the said road in repair; to cause the streets in said town of New Franklin to be cleared and kept in repair by the inhabitants thereof; to impose fines and collect them for a failure to work or perform such duty as may be imposed by ordinance; to enact by-laws for the extinguishment of fire; to regulate the enclosure of lots within said town; and the municipal regulations thereof not contradictory to the laws of the land, as they shall deem necessary.’ Section 10 is as follows: ‘ Be it further enacted, that if it shall hereafter appear to the legislature of the state that the incorporation of the town of New Franklin by this act has not answered the purposes for which it was created, by a misuse of the powers hereby granted, then and in that event the general assembly of the state of Missouri shall have power and authority by law to declare the same void, and all and every power hereby granted to said corporation shall from thenceforth cease and determine.’] And afterwards in and by another act of the general assembly of the state of Missouri, approved February 26, 1835, entitled ‘an act supplementary to 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,'^a1(see Sess. Acts, 1835, p. 56) it was, among other things, enacted as follows: ‘ Be it enacted, &c., as follows: § 1. The third and fourth sections, and the proviso to the second section of the act to which this is a supplement, are repealed. § 2. A majority of the commissioners of said lottery shall at all times be authorized to perform any of the duties of their appointment. § 3. The said commissioners are 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 shall have the same privileges as to the sale of tickets in this state as heretofore, until the amount authorized in said act be raised. § 4. Said commissioners shall take sufficient bond and good security of the person with whom they contract conditioned for the payment of the money and faithful performance of the contract. § 5. The commissioners may authorize the person with whom they contract to sign the tickets and perform all other acts necessary to effect the object of the act alluded to. § 6. The board of trustees of the town of New Franklin may exercise the same powers as are conferred by the second, third, fourth and fifth sections of this act in relation to the authority they now have to raise by lottery a sum of money not exceeding fifteen thousand dollars for the construction of a railroad from the bank of the Missouri river to the town of New Franklin aforesaid. This act to take effect from and after its passage.’

And afterwards, in and by another act of the general assembly of said state, approved February 8th, 1839, entitled an act to amend ‘an act to incorporate the town of New Franklin,’ approved January 16, 1823, (see Sess. Acts, 1839, p. 311,) it was, among other things, enacted as follows: ‘ Be it enacted, &c. § 1. So much of the seventh section of the act to which this is amendatory as provides that the board of trustees of New Franklin shall have power to raise by lottery a sum not exceeding fifteen thousand dollars for the construction of a railroad from the bank of the Missouri river to the town of New Franklin is hereby repealed. § 2. The board of trustees of said town are hereby authorized to apply the funds already raised, or which shall be raised before this act shall take effect, to the construction of a macadamized road instead of a railroad, at their discretion, from the Missouri river to the town of New Franklin. § 3. The power of said board of trustees to raise money by lottery shall cease after the taking effect of this act; provided, that, when the said board of trustees shall have expended and applied the whole amount of funds raised at the time of the taking effect of this act, they shall report to the governor that fact, with the condition of the improvements, how the money has been applied, how far the work has been executed, and how much money, if any, will be required to complete the same; and upon such facts being reported the governor may, by proclamation, authorize the board of trustees to raise by lottery such amount as may be necessary to complete the same; provided that the same shall not exceed the sum authorized to be raised by the act to which this is an amendment. § 4. When such macadamized road shall be completed, said board of trustees shall have all the powers and privileges in relation to the same that are granted to them over the railroad mentioned in the act to which this is amendatory. This act shall take effect from the first day of March next.’

And the jurors aforesaid, upon their oath aforesaid, do further find that the trustees in said last mentioned act named did expend and apply the whole amount of funds raised at the time of the taking effect of said act, and did report to the governor that fact, with the condition of the improvements, how the money had been applied, and how far the work had been executed, and how much money would be required to complete the same, according to the tenor and effect, true intent and meaning of said last mentioned act, which report was made in form aforesaid to the governor of the state of Missouri on the seventeenth day of November, in the year 1840; and thereupon the said governor did, on the 21st day of November, in the year last aforesaid, issue his proclamation in the words and figures following:

‘A proclamation by the governor of the state of Missouri: Whereas the trustees of the town of New Franklin, Howard county, have this day made to me the report required by the third article of the act of the general assembly of the state of Missouri, approved February 8, 1839, entitled ‘an act to amend an act to incorporate the town of New Franklin, approved January 16, 1836:’ Now, therefore, in pursuance of the provisions of said act, I, Lilburn W. Boggs, governor of the state of Missouri, do hereby authorize the board of trustees of said town of New Franklin to raise by lottery the sum of fifteen thousand dollars, which is the amount reported to me by said board as necessary to complete the road contemplated by the act aforesaid. In testimony whereof, I have hereunto set my hand, and cause to be affixed the great seal of the state of Missouri. Done at the city of Jefferson this 17th day of November, in the year 1840; of the independence of the United States the sixty-fifth; and of this state the twenty-first. [Signed] By the governor, Lilburn W. Boggs. November 21st, 1840. James L. Miner, secretary of state.'

And the jurors aforesaid, upon their oath aforesaid, do further find that on the first...