State v. Zachritz

• Decision Date: 03 December 1901
• Citation: 65 S.W. 999,166 Mo. 307
• Court: Missouri Supreme Court
• Parties: STATE ex rel. DELMAR JOCKEY CLUB et al. v. ZACHRITZ, Judge.<SMALL><SUP>1</SUP></SMALL>

65 S.W. 999

166 Mo. 307

STATE ex rel. DELMAR JOCKEY CLUB et al. v. ZACHRITZ, Judge.¹

Supreme Court of Missouri.

December 3, 1901.

INJUNCTION—CRIMINAL ACTS — FRAUDULENT LICENSE—COURTS—JURISDICTION—PARTIES—WRIT OF PROHIBITION.

1. Where a license to make books, sell pools, and register bets on horse races, under Rev. St. 1899, c. 105, art. 2, which makes the doing of such acts without such license criminal, is procured by fraud, equity has jurisdiction to enjoin such license holders from making books, selling pools, and registering bets.

2. The jurisdiction of a city circuit court to grant such injunction is not defeated because the pool selling, bookmaking, and registration of bets is carried on at a race track which is partially without the limits of the city, as, the proceedings being solely equitable, jurisdiction of the person is sufficient to give jurisdiction of the subject-matter.

3. Under Rev. St. 1899, § 4943, authorizing the attorney general to institute in the name of the state all suits at law and in equity necessary to protect the interests of the state, the attorney general is authorized to maintain such injunction suit in the name of the state, without regard to the question whether the state has any pecuniary interest in the suit.

4. The objection that the state is not the proper party to maintain such suit not being jurisdictional, will not authorize the supreme court to grant a writ prohibiting the circuit court from proceeding further in the suit, as the question is to be determined in the court where the action is pending.

Gantt, J., dissenting.

In banc. Original petition for a writ of prohibition by the state, on the relation of the Delmar Jockey Club and others, against William Zachritz, judge, to prevent further proceedings in an injunction suit to restrain the relators from selling pools, etc., under a license alleged to have been procured by fraud. Writ denied.

John H. Overall, Martin L. Clardy, and Boyle, Priest & Lehmann, for relators. E. C. Crow, Atty. Gen., for respondent.

BRACE, J.

This is an original proceeding by petition for a writ of prohibition against the defendant, one of the judges of the St. Louis city circuit court, prohibiting him, as judge of said court, from the further exercise of any jurisdiction in the case of the state of Missouri ex rel. Edward C. Crow, attorney general, against the relators. The return of the defendant to the preliminary order is a demurrer to the petition, and a motion for judgment thereon denying the writ, on the ground that it therein appears that the said circuit court had jurisdiction of the persons and of the subject-matter of said suit, and it does not appear that said court has exceeded its jurisdiction, or that it intends to do so. It appears from the petition that on the 27th day of August, A. D. 1901, suit was instituted in the St. Louis city circuit court in the name of the state, by the attorney general, against the relators, by petition, in the nature of a bill in equity, the gravamen of the complaint in which was, in substance, that the defendant, on the 6th day of August, 1901, wrongfully, fraudulently, and surreptitiously obtained from one Stephen C. Rodgers 15 licenses numbered from 446 to 460, inclusive, and signed by Albert O. Allen, state auditor, authorizing the defendants, respectively, therein named to "make books," "sell pools," and "register bets," under the provisions of article 2, c. 105, Rev. St. 1899, on races to be run on Delmar race track on 47 days therein specified between said date and the 28th of September, 1901, inclusive; that said licenses were issued to said defendants without authority of the said auditor; that defendants, by virtue of said fraudulent licenses, and under color of same, are engaged in making books, selling pools, and registering bets on the Delmar race track, which is partly in the city of St. Louis and partly in the county of St. Louis, and threaten to continue so doing until said last-mentioned date; wherefore plaintiff prayed that the defendants be required to bring said fraudulent licenses into court for cancellation, and that in the meantime they be enjoined from making books, selling pools, and making bets on said race track by virtue and under color of authority of said licenses, and that such injunction be made perpetual on final hearing. In answer to a rule to show cause why a temporary injunction should not be granted on said bill, the defendants therein, on August 30, 1901, appeared, and filed a demurrer thereto, which, having been argued by counsel for the respective parties, was taken under advisement until September 3, 1901, when, without passing on the demurrer, the defendant therein, judge of said court, granted a temporary injunction restraining the defendants therein (relators herein) until further order "from making books, selling pools, registering bets, and making wagers on the Delmar race track, located in the city and county of St. Louis, by virtue and authority and under color of certain alleged pretended licenses dated August 6,...