The State ex inf. Hadley v. Delmar Jockey Club, a Corporation
| Decision Date | 18 December 1906 |
| Citation | 92 S.W. 185,200 Mo. 34 |
| Parties | THE STATE ex inf. HADLEY, Attorney-General, v. DELMAR JOCKEY CLUB, a Corporation |
| Court | Missouri Supreme Court |
Writ of ouster awarded.
Chester H. Krum and Bond & Bond for respondent on demurrer.
(1) A corporation cannot commit a felony. 1. The portion of the information which relates to acts of book-making and registration of bets, to acts of permission to others to make books or register bets and to keeping and using devices for recording bets -- all done after June 16, 1905 -- does not state violations of law by the defendant, because the act of March 21, 1905, prohibiting book-making and pool-selling denounces a felony. Laws 1905, p. 131; State v Melton, 117 Mo. 618; State v. Clayton, 100 Mo 516; State ex rel. v. Foster, 187 Mo. 590. 2. A corporation may commit an offense which involves merely the consequences of a tort, but it cannot commit a felony, or an offense involving the element of malice or criminal intent. Com. v. New Bedford Bridge, 2 Gray (Mass.) 339. (2) Upon the theory that, when book-making was lawful under statutory conditions, the defendant violated the statute, the information fails to show infraction of the law. 1. That portion which relates to general acts of book-making done between January 18, 1901, and June 16, 1905, does not show violation of the law, because, non constat, the defendant was a licensed book-maker. R. S. 1899, sec. 7419. There is no averment that the defendant was not a licensed book-maker. If it was licensed, its acts were lawful. 2. That portion which relates to sales of pools to and accepting bets from minors between January 17, 1901, and June 16, 1905, does not state violations of law, because it is not alleged that the defendant was a licensed book-maker. R. S. 1899, sec. 7422. None, other than a licensed book-maker, is prohibited from dealing with minors. In the absence of an averment that the defendant was a licensed book-maker, the information does not state violations of the statute. This is obvious from an inspection of the section. (3) The information does not state facts upon which a judgment of ouster can lawfully be based. 1. To violate a criminal statute is not the usurpation, or misuser, of a franchise. Quo warranto will not lie to punish mere infraction of a criminal statute. Atty.-Gen. v Salem, 100 Mass. 138. 2. In the absence of statute quo warranto will not lie to test the legality of acts of a corporation not amounting to the usurpation of a franchise. State ex rel. v. Gravel Road Co., 187 Mo. 439; State ex rel. v. Hannibal, etc., Co., 37 Mo.App. 504; State v. Railroad, 50 Ohio St. 239; Comm. v. Bala, etc., Co., 153 Pa. St. 47; State v. Thresher Co., 40 Minn. 213. (4) The information proceeds upon an hypothesis repugnant to the law of the land. 1. The corporation cannot commit a felony denounced by the statute. Here the acts complained of were the criminal acts of certain "officers, agents, employees and representatives," who were not authorized to act for the corporation. There is no averment that they were so authorized. 2. The information thus proceeds against the corporation for the unlawful acts of unauthorized persons, who are not even named or designated. 3. The proceeding by quo warranto, therefore, is to be turned into a criminal prosecution of certain undesignated individuals, without indictment, or verified information, without notice to those involved, and without jury, and upon the determination of their guilt, and upon inquiry not addressed against them, the corporation is to be ousted of its franchise. There is and can be no warrant of law for such a proceeding. State v. Carneal, 10 Ark. 162; State v. Hixon, 27 Ark. 398; State v. Wilson, 30 Kan. 661; Lord Bruce's Case, 2 Strange 819.
Herbert S. Hadley, Attorney-General, and John Kennish and N. T. Gentry, Assistant Attorneys-General, for informant on demurrer.
(1) A proceeding by information in the nature of a quo warranto, filed in this court by the Attorney-General, is a civil suit, and the sufficiency of such information as a pleading is tested by the rules of the common law and not by the code of civil procedure. State ex inf. v. Beechner, 160 Mo. 86; State ex. inf. v. Vallins, 140 Mo. 523; State ex. inf. v. Equitable L. & I. Co., 142 Mo. 335; State v. Standard Oil Co., 61 Neb. 33; State ex rel. v. Reed, 11 Colo. 138; 2 Spelling on Inj. & Extra. Remedies, sec. 1766; 17 Ency. Pl. & Prac., pp. 466-7. (2) Misuser or nonuser of franchises by a corporation is a sufficient basis for a judgment of ouster. 5 Thomp. on Corp., sec. 6609; Turrett v. Taylor, 9 Cranch 51; State ex. inf. v. Equitable L. & I. Co., 142 Mo. 340; State ex. inf. v. Lincoln Trust Co., 144 Mo. 562; 10 Cyc., 1280; 2 Spelling, Ex. Rlf., sec. 1513; High's Extra. Leg. Rem., secs. 648-9. (3) An information may set up as many different causes of forfeiture as the Attorney-General may think proper, and it is not demurrable for that reason. State v. Railroad, 45 Wis. 585; State v. Manhattan Co., 9 Wend. (N. Y.) 351; State v. Railroad, 117 Cal. 604. (4) The acts set forth in the information and referred to in respondent's first ground of demurrer, were violations of the laws of this State, unless the person doing such acts had first obtained a license so to do. Sec. 7419, R. S. 1899. A corporation could not be so licensed for the reason that the statute authorizes the issue of such license only to persons of good reputation and good character, and respondent not being a person, could not obtain such license. Sec. 7420, R. S. 1899. (5) It was not necessary to allege that respondent was licensed or not licensed in order to charge a violation of law in selling pools, or accepting and registering bets from minors. As it was a violation of law in the doing of the acts charged against respondent, whether in the case of minors or adults, without a license, and as respondent could not legally have procured a license for the doing of such acts, it was, therefore, unnecessary to allege that it had such license. Secs. 7419, 7420, R. S. 1899. (6) The fact that the acts charged to have been committed by respondent, and made the basis of the forfeiture demanded, are made a felony by statute, in no manner affects the right of the State in the premises, nor exempts the respondent from liability. People v. Society, 7 Lans. (N. Y.) 504; Bank v. State, 1 Blackf. (Ind.) 267; 5 Thomp. on Corp., pp. 6615, 6616. (7) The relief prayed for is not a test of the sufficiency in law of the information. State ex. inf. v. Armour Packing Co., 173 Mo. 392. The object of this suit is clearly not to compel the observance of a criminal statute, nor to punish the officers of respondent for the violation of such statute, but to have the charter of the respondent forfeited for an usurpation, misuser and non-user of franchises in violation of the laws of this State. (8) It was not necessary to allege in the information that the stockholders of respondent directed or authorized the doing of the acts charged. In a proceeding by the State to forfeit the charter of a corporation for misuser of the franchises the misprisions of the directors and principal officers are the misprisions of the corporation itself, and this is true even where the directors of the corporation wrongfully delegated their discretionary power to subordinate agents. 5 Thompson on Corps., secs. 6615, 6621, 6622; Angell & Ames on Corps., sec. 310; 10 Cyc. 1285; State ex inf. v. Ins. Co., 152 Mo. 1; Bank v. State, 1 Blackf. (Ind.) 267. (9) The information does not seek to deprive the stockholders of respondent of their property without due process of law. A proceeding by information, in the nature of a quo warranto, and praying judgment of forfeiture against the corporation itself, or judgment of ouster of a particular franchise misused or nonused, is a proceeding which applies alike to all private corporations. Due process of law means notice, a day in court and an opportunity to defend. Delaney v. Police Court, 167 Mo. 667; Hunt v. Searcy, 167 Mo. 158. If all persons brought under the influence of a law are treated alike, under the same conditions, it is not open to the objection that it denies to them the equal protection of the law. Railroad v. Mackey, 127 U.S. 209; Railroad v. Harris, 127 U.S. 210; Missouri v. Lewis (Bowman case), 101 U.S. 22; Turnpike v. Sanford, 163 U.S. 578; Cotting v. K. C. Stockyards Co., 79 F. 679. (10) The act of the General Assembly, entitled, "An act prohibiting book-making and pool-selling, and prescribing a penalty therefor," approved March 21, 1905, is not open to the constitutional objection that it contains two distinct subjects which have no relation, and are not germane. The subject-matter of this statute is betting on horse races by means of book-making and pool-selling on such races, and both acts are clearly germane, and a part of the same subject. State v. Mead, 71 Mo. 268; State v. Bixman, 162 Mo. 1; Lynch v. Murphy, 119 Mo. 163; State v. Miller, 100 Mo. 439; Ewing v. Hoblitzelle, 85 Mo. 64; St. Louis v. Weitzel, 130 Mo. 614.
Hearing on Demurrer: BURGESS, J. Brace, C. J., absent. Hearing on Coming in of Answer: GRAVES, J. Valliant and Lamm, JJ., concur in toto. Fox, J., concurs in the second paragraph or proposition thereof, and expresses no opinion as to the first paragraph or proposition, but dissents from the third paragraph; Brace, C. J., and Gantt, and Burgess, JJ., concur in the opinion except as to the third paragraph thereof.
OPINIONIn Banc
Quo Warranto.
HEARING ON DEMURRER.
This is an original proceeding begun in this court by the Attorney-General by filing herein, ex officio , an information in the nature of a quo warranto, against the defendant corporation, the purpose of which is to oust it of...
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