State ex rel. Attorney General v. Miller

Bakewell, J.,

dissenting.

This is an information in the nature of a quo warranto, filed by the Attorney General in virtue of his office, by which the appellants (respondents below) are called xxpoix to show by what warrant of law they exercise the franchise or privilege of drawing a lottery in the State of Missouri. The information recites several acts of the Legislature, and contracts, or alleged contracts, by which the alleged franchise is claimed by appellants to have been granted, conveyed, and exteixded ; and sets forth that appellants maintain fifty-two offices in St. Louis where lottery tickets are sold and drawings made, by which means appellants receive large profits, said to be $1,000 a day.

The information further sets forth that the said lottery franchise was graixted for the purpose' of building a plank road from the town of New Franklin to the Missouri river, for the relief of the town; that the moneys arising from the lottery franchise have not been appropriated for the charitable purpose for which they were designed; that no such road exists ; and that, since 1862, the trustees of the town have misappropriated the funds derived from said lottery. It is claimed that by reason of such misuser and non-user the appellants have forfeited all pretended right to run the lottery.

It is further charged that the contract of 1849, by which it was attempted to extend the time during which the lot*72tery might be drawn, is illegal, and not validated by the act of 1855 relating thereto.

Appellants, in their answer, admit that they claim the franchise granted to the town of New Franldin as alleged, and are now exercising said lottery franchise by virtue of the act of Assembly and agreements set forth in the information, and also by virtue of other legislative enactments referred to in the answer, and also by conveyance from the grantees of the contracts mentioned in the information. They say that they purchased the right to run the lottery since the passage of the act of December 6, 1855, and under the belief that the modification made in 1849 of the contract of June 1, 1842, was by said act made valid and binding; and they plead the act as part of their title. They say that they have complied with the contract of 1842, as modified by that of 1849, but have no knowledge as to how the trustees of New Franklin have applied the funds •received from appellants under that contract. They deny that the profits of the lottery are as great as charged.

Judgment of ouster was rendered by the Circuit Court, and from that judgment appeal is taken to this court.

It appears from the evidence and admissions of record in this case that, in 1833 (2 Terr. Laws, 327), the General Assembly granted the charter for a lottery for the benefit of the hospital of the Sisters of Charity of St. Louis, to raise thereby $10,000, through commissioners named for that purpose; and at the same session the Legislature incorporated the town of New Franldin, and in the act of incorporation created a board of trustees to have charge of the municipal affairs of the town. These trustees were, by this act, authorized to raise $15,000, by lottery, to build a railroad from the Missouri river to the town. This was an act of charity — the old town having been washed away by floods, and the inhabitants being compelled to retire to the bluffs about a mile and a half off. In 1835 an amendatory act was passed, authorizing severally the commissioners of the *73hospital lottery, and the trustees of the town of New Franklin, to contract with any person or persons to have ¡said lotteries drawn in any part of the United States, and on such terms as they shall consider most advantageous. In 1839 another amendatory act was passed relating to the New Franklin grant' alone, by which the governor was ¡authorized to make inquiry as to how much money had been received, and how much it would take to complete the road, ¡and to issue his proclamation authorizing the trustees of New Franklin to raise such sum, not to exceed $15,000, by lottery; the road was also hereby changed to a macadamized road instead of a railroad. On November 17, 1840, •Governor Boggs issued his proclamation according to law, ¡and a contract was made with Gray and Eicholtz, who, after paying over some money under their contract, shortly aban■doned it, and, on June 1, 1842, the trustees of New Franklin made a contract with Walter Gregory, by which they sold him the lottery and all right to control the same; $1,000 heretofore paid by Gray and Eicholtz, and $100 from .Hawthorne, were to be considered as payments, and the balance of the original $15,000 to be paid in semi-annual installments of $250 each, beginning January 1, 1843. (The full payment of $15,000 would, therefore, be completed •on July 1, 1870.) Gregory is to assume all risks and pay all prizes. If installments are not paid, the contract may be forfeited on forty days’ notice. The parties are not to be bound by the agreement in case of legislative, judicial, •or other interference, so that Gregory cannot conduct the lottery; and he has the right to assign or abandon the contract on ninety days’ notice to the trustees. This contract •and sale was passed upon by the Supreme Court, in 1845, at the October term, and again, in 1848 (State v. Hawthorne, 9 Mo. 390 ; State v. Morrow, 12 Mo. 279), in passing upon the contract for the hospital lottery, declared to be essentially the same (State v. Miller, 50 Mo. 132), and it was decided that the commissioners were authorized to sell the *74lottery, that the sale to Gregory was valid, and that any act of the Legislature prohibiting the sale of lottery tickets-in this State would be void as to the vendee, Gregory, and his legal representatives, and in no way impair his or their rights acquired by said sale.

In April, 1849, the trustees of New Franklin and Walter Gregory agreed upon a modification of the contract of 1842 as to the times of payment. But for this modification, in view of the legislation on that subject in this State, there-can be no question that all lotteries have been illegal since-1870. The question to be decided in this case is whether,, in view of the acts of the Legislature in regard to lotteries,, and the constitutional prohibition of them first adopted in 1865, the alleged contract of 1849 can be upheld. If it is-valid, the Missouri lottery cannot be abolished in this State, without the consent of its proprietors, until 1877 ; if this-contract is void, its drawings have been illegal since 1870.

I have considered the questions of law and fact involved-in this case with all the care of which I am capable, fully assenting to the dictum of Judge Wagner, in State v. Miller, 50 Mo. 133, that “the continuance of a lottery is doubtless an evil, but its abolishment by throwing down the-legal barriers which have been built up for the protection of the citizen and his property would be a still greater evil.”

It has been urged upon the court that a supposed “ public; policy” requires that the laws of property and.individual rights should be made to bend in this. As a judge, I energetically repudiate such an idea. Public policy is represented to me only by the laws, which I sit to interpret, and not to make. The suggestion, “to do a great right, do a little wrong,” is an evil one, and as contrary to good law as to sound morals.

The new contract of April, 1849, between the trustees of New Franklin and Walter Gregory, is sealed with the seals-of the trustees, and recorded on the records kept by the trustees, in the form of an ordinance. The court below *75admitted a certified copy, or what purported to be a certified copy, of this contract, against the objections of the-State. I see no force in the objections urged to its admission, but it is. not necessary to set them out, as it was admitted, and the prevailing party cannot in this court-object to the ruling of the court admitting evidence. , The agreement is as follows: “This agreement, made and. entered into this 11th day of April, 1849, by and between, the board of trustees of the town of New Franklin, at a. called meeting of said board on the date hereof, and Walter Gregory, witnesseth that the said board have resolved that-for and in consideration of the sum of $500, paid by said Walter Gregory on the day of the date hereof, in addition to-the sum of $1,000 paid on the contract dated on 1st of June, 1842, the said Gregory is hereby released and discharged from all further payments under and by virtue of said contract until July 15, 1851, but from said 15th July, 1851, the semi-annual installments of $250 to commence and continue, according to the terms and tenor of said contract, until the further sum of $13,400 is fully paid, making the-full sum of $15,000, as contemplated in the act of the Legislature of Missouri, to which said contract is referred, is-raised.”

It is said that this contract of 1849 is void as being a nude pact, and that, not being a contract,.for want of consideration, it is not within the language of the act of 1855, and is not ratified thereby. In any other case but this it might be-considered hair-splitting to argue that an instrument purporting to be a contract, but not really so for want of consideration, does not come within the scope of a validating act referring generally to “all contracts.” I hold that there is nothing whatever in the argument, for three reasons :

1. That, even if this were not, strictly speaking, a contract, because not a legal or valid one, still it would be ratified by the' act of December, 1855, since it would be’ absurd to suppose that that act was passed to validate con*76tracts believed by the Legislature to be valid contracts without it.

2. That consideration is not of the essence of a contract, though it is necessary to support one ; and,

3. That a contract under seal, as this is, needs no consideration whatever, and is perfectly binding between the parties, not only without a consideration named, but even when the consideration, as in this case, is set out and •appears to be no consideration at all, because a consideration already past.

As this contract of 1849 is the key-stone to the arch, and the right to run the lottery at this time depends wholly upon the question whether it can stand or not, I pause to •support the propositions just laid down.

A contract or agreement is where a promise is made on •one side and assented to on the other. This is a strictly accurate definition. It includes nothing which can be left out, .and excludes nothing which is essential to the thing defined. Blackstone defines a contract “ an agreement, upon sufficient consideration, to do or not to do a particular thing;” and this, perhaps, might serve as an example, in a text-book •on logic, of a bad definition, independently of the objection that the word agreement requires to be defined as much as ••contract does. The existence of a consideration, though no ■doubt necessary to support a contract — that is, to give it validity, so that it can be enforced by the courts — forms, properly, no part of the idea — of the essence — of the thing, •and should be rejected from its definition. We constantly ■consider and speak of the contract itself as something distinct from the consideration. Blackstone’s definition has a third fault: It excludes an essential element of a contract— that which properly "distinguishes a contract from a promise — its mutuality.

The contract of 1849 is a deed, not a simple contract. 'The legal efficacy of a deed will not be prevented by the mere want of consideration. For in this respect deeds *77are distinguished from simple contracts, to the validity of which some consideration is essential; but a writing sealed and delivered is supposed by the law to be made with due-deliberation, and to express fully and absolutely the intention of the party by whom it is executed. He is, therefore,, bound by its execution, whether he received a consideration for the grant or consideration which it comprises, or not. This is perfectly well-settled law. Bac. Read. Uses, 79; Bunn v. Gray, 4 East, 200; Irons v. Smallpiece, 1 Barn. & Ald. 554; Pratt v. Barker, 4 Buss. 507. It will not. do to say the reason of this law has ceased. In the first ■place, I do not concede that, for I think it well to have some-solemn form of contract which, except in case of fraud, shall absolutely bind, and from which parties shall not be allowed even to attempt to resile ; and, in the second place, on the faith of this well-settled law, parties do now, every day, contract. It is on the certainty of the law that our peaceful holding of our possessions rests.

When it is said, then, that this contract is void, being a -naked pact, it is sufficient answer to say that this is a. specialty, a deed, a contract under seal, and not a simple contract, and, therefore, needs no consideration for its support. Smith Con. 81. Persons may, if they will, contract a gratuitous obligation by deed. Id. 86. Had it been a. simple contract, however, and not valid for want-of consideration, it .would have come strictly within the definition of a contract, though one which the law would not enforce. There is the meeting of two minds — the request on one side and assent on the other — which are the essence of a contract. Jackson v. Galloway, 5 Bing. N. C. 75; 2 Steph. Com. 109, note; Smith Con. 89, note. It is, therefore,, within the language of the act of December 6, 1855, which provides that “ all contracts made by the trustees of the town of New Franklin, for the purpose of raising the amount of money authorized to be raised by the said act of incorporation and the said act amendatory thereof, be, and *78"the same are hereby, declared to be legal, and may be .carried out according to the true intent and meaning of the parties thereto.”

It is said that the contract of 1849 was void because "there existed, at the time of its execution, a general law of the State prohibiting lotteries. Such a law was enacted in 1836, and was in force also when the contract of 1842 was made, but this lottery was exempted from its operation. 'The same power which passed the general lottery act of December 19, 1842, by ratifying the contract of 1849 repealed its provisions so far as the Missouri lottery was •concerned. It certainly had the power to 'do so. The same legislative power which prohibited lotteries in 1842 and 1845 ■could repeal these laws and permit sales of tickets in 1855.

It is, however, urged that, in view of acts passed against lotteries in 1842 and 1845, the trustees of New Franklin had no power in 1849 to make any contracts extending the time of drawing the New Franklin lottery. To this the «answer is made that the act of 1855 ratifies and makes good •this action of the trustees, and that the subsequent ratifi■cation is equivalent to a previous grant; and it 'is replied ■on the part of the State that such attempted ratification is .in violation of the constitutional provision then in force in this State, that “ no law retrospective in its operation shall be passed.” The Legislature undoubtedly could not pass .•a law changing a contract between individuals, making good .a void deed, or making that a man’s will which, being informally executed, was not his will in the eyes of the law .at the time of the death of the testator; but the Legislature unquestionably could, and can, validáte, with the consent of the other party to the contract, the irregular acts of the authorities of one of the counties or municipal corporations ■of the State. The State, in the matter of the modification -of the contract of 1842, even if its modification by the contract of April 11, 1849, was in excess of the powers of the trustees of New Franklin, might well say: This is my *79contract, made through my agencies, and I ratify it. This has been decided in this State. Such laws have been passed «gain and again, and the Supreme Court has decided that they were not retrospective in the sense of the Constitution. State of Missouri v. Barton County The act of 1868, validating the void bonds of the county of Franklin, was held to be perfectly good, and a valid curative act.

There was no constitutional provision against lotteries in 'this State until 1865. If, then, the contract of 1849 was valid when made, or was in 1855 made valid by the Legislature, no subsequent constitutional ordinance, no law, no •decision by any court whatever, could afterwards in the slightest degree impair its validity, and it is perfectly valid now. State v. Miller, 50 Mo. 133.

It .may be said that the legislation on this subject was imprudent — that the grant to the town of New Franklin was rash and unwise ; but, if it was done, the courts cannot undo it. The learned judge who tried the cause below, in his written opinion, asks : “ Can it be possible that a franchise granted to raise $15,000 for a charity can be transferred into an immense private income, affording but a pittance to the charity?” He answers that it cannot be. But, unfortunately, it seems that it is ; and why not, if the Legislature gives to the grantees a right to sell the franchise and they make a foolish bargain, or if the bargain turns out better for the purchaser than at the time it ivas believed it would? 'The learned counsel who appeared for the State, in State v. Morrow, 26 Mo. 140, in his brief, also asks, in regard to this “transaction: “What is there to prevent the trustees from ¡agreeing to receive one dollar a year, and legalizing the lottery for 15,000 years?” Nothing whatever, I suppose, if the Legislature empowered them to do so, and there was no constitutional provision against it. And, as Judge Scott ■■says in that case (1857) : “ The General Assembly having by a late law ratified the contract made by the trustees for *80the disposition óf the lottery, this cannot be a matter of much importance.”

The present defendants are, as appears by the record in this case, by mesne conveyances, the assignees of Gregory, who died twenty years ago. It is to be presumed that they paid full value for the franchise which the Legislature and the courts authorized him to sell. But that concerns us-not at all.

The rule of property seems to me to have been fully established when they bought, and they, doubtless, at the-time of the purchase, confidently relied upon the laws of their country for the protection of their legal rights. This-is not a matter of sentiment, but a plain question of right and wrong; and to disturb defendants because they are-making a fortune out of the lottery is what no legal power on earth can do.

The learned judge below admitted evidence to show that, the trustees of New Franklin misapplied the funds received, by them from the lottery. He held this to have been a. forfeiture of the franchise, and gave judgment of ouster. A forfeiture of what franchise? Judgment of ouster against, whom? The trustees of New Franklin, under the authority of the State, sold their right to run a lottery. The law which gave them this lottery privilege gave them express-power to do so. How could they forfeit a franchise which they had sold ? Before they sold it, the Legislature could have taken it away, because it was a pure gratuity, but after they had, by authority of the Legislature, sold it, their assignees for value were in a very different position. It-was a matter of contract, and the legislature was powerless-to impair the obligation. The learned judge below says : “The franchise being a contract, the Gregory contract is ingrafted on it, and thus we have one franchise.” But the-original grant of the franchise was clearly no contract, and the Legislature could have abolished the town and all its-*81franchises, this among them, at any time before a sale. It can, for that matter, abolish the town to-morrow. The creator can destroy, at will, its own creature, yet the lottery privilege, sold by its permission more than thirty years ago, would remain unimpaired. Is it supposed that the Legislature gave to the town of New Franklin a right to sell a lottery privilege revocable at the legislative will? Who would buy such a right? What would it be worth?

It is a mistake to say that these franchises of the right to run the town and the right to run the lottery are an entirety. They can be separated. Where several franchises are granted by one charter, forfeiture of one does not forfeit the others (Tancrede, Quo. War. 257), and a court would refuse to forfeit the municipal franchise of the town of New Franklin for violation of its provision by the trustees. These franchises are for the benefit of the people, not of the trustees. High on Bern., sec. 680. But any inhabitant of the town could, at any time, have compelled these trustees to appropriate the receipts of the lottery in accordance with the law. Over this matter, however, Gregory and his assignees had no control; and, in my judgment, it was error to admit, in a proceeding of this character against the assignees of Gregory, any evidence either as to the receipts of the lottery or the misappropriation of the fund paid to the town of New Franklin. This was done against the objections of appellant, and the points were duly saved. I cannot, therefore, concur with the majority of the court in sustaining the judgment of ouster.

I concur, however, in thinking that the Circuit Court has jurisdiction of an ex-officio information in the nature of a quo warranto. I do not think the statute on the subject has the effect of limiting the common-law jurisdiction of the Circuit Court in this respect.

Because the statute makes it imperative on the attorney general or circuit attorney, under certain circumstances, to exhibit in the Circuit Court an information ex relatione, I *82do not see that it at all follows that he cannot do so ex officio, and I do not believe that the law was meant to limit the jurisdiction of the Circuit Court in the matter. The question has never been directly presented for decision in the Supreme Court; but, in State, ex rel. v. Cape Girardeau Railroad Company, 48 Mo. 468, the circuit attorney ex officio appears to be the relator, and the jurisdiction of the Circuit Court is not questioned at all. The writ of quo warranto had fallen into disuse so long before the time of Coke that he could not determine when the justices in eyre ceased, and with them the writ that was used only during the continuance of that institution; but, long before James I., informations in the nature of quo warranto were in use, and the practice was adopted into this State with the common law of England. The writ, after the circuits of the justices in eyre ceased (which was at some uncertain period after Richard II., and before the Tudors), became returnable before the King’s Bench and the other courts at Westminster. The statute of Anne (9 Anne, ch. 20) was passed to give the remedy full effect in England, and provides that it shall be lawful for the proper officer, with leave, to exhibit an information quo warranto at the relation of any person desiring it, who shall be named therein and be responsible for costs, etc. I do not think that our statute was any more intended to oust the jurisdiction of the Circuit Court than was the statute of Anne to oust that of the King’s Bench; neither statute confers upon the court its jurisdiction, nor is either statute intended to define or limit it. As the King’s Bench has jurisdiction of an information in the nature of a quo warranto, without other relator than the attorney general, so has our Circuit Court.

But, for the reasons stated above, its judgment in this case should, in my opinion, be reversed and judgment entered for the appellant in this court.