State ex rel. Attorney General v. Miller

1 Mo. App. 48, 1876 Mo. App. LEXIS 14

• Court: Missouri Court of Appeals
• Decided: January 31, 1876
• Status: Published

Opinions

Gantt, P. J.,

delivered the opinion of the court.

The State of Missouri, by the Attorney General, filed in the St. Louis Circuit Court an information in the nature of a quo warranto, charging that defendants carried on the business of selling lottery tickets in St. Louis, denying the lawfulness of their so doing, and inquiring by what warrant they claimed to do it. The appellants answered that they were protected in selling lottery tickets, etc., by force of a contract, dated June 1, 1842, made by authority of the-State, between themselves and the trustees of the town of New Franklin, and modified by another contract, made April 11, 1849, transferring to them, the appellants, the lottery franchise given to the trustees of the town of New Franklin by an act of the General Assembly, approved January 16, 1833, and that the period for which they were thus, authorized to enjoy this privilege was unexpired.

• By section 7 of the act of January 16,1833, it was declared that the board of trustees of the town 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,” etc. On February 26, 1835, the board was authorized “to contract with any person to have said lottery drawn in any part of the United States, on such terms as they should consider most advantageous, and that they should have the same privileges as to the sale of the-tickets in this State as heretofore, until the amount authorized in said act be raised.” -

By an act of the General Assembly, approved February 8, 1839, so much of the act of January 16, 1833, as provided that the board of trustees of the town- of New Franklin should have power to raise, by lottery, a sum not exceeding $15,000, for the construction of a railroad, etc., was repealed. ■ The board was authorized to apply the-funds raised, and to be raised,-to the construction-of a. macadamized road, and it was provided that the governor,, on receiving a report from the trustees as to the disposition of the funds already raised, and the work already done, might authorize, by proclamation, the raising, by lottery, of a sum sufficient to complete the work, not exceeding $15,000. On November 17, 1840, the .governor issued his proclamation authorizing the board of trustees of the town of New Franklin to raise, by lottery, $15,000. On June 1, 1842, an agreement was made between the trustees and Walter Gregory, reciting that the trustees had already contracted with Gray and Eicholtz to raise for them the sum of $15,000. That this agreement had been assigned to Gregory, and was, by consent, abandoned by both parties ; and that the trustees sold to Gregory ‘ ‘ the said lottery, and all right to control the same,” and appointed him “the sole manager and conductor of said lottery or lotteries, for the benefit of the town of New Franklin, under the powers above recited,” etc. Gregory assumed all the risk and expense of the undertaking, and agreed to pay to the trustees $15,000, in installments, as follows: $250 on January 1, 1843; $250 on June 1, 1843, and so on, paying $250 semiannually (the two payments given as examples are not at ■semi-annual intervals),' until the sum of $15,000 is fully ■raised, to the said trustees, provided that $1,000 heretofore paid by Gray and Eicholtz, and $100 paid by Hawthorne, should be considered as payments, in order as made, on the above installments by Gregory. It was •further provided that Gregory should not be bound by this agreement in the event of interference by the judiciary, legislative, or executive departments, in which case he should be only bound to pay the installments to the time of the interference. He also reserved to himself the right to abandon the contract at any time, and to assign it at pleasure. He gave approved security in the penal, sum of $30,000 for the performance of the contract on his part, as required by the act of February 8, 1835.

On April 11, 1849, the board of trustees, etc., entered on their minutes a memorandum of an agreement that, in consideration of $500 paid by Walter Gregory, in addition to the sum of $1,100 paid on the contract dated June 1, 1842, he was released from all further payments under said contract until July 15, 1851, the same annual installments of $250 then to commence and continue, according to the .terms of the contract, “until the further sum of $13,400 should be fully paid, making the sum of $15,000 in all.” •This memorandum, as set out, purports to be signed and :sealed by the trustees. It is not executed by Gregory.

, On December 6, 1855 (p. 467 of Session Acts), the ■ General Assembly enacted “that all contracts made by the said trustees for the purpose of raising the amount of ■money authorized to be raised by the said act of incorporation and the act amendatory thereof, for the purpose of constructing a rail or macadamized road from the bank of ■the river to the said town, be, and the same are hereby, .declared to be legal, and may be carried out according to .the true intent and meaning of the parties thereto.” The -title of this act was : “An act to authorize the trustees of the town of New Franklin to construct a plank road.” The first part of the section quoted authorized them to construct a plank road, Instead of a rail or macadamized road, “ as provided for in an act entitled, etc., approved the 6th •of January, 1833, and an act approved the 8th of February, 1839, to amend the first act.”

There was evidence of what may, without the least injustice, be termed a total misuser by the trustees of the town of New Franklin of the funds received from Gregory and his assignees.

The appellants, defendants below, claimed that the Cir.cuit Court had no jurisdiction of the information, for want of a private relator. They also claimed that they had, for a term yet unexpired, the privilege of selling lottery tickets in Missouri by virtue of a contract, valid and binding, made by them with the trustees of the town of New Franklin; and that they were unaffected by any misapplication of the funds paid by them to the trustees.

. The State insisted that the Circuit Court had jurisdiction of the case; that the contract of 1842 was itself void, as being made in violation of existing laws ; that the contract of 1849 had no validity whatever ; that it does not profess to have been executed by Gregory; that there is no legal •evidence that it was executed by the trustees, etc., of New Franklin; that it was destitute of all obligations, for want •of any consideration to support it; that the assignees of "the lottery franchise are bound to take it cum onere, and to •see to the fulfillment of the conditions on which it was given •to the town of New Franklin; that the so-called contract •of 1849, admitting it to be valid and binding so far as to •extend the time of payment of the money contemplated •and secured by the contract of 1842, did not contemplate, .and cannot be presumed to contemplate, that the period •during which the lottery franchise was to be enjoyed should be enlarged by the neglect of appellants to pay the price •stipulated in 1842 for the enjoyment then ascertained, and that any misapplication of the funds raised, committed by ■•the trustees, would forfeit the privileges of their assignees.

The Circuit Court decided that it had jurisdiction of the Information, and gave judgment of ouster against appellants, who bring the matter before us by appeal.

1. The first question, as to the jurisdiction of the Circuit ■Court, I consider to be settled by the decisions of the Supreme Court of Missouri. State ex rel. v. Stewart, 32 Mo. 379; State ex rel. v. Cape Girardeau Railroad Co., 48 Mo. 468. If the question were an open one, I should be inclined to take the same view; as it is, I do not think it proper to do more than accept the decision of the court of .last resort.

2. Much was said at the hearing in this court of the bearing on the question before us of the statute of Missouri which, since 1836, has punished as a misdemeanor the selling of lottery tickets, and of the Constitutions of 1865 and 1875. It was contended that all contracts made between 1836 and 1865, for the sale of lottery tickets in Missouri, were void as being contrary to her penal laws ; and that all laws passed since 1865, seeking to legalize lotteries, were void as being contrary to the Constitution of that year.

It is plain enough that, since 1865, the General Assembly ■has had no power to legalize a lottery, or license the sale of lottery tickets in Missouri, but our attention has not been called to any act of the General Assembly, passed since the* Constitution of that year took effect, in which such a power* is asserted. As to the period before 1865, it cannot be successfully claimed that the General Assembly had not the* power to legalize lotteries if so minded, and it also possessed the power of being partial in the permission of this privilege*.. By virtue of its general power it could at any time make-penal this or any other act, not within the prohibitions of'the* Federal or State Constitution. If at any time it seemed; expedient to prohibit by law the selling of lottery tickets** and the carrying on of a lottery, it was clearly competent for the General Assembly to do this ; but, if the right to do» this business had been vested by contract in any person,, then the subject was to that extent withdrawn from the general power of the State, and the party having such contract, could only be proceeded against under its terms. Accordingly, if there were a valid contract between the appellants and the trustees, etc., of New Franklin, by means of which appellants acquired the right of selling lottery tickets for a definite period, the State could not,, by any instrumentality of its people or government, impair the obligation of that, contract. It is essential to the idea of a binding contract, that it should be in conformity with the will of the people*, as declared in its laws ; that it should rest upon a good or valuable consideration ; and that it should be made in good faith. If wanting in any of these elements it cannot be said to have any obligation which the law will recognize;; but, having them, it is the principal function of courts* of justice to give effect to the engagements which men thus* form. Sometimes this is done by decreeing their specific* performance; oftener by giving damages for their nonperformance. The mode of doing these things is necessarily committed to the good faith of the State; and government may be almost said to be good or bad in exact proportion to the thoroughness or remissness with which' this duty is performed. But the fundamental rule contained in the Federal Constitution, and repeated with great, emphasis and amplitude in the organic law of Missouri,, requires that, whatever else is done, the obligation of a contract shall not be impaired. This injunction has always-been observed, and will always be observed, by the courts-of Missouri. A contract may be brought before them the terms of which are harsh and unequal; but, if the parties-with their eyes open have chosen to make such a contract,, a court can and will do nothing to impair such obligation as it professes. It will listen to any suggestion of fraud,, want of consideration, illegality, or matter of discharge; and will determine according to its best discernment whether the contract had any original validity, or whether, being" originally valid, its obligation has been satisfied. But, if it be unassailable for these or similar reasons, the law must-take its course, without any regard to the real or fancied condition of public sentiment, or what may be thought off public policy. The policy of a State can be known to a.. court of justice only by the laws of that State. These furnish the only authentic expression of the public will, and to-every other evidence of it courts should be deaf and blind.

The contract of 1842 must, I apprehend, be regarded as-unimpeachable. This is the view of it taken by the Supreme-Court of Missouri (State v. Morrow, 26 Mo. 131), in which the validity of that contract was directly impeached. No reference was made then, or at any time, by the court off last resort, to the supposed contract of 1849, but the contract of 1842 is distinctly upheld. By this decision all courts are bound. A regret may be felt that the case in which.that decision was reached did not lead the court to’ scrutinize the features of that contract — to note the differences between the end proposed by the Hospital lottery and. the New Franklin lottery, the desirableness, at least the-possible .desirableness, in the one case, of receiving the money Raised in minute installments distributed over an extended period, and the absolute, almost ludicrous, inconsistency of ;such a mode of payment with the design of building a railroad. The trustees of New Franklin, in 1842, professing to •.contemplate the building of such a road at a cost of $15,000, •and having at their disposal only one resource for raising 'that sum, converted the fund derivable from this source into 'an annuity, for thirty years, of $500,payable semi-annually; that is, they agreed to receive just 3 1-3 per cent, per annum for thirty years of the sum, the whole of which was, by hypothesis, needed to build the road. No one in his senses ~could imagine that the road could be built, during the whole period, by means of this annuity; and the conduct of the trustees, who failed to appropriate a dollar of this money towards this object, was in a certain sense judicious. To ■apply money in such driblets to such an enterprise would be merely throwing it away. By reducing their means as they did by this contract, they so palpably disabled themselves from accomplishing their professed purpose that it is not easy to understand that this purpose was seriously contemplated by any party to that instrument. But the •decision quoted, especially in the light of the act of December 6, 1855, closes all inquiry into the validity of that •contract, or any other made prior to December 6, 1855, professing on its face to be made for “the purpose of raising the amount of money authorized to be raised by the said act of incorporation * * * for the purpose of constructing such road * * * from the bank of said river to said town.” But no contract not having (at least on its face) such a purpose can be aided by this act.

The State now claims that the contract of 1842 has 'expired; that the period it covered has been completed; ■and that appellants can no ' longer invoke its aid. This Would appear to be true. At the date of that contract $1,100 had been raised and paid to the trustees, etc., of New Franklin, and only $13,900 remained to be raised and paid to them. The payment of this sum was provided for-by the engagement of Gregory to pay $500 annually, beginning in 1843. The answer sets up that ample security was-given for the performance of this engagement. The last, payment would be $150, payable June 1, 1870, and thereafter, according to, the terms of that contract, no one could have, under the acts of 1833 and 1835,' and the-contract of June 1, 1842, the right to sell lottery tickets in Missouri. But appellants insist that the period during-which such selling was legalized was extended by the contract of April 11, 1849.

To this the State replies that this contract appears, on its face, not to have been executed by Gregory; that it, does not appear to have been executed by the trustees of New Franklin ; that it is unsupported by any consideration, and so has no obligation; that it is not a contract having-for its purpose the raising of money in furtherance of the objects contemplated by the act of 1833, but the hinderiug- and obstructing of those objects; and that it does not,, assuming it to be within the powers of the trustees for all the objects which are within its scope, profess to extend the. duration of the privilege of selling lottery tickets, but only the time within which payment is to be made for that, privilege; in short, that it grants relief to Gregory in respect of his engagement to pay the price, and virtually accepts the payment of' a smaller sum than the engagement, Of 1842 contemplated ; but that it does not profess to give, him a larger privilege for this reduced price.

We cannot look into the question of the authenticity of-the contract dated April 11, 1849. That point was decided by the Circuit Court in favor of appellants, and the State, did not except to that decision.

The other objections appear to be better founded. By-no definition we hav¿ been able to find, of what the law intends by a consideration, can we reach the conclusion that this contract of 1849 rested on that essential supports By its terms it is not so much confessed as proclaimed that ■Gregory had not paid one dollar since June 1, 1842, when $1,100 had already been paid by others and credited to him. The trustees had, as we are bound to conclude •from the answers of appellants, the right to receive and •«the power to exact from him, for arrears of installments due before April 11, 1849, the sum of $3,250, besides interest. In like manner they would, between that period and June 1, 1851, have the right to receive and the power to exact from him, under his engagement of 1842, the further sum of $1,250, besides interest; making a total of •$4,500, of which more than two-thirds, with interest, was ..due at the date of the contract. In place of all this, those trustees agreed to receive in hand, without interest, only $500, to suspend any further payment until July 15, 1851, •taking no interest for the forbearance, and to receive, then .and thereafter, the suspended installments at the old rate. It was declared that there would be payable, on and after -July 15, 1851, the sum of $13,400; and this proves, in a manner which leaves no room for doubt, that all interest was remitted, and that the total of the sum received and to ■be received, first and last, by the trustees, from Gray and JEicholtz, Hawthorne and Gregory, was the sum of $1,100 paid before 1842, the sum of $500 paid in 1849, and •$13,400 to be paid in and after July, 1851, or $15,000 in ¡all. No allowance whatever being made of interest for the time that payment was delayed, nothing is clearer than that this was contemplated and provided for by that •paper of April 11, 1849. Has such a transaction any validity? Has such a contract any obligation?

Clearly, nothing was given or done by Gregory in return for the enormous concession he obtained from the trustees. 'There was no possibility of -benefit to the latter; all that .-appears, or that can appear, was net loss to them. It is, indeed, declared that the agreement was made in consideration of $500 paid by Gregory. But it is manifest that at "this time Gregory was bound to pay them more than six •times this sum, with interest. The payment of this small percentage of a debt overdue and secured can be no consideration fora new promise. On the face of the paper it is plain that the trustees neither got, nor expected to get, any thing in return for the indulgence they extended to Gregory.

. But this contract purports to be under seal; and it is said that a seal imports a consideration. It can hardly be contended that this presumption goes so far as to substitute a ■different and sufficient consideration for that ascertained by "the instrument itself. The rule of law giving a different ■effect to a contract to which a scroll is appended, by way of seal, from that which it would have had but for this very formal and technical addition is not one to which any respect would be given at this day but for the remote age in which it originated. The reason of the rule has long ceased, but courts of justice will leave its abrogation to the legislative power. There is, however, a rule, quite as well settled as that which has just been quoted, which declares that where the consideration is expressed in a written instrument mo other can be proved, unless there are words which indicate other considerations, or where the consideration proved is of the same kind, but different in degree, as the amount ■of a money consideration. But no rule of law of which I •am aware will raise a presumption, either in a sealed or ■¡unsealed contract, of a consideration different from that •declared; and if that which is set forth and dignified with the name of a valuable consideration be described, and .appear by the description to be something wholly frivolous, I am unacquainted with any principle by force of which we •can infer, without evidence, that there was another and sufficient consideration. The party to such a contract may possibly be allowed to prove an additional consideration; but it is not to be gratuitiously inferred merely because a •scroll, by way of seal, is affixed to the paper with the signature of the contractor. It may also be doubted whether a person executing a contract in a representative capacity can,, by using a seal, shut tbe door to an inquiry into the sufficiency of the reasons for which he undertakes to conclude-his principal. In the case under examination we are-informed, with a fullness which leaves nothing to be desired,, that, for no possible advantage to the town of New Franklin,, but for the mere accommodation of Gregory, the trustees, of that town saw fit to relieve him of part of the obligation of his contract of 1842. No room is left for presumption. The paper tells the whole story. It is difficult to see on' what grounds such an attempt on the part of trustees could find favor or toleration in a court of law. To give it effect, would be to sanction what is at best a perfectly gratuitous-betrayal of their trust; and I do not think that the act of December 6, 1855, gives this attempt the least support. Whatever else may be said of the contract of 1849, its-purpose was not to raise money for building the contemplated road. Its aim, proclaimed on its face, was to delay and hinder the raising of that money, to impair, and partially to discharge, a contract previously made which had been considered to have in view the raising of such money.

This is not all. If the immense concession be made that-the contract of 1849 was protected by the act of December-6, 1855, the meaning of that contract is still to be ascertained. There can be no doubt that its scope was to extend the time within which Gregory was to pay for the privileges-he acquired by the contract of 1842, and it seriously diminished the price he was to pay for them. The argument of the appellants is that it did not stop here; that, besides diminishing the price to be paid, it increased the-acquisition for which it was payable, and annexed a reward to Gregory’s failure to perform his contract; that it enabled Mm, by delaying or refusing performance, to prolong the-enjoyment of the privileges for which performance was to-be the equivalent. For conclusions so anomalous we are surely entitled to demand the support of the most unequivocal declarations of intention. If the doing of this monstrous thing were clearly within their power, it would still be proper to demand that the utmost precision and clearness of language should be used by the trustees to set forth an intention to accomplish what so nearly resembles a wanton breach of trust. We examine the language employed, and have no difficulty in acquitting the trustees of the intention imputed. It nowhere appears. All that the contract of 1849 really effects is, at most, a diminution of the price to be paid by Gregory for the lottery franchise purchased in 1842. The price then stipulated was secured, and must be taken to be within the possession of the trustees, according to the terms of that security. Whether Gregory or his sureties could have pleaded the contract of 1849 in bar or in abatement of a suit to enforce that security according to its tenor, is another matter; but there is no suggestion that there was a suspension of the enjoyment of the franchise during the time that payment for it was withheld, and there is no shadow of reason for extending the term of this enjoyment in consideration of the failure of Gregory to pay for it. I am, therefore, of the opinion that for more than five years the appellants have been without the protection of a contract to justify them in selling lottery tickets in Missouri.

I think it unnecessary to express an opinion upon the effect on the assignees of Gregory of the < misuser, by the trustees of the town of New Franklin, of the fund raised under the contract of sale; but, for the reasons here stated, I think the judgment of the Circuit Court should be affirmed.