Horst v. Moses

48 Ala. 129 | Ala. | 1872

Lead Opinion

PECK, C. J.

-The act of the 31st of December, 1868, (book of Acts, &c., p. 511,) entitled “An act to establish the Mobile Charitable Association, for the benefit of the common school fund of Mobile county, without distinction of color,” did not create a contract between the State of Alabama and I. Clifton Moses and Ered. H. Eowler of Mobile, Alabama, and Eugene Beebe of Montgomery, Alabama, and their associates. It was a proposal merely, that would become a contract when accepted by them, and paying to the board of school commissioners of Mobile county, for the use of the public schools of said county, the sum of one thousand dollars, as provided in the second section of said act; but it would not be a contract for the period of ten years, but only for one year from the date of the payment of said sum of one thousand dollars. By said section said associates Were not bound to pay said sum of one thousand dollars annually for the term of ten years, but only for So long: as they might choose to do business under the provisions of said act.

As the said associates would be bound by such contract only for the period pf one year from the date of each successive annual payment of said su>m of one thousand dollars, the State could be bound for no longer time. It is of the essence of a contract, that it must be mutual, if both parties are not bound by it, neither is bound.— Whitworth and Wife v. Hart, 22 Ala, 343,

At the end of each year, therefore, the' contract would end, and the said act would assume again the character of a proposal; and as the said associates had the right to choose whether they would continue or renew the contract, the State necessarily had the right to choose whether she would continue, or withdraw her proposal, and repeal said act. To hold otherwise would be to destroy all mutuality between the parties, and to take away one of the essential elements of a valid contract. The State chose to withdraw her' proposal, and at a time when no contract in fact existed,- to repeal said act. This she did by the act of the 8th of March, 1871, (book of Acts, p. 217).

The said act of the 31st of December, 1868, being thus repealed, the subsequent payment of one thousand dollars, made by said associates to E. B. Dickson as superintendent of common schools of Mobile county,- on the 19th day of April, 1871, Was made without any authority of law, and did not authorize them to do business under said act; did not create any contract between them and the State; and, consequently, gave them no authority, no right to exercise the privilege and franchise'named in said act; and if, in claiming to do so, they violated the laws of either the State or the city of Mobile against gaming, they were hable to be proceeded against and punished, in the same manner as other persons guilty of the same offense.

If this is a correct construction, of said act of the 31st*of December, 1868, as I think it is, then their bill, filed to enjoin prosecutions against them for alleged violations of the laws of the city of Mobile against gaming, and to restrain the appellants and others from instituting such prosecutions, is without equity, and the decretal order of the chancellor overruling appellants’ motion to dissolve the injunction granted in this case by the circuit court judge, is erroneous, and must be reversed. And this court, proceeding to render such decree as the chancellor should have rendered, it is hereby ordered, adjudged and decreed, that the said decretal order of the chancellor, rendered in vacation, overruling appellants’ motion to dissolve the injunction granted in this case, be, and the same is hereby reversed, and the said injunction is dissolved; and it is further ordered, adjudged and decreed, that the appellees pay the costs of this appeal in this court and in said chancery court.

B. F. SAFFOLD, J.

I hold the act to establish the Mobile Charitable Association, &c., if obligatory on the State as a contract at all, to be so for the term of ten years. It requires the association to pay, or cause to be paid, for the use of the public schools of Mobile county, “the sum of one thousand dollars, and annually thereafter a like amount, for the term of ten years, or so long as said partnership shall choose to do business under the provisions of this act.” The payment of the one thousand dollars annually is declared to be the consideration upon which the privilege is granted. The fourth section enacts, “that this act shall remain in full force and effect for ten years, upon the consideration herein contained, during which time said partnership company shall have the right to exercise the privilege and franchise herein given, any law to the contrary notwithstanding.” My construction of the language quoted is, that the company may terminate the agreement at pleasure, but that the State can not do so before the expiration of the ten years, except in case of forfeiture.

But has the State authority, under the State constitution, to sell to a collection of persons, whether a partnership or a corporation, an exclusive privilege to carry on a lottery? The people generally are prohibited from doing so without the legislative sanction. — Bevised Code, § 3616. No public law gives this sanction.

Article I, section 32, of the State constitution declares that “no title of nobility, or hereditary distinction, privilege, honor, or emolument, shall, ever be granted or conferred in this State.” To confer a title of nobility, is to nominate to- an order of persons to whom privileges are granted at the expense of the rest of the people. It is not necessarily hereditary, and the objection to it arises more from the privileges, supposed to be attached, than to the otherwise empty title or order. These components are forbidden separately in the terms “privilege,” “honor,” and' “emolument,” as they are collectively in the term “title of nobility.” The prohibition is not affected by any consideration paid or rendered for the grant. Its purpose is to preserve the equality of the citizens in respect to their public and private rights.

How shall we distinguish these prohibitions from the undoubted right of the State to grant certain franchises to particular individuals in exclusion of others, as a ferry or a corporation, or to contract with its citizens, as for the construction of public works? The theory of our government is the recognition of the utmost liberty of the citizen consistent with the welfare of the society. No restraint imposed by law can find justification elsewhere than in the consideration of the public good. There are necessities and conveniences that can only be supplied to the public by committing the duty or the privilege of doing so to a few. One ferry or toll-bridge is sometimes secured only by forbidding two.

Extreme eases sometimes illustrate a principle when intermediate ones serve only to confuse. The right of way for the construction of a railroad is conceded to be a fit subject for the exercise of the State’s right of eminent domain, though the recipient is a private party. But a proposition to confer upon the same party the exclusive privilege of selling drugs or liquors would be justly regarded as an outrage. The test of the State’s authority, therefore, is this: The privilege that can be conferred must conduce to the public good, and be such as is obliged to be committed to a few in order to be available.

In further proof of this test, the power of the legislature to charter corporations, not municipal, heretofore not questioned, has been specially granted by the constitution, and restricted to the passage of general laws from the benefits of which none are excluded who may comply with the conditions prescribed. — Const, art." 13, § 1. This change of the fundamental law was doubtless due to the conviction that the prohibition against 'exclusive privileges had not been sufficiently observed by the legislature and the courts.

In view of this more stringent guaranty of the equality of the citizens, shall we say that the legislature has power to sell for a term of years to a partnership, the right to set up and carry on a lottery, and to fine and imprison the rest of the people, if they do the same ? Suppose I. O. Moses & Co. alone, of all the people, were forbidden to set up a lottery, or to sell dry goods or groceries. The discrimination would not be based on any consideration of the public good, but would tend to the public detriment.

If the test I have proposed be not the correct one, and sufficiently definite, whence come the mala prohibits ? Blackstone says, “ those rights which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested • in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no' human legislature has the power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like,) receive any stronger sanction from being also declared to be duties' by the law of the land. The ease is the same as to crimes and misdemeanors that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft and perjury; which contract no additional turpitude from being-declared unlawful by the inferior legislature, for that legislature in all these cases acts only, as was before observed, in subordination to the great Law-giver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all with regard to actions that are naturally and intrinsically right or wrong.

But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, “according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life.” — Vol. 1, p. 51. Experience has since shown a necessity for controlling somewhat the discretion of the legislature in the interest of freedom of personal action; and hence come the rights “reserved to the people.” To prohibit the pursuit of necessary business, or to commit it to a few, to the exclusion of the rest of the people, would be a flagrant usurpation on the part of the legislature. Setting up a lottery is conceded to be the subject of the mala prohibita. Therefore, either the act in question confers an unconstitutional privilege, or the law prohibiting the people generally from setting up lotteries withhold^ a constitutional or reserved right. There is no doubt about which must fall.

This act is unique in its structure, if not commendable. It purports “ to establish the Mobile Charitable Association for the benefit of the common school fund of Mobile county, without distinction of color.” The only benefit derived by the schools is the money paid as the consideration of the franchise. A charitable association is supposed to have for its object the relief of suffering humanity. The purpose of I. 0. Moses & Co.’s franchise is to put money in their purses, without rendering an equivalent for it, and without regard to the reckless gambling propensity it may excite in the community. The application of the words, “ without distinction of color,” is left to conjecture. Article IY, section 2, of the State constitution says, “Each law shall contain but one subject, which shall be clearly expressed in its title.” There is nothing in this act correspondent with the laudable subject so clearly expressed in its title.

I think the injunction ought to be dissolved, on account of the invalidity of the act in question, and because, if valid, it requires the distribution of the prizes to b & fairly made, which is not the case in the games called keno and roulette.

Peck, C. J., concurs in this opinion as to the unconstitutionality of the act.

---

Concurrence Opinion

PETEES, J.

I can not concur in the reasons assigned by the majority of the court for the judgment pronounced in this eause. A brief statement of the facts and the law, as they impress my mind, will show the grounds of my dissent.

On the 31st day of December, 1868, there was approved by the governor of this State, an act of the general assembly, entitled “An act to establish the Mobile Charitable Association, for the benefit of the common school fund of Mobile county, without distinction of color.” The first section of this law, omitting the enacting clause, is in the following words : “ That I. Clifton Moses and Ered. H. Eowler, of Mobile, Alabama, and Eugene Beebe, of Montgomery, Alabama, and their associates, as partners, shall have the full' right and authority to form themselves into a partnership association, to be known under the firm name and style of “ I. C. Moses & Co.,” or such other name as they may designate, for the purpose of receiving subscriptions, and to sell and dispose of certificates of subscription, which shall entitle the holder thereof to such prizes as may be awarded to them, which distribution of award shall be fairly made in public, by casting of lots, or by lot, chance or otherwise, in such manner as to them may seem best, to promote the interest of the school fund of Mobile county, which said distribution of award and prizes shall be made at their office, in the city of Mobile, or such other place or places in the State as they may direct.” — Pamph. Acts 1868, p. 511, sec. 1. For the “full right and authority” thus given, the company above-said agreed to pay to the Board of School Commissioners of Mobile county, for the use of the public schools of said county, the sum of one thousand dollars, and annually thereafter a like sum, for the term of ten years, or so long as said partnership shall choose to do business under the provisions of said act. This statute confers the “privilege and franchise” upon the “ partnership company,” thereby created for ten years, “upon the consideration therein contained,” any law to the contrary notwithstanding. — Acts 1868, pp. 511, 512, supra, No. 167. The first one thousand dollars was properly paid. This was an acceptance of the terms proposed in the act, and vested the company with the rights and franchise therein conferred. — Manaway v. The State, 44 Ala. 375. The law in question establishes a “ franchise ” of a peculiar character. A franchise, during the period of its continuance, is said to be an incorporeal hereditament. At common law, it is a royal privilege or branch of the King’s prerogative, subsisting in the hands of the subject. And it arose from the King’s grant. — 2 Bla. Com. p. 37, 38, marg. With us, they are conferred by grant from the government, and are vested in individuals. — Bank of Augusta v. Earle, 13 Pet. 519, 595, Taney, C. J. They contain an implied covenant on the part of the government not to invade the rights vested, and on the part of the grantees to execute the conditions and duties prescribed in the grant. The government can not resume them at pleasure, or do any act to impair the grant, without a breach of contract. — 3 Kent, 458, 459. In this definition I use the language of Chancellor Kent; a text writer of but little less authority than a judicial opinion. It seems to me that it hardly needs an argument to show that such a grant of franchise or privilege can not be impaired by a repealing act. It is also patent to my mind that the general assembly has power to make such a grant, and that this power is not intended to be interfered with, by the thirty-second section of the first article of the State constitution. The mere recital of this section of our fundamental law, without more, would seem to refute this idea. I quote its words, so far as they apply to this case. They are these: “No title of nobility, or hereditary distinction, privilege, honor, or emolument, shall ever be granted or conferred in this State.” — Const. Ala., Art. I, § 32. These words scarcely need interpretation to find out their true sense; that is, the sense in which they were used by the people in their highest State law. Obviously, the people intended, by these words, to impose some limitation on the legislative will of the general assembly. But they did not intend to go beyond what had formerly been customary. They did not intend to cut off the power to grant, for limited periods, merited distinctions and honors to the citizens who had rendered great and important services to the State, or to grant privileges or emoluments to be used for the public good. In other words, they did not intend to prohibit all right to grant any privilege, franchise or emolument whatever. Had this been their purpose, the language used would have been without any qualifying and limiting adjective. The word “hereditary” would have been left out of the sentence altogether. This word qualifies the whole series of particulars enumerated in the sentence, as if it had been repeated before each. The State constitution of 1819 contains a section of similar import with that above quoted, and almost in the identical words. Yet many franchises and exclusive privileges were granted under it, without objection — such as the right to establish toll-bridges, toll-causeways, ferries, and the supplying cities with pure water and gas-lights. — Const. Ala. 1819, Art. I, § 26, Clay’s Dig. p. 27; Code of Ala. p. 31; Revised Code, §§ 1383, 1389; Mobile Water Works, Montgomery Gas Works; and see the discussions in Dale v. Governor, 8 Stew. 387; Stein v. Mayor of Mobile, 17 Ala. 234, S. C. 24 Ala. 591; People v. Utica Ins. Co., 15 Johns. 358; Pres’t, &c., of Newburg and Cochecton Turnpike Road v. Miller, 5 Johns. Ch. R. 101; Micou v. Tallassee Br. Co., January term, 1871. The power to grant and confer privileges, honors or emoluments, intended to be prohibited, were such as were “ hereditary,” and not such as were limited to a reasonable length of time. Here the limitation was only for ten years at most, or “so long as the said partnership shall choose to do business under the provisions of ” said act. “ And whenever said company shall fail to pay said sum according to the provisions of said act, then, and in that case, their right to do business shall cease.” Acts 1868, p. 511, 512, § 2, supra. Then, if this right is a franchise, a privilege purchased from the State upon a consideration, it is a contract, and can not be repealed. In Colonel Sam. Dale’s case, involving a like question, Lipscomb, C. J., declares: “The only question, it seems to me, that can be raised in this case, is, whether a contract has been made between the State of Alabama and the plaintiff, (Dale,) by which he has acquired a vested'right to the amount of money directed to be paid to him by the act of 1821. If such a contract was enacted by that act, I have too much respect for the court of which I am a member, to waste time in urging any argument in favor of the position, that it is not only our right, but our duty, and one that can not be evaded, to declare any subsequent act of the legislature, abrogating the contract, wholly void. This doctrine is now too well settled to admit of a controversy.” — Dale v. The Governor, 3 Stew. 387, 403. Add this to what has already been said against the validity of the repealing act of March 8, 1871, and the argument would seem to be complete. — Paraph. Acts 1870, 1871, p. 217, Act No. 180. The repeal was of no validity, and did not, in any wise, effect the appellee’s rights, whatever these may be. In this, I differ and dissent, with respectful regret, from the conclusions of the majority of the court. Nor is this a corporation such as the legislature can “ alter, amend, or repeal.” This power is given only where there is a general law of incorporations, or special act passed pursuant to the article of the constitution on “ corporations.” — Const. Ala. Article XIII, § 1; see Pamph. Acts 1870,1871, p. 26, “ corporations.” This is not such a law as those there referred to.

Another objection to the law first above quoted, under Which the appellees seek to justify their proceedings, is, that its title is defective. If there were such a class of objections known to judicial tribunals as petulant objections, I would be inclined to put this objection in that class. Certainly, a good law ought not to be driven out of court, because its authors were not critically skillful in the invention of names; that is, that they were not persons who could split and divide a hair, “ ’twist north and northwest side.” It is true, the constitution commands that “each law shall contain but one subject, which shall be dearly expressed in its title.” — Const. Ala., Art. IV, § 2 3 see Pamph. Acts 1870, 1871, p. 8. By reference to the law under discussion, it will be-seen that its title contains but one subject; that is to say, the “ establishment of the Mobile Charitable Association, for the benefit of the common school fund of Mobile county, without distinction of color.” And this is very clearly expressed. It is not to be expected that the details of “the business” of the Association is to be set out in the title of the law, else this would make the title the law itself. In discussing this novel feature in legislation, a distinguished and experienced judicial officer uses the following language: “It would be most mischievous, in practice, to make the validity of every law depend upon the judgment of every judicial tribunal of the State, as to whether an act or bill contained more than one subject, or whether this one subject was clearly expressed in the title of the act or bill. Such a question would be decided according to the mental precision and mental discipline of each justice of the peace and judge. No practical benefit could arise from such . inquiries.”

Pim, v. Nicholson, 6 Ohio, (N. S.) 179. When the title fairly indicates the main purpose of the law, this is enough. Cooley’s Const. Limit., p. 141, et seq., and cases there cited. In this view of the constitutional restriction above quoted, I can not concur with a majority of the court, but respectfully dissent. — 44 Ala. 639, 646.

There is one other question that remains now for further consideration. That is this: Does the statute of the 81st of December, 1868, authorize “I. Clifton Moses & Co.” to do the “ business ” for which they claim protection in their bill ? If it does, then I think they have shown sufficient grounds to invoke the aid of the court to protect them in the further continuance of the same, until they make default in the payment of the annual sums required by the act. If it does not, then they are entitled to no relief, and their injunction should be dissolved and them bill dismissed with costs. Then, what is the “business” the “ association ” is entitled to pursue under the act ? The act declares that the “association” was allowed to be formed “for the purpose of receiving subscriptions, and to sell and dispose of certificates of subscription, which shall entitle the holder thereof to such prizes as may be awarded to them,” — Acts, supra, § 1, p. 511. This is the means provided by the law to carry on “business” under the franchise. This may be done, whatever it may mean, without the violation of the statutes against gambling; that is, without keeping a gaming table in the manner forbidden by the Revised Code. — Rev. Code, § 3621. The scheme of operations set out in the bill is clearly that of keeping or exhibiting “ a table for gaming.” The legislature did not intend to repeal this section of the Code, by the law allowing the formation of this association, and turn loose upon society the evils thus restrained.

I therefore concur in the judgment of the majority of the court.