*1 George Idel, Stukenbroeker, Aufderheide, H. W. F. William A. s and Trustees Director Lefmann, Kriete, Ferd Bletz and Ed. Owensville, Appellants, for Owensville Booster v Club . Company J. H. Hansen . 121 S. Hamilton-Brown Shoe (2d) 817. W. One,
Division November 1938. Clymer, Harry Tate, Schaper H. Jos. T. Booth James Jesse appellants. *2 Hart,
Luke E. Phil Donnelly respondent. W. T. O. Hart M.
BRADLEY, reassigned. petition canse has been The C . This plaintiffs In count -prayed judgment two counts. for the first $4990.22, in the $34,900. -and The cause was filed County, change County, Oasconade went to Crawford but of venue' finding jury. where trial the court was had before a appealed. was for defendants Brown to Hamilton Hereinafter has reference the term defendant Company. Shoe Plaintiffs the trustees directors -association, unincorporated Club, voluntary, Owensville Booster a n composedof vicinity, Owensville and citizens business men of organized commerce, and purpose promoting trade, general Through activi- people welfare Owensville. (under ties of contract club in Owensville defendant established department club), “fitting with room as September, n of shoe thereon, factory.” building parcel estate, A of real with a fitting conveyed defendant, building the (donated) was $1500. piece real estate was room located. this value of money raised sought is made up The remainder first count defendant. the club donated to defend- contract March into the club entéred a second 23,. three-acre (donated) defendant a conveyed ant and there was tract defendant Upon $2400. tract value of land *4 factory. In addition complete to operate construct shoe' and did and contract, was, the to the three-acre tract under there factory shoe constructed to defendant. donated Defendant money until time operated the same some on three-acre tract the and operate of the most February, 1931, and moved when it ceased building; machinery factory from the money to grants the real estate and The consideration for factory the shoe operation of was the construction and defendant defendant theory that proceed contract. Plaintiffs on liability factory without of the operation not abandon the shoe could as defendant consideration money granted property for the and based Plaintiffs’ cause establishing the ill Owensville. factory n on Ann., secs. (Mo.-Stat. 4601-4606, Statutes Revised Sections = 2043-2045). 4601-4006, pp. be “It shall Section 4601: follows: 4602 are as 4601 and Sections time, at any this corporation doing business state any unlawful for n or corporation having control of officers, agents others or or of -the business or of such property corporation, move, abandon,, n or discontinue, in any way, any material extent,- factory,, any workshop, office,agency or'other establishment, or work or business therein, carried from in any or or other within city, town place state, this repaying restoring any money,, and all and bonds, lands been,' and other property, have or shall hereafter be, given granted or as a consideration or inducement for the loca- tion or construction, operation, enlargement any or maintenance at city, such town or such place, factory, office,agency workshop, or or establishment, work thereat; or and business carried repayment such or accompanied by restoration must include and payment bonds, lawful interest money, on such and other lands property, or proceeds value thereof, or reasonable period full elapsed original shall have between the date ” gift grant repayment final or and such restoration. to- provisions Section 4602: penalties of sections gift 4606, inclusive, grant shall- all was apply in casés where or by city, town, or any person shall be made or company, persons, or they apply grant, shall all where the consideration gift, cases owning inducement, operating paid corporation or or made factory, office, shall workshop, agency establishment, such or gift, grant, consideration or apply in-all cases -as well where-such any agent, receiver trustee inducement, officer, made or or or property the -time in corporation, such or at control said the-provisions "penalties of corporation; .business rights, corporation apply if the has succeeded sections shall also which, or to any corporation, to franchises,-property business of or corporation, officers, or agents, or receivers trustees n inducement, .was- property, any grant, consideration or gift, its such ’ paid. have or been ffiáde' mentioned any sections Section 4603 makes violation officer, penalty-for'any 4604-prescribes misdemeanor. Section year’s- more than one corporation not agent, etc., as offending of n fine-and $1000, or both imprisonment, not to exceed or fine corporation as to penalty fixes the imprisonment. section elapse day that shall each' “a dollars for one thousand fine of discontinuation, and removal, abandonment or act of between such any sections; restoration'required said repayment provisions of said violating--any of corporation guilty found the- óf or -rights derived or franchises also sections shall forfeit transacting enjoined from shall be enjoyed state, *5 n - - any state.” business the ' repay 4605: follows-: Section are-as 4605 and 4606 Sections ‘.‘The inclusive, 4606, 4601 to by required sections restorations ments and by persons, or which town; company,' person city, shall made the to be gift, inducement, or the or grant, whom consideration made or paid, representatives.?’ . legal or to or their.successors, assigns ‘‘ (cid:127) injunctions Section 4606: for in provided The forfeitures sec- and any 4605, inclusive, by tions 4601 enforced may to decreed- be and may county corporation circuit court in do any any of such' which of business, purpose, a suit to-be instituted name county in Missouri, by attorney of prosecuting State of - prosecuted.” which.such suit is . denial, -con- pleaded and the two general Defendant answered 23, among September, 1920, 1922, alleged, March tracts of and and unconsti- defenses, plaintiffs other statute is relied void, tutional and Article because in conflict Section Missouri; (prohibiting special legislation), of laws-class Constitution Amendment, Con- conflict with Fourteenth Section of the- States, things; provides which, other stitution of among the- United deny any that “no enforce law. . . -. State shall make or any person jurisdiction equal protection to within its of law.”' alleged estopped also that to invoke on, because of execution of the two contracts relied' procedure mutual thereunder. September, 1920, other
Among provisions, contract of contained “The'parties part (the this: of at club) shall and first part employees time . pays to party second out at Owensville factory employed factory said at who in said are' part wages, convey sum party to the simple assigns by warranty its successors deed in fee free ’’ building. incumbrances, fitting all room liens and -lot superceded, or 23, 1922, contract March to have The seems deed supplemental Anyway appears it contract.. provided November for in the first executed contract was regard wages. then out in to the amount purpose (2) are: pertinent parts contract the second its agreement company locate one to induce shoe said Owensville, parties said manufacturing City of and the plants in the conveyed agreed have to be part, end, to.cause of'the first simple, absolute warranty in fee company by deed' to said shoe character, every kind incumbrances free from liens and as follows:' ground City Owensville described parcel (The property described.) . . . above described tract is here 3-acre manufacturing plant build erect and shall serve as a site agree part of the first parties city, be' the said operated and the it build $32,500, to induce company a bonus pay said shoe place, at therein said products- manufacture plant its siich following install company shoe payments -to to made said com building $8000, when foundation once; $2500 ments : *6 pleted; $8000, completion $7000, of building floor;- to second completion floor; building. of second completion $7000 o'n
“The agrees party second that it shall and will as’ as speedily possible -parcel after ground; said of set forth in paragraph two, conveyed shall it, have been proceed to ground, to erect on said lot of. with all speed reasonable á diligence, building three story brick joist of construction, approximately 52' x 200 feet. agrees “The obligate second party compensate to itself to first parties for payment $32,500 of bonus of said paying'out in wages employees t'o city OwCnsville, period in within a to .not years ten
exceed 1, 1922, after $750,000. amount It is July party’s understood that second who not in the officers do reside city of not determining aggregate shall Owensville included in ' expenditures. of said agreed
“It is further that in the party event shall second fail expend to the amount period aforesaid within said it shall and will pay refund and to parties proportion first' such said $32,500, as the not expended by wages aforesaid, sum it, so as $750,000. example, expend bears For party if the second wages only in sixty per $750,000; cent of said the second amount of party will then forty have to pay parties refund and per cent parties said amount of as bonus. by the first ‘‘ said, expenditure wages amount in otherwise herein as provided, expenditure wages or the part, payment of said part, discharge shall be complete refund a full and acquittance obligations party this under contract.” following decla
At
close of
case
asked the
sitting
ration
law: “The
jury
Court
as a
instructed
up-
defendant,
contracts set
Hamilton-Brown
the answer of the
against
Shoe Company,
public
evidence
this case
read
policy, void
action.”
declara
defense
constitute no
tion,
only
side,
one
refused.
by either
asked
only
question
applies
here
be observed
corporations
called)
given.
(commonly
a bonus
been
so
has
Q.
Attorney,
Chicago,
ex
Rolston, Prosecuting
State
rel.
B.
v.
&
Co.,
proceeding
a
Railroad
246 Mo.
152 S. W.
3223-3225,
accumulated
recover
Revised Statutes
Sections
penalties
abandoning-a
(erected
in consideration
a
depot
land)
the Board
being
donation
so' to do
authorized
In
court
Railroad
ease
and Warehouse Commissioners.
(246
514):
depot
though a
said
Mo. 1. c.
“It
is to
be observed
village
a
given place, postoffiee
has been
erected
established and
present
there,
yet inapplicable
or town
there
built
act
unless
e.,
depot
erected
element,
one
must be one
has been
further
i.
railway company.”’
consideration of
donation
lands to the
present
In-the
statute,
terms,
ease the
by its
does
apply
not
corporations which
have not received
location of a
bonus
factory,
Q.
shop,
Co.,
C.,
In
ex
v.
B.
supra,
State
rel.
& Railroad
etc.
court,
using
language
after
quoted,
above
further said:
prohibitions against
constitutional
legislation
class
*7
denial
equal protection
the
of
deprive
of the laws in
no wise
Legislature
all
of
discretion in the matter
defining
of
classes
which its
apply,
enactments shall
only
is
and it
when
classification
attempted
arbitrary,
is
unjust
unreasonable and
that
these consti
provisions
legislative
inhibit
Legislature’s
tutional
action. The
broad
respect
discretion with
to the classifying
persons
objects
of
purposes
subject
of
at all
legislation
is not
to revision
the courts,
unwisely it
seem
however
to have been
may
exercised
an
particular
occasional
When,
clearly
instance.
it
however,
beyond a
appears
reasonable
has
legislative power
that
doubt
been
particular
a
transcended
act
and that
arbitrarily, unjustly
unreaspnably
particular
things
objects
marks
persons or
as the
burdensome, legislation
exempts
the same
therefrom others of
natural
it
point
.to
is,necessary
give
that fact
to the
class
out
n
provisions-
question
is
constitutional-
intended effect. It
tbe-i-r
.law that
legislative
always
purposes ‘must
settled
rest
classification for
some,
upon
just
difference
relation
bears a-reasonable and
which
respect,
to the act
proposed,
to which
can
the classification is
’ ” ,
never
arbitrarily
any
made
$uch
and without
basis.
void,
question
held that the
was -unconstitutional and
act
applied only
because it
depots
“which
to railroads
have erected
compliance
agreement
with
an
erect
them in consideration
donations,
exempts
-application
despite
but
roads
.from its
other
the fact
grounded
that the
reason
distinction observed
no
nature,
public
-relation
the enactment
and bears no
reason for
to .the
legislation
depots,
e.,
to 'the
relative
removal
i.
need of
of.
public-for-depot
facilities
place
at the
affected.”
involved,
Can it be said
distinction
in the statute here
made
which, have,
which
corporations'
those
between
bonus and
received no'
have,
grounded
generaLpublic
nature? We do not
on-reasons of
out,
think
makes
so. It.
4602,
that Section
above set
be noted
or
only
person
grant
gift.
the.
applicable,-although
one
make
statute
&.Q.
cited
Co., supra,
v.
with
C., B.
Railroad
has been
ex rel.
State
;of
subject
legislation and
approval a
times
class
number
lay?.
are
equal
Among
eases
protection
the denial
these
260,
Q.
249,
204 W.
Lige C.,
Co.,
l. c.
S.
B. &
275 Mo.
v.
Railroad
al.,
v.
508;
County Wilson et
the use of Saline
State ex. rel.
75,
82, 285
140;
c.
315,
288
Mo.
l.
French,
W.
In re
315
Mo.
232 S.
1247,
513; State ex
1241,
Knight,
l. c.
Holloway
Mo.
S.
rel.
323
v.
W.
1233,
Walker,
Mo.
(2d)
767;
ex rel.
21 S. W.
Wells v.
State
1249,
(2d)
c.
l.
S.
124;
W.
ex
Prosecuting
State
rel.
Attorney to
use of School Fluid,
County
Miss.
Bridge
v.
&
Cairo
Terminal Com
198, 100 S.
pany,
We no see legislative conclusion upon act plaintiffs rely is void, unconstitutional because conflict subdivision Section Article Missouri, Constitution of part and in conflict with that Section 1 of Fourteenth Amend- ment States, Constitution providing “no United State any shall make or law which . deny any enforce . . person jurisdiction equal protection its the law.”
If the statute rely' valid, were still facts, recovery nothing had. could not be There in the se, they contrary penal contracts is malum but *8 if the statute were valid. 23, 1922, sup- of March superceded contract or was
plemental contract, obligated $750,- pay out defendant wages 000 in as provided, period in the contract and “within not 1, years ten July 1922.” The record that exceed after shows period eight 1, that years and a half from July about and 1922, wages paid factory defendant out in Owensville $1,102,693.65, sum this, paid that defendant addition building. $156,000 constructing equipping factory out provided supra, It will pay- observed, be contract wages ten-year period ment in within said would discharge” obligations complete “be a full and under defendant’s fully the contract. have been is conceded these contracts performed both sides. general party (illegal) agree rifle that neither an recovering executed both will be
ment that has been sides aided Jur., agreement.” parted Am. with what has been [12 Supreme Contracts, 213, p. sec. cases from Court 724.) Numerous many supporting from United states are cited States Among general Jurisprudence. the cases rule as American stated Association, 273, 66 Fair 167 Mo. al. v. Louis is Ullman et St. cited quoted approval case the court 949. the Ullman S. W. In 205, respect Henderson, follows: “The Mo. as rule Skinner v. general money appears be, illegal paid contracts had money may in an action money be recovered advanced so viola executory, because a received, contract remains while the contract, thereby executed, be if the prevented; but law is tion of the back.” it be recovered cannot illegal executory, an
“In and immoral contract allows the law back; but, repentance, paid may thereon recovered money if. then money performed contract which the has upon been expended money the law not aid thereon who party has (Mo. App.), get Co. it back.” v. Manchester Inv. [Burgess S. W. l. cases c. there cited.] is uncon- plaintiffs rely We clear that not, not void, were could stitutional if still and that it judgment affirmed, ordered, recover. and it is so should be Ferguson Hyde, CC., concur. Bradley, C., adopt- foregoing opinion
PER CURIAM: —The Lucas, J., except opinion judges concur, as court. All ed sitting. not Superintendent of the Department O’Malley,
R. Insurance Emmet State, Appellant, v. Continental Life Insurance Com Defendant, pany, Corporation, Rassieur, Intervener Theodore (2d) -Respondent S. W. 834. . 121 One, Division November 1938.