121 Mo. App. 81 | Mo. Ct. App. | 1906
Information in tbe nature of a quo warranto filed by tbe attorney general for dissolution of defendant corporation and forfeiture of its charter. After stating preliminary matter tbe information alleges:
“That in and by said articles of agreement tbe object and purpose of said corporation are stated to be
“That thereafter, and to-wit, on the-day of January, 1902, the said Rosehill Pastime Athletic Club, in violation of the law of the State of Missouri and its charter, and in fraud of the said laws of the State of Missouri, and its said charter, did unlawfully misuse its franchises as follows:
“That said corporation, by and through its servants, agents and employes, did secure and take possession of a certain building in the city of Kirkwood and State of Missouri, located on the north side of Main street, in said city, and between Webster avenue and Clay avenue, parallel streets intersecting said Main street, in said city of Kirkwood; and having so obtained possession of said building, did fit up the same as a barroom and grog shop, with a bar, tables, glasses, and other ordinary devices and paraphernalia for conduct of a barroom and dramshop, and did purchase, keep on hand and supply the said room with a supply of whiskey, beer, wines, tobacco, and has ever since said last-mentioned date kept and maintained the said barroom and dramshop, together with a supply of said liquors, and did keep and since said date, has, continuously, kept and maintained at said room a barroom or dramshop for the sale of such liquors, and has continuously since said date sold, delivered and given away to divers persons in said room and at said city of Kirkwood, beer, whiskey, wines, and other intoxicating liquors such as is usually sold in an
“Your informant further states that by reason of the premises said corporation has usurped and assumed to exercise rights, privileges and franchises not conferred upon it by its charter; that it has violated the laws of this State and has thereby become liable to forfeit its charter.”
The answer put at issue all the incriminating allegations of the petition.
The purposes for which the club was formed are correctly set forth in the information. The issue to be decided is whether the club, chartered for a lawful purpose, is being used as a mere scheme to sell intoxicating liquors in defiance of law. The evidence taken by the commissioner and certified to us shows that William Soehngen, a saloonkeeper of twenty years’ experience, was appointed manager or steward of the club, with power to purchase and sell intoxicating liquors to the members, and has been continued in the office of steward from the organization of the club up to the present time, at a salary of sixty dollars per month. The evidence also shows that the first building occupied by the club was Soehngen’s, in which he had conducted a saloon but closed (a short time before the club moved in) on account of the expiration of his license as a dram-shop keeper, which license he had been unable to renew. From this building, the club moved into another building belonging to Soehngen or his wife, on Main street, in the city of Kirkwood. This building had also been recently vacated as a saloon by Soehngen, for the reason
In the front room of .the club house is a horizontal turning bar, a spring board and climbing ladder, climbing poles, high-kicking stands, a punching bag, boxing gloves, Indian clubs, quoits and a kicking horse. A pool table and card tables are in the room back of this. The athletic paraphernalia is used to some extent by the younger members of the club1. The pool and card tables are much more used. In the reading room the elderly members frequently engage in discussing topics of general interest, such as politics and religion, and the members of leisure use this room as a place to meet' their friends socially, to read the news and to be comfortable. The foregoing is a brief summary of what the evidence
'In State ex rel. v. The St. Louis Club, 125 Mo. 308, 28 S. W. 604, Gantt, P. J., reviewed at considerable length the cases dealing with the rights of a club to dispense intoxicating liquors to its members, and held that an incorporated club is not a person, within the meaning of the dramshop act, and may dispense intoxicating liquors to its members, but a club’ could not be organized or used “as a mere scheme to sell liquors in defiance of law.” This case has not been overruled or criticised by our Supreme Court in any subsequent case. It is on the side of personal liberty. It follows the best considered and most conservative cases from other States and is a controlling authority on this court. The law having been settled for us by the St. Louis Club case, all that remains for us to deal with is to apply the law as settled to the facts in the case, and we shall have discharged this duty if we correctly answer the following interrogatory: “Is the club being used for the purpose of evading the dramshop act?” On the oral argument it was stated by counsel on both sides, that the city of Kirkwood,where the club is located, has adopted local option, that is, has prohibited dramshops within its corporate limits. The club is housed in a building belonging to Soehngen or his wife that was formerly occupied by him as a dramshop. Soehngen is, and has, been from the organization of the club, its business manager, and has, by and with the consent of the members and board of directors, had and exercised absolute control of its business affairs. He receives and disburses its revenues as he sees fit. His accounting to the board has been merely perfunctory.' A bar is maintained in the club' building and liquors are sold as in any ordinary dram-shop, except the sales are confined to members of the club. No dues are paid or required of the members. The