State v. Miller , 50 Mo. 129 ( 1872 )

Wagner, Judge,

delivered the opinion of the court.

The appellant was convicted in the Court of Criminal Correction for selling lottery tickets in the Missouri State Lottery, for the benefit of the town of New Franklin, and he brings his case here for review by appeal. It is insisted by his counsel that according to the prior adjudications of this court the matter is conclusively settled, and that all further inquiry is precluded. The real question here presented has been passed upon by this court in three several decisions (State v. Hawthorn, 9 Mo. 389: State v. Morrow, 12 Mo. 279; State v. Morrow, 26 Mo. 131).

Hawthorn’s case was decided upon the act authorizing a sum of money to be raised by lottery, to be given to the Sisters of Charity in St. Louis, for the use of the hospital over which they had the control and management. The amount to be raised and the manner of making payments were different from the provisions contained in the act in reference to the town of New Franklin, but in all other respects they were precisely the same. Therefore, when indictments were found against Morrow for selling tickets by authority of the last named act, it was held that the decision in Hawthorn’s case was controlling authority, and that the exposition of the law in respect to the St. Louis Hospital was equally applicable to the act in regard to the town of New Franklin. The transfer of the lottery scheme to Gregory by the commissioners constituted a valid contract, which could not be impaired either by the Legislature or by a constitutional convention.

' But a point is now raised as to the interpretation of the contract, which, it is contended, was not made in the cases heretofore decided. It is this: that when the sum of $15,000 was raised by the managers, then the law had accomplished its object and their functions were exhausted, without regard to the question whether the time had come to pay the money over in installments for the use of the town, according to the terms of the contract; in other words, that the franchise ceased when the proceeds, after deducting expenses, amounted to the sum authorized to be raised. It is admitted that more than that sum has been raised by the managers, and that the semi-annual installments have been promptly paid as they fell due, but the whole amount has not been paid, as the time has not yet arrived when it is all due. It is obvious that this construction of the contract, as contended for, cannot be reconciled with the construction given to the hospital lottery contract in the Hawthorn case, and which, as before said, is precisely the same as the New Franklin contract, except only in the amount of money to be raised and the character of the payments. .It is there expressly said by the court: “The right to sell the tickets was transferred to Gregory until that portion of the proceeds of the sale which belonged to the hospital should amount to the sum authorized to be raised by the act.”

It makes no difference that the point was not directly alluded to by counsel in Morrow’s cases; for the court, in both instances, summarily disposed of the matter by declaring that the judgment in Hawthorn’s case was conclusive of the whole question, and that the cases were identical and parallel throughout. These cases furnished a rule of property, and the appellant, when he succeeded to the interest of Gregory, could confidently rely upon them for the protection of his rights.

Where a contract, when made, is valid by the laws of the State as then expounded by the departments of the government and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent constitutional ordinance or act of the Legislature, or decision of its courts, altering the construction of the law.

The establishment and 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.

We think that every question presented in this case was-settled in the cases before referred to, and the result is that the judgment must be reversed and the defendant discharged.

Judge Bliss concurs. Judge Adams was not on the bench when this cause was argued.