State ex rel. Robinson v. Bacon Club , 44 Mo. App. 86 ( 1891 )

Thompson, J.

This was a proceeding by information in the nature of quo warranto to oust the defendant, an incorporated club, from its corporate franchises for the misuser of keeping a bar upon its premises, where intoxicating liquors were sold and drunk contrary to law. The defendant filed an answer, admitting its corporate existence by the name of the Bacon Club of Neosho, by which name it was proceeded against, and denying that it had ever unlawfully kept or maintained a bar, or place where intoxicating liquors were kept, sold or drunk upoD its premises, as described in the information. The trial resulted in a, judgment of ouster.

The evidence in support of the information was to the effect, that the respondent had a club room to which each member had a key ; that in the center of the room there was a bar and fixtures, at which members were in the habit of procuring liquors by the drink, and paying therefor. At the close of the evidence the defendant offered an instruction in the nature of a demurrer to-the evidence, which was refused.

I. The first assignment of error is, that the writ was improperly served on the person named as president of the Bacon Club, instead of the Bacon Club of Neosho, Missouri, which is its corporate name. The objection is untenable, for the reason that the Club appeared, and filed an answer admitting its corporate existence by the name of the Bacon Club of Neosho, as stated in the information. It, therefore, waived any formal defect in the sheriff’s return, even if the defect would have been available under any circumstances.

II. The next assignment of error is, that the instruction in the nature of a demurrer to the evidence should have been given. We do not take this view. The evidence makes out a prima facie case on the part of gentlemen organizing a club, and setting up a bar in their club room for the dispensing of intoxicating liquors to their members by sale, without having any license so to do, as required by the laws of the state. We say without a license, for it did not appear from the record, whether or not Newton county has adopted what is known as the local-option law. Certain it is, that no person or corporation in this state, can lawfully engage in the practice of selling intoxicating liquors by the drink without a dramshop-keeper’s license. A question very much like the present has lately been before the court of appeals of Maryland, and that court has held that, where an incorporated club habitually furnishes to its members intoxicating liquors at a price fixed by its regulations, and paid by the members upon receipt of the liquor, this constituted a sale within the prohibition of the law of that state, and that it is immaterial that no actual profit accrues to the club from the transaction ; and that repeated violations of the law in this respect furnish grounds of forfeiture of the franchises of the club. State v. Eastern, etc., Club, 20 Atl. Rep. 783. The decision seems to be a wholesome one. The principle of law, that prohibits a laboring man from buying a drink of liquor in a saloon, ought to prevent wealthy gentlemen from organizing themselves into a corporation for the purpose of selling it to their members.

The judgment will be affirmed.

All the judges concur.