Horst v. Moses

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 — 140 — 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 The said act of the 31st of December, 1868, being thus repealed, the subsequent payment of one thousand dollars, made by said associates to E. B. Dickson as superintendent of common schools of Mobile county,- on the 19th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. — 141 — 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, — 142 — 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 prop — 143 — osition 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 — 144 — 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 — 145 — 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.